BARKER  &  KEITHLY 


REPORTS  OF  CASES 

ADJUDGED  AND   DETERMINED 


IN   THE 


SUPREME  COURT  OF  JUDICATURE 


COURT  FOR  THE  TRIAL  OF  IMPEACHMENTS 


AND 


CORRECTION   OF  ERRORS 


OK 


THE  STATE  OF  NEW  YORK 

WITH  COPIOUS  NOTES  AND   REFERENCES,   TABLES  OF  CITATIONS,   &c. 


EDWIN   BURRITT   SMITH 

AND 

ERNEST   HITCHCOCK, 

COUNSELORS  AT  LAW. 


BOOK     I. 


CONTAINING  COLEMAN'S  CASES,  1  VOL.  ;    COLEMAN  &  CAINES'  CASES, 
1  VOL.  ;    AND  JOHNSON'S  CASES,  3  VOLS. 


THE   LAWYERS'  CO-OPERATIVE   PUBLISHING   COMPANY, 

NEWARK,  WAYNE  COUNTY,  NEW  YORK. 

1883. 


Entered  according:  to  Act  of  Congress,  in  the  year  eighteen  hundred  and  eighty-three,  by 

THE  LAWYERS'  CO-OPERATIVE  PUBLISHING  CO., 
In  the  Office  of  the  Librarian  of  Congress,  Washington,  D.  (,'. 


B.  R.  Andrews,  Printer,  Rochester.  N.  Y. 


GENERAL  TABLE  OF  CASES  REPORTED 

THIS   BOOK. 


CASES   REPORTED   IN   COLEMAN. 

[Figures  refer  to  Marginal  Figures  in  respective  vols.] 


Andrews  v.  Andrews 
Andrews,  Andrews  v.    - 
Armstrong,  M'Gourch  v. 
Allen  and  Talmadge,  Cornell  v.    - 

B 


135 
42 
45 

133 
51 
57 


Beebe,  Paddock  v. 

Brantingham's  Case 

Branson,  Boardman  et  al.  v. 

Brooks  v.  Patterson 

Ballard  &  Parkman,  Kibbe  &  Ludlow  «. 

Berry  who,  &c., Ellis  et  al.,  assignees,  v. 

Bird,  Savage  and  Bird,   Robert  ^Murray 

&  Company  v.    -  58 

Baker,  Burns  v.  73 

Brown  v.  Mitchell  84 

Britt  et  al.  v.  Van  Orden  96 

Burr  ®.  Skinner  97 

Byron  et  al.,  Lefferts  v.  110 

Boardman  et  al.  v.  Branson  45 

Burns  v.  Baker  73 

Butler  et  al.  c.  Ditz  -  102 

Barret  v.  Forrester  92 
Boardman  &  Hunt  v.  Fowler,  manucaptor,  108 

Benninger  v.  George  85 

Bird,  assignee,  &c.,  v.  Mabbit  et  al.  65 

Ball,  Phelps  v.  66 

Ball,  Wendover  v.  44 

Bird  et  al.  v.  Sands  105 

C 

Carnes  v.  Duncan,  administrator  35 

Cohan,  administrator,  Kip  v.  45 

Child  v.  Murray,  manucaptor  -  59 

Cannon,  manucaptor,  Cathcart  ».  60 

Church,  Clason  and  Stanley  t>.  62 

Card,  Fitzroy  et  al.  v.    -  63 

Conklin  ».  Hart  69 

Cornell  v.  Allen  and  Talmadge  70 

Cannon,  manucaptor,  Cathcart  v.  80 

Crygiers  v.  Long   -  103 

Cole  etal.,  Staff ordv.  107 

Cascadier,  an  insolvent  debtor  116 

Cathcart  v.  Cannon,  manucaptor  -  60 

Clason  and  Stanley  v.  Church  -  62 

Cathcart  v.  Cannon,  manucaptor  80 

Campbell,  assignee,  &c.,  v.  Grove  113 

Campbell,  Hoyt  and  Bennett  v.  128 

Cuyler  v.  Vanderwerker   -  89 

Carter,  Winter  v.   -  47 

Case  v.  Shepard  90 
COLEMAN. 


D 

Dobbin  v.-  Watkins    -  -      33 

Drake  v.  Hunt  43 

Driggs,  Van  Loon  t.  50 

Drake  v.  Miller      -  85 

Dole,  sheriff,  v.  Moulton  et  al.  -  87 

Durell,  Stansbury,  assignee,  &c.,  v.  99 

Delavan,  The  same  v.  99 

Ditz,  Butler  et  al.  v.  102 

Duncan,  administrator,  Carnes  v.  35 

Denning,  Hyers  v.  70 

Dusenbury,  Sharp  ».  134 

Dowelle,  The  People  D.  35 

Dill  v.  Woods    -  106 

E 

Earl  v.  Lefferts  -        -      98 

Edwards,  McKinstry  T.  124 
Ellis  et  al.,  assignees,  v.  Berry,  who,  &c.     57 

Evers,  Price  ®.  41 

Eden,  Wardell  v.  137 

F 

Franklin  et  al.,  Nore  v.  46 

Fleming,  executor,  v.  Tyler  66 

Forrester,  Barrett  v.  92 
Fowler,  manucaptor,  Boardman  &  Hunt  v.  108 

Finch,  Kemble  v.  109 

Fitzroy  et  al.  T.  Card  63 

Fox,  Newkirk  et  ux.  v.  133 

Ferris  v.  Phelps  95 

G 

Gillet,  Wilde  v.  64 
George,  Benninger  «.  85 
Gourley  v.  Shoemakers  103 
Graham,  Storey  v.  Ill 
Grove,  Campbell,  assignee,  &c.,  #.  113 
Gillespie,  Ptister  &  M'Comb  v.  119 
Gibbs,  Scott  v.  127 
Griswold  T.  Haskius  75 
Graves  v.  Hausenfrats  -  97 
Gorham  v.  Lansing,  who  is,  <fec.  116 
Gelston  assignee,  &c.  v.  Swartwout,  manu- 
captor 76 

H 

Holcomb  et  al.,  Hamilton  r.  61 

Herring  p.  Tylee    -  64 

Hyers  -c.  Denning  70 

Raskins,  Griswold  -c.  75 

3 


CASES  REPORTED. 


H 

Holmes  et  al  v.  Lansing    - 
Hausenfrats,  Graves  v.  - 
Hornbeck,  Low  v. 
Hoyt  and  Bennet  P.  Campbell 
Hart,  Concklin  v. 
Hunt,  Drake  c. 
Hitchcock,  Sable  v. 
Hamilton  r>.  Holcomb  et  al.  - 


Jenkins  r>.  Kinsley    - 
Jenkins  n.  Pepoon  et  al. 
Jones,  Percival  v. 

K 

Kettletas  t.  North 

Knap,  executor,  t>.  Mead 

Kip  v.  Cohan,  administrator 

Kemble «.  Finch        -        -        - 

Kinsley,  Jenkins  v. 

Kibbe  &  Ludlow  v.  Ballard  and  Parkman 


Ludlow,  The  People  v. 
Le  Conte  T.  Pendleton 
Loder,  Scofield  and  wife  D. 
Lansing,  who  is,  &c.,  Gorham  v. 
Livingston,  Sackett  v.    - 
Larroway,  Lewis  et  al.  v. 
Larroway,  Van  Loon  et  al.  v. 
Lefferts  v.  Byron  et  al. 
Long,  Crygiers  v.  - 
Lefferts,  Earl  v. 
Lansing,  Holmes  et  al.  v. 
Low  v.  Hornbeck      - 
Lewis  et  al.  v.  Larroway 
I^awrence  and  Dayton,  Marston  v. 
Le  Conte  v.  Pendleton  - 
Lothrop,  Sacket  v. 
Little  c.  Woodman  et  al. 

M 

M'Gourch  v.  Armstrong    - 

M'Nealy,  Morrison  v. 

Mabbit  et  al. ,  Bird,  assignee,  &c. ,  v. 

Murray  v.  Smith    - 

M'Kinley  and  Co. 

Marklar  et  al.,  M'Evers  v. 

Marston  v.  Lawrence  and  Dayton 

Murray,  manucaptor,  Child  v. 

Miller,  Drake  v. 

Moulton  et  al.,  Dole,  sheriff,  v. 

M'Kinstry  v.  Edwards 

Morrison  v.  M'Nealy 

M'Evers  v.  Marklar  - 

M'Coon,  Suydam  v. 

Mead,  Knap,  exec.,  v. 

Mitchell,  Brown  v. 

M'Dougal,  Wimple  et  al.  v. 

N 

Newkirk  et  ux.  u.  Fox 
Nore  v.  Franklin  et  al. 
North,  Kettletas  v. 

O 

Oudenarde  r.  Van  Bergen 
Ouderkirk,  Van  Patten  t>.   - 


92 

97 

127 

128 

69 

43 

103 

61 


136 

55 

104 


49 
122 

45 
109 
136 

51 


34 

72 

98 

116 

122 

124 

124 

110 

103 

98 

92 

127 

124 

94 

74 

91 

54 


50 
61 
65 
71 
78 
93 
94 
59 
85 
87 

124 
61 
93 
59 

122 
84 
49 


133 
46 
49 


47 
118 


Platt  v.  Platt 

Price  v.  Evers  - 

Pepoon  et  al,  Jenkins  v. 

Phelps  v.  Ball  - 

Phelps,  Stafford  v. 

Pendleton,  Le  Conte  v. 

Platt  v.  Bobbins  et  al.,  admrs. 

Phelps,  Ferris  t. 

Percival  v.  Jones    - 

Post  v.  Van  Dine 

Peck,  Philips  v. 

Palmer  v.  Sabin 

Patterson,  Brooks  «. 

Paddock  ®.  Beebe 

Pfister  &  M'Comb  ».  Gillespie 

Pendleton,  Le  Conte  v. 

Platt,  Platt  v. 

Philips  v.  Peck 

Q 

Quackenbos  v.  Woodward    - 

R 


36 
41 

55 

66 

67 

74 

81 

95 

104 

106 

112 

132 

133 

135 

119 

72 

36 

112 


120 


Robert  Murray  &  Company  v.  Bird,  Sav- 
age and  Bird      -----      58 

Robbins  et  al.,  admrs.,  Platt  v.  81 

8 

Sharp  v.  Dusenbury  134 
Suydam  v.  M'Coon  -  -  59 
Swartwout,  manucaptor,  Gelston,  assign- 
ees. &c.,  ®.  -  76 
Salstonstall,  White «.  -  -  •  -  -  82 
Shepard,  Case  v.  -  90 
Sacket  v.  Lothrop  -  -  91 
Sable  v.  Hitchcock  -  -  103 
Sands,  Bird  et  al.  v.  -  105 
Slosson,  Wheaton  «.  121 
Swift,  Sacket  v.  122 
Seely  v.  Shattuck  -  -  126 
Spencer  v.  White  67 
Sabin,  Palmer  «.  -  132 
Skinner,  Burr  «.----  97 
Stafford  v.  Cole  et  al.  -  -  •  -  107 
Storey  v.  Graham  111 
Scott  v.  Gibbs  -  -  127 
Stansbury,  assignee,  &c.,  «.  Durell  -  99 
Same,  at  the  relation  of  Allaire,  v.  The 

Judges  of  Westchester  -    135 

Same  e.  Delavan    -  50 

Shoemakers,  Gourley  v.  103 

Scofield  and  wife  v.  Loder  98 

Sacket ».  Livingston      -        -        -  -        122 

Smith,  Murray  v.  71 

Stafford  v.  Phelps  -  67 

Sacket  v.  Swift  122 

Shattuck,  Seely  v.  126 


The  People  v.  Dowelle  35 
The  same,  at  the  relation  of  Thompson,  «. 

The  Judges  of  Westchester  -  -  55 

The  People  v.  Townshend  68 

The  People  v.  Waters,  sheriff  -  -  77 
The  People,  at  the  relation  of  Jansen,  v. 

The  Judges  of  Ulster  -  -  -  117 

Tyler,  Fleming  executor  v.  -  66 

Tylee,  Herring  v.  64 

The  People  v.  Ludlow  34 

COLEMAN. 


CASES  REPORTED. 


The  Judges  of  Westchester,  The  People, 

at  the  relation  of  Thompson,  v.  55 

Townshend,  The  People  v.    -  68 

The  Judges  of  Ulster,  The  People,  at  the 

relation  of  Jansen,  v.  117 

The  Judges  of  Westchester,  The  people,  at 

the  relation  of  Allaire,  r>.    -  135 

Towers  v.  Vielie    -  86 

The  People  v.  Waters,  sheriff  77 

V 


Vielie,  Towers  v.       - 
Vanderwerker,  Cuyler  *.- 
Vischer  et  al.  ,  Van  Alen  v. 
Van  Patten  «.  Ouderkirk 
Van  Loon  v.  Driggs 
Van  Loon  et  al.  v.  Larroway 
Van  Orden,  Britt  et  al.  •». 
Van  Bergen,  Oudenarde  T.    - 

COLEMAN. 


86 

89* 

115 

118 

99 

124 

96 

47 


Van  Dine,  Post  v. 

Van  Alen  v.  Vischer  et  al. 

W 

Wardell  v.  Eden 
Wendover  v.  Ball  - 
Winter  v.  Carter 
Wickham  v.  Waters 
Wimple  et  al.  v.  M'Dougal 
Woodman  et  al.,  Little- 0. 
Wisner  et  al.  v.  Wilcocks  et  al. 
White,  Spencer  v. 
Waters,  sheriff,  The  People  v. 
Woods,  Dill  v. 

Williams,  an  insolvent  debtor  - 
Woodward,  Quackenbos  v.    - 
Watkins,  Dobbin  to. 
Wilde  v.  Gillet 
White  v.  Saltstonstall 
Wheaton  «.  Slosson 
Waters,  Wickham  v. 
Wilcocks  et  al.,  Wisner  et  al.  v. 


106 
115 

137 
44 
47 
49 
49 
54 
56 
67 

106 

113 

120 

33 

64 

82 

121 

49 

65 


CASES  REPORTED  IN  COLEMAN  AND  CAINES. 


A 

Abeel  t>.  Wolcott  et  al.    -  229  ; 

Adams,  Keeler  v.  435  ! 

Allen  and  Talmadge,  Cornell  v.  75 

Ames,  Moore  «.  •  490 
Anonymous,  160,  176,  345,  399,  406 

408,  409,  419,  426,  428,  456,  461 

488. 

Andrews  v.  Andrews 

Andrews,  Andrews  v.  121 
Arden  et  al.  ».  Rice  et  al. 

Arjo  v.  Monteiro  -  -  227 
Armstrong,  M'Gourch  v. 

Arnet,  M'Gregor  t>.  166 

Atterbury  v.  Teller,  Junior,  -  309 

B 

Bach  and  Bach  r.  Coles  -  434 

Bacon,  Olney  v.  -  474 
Bacon,  More  t.  -  433 
Bailey,  Seaman  t>. 

Bain  ~v.  Thomas  and  Green  359 

Baker,  Burns  v.  -  78 
Baker  and  Sloane  v.  Sleight,  Sheriff  of 

Essex  343 

Baldwin,  Delavan  v.    •  458 

Ball  r.  Ryers  435 

Ball,  Wendover  v.  49 

Balletal.,  Russelr>.  233 

Ball,  Phelps  v.  71 
Billiard  and  Parkman,  Kibbe  and  Lud- 

low  v.  -        -        56 

Bancroft,  Bogert  v.  466 

Barhite  et  ux.,  Stay  ley  «.  394 

Barret  t>.  Forrester  95 

Bates  v.  Williams    -  70 

Bayard  p.  Malcom  and  Malcom  456 

Beardsley,  Broome  v.  493 

Beebe,  Paddock  «.  135 
Bedford,  Henrick  T. 

Bedford,  Reynolds  r.  -  484 

Bt-dle  et  ux.  V.  Willett  148 

Beekman  ct  al.,  Lucet  et  al.  v.  428 

Beekman  r.  Franker        -  446 

B<-lknap,  Fall  and  Smith  v.  473 
Bell  et  al.  0.  Rhinelander  -  155 
Benjamin,  Masterton,  gent.,  &c.,  «.  -  363 

Benninger®.  George  89 

Bergen  and  Garritson  t>.  Boerum  404 
Berry,  who  is  impleaded  with  Bushbee, 

Elles  et  al.,  assignees,  &c.,  v.  -  62 

Borrian,  Brandt  ex  dem.  Palmer  v.  473 

Bird  etal.  «.  Pierpoint  462 

Bird  et  al.  fl.  Sands     -        -        -  107 

Bird,  assignee,  &c.,  v.  Mabbit  et  al.  70 

Bird  et  al.,  Murray  et  al.  v.  63 

Blackford,  Rathbone  «.  262 

Boardman,  Hinckley  ».  478 
Boardman  and  Hunt  v.  Fowler,  manu- 

captor    -  111 

Boardman  v.  Branson     -  51 

Boerum,  Bergen  and  Garritson  v.  404 

Bodwell  B.  Willcox  367 

Bogert  t>.  Bancroft  466 
6 


Bogardus,  Reed  v.  466 

Borland,  Delamater  n.  337 

Bowne,  Gordon,  survivor,  &c.  v.   -  524 

Bowne  v.  Shaw    -        -        -  304 

Bowne,  Hun  et  al.  v.  159 

Bovce  v.  Morgan  -  476 

Bradt  v.  Cray  491 

Bradford,  Hawkins  et  al.  r>.  216 
Brandt,  ex  dem.  M'Cleland,  v.  Burrows  -      483 

Brandt,  ex  dem.  Palmer,  t.  Berrian  473 

Brandt,  ex  dem.  Walton,  v.  Ogden  -  419 

Brandt,   ex  dem.   Van    Courtlandts,  v. 

Brantingham's  case  48 

Buckhout  and  Buckhout  186 

Brain  v.  Rodelicks  and  Shivers  -  176 

Bradt  v.  Way  et  ux.        -  361 

Branson,  Boardman  v.  51 

Brazier,  Gilbert  v.   -  153 

Brevoort  v.  Sayre  and  Hurd  419 

Brett  and  Bunu  v.  Hood  259 

Britt  et  al.  v.  Van  Orden      -  99 

Bronk,  Haughtalling  v.  -  -      495 

Brown  v.  Smith    -  430 

Brown  v.  Mitchell   -  -        88 

Brown,  Jackson  ex  dem.  Prior  v.  299 

Brown,  Jackson  ex  dem.  Rodman  v.  209 

Brown  et  al,  The  People  v.  284 

Brownell,  Jackson,  ex  dem.  Golden  v.  -      488 

Brower,  Manhattan  Company  D.  322 

Brooks*.  Hunt  444 

Brooks  «.  Patterson  133 

Broome  v.  Beardsley      -        -        -  493 
Buckhout  and  Buckhout,  Brant  ex  dem. 

Van  Cou/tlandts  i>.  186 

Bunker,  Pell  v.     -  344 

Burdock  &  Cace,  The  People  v.  4.18 

Burns  v.  Baker    -  78 

Burr  v.  Skinner  100 

Burrows,  Brandt  ex  dem.  M'Cleland  v.      483 

Butler  et  al.  v.  Ditz  105 

Butler,  Marscroft  v.  366 

Bvron  et  al.,  Lefferts  v.  112 


Caines,  Giles  v.  -  463 
Callagan  et  al.  •».  Hallet  and  Bowne  -  179 
Camman  v.  New  York  Insurance  Com- 
pany 188 
Cammann,  Mumford  «.  482 
Campbell  v.  Grove  -J^~_-r-  115 
Campbell  v.  Munger  et  al.  -  209 
Campbell,  Hoyt  and  Bennet  v.  129 
Campbell  &  Lorraine,  Cook  et  al.  n.  -  502 
Cannon,  rnanucaptor,  Cathcart  v.  65 
Candee  T.  Goodspeed  -  399 
Card,  Fitzroy  et  al.  v.  -  69 
Games  v.  Duncan,  adm.  41 
Carter,  Winter  v.  52 
Cary,  Ranney  v.  -  465 
Cascadier's  case  117 
Case  v.  Shepherd  94 
Cathcart  «.  Cannon,  manucaptor,  -  65 
Catlin,  Simonds  v.  346 
Chamberlin  et  al.,  Jackson  ex  dem.  Wil- 
liams et  al. «.  221 
COLEMAN  AND  CAINES. 


CASES  REPORTED. 


Chamberlain,  Waddington  «.       ;:i   .     -  400 

Chandler  et  ux.  v.  Trayard  358 

Cheetham  v.  Lewis      •    -'       -        -        -  498 

Cheetham,  Smith  v.     -        -        -  '    .  -    •  425 

Child  v.  Murray,  manucaptor  65 

Childs,  Meiks  e.   -        -        -        -        -  482 

Church,  Clason  and  Stanley  v.       -        -  68 

Christie,  Van  Drisner  v.  482 
Church  v.  New  York  Insurance  Com- 

rny      -    -    -        -        '-••-•       -  148 

v.  Frost  et  ux.     -        -        -        -  464 

Clarkson ®.  Gifford      ....  158 

Clason  v.  Lyle 233 

Clason  and  Stanley  v.  Church     -        -  68 

Clason,  Lyle  v. 233 

Clinton  v.  Porter  388 

Clinton  v.  Croswell          ....  398 

Clough,  Koy  ®. 425 

Codwise  and  Ludlow  v.  Hacker  -        -  401 

Cod  et  ux.  v.  Harrison  et  al.        -        -  431 

Coffin®.  Tracy 470 

Cogswell  v.   Vanderbergh  214 

Cogswell,  Kirby  v.  -        -        -        -      300,  320 

Cohan,  admr.,  Kip  v.  -        -        -        -  50 

Cole  v.  Grant 368 

Cole  v.    King ib. 

Cole  D.  Grant  et  al   -                ...  ib. 

Cole  et  ux.  v.  same     -        ...  ib. 

Cole  v.  Stafford        -                 -        -        -  228 

Cole,  Stafford  v. 110 

Coles,  Bach  and  Bach  v.  ...  434 
Coles  et  al.  v.  Thompson  ...  329 
Colfaxetal.,  Shaw  &  Barker  0.  -  450 
Columbian  Insurance  Company,  Living- 
ston 0.  -  339 
Columbian  Insurance  Company,  Mum 

ford  and  Mumford 0.        -  400 
Columbian  Insurance  Company,  Nichol 

and  Thompson «.    —        -        •  262 
Columbian  Insurance  Company,  Pom- 

roy  v. 408 

Columbian  Insurance  Company,"  Stein- 
bach  v. 374 

Columbian  Turnpike  Company  v.  Wood- 
worth        ...                -        -  363 
Combs  v.    Wyckoff    -        -        -        -  202 

Conklin  v.  Hart 74 

Cornell 0.  Allen  and  Talmadge   -        -  75 

Cotton,  Hallett  v.     -        -  .     -        -  150 

Cox  et  al. ,  Neilson  v.  -  197 

Cook  et  al.  v.  Campbell  &  Loraine        -  502 

Cray,  Bradt 0. 491 

Crocken,  Renaudet  ».----  218 

Crocker,  Gardinier  v.  -        -        -        -  481 

Crosby,  Whitney  v.         -        -        -        -  442 

Croswell,  The  People  v.       -  205 

Croswell,  Clinton  v.                                 -  398 

Cross®.  Hobson 367 

Crygiers  0.  Long        -        -        -        -  106 

Cuyler  0.  Yanderwerker  93 

D 

Davenport  et  al.,  Seaman  v.        -        -  148 

Day  0.  Wilber-         -        -               381,  400,  406 

Dean,  Roosevelt  v.  460 

Dearman,  Ekhart  ».--•-•  422 

Deas0.  Smith 221 

Delafield,  Livingston  ®.  -        -        -        -  147 

Delafield,  Waterbury  et  al.  ®.     -        -  324 

Delafield,  Watsons  ®.      -        -        -        -  407 

Delavan  v.  Baldwin    -  458 

Delavan,  Stansbury,  assignee,  &c.,  ®.     -  102 

Delamater  ®.  Borland  -        -        -  337 

COLEMAK  AND  CAINE8. 


Den  0.  Fen    -  303 

Denning,  Heyers  ®.  75 

Denniston,  Howell  ®.       -  448 

De  Peyster  v.  Warne  342 

De  Peyster  et  al. ,  Watsons  ®.          -  -      162 

DevoeY  Elliot 396 

Dill®.  Woods 108 

Ditz,  Butler  et  al.  v.    -  105 

Dobie,  Manny  ®.      -                ...  496 

Dobbin  ®.  Watkins      -  39 

Dole,  Sheriff,  &c.,  ®.  Moulton        -  91 

Dowelle,  The  People  ®.  41 

Drake  ®.  Hunt         -  -        49 

Drake  ®.  Miller    -        -  89 

Driggs,  Given  v.      -  485 

Driggs,  Stocking  ®.      -                 .  361 

Driggs,  Van  Loon  0.  56 

Du  Boys  ®.  Fronk      -        -        -  446 

Duesenbury,  Sharp  ®.     -  134 

Duncan,  adm.,  Carnes  ®.     -  41 

Durrell,  Stansbury,  assignee  &c.,  v.  102 

E 

Earl  ®.  Lefferts 102 

Eden,  Wardell  v.  137 

Edwards,  Masters  ®.         -        -        -  327 

Edwards,  M'Kinstry  ®.  125 

Eddy,  Phelps  0.  232 

Ekhart  ®.  Dearman      ....  422 

Elliot,  Devoe  ®.  -  -  396 
Elles  at  al..  assignees,  &c.  ®.  Berry,  who 

is  impleaded  with  Bushbee  -        -  62 
Everitt,  Surrogate,  &c.,  The  People,  &c., 

ex  rel.  Beach  ®.      -        -  149 

Evers,  Price  v.     -        -  46 

F 

Fall  and  Smith  v.  Belknap        -  473 

Fallmer  ®.  Steele  et  al.     -  -      158 

Farrington  ».  Rennie  -  393 

Felter  ®  Mulliner     -  427 

Fen,  Den  ®.  -  303 

Ferguson,  Jackson,  ex  dem.  Fisher  ®.  -      467 

Finch,  Kemble  ®.  112 

Finck,  Sayer®.        -  413 

Fisher,  Robinson  &  Hartshorne  ®.  452 

Fitzroy  et  al.  ®.  Card      -        -  69 

Fleming,  executor,  v.  Tiler  71 

Forrester,  Barrett  0.        -  95 

Fox,  Newkirk  et  ux.  ®.  134 

Franker,  Beekman  0.      -  446 

Franklin  et  al.,  Nore  0.       -  52 

Freeman,  Leonard  0.       -  491 

Freer,  The  People  0.   -                         -  283,  309 

Fronk.  Du  Boys  0.  -      446 

Frost  et  ux. ,  Clark  0.  -  -  464 
Fowler,  manucaptor,  Boardman  and 

Hunt0.     -  111 

Furman  0.  Haskin       -  410 

G 

Gardenier  0.  Crocker  -  -  -  481 

Gardner,  Jackson  ex  dem.  Norton  et 

al.  0.  -  -  359 

Gardnier,  Van  Ness  0.  165 

Garrison,  Rogers  0.  -  -  421 

Gelston,  Hartshorne  et  al.  0.  -  434 
Gelston,  assignee  &c.  0.  Swartwout, 

manucaptor  -  81 

George,  Benninger  0.  89 

Gibbs,  Scott  0.  -  128 

Gilbert  0.  Brazier  -  153 

7 


CASES  REPORTED. 


Gilchrist  v.   Van  Wagenen        -        -         313 

Giles  T.  Caines  -      463 

Giles,  Jackson,  ex  dem.  Counter  r.  442 

Gifford,  Clarkson  v.                -        -  -      158 

Gillespie,  Pfister  and  M'Comb  r.  120 

Gillet,  Wilde «?.        -       "-  69 

Gillingham,  Moyle  r..  -  176 

Gilliland  «     Morrel        -                -  -      212 

Given  v.  Driggs    -        -        -  485 

Gordon,  survivor,  &c.  «.  Bowne  -      524 

Gorham  v.  Lansing    •  117 

Gould,  Tillotson  t>.  373 

Gould,  Spencer  «.  373 

Gourley  v.  Shoemakers  -                -  -      106 

Goodspeed,  Candee  n.  399 

Grant,  Cole®.  -      368 

Grant  et  al.,  Cole  t.  368 

Same,  Cole  et  ux  t>.  -      368 

Graves  v.  Hausenfrate  101 

Green,  Grover  v.  -      190 

Green,  Williams  t.  470 
Griswold  c.  Haskins  .  ...  80 
Griswold  et  al.  v.  Stoughton  -  -  146 

Grove,  Campbell  r.  -      115 

Grover  v.  Green   -  190 

Guthrie,  Wilson  c.                           -  -      477 

H 

Hacker,  Codwise  and  Ludlow  r.    -  401 

Hacker,  Ludlow  et  al.  e.  177 

Haff «.  Spicer  et  al.                          -  -      495 

Haight,  Jackson  ex  dem.  Van  Bergen  et 

al  v.  357 

Hallet «.  Cotton  -  -  -  -  -  150 
Hallet,  Shuter  v.  -  189,  330 

Hallet  and  Bowne,  Patrick  r.  -      421 

Hallet,  Low  v,                                      -  417,  432 

Hallet,  Huguet,  assignee,  /?.    -  162 

Hallett,  Milward  v.       -  267 

Hallett  and  Bowne,  Callagan  et  al.  /•.  -      179 

Halsey®.  Watsons  160 

Hallock  v.  Robinson  -      395 

Hamilton  v.  Holcomb  et  al.  67 

Hammond,  Jackson  ex  dem.  Smith  v.  -      311 

Hart,  Woods  r.    -  447 

Hart,  Conklin  r.  -  -        74 

Hartshorne  et  al.  v.  Gelston  434 

Harrison  et  al.,  Cod  et  ux.  P.  -      431 

Haskin,  Furman  v.       •        •  410 

Haskins,  Griswold  c.  80 

Haughtalling  r.  Bronk  495 

Hausenfrats,  Graves  c.    -  101 

Hawkins  et  al.  v.  Bradford  216 

Herbert,  Manhattan  Company  V.    -  -      147 

Henrick  t>.  Bedford  484 

Henry,  Hudson  r.   -                        -  -      168 

Herrings.  Tylee  69 
Henshaw  v.  Marine  Insurance  Company  410 
Heycraft,  Ludlow  t .  ...  439 

Heyers  v.  Denning  75 

Hillyer,  Ryers  v.  -      185 

Hitchcock,  Sable  v.  106 

Hinckley  v.  Boardman    -  -      478 

Hobson,  Cross  v.  367 

Holcomb etal.,  Hamilton^.   -  -        67 

Holmes  t.  Williams  -  449 
Same  v.  Same  ....  40(5 

Holmes  et  al.  v.  Lansing    -  97 

Hopkins,  Van  Rensselaer  r.   -  -      481 

Horner,  Lansing  f>.  445 

Hornbeck,  Low  v. 128 

Horton,  Wolfe  v.         ....          433 

Howd,  Jackson  ex  dem.  Rosekrans  T.  -  474 
8 


Howell  v.  Denniston    - 

Howland  et  al.,  Lenox  et  al.  r. 

Howland  et  al.,  Maitland  et  al.  v.    '     - 

Hough  t.  Stover 

Houghton  v.  Strong 

Hoyt  and  Bennet  »  Campbell 

Hood,  Brett  and  Bunn  r. 

Hubble  et  ux.  adm.  of  Patterson,  Ross 

et  al.  v. 

Hudson  v.  Henry 
Huguet,  assignee,  v.  Hallet 
Hulbert,  Spencer  v. 
Hun  et  al.  v.  Bowne 
Hunt,  Brooks  T,  - 
Hunt,  Drake  r. 

I 

Ingersoll,  Mitchell «. 
Ingersolls,  Van  Antwerp  c. 
Isaacs,  Remsen,  admx.  v. 

3 

Jackson,  ex  dem.  Golden  ».  Brownell 

Jackson,  ex  dem.  Cramer  v.  Stiles,  Wil- 
liams Tenant 

Jackson,  ex  dem.  Cobley  v.  Valentine   - 

Jackson,  ex  dem.  Counter  v.  Giles 

Jackson,  ex  dem.  Fisher  v.  Ferguson 

Jackson,  ex  dem.  Finch  et  al.  ®. 
Kough 

Jackson,  ex  dem.  Hogeboom,  v.  Stiles, 
Griffin  tenant 

Jackson,  ex  dem.  Hogeboom,  v.  Stiles 
and  Griffin 

Jackson,  ex  dem.  Kemp  et  al.  v.  Parker 
and  Brewster  - 

Jackson,  ex  dem.  Lawyer,  «.  Stiles,  Pal 
mitier  tenant 

Jackson,  ex  dem.  Lewis  et  al.  «.  Van 
Loon 

Jackson,  ex.  dem.  Low  et  al.  t>.  Rey- 
nolds 

Jackson,  ex  dem.  Metcalfe,  v.  Wood- 
worth 

Jackson,  ex  dem.  Norton,  v.  Stiles, 
Grover  tenant 

Jackson,  ex  dem.  Norton  et  al.  ».  Gard- 
ner - 

Jackson  ex  dem.  Prior,  v.  Brown 

Jackson,  ex  dem.  Rosekrans  ».  Howd     - 

Jackson,  ex  dem.  Root,  v.  Stiles,  Van 
Buskirk  tenant 

Jackson,  ex  dem.  Russel  et  al.  v.  Stiles, 
Dockstader  tenant 

Jackson,  ex  dem.  Same  «.  Same,  Freelick 
tenant  - 

Jackson,  ex  dem.  Rosekrans,  v.  Stiles, 
Howd  tenant  - 

Jackson,  ex  dem.  Rodman,  v.  Brown  - 

Jackson,  ex  dem.  Spilsbury  et  al.  0.  Wat- 
son   

Jackson,  ex  dem.  Smith,  v.  Hammond  - 

Jackson,  ex  dem.  Van  Bergen  et  al.  v. 
Haight 

Jackson,  ex  dem,.  Ostrander  «.  Van  Der 
Mark 

Jackson,  ex  dem.  Van  Slyck  et  al.  v. 
Sou  - 

Jackson,  ex  dem.  Williams  et  al.  v. 
Chamberlin  et  al. 

Jackson,  ex  dem.  Watson,  v.  Marsh 

Jackson,  ex  dem.  Winter,  v.  M'Evoy  - 


448 
499 
503 
394 
302 
129 
259 

323 
168 
162 
418 
159 
444 
49 


429 
370 
156 


CASES  REPORTED. 


Jackson,   ex  dem.   "Waggoner  et  al.  ®. 

Murphy  481 
Jackson  ®.  Manu                                      199,  856 
Jackson  v.    Stiles  414 
Jenkins  v.  Kinsley               ;-        -        -  136  j 
Jenkins  v.  Pepoon  et  al.  60  | 
Jenkins,  Union  Turnpike  Company  v.  -  264  | 
Jones  and  Crawford  v.  Reid  -                 -  338  j 
Jones,  Percival  v.        -        -  107 
Judges  of  the  Common  Pleas  of  Wash- 
ington, The  People  v.   -                -  362 
Judges  of    Common    Pleas  of  Ulster, 
The  People  ex  rel.  Jansen  et  al. 
Administrators  of  Jansen  v.  118 
Judges  of  Westchester  Common  Pleas, 

The  People  ex  rel.  Allaire  «.  135 


Kane  and  Kent  v.  Scofield  -  -  -  414 
Keeler  v.  Adams  -  435 
Kemble  v.  Finch  -  112 
Kemper,  Roosevelt  v.  -  341 
Kenvey,  Malin  v.  -  -  192 
Ketcham,  Van  Winkle  ®.  -  503 
Ketteltas  v.  North  -  54 
King,  Cole  ®.  -  368 
King,  The  People  ex  rel.  Bennet  r.  -  364 
Kinsley,  Jenkins  ®.  136 
Kibbe  and  Ludlow  v.  Ballard  and  Park- 
man  -  -  56 
Kibbe  and  Titus  v.  Stoddard  -  470 
Kirby  and  Kirby  v.  Watkeys  -  -  216 
Kirby  v.  Cogswell  ....  300,  320 
Kip  v.  Cohan,  admr.  50 
Kip  v.  Cohan,  adm.  -  50 
Knap,  exec.,  v.  Mead  ...  -  120 
Knap  ®.  Palmer  -----  302 
Knapp  v.  Onderdonk  -  -  -  426 
Koy  v.  Clough  -  -  425 
Rough,  Jackson, ex  dem.  Finch  etal.  v.  -  230 


Lackey  and  Briggs ®.  M'Donald  -  -  190 
Lane,  Malin  v.  -  -  -  192 
Lansing®.  Homer  -  -  445 
Lansing,  Gorham  v.  117 
Lansing,  Holmes  et  al.  v.  -  -  -  97 
Larroway,  Van  Loon  et  al.  v.  126 
Larroway,  Lewis  et  al.  9.  '  -  -  126 
Lawrence,  Lowry  v.  -  170 
Lawrence  et  al.  Marston  v.  97 
Lawrence  ®.  Van  Wagenen  313 
Le  Conte  v.  Pendleton  -  -  76 
Ledyard  and  Ledyard,  Manhattan  Com- 
pany v.  -  226 
Lefferts  v.  Byron  et  al.  -  -  -  112 
Lefferts,  Earl  v.  -  102 
Lenox  et  al.  ®.  Howland  et  al.  -  -  499 
Leonard  ®.  Sunderlin  -  480 
Leonard  v.  Freeman  ....  491 
Lewis,  Cheetham  v.  -  498 
Lewis  et  al.  v.  Larroway  -  -  126 
Little  v.  Woodman  et  al.  -  60 
Livingston  v.  Rogers  -  303,  331 
Livingston  v.  Columbian  Insurance 

Company  339 

Livingston®.  Delafield    -  147 

Livingston,  Sacket  ®.  -        -  -        -          124 

Loder,  Scofield  et  ux.  ®.  -      101 

Long,  Crygiers  ®.  106 

Lothrop,  Sacket  ®.  -        -        94 

Loveland,  M'Gregor  ®.        -  -                  166 

COLEMAN  AND  CAINE8. 


Low  ®.  Hallet                                   -  417,  432 

Low  ®.  Hornbeck  128 

Lowry  ®.  Lawrence  -      170 

Lucet  et  al.  ®.  Beekman  et  al.     -  428 

Ludlow  et  al.  ®.   Hacker  -      177 

Ludlow  ®.  Heycraft    -        -  429 

Ludlow,  The  People  ®.    -  40 

Lusher  ®.  Walton  206 

Lydig,  Manhattan  Company  ®.  423 

Lyle  ®.  Clason  283 

Lyle,  Clason  ®.  233 

M 

Mabbit  et  al.,  Bird,  assignee,  &c.,  ®.        70 

Maitland  et  al.  ®.  Howland  et  al.    -  503 

Malin  ®.    Kenney        -  192 

Malin  ®.  Lane  -      192 

Malcolm  and  Malcolm,  Bayard  ®.  456 

Manny  ®.  Dobie   -  496 

Mann  ®.  Marsh  365 

Mann,  Jackson  ®.  -  199,  856 

Manhattan  Company  ®.  Lydig  423 

Manhattan  Company  ®.    Ledyard  and 

Ledyard         -  226 

Manhattan  Company  ®.  Brower  322 

Manhattan  Company  ®.  Miller     -  345 

Manhattan  Company  ®.  Smith  -      168 

Manhattan  Company  ®.  Herbert  147 
Marine  Insurance  Company,  M'Kay  r.  -  427 
Marine  Insurance  Company,  Henshaw®.  410 
Marine  Insurance  Company,  Radcliff 

and  Davis  r.       -        -  461 

Marsh,  Jackson  ex  dem.  Watson  v.  210 

Marsh,  Mann  r.    -        -  365 

Marston  ®.  Lawrence  et  al.  -        97 

Marscroft  v.  Butler  366 

Masterton,  gent.,  &c.,  ®.  Benjamin  -      363 

Masters  ®.  Edwards  -  327 
Mayor  and  Corporation  of  New  York  ®. 

Sands  420 

Mead,  Knap,  exec.  ®.  -        -  120 

Meiks®.  Childs  -      482 

Merrill,  Quick  ®.  476 

M'Alpine,  Peck  ®.   -  490 

M'Cabe  ®.  M'Kay  366 

M'Coon,  Suydam  ®.  64 

McDonald,  Lackey  and  Briggs  v.  190 

M'Dougal,  Wimple  et  al.  ®.  54 
McEvoy,  Jackson  ex  dem.  Winter  v.  -  207 

M'Gregor  ®.  Loveland     -        -  1 66 

M'Gregor  ®.  Arnet        -  ib. 

M'Gourch  ®.  Armstrong  -  55 
M'Kay  ®.  Marine  Insurance  Company  427 

M'Kay,  M'Cabe  ®.        -        -  866 

M'Kenzie  ®.  Williams  428 

M'Kinstry  ®.  Edwards  125 

M'Kinley's  case 82 

M'Nealy,  Morison  ®.  66 

M'Neil's  case            -        -        -        -  -       175 

M'Vicar  ®.  Woolcot      -  501 

Miller,  Drake  ®.  89 

Miller,  Manhattan  Company  ®.    -  345 

Milward  ®.    Hallett  267 

Mitchell,  Brown  ®.       -        -  88 

Mitchell  ®.  Ingersoll  429 

Moore  ®.  Ames    •  490 

More  ®.  Bacon  433 

Morrel,  Gilliland  v.  212 

Morgan,  Boyce  v.    -  476 

Morris,  Finder  ®.  489 

Morison  ®.  M'Nealy  -        66 

Monteiro,  Arjo  ®.  227 

Moulton,  Dole,  Sheriff.  &c,,  ®.  91 

» 


CASES  REPORTED. 


Movie  «.  Gillingham  176 
Mulligan,  Palmer  et  al.,  «. 

Mulligan  etal.,  Palmer  v.    -  360 

Mulliner,  Felter  ».  427 

Mumford  v.  Cammann         -  482 
Mumford  and  Mumford  n.   Columbian 

Insurance  Company 

Munger  et  al. ,  Campbell  v.  209 
Murphv,  Jackson  ex  dem.  Waggoner  et 

al.Y  -  431 

Murray  v.  Smith  -  76 

Murray  et  al.  v.  Bird  et  al.       -  63 

Murray,  manucaptor,  Child  v.  65 

N 

Napier  et  al.  v.   Whipple  441 

Negus,  Van  Cott  «.  396 

Neilson  T.  Cox  et  al.                                -  197 
Nichol    and    Thompson  v.    Columbian 

Insurance  Company  262 

Newkirk  et  ux.  v.  Fox  134 
New  Windsor  Turnpike    Company  v. 

Wilson  -  467 
New  York  Insurance  Company,  Cam- 
man  v.  188 
New  York  Insurance  Company,  Church  v.  148 
New  York  Insurance  Company,  Town- 
send  v.        -        -  144 
North,  Ketteltas  v.  54 
Nore  v.  Franklin  et  al.  52 

O 

Ogden,  Brandt  ex  dem.  Walton  «.  419 

Ogden,  Steinbach  v.  420 

Olney  v.  Bacon    -        -  474 

Onderdonk,  Knapp  v.  426 

Ouderkirk,  Van  Patten  v.   •  119 

Oudenarde  v.  Van  Bergen  53 


Paddock  v.  Beebe  -  135 

Palmer,  Knap  v.  -  302 

Palmer  et  al.  v.  Mulligan  423 

Palmer  et  al.  v.  Mulligan  et  al.     -  360 

Palmer  v.  Sabin       -  133 

Parkman  v.  Sherman  -  260 
Parker  and  Brewster,  Jackson,  ex  dem. 

Kemp  et  al.  v.  427 

Patterson,  Brooks  t.    -  133 

Patrick  v.   Hallet  and  Bowne    -  421 
Payne,  Thompson  and  Adams  t.    -        -      441 

Peck  v.  M'Alpine  490 

Peck,  Phillips  v.  113 

Pell  T>.  Bunker    -  344 

Pendleton,  LeConte  n.  76 

Pepoon  et  al.,  Jenkins  v.  60 

Percival  v.  Jones  107 

Petrie  et  al. ,  Van  Home  «.  390 

Petrie  t.  Wood  worth  496 
Pfister  and  M'Comb  v.  Gillespie  -        -          120 

Phelps  t>.   Ball  -        71 

Phelps  v.  Eddy    -  232 

Phelps,  Stafford  v.  72 

Phillips  v.  Peck   -  113 

Phillips,  Shadwick  v.  -      471 
Pierre  C.  Van  Wyck,  The  People  r>.  -     •*    411 

Pierpoint,  Bird  et  al.  v.  -      462 

Pinder  v.  Morris  -  489 
Platt  v.  Robins  et  al.,  administrators  of 

Smith  85 
Pomroy,  t>.  Columbian  Insurance  Com- 
pany 408 
10 


Pomroy  v.  Preston  416 

Post  v,  Wright  and  Buchan  183 

Preston,  Pomroy  v.  -  -      416 

Price  v.  Evers    -  46 

Porter,  Clinton  t.    -  388 

The  People  v.  Ludlow  40 

The  People  t>.  Dowelle        -  41 

The  People  v.  Townsend  73 

The  People  v.  Croswell  205 

The  People  v.  Freer        -  283,  300 

The  People  v.  Brown  et  al  -  284 

The  People  0.  Judges  of  the  Common 

Pleas  of  Washington 
The  People  v.  Waters        -        -  -,    -„ 
The  People  v.   Wright  - 
The  People  v.  Pierre  C.  Van  Wyck    - 
The  People  T.  Burdock  &  Case   - 
The  People  v.  Smith 
The  People  ex   rel.  Thompson,   v.  the 
Judges  of    the  common  pleas  for 
Westchester 

The  People  ex  rel.  Jansen  et  al.  admin- 
istrators of  Jansen,  v.  Judges  of  com- 
mon pleas  of  Ulster 
The  People  ex  rel.  Allaire  v.  Judges  of 

Westchester  common  pleas  - 
The  People  ex  rel.  Bennet  v.  King 
The  People,  &c.  ex  rel.  Beach  v.  Everitt, 
Surrogate,  &c. 

Q- 

Quackenbos  v.  Woodward  - 
Quick  v.  Merrill 

R. 

Radcliff  and  Davis  v.  Marine  Insurance 
Company 

Ranney  v.  Crary  - 

Rathbone  v.  Blackford    - 

Reedfl.  Bogardus 

Reid,  Jones  and  Crawford  ». 

Remsen,  admx.  v.  Isaacs 

Renaudet  v.  Crocken 

Rennie,  Farrington  n.  - 

Reynolds  D.  Bedford        -        ... 

Reynolds,  Jackson,  ex  dem.  Low  et  al.  0. 

Rhinelander,  Bell  et  al.  v.  - 

Rice  et  al.,  Arden  et  al.  ». 

Robins  et  al.  Administers  of  Smith, 
Platt  v. 

Robinson,  Hallock  v. 

Robinson  &  Hartshorne  $.  Fisher 

Rodelicks  and  Shivers,  Brain  «. 

Rogers  v.  Garrison 

Rogers,  Livingston  v.  •      303, 

Roosevelt «.  Dean 

Roosevelt  v.  Kemper 

Ross  et  al.  v.  Hubble  et  ux.  adm.  of  Pat- 
terson - 

Russel  v.  Ball  et  al. 

Russell,  Witmore    v.  • 

Ryers  v .  Hillyer 

Ryers,  Ball  v. 


362 
82 
390 
411 
458 
497 


61 


118 


149 


121 

476 


461 
465 
260 
466 
338 
156 
218 
393 
484 
155 
155 
312 

85 
395 
452 
176 
421 
331 
460 
341 

323 
233 
479 
185 
435 


8 


Sabin,  Palmer  v. 
Sable  t.   Hitchcock 
Sacket®.  Livingston 
Sacket  v.  Lothrop  - 
Sacket  v.  Swift    - 
Saltonstall,  White  t. 


133 

-  106 
124 

94 
124 

86 

COLEMAN  AND  CAINE8. 


CASES  REPORTED. 


Sampson,  Spencer  v.     -        ••-'--  311 

Sands,  Bird  et  al.  v.        -        -        -        -  107 
Sands,  Mayor  and  Corporation  of  New 

York  t>.     -  420 

Sayer  «.  Finck         -      v-                         -  413 

Sayre  and  Hurd,  Brevoort  v.  419 

Schenck  &  Ten  Brook  v.  Woolsey  453 

Schermerhorn,  Schermerhorn  v.  495 

Schermerhorn  v.  Schermerhorn  495 

Schermerhorn  et  al.  «.  Tripp    -  371 

Scofield,  Kane  and  Kent  v.     -  414 

Scofield  et  ux.  v.  Loder        -  101 

Scott®.  Gibbs                                   -        -  128 

Seaman  v.  Bailey  391 

Seaman  ®.  Davenport  et  al.  148 

Seeley  v.  Shattuck        -  127 

Shadwick v.  Phillips       -  471 

Sharp  D.   Duesenbury  134 

Shattuck,  Seely  v.    -  127 

Shaw  and  Barker  «.  Coif  ax  et  al.  450 

Shaw,  Bowne  ».-.-•-  304 

Shawe  v.  Wilmerden  -  424 

Sheffield  v.  Watson  157 

Sherman,  Parkman  v.  260 

Shepherd,  Case ».        -  94 

Shoemakers,  Gourley  v.                           -  106 

Shuter  v.   Hallet        -        -                    189,  330 

Simonds  v.  Catlin    -                 ...  345 

Skinner,  Burr  v.  -        -        -  100 
Sleight,   Sheriff  of  Essex,   Baker  and 

Sloanefl.  -  -  -  343 
Slosson,  Wheaton  v.  -  122 
Smith,  Brown  v.  -  -  430 
Smith  D.  Cheetham  -  -  -  425 
Smith,  Deas  «.  221 
Smith,  Manhattan  Company  v.  -  168 
Smith,  Murray  «.-----  76 
Smith,  The  People  ®.  -  -  497 
Smith,  Strong  et  al.  v.  340 
Smith,  Williams  v.  403 
Son,  Jackson,  ex  dem.  Van  Slyck  et  al.  v.  389 
Spicer  et  al.,  Haff  v.  495 
Spencer  v.  Gould  373 
Spencer  v.  Ward  373 
Spencer  «.  Webb  -  194 
Spencer  v.  White  -  -  -  72 
Spencer  v.  Sampson  -  311 
Spencer  v.  Hulbert  -  ...  413 
Stafford,  Cole  v.  228 
Stafford  T.  Cole  -  110 
Stafford  v.  Phelps  -  -  72 
Stansbury,  assignee,  &c.,  «.  Delevan  -  102 
Stansbury,  assignee,  &c.  -v.  Durrell  -  102 
Stayley  v.  Barhite  et  ux.  394 
Steele  etal.,  Fallmerfl.  -  158 
Steele  et  ux.,  Tenant,  «.  169 
Same  et  al.,  Same,  aseignee  v.  -  169 
Steinbach  v.  Ogden  420 
Steinbach  t.  Columbian  Insurance  Com- 
pany -  374 
Stiles,  Van  Buskirk,  tenant,  Jackson  ex 

dem.  Root  v.                                     -  468 
Stiles,  Dockstader,  tenant,  Jackson  ex 

dem.  Russel  et  al.  v.  443 
Same,  Freelick,  tenant,  Jackson  ex  dem. 

Same  v.                                     -        -  443 
Stiles,  Howard,  tenant,  ex  dem.  Rose- 

krans  v.  317 

Stiles,  Jackson  v                      ...  414 
Stiles,  Williams  Tenant,  Jackson, ex  dem. 

Cramer  v.      -  483 
Stiles,  Griffin  tenant,  Jackson,  ex    dem. 

Hogeboom,  v.  227 

COLEMAN  AND  CAINES. 


Stiles  and  Griffin,  Jackson,  ex  dem.  Hoge- 
boom, v.        -        -  314 
Stiles,  Palmitier  tenant,  Jackson,  ex  dem. 

Lawyer,  v.  484 
Stiles,  Grover  tenant,  Jackson,  ex  dem. 

Norton,  v.     -        -  477 

Stocking  v.   Driggs        -  361 

Stoddard,  Kibbe  and  Titus  v.  170 

Stoughton,  Griswold  et  al.  v.  146 

Stover,  Hough  v.  394 

Strong  et  al.  v.   Smith  340 

Strong,  Houghton  v.    -  302 

Strowell  v.  Vrooman  371 

Stryker  <o.  Turnbull  et  al    -  457 

Sunderlin,  Leonard'  v.  480 

Suydam  v.  M'Coon       ...  64 
Swartout,  manucaptor,  Gelston,  asignee 

&c.v.        -        -        -        -  81 

Swift,  Sacket  v,    -  124 


Teller,  Junior,  Atterbury  v.  -  309 
Tenant  v.  Steele  et  ux.  169 
Same,  assignee,  v.  Same  et  al.  -  169 
The  Judges  of  the  Common  Pleas  for 
Westchester,  The  People  ex  rel., 
Thompson  v.  61 
Thomas  and  Green,  Bain  v.  -  359 
Thompson  and  Adams  v.  Payne  441 
Thompson,  Coles  et  al.  v  -  329 
Tiler,  Fleming,  executor,  v.  -  71 
Tillotson  v.  Gould  -  373 
Tillotson®.  Ward  -  373 
Tower  v.  Wilson  487 
Towers  v.  Vielie  -  -  90 
Same  v.  Same  -  494 
Townsend  v.  New  York  Insurance  Com- 
pany 144 
Townsend,  The  People  v.  73 
Tracy,  Coffin  v.  -  470 
Trayard,  Chandler  et  ux.  v.  358 
Tripp,  Schermerhorn  et  al.  v.  371 
Turnbull  et  al. ,  Stryker  v.  457 
Tylee,  Herring  v.  69 

U 

Union  Turnpike  Company  u.  Jenkins  -      264 


Van  Alen  v.  Vischer  et  al.  -  116 
Van  Antwerp  v.  Ingersolls  -  370 
Van  Bergen,  Oudenarde  «.  53 
Van  Beuren  and  Vosburgh,  Van  Dyck  v.  153 
Van  Cott  «.  Negus  -  396 
Van  Drisner  v.  Christie  -  482 
Van  Doren  v.  Walker  417 
Van  Dyck  v.  Van  Beuren  and  Vos- 
burgh -  153 
Van  Der  Mark,  Jackson  ex  dem.  Ostran- 

der®.     -  231 

Van  Home  «.  Petrie  et  al.       -  390 

Van  Loon «.  Driggs    -        -        -  56 

Van  Loon  et  al.  v.  Larroway  126 
Van  Leon,  Jackson,  ex  dem.  Lewis  et  al. 

v. 460 

Van  Ness  v.  Gardnier    -  165 

Van  Orden,  Britt  et  al.  ®.    -  99 

Van  Patten  v.  Ouderkirk  119 

Van  Rensselaer «.  Hopkins  -        -  481 
Van  Wagenen,  Lawrence  v.    - 

Van  Wagenen,  Gilchrist  v.  313 

Van  Winkle  v.  Ketcham  503 

11 


CASES  REPORTED. 


Vanderbergh,  Cogswell  r.  - 

Vanderwerker,  Cuyler  v. 

Valentine,  Jackson,   ex  dem.    Cobley  r. 

Vielie,  Towers  v. 

Same,  Same  ». 

Vischer  et  al.,  Van  Alen  r. 

Vrooman,  Strowellfl. 

W 

Waddington  v.  Chamberlain  - 

Walker,  Van  Doren  c. 

Walton,  Lusher  p. 

Ward,  Spencer  «. 

Ward,  Tillotson  p.  - 

Wardell  t>.  Eden  - 

Warne,  De  Peyster  v. 

Waters,  The  People  t. 

Waters,  Wickham  r. 

Waterbury  et  al.  v.  Delafield 

\Vutkeys,  Kirby  and  Kirby  c. 

Watkins,  Dobbin  v, 

Watsons  T.  Delafield 

Watsons  r.  De  Peyster  et  al. 

Watsons,  Halsey  v. 

Watson,  Jackson  &f  dem.  Spilslmry  et 

al.  t.  - 

Watson,  Sheffield  v. 
Way  et  ux.,  Bradt  v.   - 
Webb,  Spencer  T . 
Webb  v.  Wilkie   - 
Wendover  v.  Ball 
Wheaton  «.  Slosson 
Whipple,  Napier  et  al.  r. 
Whitney  v.   Crosby 
White  v.  Saltonstall 
White,  Spencer  r. 

Wilber,  Day  v.    -  381,  400, 

12 


214 

93 

469 

90 

494 

116 

371 


400 

417 

206 

373 

373| 

137 

342 

82 

54 
324 
216 

39 
407 
162 
160 

368 
157 
361 
194 
211 
49 
122 
441 
442 


Wilcox,  Bodwell «.  -  367 
Wilde  v.  Gillet  -  -  69 
Wickham  v.  Waters  -  54 
Wilcocks  et  al. ,  Wisner  et  al.  r,.  62 
Wilkie,  Webb  ®.  -%  -  211 
Williams,  Holmes  v.  -  449 
Williams,  Bates  t.  -  70 
Williams  v.  Green  470 
Williams  v.  Smith  -  403 
Williams'  case  -  "  r  114 
Williams,  M'Kenzie  v.  -  428 
Willett,  Bedle  et  ux.  v.  148 
Wilrnerden,  Shawefl.  424 
Wilson,  Tower  v.  487 
Wilson  v.  Guthrie  -  477 
Wilson,  New  Windsor  Turnpike  Com- 
pany v.  467 
Wimple  et  al.  v.  M'Dougal  -  54 
Winter  v.  Carter  -  -  52 
Wisner  et  al.  «.  Wilcocks  et  al.  -  62 
Witmore  v.  Russell  479 
Woods  T.  Hart  .  447 
Woods,  Dill  v.  108 
Woodworth,  Jackson,  ex  dem.  Met- 

calfe,  v.  -  480 
Woodworth,  Columbian  Turnpike  Com- 
pany v.  363 
Woodworth,  Petrie  v.  496 
Woodward,  Quackenbos  «.  121 
Woolsey,  Schenck  &  Ten  Brook  t .  453 
Woodman  et .  al.,  Little  v.  60 
Woolcot,  M'Vicar  v.  501 
Wolcott  et  al.,  Abeel  v.  229 
Wolfe  v.  Horton  -  -  -  438 
Wright,  The  People  t.  390 
Wright  and  Buchan,  Post  r.  -  -  183 
Wyckoff,  Combs  v.  202 

COLEMAN  AND  CAIXE8. 


CASES  REPORTED  IN  VOL.  I.  JOHNSON'S  CASES. 


Allard  0.  Mouchon, 

Alner,  Eagle  0 

Andrews  0.  Beecker, 

Arnold  and  Ramsay  0.  The  United  In 

surance  Company, 
Astor  0.  Cooper, 
Aupoix,  Laplace  0. 

B 

Badger,  James  0. 

Bailey,  case  of 

Baker,  Burns  0. 

Ball,  Phelps  0.       -        -        - 

Bank  of  the  United  States  0.  Haskins, 

Barber  and  Griffin,  Strong  0. 

Barrett  0.  Forrester, 

Bartle,  Ernst  0 

Bates  0.  Williams,     - 

Beach,  Jackson,  ex  dem.  Culverhouse,  0. 

Bently  0.  Weaver,     - 

Beecker,  Andrews  0.     - 

Betts  0.  Turner, 

Billings  0.  Skutt, 

Billings,  Cortes  0.     - 

Birdsall,  Conroe  0.        - 

Bird  0.  Mabbett  et  al', 

Bird  et  al.  0.  Sands, 

Blagge,  Smith  0.       -        -      -  -   - 

Blight,  Neilson  0. 

Bloodgood,  Johnson  0.     - 

Boardman  and  Hunt  0.  Fowler, 

Brantingham  0.  Fay, 

Brandt,  ex  dem.  Cortlandt,  0.  Dyckman, 

Bridgen,  Salter  and  Steele  0.    - 

Broome,  Gahn  and  Mumford  0.    - 

Brooks  0.  Patterson, 

Britt  et  al.  0.  Van  Norden,    - 

Brower  0.  Kingsley, 

Budd,  Haines  0. 

Burns  0.  Baker,        ... 

Burr  0.  Skinner, 

Byron,  Lefferts  0. 

C 

Cahill  0.  Dolph,        ... 

Cannon,  Cathcart  0.      -        -        - 

Cantillon,  Wilde  0.    - 

Carter,  Frost  0.      -        -        -        - 

Card,  Fitzroy  0. 

Case  0.  Shepherd, 

Case  0.  Van  Ness,     - 

Cathcart  0.  Cannon, 

Caulkins,  Johnson  0. 

Church,  Clason  and  Stanley  0. 

Church,  Mumford  0. 

Clason  and  Stanley  0.  Church,     - 

Cole  and  Spalding,  Stafford  0. 

Colvin  0.  Morgan, 

Concklin  0.  Hart, 

Conroe  0.  Birdsall, 

Cooper  0.  Astor, 

Corp  0.  M'Comb, 

Cortes  0.  Billings, 

JOHNSON'S  CASES,  1. 


Covenhoven  0.  Seaman, 

23 

OOA 

Crygier  0.  Long, 

393 

*OU 

332 
-    411 

Crysler,  Jackson,  ex  dem.  Bronck,  0.    - 
Cuyler  0.  Vanderwerck,  - 

125 
247 

i- 

D 

60,  363 

32 

Dale,  Ludlow  0. 

16 

406 

Davis  v.  Ostrander, 

106 

Dederick,  Valkenburgh,  0. 

133 

Delamater,  Heermance  0. 

220 

iq-i 

Delavigne  ».  The  United  Insurance  Com- 

101 
qo 

pany, 

310 

o/o 

Denning,  Heyer  0. 

103 

fj-t 

DeVilliers  and  Williams,  White  v. 

173 

ol 

Dill  v.  Wood, 

394 

-    132 

•JOA 

Ditz,  Jackson,  ex  dem.  Butler,  0. 

392 

o!s9 

Dine,  Post  0. 

412 

-    247 

Doe  v.  Roe,        -                         -        -       25, 

402 

319 

Dole  v.  Moulton, 

129 

30 

Dole,  Van  Rensselaer  0.  -                      239, 

279 

/•.     399 

f)A  A 

Dole  v.  Van  Rensselaer, 

330 

-     a4U 
/H  1 

Dolph,  Cahill  0. 

333 

411 
fts 

Doughty,  Mott  0. 

230 

DO 

1  AK 

Doyle  v.  Moulton,     - 

246 

105 

Doguet  v.  Rhinelander  et  al., 

360 

-    270 

Dunlap,  Jackson,  ex  dem.  M'Crea,  0. 

114 

-      31 

Dunsbagh,  Jackson,  ex  dem.  Trowbridge  0. 
Durell,  Stansbury  0. 

91 

396 

394 
-    238 

Dyckman,  Brandt,  ex  dem.  Cortlandt,  0. 

275 

205 

E 

-      51 

413 

Eagle  0.  Alner, 

332 

-    255 

Earle  0.  Shaw, 

313 

,      275 

Earle  0.  Lefferts, 

395 

-    244 

Ellis  v.  Hay, 

334 

120 

Ensign  0.  Webster,  - 

145 

-    328 

Ensign  0.  Wands, 

171 

,390 

Ernst  v.  Bartle, 

319 

-    334 

335 

F 

-    134 

Farringtou,  Oakley  0. 

129 

391 

Fay,  Brantingham  0.     - 

255 

-    415 

Ferris  0.  Phelps, 

249 

Fitzroy  v.  Card,     - 

30 

Fleming  v.  Tyler, 

102 

-    333 

Finch,  Kemble  0. 

414 

28,  220 

Ford  v.  Gardner, 

243 

-    123 

Forrester  0.  Barrett, 

247 

73 

Fowler,  Boardman  and  Hunt  r. 

413 

-      30 

Frost  v.  Carter, 

73 

245 

-    248 

28,  220 

Gahn  and  Mumford  v.  Broome, 

129 

-    116 

Gardiner  v.  Smith, 

141 

29 

Gardner,  Ford  v. 

243 

-    147 

Gelston  v.  Swartwout, 

136 

29 

Gepherd,  in  the  matter  of 

134 

-    413 

Gillet,  Wilde  0.      -        -        -        -        - 

30 

415 

Goelet  v.  M'Instry, 

405 

-    103 

Goix  v.  Knox, 

337 

127 

Goix  v.  Low,     - 

341 

-      32 

Goodrich  0.  Walker, 

250 

328 

Goold  0.  Shaw, 

293 

-    270 

Gourley  v.  Shoemaker, 

392 

13 


CABES  REPORTED. 


Gouverneur,  Le  Roy  et  al.  t .  - 
Gouverneur  and  Kemble,  Le  Guen  T. 
Graves  n.  Hassenfrats, 
Gravesend,  Voorhis  r. 
Green,  Palmer  v. 
Griswold,  Haskins  v. 

H 

Haines  t.  Budd, 

Hallett  and  Bowne,  Vredenburgh  r. 

Hamilton  v.  Holcombe,    - 

Hart,  Concklin  v. 

Hassenfrats,  Graves  v. 

Haskins,  Bank  of  the  United  States  r. 

Haskins,  Griswold  v. 

Hay,  Ellis  e. 

Heermance  v.  Delamater, 

Herring  r.  Tylee, 

Heyer  t>.  Denning,    - 

Holcombe,  Hamilton  t. 

Holmes  t> .  Lansing, 

Hopkins,  Ken  worthy  r. 

Horton  v.  Palmer, 

Husted,  the  case  of 


Jackson,  ex  dem.  Bronck,  r.  Crysler, 
Jackson,  ex  dem.  Butler  et  al.  «.  Ditz, 
Jackson,  ex  dem.  Cooder,  T.  Woods,    .    - 
Jackson,  ex  dem.  Culverhouse,  v.  Beach, 
Jackson,  ex  dem.  Fitzroy,  v  Sample, 
Jackson,  ex  dem.  Jones,  v.  Striker, 
Jackson,  ex  dem.  June,  c.  Raymond, 
Jackson,  ex  dem.  Kane,  v.  Sternbergh, 
Jackson,  ex  dem.  M'Crea,  v.  Dunlap, 
Jackson,  ex  dem.  Moore,  r> .  Van  Bergen, 
Jackson,  ex  dem.  Murray  et  al.,  v.  Wals- 

worth, 

Jackson,  ex  dem.  Pickart,  T.  Backer,    - 
Jackson,  ex  dem.  Rensselaer  and  Crabb, 

v.  Bull, 

Jackson,  ex  dem.  Rensselaer,  v.  Whitlock, 
Jackson,  ex  dem.  Trowbridge,  t.  Duns- 

bagh, 

Jackson,  ex  dem.  Van  Alen,  v.  Rogers,    - 
Jackson,  ex  dem.  Vrooman,  v.  Smith,  - 
Jacocks,  Prior  r. 
James  v.  Badger, 
Jones  and  Crawford  v.  Reed, 
Jones,  Percival  v. 
Johnston  t.  Bloodgood,    - 
Johnston  v.  Caulkins,  - 
Justices  of  Chenango,  People  r. 
Justices  of  Delaware,  People  t.    • 


Kane,  Sleght  r.     - 
Keaquick,  Lawler  u. 
Keating  v.  Price,  - 
Kemble  v.  Finch, 
Kenworthy  v.  Hopkins, 
Kingslev,  Brower  r. 
Knox,  Goix  v. 


Laight  et  al.  v.  Morgan 

Lansing,  Holmes  v. 

Laplace  c.Aupoix 

Lawler  r.  Keaquick 

Lawrence  and  Dayton,  Marston  v.  - 


225 

Lefferts  r.  Byron  - 

415 

437 

Lefflngwell  and  Pierrepoint  «.  White 

99 

391 

Le  Guen  v.  Gouverneur  and  Kemble    - 

437 

237 

Lenox,  The  United  Insurance  Company  r. 

377 

101 

Le  Roy  et  al.  v.  Gouverneur 

22ft 

135 

Le  Roy  et  al.  D.  Veeder    - 

417 

Lodie,  Scofield  t. 

395 

Lodge  v.  Phelps, 

139 

335 

Lothrop,  Sacket  0. 

249 

29 
ib. 

Long,  Crygier  v. 
Low  o.  Silva  -                             jfc        184, 

39a 
336 

103 

Low,  Seton  et  al.  T. 

1 

391 

Low,  Goix  v. 

341 

132 

Ludlow  v.  Dale 

1ft 

135 

334 

M 

220 

Mabbett,  Bird  r.    - 

31 

31 

Main  c.  Prosser, 

130 

103 

Markler,  M'Evers  v. 

248 

29 

Mackay  v.  Rhinelander  et  al.    - 

408 

248 

Marston,  Tuttle  r>. 

26 

107 

Marston  v.  Lawrence  and  Dayton    - 

397 

27 

M'Comb,  Corp  v.  - 

328 

136 

M'Evers,  Sheldon  t. 

169 

M'Evers,  t.  Markler, 

248 

M'Kinley,  in  the  matter  of 

137 

125 

M'Instry,  Goelet  v. 

405 

392 

M'Nealy  v.  Morrison, 

28 

163 

Morgan,  Laight  et  al.  t. 

429 

399 

Morris,  Vredenbergh  t. 

22S 

231 

Morehouse,  Torrey  v.    - 

242 

284 

Morrison,  M'Nealy  t. 

28 

85 

Mott  D.  Doughty,  - 

230 

153 

Morgan,  Colvin  r.     - 

415 

114 

Moulton,  Dole  v.   - 

119 

101 

Moulton,  Doyle  v.     - 

246 

Mouchon,  Allard  c. 

280 

372 

Mum  ford  v.  Church, 

147 

331 

Murray  v.  Smith,  - 

105 

Le  Conte  r.  Pendleton  - 

Lefferts,  Earl  t. 

14 


213 
91 

106 
169 
131 

20 
393 

51 
116 
179 
181 


76 
174 

22 
414 
107 
334 
337 


429 
248 
406 
174 
397 


N 


Neilson  v.  Blight, 
Newkirk,  Wells  r. 


O 


Oakley  v.  Farrington, 
Ostrander,  Davis  r. 


104,  135 


Palmer  r.  Green, 

Palmer  r.  Horton, 

Patterson,  Brooks  f. 

People  v.  Townsend, 

People  T.  Justices  of  Chenango, 

People  t.  Justices  of  Delaware, 

People  T.  Waters, 

People  v.  Valentine, 

Pendleton,  Le  Conte  v. 

Percival  v.  Jones.  - 

Phelps  p.  Ball,  - 

Phelps,  Ferris  T.    - 

Phelps,  Lodge  v. 

Platt  v.  Robins  and  Swartwout,   - 

Post  t>.  Dine,     - 

Price,  Keating  r.  - 

Prior  v.  Jacocks, 

Prosser,  Main  v.     • 

R 

Rathburn,  Sebring  and  Van  Wyck,  ». 
Raymond,  Jackson,  ex  dem.  June,  r>.  - 
Reed,  Jones  and  Crawford  v.  - 


205 
228 


129 
106 


-  101 

27 

-  328 
-'       104 

-  179 
181 

-  137 

104,  135 
393 

-  31 
249 

.     139 
276 

-  412 

22 

-  169 
130 


331 

85 
20 

JOHNSON'S  CASES,  1. 


CASES  REPORTED. 


Rhinelander  et  al,  Mackay  v. 

Rhinelander  et  al.,  Duguet  v.  - 

Roe,  Doe  0.  -  -  25, 

Robins  and  Swartout,  Platt  v. 

Rogers,  Van  Alen  ».- 

Rogers,  Thayer  v. 

S 

Sacket  0.  Lothrop, 

Saltonstall  0.  White,        -        - 

Salter  and  Steele  0.  Bridgen, 

Sample,  Jackson,  ex  dem.  Fitzroy,  v. 

Sands,  Bird  et  al. ,  v. 

Sebring  and  Van  Wyck  v.  Rathburn 

Scofield  v.  Lodie,  -        -,' 

Seaman  v.  Covenhoven,    - 

Seton  et  al.  v.  Low, 

Shaw,  Earl  «.    - 

Shaw,  Goold  P. 

Sheldon  v.  M'Evers, 

Shepherd,  Case  v. 

Shoemaker,  Gourley  v. 

Silva  v.  Low,  -        184, 

Skinner,  Burn?. 

Skutt,  Billings  c.  - 

Sleght  v.  Kane, 

Slocum  and  Burling  v.  United  Insurance 

Company,    - 
Smith  v.  Murray, 

Smith,  Jackson,  ex  dem.  Vrooman,  v.  - 
Smith,  Gardner  v.     - 
Smith  v.  Blagge,    - 
Spence  v.  White, 
Spalsbergh  v.  Walrod,  - 
Stansbury  v.  Durell, 
Stevenson,  Towle  and  Jackson  v. 
Stafford  v.  Cole  and  Spalding, 
Strong  0.  Barber  and  Griff  en, 
Striker,  Jackson,  ex  dem.  June,  p.    - 
Swartwout,  Gelston  0.  - 


Thayer  v.  Rogers,     - 
Thompson  0.  Tompkins, 
Townsend,  People  v. 
Towle  and  Jackson  v.  Stevenson, 
Towers  v.  Vielie, 
Tompkins,  Thompson  r. 
Torrey  v.  Morehouse, 
Turner,  Betts  v. 

JOHNSON'S  CASES,  1. 


408 

Tuttle  v.  Marston, 

25 

360 

Tylee,  Herring  ID. 

31 

402 

Tyler,  Fleming  v. 

102 

276 

281 

U 

152 

United    Insurance    Company,    Slocum 

and  Burling  v.     - 

151 

United  Insurance  Company,  Delavigne  c. 

311 

249 

United  Insurance  Company,  Arnold  and 

221 

Ramsay  0. 

363 

244 
231 

United  Insurance  Company  v.  Lenox, 

377 

394 

V 

331 
QQS; 

Van  Alen  v.  Rogers, 

281 

tsyo 

OQ 

Valentine,  People  v. 

336 

wtj 

1 

Valkenbergh  v.  Dederick, 

133 

1 

9-tet 

Vanderwerck,  Cuyler  v. 

247 

O-Lt> 

oqa 

Van  Ness,  Case  v.     - 

243 

A&O 

1fiQ 

Van  Bergen,  Jackson,  ex  dem.  Moore,  ®. 

101 

1DS7 
9A.fi 

Van  Norden,  Britt  v. 

390 

ISnO 

QQO 

Van  Rensselaer  0.  Dole  •                         239, 

279 

O«7* 
QQft 

Van  Rensselaer,  Dole  v.  - 

330 

OOU 
001 

Veeder,  Le  Roy,  et  al.  r. 

417 

Ov  A 

10^ 

Vielie,  Towers  ®. 

221 

i\J<J 

7« 

Voorhis,  Inhabitants  of  Gravesend  n.  - 

237 

4U 

Vredenbergh  v.  Hallett  and  Bowne, 

27 

1  Ki 

Vredenbergh  v.  White  and  Stout, 

156 

101 

105 

Vredenbergh  v.  Morris,    - 

223 

106 

W 

141 

000 

Walker,  Goodrich  v.     -        -        - 

250 

<&oo 
10° 

Walrod,  Spalbergh  c. 

162 

AVJW 
ICO 

Walsworth,  Jackson,  ex  dem.  Murray,  t>. 

272 

JLvw 

aq« 

Wands,  Ensign  «. 

171 

*J*J\J 

110 

Waters,  People  v. 

137 

A  -L\7 

4.1  Q 

Weaver,  Bentley  v.  - 

240 

TT  J.O 

Q9Q 

Weavel  v.  Lasher, 

241 

O<w«7 

OQJ. 

Webster,  Ensign  r.  - 

145 

wC^r 

iq« 

Wells  0.  Newkirk, 

228 

1OO 

White,  Leffingwell  and  Pierrepoint  v. 

99 

White,  Spence  T.  - 

108 

White  and  Stout,  Vredenbergh  v.    - 

156 

152 

White  0.  De  Villiers  and  Williams, 

173 

238 

White,  Saltonstall  v. 

221 

104 

Whitlock,  Jackson,  ex  dem.  Renselaer 

213 

110 

Wild  v.  Gillett,        -        -        - 

30 

221 

Wilde  0.  Cantillon, 

123 

238 

Williams  0.  Bates, 

30 

242 

Williams,  in  the  matter  of    - 

416 

65 

Wood,  Dill  «-. 

394 

15 


CASES  REPORTED  IN  VOL.  II.  JOHNSON'S  CASES. 


A 

Adams,  Graham  ».    - 
Alexander  v.  Byron, 
Allaire  v.  Ouland,     - 
Andrews  v.  Andrews,   - 
Armstrong  and  another  v.  Gilchrist, 

B 

Bakewell  v.  United  Insurance  Company,     246 

Baker  v.  Ludlow,  -  289 

Barnes  v.  Kenyon,    - 

Becker  and  Harvey,  Hildreth  v.  - 

Beebee,  Paddock  «.  - 

Bernard «.  Wilcox,        -  874 

Blackwell,  Rankin  i\ 

Bogart  and  others,  Ray  and  others  v.  - 

Bogart  v.  M'Donald,  219 

Bowne,  Lawrence  v.  225 

Brant,  ex  dem.  Prevost,  r.  Gelston, 

Bradley,  Giles  v.    - 

Brooks  v.  Patterson, 

Bull  and  Porter,  Dole  v. 

Burtch,  People,  ex  relat.  Quackenboss,  -».     400 

Butterworth  «.  Stagg,  291 

Byron,  Alexander  v.      -  318 

C 

Campbell  and  Ziele,  Becker  v.  5582 

Campbell  v.  Grove,       -                         -  105 

Carey,  Jackson,  ex  dem.  Staats,  v.  -  350 

Cascaden,  In  the  matter  of,  107 

Case  v.  Shepherd,  27 

Cayuga  Judges,  People  v.     -  68 

Church,  Juhel  and  Delonguemere  v.  333 

Clapp  v.  Reynolds  and  another,    -  409 

Cobbett,  Rush  v.                                 -    70,  256 

Cochran,  People  v.  73 

Cole  v.  Hawes,  203 

Cooley,  Jackson,  ex  dem.  Southampton,  v.  223 

Corporation  of  New  York  v.  Dawson,     •  335 

Cone,  Whitaker  v.  58 

Cone  v.  Whitaker,  280 

Covenhoven,  De  Hart  t.  402 

Crammond  v.  Roosevelt,  -                         •  282 
Cuerden,  Jackson,  ex  dem,  Vieley  and 

Clark  0. 353 


I) 


Dusenbury,  Sharp  v. 

Durland,  Jackson,  ex  dem.  Beach  v. 

E 

Easton,  Monro  and  Roe  v. 
Eden  and  Eden,  Gilbert  v.    - 
Eden,  Wardell  v. 
Edwards,  M'Kinstry  v. 
Edwards,  Van  Schaick  v. 
Elmendorf,  Lewis  v.     - 


Faugier  v.  Hallett,    - 
Field,  Gilbert  v.     - 
Fish  V.  Fisher,  - 
Fisher  v.  Fish, 
Fish  v.  Weatherwax, 
Fish  •».  Stoughton, 
Fleet,  Lansing  v. 
Foster  '».  Hoyt  and  Ton, 
Forbes  v.  Frary, 
Frary,  Forbes  v.     - 
Franklin  v.  United  Insurance  Com- 
pany,   - 
Fuller,  Mahany  ».     - 

G 


117 
314 


-  75 

280 

121,  258 
113 

-  355 
222 


-  233 
292 

-  89 
224 

-  215 
407 

3 
327 

-  224 
224 

68  '285 

-  209 


Davis,  Shute  v.  •        336 

Davison,  Jansen  v.    -  72 
Dawson,  Corporation  of  New  York  v.        335 

De  Hart  v.  Covenhoven,  -  •    402 

Demar  t>.  Van  Zandt,  69 

Denton,  People  r>.  275 

Desdoity,  Skidmore  v.  -  77 

Dole  «.  Bull  and  Porter,  -  239 

Doe  and  Dunning,  Jones  v.  74 

Doe  and  Lansing,  Gorham  v.  -                -     107 

Dole  v.  Moulton,  -  -        -        205 

Doney,  Palmer  v.  -    346 

Douglass,  Thomas  v.     -  226 

Duguet  T.  Rhinelander  et  al.,  -                 •    476 

Dunning  and  Doe,  Jones  v.  74 


384 
296 
292 
280 
116 
424 
109 
253 
480 
442 
107 
438 
408 
105 
283 


Gelston,  Brant,  ex  (fern.  Prevost  v. 

Gilfert  v.  Hallett  and  Bowne,  - 

Gilbert  «.  Field,     - 

Gilbert  r.  Eden, 

Gibbs,  Scott  v. 

Gilchrist,  Armstrong  et  al.  v.  - 

Gillespie,  Pfister  and  M'Comb  v. 

Giles  v.  Bradley, 

Goix  v.  Low, 

Goold  and  Goold  •».  Shaw, 

Gorham  v.  Lansing  and  Doe, 

Gouverneur  et  al.,  Murray®.  - 

Graham  v.  Adams, 

Grove,  Campbell  v.  - 

Goeen,  Milner  v.    - 

\ 

H 

Hake,  Jones  v.  60 

Hallett  and  Bowne,  Nixen  v.  218 

Hallett,  Faugier  v.    -  233 

Hallett  and  Bowne,  Gilfert  v.       -  296 

Harrison,  Kelly  <o.    -     .  •  29 

Haskins,  Seaman  v.  195,  284 

Haskins  v.  Sebor,  .  -    217 

Haskins  v.  Snowden,     -  287 

Hawes,  Cole  v.  203 

Heddin,  Johnston  v.  -        274 

Hildreth  v.  Harvey,  221 

Hildreth  ».  Beeker  and  Harvey,  339 

Hitchcock,  Sable  v.       -  79 

Hitchcock  T.  Sable,  488 

Hodges  v.  Suffelt,                           -  -        406 
Holmes  v.  United  Insurance  Company,  -    329 

Hoffman,  Van  Braman  v.     -  -        200 

Hornbeck,  Jackson,  ex  dem.  Low  v.  115 

Hoyt  and  Tom,  Foster  v.  -        327 
Huyck,  Jackson,  ex  dem.  Saliisbury,  v.  -      64 

JOHNSON'S  CASES,  2. 


CASES  REPORTED. 


I  J 

Jackson,  ex  dem.  Beach,  v.  Durland,     -  314 

Jackson,  ex  dem.  Gansevoort,  «.  Murray,  219 

Jackson,  ex  dem.  Gifford,  v.  Sherwood,  37 
Jackson,    ex    dem.   Lewis    and    Ely,   v. 

Powell, 67 

Jackson,  ex  dem.  Lewis,  ®.  Larroway,  114 
Jackson,  ex  dem.  Low,  v.  Hornbeck,  -  115 
Jackson,  ex  dem.  Martin,  v.  Platt,  -  71 
Jackson,  ex  dem.  Potter,  v.  Sisson,  -  -  321 
Jackson,  ex  dem.  Quackenboss,  •».  Wood- 
ward, -  .  ...  no 
Jackson,  ex  dem.  Salisbury,  v.  Huyck,  -  64 
Jackson,  ex  dem.  St.  Croix,  v.  Sands,  -  267 
Jackson,  ex  dem.  Staats  v.  Carey,  -  -  350 
Jackson,  ex  dem.  Southampton,  v.  Cooly,  223 
Jackson,  ex  dem.  Van  Alen,  v.  Vischer,  106 
Jackson,  ex  dem.  Vieley  and  Clark,  v. 

Cuerden, 353 

Jackson   v.   the    New  York    Insurance 

Company, 911 

Jansen,  Administrators  of,  •».  Davidson,  72 

Jenkins,  Pepoon  v. 119 

Jenkins  v.  Pepoon,        ....  312 

Ingraham,  Kane  v. 403 

Jones  et  al.,  Woodworth  et  al.  v.         -  417 

Jones,  Percival  v. 49 

Jones  v.  Hake,       -  60 

Jones  0.  Dunning  and  Doe,       -        -        -  74 

Johnston  n.  Hedden,     -        ...  274 

Johnston  and  Weir  v.  Ludlow,        -        -  481 

Judah  v.  Kemp,     -        -        •>        -        -  311 

Juhel  v.  Rhinelander,       ....  120 

Juhel  et  al.  v.  Church,          ...  333 

Juhel,  Rhinelander  et  al.  v.  487 

K 

Kane  v.  Ingraham,        ....  403 

Kane,  Sleight  0. 236 

Kelly  v.  Harrison,  29 

Kemp,  Judah  v. 411 

Kenyon,  Barnes 0.         ....  381 

Knapp  'v.  Mead,        -        -        -        -        -  111 

Knott,  Titford  v. 211 


Lague,  Tunno  and  Cox  v.        -        -        -  1 

Laing  n.  United  Insurance  Company,  174,  487 

Lansing  and  Doe,  Gorham  v.   -        -        -  107 

Lansing  v.  Fleet, 3 

Laroway,  Jackson,  ex  dem.  Lewis,  v.       -  114 

Lawrence  v.  Bowne,      -        -        -  225 

Lenox,  United  Insurance  Company  v.     -  443 

Lewis «.  Elrnendorf ,     -        ...  222 

Livingston,  Ricketts  v.             -        -        -  97 

Livingston,  Swift «.----  112 

Livingston,  New  York  Bank  v,  409 

Livingston  v.  Rogers,    -  488 

Loder,  Scofield  v. 75 

Loomis  and  Tillinghast  v.  Shaw,  36 

Low,  Goix  v. 480 

Lucet,  Rutgers  •».          ....  92 

Ludlow,  Baker  «.                       ...  289 

Ludlow,  Johnston  and  Weir  v.     -        -  481 


M 


Mahany  v.  Fuller,     - 
Mayell  v.  Potter, 
Mead,  Knapp  «. 
M'Donald,  Bogart  v. 
M'Kinstry  v,  Edwards, 
JOHNSON'S  CASES.  2. 


-  209 

371 

-  Ill 
219 

-  113 
N.  Y.  REP.,  BOOK 


M'Keel,  Treadwell  v,     •        -        -        -  340 

Milnerfl.  Green,        ......  283 

Moulton,  Dole  v. 205 

Munroe  and  Roe  v.  Easton,  75 
Murray  ®.   United  Insurance  Company, 

66,  168,  263 

Murray,  Jackson,  ex  dem.  Gansevoort,  v  219 

Murray  v.  Ringwood  Company,       -        -  278 

Murray  v.  Gouverneur  et.  al.,       -        -  438 

N 

Newkirk  et  al.  «.  Willett,                        -  413 
New  York  Insurance   Company,  Jack- 
son1^,                          ....  191 

New  York  Bank  v.  Livingston,            -  409 

Nitchie  v.  Smith,       -                ......  236 

Nixen  v.  Hallett  and  Bowne,        -        -  218 

Noble,  Renoard  v. 293 

O 

Olcott,  People  v. 301 

Ouderkirk,  Van  Patten  v.        -        -  108 

Ouland,  Allaire  v.          ....  52 


Paddock  v.  Beebee, 117 

Palmer  v.  Doney,           -  346 

Parker  v.  Tomlinson,        -  220 

Patterson,  Brooks  «.----  102 

Peck,  Philips  v. 104 

Percival  v.  Jones,  49 

People  D.  Cayuga  Judges,  68 

People  v.  Pleas  and  Clark,    -                 -  376 

People  v.  Cochran,   -        -                 -        -  73 
People,  ex  relat.  Allaire,  v.   Westchester 

Judges,       -        -        -                -        -  118 

People  v.  Denton,          ....  275 

People  v.  Olcott, 301 

People  v.  Thompson,    -        -                 -  342 

People,  ex  relat.  Quackenboss  «.  Burtch,  400 

Pfister  and  M'Comb  v.  Gillespie,           -  109 

Philips  «.  Peck, 104 

Pepoon  v.  Jenkins,        -        -        -        -  119 

Pepoon,  Jenkins  ®. 312 

Peters,  case  of  George,          -        -        -  344 

Platt,  Jackson,  ex  dem.  Martin  v.     -        -  71 

Platner's  Executors,  Van  Rensselaer  v.  17 

Platner's  Devisees,  Van  Rensselaer  v.      -  24 

Pleas  and  Clark,  People  v.    -        -        -  376 

Potter,  Mayell  ».•--•-                -  371 

Powell,  Jackson,  ex  dem.  Lewis  and  Ely  ».  67 

R 

Rankin  v.  Blackwell,        -  198 

Ray  et  al.  «.  Bogart  et  al.,     -        -        -  432 

Reedy  «.  Seixas, 337 

Renoard  v.  Noble,  293 

Reynolds,  Clapp  v. 409 

Rhinelander  et  al. ,  Duguet  v.  -  -  476 
Rhinelander,  Juhel  v.  -  -  -  -  120 
Rhinelander  v.  Juhel  et  al.,  -  -  487 
Ricketts  v.  Livingston,  97 
Ringwood  Company,  Murray  v.  -  -  278 
Robertson  and  Brown  v.  United  Insur- 
ance Company,  -  250 
Roe  and  Munroe  v.  Easton,  75 
Roget  v.  Thurston,  -  -  248 
Rogers,  Livingston  ».---•  488 
Roosevelt,  Crammond  v.  282 
Rush*.  Cobbett,  -  -  -  70,256 

Rutgers  «.  Lucet, 92 

1.        2  17 


CASES  REPORTED. 


Sable  v.  Hitchcock, 

Sable,  Hitchcock  v.               ...  488 

Salisbury,  Jackson  v.  Huyck, 

Sands,  Jackson  v.          ....  297 

Scoffield  v.  Loder,    -        -        -        -        - 

Scott  r.  Gibbs, 116 

Seaman  v.  Haskins,  -                             195,  284 

Sealy  v.  Shattuck,  69 

Sebor,  Haskins  v. 217 

Seixas,  Reedy  t>. 337 

Shattuck,  Sealy  «. 

Shaw,  Loomis  and  Tillinghast  v.  36 

Shaw,  Goold  v. 442 

Shepherd,  Case  v. 

Sherwood,  Jackson,  ex  dem.  Gifford  v.    -  37 

Sharp  v.  Dusenbury,     -  117 

Shute  v.  Davis,                  ....  336 

Sisson,  Jackson  ex  dem.  Potter,  v.        -  321 

Skidmorep.  Desdoity,  77 

Sleight  v.  Kane, 236 

Slosson,  Wheaton  v.         -  111 

Smith,  Nitchie  c.  286 

Snowden,  Haskins  u.  287 

Stafford  v.  Van  Zandt,  66 

Stagg,  Butterworth  n.  291 

Stewart  v.  Williams,     -  71 

Stoughton,  Fish  v.     -        -        -                 -  407 

Suffelt,  Hodges  v.          ....  406 

Swift  v.  Livingston,          ....  112 


Thompson,  People  v,        -  -        -        -    342 

Thomas  r.  Douglas,  226 

Thurston,  Roget  ». 248 

Titford  v.  Knott,            -  -        -        -        211 

Tomlinson,  Parker  «.  •    220 

Treadwell  v.  M'Keel,    .  -        340 

Tunno  and  Cox  v.  Lague,  1 


Van  Bramer  v.  Hoffman,          -        -        -  200 
Vandenheuvel  v.  United  Insurance  Com- 
pany,                     127 

Van  Patten  t>.  Ouderkirk,  -        -  452 

18 


Van  Rensselaer,  Executors  of,  v.  Platner,  17 
Van  Rensselaer,  Devisees  of,  v.  Platner,  24 
Van  Schaick  v.  Edwards,  -  -  -  355 
Van  Zandt,  Demar  v.  -  -  -  69 
Van  Zandt,  Stafford  v.  -  -  -  -  66 
Vredenburgh,  Waddington  v.  -  -  22& 
Vischer,  Jackson,  ex  dem.  Van  Alen,  v.  106 
Vos  and  Graves  v.  United  Insurance  Com- 
pany, 180,  460- 

U 

United  Insurance  Company,  Vandenheu- 
vel «,----  -     127,452 
United  Insurance  Company,  Murray  v. 

66,  168,  263- 

United  Insurance  Company,  Laing  v.  174,  487 
United    Insurance    Company,   Vos  and 

Graves  «.  ....    180,  469 

United  Insurance  Company,   Warren  v.  231 

United  Insurance  Company,  Bakewell  ®.  246 
United  Insurance  Company,  Robertson 

and  Brown  ».----  250> 

United  Insurance  Company,  Franklin  v.  285 

United  Insurance  Company,   Holmes  t>.  33£ 

United  Insurance   Company  v.    Lenox.  443- 

W 

Waddington  r.  Vredenburgh,  -  -  228 
Wardell  v.  Eden,  121,  258- 
Warren  t.  United  Insurance  Company,  231 
Weatherwax,  Fish  v.  -  -  -  -  215- 
Westchester  Judges,  People  ex  relat.  Al- 
laire, v. 118- 

Wheaton  v.  Slosson,      -        -        -        -  111 

Whitaker  c.  Cone 58 

Whitaker,  Cone  v.         -  280 

Williams,  Stewart  v.  71 

Wilcox,  Bernard  *.----  374 

Willett,  Newkirk  v.          -        -        -        -  413 
Woodward,  Jackson,  ex  dem.   Quacken- 

boss,  v.          -        -        -        -  ,  110 

Woodworth  et.  al.,  v.  Jones  et.  al.,          -  417 


Ziele  and  Beeker  v.  Campbell,       -        -        382 
JOHNSON'S  CASES,  2_ 


CASES  REPORTED  IN  VOL.  Ill,  JOHNSON'S  CASES. 


Abbot  0.  Sebor     -        ... 
Alsop  and  Pomeroy,  Murray  et  al.,  0. 
Armstrong  and  Barnwall,  Cruger  0. 

B 

Ball,  Russell  v. 

Ballard  0.  Walker 

Bates  0.  New  York  Ins.  Co. 

Bazen  0.  Roget      -      _«- 

Brinckerhoff,  Jackson,  ex.  dem.  Jones 

0.          -        -.       - 
Brush,  Clement  0.     -        -  L, •  -,  •'-'  • 
Butterfield,  Carpenter  0. 
Byron,  People  0. 

C 

Carpenter  0.  Butterfield    - 
Caswell,  Jones  0.       -    -     *£- 
Church,  Forbes  0.     -        - 
Clement  0.  Brush  - 
Clendining  &  Adams,  Rice  0. 
Coit  &  Woolsey  0.  Smith 
Coit  &  Woolsey  0.  Houston     - 
Columbian  Insurance  Company,  Van- 

dervoort  0.  - 
Columbian  Turnpike  Company,  Gilbert 

0. 

Conroy  0.  Warren 
Cornell,  Denn  ex  dem.  Golden  0.     - 
Croswell,  People  v.        -        -        - 
Cruger  0.  Armstrong  &  Barnwall    - 
Crowningshield  0.    New    York    Insur- 
ance Company 
Cummins,  Dennis  0.     - 

D 

Dale,  Parage  0.      -        -        -        - 

Dennis,  ex  dem.  Golden  0.  Cornell 

Dennis  0.  Cummins       ... 

Denniston,  Riggs  0.  - 

Desbrough  0.  Neilson    - 

Dubois,  Duncan  0. 

Duff  0.  Lawrence  &  Van  Zandt,   - 

Duncan  0.  Duboys   - 

Dusenbury  0.  Ellis 

Duval,  Learned  0.     -        -        - 

Dupuy  0.  United  Insurance  Company 

E 
Ellis,  Dusenbury  0.  - 


Forbes  et  al.  v.  Church 
Franklin,  People  0.  - 

G 

Gilbert  0.  Columbian   Turnpike  Com 

pany 
Guernsey,  People  0. 

H 

Haight,  Ward  v.    - 
Hallett,  Herbert  0.     - 
Hallet  &  Bowne,  Patrick  0.  - 
Hart,  Johnson  0.       -        -        - 
JOHNSON'S  CASES,  3. 


Harvey,  Hildreth  0.        -        -        -        -        300 

Hastie  and  Patrick,  Livingston  v.     -        -    293 

39 

Hendricks,  Jackson,  ex  dem.  Gomez  v.        214 

-      47 

Herring  V.  ganger                                             71 

5 

Herbert  0.  Hallett      93 

Hess  V.  Morgan     84 

Hickock  v.  Scribner         -        -        -        -    311 

-      91 

Hildreth  0.  Harvey        -        ...        300 

60 

Holmes  et  al.  v.  Lansing                                  73 

-    238 

Houston,  Coit  &  Woolsey  0.          -        -        243 

87 

Hunt  0.  Leon  -          140 

s 
101 

J 

-    180 

Jackson,  ex  dem.  Gansevoort  0.  Lunn  -        109 

145 

Jackson,  -ex  dem.  Gansevoort  v.  Parker  -    124 

53 

Jackson,  ex  dem.  Gomez  v.  Hendricks          214 

Jackson,  ex  dem.   Jones  v.   Brinckerhoff    101 

Jackson,  ex  dem.  Lewis  0.  Laroway      -        283 

-    145 

Jackson,  ex  dem.  Smith  v.  Wilson    -        -    295 

29 

Jackson,  ex  dem.  Woodhull  0.  Rumsey        234 

-    159 

Jackson,  ex  dem.  Woodworth  0.  Lindsay      86 

180 

Johnson  v.  Hart    -----        333 

-    183 

Jones  v.  Caswell       29 

16 

-    243 

K 

i- 
137 

Kemble  0.  Gouverneur  and  Rhinelander    130 

ert 
-    107 

L 

259 

Lansing,  Holmes  v.                                          73 

-    174 

Laroway,  Jackson,  ex  dem.  Lewis,  v.   -        283 

337 

Lawrence  v.  New  York  Insurance  Co.     -    217 

5 

Lawrence  &  Van  Zandt,  Duff  0.          -        162 

ur- 

Learned  v.  Duval,     -----    141 

-    142 

Leon,  Hunt  v.        140 

297 

Lenox,  the  Un.  Ins.  Co.  v.        -        -    178,  224 

Lindsey,  Jackson,  ex  dem.  Woodworth  0.      86 

Livingston  0.  Hastie  and  Patrick,    -        -    293 

156 

Ludlow,  Patrick  v.        -        -        -        -          10 

-    174 

Lunn,  Jackson,  ex  dem.  Gansevoort,  0.     109 

297 
-    198 

Lynch  &  Stoughton  0.  Viar          -        -        303 

81 

M 

-    125 

Moore  &  Pollock,  Rundle  et  al.,  v.    -             36 

162 

-lf)K 

Morgan  0.  Woodworth                                     89 

I  ~-> 

70 

Morgan,  Hess  0.        84 

l  U 

-     141 

Murray  et  al.,  0.  Alsopand  Pomeroy  -          47 

y       182 

N 

Nase  v.  Peck     -        -                                      128 

-      70 

Neilson,  Desbrough  0.  -        -        -        -          81 

New     York     Insurance     Company     0. 

Thomas    -        -                                 -        1 

159 

New  York  Insurance  Company,  Crown- 

-    299 

ingshield,  0.                   -        -        -        142 
New  York  Insurance   Company,  Law- 

rence 0.       -        -        -                -        -    217 

»m- 

New  York  Insurance  Company,  Bates  0.     238 

107 

New  York  Corporation,  People  0.           -      79 

-    265 

Nicoll,  Steadfast,  ex  dem.  Nicoll,  0.      -         18 

P 

80 

Parage  0.  Dale  156 

-      93 

Parker,  Jackson,  ex  dem.  Gansevoort,  0.     124 

76 

Patrick  0.  Ludlow                                            10 

-    322 

Patrick  v.  Hallett  &  Bowne                        -    76 

19 

CASES  REPORTED. 


Pease,  People  v. 333 

Peck,  Nase  v. 128 

People  v.  Byron 53 

People  v.  Guernsey       ....  265 

People  0.  New  York  Corporation    -        -  79 

People  ».  Franklin  289 

People  r>.  Pease 333 

People  v.  Croswell  337 
R. 

Rice  v.  Clendening  &  Adams   -        -        -  183 

Riggs  D.  Denniston        -        -        -        -  198 
Rhinelander  etal.,  Kemble  &  Gouverneur 

v. 130 

Rhinelander  etal.,  Stienback  v.     -        -  269 

Roget  Razen  v. 87 

Roosevelt,  Wilkie  v.       -                        66,  206 

Rumsey,  Jackson  ex  dem.  Woodhull  v.  234 

Rundle  et  al. ,  v.  Moore  &  Pollock    -        -  36 

Russel  v.  Ball 91 

8 

Saidler,  Winton  ».  185 

Sanger,  Herring  v.  71 

Scribner,  Hickock  v.        -        -        -        -  311 

Sebor,  Abbot  v. 39 

Smith,  Coit  &  Woolsey  v.  16 
Stagg  &  Snell  v.  United  Insurance  Com- 
pany      34 

Steadfast  ex  dem.  Nicholl  v.  Nicholl  -        -  18 
20 


Steinback  v.  Rhinelander  et  al. 
Striker,  Thomas  v.     -       -  >,'t  • 


269 
90 


Terhune,  Van  Nuys  v.  82 
Thomas,    New   York  Insurance   Com- 

pany v.     ......  1 

Thomas  v.  Striker         -        -       .-,       -  90 


U 


182 


United  Insurance  Company,  Dupuy  v. 
United     Insurance     Company,     Lenox 

«.  -        -        178,  224 

United  Insurance  Company,    Stagg  & 

Snell  v.    ......      34 


Van  Nuys  v.  Terhune  -        -        -        -  82 
Vandervoort    v.  Columbian    Insurance 

Company        -        .        -        -        -  137 

Viar,  Lynch  &  Stoughton  t».          -        -  303 

W 

Walker,  Ballard  v.* 60 

Warren,  Conroy  ».----  259 

Ward  v.  Haight 80 

Wilkie  v.  Roosevelt     -        -        -        -   66,  206 

Wilson,  Jackson  ex  dem.  Smith  v.    -        -  294 

Winton  v.  Saidler  185 

Woodworth,  Morgan  v.    •  89 

JOHNSON  3. 


CITATIONS 


IN    OPINIONS    OF    THE   JUDGES    CONTAINED    IN    THIS    BOOK 
COLEMAN,   COLEMAN   &   CAINES,  AND   JOHNSON 
CASES,  THEEE  VOLUMES. 


CASES   CITED. 


Abbott  of  Strata  Marcella,  case 

of,  5  Co.  32, 1  J.  C.  297 

Abbott  9.  Smith,  2  Bl.  Rep.  947, 

950, 2  J.  C.  383 

Abel  9.  Potts,  3  Esp.  242 3  J.  C.  231.  232 

Adams  9.  Buckland,  2  Vern.  514,  3  J.  C.  57 

Adams  v.  Dpdgson,  2  Atk.  157,. .  1  J.  C.  434 
Adams  9.  Lingard,  Peake,  117,  .. 

3  J.  C.  186,  190,  196 

Adams  9.  Tomlinson,  T.  Raym. 

100, 2  J.  C.  313 

Alanson  9.  Butler,  1  Lev.  211,  1 

Sid.  330,  . 2  J.  C.  5,  11 

Alcorn  «.  Westbrook,  1  Wils.  117,  3  J.  C.  251 

Alice  v.  Gale,  10  Mod.  112  2  J.  C.  313 

Allen  9.  Allen,  Bl.  Rep.  697,  ....  C.  &  C.  349 

Allen  9.  Hill,  Cro.  Eliz.  238, 1  J.  C.  47,  88 

Allen  u.Vinter,  2  Jones,  31,..  2  J.  C.  5,  11,  12 
Allesbrook  v.  Roach,  1  Esp.  Gas. 

351,  352, 2  J.  C.  214 

Alves  9.  Hodgson,  7  Term,  243,  1  J.  C.  140 

Always  ®.  Burroughs,  Doug.  263,  1  J.  C.  131 

Andre  9.  Fletcher,  3  Term  R.266,  2  J.  C.  334 

Andrews  9.  Beeker,  U.  C.  411,..  2  J.  C.  260 

Anonymous,  2  Mod.  7, . .  - 1  J.  C.  87 

Anonymous,  Jenk.  121,  Case  113,  1  J.  C.  88 

Anonymous,  1  Leon.  47, 3  J.  C.  121 

Anonymous,  1  Sid.  157,- 1  J.  C.  126 

Anonymous,  Cro.  Jac.  219, U.  C.  217 

Anonymous,  2  Hen.  IV.  14, U.  C.  225 

Anonymous,  11  Hen.  IV.  7,  1J.  C.  225 

Anonymous,  9  Hen.  VI.  58,....  U.  C.  225 

Anonymous,  12  Mod.  607, U.  C.  231 

Anonymous,  Nels.  78, U.  C.  423 

Anonymous,  1  Vern.  180,. 1  J.  C.  423 

Anonymous,  Prec.  in  Cha.  536, . .  1  J.  C.  423 

Anonymous,  12  Mod.  515, 1  J.  C.  503 

Anonymous,  2  Mod.  100, U.  C.  503 

Anonymous,  1  Ld.  Raym.  724, 

2  J.C.  144,  455,  456 

Anonymous,  6  Mod.  222, 2  J.  C.  319 

Anonymous,  2  Salk.  645... 2  J.  C.  319 

Anonymous,  2  Vent.  346, 2  J.  C.  202 

Anonymous,  Jenk.  Cent.  19, 2  J.  C.  491 

Anonymous,  Freem.  Rep.  475, 

Case  651, 3  J.  C.  104 

Anonymous,  4  Leon.  82, 3  J.  C.  121 

Anonymous,  3  Atk.  17 3  J.  C.  236 

Anonymous,  12  Mod.  502, 3  J.  C.  266 

Anonymous,  12  Mod.  88, 3  J.  C.  266 

Anonymous,  1  Ld.  Raym.  732,  3  J.  C.  292 


Anonymous,  1  Leon.  287, 3  J.  C.  384 

Anonymous,  Jenk.  5  c.  55, 3  J.  C.  384 

Anonymous,  11  Mod.  99, 3  J.  C.  388 

Anonymous,  1  Lev 3  J.  C.  399 

Archer's  case,  1  Co.  64  b 2  J.  C.  390,  392 

Archer's  case,  1  Co.  86,  ..  3  Johns.  C.  21,  26 
Armstrong  ex  dem.  Tinker  v. 

Pierce,  3  Burr.  1901, 2  J.  C.  325 

Arnold  «.  The  United  Ins.  Co.  1 

J.  C.333, 3  J.  C.  50 

Arnold  &  Ramsey  v.  The  United 

Ins.  Co.  U.  C.  363, 2  J.  C.  477 

Astley  9.  Reynolds,  2  Str.  913, 3  J.  C.  241 

Atkinson  9.  Coatsworth,  8  Mod. 

33,  34, 3  J.  C.  176 

Atkinson  0.  Jameson,  5  Term  R.  25,  2  J.  C.  11 
Atkinson  v.  Teasdale,  2  Bl.  Rep. 

817, C.  &C.  368 

Att'y  Gen'l  9.  Day,  Ves.  221, C.  &  C.  352 

Attorney  General  v.  Sutton,  1 

P.  Wms.  755,  759,  760, 3  J.  C.  22 

Attorney  General  v.  Wall,  5  Bro. 

P.  C.  387, 1  J.  C.  498 

Attorney  General  9.  Town  of  Sal- 
lop,  2*Bro.  P.  C.405, 1  J.  C.  498 

Auriolt>.  Mills,  4 Term  R. 98,  ....  2  J.  C.  19 

Avelyn  9.  Ward,  1  Vesey',422, ....  2  J.  C.  317 

B 

Bachelour  9.  Gage,  Cro.  Car.  188,  2  J.  C.  19 
Bachelor  «.  Searle,  2  Vern.  737,  3  J.  C.  22,  26 
Backhouse  9.  Wells,  2  P.  Wms.  476 ; 

1  Eq.Cas.Abr.184,  2  J.C.  390;  3  J.C.21,  26 
Backwell  v.  Bardue,  1  Mod.  113,  3  J.  C.  176 
Bacon  9.  Dubarry,  1  Ld.  Raym. 

246, - 2  J.C.  22 

Bagley  v.  Warburton.Comyns  Rep. 

by  Rose,  Case,  212... 1  J.  C.  290 

Bagley  ®.  Warburton,  2  Com 1  J.  C.|  83 

Bagshaw  9.  Spencer,  2  Atk.  577; 

1  Vesey,142,l46,-_  2  J.G',393,899;  3  J.C.22 
Baillie  9.  Moudigliani,  Park,  116,  1  J.  C.  227 
Baker  fl.Bache,  2  Ld.  Raym.  1382,  2  J.  .C.  18 
Baker  v.  The  Bishop  of  London. 

2H.  Bl.  414 1  J.  C.  492,  502 

Baker e.Prit chard,  2Atk.389,  ....  1  J.  C.  423 
Bald  win  0.  Blackmore,  1  Burr.  596, 

602 2  J.C.  28 

Balmerino,  Lord,  case  of,  9  St. 

Sr.  302, 3J.  C.  385,  387 

21 


CITATIONS. 


B 

Balston  v.  Baxter,  Cro.  Eliz.  304,     3  J.  C.  247 

Banister  v.  Scott,  6  Term,  489, 1  J.  C.    75 

Bank  of  England   v.   Morice,   4 

Bro.  P.  C.  238, C.  &  C,  336 

Banner  v.  James,  1  L'd  Raym.  726,  1  J.  C.  233 
Barbone  v. Brent,  1  Vern.176,  ...  1  J.  C.  492 
Barker  v.  Braham,  2  Bl.  Rep.  869, 

871,    C.&C.368 

Barker  v.  Darner,  1  Salk.  80,....  2  J.  C.  336 
Barker  v.  Keate,  1  Mod.  262,  ....  2  J.  C.  396 
Barzillay  v.  Lewis,  Park.  360,  725; 

7  Term  Rep.  523, 1J.  C.  18, 

349,  355,  2  J.  C.  147. 
Basker  v.  Cambridge  University, 

1  Bl.  Rep.  114,  115, 3J.  C.  386 

Basset  «.  Salter,  2  Mod.  136, ....  2  J.C.  5,  11 
Bates  v.  Graves,  2  Vesey  Jun.  295,  1  J.  C.  493 

Beak  e.Tmyrwhit,3  Mod.  195 2  J.  C.  144 

Blake  v.  Tyrrell,  1  Show.  6;  Carth. 

81... 1  J.  C.  18;  2  J.  C.  144,  456 

Bean  t>.Stupart,Park,322;  Dough. 

10, 1  J.  C.  343,  348,  351 

Beasley's  Case,  T.  Jones,  64, 2  J.  C.  294 

Beaucamp   v.  Neggin,  Cro.  Eliz. 

282, C.  &C.  333 

Beaufort,  Duke  of  9.  Bertie,  1.  P. 

Wms.  704 1  J.  C.  218 

Beck  v.  Robley,  1  H.  Black.  89 

n 1  J.C.  59,  60 

Beckford  v.  Jackson,  1  Esp.  Rep. 

337, 2  J.  C.  496 

Beckford  «.  Tobin,  1   Ves.  307, 

310, 2  J.  C.  202 

Bedell's  case,  7  Rep.  40, 1  J.  C.    95 

Bedell  «.  Constable,  Vaugh.  182, .     3  J.  C.    56 

Bedle  v.  Beard,  12  Co.  5, 3  J.  C.  114,  118 

Beebe  ad*.  People,  Jany.  1802,...  C.  &  C.  365 
Bennct  «.  Vade,  2  Atk.  324 ...  A. .  3  J.  C.  236 

Bennet  v.  Viele,  Jany. ,  1802 C.  &  C.  486 

Bent  9.  Baker.  3  Term  R.  27,  34, 

3  J.C.  186,  190,  195,  237 

Bereus  t.  Rucker,  1  Bl.  Rep.  313,  3  J.  C.  135 
Bernard!  9.  Motteaux,  Doug.  575,  1  J.C.  18 

354,  355,  358:  2  J.  C.  147. 
The  Bernon,  1   Rob.  Adm.  Rep. 

103,106, 3  J.C.    52 

Berry  ads.  Elles,  Col.  57,  58, C.  &  C.  364 

Berry  «.  Perry,  3  Bulst.  64, 3  J.  C.  232 

Blackborn  v.  Edgley,  1  P.  Wms. 

601,605, 3  J.  C.  22,    26 

Blackham's  case,  1  Salk,  290,  2  J.  C.  143,  456 
Blackstone  «.  Stone,  Skin.  269,..  1  J.  C.  231 

Blake  v.  Blake,  5  Bro.  387, 1  J.  C.  498 

Bexwell  v.  Christie.  Cowp.  395, . .  3  J.  C.  32 
Bird  v.  Appleton,  8  Term  R.  562,  3  J.  C.  133 
Bird  c.  Cardwick,  1  Vern.  110,..  3  J.  C.  317 
Bishop  v.  Church.  2  Ves.  100,  371,  2  J.  C.  230 
Bize  v.  Dickanson,  1  Term  R.  285,  3  J.  C.  241 
Bland  T.  Robinson,  3  Burr.  1077,  2  J.  C.  359 
Blesard  v.  Hurst,  5  Burr.  2670,  ..  2  J.  C.  2 
Blue  v.  Marshall,  3  P.  Wms.  381,  2  J.  C.  378 
Bluet  9.  Bampfleld,  1  Cha.  Cas. 

237, 2  J.  C.  135 

Btanden  ».  Baugh,  Cro.  Car.  302, 

1  J.  C.  37,  43,  44,  86 

B<xly  9.  Hargrave,  5  Co.  32, 2  J.  C.  217 

Bod  well  e.  Wilcox,  C.  &  C.  367,.  C.  &  C  412 
Boehm  v.  Bell,  8  Term  R.  154, ...  3  J.  C.  280 
Boehm  9.  Sterling,  7  Term  R.423, 

424, 1  J.  C.  52;  3  J.  C.  7.  8 

Bolton  9.  Lee,  2  Lev.  57, 2JC     18 

22 


B 


Bonafous  9.  Walker, 2  Term  R.I 29, 

132, 2  J.  C.  206,  208 

Bonham  v.  Atkins,  8  Co.  114, 2  J.  C.  28 

Bond®.  Nutt,  Cowp.  601;  Doug. 

344, 1  J.  C.  193,  199,  204 

Boretonfl.Nicholls.Cro.Car.  363,  3  J.  C.  22,  26 

Bottomly  v.  Brooke, 1  J.  C.    57 

Bouchiert). Taylor, 7 Bro.  P.C.423,  1  J.  C.  507 
Bracebridgefl.Vaughan,  Cro.Eliz. 

66, 2  J.  C.  245 

Brand  ».Mears,  3  Durn.  &  E,  388,  C.  &  C.  349 
Brasfields.  Lee,l  Ld.  Raym.329,  2  J.  C.  18,  22 
Brett  ID.  Cumberland,  Cro.  Jac. 

522,.... 2  J.  C.  19,  25 

Breverton's  case,  5  Co.  125, 

3  J.C.  380,  381,  385 

Brickhead  v.  Archbishop  of  York, 

Hob.  199, Col.  37;  C.  &  C.  43 

Bridges  v.  Mitchell,  Bunb.  217,. .  2  J.  C.  437 
Bright  v.  Eynon,  1  Burr.  396,  ...  1  J.  C.  493 
Bristow  v. Wright,  Doug.  665,..  2  J.  C.  54,  57 
Brooks  9.  Bradley,  2  Cas.in  Ch.95  1  J.  C.  492 
Brooks  «.  Rogers,  1  H.  B.  640,..  1  J.  C.  75 
Brown  v.  Davis,  3  Term  R.  80, . . .. 

1  J.C.  32,  54,  59,  60,    62 

Brown  v.  McKinnaly,  1  Esp.  Cas. 

279, 3  J.  C.  241 

Brown  v.  Sellivin,  Cases  temp.Tal- 

bot,  240,.. 2J.  C.  100 

Brownell  v.  Brownell,  2  Bro.  C.C. 

62, 2  J.  C.  437 

Browning  v.  Beston,  Plowd.  142,  I  J.  C.  87 
Brownsword  v.  Edwards,  1  Vesey, 

248,... 1  J.  C.  434 

Bruce  ®.  Lloyd,  1  Vesey,  503, ....     1  J.  C.  166 

Buckler's  case,  5  Co.  56  a,   3  J.  C.  106 

Buaen  9.  Dore,  2  Vesey,445, 2  J.  C.  416 

Bull  fl.Vardy,!  Vesey  Jun.  272,-.  2  J.  C.  101 
Bulling  9.  Lepingwell,  4  Co.  29  a, 

.  2  J.  C.  143,  144,  456 

Burchett  v.  Durdant,  2  Vent.  311, 

Carth.  154, 2  J.  C.  388;  3  J.  C.    26 

Burden  v.  Kennedy,  3  Atk. 739,...  1  J.  C.  225 
Burrows  «.  Jemimo,  Moseley  1; 

Str.  733;    I   Rep.  (Co.),  258, 

260;  12  Viner.  87,  pi.  9, 1  J.C.    18, 

344;  2  J.  C.  135,  143.  145,  466. 

Bush  9.  Rattling,  Sayer,  289, 3  J.  C.  191 

Bushel's  case,  Vaugh.  135;    Sir  T. 

Jones,  13, 3  J.  C.  369,  404 

Buxton  9.  Home,  1  Show.  169,174, 

177,    2  J.  C.  4,  5,  15 


Calcraft  fl.Gibbs,  5  Term  R.  19,..     2  J.  C.  349 

Callinan  9.  Jillson  (1801), C.  &  C.  384 

Caivert  9.  Bovill,  7  Term  R.  523, 

1  J.  C.  344,  357 

Calvin's  case,  7  Co.  1,  16  a,  25  a, 

276 ;   Kirby's  Rep.  143, 2  J.  C.    32, 

34;  3  J.  C.  120,  121,  122. 
Camberling  9.  McCall,  2  Dallas, 

280, , 3  J.  C.  231 

Case  9.  Barber,  Sir.  T.  Jones,  158; 

Sir  T.  Raym.  450,. 3  J.  C.  246,  251 

Carlisle  9.  Trears,  Cowp.  671, 2  J.  C.  55 

Carna  9.  Penfield  (1802), C.  &  C.  387 

Carnes  9.  Duncan,  Col.  41,  .". 

Col.  73;  C.  &C.    78 


CITATIONS. 


xxiii 


•Carpenter  v.  Butterfield,  1  Cai.71,  C.  &  C.  175 

€aiT  T.  Donne,  2  Vent.  193,  ....  &  J.  C.  205 
Carter  «.  Boehm,  3  Burr.  1905,  ..  •  1  J.  C.  6 
•Carter  ».  Royal  Exchange  Ins.  Co. 

Marshall,  407;  2  Str.  1249,  ..  1  J.C.  192, 

197,  204. 
Cary  ( Lord  Falkland )  v.  Bertie, 

2  Vern.  342, 1  J.  C.  217 

Cates  v.  Knight,  3  Term,  444,  ...  1  J.  C.  20 
Cazeter  v.  Barbe,  1  Term  R.  187, 

1J.C.  296;  3"J.  C.    35 

City  of  London  fl.Nasb.,3  Atk.516,  1  J.  C.  500 
Chamberlain  t.  Lincoln  College,  3 

Co.  61,... -.- 3J.C.    24 

Chambers  •».  Gambier,  Com.  Rep. 

554, 2  J.  C.  208 

<^hampant  v.  Ranelagh,  Prec.  in 

Ch.  128, 2  J.  C.  359 

€hancey's  case,  1  P.  Wms.  408,  .  2  J.  C.  101 
Chapman0.Brown,6  Bro.  P.  C.  222- 

229, 3  J.  C.  22,  26 

Chapman  v.  Pointon,  2  Str.  1150,  2  J.  C.  110 
Charington  v.  Milner,  Peake,6,  3  J.  C.  186,195 
Chedwickfl.  Hughes  (note),  Garth. 

465, 2  J.  C.  303 

€hettle  a.  Lees,  Carth.  96, 2  J.  C.  18,  22 

€hilton».  Whiffen,2  Wils.  14,...  1  J.  C.  75 

Chitty  v.  Selwyn,  2  Atk.  359, 3  J.  C.  281 

€hristie  a.Secretan,8  Term  R.196,  2  J.  C.  147 

Church's  case,  2  Leach,  615, 2  J.  C.  343 

Church  v.  Church,  T.  Raym.  260,  C.  &  C.  333 
Churchill  v.  Wilkins.l  Term  R. 

447,.-.- :.- 2  J.  C.  55 

Clark  v.  Manning,  8  Co.  97  a, 3  J.  C.  33 

Clark  ».  Mundal,  1  Salk.  124, .... 

2  J.  C.  441;  3  J.  C.  72 

Clark  v.  Sewell,  3  Atk.  97, 2  J.  C.  101 

Clarke  v.  Shee  &  Johnson,  Cowp. 

197, 3  J.  C.  191 

Clere,  Sir  Edward,  Case  of,  6  Rep. 

(Co.),  18, - 1  J.  C.  83 

Clerk  v.  Moore,  1  Salk.  92, 2  J.  C.  229 

Clews  0.  Bathurst,  Str.  960, 2  J.  C.  143 

Clobery  v.  The  Bishop  of  Exon, 

Carth.  173, Col.  123, 

C.  &C.  124;  2  J.C.  112. 
Oobden  0.  Kendrick,  4  Term  R. 

432,.... 3  J.  C.  203 

Cock  v.  Honeychurch.  T.  Raym. 

203,.-..    3  J.  C.  251 

Cockaine  v.  Goodlage,  Palm.  166; 

1  Bulst.  40, 3J.  C.  230,  232 

Cockerill  v.  Owston,  1  Burr.  436, .  2  J.  C.  404 
Cockhay  v.  Woodward,  Hob.  217, 

3  J.  C.  231,  232 

Cocking  v.  Pratt,!  Vesey,400, 2  J.  C.  380 

Cocksedge  o.  Fanshaw,  Doug.  119,  3  J.  C.  160 

Coddrington  v.  Webb,  2  Vern. 240,  1  J.  C.  493 
Coggs  v.  Bernard,  L'd  Raym.  919; 

1  Salk.  26, 2  J.  C.  95 

Coghillfl.  Freelove,3  Mod.  326, ..  2  J.  C.  19- 

Coghlan  v.  Williamson,  Doug.  93,  1  J.  C.  230 

Coksedge  v.  Fanshaw,  Doug.  116,  C.  &  C.  381 

Coleman  v.  Seymour,!  Ves.  211, ..  2  J.  C.  202 

Collingwood  v.  Pace,  1  Vent.  417,  3  J.  C.  121 
€ollins  v.  Sawrey,6  Bro.  P.C.  496, 

1  J.  C.  498,  507 

Collins  v.  Swayne,  4  Bro.  h.  R. 

480,. 1  J.  C.  423 

Collins    v.  Thoroughgood,    Hob. 

188, 2  J.  C.  19 


Colt  v.  Wallaston,  2  P.  Wms.  156,  1  J.  C.  493 

Colvin  v.  Morgan,  1  J.  C.  415, 2  J.  C.  222 

Comb's  case,  9  Rep. 1  J.  C.  290 

Connor  v.  Connor,  2  Wils.  386, ...  2  J.  C.  339 
Connor   D.  Earl  of  Bellamont,  2 

-  Atk.  382, 2J.  C.  359 

Cook  v.  Jones,  Cowp.  727, 2  J.  C.  260, 

261,  280. 

Cooke  v.  Oxley,3  Durn.  &  E.  653,  C.  &  C.  332 
Coope  el  al.  v.  Eyre  et  al.  1  H.  Bl, 

37,  48,--- 2  J.C.  331,332 

Cooper*.  Kerr, 3  J.  C.  264 

Cooper  v.  Marsden,  Esp.  Cas.  2,   .  1  J.  C.  231 
Cornu  v.  Blackburne,  Doug.  642, 

643, -- 2  J.  C.  54 

Cotton's  case,  Cro.  Jac.  256, 2  J.  C.  294 

Coulsona.Coulson,  2  Str.  1125;    2 

Atk.  246, 2J.  C.  394,395 

Counden  v.  Clerke,  Hob.  33,  34, ..  2  J.  C.  387 
Countess  of  Gainsborough  v.  Gif- 

ford,  2  P.  Wms.  424, 1  J.  C.  493,  503 

Countess  of  Shaftsbury's  case,  2 

P.  Wms.  121,  122, 3  J.  C.  56 

Coxe    v.    Phillips,    Cases    temp. 

Hardw.  237, 2  J.  C.  291 

Crawford  et  al.  v.  Hunter,  3  Term 

R.  13,..- 3  J.  C.  44 

Crawleya.  Blewett,  12  Mod.  127,.  2  J.  C.  55 
Crepps  v.    Durden,  Cowp.    640, 

647, 2J.  C.  28,  51 

Crobya.  Adams, C.  &  C.  335 

Cruger  r.  Armstrong,  3  J.  C.  5,..  3  J.  C.  264 

Crygier  v.  Lang,  1  J.  C.  393, 2  J.  C.  225 

Curl'scase, 3  J.  C.  399 

Curry  v.  Walter,  IBos.  &  P.  526, . .  3  J.  C.  379 

Cuthbert  v.  Peacock,  1  Salk.  155, .  2  J.  C.  101 

D 

Danckebaar  Africaan,The,  1  Rob. 

Adm  111 2  J.  C.  52 

Davenant  v.  The  Bishop  of  Salis- 
bury, 1  Vent.  228  b 1  J.  C.  289 

Davie  v,  Stevens,  Doug.  323, 2  J.  C.  394 

Day w.Wilbur,.. ....  C.  &  C.  485 

Dean  of  St.  Asaph's  case,  3  Term 

R.  428,.. -..'. 3  J.C.  373,408 

Dean  «.  Dicker,  1  Park,  164, 1  J.  C.  306 

Delosta  v.  Vila  Real,  Str.  961, ....  2  J.  C.  143 

Debeze  «.Mann,  2  Bro.  P.  C.  165, .  1  J.  C.  523 
Delavigne  v.  The  United  Ins.  Co. 

1  J.  C.  310;  1  J.  C.  362,  ...  2  J.  C.  173,  192 
DeSouza  v.  Ewer,  Park,.  1  J.  C.  18;  2  J.  C.  147 

Dewar  v.  Span,  3  Term  R.  425, ...  2  J.  C.  358, 

362,  365,  366. 
Dicksone£a£.  v.  Evans,6  Term,59, 

1  J.  C.  55;  3  J.  C.  153 

Digg's  case,  1  Co.  174, : . . .  2  J.  C.  399 

Dighton  v.  Greenvil,  2  Vent,  232,.  1  J.  C.  126 

Dive  Olaningham,  Plowd.60-68,  2  J.  C.  244 
Dodd  v.  Beckman,  1  L'd  Raym. 

445, 2  J.  C.  262 

Dodd  v.  Beckman,!  L'd  Raym. 445; 

12  Mod.  257, -.  2  J.  C.  294 

Doe  n.  Clack,  2  H.  Bl.  400, 3  J.  C.  24 

Doe  0.  Brebant,  3  Bro.  C.C.397, ..  2  J.  C.  317 

Doe  «.  Butcher,  Dough.  50, 1  J.  C.  38 

Doe,  ex  dem.  Bristow,  v.  Pegge,  1 

TermR.  758  n, 2  J.  C.  325 

Doe,  ex  dem.  Clarke,  v.  Clarke,  2H. 

Bl.  400, 3  J.  C.  28 

23 


CITATIONS. 


D 

Doe,  ex  dem.  Dagget,®.  Snowden,  2 

Bl.Rep.1224, 1  J.  C.  45 

Doe,  ex  dem.  Fishar,  v.  Prosser, 

Cowp.  216,  217,  218,  . .  3  J.  C.  82,  114,  118 
Doe,  ex  dem.  Foster,  v.  Williams, 

Cowp.  622, --  2  J.  C.  355 

Doe,  ex  dem.  Hitchings,  v.  Lewis, 

Burr.  614, 3  J.  C.  296 

Doe,  ex  dem.  Hodsden,«. Staple,  2 

Term  R..  696, 2  J.  C.  324,  325 

Doe  ex  efew.  Hindson,  D.  Kersey, 

Day's  Case  in  Error,  p.41-88, 

note, 1  J.  C.  167 

Doe  ex  dem.  Lancashire  v.  Lancas- 

shire,  5  Term  R.  49,  59,  60, 

3  J.  C.  24,  28 

Doe  ex  dem.  Long,  v.  Lanning,  2 

Burr.  1100,  2J.  C.  388;  2  J.  C.  2226 

Doe  ex  dem.  Morris,®. Underdown, 

Willes  Rep.  293,  301, 2  J.  C.  316 

Doe  ex  dem.  Willey  v. Holmes,  8 

Term.  R.  2, 2  J.  C.  325 

Dole  v.  Moulton,  2  J.  C.  205,  ....  3  J.  C.  75 
Dormer  v.  Fortescue,  4  Atk.  132,  1  J.  C.  423 

Doyle  v.  Walke,  Carth.  2, 1  J.  C.  87 

Domina  Regina  v.  Yarrington, 

Salk.  406,. 1  J.  C.  20 

Dominus  Rex,  v.  Bear,  2  Salk.417,  3  J.  C.  365 
Dominus  Rex,  v.  Bear,  Salk.  646,  2  J.  C.  305 
Dominus  Rex,  v.  Bickerton,  Str. 

498, -  3  J.  C.  388 

Dominus  Rex,  t>.  Tell,  1  Salk, 271,  2  J.  C.  11 
Dominus  Rex,  v.  James,  Str.  1256,  1  J.  C.  20 
Dominus  Rex,  v.  Rhodes,  Str. 

428, 3  J.  C.  6 

Dominus  Rex.  v.  Seward,  2  Str. 

739, 2  J.  C.  337 

Dormer  v.  Fortesque,3  Atk.  130,.  1  J.  C.  172 
Dowman  v.  Vavasor,  9  Co.  13,  a, .  3  J.  C.  367 

Drage  «.  Brand,  2  Wils.  377, 2  J.  C.  406 

Drake  v.  Beere.l  Vent.  258;  1  Salk. 

250, 1  J.  C.  126 

Draper's  Company  v.  Davis,  2  Atk. 

295, U.  C.  500,507 

Duguet  P.  Rhinelander,  1  J.  C. 

360, 2J.  C.  192,  194 

Duke  of  Marlborough  v.  Lord 

Godolpbin,  2  Vez.  78, 1J.  C.  83,  84 

Duke  of  Norfolk's  case,  3  Ch. 

Cas  1  3  J  C  25 

Dyer  t>.  Missing,  2  Bl.  Rep.  1035,  2  J.  C.  28,  51 


E 


2  J.  C.  18 
2  J.  C.  249 


Eardleys.Turnock,  Cro.  Jac.  629, 
Earl  v.  Lefferts,  1  J.  C.  395,  ...... 

Earl  of  Pomfret  v.  Lord  of  Wind- 

sor, 2  Ves.  483,  ____  .....     2J.C.  436,437 
Earl  of  Suffolk  v.  Green,  1  Atk. 

450,  ....................  1J 

Eddowes  v.  Hopkins, 


.  C.  423,  434 
C.  &  C.  183 


Eden   v.    Parkinson,    Park.  353, 

Doug.  732,  .................     2  J.  C.  194 

Edgworth  v.  Davis,  Cas.  in  Ch. 

40,  ...............  .  ........     2  J.  C.  431 

Eumondson  v.  Machell,  4  Term  R. 

5,  ........................     3  J.  C.  258 

Edmonson  t.Popkin,!  BOS.&  Pull. 

270  .....................  2  J.  C.  260,280 

Eldridge  v.  Knott.Cowp.  215,  ____     3  J.  C.  118 

24 


E 


Elkins  v.  East  India  Co.l  P.  Wms. 

396,. - 2  J.  C.  365 

Eller's  case,-l  Leach,365, 2  J.  C.  343 

Ellis  v.  Johnson,  Cro.  Car.  261,...  2  J.  C.  28 
Ellis  v.  Segrave,  5  Bro.  P.  C.  478, 

487, -. 1  J.C.  498,  507 

Enderby  v.  Fletcher,  Park. 309  (or 

410,  4th  ed.), 3  J.  C.  13 

Eny's  Ex'r  «.  Donnisthornes  Ex'r, 

2 Burr.  1190,1195,1197,....  2  J.  C.  19,  20 
Erving  v.  Peters,  3  Term  R.  685, 

690,.., 1  J.  C.  278 

Evans  v.  Prosser,  3  Term  R,  186, 

3  J.  C.  152,  154 

Evered  «.  Hone,2  Mod.  293 2  J.  C.  316 

Ewer  v.  Jones,  2  Salk. 41 5, 2  J.  C.  202 

Ewer  v.  Jones, 2  L'dRaym. 935,..  1  J.  C.  18- 
Eyre  v.  The  Countess  of  Shafts- 
bury,  2  P.  Wms.  103, 2  J.  C.  59 

Ex'rs  of  Hughs  v.  Hughs,  7  Term 

R.  350, 3  J.  C.  65- 

F 

Fairclaim  ex  dem.  Fowler, v.  Sham 

title,  3  Burr.  1292,  1304,  Col.  56;  C.  &  C.62 
Farmer  ex  dem.  Earl,  v,  Rogers,  2 

Wils.  27, 1  J.  C.  402 

Fazacharly  v.  Baldo,  Salk.  352, 

Col.  39;  C.  &C.  44;  2J.  C.  28 

Fenner  v.  Meares,  2  Bl.  Rep, 

1269, 1J.C.52,  56 

Fernandes  «.  DeCosta,  Park.  177,  1  J,C.  354, 

....  356,  358 ;  2  J.  C.  1 38,  456, 458,  464,  465. 

Ferrar's  case,  T.  Raym.  84, 2  J.  C.  304 

Ferrer  v.  Beale,  1  L'd  Raym.  692,  2  J.  C.  29- 
Ferrers  v.  Sherley,12  Vin.  224, ....  1  J.  C.  231 

Field  «.  Carron,  2  H.  Bl.  27, 2  J.  C.  109' 

Finch's  case, Cro.  Eliz.220;  2  Leo. 

134 C.  &C.  298 

Finch  «.  Finch,  2  Vesey,  492,  ...  2  J.  C.  416 
Fitzherbert  v.  Fitzherbert,  Cro. 

Car.  484, 3  J.  C.  105- 

Fleetwood's  case,  8  Co.  1 71 , 1  J.  C.  225- 

Fletcher  «?.Dyche,  2  Term  R.  34, .  3  J.  C.  298 
Floyer  D.  Edwards,  Cowp.  112, 

113,  115, 2  J.  C.  364 

Floyer  v.  Johnson,  3  Bro.  P.C.218,  1  J.  C.  498 
Foley  &  Windhams's  case,  1  Leon. 

105, Col.  95;  C.&C.98 

Forbes  v.  Wale.l  Bl.  Rep. 532 3  J.  C.  291 

Ford  v.  Grey,  I  Salk.  286;  6  Mod. 

44, 3  J.  C.  176 

Forster  v.  Hale,  3  Ves.  Jr.  712,..  C.  &  C.  353 

Foster  v.  Bonner,  Cowp.  454, C.  &  C.  175 

Foster  v.  Wilmer,2  Str.  1249, ..  1  J.  C.  193,  204 
Foubert  fl.Turst,  1  Bro.P.C.41...  1  J.  C.  140 
Fowler  v.  Dunn,  1  B.  &  P.48, ....  3  J.  C.  121 

Fox's  case,  8  Rep.  93  b, 1  J.  C.  95 

Fox  e.  Fiely,  6  Mod.  225, , 2  J.  C.  245 

Franklin's  case,  9  St.Sr.  255,  269, 

3  J.  C.  371,  388,  392,  398,  406 

Franklin  v.  Bradell,  Hutton,84,.  C.  &  C.  333 
Frederick  v.  Frederick,  1  P.  Wms. 

721;  Miller,  359, 1  J.  C.  218 

Fronting  Small, C.  &  C.  354 

Frost  v.  Carter,  1  J.  C.  73, 2  J.  C.  281 

Fry  v.  Penn,  2  Bro.  Ch.  R.  280, .  1  J.  C.  423 
Fuller's  case,  5  St.Tr.  442,  444;  8 

St.Tr.  78, 3  J.  C.  387,  400,  406 

Fuller  v.  Prentice,  1  H.  Bl.  49,..  2  J.  C.  110 


CITATIONS. 


G 


Gage  v.  Bulkeley,  Ridgway,  266, 

267, 2  J.  C.  145,466 

Galbraith  v.  Neville,  Doug,  ad- 
denda,   U.  C.  345 

Ganesford    v.    Levy,    2   H.    Bl. 

119, 2  J.  C.  105 

Gardiner  v.   Smith,   1  J.  C.  141, 

_• 2  J.  C.  150,  266 

Garner  v.  Anderson,  1  Str.  11,.  .  2  J.  C.  337 
Garrels  v.  Kensington,  8  Term  R. 

232,  234,  244, 2  J.  C.  147,  148,  454 

George  v.  Clagett,  7  Term  R.  360,  2  J.  C.  328 
Geyer  v.  Aguilar,  7  Term  R.  681,  1  J.  C.  344 

2  J.  C.  147,  150. 

Gibson  v.  Brook,  Cro,  Eliz.  859,  1  J.  C.  277 
Gibson  v.  Hunter,  2  H.  Bl.  87,..-  3  J.  C.  160 
Gidley  v.  Williams,  2  Salk.  753, ..  2  J.  C.  319 
Giles  v.  Bradley,  2  J.  C.  252,  ....  3  J.  C.  82 
Glover  t>.  Black,  3  Burr.  1394;  1 

Bl.Rep.405, 2  J.  C.  252 

Glym  v.  Bank  of  England,  2  Ves. 

42, 1  J.  C.  500 

Goddard  v.  Vanderheyden,  2  Wm. 

Bl.  794;  2  Wills.  269,  271, ..  1  J.  C.  75 
Godfrey  ^.Turner,  1  Vern.  247,.-  1  J.  C.  423 
Goix  v.  Knox,  1  J.  C.  337;  1  J.  C. 

351, 2  J.  C.  78,  150 

Goix  «.  Low,  1  J.  C.  341 :  U.  C. 

362, 2  J.  C.  130,  142,  177,  192,  452 

Gold  v.  Death,  Cro.  Jac.  381 ;  3 

Bust.  55;  Hob,  92, 3  J.  C.  229,  232 

Golden  v.  Manning  &  Peyton,  3 

Wils.  439, 2  J.  C.  373 

Goldsmith  v.  Baynard,  2 Wils.  231, 

232, 2  J.  C.  103 

Goodall  v.   Dolley,   1    Term  R. 

714,.--. - -.     2  J.  C.      2 

Goodman  v.  Goodwright,  12  Bl. 

Rep.  190, --     3J.  C.    25 

Goodtitle  v.  Herbert,  4  Term  R. 

680, • U.  C.    48 

Goodtitle  v.  Petto,  Str.  934. 2  J.  C.  398 

Goodtitle  ex  dem.  v.  Bailey,  Cowp. 

599, 1  J.  C.  402 

Goodtitle  ex  dem.  Estwick,«.Way, 

ITermR.  737,  . 2  J.  C.  325 

Goodtitle  ex  dem.  Hord,  v.  Stokes, 

Sayer,  67;  1  Wils.  341, 2  J.  C,  389 

Goodtitle  ex  dem.  Jones,  v.  Jones, 

7  Term  R.  43,  47, 2  J.  C.  325 

Goodright  v.  Caton,  Doug.  486, . .  1  J.  C.  126 
Goodwin  v.  Crowle,  Cowp.  357,.  2  J.  C.  406 
Goodright  v.  Pullyn,  2  L'd  Raym. 

1437;  2  Str.  731,.-.  2  J.  C.  390,  392,  395 
Goodwin  ».  Gibbons,  4  Burr.  2108,  3  J.  C.  213 
Goreerat  v.  M'Carty,  2  Dall.  146,  3  J.  C.  264 
Goss  v.  Withers,  2  Burr.  683,  696, 

1  J.  C.  296,  300;  2  J.  C.  264 

Governors,&c. of  Hospital ».  Swan, 

5Bro.  P.  C.  454, 1  J.  C.  498,  507 

Graham  v.  Stampter,  2  Vern.  146, 

- 1  J.  C.  493,  503 

Grant  v.   Parkinson,  Park.  267; 

Millar,  261, 3  J.  C.  44 

Grant  v.  Southers,  6  Mod.  183,..  2  J.  C.  8,  12 
Grant  v.  Vaughan,  3  Burr.  1516; 

1  Bl.  Rep.  485, ....     3  J.  C.  6,  8,  260,  263 
Grantham  v.  Gordon,  1  P.  Wms. 

612,... 2  J.  C.  270,  271 

Green  v.  Waller,  2  L'd  Raym.  893,       1  J.  C.  18 

2  J.  C.  144,  456. 


G 

Green  v.  Watts,  1  L'd  Raym.  274, 

Col.  95;  C.  &C.  98 

Green  ».  Cole,  3  Saund.  228,  -...  2  J.  C.  217 
Griffith  t>.  Goodhand,  T.  Raym. 

464... 1  J.  C.  71 

Groenvelt  v.  Burwell,!  L'd  Raym. 

454,  468,  470;  Com.  Rep.  81,  2  J.  C.  28 
Grove  v.  Campbell,  C.  &  C.  115,.  C.  &  C.  224 
Gyles  D.  Hall,  2  P.  Wms.  378, 3  J.  C.  250 


Hadley  t>.  Clark,  8  Term  R.  259,  3  J.  C.  170 

Hall  v.  Winckfield,  Hob.  1 69, . ...  2  J.  C.  381 
Hallwood's  case,  5  Co.  125,  126, 

a, 3  J.  C.  382,  385 

Hamden  v.  East  India  Co 2  J.  C.  145 

Hamilton  v.  Mendez,2  Burr.1198; 

Park.  359, 1  J.  C.  296;  2  J.  C.  140 

Hankey  et  al.  v.  Smith,  3  Term  R. 

509, 3  J.  C.  154 

Hardy  v.  Bern,  5  Term  R.  636, ..  2  J.  C.  406 

Harper's  case,  11  Rep.  24  6.' 1  J.  C.  95 

Harrison  v.  Naylor,  3  Bro.  C.  C. 

110, 2  J.  C.  100 

Hart  ».  Buckminster,  Styles.  103,  3  J.  C.  176 

Hart  v.  Johnson,  3  J.  C.  322, 3  J.  C.  113 

Hart  v.  M'Intosh,  Esp.  Cas.  298, 

299,- -. 3  J.  C.  186,  190 

Hawey  ads.  Hildreth, C.  &  C.  486 

Harwood  v.  Billiard,  2  Mod.  269,  2  J.  C.  396 
Hatfield  v.  Hatfield,  3  Bro.  P.  C. 

62, 2  J.  C.  144 

Hatton  v.  Gray,  Eq.Cas.  Abr.  21 

pi.  10, ..-  3  J.  C.  63,  65 

Haughton  v.  Harrison,  2  Atk. 

330, 2  J.  C.  202 

Hayes  v.  Warren,  2  Str.  933, C.  &  C.  334 

Haynes  ».  Mico,  1  Bro.  C.  C.  129,  2  J.  C.  101 

Haywood  v.  Whitby,  1  Burr.  228,  2  J.  C.  316 
Heath  v.  Crookshanks,-  2  Term  R. 

24, 3  J.  C.  247 

Heath  «.  Perry,  3  Atk.  102, 2  J.  C.  202 

Henshaw  v.  Pleasance,  2  Bl.  Rep. 

1176, 2  J.  C.  144,  456 

Hercy  v.  Dinwoody,  4  Bro.  C.  C. 

264-270, 2  J.  C.  437 

Hervey  v.  Hervey,  Barnad.  Ch. 

Rep.  Ill, .  1  J.  C.  292 

Heylyn  etal.  fl.Adamson,  2  Burr. 

674, 2  J.  C.  76 

Hickok  «.  Scribner,  J.  C.811,. .  -  3  J.  C.  329 

Higham  v.  Barf  old,  3  Hob.  694,  2  J.  C.  294 

Hill's  case,  8  S.  7;  Foster,  271,.  2  J.  C.  305 

Hill  v.  Bateman,  Str.  710, 2  J.  C.  28,  51 

Hill  v.  Lewis,  1  Salk.  132;  1  L'd 

Raym.  144, 3  J.  C.  9 

Hilliard  v.  Jennings,  L'd  Raym. 

505;  Carth.  514, 1  J.  C.  166 

Hinton's  case,  2  Show.  247, 3  J.  C.  263 

Hixon  v.  Binns,  3  Term,  186, 2  J.  C.  313 

Hodgson  v.  Ambrose,  . . . 2  J.  C.  394 

Hodgeson  v.  Bussey,  2  Atk.  90  n,  2  J.  C.  392 
Holdfast  ex  dem.  Austey,  v.  Dows- 
ing, 2  Str.  1253,  T 1  J.  C.  166 

Holmes  v.  Pontin,  Peak.  N.  P. 

100 1  J.  C.  231 

Hopkins  ».  Hopkins,  Cas.  temp. 

Talbot,  51,  52, 2  J.  C.  316 

Hotchkiss  ®.  Royal  Bank  of  Scot- 
land, 6  Bro.  468, 1  J.  C.  498,  507 

25 


CITATIONS. 


Hookes  v.  Swaine,  1  Sid.  151,. ..  1  J.  C.  71 
Horn,  John,  Case  of,  11  St.  Sr. 

288,    3  J.  C.  288,  373,  401 

How.Sir  John,7?.Wooley,l  Vent.l,  2  J.  C.  103 
Howard  v.  Casell,  6  Term  R.  642,  1  J.  C.  32 

Howlet's  case,  Latch.  150, C.  &  C.  332 

Hudson  v.  Hudson,  Cas.  temp.  Talb. 

127, 3  J.  C.  57 

Hudson  T.  Leighs,  1  Leon.  319,..  2  J.  C.  29 
Hughes  v.  Cornelius,  Raym.  473 ; 

2  Show.  232,  242;   Carth.  32; 

Bull.  244;  Skin.  58, 1  J.  C.  18; 

2  J.  C.  138,  139,  142,  144, 145, 152, 164, 
166,455,  456,  464,  465. 
Hughs  v.  Harrys,  Cro.  Car.  229,.     1  J.  C.  217 

Hume  v.  Burton,  Ridg.  51, 2  J.  C.  307 

Humphreys.  Moxen,  Peake,  52,  3  J.C.186, 196 
Hunby  v.  Johnson,  Cha.  Rep.  243,  1  J.  C.  492 
Hunt,  Executor,  &c.,  v.  Stokes,  4 

Term  R.  561, 3  J.  C.  241 

Hunter  v.  Potts,  4  Term,  185,  192,  1  J.  C.  18 
Hyat  v.  Hare,  Comb.  382,  1  J.  C. 

406, '. 2  J.  C.  375 

Hyde  t.  Cogan,  Doug.  703, 3  J.  C.    18 


Isack  v.  Clarke,  1  Roll.  Rep.  132,  2  J.  C.  291 
Iseham  v.  Morrice.Bro.Car.  110,  1  J.  C.  191 
Irving  v.  Wilson,  4  Term  R.  485,  3  J.  C.  241 


Jackson  v. Monroe, 2  Bro. P.  C. 415,  1  J.  C.  498 
Jackson  ex  dem.  Cooder  et  al.  v. 

Wood,  1  J.  C.  163, 2J.  C.  315 

Jackson  ex  dem.  Culverhouse  v. 

Beach,  2  J.  C.  399, 3  J.  C.  120 

Jackson  ex  dem.  Fishery.  Prosser, 

Cowp.  217, 1  J.  C.  87 

Jackson  ex  dem.  Jones,  v.  Striker, 

1  J.  C.  284;  C.  &  C.  354 

Jackson  ex  dem..lune,v.  Raymond, 

1  J.  C.  85, 1  J.  C.  85 

Jackson  ex  dem,.  Livingston,  v. 

Schutt,  1796, 3  J.  C.  118 

Jackson  ex  dem.  Van  Alen,  v. 

Rogers,  1  J.  C.  33, 1  J.  C.  88 

Jacobs  c.  Stevenson,  1  B.  &  P.  104,  2  J.  C.  104 
James  r.  David,  5  Term  R.  141, 

143, 3  J.  C.  247,  251 

James  v.  Pierce,  2  Lev.  132,  2  J.  C.  7,  12,  15 

James  v.  Pierce,  3  Hob.  453, 2  J.  C.  11 

James  v.  Semmes,  2  H.  Black  213,  2  J.  C.  101 
James  v.  Trollop, Skin. 239;  2  Mod. 

323, 3  J.  C.  291 

Jenkins  v.  Keymis,  1  Lev.  151,..  1  J.  C.  289 
Jenkins  ex  dem.  Yates,  v.  Church, 

Cowp.  482, 1  J.  C.  38 

Jennot  v.  Hardie,  1  Lev.  983, 2  J.  C.  398 

Jesus  College  v.  Bloom,  3  Atk. 

263, 2  J.  C.  431 

Jewson  v.  Read,  Loft,  147,  2  J.  C.  307 

Johnson  v.  Sheddon,  Burn  on  Ins. 

166, 3  J.  C.219,  220,  221 

Jollifl  c.  Morris,  1  B.  &  P.  38,  ..  2  J.  C.  105 
Jones  r.  Bever's  case,  Kelynge, 

52, 2  J.  C.  806 

Jones  *.  Barkley,  Doug.  694, 3  J.  C.  251 

Jones  v.  Bow,  Carth.  225 2  J.  C.  143,  456 

Jones  v.  Hake,  2  J.  C.  60, 3  J.  C  209 

2(5 


Jones  is.  Hamond,  Lutw.  124, 2  J.  C.  217 

Jones  t>.  Schmoll,  1  Term  R.  130 

n,.... 1  J.  C.  301 

Jordaine  v.  Lashbrook,7  Term  R. 

601,  604, 3  J.  C.  186,  190,  196 

Judah  v.  Kemp,  2  J.  C.  411,  ....  3  J.  C.  251 
Juhelfl.  United  Ins. Co., Oct.,  1801,  C.  &  C.  330 


Kaines  v.  Knightly,  Skin.  54, 3  J.  C.  4 

Kelly  t>.  Harrison,  2  J.  C.  29, 

1 3  J.  C.  Ill,  113,  119,  122 

Kent  v.  Bridgman,  Prec.  in  Ch. 

233, 1  J.  C.  493,  503 

Kewley  «.  Ryan,  2  H.  Bl.  343, 

1  J  C  195   197 

Key  v.  Briggs,  Skin.  282, 2  J.  c!    10 

Kind  0.  Regis,  Doug.  134, C.  &  C.  338 

King  v.  Burks,  7  Term  R.  4, .  3  J.  C.  385,  398 
King  v.  Bagshaw,  7  Term  R.  363,     3  J.  C.  108 
King  r>.  Burchell,  Amb.  379,.  2  J.  C.  389,  395 

King  v.  Jane  D.  1  Vent.  69, 2  J.  C.  305 

King  t>.  Jeff,  Str.  984, 2  J.  C.  304 

King  t>.  Jones,  2  L'd  Raym.  1527,     3  J.  C.  155 
King  v.  Lord  Abingdon,  1  Esp. 

Cas.  228, 3  J.  C.  364 

King  D.  Mawbey,  6  Term  R. 

638, 2  J.  C.  307 

King  v.  Melling,  1  Vent.  214,  225, 

230;  2  Lev.  59, 2  J.  C.  392,  395 

King  v.  Morris,  Str.  901, 3  J.  C.  266 

King  v.  New  College,  2  Lev.  14, 

.  2  J.  C.  143,  456 

King  v.  Nicolls,  Stra.  1227, 2  J.  C.  310 

King  v.  Owen,  10  St.  Tr.  App. 

194,.. .  3  J.  C.  407 

King  v.  Peppet,  1  Term  R.  235, 

2  J    C    55     57 
King "«!  "Read,"  1  Lev."  9," ........  '  2  J.  C.'  307 

King  v.   Kainsbury,  4rTerm  R. 

451, 2  J.  C.  348 

Kings.  Saunders, 3  J.  C.  397 

King  v.  Scott  &  Hames,  3  Burr. 

1262, 2  J.  C.  311 

King  v.  Seawood,  2  L'd  Raym. 

1472, 2  J.  C.  337 

King  t>.  Smith,  T.Jones,  163, ....  2  J.  C.  307 
King  v.  Turneth,  1  Mod.  26:  2 

Hob.  583 ;  1  Vent.  60, 3  J.  C.  266 

King  t>.  Wilkes,  4  Burr.  2527, .  _  _ .  3  J.  C.  407 
King  «.  Withers,  3  Term  R.  428, 

429,  note,..  3  J.  C.  364,  365,  371,  373,  374 
King  a.  Woodfall,  5  Burr.  2661,.  3  J.  C.  407 
King  D.  Wright,  8  Term  R.  297, 

298, 3  J.  C.  379 

King  v.  Wright,  1  Vent.  209,..  2  J.  C.  11,  15 
Kinlock's  case,  Foster,  22,  27,  28,  v 

32,  33,  34,40...  2  J.  C.  303.  305 

Kirby  v.  Coles,  Cro.  Eliz.  137, C.  &  C.  332 

Knight's  case,  2  L'd  Raym.  1014, 

Col.  95;  C.  &C.  98 

Knotsford  v.  Gardiner,  2  Atk. 

450, ...  1  J.  C.  500 

Kunckle  v.  Wynick,  1  Dall.  307,.  2  J.  C.  19 


Ladd  ».  Garrod,  1  Lutw.  665, 3  J.  C.  229 

Lade  v.  Holford,  Bull.  N.  P.  110,     2  J.  C.  324 
Lake  v.  Hutton,  Hob.  252,  3  J.  C.  381,  396,  397 


CITATIONS. 


Lamb  r>.  Archer,  Comb.  209, 

Col.  56;  C.  &C.    62 

Laing  v.  The  United  Ins.  Co.  2  J. 

C.  174,    2J.  C.  481 

Rangdon  v.  African  Co.,Prec.  in 

Cha.  221, 1  J.  C.  492,  503 

Lanning  v.  Levering,  Cro.  Eliz. 

916; 1  J.  C.    71 

Lapiere  v.  Germain,  2  L'd  Raym. 

859, -. 2  J.  C.  337 

Laughter's  case,  5  Co.  22  b, U.  C.    70 

Lavabre    v.    Wilson,   Park.    114, 

116, 1  J.  C.  227 

LeCaux  v.  Eden,  Doug.  610,  614, 

615,617,.- -. U.  C.    18 

Lechmere  v.  Earl  of  Carlisle,  3 

P.  Wms.  215, U.  C.    84 

Lee  v.  Fydge,  Cro.  Jac.  488,  ....     3  J.  C.  230 
Leery  v.    Goodson,   4  Term    R. 

687 2  J.  C.    55 

Legh  «.  Legh,  1  B.  &  P.  447, 2  J.  C.  260 

LeGrafts  v.   Hughes,  Park.  259; 

Millar,  226, -     3  J.  C.    44 

LeGuen  v.   Gouverneur,  1  J.   C. 

436, 2  J.  C.  156 

Leighton  v.   Sir  Edward  Leigh- 
ton,  1  P.  Wms.  673, U.  C.  507 

Lenthal  «.   Cook,  2  Keb.  422;  1 

Sid.  383;  1  Saund.  161;  Salk. 

438;  Hardw.  464, 2  J.  C.  244 

Lenthal  v.  Lenthal,  2  Lev.  109, 

2  J.  C.  8,  12,  15 

Lepping   v.   Kedgewin,    1    Mod. 

207,-.- -.     2  J.  C.  217 

LeRoy  et  al.  v.  Gouverneur,  1  J. 

C.  226, 2  J.  C.  247 

LeRoy  et  al.  w.Veeder  et  al.  1  J.C. 

417, 1  J.  C.  432 

Lesebure  v.  Worden,  2  Ves.  56, 

1  J.C.  500,  507 

Lewis  v.  Baker,  Barnad.  Ch.  Rep. 

100, 1  J.  C.  507 

Lewis  et  al.   ».  Rucker,  2  Burr. 

1167,  1169, 2  J.C.  300; 

3  J.  C.  218,  220,  221,  222. 
Leyfield  ».  Hillary,  10  Co.  93,.--     2  J.  C.  491 
Lickbarrow  0.  Mason,  2  Term  R. 

63;  2  H.  Bl.  211,  C.&  C.  335;     1  J.  C.  211 
Lilburne's  case,  2  St.  Sr.  69,  81, 

82, 3  J.  C.  369 

Linacreand  Rhodes's  case,2  Leon. 

96, 2  J.  C.    10 

Lisle's  Lessee  v.  Harding,  Bull. 

N.  P.  104, 2J.  C.  355 

Lisle    v.   Gray,   Jones,    114;    T. 

Raym.  31 5 ;  2  Lev.  223, 2  J.  C.  387 ; 

3  J.  C.  22,  26. 
Little  v.  Heaton,   2  L'd  Raym. 

750, 1  J.  C.  126 

Livingston  v.  Clinton,  July,  1799,     3  J.  C.  '-64 
Loekyer  et  al.  v.  Offley,  1  Term 

R.  252, 3J.  C.  17,    35 

Loekyer    v.    Simpson,    Moseley, 

300,.--- 2  J.  C.  101 

Lodge  v.  Phelps,  1  J.  C.  139, 2  J.  C.  369 

Long  v.   Blackall,  7  Term  Rep. 

102, 3  J.C.     25 

Long  i).   Laming,  2  Burr.  1100, 

..  2J.  C.  392,  394 

Loomis  &  Tillinghast  ®.  Shaw,  . . 

2  J.  C.  36;  3  J.  C.  43,    46 


Louviere  v.  Lanbray,  10  Mod.  37,     1  J.  C.     59 
Lowe  ".    Davies,   2  L'd    Raym. 

1561, 3J.  C.  22,    26 

Lowe  v.  Jolliffe,  1  Bl.Rep.  365,  --     3  J.  C.  191 

Lowe  v.  Peers,  4  Burr.  2228, 3  J.  C.  298 

Lowry  v.   Bourdiee,  Doug.   468, 

2  J   C  333  334 
Lowry  v.  Lawrence,  C.  &  C.  76,-  C.  &  C.'  476 

Lucas  0.  Marsh,  Barnes,  453, 3  J.  C.  153 

Lucy  v.  Levinston,  1  Vent.  175;  2 

Keb.  831, 2  J.C.    21 

Luddington  «.  Kime,  1  L'd  Raym. 

203,-.-. 3J.C.21,     26 

Luke  v.   Lyde,  2  Burr.  882,  887, 

1  J.  C.  381,  383,  388;  3  J.  C.  98,  99 

Ludlow  v.  Dale,  1  J.  C.  16, 1  J.  C.  342, 

344,  353;  2  J.  C.  130,  142,  177,  192. 
Lutterill  v.  Reynell,  1  Mod.  283,.     3  J.  C.  191 

Lyddall  v.  Dunlap,  1  Wils.  4, 2  J.  C.    19 

Lynch  v.  Clerke,  3  Salk.  154,--..     3  J.  C.  287 
Lynn    «.    Bruce,   2  H.    Bl.  318, 

319, 3  J.  C.  256 


M 


MacFerson  w.Thoytes,  Peake's  N. 

P.  21, 2  J.  C.  214 

Machen  v.   Delaval,  Barnes  Cas. 

52,  277, 2  J.  C.  260,  280 

Mackareth  v.  Pollard,  1  Lord 

Raym.  80, 1  J.  C.  20 

Maddock  v.  Hammet,  7  Durn.  & 

E.  56, C.  &C.  336 

Mansell's  case,  21  Vin.  478, 2  J.  C.  307 

Man-lot  0.  Hampton,  7  Term  R. 

269, _  1  J.  C.  492,  502 

Marsham  «.  Buller,  2  Roll.  Rep. 

21, C.  &  C.  431 

Martin  fl.'Blithman,  Yelv.  197,  --  2  J.  C.  245 
Martin  v.  Kesterton,  2  Bl.  Rep. 

1093, 2  J.  C.  104 

Martin  v.  Moore,  Str.  922, 2  J.  C.  341 

Martin  ex  dem.  Weston,  v.  Mow- 

lin,  2  Burr.  978,  979, 2  J.  C.  330 

Martin  v.  O'Hara,  Cowp.  823, 

824, 2  J.  C.  404 

Maryatt  v.  Wilson,  1  Bos.  &  P. 

430, 2  J.  C.  485 

Masters  et  al.  v.  Miller,  4  Term 

R.  341, 1  J.  C.  52;  2  J.  C.  260 

Mathews  «.  Phillips,  Salk.  424, 

Col.  39;  C.  &C.  44 

Mayne  v.  Walter,  Park.  195,  431, 

730, 1  J.  C.  18,  349,  358,  365 

Mayor  of  Kingston  v.  Horner, 

Cowp.  102,111, 3J.  C.  118 

Mayor  of  Norwich  v.  Berry,  4 

Burr.  2113, 2  J.  C.  103 

Mayor  of  Norwich  v.  Johnson,  3 

Mod.  91,  92, 1  J.  C.  87 

Mead  v.  Lord  Orrery,  3  Atk.  238, 

239, 3  J.  C.  319,  320 

Medcalf's  case,  11  Co. Col.  118 

Megit  i).  Johnson,  Doug.  544, 2  J.  C.  140 

Melan  ».Duke  deFitzjames.l  Bos. 

&  Pull.  141,  142,  1  J.  C.  140;  2  J.  C.  369 

Menville's  case,  13  Co.  21, 2  J.  C.  29 

Messenger  v.  Armstrong,  1  Term 

R."53, 1  J.  C.  45 

Metcalf  v.  Hervey,  1  Ves.  248, .. .  1  J.  C.  423 

2G-1 


xxviii 


CITATIONS. 


Middlewood    c.   Blakes,  7  Term 

R  162, 1  J-  C.  196,  197,  198 

Mikhell  *.  Oldfield,  4  Burn.  &  E. 

123, C.  &C.  489 

Mildraay's  case,  1  Co.  175,  176  a, 

1  J.  C.  95, 1  J.  C.  396 

Millar  v.  Turner,  1  Vesey,86, 3  J.  C.    28 

Miller  t>.  DePeyster, . C.  &  C.  330 

Miller  v.  Scare,  2  Bl.  Rep.  1145, . .     2  J.  C.    28 
Millener  v.  Robinson,  Moore,  682,     1  J.  C.  233 
Milles    t>.  Fletcher,    Doug.    219; 

Park.  342, 1  J.  C.  300,  301,  303 

Mitchell's  case,  Fost.  19, 2  J.  C.  343 

Mitchell  v.  Edie,  1  Term  R.  615,  2  J.  C.  300 
Mitchell  v.  Oldfield>  4  Dura.  &  E. 

123, C.  &C.  368 

Monckton  v.  Pashley,  2  Salk.  639: 

2  L'd  Raym.  975,  977, 2  J.  C.    29 

Monk  v.  Cooper,  2  Str.  763,.-,.--     1  J.  C.    69 
Morgan  v.  Jones,  1  Bro.  P.  C.  57, 

58, 1J.  C.  498,  507,  523 

Morris  v.  Barry.  1  Wils.  1, 1J.  C.  233 

Morris,  exdem.  Andrews,  fl.LeGay 

&  Wood,  2  Burr.  1102,...--  2  J.  C.  390 
Moses  «.  McFerlan.  2  Burr.  1009, 

1  J.C.  492,  502 

Motteux  «.  London  Assurance,  1 

Atk.  545,  548,.. 3  J.  C.  281 

Mounson  v.  Boiirn,  Cro.  Car.  519, 

527, 1  J.  C.  277 

Mumford  v.  Church,  1  J.  C.  147, 

151,.  1  J.  C.  152;  2  J.  C.  263;  3  J.  C.  293 
Munt  v.  Stokes,  .4  Term  R. 

260  2  T  C  55 

Murray \.  Wilson,  1  Wils.  316,..  2  J.  C.  382 
Mylock  v.  Saladine,  3  Burr.  1564,  2  J.  C.  336 


N 


Naylor  «.  Taylor,  Park.  361,362,.  2  J.  C.  140 
Newnham  v.  Law,  5  Durn  &  E. 

577,. C.  62;  C.  &  C.  67;  1J.  C.  29 

Newland  t>.  Horseman,  1  Vern.  21 ; 

2  Ch.  Cas.  74, 2  J.  C.  137,  145,  455 

Nicholas  v.  Chamberlain,  Cro.  Jac. 

I'"1!  1  J  C  292 

NichollsV."Raynbred,~Hob~~88,--  C.  &  C.  332 
Norris  v.  Leneve,  3  Atk.  35,  1  J.C.496,502,503 
North  v.  Earl  of  Strafford,  3  P. 

Wms.  150, 1J.  C.  434 


O 


Gates  ex  dem.  Wigfal  v.  Brydon, 

3  Burr.  1897, 1  J.  C.  126 

Oldnoll's  case,  Dyer,  155, 3  J.  C.  384,  399 

Oneby'a  case,  2  L'd  Raym.  1485; 

2  St.  Tr.766, 3  J.  C.  371 

Onslow  u.Horne,  3  Wils.  105, C.  &  C.  335 

Orby  c.  Trigg,  9  Mod.  2, 3  J.  C.  63,    65 

Ormond  v.  Bierly.Carth.  519; 1  J.  C.    24 

Osborn  v.  Carden  &  Joy,  Plowd. 

293, 1  J.  C.  218 

Osborn  v.  Haddock,  Barnes,  257, 

....  Col.  95;  C.  &C.  98 
Osborn  v.  Steward,  3  Mod.  231,..  2  J.  C.  143 
Owen's  case,  10  St.  Tr.  App'x, 

196,. 3  J.  C.  373 

Owenson  v.  Morse,  7  Term  R.  66,  3  J.  C.  72 
Oymchund  v.  Barker,  1  Atk.  49, .  2  J.  C.  145 
26-2 


Page's  case,  5  Co.  53,.. 1  J.  C.  401 

Paine  v.  Martin,  2  Str.  573, 3  J.  C.  247 

Palmer  v.   Ekins,  2  L'd  Raym. 

1551, 1  J.  C.    91 

Palmer  v.  Green  (1 779), C.  &  C.  493 

Palmer  c.  Mason,  1  Atk.  505,  2  J.  C.  202, 203 
Palmer  v.  Williams,  Barnes,  130,  2  J.  C.  261 
Papillon  v.  Voice,  2  P.  Wms. 

476, 3  J.  C.    26 

Parker    v.    Harris,    1   Anst.  180, 

183:  1  Salk.  262, 1  J.  C.  523 

Parker  ®.  Parker,  Hob.  76, C.  &  C.  33& 

Parker  v.  Wells,  1    Durn.    &  E. 

783, C.  &  C.  336- 

Parsons  «.  Loyd,  3  Wils.  346,  ...  2  J.  C.  50- 
Parsons  v.  Briddock,  2  Vern. 

608, 2J.  C.  230 

Patridge  ».  Strange,  Plowd.  88, ..  3  J.  C.  104 
Paul  v.  Jones,  1  Term  R.  599,. ..  1  J.  C.  75 
Pawsnn  v.  Watson,  Cowp.  785, ..  1  J.  C.  351 
Peacocks  *.  Rhodes,  Doug.  636, .  3  J.  C.  263 
Peak  v.  Oldham,  Cowp.  276,...,  C.  &  C.  335 

Pearson  v.  Otway,  2  Wils.  6, 2  J.  C.  398 

Pearson  v.   Parkins,   Bull.  N.  P. 

310, C.  &C.  494 

Pemberton  ».  Shelton,  Cro.  Jac. 

498, 2  J.  C.    18 

People  r.  Denton,  2  J.  C.  275,. ..     2  J.  C.  302 

People  ».  Freer,  C.  &  C.  300, C.  &  C.  411 

People  v. General  Sessions  of  Che- 

nango  Co.  1  J.  C.  179, 3  J.  C.  267 

People    v.    Judges    of    Common 

Pleas,  1  Cai.  511, .:    C.  &  C.  362 

People  v.  Shaw,  1  Cai.  125, C.  &  C.  365 

Percival  v.  Jones,  2  J.  C.  49,...  3  J.  C.  85,  86 
Perkins  v.  Proctor,  2  Wils.  385, 

386,.... 2  J.  C.    51 

Pen-in  ».  Blake, 2  J.  C.  395 

Pettit  0.  Carman, 2  J.  C.  381 

Peyton's  case,  9  Co.  79  b,  ...  3  J.  C.  251,  256 
Phetheon  ®.  Whitmore,  Peake, 

40,.. 3  J.  C.  186,  196 

Phillips  v.  Berry  (or  Bury),  Carth. 

319;    Skin.  493,  514;    1  Salk. 

403;  1  L'd  Raym.  10, C.  &  C.  335. 

336'  2  J   C   143 

Philips  P.  Carew,  1  P.  Wms.  117,  1  J.  C.  433 
Phillips  v.  Crawly,  Freeman,  84, 

2  J.  C.  142,  143,  456 

Phipps  v.  Earl  of  Anglesa,  3  Vin. 

209  pi.  8, 2  J.  C.  359 

Phipps  v.  Stone,  2  Leon.  118, 

2  J.  C.  10;    3  J.C.     74 

Piggot,  ex  dem.  Lee,  v.  Earl  of  Sal- 
isbury, 2  Mod.  115, 1  J.  C.    91 

Pike  v.  Hassen,  3  Lev.  233, 1  J.  C.  47,  88 

Pilford's  case,  10  Co.  116, 2  J.  C.  104 

Pillans  v.   Van  Mierop,  3  Burr. 

1671, C.  &C.  334;  3  J.  C.  31 

Finder  v.  Morris, C.  &  C.  490 

Pinkney  «.   Collins.   1   D.  &  E. 

571, C.  &C.  399 

Pinkney  v.   Hall,    1   L'd   Raym. 

175, 1  J.  C.    54 

Pitsligo's  case,  Fost.   79,  80,  81, 

83,  84,  87,  89 2  J.  C.  270,  271 

Plantamour  ^.Staples.  1  T.  R.  611 

n.  a, 1  J.  C.  295 

Plunket  v.  Kingsland,  4  Bro.  P. 

C.  575,  582, 1  J.  C.  498,  507 

Plunket  v.  Penson,  2  Alk.  51,...    3  J.  C.  317 


CITATIONS. 


Pole  v.   Fitzgerald,  Willes's  Rep. 

647, 1  J.  C.  309 

Pollard  v.  Bell,  8  Term  R,  444,  2  J.  C.  454 
Pope  ^Foster,  4  Term  R.  590,..  2  J.  C.  55 
Popham  v.  Bamfield,  1  P.  Wms. 

54,   59,    note;    Salk.    236;    2 

Vern.  427, ;. 3  J.  C.  22,  26 

Porrier  «.  Carter,  1  H.  Bl.  106...  2  J.  C.  109 

Porter's  case,  1  Co.  18  a, 1  J.  C.  289 

Portsmouth  Lord,  v.  Lord  Effing- 
ham,  1  Vez.  434, 1J.  C.  496,  502 

Post  v.  Wright,  C.  &  C.  183,....  C.  &  C.  427 
Powell  v.  Hankey,  2  P.  Wms.  82, 

3  J.  C.  63,  65 

Power  v.  Wells,  Cowp.  818, 2  J.  C.  254 

Powsley  v.  Blackman,  Palm.  205; 

Cro.  Jac.  659, 1  J.  C.  37,  44,  87 

Preston  v.  Cresmas,  2  Wils.  86, ..  3  J.  C.  247 
Price  v.  James,  2  Bro.  Ch.  R. 

319, -.  1  J.  C.  423 

Prince  v.  Heylin,  1  Atk.  494, .  2  J.  C.  436,  437 
Proctor®.  Johnson,  Salk.  600,...  1  J.  C.  87 
Prudham  v.  Phillips,  Amb.  762, 

763,  . . .  -  2  J.  C.  139, 142,  143,  144,  456 
Prynn  v.  Edwards,  1  L'd  Raym. 

47,..' 2  J.  C.  313 

Putland  v.  Burrows,  3  Bro.  P.  C. 

180,... 1  J.  C.  498 


Quackenbos  ».  Dennis, Col.    50 

Queen  v.  Bedford,  Str.  189, 3  J.  C.  392 

Queen  v.  Brown,  11  Mod.  86, 3  J.  C.  371 

Queen  «.  Page,  5  Co.  53, 3  J.  C.  112,  121 


R 


Ramsden  v.  Jackson,  1  Atk.  293, 

294, 1  J.  C.  278,  493,  503 

Randolph  •».  Brockman,  7  Bro.  1,  1  J.  C.  498 

Rannesey  v.  Parot,  1  Ch.  Cas.  60,  2  J  C.  202 

Ratcliffe's  case,  Fost.  41, 2  J.  C.  296 

Ratcliffe  v.  Davis,  Cro.  Jac.  245,.  3  J.  C.  251 
Ravenscraft  v.   Eyles,   2    Willis, 

294, 2  J.  C.  9,  11 

Rawlin's  case,  1  Leon.  302, 2  J.  C.    29 

Rawlins  v.   Powell,   1   P.  Wms. 

299, 2  J.  C.  101 

Ray's  case,  Cro.  Eliz.  878, 2  J.  C.  316 

Read  v.   Brookman,  3  Term  R. 

151,  155,  157,  158,  159, 2  J.  C.  493, 

496;  3  J.  C.  114,  118. 
Read  v.   Dupper,  6  Durn.  &  E. 

361, C.  &C.  489 

Read  v.  Jones,  Lutw.  166, 2  J.  C.  217 

Reeve     v.    Long,    1    Salk.    228, 

3  J.  C.  22,  24,  26,  27 

Regina  v.  Bedford,  Gilb.  Rep.  K. 

B.297, 3  J.  C.  392 

Regina  v.    Smith,  2  L'd  Raym. 

1144, 1  J.  C.    20 

Reilly  «.  Ward,  1  Bro.  P.  C.  578,  1  J.  C.  523 
Reniger  v.    Fogossa,    Plowd.    5, 

11, 3  J.  C.  246 

Rex  v.  Baillie,  Esp.  Dig.  506, 3  J.  C.  380 

Rex  v.  Bennet,  Say.  169, C.  &  C.  497 

Rex  v.  Croke,  Cowp.  26, 3  J.  C.  108 

Rex  v.  Crosby,  Bull.  N.  P.  236,. .  2  J.  C.  214 

Rex  v.  Griffith,  Sayer,  253, 2  J.  C.  261 


R 


Rex  v.  Harris,  3  Burr.  1330,  1335, 

Col.  128;  C.  &  C.  129;  2  J.  C.  261 

Rex  v.  Home,   Cowp.   682,  687, 

---.  2  J.  C.  339;  3  J.  C.  203 

Rex  v.  Manning,  1  Burr.  377, 3  J.  C.  108 

Rex  v.  Mayor,  &c.  of  Liverpool,  4 

Burr.  2244, 3  J.  C.  108 

Rex  v.  North,  2  Salk.  565, C.  &  C.  440 

Rex  «.  Segar,  Comb.  401, 2  J.  C.  306 

Rex®.  Whitear,  3  Burr.  1366,...     1  J.  C:    20 

Reynel's  case,  9  Rep.  95  a, C.  &  C.  298 

Reynolds  v.  Beering,  3  Term  R. 

188,  note;   Doug.   112,    note, 

3  J.  C.  152,  154 

Rice  v.  Shute,  5  Burr.  2617, 2  J.  C.  383 

Rich  D.  Parker,  7  Term  R.  705, ..  1  J.  C.  344 
Rich  v.  Topping,  Peake,  224;  1 

Esp.  Rep.  176, 3  J.  C.  186,  190 

Ridges  v.  Morrison,  1  Bro.  C.  C. 

391, 2  J.  C.  101 

Rigeway's  case,  3  Co.  52,  56,  ..  2  J.  C.  11,  14 
Right  to.  Darbey  &  Bristow,  1 

Term  R.  159, 1  J.  C.    45 

Right,  ex  dem.  Basset,  ®.  Thomas, 

3  Burr.  1446, 2  J.  C.  397 

Risley  v.  Haines,  Poph.  209, 2  J.  C.    18 

Roach  «.  Garvan,  1  Vez.  159,  2  J.  C.  135,  145 

Roberta's  case,  Kelynge,  26, 2  J.  C.  306 

Robertson  v.   Ewer,   1   Term  R. 

127, 1  J.  C.  302 

Robertson  D.   Stallenge,  7  Co.  43 

* 2  J.  C.  143 

Robinson  v.  Aunts,  1  Sid.  48, 1  J.  C.    71 

Robinson  v.  Bland,  1  Bl.  Rep.  237, 

238,  258, 1  J.  C.  140 

Robinson  «.  Bland,  2  Burr.  1078, 

2  J.C.  366,  367 

Robinson  v.  Gee,  1  Ves.  251, 2  J.  C.  230 

Robinson  v.   Hicks,  3  Bro.   180, 

.,..     1  J.  C.  498,  507 

Rock  v.   Leighton,   Salk.  310;   1 

L'd  Raym.  589, 1  J.  C.  277,  278 

Rodgers  v.  Mayhoe,  Garth.  1,  ...  2  J.  C.  313 
Roe  v.  Quaitly,  1  Term  R.  634,..  3  J.  C.  23 
Roe  ex  dem.  Bree  v.  Lees,  2  Bl. 

Rep.  1172, 1  J.  C.    38 

Roe  ex  dem.   Reade  v.  Reade,  8 

Term  R.  122, 2  J.  C.  324,  325 

Roles  0.  Rosewell,5  Term  R.  538, 

536-540, .     2  J.  C.  406 

Rolleston  v.    Smith,  4  Term  R. 

161, 2  J.  C.  144 

Roll's  case,  Yelv.  218, 2  J.  C.  382 

Ross  v.  Hunter,  4  Term  R.  34,...     1  J.  C.    57 

Rous  v.  Artois,  2  Lev.  45, 1  J.  C.  47,  86 

Rous  v.  Barker,  3  Bro.  P.  C.  183, 

186, 1  J.  C.  507 

Routh  v.  Weddell,  2  Lutw.  1664,     2  J.  C.  102 

Rowland  Veale,  Cowp.  19, 1  J.  C.    20 

Rowley  v.  Raphson,  Skin.  590,..  2  J.  C.  313 
Rudge  9.  Birch, 1  J.  C.  57 

S 

Sadler's  case,  4  Co.  59,  b, 3  J.  C.  367 

Sadock  v.  Burton,  Yelv.  202 1  J.  C.  503 

Saidler  &  Craig  v.  Church, 3  J.  C.  45 

St.  Legar  v.  Adams,  1  L'd  Raym. 

731,. 3  J.  C.  292 

Saloucci  v.  Johnson,  Park.  79, 

169, 1  J.  C.  349,  358;  2  J.  C.    64 

26-3 


CITATIONS. 


s 

Saloucci    v.    Woodmason,   Park. 

528;  7  Term  R.  705, 1  J.C.  342, 

358;  2  J.  C.  147. 


Saltern  t>.  Melhuish,  Amb.  247,..  2  J.  C.  492 
Saunders  v.  Freeman,  Plowd. 

209  2  J.  C.  217 

Saunders  v.  Owen,  Salk.  467, ....  1  J.  C.  290 
Savage  v.  Foster,  9  Mod.  38,  ....  U.  C.  128 
Savage  gui  tarn  ®.  Smith,  2  Bl. 

ftep.  1101, ---  2  J.  C.  54,  57 

Scott  v.  Fenhoullet,  2  Bro.  C.  C. 

69  2  J.  C.  202 

Scott  P.  Godwin,  1  Bos.  &  P.  66,  2  J.  C.  383 
Scott  v.  Sheaman,  2  Bl.  Rep.977, 

2  J.  C.  139,  144,  456 

Scribblehiii  «.  Brett,  1  Bro.  P.  C. 

57  1J.  C.  498,  507 

Seaman  t>.  Raskins,  2  J.  C.  411, ..     3  J.  C.  301 

Seton  v.  Low,  1  J.  C.  1,  2  J.  C.    78 

120,  121,  172. 
Seven  Bishops  Case,  4  St.  Tr.  3  J.  C.  370,  386 

Shaldoe  v.  Ridge,  Yelv.  76, C.  &  C.  365 

Shaw  v.  People, C.  &  C.  365 

Shepherd  ads.   Case,  C.  &  C.  94, 

_ C.  &  C.  461,  464 

Shepherd  v.  Lewis,  Sir  T.  Jones, 

6, 3  J.  C.  251 

Shelley's  Case,  1  Co.  95,  b.  104, 

2  J.  C.  387.  388,  392;  3  J.  C.    26 

Shelty  v.  Wright,  Willis's  Rep. 

Ill, 3  J.  C.  176 

Sheriff  of  Essex's  case,  Hob.  202, 

2  J.  C.  7,  11,  12 

Sherley  v.  Earl  Ferrir,  3  P.  Wms. 

77, 1  J.  C.  433 

Shoplane   t>.    Roydle,   Cro.   Jac. 

98,.. 1J.  C.  218 

Shore  n.  Thomas,  Noy  Rep.  4,...  C.  &  C.  431 
Shudal  «.  Jekyll,  2  Atk.  517,....  2  J.  C.  393 

Sidney's  case,  3  St.  Sr.  817, 3  J.  C.  370 

Skelton  t>.  Bawling,  1  Wils.  358,.  1  J.  C.  278 
Skipwith  v.  Green,  8  Mod.  311, ..  1J.  C.  348 
Skutt  v.  Woodward,  1  H.  Bl. 

238, C.  &C.  388 

Slocum  v.  United  Insurance  Co. 

1  J.  C.  151;  2  J.  C.  263 

Smalley   c.    Kerfoot,    And.   246; 

Str.  1094, 2  J.  C.  18,  22 

Smallman  v.  Brayne,  Colic's  Cas. 

49, 1  J.  C.  507 

Smart  v.  Williams,  Comb.  248,  ..  1J.  C.  231 
Smart  et  al.  v.  Wolfe,  3  Term 

5U), 1J.  C.    18 

Smartel  v.  Williams,  Salk.  246, . .  1J.  C.  88 
Smith  v.  Barrow,  2  Term  R.  476,  2  J.  C.  375 
Smith  v.  Bates  &  Waterbury, 

1795, 2  J.  C.  299 

Smith  v.  Blackman,  1  Salk.  283,.  3  J.  C.  6 
Smith  v.  Dr.  Bochier.  Str.  993...  2  J.  C.  28 
Smith  v.  Chester,  1  Term  R.  655,  3  J.  C.  72 

Smith  v.  Coffin,  I  H.  Bl.  444, 2  J.  C.    19 

Smith  v.  Kendall,  6  Term  R.  123,     3  J.  C.      6 

Smith  v.  Low,  1  Atk.  490, 

1  J.  C.  53;  2  J.  C.  185 

Smith    u.    Murray    &  Mumford, 

Jan'y  Term,  1797, 1J.  C.    19 

Smith  v.  Rawlins,  2  Keb.  126,  pi. 

79, 3  J.  C.  287 

Smither  v.  Lewis,  1  Vern.  399,  . .  2  J.  C.  416 
2G-4 


Southcote  v.  Braithwaite,  1  Term 

R.  624 --     2J.  C.  404 

Spencer  v.  White, C.  &  C.  368,  489 

Spore  v.  Drury,  Cro.  Jac.  569, ...  2  J.  C.  18 
Spurrier  v.  Mayoss,  1  Vesey  Jun. 

527,  531 2  J.  C.  358,  364 

Stace  v.  Mabbot,  2  Ves.  554 1J.  C.  500 

Standish  v.  Radley,  Atk.  178,  1  J.  C.  496,  502 
Stansfield  v.  Johnson,  1  Esp.  101,  C.  &  C.  352 
Staple  v.  Hayden,  6  Mod.  pi.  1,..  1  J.  C.  291 
Staples  v.  Maurice,  4  Bro.  582, 

1  J.  C.  598,  507 

Stapleton  v.  Conway,  1  Ves.  427; 

3  Atk.  727,  ....  2  J.  C.  359,  363,  465,  368 
State  of  Georgia  v.  Brailsford,  3 

Dall.  4, --  3  J.  C.  375 

Staughton  «.  Newcomb.  Cro.  Eliz. 

434, 8  J.  C.  205 

Stedmanfl.  Gooch,  1  Esp.  Cas.  33 

5;  3,  4,  5,  6,..-.  2  J.  C.  441;  3  J.  C.  72 
Stedman  «.  Page,  1  Salk.  391 ;  12 

Mod.  86;  5  Mod.  141;  Comb. 

347, 1  J.  C.  234 

Stent «.  Bailis,  2  P.  Wms.  220,  ..  1  J.  C.  493 

Stile  v.  Smith,  2  Leon.  Ill, C.  &  C.  333 

Still  e.  Wendell,  6  Term  R.  531,.  2  J.  C.  299 

Stockdale's  case, 3  J.  C.  408 

Stowell  v.  Lord  Zouch,  Plowd. 

375, 3  J.  C.  24 

Stranger  v.  Searle,  1  Esp.  Cas.  14, 

15, 2  J.  C.  214 

Sullivan  v.  Montague,  Doug.  108, 

3  J.  C.  152,  153 

Syeds  D.  Hay,  4  Term  R.  260, 

1  J.  C.  407;  2  J.  C.  373 

Sym's  case,  4  Co.  53,  a.  b, 1  J.  C.  91 


Tarlton  v.  Fisher,  Doug.  676, 2  J.  C.  50 

Tassall  v.  Shane,  Cro.  Eliz.  193,  3  J.  C.  247 
Tassell  &  Lee  v.  Lewis,  1  L'd. 

Raym.  743,. 3  J.  C.  8,  9 

Tate  v.  Wellings,  3  Term  R. 

531, 2  J.  C.  55 

Taylor,  ex  dem.  Atkins,  v.  Horde, 

1  Burr.  60, 1  J.  C.  37,43, 

44,49,  95,  289;  2  J.  C.  399 

Taylor  v.  Mather,  3  Term  R.  83, 

1  J.  C.  52,  54,  60,  62 

Taylor  v.  Mills  &  Magnell,  Cowp. 

526, 1  J.  C.  75 

Taylor  v.  Sharp,  3  P.  Wms.  371,  1  J.  C.  502 
Taylor  «.  Tolwin,  Latch.  194,...  C.  &  C.  336 

Teat's  case,  Cro.  Eliz.  7, 1  J.  C.  70 

Tedcastle  t>.  Holwell,  Cro.  Eliz. 

236, 3  J.  C.  229,  232 

Tempest  v.  Metcalf,  1  Wils.  331,.  2  J.  C.  261 
Thelluson  v.  Ferguson,  Doug. 

346, 1  J.  C.  197 

Thellusson  v.  Woodford,  4  Ves. 

Jun.  241,  242,  322,  325,  334, 

335,.... 3  J.  C.  28 

Thompson  v.  Shirley  &  Body,  1 

Esp.  Cas.  31, 1  J.  C.  407 

Thornel  «.  Lassels,  Cro.  Jac.  27, .  3  J.  C.  205 
Thrale  v.  Cornwall,  1  Wils.  165,.  2  J.  C.  336 

Thursby  v.  Plant,  1  Sid.  402, 2  J.  C.  19 

Thynne  v.  Earl  of  Pembroke, 

Dyer,  106, 8  J.  C.    24 


CITATIONS. 


Tilney  «.  Norris,  Salk.  309, 2  J.  C.  19 

Tilly  Mil  v.  Wharton,  2  Vern. 

378,. 1  J.  C.  493 

Tindal  v.  Brown,  1  Term  R.  170, 

171, 3J.  C.  213 

Towers  v.  Barrett,  1  Term  R.  132, 

133, 2  J.  C.  254;  3  J.  C.  82 

Townsend  v.  Hughes,  2  Mod.  1551, 

1552,....  3  J.  C.  384 

Tracy  v.  Cheshue,  2  Keb.  239,__-  3  J.  C.  230 
Trelawney  v.  Thomas,  1  H.  Bl. 

303, C.  &C.  365 

Trevillian  v.  Andrew,  5  Mod.  384,  1  J.  C.  88 
Trevivan  v.  Lawrence,  6  Mod. 

258;  1  Salk.  276, 1J.  C.  91 

Tuchin's  case,  5  St.  Tr.  542,.  3  J.  C.  370,  406 
Tyril  v.  Fletcher,  Cowp.  666; 

Doug.  566, 3  J.  C.  274 

U 

United  Insurance  Co.   v.  Lenox, 

1J.  C.  377, 3J.  C.    43 


Vandenheuvel  v.  Church,  - 


J.  C.  188 
,  185,  188 
133,  134 

J.  C.    75 
&  C.  392 


Vandenheuvel  v-  The  United  Ins. 

Co.  2  J.  C.  127,--.-     2J.  C.  176 
Vandenheuvel  v.  The  United  Ins. 

Co.  2J.  C.  451, 3J.  C 

Vanderheydcn  0.DePaiba,2  Wils. 

530, 1 

Van  Home  v.  Petrie,  C.  &  C.  390,  C. 
Van  Nuys  v.  Terhune,  3  J.  C.  82, 

3  J.  C.  190,  237 

Van    Schaick    v.    King    (Ct.    of 

Errors), C.  &  C.  298 

Varelst®.  Rafael,  Cowp.  325, C.  &  C.  388 

Vasse  v.  Ball,  2  Dall.  51,  194,195, 

270, 2  J.  C.  140,  458 

Venable  v.  Foyle,  1  Ch.  Cas.  2,  3, 

3  J.  C.  317,  320 

Vick    v.   Edwards,   3    P.    Wms. 

373, 1J.  C.    91 

Villers  o.  Monsley,  2  Wils.  403,..     3  J.  C.  364 

Villiers  v.  Villiers,  2  Atk.  71 2  J.  C.  492 

Vintner  v.  Allen,  Carter,  212, 3  J.  C.    74 

Viscount  of  Essex's  case,  1 1  Vin. 

26,  pl.8,_ 2J.  C.      7 

W 

Wagoner  v.  Fish,  8  Co.  121, 2  J.  C.  28 

Walcott  0.  Goulding,  8  Term  R. 

127, 2  J.  C.  406 

Wallcot  v.  Dillon,  1  Lill.  Ent. 

243, C.  &C.  336 

Walker  v.  Constable,  1  Bos.  &  P. 

307, C.  &C.  352 

Walker  v.  Snow,  Palmer,  359, 

2  J.  C.  387;  3  J.  C.  26 

Walker  v.  Witter,  Doug.  1,  5, 

- 1  J.  C.  345;  2  J.  C.  466 

Walton  v.  Shelly,  1  Term  R.  296, 

3  J.  C.  186,  189,  190, 191,  194 

Wallace  v.  Delancey,  7  Term  R. 

266,  note, 1  J.  C.  230,  231 

Wamsley  «.  Child,  1  Ves.  345,-.  _  1  J.  C.  423 

Want's  case,  Moore,  627, 3  J.  C.  397 

Ward  v.  Snell,  1  H.  Bl.  11,  12,  ..  2  J.  C.  104 


W 


Watts  v.  Cresswell,  9  Vin.   Abr. 

415, 1  J.  C.  128 

Way  v.  Modigliani,  2  Term  R.  30, 

1  J.  C.  194,  195 

Webb  v.  Claverdon,  2  Atk,  424,-.  3  J.  C.  236 
Webb  v.  Fox,  7  Term  R.  398, 

U.  C.  401 ;  3  J.  C.  113,  121 

Webster  v.  Scales, 1  J.  C.  57 

Weeden  v.  Lea,  3  Term  R.  41,..  2  J.  C.  316 

Welsh  v.  Hole,  Doug.  238,  C.  &  C.  489 

Weston  v.  Downes,  Doug.  23, 

2  J.  C.  254;  3  J.  C.  82 

Wey  v.  Tally,  6  Mod.  194, 2  J.  C.  336 

Wheatley  v.  Stone,  Hob.  322, U.  C.  218 

Whistler  v.  Webb,  Bunb.  53, 3  J.  C.  319 

Whitacres  v.  Onsley,  Dyer,  322,  .  2  J.  C.  12 
Whitchuch  v.  Golding,  2  P.  Wms. 

541, 1  J.  C.  423 

White  v.  Lightburne,  2  Bro.  P. 

C.  405,  415, 1  J.  C.  498,  507 

Whiting  fl.Sir  G.  Reynal.Cro.Jac. 

657, 3  J.  C.  74 

Whiting  v.  Wilkins,  Bulst.  219,..  2  J.  C.  395 
Wicket  v.  Creamer,  1  L'd  Raym 

439;  1  Salk.  264, 2  J.  C.  262 

Wickham  v.  Taylor,  Sir  T.  Jones, 

168, 3  J.  C.  246,  251 

Wilks  0.  Back, C.  &  C.  354 

Wilkes  v.  Lenson,  Dyer,  169,  a, . .  3  J.  C.  176 
Wilkinson  v.  Coverdale,  Park. 

303, 1  J.  C.  504 

Williams's  case,  1  Leach,  134,  ....  2  J.  C.  343 
Williams  v.  Lee,  3  Atk.  223,  224, 

U.  C.  492,  503 

Williams  v.  Roberts,  Noy.  7, 1  J.  C.  277 

Willis  v.  Jermine,  2  Leo.  97,  ..  1  J.  C.  47,  88 

Willis  ®.Whitewoods,  1  Leo.  312,  1  J.  C.  218 
Willoughby  v.  Brook,  Cro.  Eliz. 

756,  757, 3  J.  C.  176 

Wilson  et  al.  v.  Smith,  3  Burr. 

1550, 1  J.  C.  227 

Wimple  v.  M'Dougal,  C.  &  C.  55,  C.  &  C.  410 
Winch  v.  Keeley,  1  Term  R.  619; 

U.  C.  52,  57,  63, 2J.C.260 

Wishon  v.  Clayton,  1  Lev.  156,..  2  J.  C.  398 

Wither's  case,  3  Term  R.  428, ...  3  J.  0.  408 

Wood  v.  Bevil  (1801), ' C.  &  C.  383 

Wood  v.  Drury,  1  L'd  Raym.  734,  1  J.  C.  231 

Woodf all's  case,  5  Burr.  2661,  ...  3  J.  C.  373 
Woodford  v.  Deacon,  Cro.  Jac. 

206, C.  &C.  336 

Woodwprth  v.  Dole, 2  J.  C.  59 

Wooldridge  v.  Boydell,  Doug.  16, 

1  J.  C.  194,  195 

Wooley  0.  Cobb,  1  Burr.  244, . ...  2  J.  C.  404 
Worseley  v.  Demattos,  1  Burr. 

480,  482 1  J.  C.  493 

Wortley  v.  Birkhead,  2  Ves.  576,  1  J.  C.  496 

Wrenham's  case,  Hob.  227, 3  J.  C.  367 

Wright  v.  Anthony  (1802), C.  &  C.  387 

Wright  v.  Pearson, 2  J.  C.  395 

Wright  v.  Reed,  3  Term  R.  554,  .  3  J.  C.  250 

Wright  v.  Russell,  3  Wils.  530,--  3  J.  C.  59 
Wright  v.  Sherrard,  1  Keb.  877, 

pi.  27, 3  J.  C.  287 

Wych  <o.  Meal,  3  P.  Wms.  311, 

note, 3  J.  C.  319 

Wyndham  v.  Chetwynd,  1  Burr. 

414, 1  J.  C.  166 

Wyvil  v.  Stapleton,  1  Strange, 

617, 1  J.  C.  523 

2G-5 


xxxii 


CITATIONS. 


Yates  «.  Hambly,  2  Atk.  238, 3  J.  C.  317 

Younff  v.  Canada  (1802), C.  &  C.  383 

Young  v.  Hockley,  2  Wils.  347,  - .     1J.  C.    75 


Zouch  v.  Parsons,  3  Burr.  1804,  .     1J.  C.  127 


ACTS  OF  THE  LEGISLATURE  CITED. 


Act  of  Feb.  12, 1777, C.  &  C.    90 

Act  of  Nov.  23,  1784, 1  J.  C.  499 

Act  of  Feb.  23,  1786, 2  J.  C.  386,  391 

Act  of  Apr.  4,  1786, ..  C.  &  C.  83;  3  J.  C.  235 

Act  of  Feb.  12,  1787, 1  J.  C.  221 

Act  of  March  3, 1787, U.  C.  164 

Act  of  Feb.  22,  1788, 2  J.  C.    90 

Act  of  Jan.  24,  1797, C.  &  C.    89 

Act  of  Apr.  5,  1798,...  2  J.  C.  208;  3  J.  C.  74 

Act  of  Mch.  30,  1799, 2  J.  C.  208 

9    Sess.  c.  12,  s.    2, 2  J.  C.  386,  391 

9  Sess.  c.  12,  s.    5, 3  J.  C.    26 

10  Sess.  c.  72, 2  J.  C.  210 


11  Sess.  c.  2,  s.  4, 2  J.  C.    28 

11  Sess.  c.  7, 2  J.  C.    24 

11  Sess.  c.  36,  s.  13, :  2  J.  C.    24 

11  Sess.  c.  65, 2  J.  C.  208 

11  Sess.  c.  73,  s.  1, 3  J.  C.    27 

11  Sess.  c.  91, 2  J.  C.  208 

24  Sess.  c.  9,  s,  6,  3  J.  C.  235 

24  Sess.  c.  28,  s.  13, 2  J.  C.  244 

24  Sess.  c.  90, 2  J.  C.  406 

24  Sess.  c.  90,  s.  13, 2  J.  C.  339 

24  Sess.  c.  91,-. 3  J.  C.    74 

34  Sess.  c.  170,  s.  5-8, 3  J.  C.  140 


SESSION  LAWS  CITED. 


Laws  of  New  York,  Vol.   1,  p. 

184, - 2  J.  C.  307 


Laws  of  New  York,  Vol.  4  p.  476, 

Ch.  XCIII, C.  &  C.  485 

Laws  of  New  York,  Vol.  1,  p.  276,     3  J.  C.  235 


REVISED  LAWS  CITED. 


1  Rev.  Laws,  133, 1  J.  C.  415 

1  Rev.  Laws,  349, 2  J.  C.  406 

1  Rev.  Laws,  350, 3  J.  C.    74 


1  Rev.  Laws,  353, 1J.  C.    20 

1  Rev.  Laws,  497, C.  &  C.  362 

2  Rev.  Laws,  352,  353,  §§  44,  45,     1  J.  C.  129 


ACTS  OF  CONGRESS  CITED. 
Act  of  May  26,  1790, 2  J.  C.  258  I  Act  of  April  5,  1800,. 


2  J.  C.  403 


Laws  of  U.  S.  Vol.  1,  p.  115,....     2  J.  C.  258   Laws  of  U.  S.  Vol.  4,  p.  204,  3  J  C  375 

Laws  of  U.  S.  Vol.  2,  p.  476,....     3  J.  C.  120   Laws  of  U.  S.  Vol.  5,  p.  60,..          3  J.  C.  204 


UNITED  STATES  CONSTITUTION  CITED. 
Article  4, 2  J.  0.  258 


COLEMAN.  N.  Y.  REP.,  BOOK  1.  2*  27 


CASES  OF  PRACTICE 


ADJUDGED 


THE  SUPREME  COURT 


OF   THE 


STATE  OF  NEW  YORK, 


TOGETHER   WITH   THE 


RULES  AND  ORDERS  OF  THE  COURT, 


From  October  Term  1791  to  October  Term  1800, 


BY 


WILLIAM  COLEMAN,  Esq., 


Counselor  at  Law. 


AD   SERIA   DUCENT.  HjE   KUOJE.      Hor 


PREFACE. 


ALONG  preface  to  so  small  a  book  may 
afford  occasion  to  remark  that  the  vesti- 
bule is  disproportionate  to  the  edifice.  But  it 
is  necessary  to  say  something  explanatory,  and 
something  by  way  of  acknowledgment  for  the 
assistance  I  have  received. 

It  was  originally  intended  that  the  following 
Cases  of  Practice  should  be  comprised  in  the 
same  volume  with  The  Reports  of  Adjudged 
Cases;  but  besides  that  this  might  be  objection- 
able with  gentlemen  living  out  of  the  State  of 
New  York,  a  compilation  of  the  decisions  on 
practice  was  desirable  earlier  than  a  large  vol- 
ume could  be  prepared  in  a  manner  either  sat- 
isfactory to  the  bar  or  reputable  to  the  reporter. 
A  volume  of  reports,  it  is  intended,  shall  follow 
with  all  possible  expedition. 

I  have  with  pleasure  to  acknowledge  the 
obligations  I  am  under  to  the  judges  of  the 
court  for  the  trouble  they  have  individually 
and  collectively  bestowed  on  the  manuscript 
containing  most  of  the  cases ;  and  this  in  a 
manner  to  enhance  my  sense  of  the  favor.  I 
cannot,  without  apparent  want  of  gratitude, 
particularize,  but  it  would  be  neither  just  nor 
grateful  not  to  mention  the  obligations  I  am 
under  to  His  Honor  the  Chief  Justice  and  to 
Mr.  Justice  BENSON.  The  former  has  furnished 
me  with  large  extracts  from  his  early  minutes 
written  with  his  own  hand,  and  the  latter  in 
addition  to  this  has  taken  the  pains  to  frame 
several  entire  reports.  These  I  have  committed 
to  the  press  as  I  received  them,  without  even  a 
verbal  alteration;  and  they  are  designated  by 
an  initial  of  his  name. 

My  first  object  has  been  to  state  facts  with 


perspicuity  and  precision  ;  and  to  do  this  I  have 
thought  proper  to  reject  all  immaterial  or  im- 
pertinent circumstances,  and  it  has  been  my 
endeavour  to  couch  the  decision  in  such  terms 
as  to  bear  on  the  immediate  question  before  the 
court.  This  in  many  instances  I  have  found 
already  done  to  my  hands  in  the  Judge's  notes; 
but,  except  in  the  cases  before  mentioned,  I 
have  always  assumed  the  liberty  of  modeling 
the  period  or  amending  the  phraseology,  so  as 
to  meet  my  own  conceptions  of  what  was  most 
precise  and  accurate. 

After  all  my  attention  to  render  the  book 
correct,  it  is  probable  that  many  errors  may 
have  escaped  me.  I  shall  feel  obliged  to  any 
gentleman  who  will  point  them  out,  and  they 
shall  be  corrected  on  some  future  occasion, 
when  an  additional  number  of  cases  will  ena- 
ble me  to  form  the  whole  into  a  larger  volume. 
Some  are  here  reported  which  might,  perhaps, 
be  thought  not  strictly  to  belong  to  Cases  of 
Practice.  Several  of  them  appeared  to  me  of 
doubtful  complexion,  but  in  compliance  with 
the  opinion  of  those  whom  I  consulted,  I 
have  preferred  printing  them  here;  and  should 
it  be  desired,  they  may  hereafter  appear  among 
the  Adjudged  Cases,  where  I  shall  endeavour  to 
give  the  arguments  of  the  counsel  more  at 
length  than  I  felt  authorized  to  do  in  a  work 
which  professes  to  state  no  more  than  notes  of 
practice. 

On  the  whole,  I  present  the  book  to  the  pro- 
fession, hoping  they  will  not  be  disappointed 
in  their  expectations  of  its  usefulness. 

W.  C. 


EULES  OF  THE  SUPREME  COURT. 


i*] 


*  APRIL  TERM,  1796. 


ARDERED.— I.  That  every  rule  to  which  a 
U  party  would,  according  to  the  practice  of 
the  court,  be  entitled  of  course,  without  show- 
ing special  cause,  shall  be  denominated  a  com- 
mon rule,  and  every  other  rule  shall  be  denomi- 
nated a  special  rule.  That  all  common  rules, 
and  all  rules  by  consent  of  parties,  shall  be  en- 
tered with  the  clerk  at  his  office,  in  a  book  to 
be  provided  by  him  for  the  purpose,  and  may 
be  entered  at  any  time,  as  well  in  vacation  as 
during  a  term,  and  the  day  when  the  rule  shall 
be  entered  shall  be  noted  therein:  This  rule, 
however,  to  be  confined  to  actions  in  ejectment, 
and  personal  actions  only,  so  that  rules  in  real 
actions  shall  be  taken  on  motion  in  open  court, 
as  heretofore  hath  been  usual. 
2*]  *II.  That  every  common  rule  shall  be 
deemed  t6  be  taken  at  the  peril  of  the  party 
taking  the  same,  and  therefore  the  clerk  shall  al- 
ways enter  such  rule  as  the  party  shall  move  for. 
But  if  the  opposite  party,  not  having  done  an 
act  to  be  considered  as  an  affirmance  of  the 
rule,  or  suffered  a  lache,  shall,  on  special  motion 
for  the  purpose,  show,  that  by  reason  of  any 
irregularity  or  insufficiency  in  the  proceedings, 
or  by  reason  of  any  other  matter,  the  party 
taking  the  rule  were  not  entitled  thereto,  the 
court  may  order  the  rule,  and  any  judgment  or 
execution  consequent  thereon,  to  be  vacated, 
and  make  such  other  and  further  order  thereon 
as  right  between  the  parties  may  (in  the  re- 
spective cases)  require. 

III.  That,  as  in  the  case  of  every  other  plead- 
ing, the  party  is  not  entitled  to  take  a  rule 
against  the  opposite  party  to  answer,  until  the 
pleading  to  be  answered  shall  be  filed,  so  the 
plaintiff  shall  not  be  entitled  to  take  a  rule 
against  the  defendant  to  plead,  until  the  declara- 
tion shall  be  filed. 

IV.  That  the  rule  to  plead,  and  every  other 
rule  to  answer,  comprehending  the  rule  in  eject- 
ment for  the  tenant  to  appear  and  enter  into 
the  consent  rule,  and  the  rule  on  a  scire  facias 
3*]  for  the  defendant  to  plead,  shall,  *in  eject- 
ment or  scire  facias,  be  a  rule  of  twenty  days 
from  the  day  when  the  same  shall  be  entered, 
and  in  all  other  cases,  shall  be  a  rule  of  twenty 
days  after  service  of  a  notice  thereof,  and  of  a 
copy  of  the  pleading  to  be  answered;  except 
that  the  rule  to  join  in  demurrer  to  a  plea  in 
abatement,  and  the  rule  on  scire  facias  for  the 
defendant  to  appear,  shall  be  rules  of  four  days 
only;  and  except,   further,  that  the  plaintiff 
shall  not  be  held  to  accept  a  plea  in  abatement 
after  four  days  from  the  day  of  the  service  of  a 
notice  of  the  rule  to  plead  and  a  copy  of  the 
declaration.     And  where  there  shall  have  been 
a  judgment  of  respondeas  ouster,  on  a  demurrer 
to  a  plea  in  abatement,  the  plaintiff,  having 
served  the  defendant  with  a  notice  of  the  judg- 
ment, shall  not  then  be  held  to  accept  of  any 
answer  to  the  declaration  after  four  days  from 
the  day  of  the  service  of  such  notice. 


V.  That  if    the   attorney   for  the  plaintiff 
shall  not  have  received  a  notice  in  writing  from 
an  attorney,  that  he  is  retained  to  defend  the  suit, 
then,  in  every  such  case,  if  the  service  of  the 
notice  of  the  rule  to  plead,  and  of  a  copy  of 
the  declaration,  shall  not  have  been  on  the  de- 
fendant personally,  the  service  may  be,  if  the 
defendant  shall  be  returned  in  cmtodia,  on  the 
sheriff,  or  one  of  his  deputies;  *and  if  the  [*4 
defendant  shall  be  returned  cepi  corpus,  the  ser- 
vice of  a  copy  of  the  declaration  shall  not  be 
necessary,  and  the  service  of  a  notice  of  the  rule 
to  plead  may  be  by  affixing  the  same  in  some 
conspicuous  place  in  the  clerk's  office; '   and 
where  special  bail  shall  not  be  required,  and 
the  writ  shall  be  accordingly  returned,  with  the 
defendant's  appearance  indorsed,  the  plaintiff 
may  cause  the  defendant's  appearance  to  be  en- 
tered in  the  book  for  entering  common  rules, 
and  in  such  case  also  the  like  service  as  is  last 
specified  shall  be  sufficient. 

VI.  That  the  defendant   having    appeared 
either  by  filing  common  bail  or  having  an  ap- 
pearance entered  in  the  book  for  entering  com- 
mon rules,  or  if  special  bail  is  required  in  the 
cause,  by  putting  in  special  bail,  and  the  bail, 
if   excepted  to,  justifying,  may  at  any  time 
thereafter  take  a  rule  against  the  plaintiff,  to 
declare  before  the  end  of  the  term  next  follow- 
ing after  service  of  the  notice  of  the  rule.  2 

VII.  That  if  the  plaintiff  «hall  make  default 
in  not  declaring,  then  the  defendant,  or  if  the 
plaintiff  or  defendant,  whichever  may  be  the 
party,  shall  make  default  in  not  answering,  then 
the  opposite  party  may  have  the  default  entered 
*in  the  book  for  entering  common  rules;  but  [*5 
where  the  previous  service  of  a  notice  of  a  rule, 
copy  of  pleading,  or  of  any  other  matter  shall 
be  requisite,  the  default  shall  not  be  entered 
unless  an  affidavit  of  such  service  shall  be  filed ; 
neither  shall  it  be  entered  if  special  bail  is  re- 
quired in  the  cause,  and  although  twenty  days 
from  the  service  of  the  notice  of  the  rule  to 
plead  may  have  expired,  until  four  days  after 
notice  of  bail  shall  have  been  received;  and  if 
bail  shall  be  excepted  to,  then,  not  until  four 
days  after  the  bail  shall  have  justified. 

VIII.  That  the  default  being  duly  entered, 
the  party  who  shall  have  had  it  entered  shall 
not  be  held  afterwards  to  accept  a  declaration 
or  answer,  as  the  default  shall  happen  to  be, 
and  may  at  any  time,  after  four  days  in  term 
shall  have  intervened  thereafter,  have  a  rule 
entered  for  such  jndgment,  as  is  to  be  rendered 
by  law,  by  reason  of  the  default.     Provided, 
nevertheless,  That  the  court  in  term,  and  a 
judge  in  vacation,  may,  on  motion  of  the  plaint- 
iff, against  whom  the  rule  to  declare,  or  of  the 

1.— In  July  Term,  1802,  it  was  decided  that  by  this 
rule  the  declaration  might,  in  all  cases,  be  served  on 
the  defendant  in  person,  if  no  attorney  be  employed. 

2.— In  August  Term,  1804  (Gardiner  v.  Buel),  it  was 
decided  that  the  words  "or  judgment  of  non  pros," 
added  to  this  rule,  were  surplusage,  and  did  not  vi- 
tiate or  destroy  ite  effect. 

31 


RULES  OF  THE  SUPREME  COURT. 


1796 


plaintiff  or  defendant,  against  whom  the  rule 
to  answer  may  have  been  taken,  at  any  time 
before  the  default  shall  be  entered,  make  such 
order  for  enlarging  the  time  to  declare  or  to 
answer,  as  shall  be  judged  reasonable  in  the 
6*]  case.  And  provided, further,  that  the 'plaint- 
iff may  at  any  time  before  the  default  for  not 
replying  shall  be  entered,  if  the  plea  shall  be  a 
special  plea,  or  a  plea  in  abatement,  or  within 
twenty  days  after  service  of  a  copy  of  the  plea, 
if  it  shall  be  the  general  issue,  amend  the  declara- 
tion; and  the  rule  to  plead,  which  may  have 
been  taken  against  the  defendant,  shall  then  be 
deemed  to  be  only  from  the  day  of  the  service 
of  the  copy  of  the  amended  declaration;  and  in 
like  manner  where  there  shall  be  a  demurrer  to 
a  declaration,  or  any  other  pleading  not  being 
a  plea  in  abatement,  the  party  against  whom 
the  demurrer  shall  be  taken,  may,  at  any  time 
before  the  default  for  not  joining  in  demurrer 
shall  be  entered,  amend  the  pleading  demurred 
to;  and  further,  the  respective  parties  may 
amend  of  course  and  without  costs,  but  shall 
not  be  entitled  so  to  amend  more  than  once.1 

IX.  That  if  the  defendant  shall  plead  the 
general  issue,  and  if  the  plaintiff  shall  not 
within  twenty  days  after  service  of  a  copy  of 
the  plea,  either  demur  thereto  or  amend  the 
declaration,  or  if  either  party  shall  in  pleading, 
in  any  degree  after  the  plea,  tender  an  issue  to 
the  country,  and  if  the  opposite  party  shall  not 
demur  to  the  pleading  within  twenty  days  after 
service  of  a  copy  thereof,  the  cause  shall,  in 
7*]  each  of  these  cases,  be  'deemed  to  be  at 
issue:  and  if  a  cause  shall  be  put  at  issue  in  the 
vacation,  or  if  it  shall  be  put  at  issue  in  term, 
and  there  shall  not  be  four  days  in  term  there- 
after, then  in  these  two  cases  the  four  first  days 
an  the  next  term,  qr  if  it  shall  be  put  at  issue  in 
term,  and  there  shall  be  at  least  four  days  re- 
maining in  term  thereafter,  then  in  this  case  the 
days  so  remaining  in  term  shall  be  the  time 
limited  to  maintain  a  rule  for  a  commission  to 
examine  witnesses,  or  for  a  view,  or  for  a  struck 
jury,  whereby  the  defendant,  obtaining  the 
rule,  may  stay  the  plaintiff  from  bringing  the 
cause  on  to  trial,  or  whereby  the  plaintiff  ob- 
taining the  rule  may  stay  the  defendant  from 
serving  a  notice  to  bring  the  cause  on  to  trial; 
and  where  the  rule  shall  be  subsequently  ob- 
tained by  the  defendant,  the  plaintiff  may  bring 
the  cause  on  to  trial,  and  where  it  shall  be  so 
obtained  by  the  plaintiff,  the  defendant  may 
serve  a  notice  to  bring  the  cause  on  to  trial, 
and  be  entitled  to  judgment  thereupon,  not- 
withstanding the  commission  may  not  be  re- 
turned, or  the  jury  may  not  be  ballotted  for  the 
view,  or  may  not  be  struck,  as  the  case  maybe; 
and  if  at  the  time  of  giving  notice  'of  trial,  the 
jury,  on  such  subsequent  rule  obtained  by  the 
defendant,  shall  not  be  ballotted  for  the  view, 
or  not  be  struck,  as  the  case  may  be,  the  plaint- 
8*]  iff  may  proceed  to  trial  on  the  ordinary 'ju- 
ry process;  but  if  the  rule  shall  be  obtained 
within  the  time  above  limited,  and  there  shall 
be  a  delay  in  the  party  obtaining  the  rule,  to 

1.— In  January  Term,  1800,  it  was  decided  that  a 
party  cannot  add  a  new  plea  by  way  of  amendment. 
In  August  Term,  1804  (Clinton  r.  Porter),  it  was  decid- 
ed that  a  rule  to  amend  is  to  be  entered,  t  h<  u urh  it 
be  a  rule  of  course,  and  no  new  rule  to  plead  need 
be  entered.  Whenever  the  plaintiff  amends  his 
declaration,  the  defendant  has  his  election  to  plead 
Oe  novo.  1  Caines,  153. 

32 


have  the  commission  returned,  or  to  have  the 
jury  ballotted  for  the  view,  or  struck,  the  court 
may,  on  motion  of  the  other  party,  order  the 
rule  to  be  discharged,  and  otherwise,  and  fur- 
ther order,  as  the  case  shall  be  judged  to  re- 
quire. 

X.  That  where  a  cause  shall  be  removed  from 
an  inferior  court,  by  habeas  corpux,  if  the  de- 
fendant shall  not  in  twenty  days  after  the  ser- 
vice of  the  notice  of  the  rule  to  appear,  or  that 
a  procedendo  issue,  put  in  bail;  or  if  the  bail  be- 
ing excepted  to,  shall  not,  within  four  days 
after  service  of  the  notice  of  excepting,  justify 
in  double  the  amount  of  the  sum  in  the  writ  of 
the  court  below,  the  plaintiff  may  then,  on  filing 
an  affidavit  of  service  of  the  notice  of  the  rule 
to  appear,  and  purporting  also  that  no  notice  of 
bail  hath  been  received,  or  if  bail  hath  been  put 
in,  that  the  bail  hath  been  excepted  to,  and  hath 
not  justified  within  four  days  after  service  of 
the  notice  of  excepting,  have  the  default  of  the 
defendant  in  not  appearing,  entered,  and  may 
thereupon,  at  any  time  thereafter,  take  out  a 
prowdendo  of  course,  and  without  waiting  until 
the  term  after  the  'default  shall  be  entered,  [*$> 
if  it  shall  be  entered  in  the  vacation. 

XI.  That  where  any  writ,  returnable  in  this 
court,  shall  not  have  been  returned  on  the  day 
of  the  return  thereof,  the  party  who  may  have 
sued  out  such  writ,  may  then  take  out  a  rule 
against  the  officer  or  person  required  to  make 
return  of  such  writ,  to  return  the  same  within 
twenty  days  after  service  of  notice  of  the  rule, 
or  that  an  attachment  will  be  issued  against 
him;  and  if  the  writ  shall  not  thereupon  be  re- 
turned, the  party  taking  the  rule  may  at  any 
time  after  the  expiration  thereof,  and  on  filing 
an  affidavit  of  service  of  notice  thereof,  have 
the  default  of  the  officer  or  person  in  not  re- 
turning the  writ,  entered,  and  may  at  any  time 
thereafter,  and  without  waiting  until  the  term 
after  the  default  shall  be  entered,  take  out  an 
attachment  of  course. 

XII.  That  no  private  agreement  or  consent 
between  the  parties,  in  respect  to  the  proceed- 
ings in  the  cause,  shall  be  alleged  or  suggested 
by  either  of  them  against  the  other,  unless  the 
same  shall  have  been  reduced  to  the  form  of  a 
rule  by  consent,  and  entered  accordingly  in  the 
book  for  entering  common  rules,  or  unless  the 
evidence  thereof  shall  be  in  writing,  subscribed 
*by  the  party  against  whom  it  shall  be  so  [*1O 
alleged  or  suggested. 

XIII.  That  if  the  want  of  an  original  bill 
shall  be  assigned  for  error  on  a  judgment  had 
in  this  court,  upon  confession,  nil  dicit,  or  non 
sum  informatus,  the  plaintiff  in  this  court  may 
file  an  original  bill  as  of  course,  and  nunc  pro 
tune,  as  of  the  term  when  the  suit  was  com- 
menced. 

XIV.  That  no  issues  shall  be  tried  at  the  bar 
of  the  court  after  the  first  week  in  term,  unless 
by  special  leave  of  the  court,  for  that  purpose 
obtained. 


OCTOBETERV,  1797. 


ARDERED.— I.  That  no  person  shall  here- 
by after  be  admitted  to  practice  as  an  attorney 
of  this  court  unless  he  shall  have  served  a  reg- 
ular clerkship  of  seven  years  with  a  practicing 

COLEMAN 


1796 


RULES  OF  THE  SUPUKME  COUKT. 


10 


-attorney  of  this  court;  but  any  portion  of  time, 
not  exceeding  four  years,  during  which  a  per- 
son, after  he  shall  be  fourteen  years  of  age, 
shall  have  regularly  pursued  classical  studies, 
<shall  be  accepted  in  lieu  of  an  equal  portion  of 
11*]  time  *of  clerkship.  And  the  attorney  with 
whom  the  person  is  to  serve  the  clerkship  shall 
file  a  certificate  in  the  office  of  one  of  the  clerks 
of  this  court,  certifying  that  the  person  hath 
•commenced  a  clerkship  with  him,  and  the  clerk- 
ship shall  be  deemed  to  have  commenced  on  the 
•day  of  the  filing  of  such  certificate;  and  if  the 
•cleVkship  shall  be  intended  to  be  for  less  than 
seven  years,  by  raison  that  the  person  hath 
pursued  classical  studies  for  a  portion  of  time 
.as  above  mentioned,  then  an  application  shall 
be  first  made  to  a  judge,  who,  on  examination 
of  the  matter,  shall  make  an  order  to  be  an- 
nexed to  the  certificate,  purporting,  that  it  hath 
satisfactorily  appeared  to  him,  that  the  person 
hath  pursued  classical  studies,  after  he  was 
fourteen  years  of  age,  for  such  a  period  of 
time,  not  exceeding  four  years,  as  shall  be 
specified  in  the  order,  and  thereupon  ordering 
that  the  clerkship  in  such  case  may  be  for  a 
term  which  shall  remain  after  deducting  from 
seven  years,  the  time  so  to  be  specified  in  the 
order.  And  every  person  who  shall  be  so  ad- 
mitted to  practice  as  an  attorney,  and  having 
practiced  for  four  years,  shall  be  entitled  of 
•course  to  be  admitted  to  practice  as*counsel. 

II.  That  every  person  who  shall  have  regu- 
larly pursued  juridicial  studies  under  the  di- 
1 2*]  rection  *or  instruction  of  a  professor  or 

a  counselor  at  law  for  four  years,  or  shall  have 
been  admitted  to  the  degree  of  counselor  at 
law,  either  in  this  State  or  elsewhere,  shall  be 
admitted  to  practice  as  counsel  in  this  court. 

III.  That  no  person  who  shall  be  admitted 
to  practice  as  counsel,  in  consequence  of  either 
of  the  above  two  rules,  shall  thereafter  practice 
.also  as  an  attorney.1 

IV.  That  neither  of  the  above  three  rules 
shall  be  deemed  to  affect  any  person  who  shall 
already  have  commenced  a  clerkship,  but  every 
such  person  shall  be  admitted  to  practice  as  an 
attorney,  and  also  as  counsel,  in  like  manner 
as  if  the  said  three  rules  had  not  been  made. 

V.  That  every  rule  heretofore  made,  respect- 
ing the  admission  of  persons  who  may  have 
served  a  clerkship  or  been  admitted  to  practice 
•as  attorneys    or    counsel  in  another  State,  to 
practice  as  attorneys  or  counsel  in  this  court, 
shall  cease. 

1.— This  and  the  rule  immediately  before  it  have 
been  repealed. 


13*] 


* JANUARY  TERM,  1799. 


ORDERED.— I.  That  the  following  enumer- 
ated motions,  to  wit,  all  motions  to  bring  on 
to  be  argued  a  question  arising  on  special  ver- 
dict, case  reserved  at  the  trial,  case  agreed  be- 
tween the  parties  without  trial,  demurrer  to  ev- 
idence or  pleadings,  writ  of  error,  or  writ  in 
the  nature  of  a  writ  of  error,  comprehending 
the  writ  of  mandamv*,  and  all  motions  to  set 
aside  nonsuit,  verdict,  inquisition  or  report, 
COI.EMAN.  N.  Y.  REP.,  BOOK  1. 


otherwise  than  for  irregularity  only,  shall  be 
heard  according  to  the  priority  of  the  time 
when  the  question  arose;  the  evidence  of  which, 
when  two  or  more  causes  shall  be  moved  in, 
before  leave  granted  in  any  one  of  them  to  be 
heard,  shall  be  a  notice  thereof  in  writing, 
signed  by  the  attorney  in  the  cause. 

II.  That  with  respect  to  all  other  motions, 
the  motion  first  made  shall  be  first  heard,  and 
they  shall  have  preference  to  the  enumerated 
motions;  but  if,  there  not  being  any  non-enu- 
merated motion  about  to  be  heard,  the  court 
shall  proceed  to  hear  an  enumerated  motion, 
then  all  the  non-enumerated  motions  shall  lose 
their  preference  for  the  day. 

*III.  That  in  cases  of  special  verdict,  [*14 
demurrer  to  evidence,  cause  reserved  at  the  trial, 
and  motion  to  set  aside  nonsuit  or  verdict,  the 
question  shall  be  deemed  to  have  arisen  on  the 
day  when  the  verdict  in  the  cause  was  taken,  or 
nonsuit  was  granted — in  cases  of  demurrer  to 
pleadings  or  writ  of  error,  or  writ  in  the  nature 
of  a  writ  of  error,  the  day  when  the  joinder  in 
demurrer,  or  joinder  in  error  was  received  by 
the  party  demurring,  or  having  assigned  the 
errors — and  in  cases  of  return  to  any  such  writ 
and  no  rejoinder  of  error  on  the  record,  or  mo- 
tion to  set  aside  inquisition  or  report,  the  day 
when  the  writ  with  the  return,  or  when  the  in- 
quisition or  report,  was  filed. 

IV.  That  where  it  shall  be  intended  that  a 
default,  nonsuit,  verdict,  inquisition,  report, 
judgment,  execution,  or  other  proceedings, 
should  be  set  aside,  the  matter  shall  always  be 
brought  before  the  court,  on  a  notice  of  a  mo- 
tion for  that  purpose,  so  that  the  practice  which 
hath  sometimes  taken  place  in  those  cases,  of 
obtaining  a  rule  against  the  opposite  party  to 
show  cause,  shall  in  future  be  discontinued; 
and  instead  thereof,  the  party  intending  the 
motion,  may  apply  to  a  judge  at  his  chambers, 
or  to  the  recorder  of  New  York,  for  a  certifi- 
cate *(and  which  either  of  them  may  in  [*15 
discretion  grant)  certifying  that  there  is  prol>- 
able  cause  for  staying  further  proceedings  until 
the  order  of  the  court  on  the  motion ;  and  a 
service  of  a  copy  of  the  certificate,  at  the  time 
of  or  after  the  service  of  the  notice  of  the  mo- 
tion, shall  thenceforth  stay,  all  further  proceed- 
ings accordingly;  but  if  such  party  shall  neglect 
to  bring  on  the  motion  to  be  heard  during  the 
term,  then  the  proceedings  shall  not  be  longer 
stayed,  and  he  shall  moreover  be  liable  to  pay 
costs  to  the  other  party  for  not  having  brought 
on  the  motion  according  to  notice.1 


1.— In  January  Term,  1800  (Case  v.  Shepherd),  it 
was  decided  that  a  party  to  whom  a  judg-e  refuses 
an  order  to  stay  proceedings,  may  appeal  to  the 
court  for  such  order ;  but  if  no  order  be  obtained, 
and  judgment  be  entered  at  the  time  the  motion  is 
made  to  set  aside  the  verdict,  &c.,  the  motion  then 
comes  too  late. 

In  Rathbone  v.  Comstock,  February,  1806,  it  was 
decided  that  a  motion  to  set  aside  a  report  of  ref- 
erees must  be  made  at  the  next  term  after  the  re- 
port is  made.  1  Johnson,  138.  It  is  so  as  to  all  other 
motions  to  set  aside  proceedings,  &c.,  unless  some 
sufficient  excuse  be  shown  for  the  delay. 

In  January  Term,  1803,  it  was  decided  that  a  judge 
who  grants  an  order  in  vacation  may  revoke  it  in 
the  same  vacation ;  but  the  court  will  not  take  it  into 
consideration,  whether  the  order  was  or  was  not  fitly 
obtained.  It  must  stand  until  the  main  question 
be  disposed  of. 

A  judge's  certificate  of  probable  cause  does  not 
stay  the  proceedings  unless  it  be  accompanied  with 
a  notice  of  the  motion.  1  Caines,  506. 

8  33 


15 


KULES  OF  THE  SUPREME  COURT. 


V.  That  the  practice  of  entering  a  rule,  as- 
signing a  day,  or  setting  down  a  cause  for  ar- 
gument, shall,  in  future,  be  discontinued,  and 
instead  thereof,  an  argument  shall  always  be 
brought  on  to  be  heard  in  consequence  of  a 
notice  for  that  purpose;  and  every  notice  of  a 
motion  or  argument  shall  be  for  the  first  day 
in  term,  or  tor  as  early  a  day  in  term  there- 
after as  the  circumstances  of  the  case  will 
reasonably  permit;  and  whenever  a  motion  or 
argument  shall  go  off  from  day  to  day,  it  shall 
still   be    entitled  to  be  heard  on   the   notice, 
16*]  *  without  the  necessity  of  a  rule  for  en- 
larging the  time  to  hear  it. 

VI.  That  whenever  it  shall  be  intended  to 
move  to  set  aside  a  nonsuit  or  verdict,  there 
shall,  in  future,  instead  of  the  report  of  the 
judge,  where  the  same  would  heretofore  have 
been  requisite,  be  a  case,  to  be  prepared  by  the 
party  intending  the  motion,  and  a  copy  thereof 
to  be  served  on  the  opposite  party  within  two 
days  after  the  trial,  and  which  opposite  party 
may,   within    four    days    thereafter,   propose 
amendments  thereto,  and  serve  a  copy  on  the 
party  who  prepared  the  case,  and  who  may 
then,  within  four  days  thereafter,  serve  the  op- 
posite party  with  a  notice  to  appear  within 
convenient  time,  not  less  than  four  days,  nor 
beyond  the  first  day  of  the  then  next  ensuing 
term,  before  the  judge  who  tried  the  cause,  to 
have  the  case  and  amendments  corrected,  and 
the  judge  shall  thereupon  correct  the  same,  as 
he  ^hall  deem  to  consist  with  the  truth  of  the 
facts;  but  if  the  parties  shall  omit  within  the 
several  times  above  limited,  unless  the  same 
shall  be  enlarged  by  a  judge,  or  the  recorder  of 
New  York,  the  one  party  to  propose  amend- 
ments, and  the  other  to  notify  an  appearance 
before  the  judge,  they  shall  respectively  be 
deemed,   the  fdrmer  to  have    agreed  to'  the 
17*]  *case  as  prepared,  and  the  latter  to  have 
agreed  to  the  amendments  as  proposed. 

VII.  That  where  there  shall  be  a  rule  to 
show  cause,  or  a  notice  of  a  motion  or  argu- 
ment, if  the  part}-  on  whom  the  rule  or  notice 
shall  have  been  served  shall  not  appear  to  show 
cause,  or  to  oppose  the  motion,  or  to  argue  on 
his  part,  he  shall  be  deemed  to  have  renounced 
his  right  against  the  rule,  motion,  or  judgment, 
claimed  by  the  party  having  served  the  rule, 
or  given   notice;  and  such  latter  party  shall 
thereupon  be  entitled  to  his  rule,  motion,  or 
judgment  equally  as  if  the  other  party  had  ap- 
peared and  consented  thereto.1 

VIII.  That  every  attorney  residing  in  the 
city  of  New  York  shall  have  an  agent  residing 
in  the  city  of  Albany;  and  every  attorney  re- 
siding in  the  city  of  Albany  shall  have  an  agent 
residing  in  the  city  of  New  York;  and  all  at- 
torneys   residing    elsewhere    shall    have  two 
agents,  the  one  residing  in  the  city  of  New 

1.— In  April  Term,  1799,  it  was  decided  that  the 
consent  mentioned  in  the  7th  rule  meant  only  the 
admission  to  be  presumed  against  the  party  declin- 
ing to  oppose  or  argue.  In  such  cases  the  judg- 
ment is  entered  in  the  usual  form,  and  the  form  of 
the  rule  entered  by  the  clerk  in  his  minutes  is,  "  on 
reading  and  tiling1  the  affidavit  of  service,  &c.,  &c., 
and  no  counsel  appearing,  &c.  Ordered,  That  the 
plaintiff  (or  defendant)  take  his  rule  (or  judgment) 
as  of  course." 

As  to  the  practice  on  which  the  7th  rule  is  found- 
ed, see  1  Salk.  309, 310 ;  1  Lord  Rnym,  554 : 1  Lutwych, 
308,481 ;  2  Lutwych.  1300;  3  Dallas,  a53;  Dean  v.  Sie- 
ard,  in  the  Court  of  Errors,  February,  1800. 

84 


York  and  the  other  residing  in  the  city  of 
Albany.  That  no  person  shall  be  an  agent  un- 
less he  shall  also  be  an  attorney  of  this  court,  and 
every  appointment  of  an  agent  shall  be  in 
writing,  signed  by  the  attorney,  and  filed  in  the 
office  of  the  clerk  in  the  city  of  New  York  or  Al- 
bany, wherever  the  agent  shall  reside;  *and  [*  1 8 
the  clerk  shall  have  constantly  the  names 
of  the  several  agents,  and  of  the  respective  at- 
torneys appointing  them,  and  the  latter  in  al- 
phabetical order,  entered  in  a  book  to  be  kept 
in  their  offices  for  the  purpose.  That,  except 
services  during  a  vacation^jn  suits  where  the 
attorneys  for  the  respective  opposite  parties 
shall  reside  within  forty  miles  of  each  other,  • 
services  on  the  agent  shall  be  as  valid  in  all 
cases  as  if  made  on  the  attorney  himself;  and 
if  there  shall  be  no  agent,  the  service  of  the 
notice  may  then  be,  by  affixing  the  same  in 
some  conspicuous  place  in  the  clerk's  office. 
That  where  the  service  shall  be  on  the  agent, 
or  by  affixing  the  notice  in  the  clerk's  office,  it 
shall  be  double  the  time  of  service2  which 
would  be  requisite,  if  the  service  was  on  the 
attorney  himself,  and  that  all  services  on 
agents,  or  in  the  clerk's  office,  shall,  during  a 
term,  be  in  the  city  where  the  term  shall  be  held. 
This  rule,  however,  not  to  take  effect  until 
after  the  first  day  of  the  ensuing  term  of  April. 

IX.  Thai  notices  or  rules  of  two  days  shall 
be  abolished,  and  instead  thereof,  such  notices 
or  rules  shall  be  of  four  days. 

X.  That  the  practice  requiring  a  term's  no- 
tice of  trial  or  inquiry  shall  be  abolished. 

*XI.  That  in  future  no  costs  to  counsel  [*  1 0 
for  perusing  pleadings  or  entries  shall  be  taxable 
against  the  opposite  party  unless  there  shall  be 
a  certificate,  signed  by  the  counsel,  certifying- 
that  he  perused  the  pleadings  or  entry  charged 
in  the  bill  as  special,  and  that  in  his  opinion 
they  were  special. 

XII.  In  order  to  provide  a  remedy  against 
the  grievance  of  having  useless  counts  in  the 
declaration  taxed  against  the  defendant,  Or- 
dered, That  except  where  the  cause  of  action 
shall  be  for  goods  sold  and  delivered,  or  ser- 
vices performed,  there  shall  not  be  more  than 
one  count  in  the  declaration  taxed  against  the 
defendant  for  each  distinct  cause  of  action, 
and  where  there  shall  be  more  than  one  count 
for  the  same  cause  of  action,  the  attorney  for 
the  plaintiff  may,  in  such  case,  elect  the  count 
to  be  taxed.  That  where  the  attorney  for  the 
plaintiff  shall  claim  to  have  more  than  one 
count  taxed  against  the  defendant,  he  must 
then  produce  an  affidavit  to  the  judge  or  clerk, 
taxing  the  costs,  that  the  suit  was  brought  for 
several  causes  of  action  to  be  specified  in  the 
affidavit,  and  he  shall  then  be  entitled  to  have 
as  many  counts  taxed  as  there  shall  be  causes 
of  action  specified  in  the  affidavit.  And  fur- 
ther, if  there  shall  have  been  a  trial,  and  the 
defendant  shall  procure  a  *certificate  from  [*2O 


2.— In  April  Term,  1800,  it  was  decided  that  this 
rule  requiring  double  time,  &c..  applied  only  where 
an  attorney  was  employed  for  the  defendant  and 
has  no  agent  appointed.  It  was  also  decided  that 
notice  of  motion  for  term,  though  served  in  the  va- 
cation, was  within  the  reason  of  this  rule,  and  must 
be  served  on  the  agent  in  the  city  where  the  court 
is  held. 

Service  on  the  agent  of  an  attorney  who  is  a  plaint- 
iff, is  equally  good  as  in  other  suits,  and  need  not 
be  on  the  plaintiff  in  person.  1  Caines,  253. 

COLEMAX. 


1800 


RULES  OF  THE  SUPREME  COURT. 


20 


the  judge,  certifying  the  counts  on  which  the 
plaintiff  recovered,  or  if  there  shall  have  been 
an  inquiry,  and  the  defendant  shall  procure  a 
certificate  from  the  sheriff  or  clerk,  certifying 
the  counts  on  which  the  damages  were  as- 
sessed, that  then  only  the  counts  specified  in 
the  certificate  shall  be  taxed  against  the  de- 
fendant, the  affidavit  of  the  plaintiff's  attorney 
notwithstanding;  otherwise,  that  is  to  say,  for 
want  of  such  affidavit  or  of  such  certificate, 
such  one  count  in  the  declaration,  as  the  plaint- 
iff's attorney  shall  elect,  and  no  more,  shall  be 
taxed.  Provided,  that  in  the  above-excepted 
cases  of  goods  sold  and  delivered,  or  services 
•performed,  the  plaintiff  shall  be  entitled  to  have 
a  count  in  an  indebitatus  assumpsit,  and  a  count 
on  a  quantum  meruit  or  a  quantum  valebat,  taxed 
for  each  of  these  respective  causes  of  action, 
the  above  restriction  of  one  count  only  for  each 
distinct  cause  of  action  notwithstanding. 

XIII.  In  order  to  provide  for  a  case  omitted 
in  the  rules  of  April   Term,  1796,   Ordered, 
That  in  future  where  a  notice  of  the  rule  to 
plead  shall  be  affixed  in  the  clerk's  office,  if  the 
attorney  for  the  plaintiff  shall,  before  entering 
the  default  of  the  defendant,  receive  a  notice 
from  an  attorney  that  he  is  retained  to  defend 
21*]  the  suit,  he  shall  be  held  to  serve  the  *at- 
torney  for  the  defendant  with  a  notice  of  the  rule 
to  plead,  and  with  a  copy  of  the  declaration,  and 
the  rule  for  pleading  shall  be  from  the  time  of 
such  service,  so  that  the  time  for  which  the 
notice  of  the  rule  to  plead  may  have  been 
affixed  in  the  office  shall  not  be  taken  into  com- 
putation. 

XIV.  That  where  a  suit  shall  be  commenced 
for  a  nonresident  plaintiff,  before  security  for 
costs,  by  a  sufficient  householder  of  the  State 
in  the  sum  of  one  hundred  dollars,  in  the  usual 
form,    shall  be  given,   the  attorney  shall  be 
deemed  to  have  become  security  for  costs;  and 
where  at  any  time  pending  the  suit,  the  plaint- 
iff shall  remove  out  of  the  State,  and  the  attor- 
ney shall  thereafter  proceed  in  the  cause  before 
such  security  shall  be  given,  he  shall  in  such 
case  also  be  deemed  to  have  become  security 
for  costs;  but  he  shall  not  in  any  case  be  liable 
to  an  amount  exceeding  one  hundred  dollars, 
or  where,  if  there  shall  be  a  plurality  of  plaint- 
iffs, one  of  them  shall  be  resident  within  the 
State. 


APPOINTMENT  OF  CIRCUIT  COURTS. 


22*] 


*JANUARY  TERM,  1800. 


ORDERED.— That  circuit  courts  be  held  at 
the  following  several  times  annually  in  the 
respective  counties,  that  is  to  say :  In  the  County 
of  Rockland  on  the  last  Tuesday  in  May,  in  the 
County  of  Richmond  on  the  Monday  there- 
after, in  the  County  of-  Kings  on  the  Friday 
thereafter,  in  the  County  of  Suffolk  on  the 
Wednesday  thereafter,  in  the  County  of 
Queens  on  the  third  Tuesday  in  June,  in  the 
County  of  Westch  ester  on  the  fourth  Tuesday 
in  June,  and  in  the  City  and  County  of  New 
York  on  the  Tuesday  thereafter,  and  on  the 
last  Tuesday  in  November. 
COLEMAN. 


In  the  County  of  Orange  on  the  first  Tuesday 
in  June,  in  the  County  of  Dutchess  on  the  sec- 
ond Tuesday  in  June,  in  the  County  of  Ulster 
on  the  third  Tuesday  in  June,  in  the  County  of 
Columbia  on  the  Fourth  Tuesday  in  June,  and 
in  the  County  of  Delaware  on  the  tenth  day 
thereafter. 

In  the  County  of  Otsego  on  the  first  Tuesday 
in  June,  in  the  County  of  Herkimer  on  thie 
second  Tuesday  in  June,  in  the  County  of 
*Oneida  on  the  third  Tuesday  in  June,  in  [*23 
the  County  of  Montgomery  on  the  fourth  Tues- 
day in  June,  and  in  the  County  of  Schoharie  on 
the  Tuesday  thereafter. 

In  the  City  and  County  of  Albany  on  the 
first  Tuesday  in  March  and  the  first  Tuesday 
in  September,  in  the  County  of  Tioga  on  the 
first  Tuesday  in  June,  in  the  County  of  Steu- 
ben  on  the  second  Tuesday  in  June,  in  the 
County  of  Ontario  on  the  third  Tuesday  in 
June,  in  the  County  of  Cayuga  on  the  Monday 
thereafter,  and  in  the  County  of  Onondaga  oh 
the  Friday  thereafter. 

In  the  County  of  Chenango  on  the  last  Mon- 
day in  June,  in  the  County  of  Rensselaer  on 
the  last  Tuesday  in  May,  in  the  County  of 
Saratoga  on  the  first  Tuesday  in  June,  in  the 
County  of  Washington  on  the  second  Tuesday 
in  June,  in  the  County  of  Essex  on  the  tenth 
day  thereafter,  and  in  the  County  of  Clinton 
on  the  Tuesday  thereafter. 


*BlLL8  OP  COSTS   SETTLED   BY  THE  [*2 
JUDGES  TO  SERVE  AS  PRECEDENTS. 


9  0 

1  0 

1  0 
6  0 

2  0 

2  0 

1  0 

3  0 

2  0 
6  6 

5  0 

6  0 


Costs  on  Confession  of  Judgment  out  of  Court, 

Retaining  fee £1 

Warrant  of  attorney  -  0 
Filing  warrant  of  attorney  -  0 
Drawing  declaration,  folio  4  -  0 
Copy  to  file  0 
Copy  for  defendant's  attorney  -  0 
Filing  declarations  -  -  -0 
Copy  of  oyer  to  file  and  filing  0 
Copy  for  defendant's  attorney  -  -  0 
Motion  and  rule  for  judgment  0 
Term  fee  -  0 
Drawing  record,  folio  4  -  -  -  0 
Engrossing  same,  including  declara- 
tion and  plea,  folio  10  -  -  0  10  0 
Drawing  up  judgment  and  entering 

on  roll 090 

Notice  of  taxing  costs,  copy  and  ser- 
vice        020 

Copy  of  bill  of  costs  for  defendant's 

attorney 0 

Taxation  and  attendance   -        -        -  0 

Signing  roll 0 

Filing  roll  -  0 
*Docketing  judgment  f*25]         -  0 
Drawing  execution,  folio  4,  engross- 
ing and  seal                                   -  0  11     0 
Return  and  filing    -        -        -        -  020 


6  0 

6  0 

2  0 

1  0 

2  0 


DEFENDANT'S  COSTS. 

Warrant  of  attorney  -        -        -        -  £0 
Filing  warrant  of  attorney  0 

Drawing  common  bailpiece,  folio  2, 
engrossing  and  filing  -  -    0 


6    0 
35 


RULES  OK  THE  SUPREME  COURT. 


1800 


Drawing  plea,  folio  2,  copy  to  file  and 

filing £050 

Copy  for  plaintiff's  attorney  and  ser- 
vice ...... 

Term  fee 

Certifying  costs 

Attendance  on  same 


02.6 
050 
040 


020 


Coats  on  Judgment  by  Default,  and  on  Assess- 
ment of  Damages. 


Retaining  fee 

Warrant  of  attorney 

Filing  warrant  of  attorney 

Drawing  capias,  folio  3,  engrossing 
and  seal  - 

Clerk  entering  return  and  filing  writ 

Sheriff's  fees 

26*]  *Term  fee        .... 

Crier's  fee 

Motion  for  body  and  rule  - 

Drawing  declaration  folio 

Copy  of  declaration  to  file  and  filing 
motion  and  rule  to  plead  - 

Copy  of  declaration  for  defendant's 
attorney  and  serving  with  rule  to 
plead  - 

Drawing  affidavit  of  service  of  dec- 
laration and  notice  of  rule  to 
plead,  folio  2  - 

Copy  to  file,  filing  and  taking  affi- 
davit 

Reading  and  filing  affidavit    - 

Drawing  recognizance-roll  exclusive 
of  declaration,  folio  5 

Epgrossing  same  and  filing  - 

Clerk  searching  for  bailpiece  and  fil- 
ing roll  - 

Motion  and  rule  to  enter  default    - 

Term  fee 

Motion  and  rule  for  interlocutory 
judgment 

Motion  and  rule  that  clerk  assess 
damages  ----- 

Notice  of  assessment  on  defendant 

Clerk's  fee  on  assessment 

Brief  and  fee  on  assessment  of  dam- 
ages   

27*]  *Clerk  reading  and  filing  report 

Motion  for  judgment  and  rule 

Drawing  roll,  folio  4  - 

Engrossing  the  same  with  pleadings, 
folio 

Copy  of  costs  for  defendant  and  no- 
tice of  taxing  - 

Taxation  and  attendance 

Signing  and  filing  roll,  and  docket- 
ing judgment  .... 

Drawing  testatum  execution,  folio  6, 
engrossing  and  seal 

Return  and  filing 


£190 
010 
0  1  0 

086 
010 

050 
019 
066 


066 


030 

029 
019 


020 
060 
050 

060 

066 
020 
080 

1  1  0 
020 
066 
060 


080 
060 

050 

0  16  0 
020 


Voste  on  a  Trial  at  the  Circuit  or  Sittings,  and 
Judgment  thereon,  in  the  Supreme  Court. 

Retaining  fee  ---£190 

Warrant  of  attorney  010 

Filing  warrant  of  attorney  010 

M 


Drawing  capias,  folio  3,  engrossing 

and  seal    -  -      £0    8    6 

Clerk  entering  return,  and  filing  writ    010 

Sheriff's  fees 

Motion  and  rule  for  body  -  -  -  0  6  6 
Term  fee  --'050 

Crier's  fee  -  -    0    1     9 

Drawing  declaration,  folio     - 
Copy  of  declaration  to  file,  and  filing 
*Motion  and  rule  to  plead  [*28]       -    0    6    6 
Copy  of  declaration  for  defendant's 
attorney  and  service  with  rule  to 
•plead 

Copy  of  oyer  for  defendant's  attor- 
ney and  copy  to  file  and  tiling    - 
Drawing  notice  of  rule  to  plead     -        020 
Drawing  affidavit  of  service  of  copy 
of  declaration  and  notice  of  rule 
to  plead,  folio  2  -  -    0    3    0 

Commissioner  taking  affidavit  -  010 
Reading  and  filing  affidavit  -  -  0  1  9 
Drawing  recognizance-roll,  folio  5, 

and  engrossing  same 
Clerk  searching  for  bailpiece  and  fil- 
ing recognizance-roll  -        -        -    0    2    0 
Notice  of  trial  for  judge         -        -        020 
The  like  for  defendant       -        -        -    0    2    0 
Note  of  issue  for  clerk  and  service    030 
Drawing  issue-roll,  folio  4  -        060 

Engrossing  the  same  with  pleadings, 

folio 

Drawing  nixi  prius  record,  folio  4  -  060 
Engrossing  same  with  pleadings, 

folio 

Clerk  filing  issue-roll  and  sealing  nisi 

prius  record     -        -        -        -        020 
Drawing  venire,  folio  4,  engrossing 

and  seal 0  11    0 

*Sheriff's  fees  and  return  [*29]  -  090 
Drawing  subpoena,  folio  4,  engross 

ing  and  seal  -    0  11    0 

Drawing  ticket,  folio  3  -  -  -  046 
Clerk  entering  cause  in  judge's  book  020 
Filing  nisi  prius  record  -  -  -010 
Motion  and  rule  that  cause  be  made 

a  remanet         -        -        -        -        066 

Filing  venire 010 

Copies  of  ticket,  folio  3,  each 

Motion  for  leave  to  try  cause     -        -    0    5    0 

If  inquest  be  taken  by  default,  then 

motion  that  the  same  be  entered    050 
Entering  rule  for  default        -  016 

Entering  default  in  such  case    -        -    0     1     0 
Entering  return  of  venire,  and  that 
plaintiff  have  leave  to  proceed  to 
trial  -        ---  -        0    1     6 

Calling  and  swearing  jury  -020 

Swearing  witnesses 
Reading  writings  in  evidence    - 
Swearing  constable  -        -        006 

Taking  and  entering  verdict  -  -  0  1  6 
Certified  copy  of  minutes  of  court  020 
Fee  to  the  clerk  of  the  circuit  -  100 
Calling  plaintiff  when  jury  return  -  0  1  0 
Entering  confession  of  lease,  entry 

and  ouster        -        -        -        -        016 
Entering  every  nonsuit  -        -    0    1     6 

*Crier's  fees  for  calling  and  swearing 

jury  L*3O]  0    1     0 

Attorney's  fee  on  trial  0  12    0 

Counsel  s  fee  on  trial  -        -        1  10    0 

Juror's  fees 140 

Brief  for  trial  -        090 

COLEMAN. 


1791 


ORDERS  OF  THE  SUPREME  COURT. 


Drawing  posted  -  '  -£060 

Reading  and  filing  posted  -        020 

Clerk  searching  for  issue-roll  to  enter 

judgment  thereon  -  -  -010 
Clerk  supreme  court  filing  venire  and 

certificate  -  -  -  -  020 
Motion  and  rule  for  judgment  -  -060 
Drawing  entries  on  roll  after  issue 

joined,  exclusive  of  judgment, 

folio 
Engrossing  the  same,  folio 


Drawing    judgment    and    entering 

same  on  record         -  £0    9    0 

Copy  of  costs  for  defendant's  attor- 
ney and  notice  of  taxation  - 
Taxation  and  attendance  060 

Signing  roll        -  020 

Filing  roll       -  010 

Docketing  roll    -  -020 

Drawing  testatum  execution,  folio  6, 

engrossing  and  seal  0  16    0 

Return  and  filing       -        -        -        -    0    2    0 


ORDERS  OF  THE  SUPREME  COURT. 


31*] 


^OCTOBER  TERM,  1791. 


IT  is  ordered  by  the  court,  as  a  standing  rule, 
that  upon  the  return  of  writs  of  scire  facias, 
if  the  defendant  be  returned  warned,  or  the 
second  writ  be  returned  nihil,  the  defendant 
shall  appear  in  four  days,  or  judgment  shall 
be  entered  by  default ;  and  if  there  be  not  four 
days  in  term  after  the  return  of  the  writ,  he 
shall  appear  by  the  first  day  of  the  next  term  ; 
and  upon  entering  such  appearance,  he  shall 
have  twenty  days  to  plead.  And  it  is 'further 
ordered,  That  where  the  first  scire  facias 
against  bail  is  returned  nihil  an  alias  or  testa- 
tum, as  the  case  may  require,  shall  issue  to  the 

COLEMAN. 


sheriff  of  the  county  where  the  bail  shall  ap- 
pear, by  their  additions  in  the  recognizance,  to 
reside. 


TERM,  1793. 


It  is  ordered,  That  in  future,  attachments 
against  sheriffs  out  of  office  shall  be  grantable 
till  the  return  of  the  process  which  is  the  ob- 
ject of  the  rule,  instead  of  the  old  practice  of 
granting  a  distringas,  agreeably  to  the  English 
practice. 

37 


ADJUDGED   IN   THE 


SUPREME    COURT 


OF   THE 


STATE  OF  NEW  YORK. 


:*:**] 


*APRIL  TERM,  1794. 


DOBBIN  «.  W  ATKINS. 

Nonsuit — evidence — written    contract — notice    to 
produce. 

ON  the  trial  it  appeared  that  the  contract  on 
the  part  of  the  plaintiff  to  deliver,  and 
the  one  on  the  part  of  the  defendant  to  receive 
.and  pay  for  the  stock,  had  been  reduced  to 
writing,  and  mutually  signed  and  interchanged 
between  the  parties;  and  the  former  was  the  con- 
sideration of  the  latter  or  of  the  assumpsitby  the 
defendant  as  charged  in  the  declaration.  The 
plaintiff  could  not  produce  the  writing,  and 
not  having  given  notice  to  the  defendant  to 
produce  it,  whereby  to  entitle  himself  to  prove 
its  contents,  he  was  nonsuited.  B. 


34*]  *LUDLOW  ads.  THE  PEOPLE. 

•C'ertiorari — to  have  trial  by  foreign  jury — suffi- 
ciency of  affidavit. 

THE  Defendant  was  indicted  at  the  Oyer  and 
Terminer  in  Queen's  County  for  a  rape, 
and  in  the  last  vacation  he  obtained  from  a 
judge  at  his  chamber,  an  allowance  of  a  cer- 
tiorari to  remove  the  indictment  into  this  court, 
with  a  view  to  have  a  trial  by  a  foreign  jury. 
The  certiorari  was  directed  to  the  clerk  of  the 
Oyer  and  Terminer,  and  returned  by  him  with 
the  indictment  annexed,  and  the  following 
questions  occurring  :  1st.  Whether  a  certiorari 
to  remove  an  indictment  for  felony  could  be  al- 
lowed otherwise  than  on  motion  in  open  court, 
and  special  cause  shown.  2d.  Whether  a  cer- 
tiorari to  remove  an  indictment  from  the  Oyer 
and  Terminer  ought  not  to  be  directed  to  and 
returned  by  the  commissioners  instead  of  the 
clerk.  3d.  If  the  certiorari  in  the  present  case 
should  be  received  and  filed  in  this  court,  then 
how  and  where  must  the  trial  be  ?  whether  by 
procedendo  to  the  Oyer  and  Terminer,  or  by 
nisi  prius  at  the  circuit,  or  at  bar  ?  and 
whether  a  foreign  jury  could  be  awarded  in  a 
capital  case.  The  court  permitted  the  certio- 
rari and  return  to  be  lodged  only  in  court  for 
the  present,  but  not  as  either  formally  received 


or  filed  ;  the  defendant,  however,  having  sub- 
mitted the  affidavit  on  which  he  should  ground 
his  motion  for  a  foreign  jury,  to  the  previous 
examination  of  the  judges,  and  they  deeming 
it  insufficient,  no  opinion  was  therefore  given 
on  either  of  the  above  questions,  and  the  fol- 
lowing order  was  entered  *in  the  cause,  [*35 
viz  :  "The  writ  of  certiorari  issued  out  of  this 
court,  in  this  cause,  directed  to  James  Fairlie, 
clerk  of  the  Court  of  Oyer  and  Terminer, 
and  General  Gaol  Delivery,  in  and  for  the 
County  of  Queens,  and  the  return  of  the  said 
James  Fairlie  to  the  said  writ  being  read, 
Ordered,  that  the  said  writ  and  return  be  not 
received  and  filed  in  this  court,  and  that  the 
several  matters  intended  by  the  said  return  to 
have  been  certified  and  returned  to  this  court, 
be  in  the  same  state  in  which  they  were  before 
the  said  writ  issued  ;  the  said  writ  and  the  said 
return  notwithstanding."  The  certioi-ari  and 
return  were  thereupon  entrusted  to  Mi:  Justice 
Lansing,  to  be  by  him  put  again  into  the 
hands  of  Mr.  Fairlie  at  Albany,  where  he  re- 
sided. B. 


THE  PEOPLE  P.  DOWELLE. 

Witness  fees — poor  persons  appearing  on  sub- 
poena, and  -not  on  recognizance. 

SEVERAL  poor  persons  appeared  on  sub- 
O  poena  to  give  evidence  against  the  defend- 
ant. The  court  determined  that  on  a  just 
construction  of  the  statute  they  were  equally 
entitled  to  be  paid  as  if  they  had  appeared  on 
recognizance.  B 


APRIL  TERM,  1795. 


CARNES  v.  DUNCAN,  Administrator. 

Pleading  —  nul  tiel  record  as  one  of  several  plea*. 

THE  Defendant  pleaded  payment  and  nul 
tiel  record  ;  and  on  motion  on  the  part  of 
the  *  plaintiff,  the  court  ordered  the  de-  [*36 
fendant  to  elect  by  which  of  the  two  pleas  he 
would  abide  ;  thereby  deciding  that  where 
there  are  several  pleas,  nul  tiel  record  can  never 

39 


36 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


179~> 


be  one  of  them.  The  principle  of  the  decis- 
ion was  declared  to  be,  that  nul  tid  record  be- 
ing a  matter,  the  knowledge  of  the  proof  of 
which  the  defendant  might  reduce  to  absolute 
certainty,  it  was  not  within  the  reason  of  the 
statute  "enabling  defendants  to  plead  several 
pleas,  for  that  the  sole  intent  of  the  statute  was 
to  relieve  against  the  hardship  of  restricting  a 
defendant,  having  several  matters  of  just  de- 
fence— all  of  them,  however,  of  a  nature,  that 
the  proof  of  them  cannot  be  previously  posi- 
tively ascertained — to  rest  his  cause  on  one  of 
them  only.  B. 

Cited— 6  Wend.,  512. 


APRIL  TERM,  1795. 


PLATT  «.  PLATT. 

Habeas  corpus  —  relation  to  suit  below. 

Cases  cited :  Abb.  199 ;  Cract.,  414,  cited  in  the  last 
Digest,  tit.  5,  c.  5,  par.  3 ;  Inst.  Cler.,  409 ;  Inst.  Legal, 
237 ;  Imp.  Pract.  Com.  PL,  641 ;  Boote's  suit  at  law, 
14, 17,  34. 

BENSON,  J.  The  pleadings  in  this  cause  are: 
Narr.  intitled  of  October  Term,  1794,  in  as- 
sumpsit  charged,  1st  September,  1794,  plea  in 
abatement,  that  on  the  28th  January,  1793,  the 
defendant  was  taken  and  detained  in  prison 
under  the  custody  of  the  Judges  and  Assistant 
Justices  of  the  Court  of  Common  Pleas  for 
the  County  of  Westchester,  by  virtue  of  a 
plaint  levied  against  him  in  that  court  at  the 
suit  of  the  plaintiff  ;  that  the  plaintiff  declared 
against  the  defendant  on  that  plaint,  and  the 
plea  set  forth  the  declaration  at  large,  which  is 
similar  to  the  declaration  in  this  court  (with 
this  difference  only,  that  in  the  latter 
37*]  *there  is  an  addition  of  a  count  on  an 
inximul  computassent,  and  in  the  former  the  as- 
tfumpnit  is  charged  on  the  1st  of  January,  1793); 
that  the  defendant  sued  out  of  this  court  an 
habem  corpus  for  removing  the  cause,  tested 
the  9th.  and  allowed  the  27th  August,  1794, 
and  returnable  the  ensuing  October  Term  ; 
that  the  habeas  corpus  was  returned  in  that 
term.and  setting  forth  the  return,  which  is  in  the 
usual  form  ;  that  thereupon  the  defendant  was 
delivered  to  bail  in  this  court  at  the  suit  of  the 
plaintiff  in  the  plea  aforesaid,  whereupon  the 
plaintiff  exhibited  the  bill  aforesaid  in  this 
court  against  the  defendant  in  the  plea  afore- 
said ;  that  inasmuch  as  it  appears  by  the  bill 
here  that  the  causes  of  action  specified  in  the 
bill  had  not  accrued  before  the  term  of  the 
caption  of  the  defendant  by  virtue  of  the 
plaint,  nor  before  the  time  when  the  plaintiff 
declared  on  the  plaint,  nor  before  the  day  of 
the  test,  nor  before  the  day  of  the  allowance  of 
the  Jiabea*  cot-pus,  the  plea  therefore  concludes 
by  praying  judgment  of  the  bill,  and  that  it 
may  be  quashed.  Demurrer  to  the  plea,  and 
joinder  in  demurrer. 

"It  is  regularly  true  that  if  the  plaintiff  will 
himself  discover  to  the  court  anything  whereby 
it  may  appear  that  he  had  no  cause  of  action 
when  he  commenced  it,  his  writ  shall  abate ; 
of  his  own  showing,  it  is  against  him.  (Hob. 
199.)  Or  as  it  is  expressed  by  an  ancient  law- 
writer,  "The  Writ  also  falls"  if  at  the  time  of 
40 


at  the  time  of  dating  and  issuing,  the  demand- 
ant had  no  competent  action  or  cause  for  de- 
manding." *(Bract. ,  414,  as  cited  in  [*38 
issuing  there  was  no  cause  for  issuing,because, 
Theloal's  Digest,  Lib.  4,  ch.  5,  par.  3.)  The 
question  therefore  between  the  parties  in  the 
present  case  is,  whether  the  defendant  shall,  to- 
that  intent,  where  the  suit  hath  been  removed  by 
habeas  corjms,  allege  any  act  of  the  plaintiff,  oV 
other  proceedings,  in  the  court  below,  or  the- 
test,  or  the  allowance  of  the  habeas  corpus,  as 
the  commencement  of  the  suit.  This  question 
depends  on  another,  viz  :  Whether,  where  a 
suit  is  removed  by  habeas  corpus,  it  does  not 
then  become  a  new  suit  in  the  court  above,  or 
whether  it  is  not  to  be  considered  as  the  same 
suit,  commenced  in  the  court  below,  and  con- 
tinued in  the  court  above.  With  respect  to- 
this  question,  it  is  clearly  laid  down  "that  the 
record  itself  is  never  removed  by  habeas  corpus, 
but  remains  below,  and  therefore  the  plaintiff 
must  here  begin  de  noro"  (Salk.,  352),  and 
must  not  only  "declare  de  noro,"  but  in  Un- 
common bench  must  "bring  a  new  original." 
It  is  part  of  the  condition  of  the  recognizance 
of  bail  on  an  habeas  corpus  in  that  court, 
"That  the  defendant  shall  appear  to  a  new 
original  to  be  filed."  (Inst,  Cler.,  409., 
Inst.  Legal.,  237  ;  Imp.  Pract.  Com.  PI.,  641. > 
And  I  should  suppose,  if  it  is  now  necessary  to 
comply  with  mere  formality  or  fiction,  that 
where  the  proceedings  are  by  bill,  as  distin- 
guished from  where  they  are  by  writ,  that  the 
bill  "on  which  the  process  used  to  issue 
against  the  defendant,"  which  is  "to  warrant 
the  declaration,"  and  which,  as  analogous  to 
the  original  writ,  is  said  to  be  "the  ground- 
work of  the  cause,"  ought  to  be  filed  de  noro. 
(Boote's  *Suit  at  Law,  14,  17,  34.)  [*39 
And  although  where  a  suit  hath  been  com- 
menced within  the  requisite  period  and  removed 
by  habeas  corpus,  and  the  period  should  expire 
before  the  declaration  de  noro  filed,  and  there- 
upon the  defendant  plead  the  statute  of  limita- 
tions, "the  plaintiff  may  reply  the  suit  below  " 
(Salk.,  424),  and  in  like  manner,  where  a  suit  is 
commenced  within  the  period,  and  abated  by 
the  death  of  the  plaintiff  before  judgment,  the 
period  being  then  expired,  "this  shall  not  pre- 
vent his  executors  ;"  yet,  the  reason  is  not,  that 
in  the  former  case  the  suit  above  is  a  continu 
ance  of  the  suit  commenced  below,  or  that  an 
the  latter  case  the  suit  by  the  executor  is  a  con- 
tinuance of  the  suit  commenced  by  the  testator, 
but  merely  to  show  that  the  plaintiff  "had 
rightfully  and  legally  pursued  his  right."  And 
I  should  suppose,  for  the  same  reason,  that 
where  priority  of  right  attaches  on  bringing  a 
suit,  and  a  suit  should  be  brought  and  be  re- 
moved by  habeas  corpus,&nA  in  the  intermediate 
time  between  bringing  the  suit  in  the  court  be- 
low and  filing  the  declaration  in  the  court 
above,  another  person  should  bring  a  suit 
against  the  defendant  for  the  same  cause,  and 
the  defendant  should  plead  that  matter  with  in- 
tent to  oust  the  plaintiff  of  his  priority,  that, 
the  plaintiff  might  replv,  the  suit  commenced 
in  the  court  below.  The  truth  is,  that  when- 
ever right  or  justice  may  require  it,  a  suit  re- 
moved by  habeas  corpus  may,  to  certain  intents, 
be  made  to  relate  to  the  suit  below,  but  not  to  it. 
as  to  the  same  suit  technically  continued,  or  on 
the  proceedings  in  *which  any  of  those  [*4O 

COI.EMAN. 


1795 


PRICE  v.  EVERS. 


40 


in  the  court  above  are  founded,  in  the  sense  that 
the  count,  narration  or  declaration  is  said  to  be 
founded  on  the  writ  or  bill,  or  plaint,  which- 
ever may  be  the  original  process. 

There  is  possibly  another  question  between 
the  present  parties,  viz.,  whether  the  rule  is 
not  to  be  taken  strictly,  that  the  defendant 
cannot  avail  himself  of  it  as  pleadable  unless 
the  plaintiff  himself  discover  that  he  had  no 
cause  of  action  when  he  commenced  it.  (Hob. 
nt  tupra.)  In  which,  however,  I  should  un- 
derstand to  be  comprehended,  as  well  what  the 
plaintiff  must  in  the  first  instance  put  on  the 
record,  as  what  he  is  bound  to  discover  on 
oyer  prayed  by  the  defendant,  and  also  what- 
ever the  defendant  may  elect  to  allege  himself 
instead  of  praying  pyer  of  it  from  the  plaint- 
iff, but  of  which,  if  it  had  been  prayed,  the 
plaintiff  was  bound  to  give  oyer.  (Thel.  Dig., 
lib.  10,  ch.  4;  Brown  Lat.,  red.  1,  pi.  3  ;  Id., 
2,  pi.  6  ;  Form.  bene.  plac.,  3.)  If  the  Law  is 
so,  and  I  am  inclined  to  think  it  is,  then  it  is 
fatal  to  the  defendant's  plea  ;  because  (and 
which  it  is  to  be  remarked,  is  decisive,  that  the 
process  is  not  continued  from  the  one  court  to 
the  other,  there  being  no  such  thing,  where  a 
cause  hath  been  removed  by  habeas  corpus,  as 
oyer  in  the  suit  in  the  court  above  of  any  of 
the  matters  in  the  suit  in  the  court  below),  the 
defendant  hath  no  legal  mean  to  make  the 
matter  of  variance  (for  of  that  nature  is  the 
matter  of  the  plea  in  this  case)  appear  on  the 
record.  (Theloal's  Dig.,  lib.  9,  chap.  5.) 
41*]  *I  wish,  however,  to  be  considered  as 
not  having  come  to  a  decided  judgment  on  this 
point ;  my  opinion  against  the  defendant  is 
grounded  wholly  on  what  I  have  previously 
advanced. 

I  think  the  plea  is  insufficient,  and  therefore, 
that  the  defendant  answer  over.  B. 

Cited— 1  Caines,  272. 


PRICE  v.  EVERS. 
Amendment  of  record. 

IN  the  Court  of  Errors,  1796.  Error  from 
the  Supreme  Court  on  a  judgment  in  as- 
fnimpsit  by  default.  The  plaintiff  in  the  court 
below  had  in  the  in  toto  attingens  on  the  roll, 
taken  judgment  for  sixpence  less  than  the 
amount  of  the  damages  and  costs  found  by  the 
jury,  and  the  costs  of  increase.  The  following 
judgment  was  thereupon  entered  in  this  court, 
viz  :  "This  court  having  heard  counsel  on 
both  sides,  and  due  consideration  having  been 
had  of  what  was  offered  on  either  side  in  this 
cause,  and  one  of  the  causes  of  error  assigned 
being  a  miscasting  by  the  defendant  in  error. 
It  is  thereupon  ordered  by  this  court,  that  the 
record  in  this  cause  be  amended,  whereby  to 
correct  such  miscasting,  as  follows,  that  is  to 
say,  by  striking  out  the  word  ten  in  the  judg- 
ment between  the  word  pounds  and  the  word 
.^hillings,  and  inserting  the  word  eleven  instead 
thereof ;  and  by'  striking  out  the  words  and 
sixpence,  after  the  said  word  shillings.  And  it  is 
thereupon  further  ordered  and  adjudged  by 
42*]  this  court,  that  *the  said  judgment  given 
in  the  said  supreme  court  be,  and  hereby  is  af- 
firmed ;  and  that  the  transcript  of  the  said 
record  so  amended  be  remitted,  to  the  end  that 

COLKMAN. 


the  record  remaining  in  the  said  supreme  court 
be  also  amended  in  like  manner,  and  that  ex- 
ecution may  be  thereupon  had  accordingly. 
And  it  is  further  ordered,  that  the  defendant 
in  error  pay  to  the  plaintiff  in  error  his  costs 
of  prosecuting  the  said  writ  of  error  to  be 
taxed."  B. 

Cited— 3  Johns.,  99 ;  2  Cow.,  410 ;  1  Denio,  678. 


JULY  TERM,  1796. 


BRANTINGHAM'S  CASE. 

Imprisonment  for  debt — charging  defendant  in 
execution  —  election. 

THE  defendant,  having  been  surrendered  in 
discharge  of  his  bail,  and  thereupon  com- 
mitted to  custody,  the  plaintiff  proceeded  to 
judgment,  but  suffered  more  than  three  months 
to  elapse  after  judgment  was  entered,  without 
charging  the  defendant  in  execution.  He  was 
then  summoned  before  His  Honour  Mr.  Justice 
Benson,  at  his  chambers,  to  show  cause  why  a 
supersedeas  should  not  issue,  because  he  had 
not  charged  the  defendant  in  execution  within 
the  time  prescribed  by  the  12th  section  of  the 
Act,  entitled  "An  Act  for  the  relief  of  debtors, 
with  respect  to  the  imprisonment  of  their  per- 
sons," passed  the  13th  of  February,  1789.  The 
plaintiff,  after  notice  of  the  application  and 
before  the  time  of  attendance,  charged  the  de- 
fendant in  execution,  and  on  the  hearing, 
showed  that  for  cause. 

*His  Honour  Judge  Benson  reserved  [*43 
the  question,  and  stated  the  case  to  the  judges 
at  a  conference,  at  which  they  were  all  pres- 
ent. 

They  were  of  opinion  that  a  supemedta* 
ought  not  to  be  allowed.  That  the  intent  of 
the  statute  was  to  enable  the  defendant  to  put 
the  plaintiff  to  his  election,  either  to  charge 
the  defendant's  body  in  execution  or  to  resort, 
to  his  estate  ;  and  the  plaintiff  having  made  his 
election  before  the  supeiyedeas  was  allowed, 
the  defendant  was  not  entitled  to  his  discharge. 


DRAKE  t>.  HUNT. 

Non  pros. — removal  of  cause — acceptance  of 
declaration. 

THIS  action  was  originally  commenced  in 
the  Mayor's  Court  of  the  city  of  New 
York  and  removed  by  habeas  corpus. 

Bail  had  been  regularly  filed,  and  Munro,  for 
defendant,  moved  the  last  April  Term,  that 
the  plaintiff  be  nonprossed  for  not  declarinsr. 
He  cited  2  Crompton,  410  ;  2  Salk.,  455  ;  Gil- 
bert's Law  of  Distresses,  139  ;  Our.  admit. 

The  court  now  gave  their  unanimous  opin- 
ion, That  the  cause  having  been  removed  to 
this  court  without  the  agency  or  approbation 
of  the  plaintiff,  he  was  not  obliged  to  follow 
it,  and  could  not  be  -non.  prossed  for  not  declar- 
ing here,  as  he  had  never  been  in  court ;  but 
that  the  defendant  was  not  bound  to  accept  a 
declaration  after  two  terms  had  elapsed.  G. 

41 


44 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1796 


*WENDOVER  T.  BALL. 


Sheriff' — attachment  —  bail  —  one  nominal 
person — stipulation  of  sJwriff. 

ABAILPIECE  had  been  filed,  containing 
the  name  of  one  real  person,  who  had  at 
the  same  time  filed  an  affidavit  of  justification, 
and  of  one  nominal  person.  A  rule  was  then 
taken  to  bring  in  the  body,  or  show  cause  why 
an  attachment  should  not  issue  against  the 
sheriff ;  and  now 

Mr.  Wood,  for  the  plaintiff,  moved  that  the 
rule  be  made  absolute. 

Per  Curiam.  The  practice  of  inserting  only 
one  real  person  in  bailpieces  has  generally  ob- 
tained, but  has  passed  because  there  has  been 
no  opposition  to  it.  It  is  requisite,  if  the 
plaintiff  exacts  it,  that  two  real  persons  should 
become  bail. 

But  the  sheriff  stipulating  to  put  in  addi- 
tional bail,  the  motion  was  waived. 


GENERAL  RULE. 

SATURDAY. 

ORDERED,  That  on  trials,  one  counsel  only 
on  each  side  shall  examine  or  cross-exam- 
ine a  witness,  and  that  two  counsel  only  on 
each  side  shall  sum  up  the  evidence  to  the  jury. 


4.1*] 


*OCTOBER  TERM,  1796. 


COHAN,  Administrator,  ads.  KIPP. 

Default — imperfect  plea — mistake. 

A  PLEA  was  drawn  and  signed,  but  the  de- 
fendant's attorney  forgot  to  file  it,  and  a 
copy  without  signature  was  served.  A  default 
for  not  pleading  was  entered  during  the  last 
vacation,  subsequent  to  the  delivery  of  the 
plea. 

ifr.  Jones,  for  defendant,  now  moved  to  set 
aside  the  default,  on  the  ground  of  irregularity; 
he  produced  also  an  affidavit  of  merits. 

Per  Curiam. '  A  plaintiff  may  accept  or  re- 
fuse an  imperfect  copy  of  a  plea ;  and  if  he 
accepts  it,  the  court  will  compel  the  defendant 
to  file  a  perfect  plea,  if  that  has  not  already 
been  done.  Here  appears  to  have  been  a  mere 
mistake  on  the  part  of  defendant.  Let  him  file 
a  plea  instanter,  and  the  default  be  set  aside  on 
payment  of  costs. 


APRIL  TERM,  1796. 


HUANSON  ads.  BOARDMAN  ET  AL. 

Verdict — demurrer. 

IN  this  cause  a  demurrer  was  filed  to  the  rep- 
lication ;  the  defendant's  attorney  at   the 
42 


same  time  applied  to  the  deputy-clerk  for  leave 
to  strike  out  the  similiter,  but  the  clerk  refused 
to  permit  him  to  do  so.  Notice  of  trial  was 
then  given,  and  an  inquest  taken. 

*Mr.  Jones,  for  defendant,  now  moved  [*46 
that  the  verdict  be  set  aside  for  irregularity. 

Per  Curiam.  The  9th  rule  of  April  term, 
1796,  provides  that  "If  either  party  shall  in 
pleading,  in  any  degree,  tender  an  issue  to  the 
country,  and  if  the  opposite  party  shall  not  de- 
mur to  the  pleading  within  twenty  days  after 
service  of  a  copy  thereof,  the  cause  shall  in 
each  of  these  cases  be  deemed  to  be  at  issue  ;" 
but  here  was  a  demurrer  filed  within  twenty 
days,  and  the  striking  out  the  similiter  from 
the  replication  which  had  been  filed  was  not 
necessary. 

Let  the  verdict  be  set  aside  with  costs. 

Cited  in  18  Johns.,  138. 


FRANKLIN  ET  AL.  ads.  NORE. 
Verdict — notice  of  motion  for  struck  jury. 

ISSUE  was  joined  during  the  last  vacation, 
and  before  notice  of  trial  was  received  the 
defendant  served  the  plaintiff  with  notice  of  a 
motion  for  a  struck  jury;  notwithstanding 
which,  the  plaintiff  proceeded  to  give  notice  of 
trial,  and  took  an  inquest. 

Mr.  S.  Jones,  for  defendant,  moved  that  the 
verdict  be  set  aside  for  irregularity. 

Per  Curiam.  The  defendant  availed  himself 
of  the  first  opportunity  in  his  power  to  apply 
for  a  struck  jury,  and  it  was  irregular  for  the 
plaintiff  to  proceed  after  receiving  notice  of  the 
intended  motion. 

Let  the  verdict  be  set  aside  with  costs. 


"JANUARY  TERM,  1798. 


[*47 


WINTER  t.  CARTER. 

Bail-bond  —  default  of  record—  judgment. 


was  an  action  on  bail-bond.  The  de- 
JL  f  endant  pleaded  comperuit  ad  diem  ;  plaint- 
iff replied  nul  tiel  record  ;  and  issue  being  taken 
thereon,  day  was  given,  by  rule  entered  in  va- 
cation, to  produce  the  record  on  the  first  day 
of  this  term. 

And  now,  on  this  day,  being  the  quarto  die 
post, 

The  Attorney-  General,  for  plaintiff,  moved 
that  the  defendant  be  called  to  produce  the 
record. 

The  court  expressed  some  doubt  whether 
this  was  to  be  considered  as  a  common  rule, 
within  the  intent  of  the  first  general  rule  of 
April  Term,  1796,  and  took  time  to  consider  of 
it  till  the  succeeding  Monday,  when  they  or- 
dered judgment  for  default  of  record. 

COLHMAN. 


1798 


OUDENARDE   V.    \TAN  BERGEN. 


47 


OUDENARDE  v.  VAN  BERGEN. 

Interlocutory  judgment — default  not  entered. 

THE  plaintiff  had  filed  his  declaration  in  va- 
cation, and  the  rule  to  plead  having  ex- 
pired,  he  entered  interlocutory  judgment  the 
last  term,  without  having  first  entered  a  de- 
fault. 

Spencer,  for  defendant,  moved  to  set  aside 
this  judgment,  on  the  ground  that  no  default 
had  previously  been  entered. 
48*]  *On  the  last  day  of  term,  Mr.  Justice 
Lansing  delivered  the  unanimous  opinion  of 
the  court : 

When  this  question  was  presented  in  the 
first  instance,  I  did  suppose  that  the  entry  of 
the  default  could  not,  under  the  existing  rule, 
have  any  other  effect  than  merely  to  preclude 
the  opposite  party  from  pleading,  and  that  the 
plaintiff  might  waive  the  entry  of  the  default, 
and  enter  a  rule  for  judgment. 

Upon  further  reflection  on  the  subject,  and 
after  carefully  examining  the  eighth  rule  en- 
tered in  April  Term,  1796,  it  appears  to  me  to 
be  the  better  construction  that  the  entry  of  the 
default  is  indispensable  to  entitle  the  plaintiff 
to  his  judgment,  the  expression  being,  "  That 
the  default  being  duly  entered,  the  party  who 
shall  have  had  it  entered  shall  not  be  held 
afterwards  to  accept  a  declaration  or  answer,  as 
the  default  shall  happen  to  be,  and  may  at  any 
time  after  four  days  in  term  shall  have  inter- 
vened thereafter,  have  a  rule  for  such  judgment 
as  is  to  be  rendered  by  law,  by  reason  of  the 
default."  This  imposes  it  on  the  party  enter- 
ing the  default  to  file  the  necessary  proofs  to 
evince  its  regularity,  and  if  any  subsequent 
question  arises  on  that  subject,  a  resort  to  those 
proofs  affords  a  determinate  test. 

We  are  all  of  opinion  that  the  interlocutory 
judgment  be  set  aside. 


49*1 


*APRIL  TERM,  1798. 


KETTLETAS  v.  NORTH. 

Writ  of  error — permission  to  losing  party  to  file 
roll. 

JUDGMENT  had  been  rendered  for  the  de- 
«J  fendant  on  verdict,  but  the  roll  had  not 
been  filed. 

Mr.  Burr,  for  plaintiff,  now  suggested  that  he 
intended  to  bring  a  writ  of  error,  and  moved 
for  a  rule  that  the  defendant  procure  the  roll 
to  be  signed  and  filed  in  four  days,  or  that  the 
plaintiff  have  leave  to  do  it. 

Ride  granted. 


WICKHAM  0.  WATERS. 

Ejectment — view — boundaries. 

p  RAHAM  moved  for  a  view,  on  affidavit 
VT  that  view  was  necessary.  But  as  he  did  not 
state  that  boundaries  were  in  question,  the 
court  refused  to  grant  the  motion. 

COLEMAN. 


WIMPLE  ET  AL.  v.  M'DOUGAL. 

Amendment — ejectment — declaration — election  of 
defendant. 

VAN  VECHTEN,  for  the  plaintiff,  moved 
for  leave  to  amend  the  declaration  in  eject- 
ment, by  adding  a  count  on  the  demise  of  a 
person  not  originally  named  as  a  lessor.     He 
mentioned  the  case  of  Jackson,  ex  dem.  Quack- 
enbos,  \.  Dennis,  where  this  was  allowed. 
Mr.  GraJiam,  contra. 

*Per  Curiam.  In  the  case  of  Quacken-  [*5O 
bos  v.  Dennis,  it  was  so  ordered,  and  that  is  to 
be  considered  as  a  precedent  to  govern.  But 
it  is  reasonable  that  the  defendant  should  be 
permitted  to  relinquish  his  defense,  if  he 
chooses  to  do  so,  as  the  introduction  of  a  new 
party  may  vary  his  situation.  Let  him  elect, 
by  Friday  next,  to  abide  by  or  relinquish  his 
plea ;  and  if  he  relinquishes  it,  the  plaintiff 
must  pay  all  the  costs  accrued  up  to  that  day. 


M'GOURCH  v.  ARMSTRONG. 
Sheriff — attachment — arrest — notice. 

HENRY  moved  for  an  attachment  against 
the  sheriff  of  Montgomery,  on  a  rule  taken 
by  him  in  vacation  to  bring  in  the  body  by  the 
second  day  of  term.  But  it  appeared  that  no- 
tice of  such  rule  had  not  been  served  twenty 
days. 

Per  Curiam.  Although  the  printed  rules  do 
not  reach  the  case,  the  sheriff  must  have  twenty 
days  at  least  after  service  of  the  notice.  Let 
the  plaintiff  take  nothing  by  his  motion. 


DRIGGS  ads.  VAN  LOON. 

Inquest — interlocutory  judgment — notice  of 
retainer — subsequent  notices. 

MOTION  by  Kirkland  to  set  aside  a  writ  of 
inquiry  and  subsequent  proceedings. 
Defendant  had  retained  an  attorney  after  in- 
terlocutory judgment,  who  gave  notice  there- 
*of  ;  but  plaintiff  proceeded  to  execute  a  [*5 1 
writ  of  inquiry,  without  giving  notice  to  the 
attorney  so  employed. 

Per  Curiam.  Whenever  an  attorney  is  em- 
ployed, though  it  be  too  late  to  plead,  yet  he  is 
entitled  to  all  subsequent  notices. 

Motion  granted. 

.    Cited  in  8  Cowen,  117. 


BALLARD  AND  PARKMAN,   Manucaptors 
of  CHAPMAN, 

ad^s. 
KIBBE  AND  LUDLOW. 

Sail  —  surrender  of  principal  —  discharge  of  one 
bail. 


was  an  application  by  bail  to  surrender 
JL     their  principal  on  the  following  case  : 
In  April  Term,    1797,   ca.   sa.    against  the 

43 


51 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1798 


principal  was  returned  non  est.  On  which 
plaintiffs  issued  a  cap.  ad.  reap,  against  the  bail 
jointly,  on  their  recognizance.  This  writ  was 
delivered  to  the  sheriff  of  Herkimer  or  his  dep- 
uty, early  in  April  vacation,  being  returnable 
the  last  Tuesday  of  July  then  next. 

On  the  7th  of  July  the  deputy,  having  pos- 
session of  the  writ,  but  not  in  his  pocket,  met 
Parkraan,  one  of  the  bail,  and  informed  him  of 
the  writ ;  on  which  Parkman  promised  to  come 
to  the  house  of  the  deputy  and  indorse  his  ap- 
pearance thereon  before  the  return  day.  He 
accordingly  came  and  indorsed  his  appearance, 
but  at  what  time  precisely,  Cheesebo rough,  the 
deputy,  who  is  the  witness,  does  not  recollect. 
By  the  affidavit  of  Parkman  himself,  it  appears 
to"  have  been  two  days  after  the  return  day  of 
the  writ.  The  writ  was  then  returned,  with 
52*]  *such  indorsement,  but  without  any  re- 
turn indorsed  by  the  sheriff  himself. 

In  July  vacation,  plaintiff  issued  an  at.  cap. 
against  Ballard,  to  answer  aimul  cum  Park- 
man, returnable  in  October  Term,  which  hav- 
ing been  returned  "non  est,"  plaintiffs  issued  a 
testatum  against  Ballard  alone,  returnable  in 
January,  1798,  directed  to  the  sheriff  of  Onon- 
daga,  who  took  him. 

August  28th,  1797,  defendant's  attorney  had 
delivered  plaintiff's  attorney  a  writing  intended 
as  a  plea  in  abatement,  praying  that  for  want 
of  an  official  return,  as  well  as  on  account  of 
such  irregular  service  of  the  writ  on  Parkman, 
the  plaintiff's  bill  might  be  quashed. 

February  10th,  1798,  plaintiff's  attorney  de- 
livered a  copy  of  the  declaration  filed  against 
the  bail  jointly. 

February  13th,  1798,  plaintiff's  attorney  re- 
ceived a  plea  in  chief,  nil  debet,  in  behalf  of 
Ballard  alone ;  and  at  the  same  time  another 
writing,  intended  as  a  plea  in  abatement,  in  be- 
half of  Parkmaii  separately,  and  so  entitled, 
and  grounded  upon  the  before  mentioned  ob- 
jection, viz.,  the  want  of  official  return. 

The  proceedings  respecting  the  surrender 
were  as  follows : 

January  13th,  1798,  three  days  before  the 
term,  the  sheriff  of  Herkimer  signed  an  ac- 
53*]  *knowledgment  that  the  principal  was 
in  his  custody  on  a  surrender  by  Parkman,  in 
behalf  of  himself  and  Ballard. 

January  27th.  On  application  of  Ballard  in 
behalf  of  himself  and  Parkman  His  Honor 
Judge  Benson  made  an  order  for  a  commit- 
ment. 

March  5th.  The  sheriff  signed  a  further  ac- 
knowledgment, that  the  principal  was  still  re- 
maining in  his  custody  when  the  committitur 
came  to  his  hands. 

March  20th.  Judge  Benson  made  an  order 
for  the  plaintiffs  to  appear  and  show  cause  why 
an  exoneretur  should  not  be  entered.  They  ap- 
peared accordingly,  and  the  case  was  adjourn- 
ed over  to  be  argued  and  determined  in  open 
court. 

On  this  case  the  following  questions  were 
raised  : 

I.  Are  the  defendants  now  too  late  in  their 
application? 

II.  Can  one  bail  be  discharged  alone  when 
the  application  is  for  the  discharge  of  both? 

III.  Will  the  discharge  of  one  bail  operate 
as  a  discharge  of  all?  and  if  one  is  fixed,  will 
not  the  other  be  so  likewise?    (Curia  ad  vult.) 
44 


Per  Curiam.  The  surrender  by  Ballard  is 
good  as  to  both.  If  a  plaintiff  will  elect  to  sue 
special  bail  jointly,  he  who  is  first  taken  shall 
*have  time  to  surrender  till  the  last  is  [*54 
taken  also,  and  till  the  time  allowed  him  (the 
last)  for  surrendering  is  expired.  If  he  sues 
them  separately,  then  each  may  be  separately 
fixed  ;  or  one  may  be  fixed,  and  the  other  may 
afterwards  surrender  the  principal,  and  be  dis- 
charged. So  that,  in  fact,  plaintiff  may  have 
the  body  of  defendant  in  custody,  and  at  the 
same  time  go  on  with  a  suit  against  the  other 
bail  which  has  been  fixed.  He  cannot,  how- 
ever, have  more  than  one  satisfaction. 

Let  the  defendant*  take  the  effect  of  their  mo- 
tion, on  payment  of  costs. 

Cited— 6  Daly,  397. 


JULY  TERM,  1798. 


WOODMAN  KT  AL.  ad*.  LITTLE. 

Scire  facias — teste — second  sci.  fa. — limitation. 

THIS  was  a  motion  to  set  aside  the  proceed- 
ing on  a  xcirt 'facia*  quare  ex  non  and  two 
nihih  returned,  because  there  had  not  been  15 
days  between  the  teste  of  the  first  and  return 
of  the  second,  sci.  fa.  In  support  of  the  mo- 
tion was  cited,  4  Durn.  &  East,  583. 

It  was  contended  in  reply,  that  when  pro- 
ceedings in  the  original  cause  are  by  bill,  four 
days  are  enough.  (4  Durn.  &  East,  663.) 

Per  Curiam.  There  must  in  all  cases  be  15 
days  between  the  teste  of  the  first,  and  return  of 
the  second  set.  fa. 

Mr.  Golden  for  defendant. 

Mr.  Houston  for  plaintiff. 


*PEPOON  ET  AL.  ad*.  JENKINS.  [*55 

Amendment  of  writ  —  omission  of  clerk's  name. 

RIGGS,  for  defendants,  moved  to  quash  the 
writ  for  want  of  the  clerk's  name  to  it, 
and  Woods  at  the  same  time  moved  for  leave 
to  amend.  He  contended  that  the  writ  is  sup- 
posed to  be  the  act  of  the  clerk,  and  ought  not 
to  prejudice  the  party  ;  and  cited  1  Cromp,  106. 
and  1  Durn.  &  East,  783  ;  Yelv.,  64. 

Per  Curiam.     It  may  be  considered  as  the 
omission  of  the  clerk,  and  amendable. 
Let  it  be  amended  on  payment  of  costs. 


THE  PEOPLE,  at  the  relation  of 
THOMPSON, 

r. 

THE  JUDGES  OF  THE  COURT  OF  COM- 
MON PLEAS  FOR  WESTCHESTER. 

Piling  bill  nunc  pro  tune — assignment  of  error. 

AT  a  previous  term,  Woods  had  moved  for 
and  obtained  a  rule  to  stay  proceedings 

COI.KMAN. 


1799 


WlSNER   ET   AL.  V.  WlLCOX   ET   AL. 


55 


on  a  writ  of  error  in  this  court,  until  the  com- 
mon pleas  in  Westchester  could  be  moved  for 
leave  to  file  a  plaint  nunc  pro  tune,  the  want  of 
which  had  been  the  error  assigned  here.  Ap- 
plication had  been  made  to  that  court  for  such 
purpose,  and  was  refused  by  them,  on  which 
Mr.  Woods  obtained  the  rule  here  to  show  cause 
why  a  mandamus  should  not  issue  to  compel 
them  to  allow  such  application  ;  and  now 

Mr.  Munroe  showed  cause. 
o6*J  *He  insisted  that  the  court  below  had 
always  a  discretion  in  cases  of  this  kind,  and 
that  in  the  present  instance,  having  considered 
the  judgment  before  them  as  unjust,  had  re- 
fused the  application  on  that  ground,  and  that 
therefore  it  was  not  a  proper^  case  to  grant  a 
mandamus. 

Per  Curiam.  The  court  below  have  indeed 
a  discretion,  but  it  is  a  legal  and  not  an  arbitra- 
ry one.  We  always  allow  a  bill  to  be  filed 
nunc  pro  tune  when  error  is  brought  and  that 
assigned  for  cause. 

Rule  absolute. 


WISNER  ET  AL.  v.  WILCOCKS  ET  AL. 

Ejectment — parties — landlord — receipt  of  rents. 

Cases  referred  to :  3  Burr.,  1292  to  304 ;  Comb.,  209 ; 
Uunnington  on  Ejectment,  72 ;  Buller,  95. 

OGILVIE  moved  that  Amos  Wilcocks  be  ad- 
mitted to  defend  jointly,  on  his  affidavit 
that  the  defendants  hold  of  him  as  their  land- 
lord. 

Mr.  Riggs,  for  plaintiff,  opposed  the  granting  a 
rule,  because  the  affidavit  did  not  specify  that 
Amos  Wilcocks  was  in  the  receipt  of  rent. 

Per  Curiam.  There  is  no  case  which  goes 
the  length  of  saying  that  none  are  to  be  con- 
sidered as  landlords  within  the  meaning  of  this 
rule,  but  those  who  actually  receive  rents. 
Some  dicta  look  that  way  (vide  3  Burr.,  1292 
to  1304;  Comb.,  209;  Runnington  on  Eject- 
ment, 72 ;  Buller,  95),  but  it  is  the  privity  of 
interest,  and  not  the  receiving  of  rent,  which  is 
5  7*]  the  true  test.  *A  mortgagee  out  of  pos- 
session may  be  let.  in  to  defend.  Strangers 
only  are  to  be  excluded. 

Motion  granted. 

Cited— 17  Johns.,  112. 


BERRY,  who  is  impleaded  with  BUSHBEE, 

ads. 

ELLES  ET  AL.  ,  Assignees  of  the  SHERIFF  OF 
NEW  YORK. 

Stay  of  proceedings  on  bail-bond — loss  of  trial 
— neglect  of  plaintiff. 

MOTION  by  Boyd  to  stay  proceedings  on 
bail-bond.  It  appeared  that  the  capias 
in  the  original  suit  had  been  returned  in  Jan- 
uary Term  last,  and  that  a  declaration  was 
filed  the  14th  of  June  following :  no  bail  to 
the  action  then  being  put  in,  process  issued  on 
the  bail-bond  in  the  last  vacation,  and  on  the 
10th  of  August  the  defendant  was  arrested 
thereon.  It  also  appeared  that  the  notice  of 
this  motion  was  accompanied  by  an  offer  of 
good  bail  and  a  cognovit  actionem. 

COLEMAN. 


Mr.  Golden  opposed  the  motion,  on  the* ground 
that  the  plaintiffs  had  now  lost  a  trial  in  the 
original  action  for  want  of  bail. 

Per  Curiam.  The  plaintiffs  may  have  lost  a 
trial,  but  they  have  been  negligent  on  their 
part.  They  should  have  put  the  bail-bond  in 
suit  in  January  vacation.  It  is  not  a  loss  of 
trial  alone  which  will  prevent  our  interfering 
to  relieve  in  these  cases,  but  that  loss  must  be 
without  neglect  on  the  part  of  *the  [*58 
plaintiff,  and  must  be  occasioned  by  the  delay 
of  defendant  after  bail  is  called  for.  If  a  dif- 
ferent practice  was  allowed,  a  plaintiff  would 
be  tempted  to  wait  a  term  or  longer,  and  thus 
ensnare  the  bail.  The  court  will  always  stay 
proceedings  if  application  be  made  for  that 
purpose  on  the  return  of  the  bail-bond  writ. 

Let  the  proceedings  be  stayed  on  payment  of 
costs. 


BIRD,  SAVAGE  &  BIRD 

ads. 
ROBERT  MURRAY  &  COMPANY. 

Removal  of  causes  to  federal  courts  by  alien 
defendants — appearance — bail  extepted  to. 

HARRISON  presented  a  petition  from  the 
defendants  to  remove  the  cause  into  the 
federal  court,  on  affidavit  that  defendants  are 
aliens. 

It  appeared  that  special  bail  had  been  put  in 
last  December,  but  an  exception  was  entered, 
and  bail  had  not  been  perfected  till  this  term, 
and  till  after  the  petition  had  been  filed. 

Mr.  Pendleton  and  Mr.  B.  Livingston  objected, 
insisting  that  the  defendants  were  too  late,  their 
appearance  having  been  entered  in  January  last, 
and  the  act  of  Congress,  under  which  the  ap- 
plication is  made,  directs  that  the  petition  be 
filed  when  the  appearance  is  entered. 

Per  Curiam.  The  defendants  are  in  season. 
As  plaintiffs  excepted  to  the  bail,  they  shall  not 
be  allowed  now  to  say  defendants  appeared  be- 
fore. 

Motion,  granted. 


•SUYDAM  r.  M'COON. 


[*59 


Amendment-. — second  amendment  of  writ — mis- 
pr-ision  of  clerk. 

IN  this  cause  the  plaintiff,  who  claimed  under 
a  sheriff's  sale,  had  been  nonsuited  on  the 
trial,  for  a  variance  between  the  record  pro- 
duced in  evidence,  and  the  writ  of  venditioni 
exponas,  and  at  January  Term,  1797,  had 
procured  the  nonsuit  to  be  set  aside  on  the 
payment  of  costs,  and  had  moved  for  and  ob- 
tained leave  to  amend  the  writ  by  striking  out 
the  words  twenty-eighth,  and  inserting  the  word 
twentieth. 

Having  been  nonsuited  a  second  time  for  a 
like  variance  between  the  record  and  the  same 
writ, 

Mr.  Ecertson  now  moved  for  leave  to  amend 
again,  by  striking  out  the  words  "last  past" 
and  inserting  the  figures  1790,  and  cited  Thomas 
Jones,  41. 

Mr.  C.  I.  Bogert  objected  that  it  was  now  too 
late. 

45 


59 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


Per  Ouriam.  These  ertrors  are  to  be  consid- 
ered as  the  misprision  of  the  clerk.  On  the 
authority  of  Jones  and  of  the  former  decision 
in  this  court. 

Let  tlie  amendment  be  made. 


CHILD  v.  MURRAY,  Manucaptor. 

IN  set.  fa.  on  recognizance  of  bail  and  inquest 
thereon,  the  jury  assessed  interest  from  the 
docketing  of  the  original  judgment,  to  the  re- 
turn of  the  posted. 

GO*]  *To  show  that  this  was  the  just  method 
of  computing  interest,  the  following  authorities 
were  cited  :  2  Durn.  &  East,  57  ;  10 Mod.  Rep., 
278,  notes;  Sid.,  336,  358. 

Per  Ouriam.  The  plaintiff  is  entitled  to 
have  interest  calculated  against  the  bail,  from 
the  day  they  become  fixed.  By  this  the  court 
mean,  after  the  expiration  of  the  time  allowed 
ex  gratia  to  surrender,  that  is,  eight  days  after 
capias  returned. 


JANUARY  TERM,  1799. 


CANNON,   Manucaptor,  ads.    CATHCART. 

Bail — exoneretur — principal   imprisoned  before 
return  of  capias. 

THE  principal  being  confined  in  the  County 
of  Herkimer  on  a  charge  of  felony,  appli- 
cation was  made  for  a  committitur  to  one  of 
the  judges  of  that  county  in  April  vacation, 
1798,  and  before  the  return  of  the  capias  against 
the  bail,  which  was  refused.  In  September 
following,  the  principal  was  convicted,  and 
sentenced  to  be  imprisoned  at  hard  labor  in  the 
State  prison  for  life. 

On  these  facts  a  rule  was  taken  to  show 
cause  why  an  exoneretur  should  not  be  entered. 

Per  Cnriam.  It  appears  that  the  defendant 
made  a  bona  fide  attempt  to  surrender  the  prin- 
cipal before  the  capias  was  returnable,  and  was 
frustrated.  The  principal  was  afterwards  im- 
prisoned for  life,  and  even  if  the  surrender  had 
Ol*]  been  effected,  it  *could  not  have  benefit- 
ed the  plaintiff. 

Let  tlie  defendant  take  the  effect  of  his  motion 
on  payment  of  costs. 


M'NEALY  ads.   MORRISON. 

Default — notice  of  retainer — similar  notice    to 
another  attorney — notice  thereof. 

OLEIGHT,  plaintiff's  attorney,  received  a 
O  notice  of  retainer  from  Smith  in  July;  in 
September  following  he  received  a  like  notice 
from  Mr.  Bowman,  and  twice  seemed  recognize 
him  as  the  attorney  in  the  suit,  though  he  never 
served  him  with  any  declaration,  but  served  it 
on  Smith,  and  entered  a  default  for  want  of  a 
plea,  which  Mr.  Bowman  now  moved  to  set 
aside  on  the  above  statement  of  facts. 
M 


Per  Ouriam.  It  was  certainly  incumbent  on 
Sleight  to  have  told  Bowman,  when  he  received 
his  notice  of  retainer,  that  he  had  received  a 
similar  notice  from  Smith. 

Let  the  default  be  set  aside  ;  the  costs  to  abide 
the  event  of  tJie  suit. 


HOLCOMB  ET  AL.,  Defendants  in  Error, 

ads. 
HAMILTON. 

Amendments  of  course — record. 
Citation— 5  Burn.  &  East,  577. 

A  FTER  imparlance,  but  before  judgment,  I. 
11-  S. ,  one  of  the  defendants,  died;  judgment 
was  then  entered  against  both,  and  execution 
issued  against  the  survivor,  without  any  sug- 
gestion on  the  record  of  the  death  of  the  other 
defendant;  and  on  error  coram  wbis,  a  rule 
had  been  taken  to  show  *cause  why  the  [*O2 
record  should  not  be  amended  by  suggesting 
the  death  of  I.  S. 

Mr.  Whiting  showed  for  cause,  that  the  appli- 
cation was  too  late,  the  proceedings  having 
ceased  to  be  on  paper.  (2  Viner's  Abridg., 
title  Amendment,  letter  H.,  pi.  17;  Idem.,  page 
313,  letter  G.,  pi.  2.) 

Mr.  Woods,  in  support  of  the  rule,  read  the  act 
of  this  State,  which  authorizes  the  suggestion  of 
the  death  of  one  defendant  when  the  cause  of 
action  survives,  and  in  answer  to  the  objection 
in  point  of  time,  he  cited  5  Durn.  &  East,  577. 

Per  Ouriam.  The  case  cited  from  Durn- 
ford  &  East  is  in  point.  Courts  have  of  late, 
so  long  as  the  record  is  before  them,  gone  into 
the  practice  of  granting  all  amendments  to 
which  the  party  "would  have  been  entitled  as  of 
course,  provided  that  it  be  of  no  prejudice  to 
the  other  party. 

Let  the  rule  be  made  absolute  on  payment  of 
the  costs  of  this  motion  and  of  the  writ  of  error. 


CHURCH  ads.  CLASON  AND  STANLEY. 

1.  Consolidation  of  actions — English  ruU — ten- 
der of  agreement.  2.  Idem — rule  to  examine 
witness  de  bene  esse  refused. 

HERE  were  18  separate  causes  on  one  policy. 
In  July  Term  last,  on  the  refusal  of  plaint- 
iffs to  enter  into  the  consolidation  rule,  the 
court  granted  imparlances  in  all  the  causes  but 
one,  and  the  like  in  October  Term,  and  now 
Mr.  Boyd,  for  defendant,  makes  application  for 
further  imparlances. 

*Mr.  Riggs  objected.  He  produced  an  [*OI5 
agreement  which  had  been  tendered  by  plaintiffs 
to  the  defendant,  and  was  refused.  This  he  con- 
tended would,  if  accepted,  have  answered  the 
same  purpose  as  an  exact  compliance  with  the 
rule,  and  ought  to  have  been  received;  and  that 
the  defendants,  after  refusing  that  offer,  were 
not  entitled  to  take  the  effect  of  the  present 
application. 

Per  Ouriam.  The  English  consolidation 
rule  is  the  one  the  court  mean  to  insist  on,  and 
they  will  not  permit  the  plaintiffs  to  prescribe 
to  them  any  other. 

Let  tJie  defendant  take  the  effect  of  his  motion. 

COLEMAN. 


1799 


CARD  ads.  FITZKOY  ET  AL. 


The  plaintiffs  then  applied  for  a  rule  to  ex- 
amine witnesses,  de  bene  esse,  in  the  one  cause 
which  stood  open  for  trial,  but  the  court  re- 
fused it,  observing  that  they  were  entitled  to 
no  indulgence  till  they  had  first  acceeded  to  the 
terms  already  required. 


CARD  ads.  FITZROY  ET  AL. 

Special  motion — service  of  affidavit. 

MOTION  for  judgment  as  in  cases  of  non- 
suit, for  not  proceeding  to  trial,  on  the 
usual  affidavit;  but  no  copy  had  been  served 
on  the  opposite  party. 

Per  Curiam.  It  is  a  rule  of  practice  without 
exception,  that  whenever  a  special  motion  is  to 
be  made  founded  on  affidavit,  a  copy  of  such 
64*]  affidavit  must  *be  regularly  served  on 
the  opposite  party. 

The  defendant  takes  nothing  by  his  motion. 


GILLET  ads.  WILDE. 
Nonsuit — default — stipulation. 
TM~OTION  for  like  judgment  for  like  cause. 

Per  Curiam.  A  defendant  is  not  entitled  to 
this  judgment  for  the  first  default,  provided  the 
plaintiff  will  stipulate  to  bring  the  cause  to 
trial  at  the  succeeding  circuit;  but  if  the  plaint- 
iff can  sufficiently  account  for  the  default,  he 
will  not  be  required  even  to  stipulate.  And  in 
all  cases  the  defendant  must  make  this  motion 
the  next  term  after  the  default,  or  he  will  be 
deemed  to  have  waived  his  claim  to  the  stipu- 
lation. 


HERRING  v.  TYLEE. 
Amendment  of  interrogations  for  fuller  answer. 

A  TTACHMENT  against  the  sheriff.  He 
-L\_  had  answered  the  interrogatories,  and  it 
was  now  moved  to  amend  them,  the  amend- 
ment not  being  as  to  any  new  matter,  but  only 
thereby  to  obtain  a  more  full  answer  to  the 
matters  already  contained  in  them. 

Motion  allowed.  B. 


WILLIAMS  ads.  BATES. 

Imprisoned  debtor — proceedings  for  relief- — ser- 
vice of  notice  of  petition — absent  creditor. 

PROCEEDINGS  under  the  Act  of  the  18th 
X    Feb.  1789,  for  the  relief  of  debtors  with  re- 
spect to  the  imprisonment  of  their  persons. 
65*]      *The  notice  of  the  petition  had  been 
served  on  the  attorney  in  the  suit,  the  plaint- 
iff, the  creditor,  residing  out  of  the  State. 
The  service  lield  sufficient.  B. 

COLEMAN. 


MABBIT  ET  AL. 

ads. 
BIRD,   Assignee  of  the  SHERIFF  of    RENS 

SELAER. 

Equity — bail-bond — before  forfeiture. 

THE  original  suit  was  instituted  against  five; 
the  sheriff  returned  four,  taken,  and  as  to 
one,  non  est;  but  by  mistake  took  bail-bond 
for  the  appearance  of  all.  The  four  who  were 
taken  entered  special  bail,  and  gave  notice,  to 
which  there  was  no  exception. 

The  plaintiff  then  instituted  the  present  suit 
on  the  bail-bond  against  the  whole.  And  now, 

Mr.  Woodworth,  for  defendants,  moved  to  set 
aside  the  proceedings  in  the  suit  for  irregu- 
larity. 

Mr.  Bird,  contra.  He  insisted  that  this  court 
have  no  cognizance  of  a  case  like  the  present; 
that  this  is  an  appeal  to  the  equity  powers  of 
the  court,  which  can  never  be  exercised  till 
after  forfeiture  of  the  condition.  The  de- 
fendants must  resort  to  their  plea. 

Per  Curiam.  The  principle  contended  for 
by  the  counsel  for  the  plaintiff  is  correct. 
Equity  *powers  only  arise  after  for-  [*66 
feiture  of  a  condition  in  the  bail-bond. 

The  defendants  must  rely  upon  their  plea  of 
comperuit  ad  diem.  But  this  decision  is  not  to 
be  understood  as  precluding  defendants  from 
applying  hereafter  to  the  equitable  interposition 
of  the  court. 

Motion  denied. 


PHELPS  «.  BALL. 

Amendment  of  fi.  fa.  after  satisfaction — mis- 
takes. 

IN  this  cause  a  motion  was  made  by  the  At- 
torney-General to  amend  the/,  fa.  after  it 
was  returned  satisfied,  by  altering  two  mistakes 
in  the  writ.     He  cited  Sir  T.  Jones,  41. 
Motion  granted. 

Citation— Sir  T.  Jones,  41. 


APRIL  TERM,  1799. 


FLEMING,  Executor,  p.  TILER. 

Costs — nonsuit — variance — clerical  error. 

THE  plaintiff  shows  as  cause  against  a" rule 
why  he  should  not  pay  costs,  he  having 
been  nonsuited  on  the  trial  at  the  circuit,  that 
the  writing  on  which  the  suit  was  brought  was 
dated  in  seventy,  &c.,  and,  through  mistake  in 
copying  the  date  in  the  declaration,  as  entered 
on  the  Nisi  Prius  Roll,  was  ninety,  &c.,  and 
that  for  this  variance  the  defendant  had  ob- 
tained the  nonsuit  against  him. 

Rule  discharged  B. 

47 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1799 


67*]       *WHITE  ad*.  SPENCER. 

Costs — set-off — recovery  of  insufficient  amount — 
attorney's  lien. 

THE  plaintiff  had  recovered,  but  not  above 
£20;  and  now  a  motion  by  the  defendant 
to  set  off  his  costs  against  the  sum  recovered, 
which  was  opposed  on  behalf  of  the  attorney 
for  the  plaintiff,  whose  affidavit  was  read, 
stating  that  the  whole  of  his  costs  was  still  due 
to  him,  and  that  the  plaintiff  had  become  in- 
solvent. 

Rule  nevertheless  granted  to  ihe  defendant. 

B. 


PHELPS  ad*.  STAFFORD. 

Default — premature  entry — notice  of  motion  to 
net  aside  default — service— judgment — execution 
and  process. 

THE  attorney  for  the  plaintiff  had  entered 
the  default,  the  last  July  vacation,  before 
the  rule  for  pleading  had  expired,  and  the  de- 
fault being  entered,  he  had  refused  to  accept  a 
plea  from  the  attorney  for  the  defendant;  who, 
having  shortly  thereafter  discovered  that  the 
default  had  been  prematurely  entered,  gave  a 
notice  of  a  motion,  as  of  the  ensuing  October 
Term,  to  set  it  aside,  and  no  counsel  appearing 
to  oppose  the  motion  on  the  part  of  the  plaint- 
iff, it  was  granted  of  course. 

The  attorney  for  the  plaintiff,  when  the 
notice  was  served,  resided  in  Albany,  but  hap- 
pening at  the  time  to  be  out  of  town,  and  his 
office  shut  up,  and  he  having  not  long  before 
expressed  an  intention  that  he  probably  would 
remove  into  the  country,  the  attorney  for  the 
68*]  defendant  had  supposed  *he  had  re- 
moved, and  not  finding  he  had  appointed  an 
agent,  the  notice  had  been  affixed  up  in  the 
clerk's  office.  The  judgment  has  since  been 
entered,  and  execution  taken  out  against  the 
defendant,  and  process  issued  against  the  bail. 

ORDERED,  That  the  whole  of  the  proceed- 
ings, from  entering  the  default  inclusive,  be 
set  aside,  and  the  costs  to  abide  the  event  of 
the  suit.  B. 


THE  PEOPLE  v.  TOWNSHEND. 

Certiorari — filing  proceedings  —  returning  pro- 
ceedings— new  trial. 

rp  HE  defendant  was  convicted  under  the  stat- 
J.  ute,  at  the  last  court  of  Oyer  and  Ter- 
miner  in  Dutchess,  of  perjury,  and  absconded 
before  judgment.  Afterwards  he  voluntarily 
surrendered  himself,  but  judgment  was  not 
pronounced. 

LEWIS,  J.,  who  presided  at  the  trial,  now  re- 
ports to  the  court  that  the  verdict  was  against 
evidence,  and  that  it  was  given  on  grounds  not 
pertinent. 

Per  Guriam.  There  must  be  a  new  trial: 
and  the  judge  who  may  preside  at  the  next 
Oyer  and  Terminer  in  Dutchess  will  communi- 
cate this  opinion  to  the  judges  of  that  court. 
In  the  mean  time  the  defendant  must  give  bail 
for  his  appearance. 
48 


The  proceedings  which  have  been  brought 
up  by  certiorari,  not  having  been  actually  re- 
ceived, must  be  returned.  If  they  had  been 
filed  here,  *they  could  not  be  sent  back  [*69 
to  the  Oyer  and  Terminer;  no  form  of  process 
for  such  purpose  is  to  be  found  in  tlie  books; 
but  the  court  must  have  proceeded  to  try  the 
defendant  at  bar  by  a  jury  returned  from 
Dutchess,  or  have  sent  the  cause  down  to  the 
next  circuit  to  be  held  there.  The  court  in- 
cline to  the  opinion  that  in  a  capital  case  it 
would  be  otherwise,  and  that  no  such  case 
could  be  sent  down  for  trial. 

BENSON,  J.,  suggested  that  a  certiorari  for 
bringing  up  the  proceedings  in  like  cases  ought 
only  to  be  allowed  in  open  court. 

( Vide  Ludlow  ads.  The  People,  ante,  page  34.  \ 

S.  C.,  1  Johns.  Gas.,  104. 

Cited— 5  Wend.,  42;  1  Den.,  678;  30  N.  Y.,  548,  554; 
2  Barb.,  288 ;  1  Wheel.,  49T ;  1  Park.,  370, 629 ;  5  Park., 
645. 


CONKLIN  v.  HART. 

Depositions  de  bene  esse — aged  and  infirm  wit- 
nesses— cause  not  at  issue. 

ON  affidavit  that  witnesses  were  so  aged  and 
infirm  that  they  could  not  personally  ap- 
pear in  court,  it  was  moved  that  their  deposi- 
tions be  taken,  de  bent  esse,  before  one  of  the 
commissioners  for  taking  affidavits,  which  was 
objected  to,  because  the  cause  was  not  at  issue, 
and  because  there  was  no  precedent  for  such 
an  application. 

Per  Cur-iam.  This  appears  to  be  a  proper 
case  for  granting  a  commission,  and  it  may  be 
applied  for  at  any  time  after  a  suit  is  instituted 

Motion  granted. 


*HEYERS  v.  DENNING.       [*7O 

1.  Vacating  rule, — no  appearance  of  bail  for  de- 
fendant. 2.  Attorney  appearing  as  agent — 
costs. 

IN  this  cause  the  plaintiff  had  proceeded  to 
outlawry,  when  he  received  a  notice  of  re- 
tainer from*  S.  8.  for  defendant,  who,  in  his 
notice  signed  for  or  on  behalf  of  defendant, 
and  said,  verbally,  that  he  did  not  mean  to  ap- 
pear as  attorney.  At  the  last  term  S.  had  ob- 
tained a  rule  that  all  proceedings  should  be  set 
aside  ;  but  no  bail  had  been  entered. 

Mr.  Jones,  for  plaintiff,  moved  to  vacate  the 
rule  which  was  so  obtained,  on  the  ground  that 
the  interference  by  S.  was  irregular. 

Per  Curiam.  S — ,  appearing  in  the  manner 
he  did,  must  be  considered  as  a  mere  stranger, 
and  could  not  take  any  rule  in  the  cause.  The 
defendant  has  neither  appeared  in  person,  nor 
by  attorney,  nor  entered  bail  ;  therefore  all  the 
proceedings  must  be  set  aside.  And  the  court, 
considering  it  as  improper  practice  in  any  attor- 
ney to  attempt  to  appear  as  agent,  but  not  as 
attorney,  add,  that  S.  himself  pay  the  costs. 

C'OLEMAN. 


CORNELL  v.  ALLEN  AND  TALXIADGE. 


71 


CORNELL  v.  ALLEN  AND  TALMADGE. 

Nonsuit  set  a»ide — Cause  settled — Notice  to  Attor- 
ney— Costs  of  Motion. 

MOTION  to  have  judgment  of  nonsuit  for 
not  bringing  on  the  cause  to  trial,  set 
aside. 

7 1*]  *The  suit  was  against  the  defendants 
jointly,  on  a  promissory  note.  Talmadge  only 
was  brought  in,  and  he  employed  an  attorney. 
The  note  was  afterwards,  by  agreement  be- 
tween Allen  and  a  third  person,  taken  up,  and 
the  costs  paid  by  that  person  to  the  plaintiff's 
attorney.  The  attorney  employed  by  Tal- 
madge, notwithstanding  he  was  informed  by 
the  plaintiff's  attorney  that  the  note  was  so 
taken  up  and  the  costs  paid,  filed  a  plea,  the 
general  issue,  and  served  a  copy  on  the  plaint- 
iff's attorney  ;  and  in  a  subsequent  term,  after 
there  had  been  a  circuit  in  the  county,  ob- 
tained the  above  rule  for  judgment  of  nonsuit. 

Judgment  set  aside,  and  the  attorney  employed 
by  Talmadge  ordered  to  pay  to  the  plaintiff's  at- 
torney tJie  costs  of  this  motion.  B. 


MURRAY  v.  SMITH. 
Costs  of  Declaration  and  Rule  to  Plead — No  Bail. 

THE  cause  had  been  removed  by  habeas 
corpus,  and  the  plaintiff  filed  a  declaration, 
?ind  entered  a  rule  to  plead  ;  but  the  defendant 
not  having  put  in  bail,  a  procedendo  issued,  and 
the  plaintiff  prevailed  in  the  inferior  court. 
On  a  reference  to  the  judges  by  both  the  par- 
ties, they  declared  that  the  plaintiff  was  not  en- 
titled to  have  the  costs  of  the  declaration  and 
rule  to  plead  in  this  court  taxed  against  the  de- 
fendant, these  services  being  useless,  until  the 
defendant  has  put  in  bail.  B. 


72*]  *LECONTE  ».  PENDLETON. 

Pleading  Nul  tiel  record  and  Nil  debet — Election. 
Citation— Carnes  v.  Duncan,  Col.  Cos.,  41,  ante. 

THE  declaration  in  this  cause  consisted  of  a 
single  count  in  debt  on  judgment,  ren- 
dered in  the  State  of  Georgia,  to  which  the 
defendant  pleaded, 

1st.  Nul  tiel  record,  and 

2.  Nil  debet,  with  notice  of  special  matter. 

It  was  then  moved  that  the  defendant  show 
cause  why  one  of  the  pleas  should  not  be  struck 
out. 

Mr.  Harrison,  for  plaintiff,  in  behalf  of  the 
motion,  insisted  that  the  record  of  Georgia  is, 
by  the  Constitution  of  the  United  States,  enti- 
tled to  implicit  faith  ;  and  if  so,  the  two  pleas 
could  not  stand  together  ;  or  if  such  faith  is 
not  to  be  given,  the  plea  of  mil  tiel  record  is  a 
mere  nullity,  and  ought  to  be  struck  out,  and 
cited  to  this  point,  1  Douglass,  6 ;  2  Dallas, 
302  ;  1  Cromp.  Prac.,  173.  He  also  contended 
that  one  plea  being  triable  by  the  court, 
and  the  other  by  the  jury,  it  was  an  additional 
reason  why  they  ought  not  to  be  allowed  to 
stand  together. 

The  defendant  contended,  in  reply,  that  the 
issue  on  nul  tiel  record  to  judgments  rendered 
COLEMAN.  N.  Y.  REP..  BOOK  1. 


in  other  States,  can  only  be  an  issue  to  the 
country,  and  that  therefore  both  these  pleas 
must  be  tried  in  the  same  manner.  He  relied 
on  the  case  of  Walker  et  al.  v.  Wilier  (Doug- 
lass, 1). 

*The  court,  without  giving  any  opinion  [*73 
on  what  was  also  made  a  question  between  the 
parties,  whether  nul  tiel  record  was  at  all  plead- 
able  in  the  case,  granted  the  plaintiff  the  fol- 
lowing rule,  viz. : 

Ordered,  That  only  one  of  the  two  pleas  in 
this  cause  be  allowed,  and  that  the  defendant, 
within  four  days  after  the  notice  of  this  rule, 
do,  or  in  default  thereof  that  the  plaintiff  may 
elect  which  shall  be  allowed,  and  that  the  other 
plea  shall  be  deemed  disallowed.  (Vide  the 
case  of  Carnes  v.  Duncan,  Admr.,  ante,  p.  35.) 

Overruled— 6  Cow.,  41. 


JULY  TERM,  1799. 


BAKER  ads.  BURNS. 

Imprisoned  Debtor — Proceedings  for  Relief — De 
fective  Inventory,  a.  Arms  not  specified,  b. 
Possession  and  Ownership  of  Articles,  c.  Im- 
prisonment on  tort.  d.  Stamped  Inventory. 

T  EE  moved  that  the  defendant  be  brought  up 
Jj  to  take  the  benefit  of  the  Act  made  "  for 
the  relief  of  debtors  with  respect  to  the  impris- 
onment of  their  persons. " 

Mr.  Munro,  for  plaintiff,  objected,  1st.  That 
in  the  inventory  served  on  him  the  arms  of  the 
defendant  are  not  specified  in  the  schedule.  2. 
That  the  inventory  does  not  particularize  when 
he  owned  and  had  the  articles,  &c.  3d.  That 
he  is  confined  on  a  suit  for  breach  of  promise 
of  marriage,  and  that  this  is  to  be  considered 
as  a  tort,  whereas  the  act  only  applies  to 
contracts.  4th.  That  the  inventory  is  not 
stamped. 

Mr.  Lee,  contra. 

*Per  Curiam.  All  the  objections  are  [*74 
untenable,  excepting  the  last,  but  the  inventory 
ought  to  be  stamped,  and  that  objection  is 
fatal. 

Motion  denied. 


PENDLETON  ads.  LE  CONTE. 

/ 

1.  Inquest,  Motion  to  set  aside — Notice  of  applica- 
tion for  Commission.  2.  Ibid. — Ibid. —  Valid- 
ity of  Plea. 

TSSUE  was  joined  on  the  9th  of  June  last,  and 
-L  on  the  19th,  notice  was  given  by  defendant 
that  application  would  be  made  this  term  for  a 
commission  ;  notwithstanding  which,  on  the 
26th,  the  plaintiff  gave  notice  of  trial  for  the 
July  circuit,  at  which  time  an  inquest  was 
taken  by  default, 

Mr.  B.  Livingston  now  moved  to  set  it  aside 
for  irregularity. 

4  49 


74 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


Mr.  Harrison,  for  plaintiff .  The  defendant 
having  been  obliged  by  the  order  of  last  term  to 
elect  one  of  the  two  pleas,  has  seen  tit  to  abide 
by  the  plea  of  nil  debet ;  but  no  such  plea  can 
be  received  in  this  action,  and  it  must  be  con- 
sidered a  mere  nullity.  The  merits  of  any 
judgments  rendered  in  a  sister  State  cannot 
under  the  act  of  Congress  be  examined  here. 
Nul  tiel  record  is  the  only  plea  that  is  admissi- 
ble. And  as  to  the  notice  of  the  intended  ap- 
plication for  a  commission,  it  ought  not  to 
operate  to  procure  the  defendant  a  delay,  for 
it  was  his  neglect  that  he  had  not  applied  last 
term. 

Mr.  Burr,  in  reply.  Whether  any  testimony  in- 
volving merits  can  be  admitted  under  any  plea, 
75*]  or  *whether  plea  of  nil  debet  is  proper  in 
this  action,  are  points  not  to  be  tried  in  this 
way.  The  application  for  a  commission  is  in 
time,  according  to  rule  IX  of  April,  1796. 

Per  Curiam.  Issue  not  having  been  joined 
till  after  the  election  was  made  in  vacation,  the 
defendant  is  in  time  by  the  rule  of  April,  1796. 
On  the  other  point,  we  are  of  opinion  that  the 
propriety  of  the  plea  is  not  examinable  upon 
this  motion. 

Let  the  verdict  be  set  aside,  and  a  commission 
issue  ;  the  costs  to  abide  tJie  event  of  the  suit. 


HASKINS  ad*.  GRISWOLD. 

Demurrer  for  Delay — Leave  to  Withdraw  and 
to  Plead. 

BURR,  for  defendant,  moved  for  leave  to 
withdraw  his  demurrer  and  plead  issuably, 
on  affidavit  that  he  had  merits  which  he  did 
not  know  of  until  after  he  had  filed  his  de- 
murrer. 

Mr.  Riggs  insisted  that  as  the  demurrer  was 
frivolous  and  only  put  in  to  obtain  delay,  the  de- 
fendant ought  not  now  to  be  permitted  to  with- 
draw it.  He  then  read  a  counter  affidavit  on  the 
point  of  merits,  showing  an  acknowledgment 
on  the  part  of  the  defendant,  subsequent  to  the 
commencement  of  the  suit,  of  the  justness  of 
the  demand,  and  a  promise  to  pay  it. 

Per  Curiam.  It  appears  upon  the  face  of 
the  demurrer  itself  that  it  was  frivolous  and 
for  the  purpose  of  delay.  If  a  defendant  puts 
in  a  frivolous  demurrer,  and  then  applies  to 
the  grace  of  the  court,  he  shall  have  none.  He 
has  acted  unmeritoriously,  and  shall  be  held  to 
Minimum,  ju*. 

Tlie  defendant  must  take  nothing  by  hu  mo- 
tion. 


SWARTWOUT,  Manucaptor  of  SANDS, 

ads. 

GELSTON,  Assignee  of  the  SHERIFF  OF  NEW 
YORK. 

1.   Retainer  and  Bail — Notice — Due  Service.    2. 
Stay  of  Proceedings  on  Bail-bond — Laches. 

THIS  was  an  application  to  stay  proceedings 
on  bail-bond.     The  attorney  for  defendant 
in  the  original  suit  had  given  notice  of  retainer 
50 


and  of  bail  at  the  same  time,  by  leaving  it  at 
the  office  of  plaintiff's  attorney  which  was  kept 
in  his  dwelling-house,  when  no  person  was 
present.  It  appeared  that  two  terms  had 
elapsed  before  the  present  suit  was  commenced. 
It  was  insisted,  1st,  that  the  service  of  notice 
was  regular,  and  to  this  point  was  cited  4  Durn. 
&  East,  464.  And  2d,  that  the  plaintiff  had 
been  negligent  in  delaying  so  long  to  put  the 
bail-bond  in  suit.  (Barnes's  Notes,  103.) 

Per  Curiam.  The  notice  was  not  duly  served. 
It  should  have  been  given  to  some  person  in 
the  house.  To  make  a  notice  good,  it  must  be 
shown  that  everything  has  been  done  to  bring 
it  home  to  *the  party.  The  service  must  [*7  7 
first  be  on  some  person  in  the  office,  and  be- 
longing there ;  if  nobody  is  there,  it  must  be 
upon  some  one  in  the  house  where  the  attorney 
resides  or  the  office  is  kept ;  and  if  nobody  is 
there  it  may  be  left  in  the  office.  But  as  there 
has  been  a  negligence  on  the  part  of  the  plaint- 
iff in  not  putting  the  bail-bond  in  suit  at  the 
subsequent  term,  we  will  not  now  fix  the  bail 
for  the  irregularity  of  the  notice,  which  the 
prevalence  of  the  yellow  fever  in  the  city  at  the 
time  may  in  some  measure  excuse. 

Let  the  proceedings  stay  on  payment  of  costs, 
and  receiving  a  justification  of  bail  if  required. 

Mr.  Wortman  for  defendant. 
Mr.  Cole-man  for  plaintiff. 


WATERS,    Sheriff    of    Orange,    ad*.    THE 
PEOPLE. 

Contempt  —  Sheriff —  Attachment —  Personal 
Knowledge  of  Execution  —  Delivery  to  Deputy 
and  Affirmance. 

THE  sheriff  was  brought  in  upon  an  attach- 
ment, and  the  plaintiff  in  the  original  suit 
having  filed  interrogatories  within  the  four 
days  allowed  him,  and  the  sheriff  having  also 
filed  his  answers  as  taken  by  the  clerk,  the  fol- 
lowing judgment  was  entered: 

Per  Curiam.  A  sheriff  is  not  to  be  consid- 
ered as  in  contempt  for  not  acting  on  an  execu- 
tion which  never  came  to  his  personal  knowl- 
edge, or  was  not  lodged  in  his  office.  But  in 
this  case  it  appears  the  ./?.  fa.  was  delivered  to 
a  deputy,  and*  we  need  not  say  whether  [*78 
such  delivery  be  good  so  as  to  charge  the  sheriff 
himself,  because  here  the  sheriff  afterwards 
affirmed  the  receipt  by  interfering  and  acting. 
He  did  not  return  it  within  forty  days,  and  his 
answers  are  not  satisfactory. 

The  court  adjudge  him  to  pay  a  fine  of 
twenty  dollars  for  the  contempt,  and  also  the 
costs  of  the  rule  and  attachment,  and  to  stand 
committed  till  the  fine  and  costs  be  paid. 

Overruled— «  Cow.,  42. 


IN   THE   MATTER    OF   M'KINLEY   &    CO., 

absent  debtors. 

Attachment — Payment  by  Surety — Supersedeas. 

UNRO,  indorsee  of  a    bill    of    exchange 
drawn  by  M'Kinley  &  Company,  sued 
out  an  attachment  under  the  Act  passed  4th 

COLEMAN. 


M 


1799 


CANNON,  MANUCAPTOR,  ADS.  CATHCAKT. 


78 


April,  1786,  for  relief  against  absconding  and 
absent  debtors,  and  seized  a  vessel,  the  proper- 
ty of  M'Kinley  &  Co.  Afterwards  Munro 
received  the  amount  of  the  bill  from  Wheeler, 
his  indorser,  but  it  was  agreed  between  Munro 
uiid  Wheeler,  that  the  proceedings  should  still 

§o  on  for  the  benefit  of  the  latter,  and  Munro 
e  considered  as  his  trustee.  Application  was 
then  made  on  behalf  of  M'Kinley  &  Co.,  to  the 
recorder  for  a  »upersedcas,  upon  the  ground 
that  plaintiff,  after  having  been  satisfied  for  his 
demand,  could  not  still  retain  the  attachment. 
The  recorder  allowed  the  supersedeas,  from 
which  there  was  an  appeal  from  this  court. 

Per  Curiam.  The  22d  section  of  the  act  pro- 
79*]  *vides,  "That  if  any  person  against 
whose  estate  or  effects  such  warrant  of  attach- 
ment, shall  be  issued,  shall  at  any  time  before 
trustees  are  appointed,  apply  to  the  judge  who 
shall  have  issued  such  warrant,  and  give  such 
security  as  such  judge  shall  direct  and  approve, 
to  the  person  or  persons  at  whose  instance  such 
warrant  issued,  to  appear  and  plead  to  any  suit 
or  action  to  be  brought  within  six  months 
thereafter,  &c.,  and  to  pay  all  such  sums  as 
may  be  adjudged  in  such  suit  or  action,  then 
such  judge  shall  issue  a  supersedeas."  And  the 
23d  section  provides,  ' '  That  in  all  cases  where, 
upon  any  such  attachment  or  attachments,  any 
ship  or  vessel,  or  any  part  thereof,  shall  be 
seized  or  attached,  it  shall  be  lawful  for  the 
judge  who  shall  have  issued  such  warrant  or 
warrants,  to  cause  such  ship  or  vessel,  or  part 
thereof,  so  seized  or  attached,  to  be  valued  by 
indifferent  persons;  and  if  any  person  will 
give  security  to  be  approved  of  by  such  judge, 
to  the  people  of  the  State  of  New  York,  for  the 
benefit  of  the  creditors  of  such  debtor,  to  pay 
the  amount  of  such  valuation  to  the  trustees  to 
be  in  such  case  appointed,  then  such  judge 
shall  cause  such  ship  or  vessel  to  be  discharged 
from  such  attachment." 

Although  a  payment  may  be  equivalent  to 
living  the  security  required  by  the  22d  section 
of  the  act,  as  has  been  insisted  in  the  argu- 
ment, yet  that  certainly  must  be  a  payment  by 
the  principal  debtor,  and  not  by  his  surety,  or 
one  who  is  collaterally  responsible;  the  appli- 
cants, therefore,  do  not  come  within  that  sec- 
8O*]  tion.  The  next  section  provides  *express- 
ly  that  the  security  shall  be  given  for  the  bene- 
fit of  all  the  creditors,  and  therefore,  as  the  in- 
dorser here  who  paid  the  money,  must  be  con- 
sidered as  a  creditor,  he  has  a  right  to  avail  him- 
self of  this  attachment,  and  Munro  may  be  con- 
sidered a  trustee  for  his  benefit. 

If  the  prosecutor  is  paid,  and  the  applicants 
would  avail  themselves  of  it,  they  must  resort 
to  their  plea. 

Let  tlie  order  be  reversed. 

S.  C.,  1  Johns.  Cas.,  137. 

Cited  in  16  Johns.,  14, 164 ;  10  N.  Y.,  67 ;  3  Barb.,  13. 


OCTOBER  TERM,  1799. 


CANNON,  Manucaptor,   ads.    CATHCART. 

Costs — Special  Bail — Exoneretur — Demand  for 
Costs. 

IN  January    Term    last,    the    defendant  as 
special  bail  was  relieved,  and  an  exoneretur 

COLEMAN 


was  ordered  to  be  entered,  on  payment  of 
costs.  The  costs  not  having  been  paid,  the 
proceedings  went  on;  and  now  it  was  moved 
by  Mr.  Burr  to  have  him  relieved,  on  the  ground 
that  costs  never  having  been  demanded,  or  a 
bill  exhibited,  there  was  no  neglect  on  the  part 
of  the  defendant  in  not  having  paid  them. 

Per  Curiam.  The  discharge  ordered  at  last 
January  Term  was  conditional,  and  it  was  the 
duty  of  defendant  to  have  paid  the  costs  to 
plaintiff  without  waiting  for  a  demand  or  the 
tender  of  a  bill.  If  he  is  relieved  now,  it  must 
be  on  payment  *instanter  of  the  costs  [*81 
ordered  last  January  Term,  and  also  the  costs 
of  the  subsequent  proceedings,  including  the 
costs  of  resisting  this  application. 

Let  Mm  take  tlie  effect  of  his  motion  on  those 
conditions. 


PL  ATT  v.  BOBBINS  ET  AL.,  Administrators, 
&c.,  of  SMITH. 

Motion  for  Judgment — Pleas — Demurrer. 

A  JUDGMENT  against  Smith  in  his  lifetime 
had  been  revived  by  scire  facias  against 
the  defendants  as  his  administrators,  on  which 
there  was  a  judgment  by  default.  A  suit  was 
then  brought  against  the  present  defendants, 
suggesting  a  devastavit,  to  which  they  pleaded, 

I.  Plene  administravit. 

II.  That  the  defendants  as  administrators, 
did  not  eloigne  the  assets. 

III.  That   Smith,    their  intestate,   executed 
before  his  death,   a  bond  of  $50,000  to  the 
United  States,  which  remains  unpaid. 

It  was  now  moved  on  behalf  of  the  plaintiff 
in  the  suit,  that  judgment  be  rendered  against, 
the  defendants  by  default,  for  it  was  insisted 
that  as  to  the  pleas  put  in,  they  were  mere 
nullities. 

It  was  said  in  reply  that  this  was  not  the 
regular  *method  of  testing  the  validity  [*82 
of  pleadings,  and  that  the  plaintiff  ought  to 
have  demurred. 

Per  Curiam.  If  pleas  are  not  palpably  bad, 
and  void  upon  the  face  of 'them,  the  opposite 
party  must  resort  to  his  demurrer.  All  the 
court  have  doubts  as  to  one  plea,  and  some  of 
them  as  to  all;  and  therefore 

Plaintiff  must  take  nothing  by  his  motion. 
Mr.  Boyd  for  plaintiff. 
Mr.  Burr  for  defendant. 


SALSTONSTALL  ads.  WHITE. 

Ejectment — Admitting  new  Parties  in  interest — 

Lands  surveyed  and  improved. 
PROCEEDINGS  in  ejectment  for  the  Hol- 
JL      land  Company  lands,   so  called,   in  the 
County  of  Ontario,  as  for  a  vacant  possession. 

Mr.  D.  A.  Offden  moved  that  Wilhem  Willinck 
and  three  others,  commonly  called  "  The  Hol- 
land Company,"  be  made  defendants,  instead 
of  Salstonstall,  the  present  defendant. 

Mr.  Troup,  on  the  same  side.  Any  one  what- 
ever claiming  title,  may  be  made  defendant, 
though  he  has  never  been  in  actual  possession; 
and  to  this  point  cited  Sty.,  368;  Sid.,  24; 

51 


82 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


1  Lilly's  Abr.,  674;  4  Durn.  &  East,  122;  Comb., 
113. 

83*1  *Mr.  E.  Livingston,  contra.  It  is  settled 
that  m  proceeding  for  a  vacant  possession,  one 
claiming  title,  who  is  not  already  a  party  to  the 
suit,  cannot  be  admitted  to  defend,  but  must  re- 
sort to  his  action  of  ejectment.  He  cited  2 
Cromp.,191,192;  Statute  of  this  State  passed  21st 
Feb.,  1788,  sec.  29,  30;  the  first  of  which  sections 
subjects  tenants  to  penalties  for  not  giving 
notice  to  their  landlords  of  declarations  of 
ejectment;  and  the  last  of  which  provides  that 
landlords  may  be  admitted  defendants  by  being 
joined  with  their  tenants.  From  which  it  fol- 
lows that  no  case  is  contemplated  by  our  laws 
of  admitting  anyone  to  come  in  and  defend 
who  is  not  a  party  to  the  original  suit,  except  a 
landlord  who  has  a  tenant  in  possession. 

Mr.  B.  Livingston,  in  reply.  In  this  case  the 
lands,  in  judgment  of  law,  are  not  vacant. 
The  suit  is  brought  to  recover  several  hundred 
thousand  acres,  and  it  appears  by  the  affidavit, 
that  the  Holland  Company  have  surveyed  the 
tract,  and  erected  buildings  on  some  part  of  it. 

Per  Curiam.  The  strict  principles  applica- 
ble to  proceedings  as  for  a  vacant  possession  in 
England,  cannot,  without  manifest  incon- 
venience, be  applied  to  unlocated  lands  in  this 
country.  Besides,  here  has-been  a  survey  of 
this  land,  and  buildings  have  been  erected  on 
some  part  of  it. 

Motion  granted. 


84*]        *BROWN  c.  MITCHELL. 

Ejectment — Confiscated  and  Forfeited  Estates — 

Improvements — Act  of  May  1,  1786,  sec.  10. 
rpHE  leaser  of  plaintiff  recovered  at  the  last 
JL  Dutchess  Circuit  on  title  existing  prior  to 
1776,  and  the  defendant  set  up  title  derived 
from  the  State,  under  a  sale  by  the  commis- 
sioners of  forfeitures,  prior  to  1782,  and  under 
the  Act  passed  October  22d,  1799,  entitled, 
"  An  Act  for  the  forfeiture  and  sale  of  the 
estates  of  persons  who  have  adhered  to  the 
enemies  of  this  State,  and  for  declaring  the 
sovereignty  of  the  people  of  this  State,  in 
respect  to  all  property  within  the  same." 

The  Attorney-  General,  for  the  defendant, 
now  moved  for  the  appointment  of  appraisers 
under  the  first  section  of  the  Act  passed  May 
12th,  1784,  entitled,  "  An  Act  for  the  speedy 
sale  of  the  confiscated  and  forfeited  estates 
within  this  State,  and  for  other  purposes  there- 
in mentioned,"  to  ascertain  what  improvements 
the  plaintiff  must  pay  before  he  can  take  pos- 
session. 

Mr.  Evertson,  contra.  The  act  of  1784  cannot 
apply  to  sales  made  prior  to  it. 

The  Attorney-General,  in  reply,  cited  the  10th 
section  of  the  Act  passed  May  1st,  1786, 
entitled,  "  An  Act  further  to  amend  an  Act 
entitled,  '  An  Act  for  the  speedy  sale  of  the 
confiscated  and  forfeited  estates  within  this 
State,  and  for  other  purposes  therein  men- 
tioned.' " 

85*]  *Per  Curiam.  The  act  last  cited  its 
retrospective,  and  affects  prior  titles,  and  so 
courts  have  considered  them. 

Let  the  defendant  take  the  effect  of  his  motion. 


GEORGE  ad*.  BENNINGER. 

Notice  of  Argument — For  Day  in  Term — Objec- 
tion—  Waiver. 

THE  court  in  this  case  determined,  that  if  a 
notice  of  argument  is  given  for  any  day 
in  term,  subsequent  to  the  first,  the  party 
who  would  object  to  it  on  that  account  must  • 
appear  and  state  such  objection  at  the  time 
when  the  motion  is  brought  on;  and  if 
he  does  not,  he  will  be  deemed  to  have  waived 
such  objection. 


DRAKE  v.  MILLER. 

Contempt  — Attachment —  Certiorari —  Defeclire 
Notice  of  Return — Act  of  January  24,  1797. 

A  JUSTICE  OF  THE  PEACE  was  brought 
up  on  attachment  for  contempt  in  not 
having  made  return  to  a  certiorari  directed  to 
him,  and  made  returnable  "before  us." 

Pei~  Curiam.  The  Act  passed  the  24th  of 
January,  1797,  entitled,  "An  Act  concerning 
the  Supreme  Courts,"  enacts,  "That  all  writs 
and  process  to  be  issued  from  and  after  the  ex- 
piration of  October  Term  in  the  present  year, 
and  returnable  in  the  Supreme  Court,  shall  be 
made  returnable  before  our  Justices  of  our  Su- 
preme Court  of  judicature,"  <fcc.,  and  process 
made  returnable  in  any  *other  form  [*8O 
must  be  considered  as  returnable  out  of  court 
and  void. 

Let  the  attachment  be  discharged  with  costs. 
Overruled— 5  Johns.,  167,  233. 


VIELIE  ads.  TOWERS. 

Costs — Nominal    Verdict — Certificate  af  Judge 
out  of  Court— Act  of  February  12,  1877. 

THIS  was  an  action  of  assault  and  batten', 
and  a  verdict  for  plaintiff  at  the  circuit, 
for  six  cents  damages  and  six  cents  costs.  A 
certificate  was  given  by  the  judge  who  pre- 
sided at  the  trial,  to  entitle  the  plaintiffs  to  full 
costs,  but  it  was  not  given  at  the  trial. 

Mr.  Woodworth,  for  the  defendant,  under  a 
motion  that  the  certificate  of  the  judge  be  va- 
cated, now  brought  up  the  question  whether 
this  certificate  is  conformable  to  the  5th  sec- 
tion of  the  Act  entitled,  "An  Act  to  reduce 
the  laws  concerning  costs  into  one  statute," 
passed  the  12th  of  February  1787.  He  con- 
tended, that  agreeable  to  this  act  the  certificate 
must  be  granted  by  the  judge  sedt-nte  curia. 
and  could  not  be  granted  with  any  effect  after- 
wards. Such,  he  said,  was  the  English  statute, 
and  such  their  practice  under  it. 

Per  Curiam..  The  Statute  enacts,  "That  in 
all  actions  of  trespass  and  assault  and  battery, 
commenced  or  prosecuted  in  the  Supreme 
Court,  wherein  the  judge,  at  the  trial  of  the 
cause,  shall  not  find  and  certify  under  his 
hand  upon  the  back  of  the  record,  that  an  as- 
sault and  battery  was  sufficiently  proved,  or 
that  the  freehold  or  *title  of  the  land  [*87 
mentioned  in  the  plaintiff's  declaration,  was 

COI.EMAJS-. 


1800 


DOLE,  SHERIFF  OF  RENBSELAER,  v.  MOULTON,  ET 


chiefly  in  question,  the  plaintiff  in  such  action, 
in  case  the  jury  shall  find  the  damages  to  be 
udder  forty  shillings,  shall  not  recover  or  obtain 
more  costs  of  suit  than  the  damages  so  found 
shall  amount  to."  This  provision  being  reason- 
ably interpreted,  means  only  that  the  certifi- 
cate should  be  given  by  the  judge  who  presided 
at  the  trial,  and  not  that  the  act  of  making  out 
the  certificate  should  be  performed  then. 


JANUARY  TERM,  1800. 


DOLE,  Sheriff  of  Rensselaer, 

V. 

MOULTON  ET  AL. 

1. ^Amendment  of  Pleading — 8th  Sec.  Rules  of 
April  Term,  1796— Adding  New  Ffaeu.Jgfs. 
Election  of  Pleas — Demurrer. 

THIS  was  an  action  upon  a  bond  given  to  the 
sheriff,  conformably  to  the  Act  passed 
April  oth,  1798,  entitled,  "an  Act  regulating  the 
liberties  of  jails." 
The  defendants  pleaded  five  pleas  : 

1.  Non  estfactum. 

2.  Performance  of  the  condition. 

3.  That  the  escape  was  by  casualty,  and 
that  there  was  a  return  before  suit  brought. 

4.  That  the  penalty  is  for  more  than  double 
88*]  the  *amount  of  the  sum  for  which  the 
prisoner  was  confined,  and  so  not  agreeable  to 
the  statute. 

5.  That  the  condition  of  the  bond  is  not 
conformable  to  the  statute. 

But  the  two  last  pleas  were  •  added  after  de- 
murrer to  the  second  and  third  pleas,  and  be- 
fore default  or  joinder. 

Mr.  Henry,  for  plaintiff,  withdrew  his  demur- 
rer, and  now  moved  that  the  defendant  elect  one 
of  the  three  first  pleas  and  abide  by  it,  for  he 
insisted  that  the  pleas  were  incompatible.  And 
he  moved  at  the  same  time  that  the  two  last 
pleas  be  struck  out  for  irregularity. 

Mr.  Woodworth,  contra.  He  contended  that 
pleas  have  been  allowed  to  stand  together, 
though  seemingly  incompatible;  and  cited  2 
Black.  Reports,  1093.  And  in  answer  to  the  last 
motion  he  insisted  that  it  was  regular  to  file  the 
two  last  pleas  at  the  time  he  did,  under  the 
provision  contained  in  the  8th  section  of  the 
rules  of  the  April  Term,  1796. 

Per  Curiam.  The  rule  referred  to  by  the 
defendant's  counsel,  that  "Where  there  shall 
be  a  demurrer  to  a  declaration,  or  to  any  other 
pleading,  not  being  a  plea  in  abatement,  the 
party  against  whom  the  demurrer  shall  be 
taken  may,  at  any  time  before  the  default  for 
not  joining  in  demurrer  shall  be  entered,  amend 
the  pleading  demurred  to,"  will  never  extend 
to  permit  the  party  to  add  new  pleas ;  those 
pleas  must  therefore  be  struck  out. 
81)*]  *As  to  the  first  motion,  the  plaintiff, 
after  demurrer,  comes  too  late  to  drive  the  de- 
fendant to  an  election. 

Let  the  defendant  take  only  the  effect  of  his 
motion  in  respect  to  the  two  lout  pleas. 

COLEMAN. 


VANDERWERKER  ads.  CUTLER. 

Stay  of  Proceedings — Second  Suit  after  Konimit 
— Costs— Motion  after  Plea  made. 

TUDGMENT  as  in  case  of  nonsuit  had  been 
v  entered  in  a  former  cause,  for  not  proceed- 
ing to  trial,  and  it  was  now  moved  by 

Mr.  Emott,  after  plea  put  in,  and  notice  of  trial 
received,  that  all  proceedings  should  stay  till 
the  plaintiff  should  pay  the  costs  of  the  first 
suit.  He  cited  2  Dura.  &  East,,  511. 

Mr.  Woodworth,  contra,  Suits  are  not  to  be 
stayed  till  former  costs  are  paid,  except  in  eject- 
ment, or  where  the  merits  have  been  tried,  or  if 
the  suit  appears  to  be  vexatious.  It  has,  however, 
been  done  in  trespass  de  bonis  asportatis,  and  in 
case  of  a  malicious  prosecution.  Besides,  the 
defendant,  after  the  plea  pleaded,  comes  too 
late.  He  cited  in  support  of  his  first  position, 
2  Black.  Reports,  741  ;  3  Wilson,  149  ;  2  Burr, 
1026. 

Per  Curiam.  The  second  suit  shall  be  in- 
tended to  be  vexatious,  the  plaintiffs  having 
voluntarily  suffered  a  nonsuit  in  the  first.  The 
defendant  at  no  time  is  too  late  to  make  this 
application  pending  the  suit  and  before  trial. 

Motion  granted. 

*SHEPHERD  ads.  CASE.        [*9O 

New    Trial — Judgment   entered — ith    Rule    of 
January  Term,  1799. 

THIS  was  a  motion  for  a  new  trial,  but  it 
was  opposed  on  the  ground  that  judg- 
ment having  been  entered  and  no  order  ob- 
tained from  a  judge  to  stay  proceedings, 
according  to  the  fourth  rule  of  'January  Term, 
1799,  the  defendant  was  now  too  late. 

Per  Curiam.  The  true  construction  of  the 
4th  rule  of  January  Term,  1799,  is, 

First,  That  the  notice  of  a  motion,  accom- 
panied by  a  judge's  certificate,  is  a  substitute 
for  the  former  practice  of  a  rule  to  show  cause, 
and  therefore  if  the  party  neglects  to  obtain  a 
certificate,  the  consequence  is,  that  if,  when 
the  hearing  is  to  come  on,  judgment  be  duly 
entered,  he  cannot  be  heard  on  his  motion. 
We  will  not  hear  an  argument  to  set  aside  a 
verdict,  default,  or  inquisition,  after  judgment 
duly  entered. 

Secondly,  There  is  nothing  in  our  rules  to 
prevent  a  party  dissatisfied  with  the  refusal  of 
a  judge  to  grant  a  certificate,  to  apply  to  the 
court.  The  defendant  is  not  therefore  strictly 
entitled  to  be  heard,  but  as  there  appears  to 
have  been  a  misconstruction  of  the  rule,  we 
will,  in  the  present  instance,  open  the  cause 
and  hear  the  motion. 

Mr.  Spencer  for  defendant. 

Mr.  Van  Vechten  for  plaintiff. 


*SACKET,  Demandant,          [*91 

v. 
LOTHROP,   Tenant. 

Writ  of  right —  Writ  returned  sedente  curia  under 

Rule —  Waiver  of  Tenant. 
Citation— Boothe,  92. 

THE  Sheriff,  on  the  quarto  die  post,  had  not 
returned  the  writ,  and  the  demandant  ob- 

58 


91 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


tained  a  rule  that  he  return  it,  sedente  curia, 
or  shew  cause  why  an  attachment  should  not 
issue  ;  and  now  the  writ  being  returned, 

Mr.  Bogardus,  for  the  demandant,  moved  that 
the  tenant  be  called. 

Mr.  8.  TJiompson,  contra.  He  contended  that 
the  demandant  not  having,  on  the  quarto  die 
pout,  obtained  a  day  further,  must  be  consid- 
ered as  out  of  court.  The  rule  on  the  sheriff 
was  a  nullity,  and  instead  of  it  the  demand- 
ant should  have  taken  out  a  second  summons. 
He  cited  1  Reeves,  119,  121. 

Per  Curiam.  The  tenant,  if  he  would  put 
the  demandant  out  of  court,  should  have  en- 
tered a  ne  recipiatur  on  the  quarto  die  post  \  not 
having  done  so  here,  it  must  be  considered  a 
waiver.  By  the  rule  entered,  that  the  sheriff 
return  the  writ  sedente  curia,  the  demandant 
was  to  be  deemed  continued  in  court  from  day 
to  day  during  the  term.  ( Vide  Boothe,  92.) 

So  let  the  tenant  be  called. 


92*]   *FORRESTER  ads.  BARRET. 

Replevin — Nonsuit. 

rpHIS  was  an  action  of  replevin,  and  plaint- 
J-  iff  having  omitted  to  bring  on  the  cause 
to  trial, 

Mr.  Burr,  for  defendant,  now  moved  for 
judgment  as  in  case  of  nonsuit.  (Barnes,  317.) 

Mr.  Harrison  opposed  the  motion,  and  insisted 
that  it  is  never  gran  table  in  this  action;  and 
ciled  Buller,  65;  3  Durn.  &  East,  661;  1  Black. 
Rep.,  375. 

Per  Curiam.  In  the  action  of  replevin,  both 
parties  are  equally  actors,  and  either  party  may 
carry  down  the  cause  for  trial,  no  judgment  as 
in  case  of  nonsuit,  therefore,  is  ever  given. 

The  defendant  mmt  take  nothing  by  his  motion. 


HOLMES  ET  AL.  c.  LANSING. 

Amendment  of  Declaration  after  Plea  made — 
Costs — Imparlance. 

EMOTT  moved  to  amend  the  declaration 
after  plea  pleaded,  which  was  granted, 
but  a  queston  now  arose,  whether  the  defend- 
ant is  entitled  both  to  an  imparlance  and  to 
costs.  (Vide  Str.,  950;  1  Dallas,  465:)  Where 
it  is  said  he  shall  only  have  his  election  of-one ; 
but  in  2  Black.  Rep.,  785,  he  had  both. 

.Per  Curiam.  There  is  a  diversity  of  prac- 
tice between  the  King's  Bench  and  Common 
93*]  Pleas  ;  *the  court  will  therefore  adopt  a 
rule  of  its  own.  As  the  amendment  is  for  the 
benefit  of  the  plaintiff,  it  is  reasonable  he  should 
pay  the  costs  of  it;  and  it  is  equally  reason- 
able that  the  defendant  should  have  an  oppor- 
tunity to  plead  de  now. 

The  plaintiff,  therefore,  may  amend  upon  pay- 
ment of  costs  and  giving  an  imparlance. 


MARCLAR  ET  AL.  ads.  M'EVERS. 

Inquest — Defective  Notice  of  Trial — Motion  for 
Stay  at  Third  Subsequent  Term.' 

THIS  cause  was  noticed  for  the  New  York 
circuit  in  June  last,  but  the  notice  was 
only  of  eight  days;  the  defendant  living  more 
than  forty  miles  distant,  considered  the  notice 
void,  and  paid  no  regard  to  it.  Inquest  was 
taken,  and  when  notice  of  taxation  was  given, 
application  was  made  to  a  judge  to  stay  pro- 
ceedings; and  now  the  question  came  up, 
whether  this  court  would  set  aside  the  verdict. 

Per  Curiam.  The  notice,  though  defective, 
was  sufficient  to  put  the  defendants  upon  in- 
quiry, and  they  ought  to  have  made  their  ap- 
plication at  the  next  term. 

The  defendants  are  now  too  late,  and  mn*t 
take  nothing  by  their  motion. 


*MARSTON 

f. 
LAWRENCE  AND  DAYTON. 


[*94 


Discontinuance  —  Before  Plea  made  m  Second 
Suit — Costs.  2.  Abatement — Verification  of 
Plea.  3.  Id.— Trial. 

Citation— 1  Ld.  Raym.,  274:  2  Ld.  Raym.,  1014; 
Barnes,  257 ;  Sellon  Pr.,  304 ;  Iinpey's  B.  R.,  169 ;  1 
Leon,  105:  2  Comyn's  Dig.,  tit.  Abatement  1, 11;  3 
Comyn's  Dig1.,  tit.  Abatement  1, 14. 

DECLARATION  indorsee  v.  indorser.  Plea 
\J  in  abatement,  a  former  suit  by  plaintiff  P. 
defendants,  to  which  they  had  put  in  a  plea  in 
abatement  that  Francis  Childs  was  a  partner 
and  not  named,  which  suit  was  pending  at  the 
commencement  of  the  present  suit,  and  is  so 
still.  Replication  nul  tiel  record,  and  issue. 

Mr.  Harrison,  for  plaintiff,  stated  the  facts  : 
That  on  the  13th  of  December,  1799, a  discontinu- 
ance was  entered  in  the  first  cause  after  receiving 
the  plea  in  abatement  therein  ;  that  the  present 
suit  was  commenced  before  October  Term,  and 
the  declaration  was  filed  Decemmber  28th  ; 
that  the  plea  in  abatement  was  received  Decem- 
ber 31st ;  that  nil  capiat  per  breve  in  the  former 
was  filed  January  13th,  1800.  Replication  now 
at  issue  was  filed  January  16th. 

The  principal  question  he  stated  to  be, 
whether  the  discontinuance  of  a  former  suit 
must  be  entered  before  new  suit  commenced, 
or  may  be  entered  any  time  before  replication 
of  nut  tiel  record  filed.  He  contended  that  the 
discontinuance  being  matter  of  right,  may  be 
entered  at  anv  time  before  replication.  To 
this  point  he  cited  1  Cromp.,  188;  Barnes,  257; 
1  Leon.,  105;  Impey's  B.  R.,  169;  1  Sellon, 
304. 

Mr .  Burr, for  def endants,insisted  that  a  plaint- 
iff cannot  after  plea  discontinue  without  leave. 

*Mr.  Harrison  said  the  proposition  is  [*95 
erroneous,  for  no  leave  is  necessary  in  any  case 
where  there  is  no  room  for  the  court  to  impose 
terms  or  conditions  on  the  defendant.  And 
such  is  the  case  here. 

April  Term,  1800.  LEWIS,  J.,  and  KENT,  J., 
considered  the  nil  capiat  per  breve  when  entered, 
to  have  had  relation  back  to  13th  of  December, 
when  the  discontinuance  was  entered,  and 

COLEMAN. 


1800 


PHELPS  ADS.  FERRIS. 


95 


therefore  was  even  before  plea  pleaded,  and  so 
within  the  cases  in  1  Ld.  Raymond,  274,  and  2 
Id.  1014.  The  other  judges  thought  this  not 
material,  if  the  same  was  entered  before  repli- 
cation, relying  upon  the  case  cited  from  Barnes. 
All  agreed  that  discontinuance  might  be  en- 
tered any  time  before  plea  pleaded  in  the  sec- 
ond suit'  and  without  leave  or  costs.  (Barnes, 
257  ;  Sellon,  304  ;  Impey's  B.  R.,  169  ;  1  Leon, 
105.)  That  defendant  ought  to  verify  his 
whole  plea,  vide  Com.  Dig.,  tit.  Abatement,  I. 
11.  That  a  plea  in  abatement,  triable  by  rec- 
ord, requires  only  a  judgment  of  responded* 
ouster,  which  is  the  case  if  tried  by  certificate 
•or  inspection.  Vide  Com.  Dig. ,  ante,  I.  14. 

Per  tot.  Cur.     Judgment  of  respondeas  ouster. 


PHELPS  ads.  FERRIS. 

Judgment  on  Bail-bond — Exception  to  Bail — Mo- 
tion to  set  aside. 

MOTION  to  set  aside  judgment  entered  on 
bail-bond,  because  the  plaintiff  had  omit- 
ted to  enter  an  exception  to  the  bail,  and  it  was 
J)6*]  now  *contended  that  he  had  by  such 
negligence  precluded  himself  from  suing  on 
•the  bail-bond. 

Motion  granted. 


APRIL  TERM,  1800. 


BRITT  ET  AL.  v.  VAN  ORDEN. 

Special  Bail — Notice — Subsequent  Filing. 

IN  this  case  a  letter  was  sent  by  A.  B.,  de- 
fendant's attorney,  in  the  month  of  No- 
vember last,  informing  plaintiff's  attorney  that 
special  bail  was  then  tiled ;  the  plaintiff  relying 
upon  this  information,  and  not  intending  to 
object  to  the  sufficiency  of  the  bail,  proceeded 
to  enter  his  judgment  in  January  Term  last ; 
but  had  discovered  since  that  bail  was  not  en- 
tered till  the  29th  of  January ;  it  further  ap- 
peared that  the  defendant's  attorney  had 
.acknowledged  in  his  letter  that  he  was  only 
employed  to  delay. 

Mr.  Hopkins,  for  plaintiff,  now  moves  that 
the  bail-piece  filed  in  January  be  considered  as 
filed  on  the  first  day  of  the  preceding  No- 
vember. 

Mr.  Woods,  contra. 

Pei-  Curiam.  This  was  an  irregularity  in 
practice  not  to  be  countenanced.  Let  the 
plaintiff  take  the  effect  of  his  motion  with 
-costs  to  be  paid  by  the  defendant's  attorney 
himself. 


1*7*] 


*BURR  o.  SKINNER. 


Costs — Notice  for  Commission — Notice  of  Trial. 

BO  YD,  for  plaintiff,  moves  for  costs,  because 
the  defendant  put  off  the  trial  at  the  cir- 

<L'OLEMAN. 


cuit  on  affidavit  and  notice  of  a  motion  to  be 
made  at  the  succeeding  term  for  a  commission, 
the  issue  having  been  joined  during  the  vaca- 
tion. 
Mr.  Pendleton,  contra. 

Per  Curiam.  When  a  defendant  in  -such 
case  wishes  to  sue  out  a  commission,  he  must 
give  notice  of  it  before  he  receives  notice  of 
trial,  or  within  a  reasonable  time,  according  to 
circumstances,  and  such  notice  shall  stay  pro- 
ceedings ;  but  if  it  is  after  notice  of  trial,  he 
must  pay  costs  to  that  time.  Here  the  defend- 
ant was  negligent  in  waiting  till  he  had  first 
received  notice  of  trial,  and  he  must  therefore 
pay  costs. 

Motion  granted. 

S.  C.,  1  Johns.  Cas.  391. 

Cited  in  1  Wend.,  283,  4 ;  2  Wend.,  646 ;  6  How.  Pr., 
115;  Code  R.  N.  S.  407. 


HAUSENFRATS  ads.  GRAVES. 

Default — Motion  to  set  a#ide — 8th  Rule  of  Janu- 
ary Term,  1799 — Sufficient  Posting.    ' 
MOTION  on  the  part  of  defendant  to  set 
aside  a  default  on  affidavit,  stating  that 
the  declaration   was   filed    the    28th    day  of 
January,  and  served  by  being  put  up  in  the 
clerk's  office  ;  that  the  default  was  entered  on 
the  19th  of  February,  at  the  expiration  of  the 
twenty-day  rule,  no  attorney  having  been  then 
employed. 

It  was  now  contended,  that  as  no  attorney 
was  *employed  by  the  defendant,  the  de-  [*98 
claration  should  have  been  put  up  in  the  office 
forty  days  before  default  entered,  according  to 
the  8th  rule  of  January  Term,  1799. 

Per  Curiam.  The  rule  cited  only  applies  to 
a  case  where  an  attorney  is  employed  for  de- 
fendant, but  neither  lives  in  town  or  has  an 
agent  there. 

The  defendant  must  take  nothing  by  his  motion. 


LODER  ad*.  SCOFIELD  ET  ux. 

Writ  of  Right—  View. 
Citation— Booth,  40. 

MUNRO  stated  that  tenant  had  at  a  previous 
term  demanded  view,  but  that  demand- 
ant had  not  issued  the  writ,  and  now  he  re- 
newed his  motion  that  the  demandant  sue  out 
the  writ  of  view,  and  cause  view  to  be  given 
by  the  first  day  of  next  term,  or  be  nonsuited  ; 
and  cited  Booth,  40,  to  show  that  though  a 
view  be  granted  at  the  instance  of  the  tenant, 
the  demandant  is  bound  to  sue  it  out. 

Rule  granted. 


EARL  r.  LEFFERTS. 

Judgment  under  Consolidation  Rule — Limitation 
for  Payment — Costs — Judgment  nunc  pro 
tune. 

A  QUESTION  arose  in  this  cause  on  the  con- 
solidation rule,  whether  on  judgment  be- 

55 


98 


SUPREME  COURT,  STATE  OK  NEW     YORK. 


1800 


ing  rendered  in  one  cause,  the  plaintiff  was 
entitled  to  judgment  in  the  other  causes  imme- 
diately. 

*Per  Curiam.  The  other  defendants  [*99 
shall  have  eight  days  to  pay  the  money,  after 
judgment  in  the  cause  tried  and  taxation  of  the 
costs  in  all  the  causes.  The  plaintiff,  however, 
may  proceed  immediately  to  perfect  his  judg- 
ment, for  his  better  .security  ;  but  if  the  de- 
fendants will  pay  within  the  eight  days,  it  shall 
exempt  them  from  the  costs  of  entering  up 
such  judgments.  When  a  judgment  of  this 
kind  is  rendered  in  Albany,  and  the  defendants 
live  in  New  York,  and  so  vice  versa,  then  in- 
stead of  eight  they  shall  have  fourteen  days  ; 
but  if  payment  is  not  made  within  the  time 
allowed,  or  if  the  plaintiff  does  not  elect  to 
enter  his  judgment  till  the  expiration  of  the 
time,  he  may  then  enter  his  judgment  nunc  pro 
tune,  and  have  his  full  costs. 


DURELL 

ads. 

STANSBUEY,  assignee  of  SHERIFF  OF 
WESTCHESTER. 

DELAY  AN  ads.  THE  SAME. 

Stay  of  Proceedings — Compliance  with  Conditions 
— Tender  of  Costs. 

RULES  had  been  obtained  at  last  October 
Term  to  stay  proceedings  on  bail-bond 
suits,  the  opposite  party  not  having  appeared 
to  object.  At  last  January  Term  an  applica- 
tion was  made  to  set  those  rules  aside,  on  the 
ground  that  no  regular  notice  of  them  had  been 
served.  Other  objections  were  added  as  to  the 
regularity  of  the  application  at  October  to  stay 
proceedings,  particularly,  that  one  of  the  plaint- 
iffs had  not  been  truly  named  in  the  bail-pieces, 
and  that  the  bail  in  the  original  suit  had  not 
justified. 

1OO*]  *A  variety  of  affidavits  taken  on 
both  sides  were  then  read  to  the  point  of  merits. 
And  it  appeared  that  the  special  bail  and  the 
defendants  to  the  bail-bond  suits  were  the 
same. 

The  court  ordered,  "  That  these  causes  being 
now  opened,  and  in  the  same  situation  in  which 
they  were  the  beginning  of  last  term,  let  the 
proceedings  on  the  bail  bonds  stay,  on  payment 
of  osts ;  on  bails  justifying,  if  required  ;  and 
on  the  terms  offered  by  the  defendant's  coun- 
sel, viz.,  to  correct  the  name  in  the  bail-pieces 
and  confess  judgment  in  the  original  suit." 

The  defendant's  attorney  not  understanding 
that  the  rule  went  so  for,  but  that  it  merely  ex- 
tended to  the  vacating  the  first  rule,  applied  to 
a  judge  at  his  chambers  on  the  5th  of  February, 
and  ootained  an  order  staying  proceedings  gen- 
erally until  the  next  term.  This  order  was 
then  duly  served  on  the  plaintiff's  attorney,  but 
considering  it  irregularly  obtained,  he  took  no 
notice  of  it,  but  went  on  with  the  suits.  And 
now 

Mr.  Riffgx,  for  the  defendants,  moved  to  set 
a-iilc  all  proceedings  since  last  term,  as  being 
contrary  to  the  judge's  order;  and  for  a  rule  to 
M 


stay  all  proceedinge  upon  the  bail  bonds  on  the 
terms  formerly  offered. 

Mr.  Jones  objects;  I.  Because  the  judge's  order 
was  irregularly  served,  as  it  was  not  preceded 
by  or  accompanied  with  any  notice  of  the  mo- 
tion, and  because  after  the  order  made  at  term, 
it  was  irregular  *to  apply  to  a  judge  at  [*  1 0 1 
his  chambers.  II.  Because  there  had  been  no- 
offer  by  the  defendants  to  justify  or  to  give  the 
cognovit  actiomm  till  the  3d  of  April,  although 
the  plaintiff  had  filed  his  declaration  on  the 
bail  bonds  as  early  as  the  7th  of  March.  III. 
Because  the  costs  had  never  been  paid  or  ten- 
dered. 

Mr.  Riggs,  in  reply,  said,  1st.  That  the  defend- 
ants had  never  understood  that  the  order  of 
the  court  at  January  Term  extended  to  any- 
thing further  than  merely  to  vacate  the  order 
obtained  in  October;  but  that,  as  to  one  ob- 
jection that  the  bail  had  not  justified;  upon 
principle  that  could  not  be  requisite,  as  the  bail 
to  the  sheriff  had  become  bail  above,  and  the 
plaintiff,  by  suing  the  bail-bond,  had  admitted 
the  sufficiency.  And  as  to  the  costs,  no  bill 
had  ever  been  made,  nor  had  they  ever  been 
demanded. 

Per  Curiam.  As  all  proceedings  had  been 
stayed  in  term  on  certain  conditions,  those  con- 
ditions should  have  been  first  complied  with, 
to  entitle  the  party  to  any  benefit  under  the 
rule;  and  it  was  certainly  irregular  to  apply  aft- 
erwards to  a  judge  at  his  chambers  for  any 
further  order.  But  as  the  defendants  appear  to 
have  mistaken  the  former  decision,  the  court 
will  now  stay  proceedings  on  the  same  condi- 
tions as  were  annexed  last  term,  and  on  pay- 
ment of  all  subsequent  costs. 

As  to  the  other  objection,  the  court  observed 
that  it  was  the  duty  of  the  defendants  to  have 
sought  the  plaintiff  and  tendered  the  costs. 


*DITZ  ads.  BUTLER  ET  AL.    [*lOi* 

Ejectment — Parties — Death  of  one  of  Plaintiff"  x 
Lessors — Proof — Motion  to  strike  out  on  Argu- 
ment. 

HPHE  Attorney-General,  on  affidavit  that  But - 
-L  ler,  one  of  the  lessors  of  the  plaintiff,  is 
dead,  and  was  so  when  the  suit  was  instituted, 
now  moves,  previous  to  joining  in  the  consent 
rule,  to  have  the  first  and  second  count,  in 
which  he  is  averred  to  be  the  lessor,  struck  out 
of  the  declaration. 

Mr.  Riggs,  contra.  It  does  not  appear  certainly 
that  this  Butler  who  is  alleged  to  be  dead,  and 
the  lessor  of  the  plaintiff,  are  the  same  person ; 
but  were  it  so,  yet  he  may  have  been  compe- 
tent to  demise  before  his  death. 

Mr.  Harrison,  in  reply.  If  the  plaintiff  will  not 
produce  his  lessor,  or  give  some  account  of  him, 
the  court  ought  to  lay  their  hands  on  the  cause. 
The  lessor  being  dead  no  one  is  answerable  for 
costs.  Besides,  this  is  a  mode  of  trying  a  title 
against  a  man's  will,  or  trying  the  title  of  a  dead 
man. 

Per  Curiam.  Here  is  evidence  sufficient  to- 
cast  the  burden  of  proof  upon  the  plaintiff  to 
show  that  his  lessor  is  alive,  and  as  he  has  not 

COLEMAN- 


1890 


SABLE  v.  HITCHCOCK. 


102 


done  so,  we  are  all  of  opinion  the  demises  by 
Butler  be  struck  out.  We  are  further  of  opinion 
that  this  is  the  proper  time  and  manner  of 
making  the  application. 


1O3*J     *SABLE  v.  HITCHCOCK. 

Demurrer  — Plaintiffs  Duty  to  make  up  Paper 
Books. 

THE  defendant  here  demurred  to  the  plaint- 
iff's declaration,  and  both  parties  having 
made  up  the  paper  books,  the  question  now 
arose  whose  right  or  duty  it  was. 

Per  Curiam.  It  belongs  to  the  plaintiff  to 
make  up  the  books  and  bring  on  the  argument 
in  snch  cases.  So  is  the  English  practice,  and 
so  have  been  the  latest  decisions  in  this  court. 


GOURLEY  v.  SHOEMAKERS. 

Change  of  Venue — Material  Witnesses — Material 
Fact. 

ON  motion  to  change  the  venue  on  the  usual 
affidavit. 

The  court  said  it  was  not  to  be  considered  as 
sufficient  cause  for  granting  such  motion, 
merely  that  material  witnesses  reside  in  the 
county  to  which  the  party  wishes  to  remove 
the  cause;  but  it  must  be  added  that  evidence 
will  there  be  given  of  some  material  fact  which 
actually  happened  there. 


CRYGIERS  v.  LONG. 

Arrest — Cause  not  accrued — Return  day  subse- 
quent to  accrual  of  Action  — Bail  and  plea, — 
Waiver. 

IN  this  case  a  verdict  was  entered  for  the 
plaintiff  subject  to  the  opinion  of  the  court 
on  the  following  facts: 

1O4*]  *On  the  20th  of  August,  1799,  the  de- 
fendant was  arrested  by  virtue  of  a  capias  tested 
of  July  Term,  and  returnable  at  October;  but  the 
note  on  which  the  writ  issued  did  not  fall  due 
until  the  21st,  and  was  not  payable  till  the  24th 
of  August. 

Mr.  Hawes,  for  the  defendant,  contended  that 
the  arrest  being  made  before  the  note  became 
due  although  on  process  returnable  after,  was 
void.  He  cited  2  Burr,  962;  1  Wils,  147. 

Mr.  Evertson  insisted  that  nothing  could  be 
considered  as  the  commencement  of  a  suit,  but 
the  filing  of  the  bill;  and  that  if  the  plaintiff 
showsa  cause  of  action  before  exhibiting  the 
bill,  it  is  sufficient.  He  relied  upon  Cowp.  454; 
7  Durn  &  East,  4. 

Per  Curiam.  If  an  arrest  be  made  before 
the  debt  is  due,  the  defendant  should  apply  in 
the  first  instance  to  the  court,  or  to  a  judge  at 
his  chambers,  and  not  put  in  bail  and  plead. 
Here  the  defendant  having  omitted  to  make 
such  application,  but  having  filed  bail  and 
pleaded  in  chief,  he  is  too  late. 

C'OLEMAN. 


PERCIVAL  t.  JONES. 

On  Argument — Point  Reserved — Special  Verdict 
— Preparation  and  opening  of  Case. 

rpHE  court  in  this  case  determined,  that  where 
JL  a  point  was  reserved  by  the  judge  at  the 
trial,  it  is  to  be  considered  in  nature  of  a  spe- 
cial verdict,  and  the  plaintiff  is  to  prepare  the 
case  and  to  open  the  argument. 

S.  C.,  1  Johns.  Cas.  393. 

Cited  in  Col.  &  C.  372 ;  1  Caine,  99 ;  2  Caine,  108. 


*SANDS  ads.  BIRD  ET  AL.     [*1O5 

Trial    before    Referees — Motion    to    Postpone — 
Material  Witness —  Commission. 

WORTMAN,  for  defendant,  moved  to  post- 
pone the  meeting  of  referees  till  the  re- 
turn of  a  witness  from  abroad  who  was  ex- 
pected in  two  months. 

Mr.  Pendle ton  objected,  because,  although  the 
cause  had  been  at  issue  for  more  than  two 
years,  no  step  had  been  taken  by  the  defendant 
to  get  out  a  commission;  and  because,  although 
a  commission  had  issued  by  the  plaintiffs  the 
10th  of  January,  1798,  to  take  the  testimony  of 
the  same  witness  then  residing  in  England,  the 
defendant  refused  to  join  in  it. 

Per  Curiam.  The  delay  in  the  cause  has 
been  owing  to  plaintiffs;  nor  has  the  defendant 
ever  put  it  off.  The  cause  is  now  ready  to 
come  before  the  referees,  and  this  application 
is  to  be  considered  in  the  same  light  with  the 
first  application  to  put  off  a  trial  on  account  of 
absence  of  a  material  witness.  It  comes  within 
the  settled  practice.  The  power  given  by  the 
act  to  defendant  to  take  out  a  commission  is  in 
his  favor,  and  an  omission  to  do  it  cannot  alter 
the  ordinary  practice. 

Let  the  defendant  hate  the  effect  of  his  motion 
to  the  extent  of  two  mont?is  unless  the  witness  re- 
turns sooner. 


*  WOODS  ads.  DILL.          [*1O« 

Costs  to  Defendant —  Void  Jury  Process. 

MOTION  by  defendant  for  costs  because 
plaintiff  did  not  try  the  cause  at  the  circuit 
after  he  had  noticed  it.  It  was  objected  be- 
cause the  failure  was  owing  to  the  defendant 
himself,  who,  when  the  plaintiff  was  prepared 
to  go  on,  took  exception  to  the  jury  process, 
which  the  plaintiff  himself  acknowledged  to  be 
void. 

Per  Curiam.  The  defect  of  the  process  was 
the  plaintiff's  mistake,  and  the  defendant  was 
certainly  under  no  obligation  to  come  to  trial 
on  it,  nor  had  plaintiff  any  right  to  demand  it 
of  him. 

Let  the  defendant  take  the  effect  of  hw  -motion. 
Mr.  Bowman  for  defendant. 
Mr.  Elmendolph  for  plaintiff. 


106 


SUPREME  COURT,  STATE  OK  NEW  YORK. 


1800 


JULY  TEKM,  1800. 


POST  e.  VAN  DINE. 

Attachment  against  Sheriff— Tender  of  Money 
in  lieu  of  Sail — Affidavit  of  Merits. 

WKIT  returnable  April  Term  last;  declara- 
tion tiled  6th  of  May;  llth  of  June  notice 
of  bail;  18th,  exception  tiled;  on  the  llth  of 
July  the  rule  for  bringing  in  the  body  had  ex- 
pired, and  plaintiff  refused  to  accept  of  addi- 
tional bail  unless  they  would  justify;  on  the 
same  day  notice  of  the  second  bail  was  given, 
1O7*]  and  an  offer  made  by  *defendant  to 
deposit  a  sum  of  money  to  the  full  amount  as 
security.  Two  more  bail  were  then  put  in 
with  notice  of  justification  on  the  19th  of  July, 
but  they  now  justified  in  open  court.  The  de- 
fendant also  swore  to  merits. 

On  the  above  statement  of  facts  a  motion 
was  now  made  for  an  attachment  against  the 
sheriff.  Sellon's  Practice,  214,  was  cited  to 
show  that  where  a  trial  is  lost,  an  attachment 
is  to  go  and  to  remain  as  a  security.  ( Vide  to 
the  same  point,  4  Durn.  &  East,  3~)2.) 

On  the  other  side  it  was  said  the  case  in  Sel- 
lon  was  where  an  attachment  had  already  is- 
sued. 

Per  Curiam.  At  the  last  circuit  there  was 
no  time  to  try  a  junior  cause,  so  that  no  trial 
has  in  reality  been  lost.  As  the  defendant  has 
sworn  to  merits,  and  as  money  to  the  full 
amount  in  lieu  of  bail  was  tendered  on  the 
1 1th  of  July  and  refused,  and  as  bail  has  since 
justified,  tins  motion  must  be  denied,  but  on 
payment  of  the  costs  of  the  rule  to  show  cause 
and  of  the  motion,  by  the  sheriff. 

Mr.  Ecifker  for  the  plaintiff. 

Mr.  Walton  for  the  defendant. 


COLE  ET  AL.  ads.  STAFFORD. 

Judgment  for  want  of  Plea — Plea  mailed — Costs. 

IN  this  case  a  plea  was  sent  by  the  mail,  and 
the  attorney  for  defendant  swore  that  he  be- 
lieved it  was  received  by  the  attorney  for  the 
1O8*]  plaintiff,  who,  *not  withstanding,  en- 
tered judgment  for  want  of  a  plea.     And  now 
Mr.  Riker,  for  the  defendant,  moved  to  set  the 
judgment  aside  for  irregularity. 
Mr.  Wort-titan,  contra. 

Per  Curiam.  As  affidavit  has  been  made  on 
the  part  of  the  defendant  that  the  plea  was  sent 
by  mail,  and  that  it  is  believed  it  was  received; 
and  as  the  plaintiff's  attorney,  after  receiving  a 
ropy  of  this  affidavit,  though  he  makes  a  counter 
affidavit  several  days  afterwards,  does  not  deny 
the  reception  of  the  plea,  the  court  will  intend 
that  he  did  receive  it. 

M  the  judgment  he  net  oxide,  and  on  payment 
»f  nut*  hy  the  plaintiff"*  attorney  himself. 


FOWLER,  Manucaptor, 

ads. 
BOARDMAN  AND  HUNT. 

Stay  of  Proceedings — Bail  —  Exoneretur — Sur- 
render of  Principal — Sickness — Deputization. 
MOTION  to  stay  proceedings  on  the  recog- 
nizance, and  for  leave  to  enter  an  exoner- 
etur  OB  the  bail-piece.     It  appeared  that  the 
defendant  was  arrested  on  the  recognizance  on 
the  17th  of  April;  that  he  fell  sick  on  the  21st, 
and  lay  ill  10  days;  that  on  the  26th  the  prin- 
cipal was  surrendered  by  an  agent  of  defend- 
ant, he  being  so  unwell  as  to  be  unable  to  do  it 
personally. 

*It  was  objected.  I.  That  the  surren-[*lO9 
der  was  not  in  time,  being  after  the  expiration  of 
the  eight  days  allowed  by  law ;  and  II.  That  here 
the  surrender  was  made  only  by  an  agent  of 
the  bail,  and  not  by  the  bail  himself,  and  so  not 
good  because  bail  cannot  depute. 

Per  Curiam.  The  sickness  of  defendant 
afforded  sufficient  excuse  for  not  surrendering 
within  the  eight  days.  To  the  second  objec- 
tion, it  appears  from  the  form  of  the  sheriff's 
certificate,  that  the  principal  surrendered  him- 
self, and  it  is  to  be  presumed  it  was  done  vol- 
untarily. However,  if  it  were  now  a  question, 
we  incline  to  the  opinion  that  special  bail  may 
depute  ex  necessitate. 

Let  the  defendant  take  the  effect  of  his  motion, 
on  payment  of  costs 


FINCH  ads.  KEMBLE. 

Ejectment — Judgment  —  Plaintiff  serving   new 
Declaration —  Waiver — Costs. 

A  CASE  was  submitted  without  argument, 
consisting  of  the  following  facts:  A 
declaration  was  served  on  the  tenant  in  posses- 
sion, who  shortly  afterwards  quitted,  and 
another  came  in;  then  some  person  acting  as 
the  agent  of  plaintiff,  caused  a  second  declara- 
tion to  be  served  upon  the  new  tenant;  this 
being  done  without  the  knowledge  of  the 
plaintiff's  attorney,  he  proceeded  under  the 
first  declaration,  and  took  judgment  against 
the  casual  ejector.  And  now 

*Mr.  Oephart,  for  the  second  tenant,  [*1 1O 
moved  to  set  aside  the  judgment  and  all  subse- 
quent proceedings. 

Per  Curiam.  By  the  service  of  a  new  decla- 
ration by  plaintiff's  agent,  though  without 
knowledge  of  his  attorney,  the  first  declaration 
and  service  was  waived.  The  plaintiff  may  at 
any  time  stay  or  waive  his  own  proceedings, 
and  his  acts  shall  bind  him. 

Let  the  proceedings  in  the  first  suit  be  set  aside, 
and  the  lessor  of  the  plaintiff  pay  the  costs  of  this 
application. 


BYRON  ET  AL.  ads.  LEFFERTS. 

Service — Defective  Defloration — Oyer  de  novo. 

THE  declaration  with  oyer  was  served  on  de- 
fendant's attorney,  and  afterwards,  having 
been  discovered  to  be  incorrect,  was  amended 
and  served  de  now,  without  a  new  oyer,  the 

COLEMAN. 


1800 


GKAIIAM  ADS.  STOKEY. 


110 


one  delivered  being  correct;  the  defendant's 
attorney  refused  to  receive  this  declaration 
without  a  new  oyer,  on  which  plaintiff  pro- 
ceeded and  entered  a  default.  And  now 

Mr.  T.  L.  Ogden,  for  defendant,  moved  to  set 
the  default  aside. 

Mr.  Hopkins,  contra. 

Per  Curiam.  The  service  of  oyer  de  novo 
was  altogether  unnecessary.  The  defendant 
must  take  nothing  by  his  motion. 


Ill*]    *GRAHAM  ads.  STOREY. 

Service — Declaration  put  in,  Clerk's  Office — Ap- 
pearance within  twenty  days — Service  de  novo. 

IN  this  case,  no  attorney  having  been  retained 
for  the  defendant,  the  declaration  was 
served  by  being  put  up  in  the  clerk's  office;  on 
the  19th  day  afterwards,  the  plaintiff's  attorney 
received  a  notice  of  retainer,  but  having  served 
the  declaration  in  the  above  manner,  he  did  not 
<;onsider  himself  bound  to  serve  it  de  novo,  and 
no  plea  having  been  put  in,  he  entered  judg- 
ment for  default  in  pleading.  And  now 

Mr.  Hopkins,  for  defendant,  moved  to  set  it 
aside,  insisting  that  bv  the  rules  he  had  a  right 
to  a  service  of  the  declaration  on  himself  de 
novo,  after  notice  given  of  his  retainer. 

Mr.  Bleecker,  contra,  objected,  because  it 
would  be  to  allow  a  defendant  to  take  advan- 
tage of  his  own  negligence,  and  thereby  obtain 
double  the  time  usually  allowed  to  plead. 

Per  Curiam.  If  a  declaration  is  served  by 
being  put  up  in  the  clerk's  office,  and  an  attor- 
ney for  defendant  appears  at  any  time  within 
the  20  days,  he  is  entitled  to  service  de  now. 

Motion  granted. 


112*]       *PECK  ads.  PHILLIPS. 

Costs —  Writ  of  Right — Right  to  Nonsuit — Stipu- 
lation for  Trial. 

"DADCLIFT,  for  the  tenant,  in  a  writ  of 
J-t  right,  moved  that  the  demandant,  having 
noticed  the  cause  for  the  last  circuit,  and  hav- 
ing omitted  to  bring  it  on,  stipulate  to  try  at 
the  next  circuit,  or  that  judgment  of  nonsuit 
be  entered  for  not  trying  it  at  the  last,  and  also 
that  the  demandant,  in  the  event  of  his  stipu- 
lating, pay  costs  of  the  last  circuit  and  of  this 
motion,  as  the  continuance  is  matter  of  indul- 
gence to  him.  (2  Cromp.,  Pr.,  468,  469;  2  Bl. 
Hep.,  1110.) 

Mr.  Harrison  agreed  to  stipulate,  but  opposed 
the  application  for  costs,  on  the  ground  that  no 
costs  are  recoverable  by  law  in  real  actions. 

Per  Curiam.  The  allowance  of  costs  in  this 
case  does  not  depend  on  any  statute,  but  upon 
the  rules  and  practice  of  the  court  merely.  It 
is,  of  course,  discretionary.  As  the  tenant  is 
strictly  entitled  to  judgment  as  in  cases  of  non- 
suit, and  the  demandant,  to  avoid  it,  applies 
for  the  benefit  of  another  rule  of  court,  by 
offering  to  stipulate  to  try  his  action  at  the  next 
circuit,  we  think  we  ought  to  impose  on  him 
the  terms  of  paying  the  costs  already  accrued, 
for  not  proceeding  to  trial  according  to  his 
COLEMAN. 


notice.  We  ought  not  to  grant  him  a  favor  by 
allowing  him  to  make  this  stipulation,  and 
thereby  escape  the  consequence  of  his  default, 
without  requiring  him  to  re-instate  the  opposite 
party,  and  place  him  in  the  condition  he  was, 
by  paying  costs. 

Motion  granted. 


*lN   THE  MATTER  OF  JOSEPH   WIL-    [*113 

LIAMS,  an  insolvent  debtor. 

Insolvent  Debtor — Application  for  Discharge — 
Notice — Non-resident  Creditor — Amount  of 
Execution — Real  Property  not  designated. 

AN  application  was  made  in  behalf  of  the  in- 
solvent, that  he  be  brought  up  to  obtain 
his  discharge  under  the  ' '  Act  for  the  relief  of 
debtors,   with  respect  to  the  imprisonment  of 
their  persons." 

Mr.  Schoonhoven,  for  the  creditors,  raised  three 
objections:  1st.  That  notice  was  not  served  on 
one  particular  creditor  who  resides  in  Massa- 
chusetts,, nor  was  there  any  affidavit  that  he 
could  not  be  found.  2d.  The  sum  he  is 
charged  with  on  execution,  is  not  mentioned  in 
the  petition.  3d.  The  inventory  purports  by 
its  caption  to  be  an  inventory  of  real  and  of 
personal  estate,  but  no  real  estate  is  afterwards 
mentioned. 

Per  Curiam.  All  the  objections  are  trivial. 
A  person  out  of  the  State  is  to  be  considered  as 
to  the  purpose  of  a  service  under  this  act.  as 
not  to  be  found. 

Assignment  ordered. 


OCTOBER  TERM.  1800. 


GROVE  ads.  CAMPBELL,  assignee  of  THE 
SHERIFF. 

1.  Costs — Stay  of  Proceedings — Settlement  with 
opposite  Party.  -2.  Motion — Re-aditig  Supple- 
mentary Affidavits. 

DTEN  BROECK  moved  to  set  aside  the 
.  proceedings  on  the  bail-bond,  on  the 
ground  *that  the  plaintiff  had  settled  [*114 
with  the  defendant  in  the  original  cause  before 
the  commencement  of  this  suit,  and  had  directed 
the  attorney  to  stay  proceedings,  but  who,  not- 
withstanding, proceeded. 

Mr.  Emott  produced  counter  affidavits,  which 
were  objected  to  because  the  defendant  had 
not  been  made  acquainted  with  their  contents 
previous  to  their  being  read  in  court,  but  the 
objection  was  overruled.  It  appeared  from 
them  that  the  original  cause  was  commenced 
in  July  vacation,  1797,  that  in  November  an 
accommodation  was  made  between  the  parties, 
and  the  plaintiff  then  directed  the  proceedings 
to  be  stayed  on  payment  of  costs.  The  costs 
remaining  unpaid,  a  suit  was  instituted  on  the 
bail-bond  in  April  vacation,  1799,  and  the 
defendant  put  in  a  plea  of  non  estfa-ctum  in  the 
October  vacation  following. 

On  this  statement  it  was  now  contended  that 

59 


114 


SUPREME  COCUT,  STATE  OF  NEW  YORK. 


1800 


the  proceedings  were  regular,  as  the  attorney 
had  no  other  way  of  enforcing  the  payment  of 
the  costs,  and  that  even  if  it  were  otherwise, 
the  defendant  was  too  late  to  ask  relief  in  this 
way  after  plea  pleaded,  and  the  subsequent 
delay. 

Mr.  Ten  Broeck,  in  reply,  offered  counter  sup- 
plementary affidavits,  but  the  court  would  not 
suffer  them  to  be  read,  observing  that  a  party 
can  never  support  his  motion  by  any  affidavits 
but  those  on  which  he  originally  grounds  it. 

The  court  having  taken  time  to  advise,  held 
1 15*]  that  *the  defendant  should  take  nothing 
by  his  motion.  They  said  that  the  attorney 
had  no  other  way  of  compelling  the  payment 
of  his  costs;  and  besides,  that  the  defendant 
had  suffered  such  a  length  of  time  to  elapse, 
that  they  would  not  now  relieve  if  there  had 
been  originally  just  grounds  for  their  inter- 
ference. 


VISCHER  ET  AL.  ads.  VAN  ALEN. 

Ejectment  —  Default  against  Tenant  —  Consent 
Rule*  entered. 

DTEN  BROECK    moved    to  set  aside  a 
.     default  entered  against  the  tenant  for  not 
pleading. 

Per  Curiam.  In  this  case  it  appears  that  the 
consent  rules  were  entered  into,  a  new  declara- 
tion delivered,  but  no  plea  filed,,  and  thereupon 
judgment  was  entered  by  default  against  the 
tenant. 

Although  at  the  time  of  signing  the  rule  the 
plea  ought  to  have  been  put  in,  yet  the  enter- 
ing the  default  in  this  manner  was  improper. 
It  should  have  been  against  the  casual  ejector, 
according  to  the  terms  of  the  consent  rule. 
There  can  be  no  judgment  by  default  against 
the  tenant. 

Let  the  defendant  take  the  effect  of  his  motion. 


1 16*]  *Ix  THE  MATTER  OF  GEORGE  CAS- 
CADIER,  an  insolvent  debtor. 

Insolvent  Debtor — Rule  ort  Trustees  to  Report. 

AN  application  was  made  in  behalf  of  the 
debtor,  that  the  trustees  be  laid  under  a 
rule  to  report  within  eight  days. 

Per  Curiam.  The  debtor  as  well  as  his 
creditors  has  an  interest  in  the  account  to  be 
rendered  by  his  trustees,  and  is  equally  entitled 
with  them  to  demand  it. 

It  is  therefore  ordered  that  they  account  within 
eight  days  after  service  of  a  copy  of  this  rule. 


LANSING,     who   is    impleaded    with    DOE, 
ad*.  GORHAM. 


nU—  Time  to  Plead^Enla  rging  Rule. 

FOOT  moved  to  set  aside  the  default  and  to 
be  let  in  to  defend,  upon  an  affidavit  of 
merits,  and  that  the  omission  to  plead  was 
occasioned  by  urgent  business.  He  stated  that 
it  was  a  case  of  bail,  and  therefore  is  to  be  con- 
60 


sidered  as  one  which  comes  recommended  to 
the  grace  of  the  court. 

Mr.  Lush,  contra,  and  read  counter  affidavits 
as  to  merits. 

Per  Curiam.  If  a  party  wants  more  time  to 
plead,  be  must  apply  to  a  judge  at  his  cham- 
bers *to  enlarge  the  rule.  This  is  [*  1 1 7 
stated  to  be  an  application  in  favor  of  bail,  but 
it  should  be  remembered  that  the  cases  of  bail 
to  which  the  court  are  particularly  indulgent, 
are  where  bail  wants  time  to  surrender  the 
principal,  but  here  he  comes  to  defend  the  suit, 
and  therefore  stands  in  the  same  situation  with 
any  other  defendant. 

Motion  denied. 


THE  PEOPLE,  at  the  relation  of  JAKSEK  KT 
AL.  ,  Admrs.  of  JANSEN, 

v. 
THE  JUDGES  OF  ULSTER. 

Mandamus — Writ   of  Eri'or — Costs — Executors 
and  Administrators. 

ri  ARDINER  moved  for  a  mandamus  to  the 
\T  Judges  of  the  Common  Pleas  of  the 
County  of  Ulster  to  compel  them  to  give  costs 
for  plaintiff,  a  recovery  having  been  had  be- 
fore them  for  the  plaintiffs  for  a  sum  less  than 
£10. 

It  was  now  contended  that  it  has  been  settled 
that  executors  or  administrators  cannot  sue  in 
a  justice's  court,  it  must  follow  that  they  shall 
have  costs  in  the  court  to  which  they  are  com- 
pelled to  resort,  and  therefore  that  the  only 
question  now  left  to  be  considered  was  whether 
a  mandamus  was  the  proper  remedy  in  this 
case,  or  whether  it  should  be  error,  as  the 
court  seemed  to  intimate  at  last  term. 

Error,  it  was  said,  would  only  lie  to  reverse  a 
judgment,  and  not  to  compel  the  rendition  of  a 
*judgment.  He  cited  to  this  point,  3  [*118 
Bac.  Abr.,  535  ;  1  Sir.,  698  ;  Cowp.,  378.  That 
this  was  a  proper  case  for  a  mandamus,  he 
cited  1  Burr,  568  ;  3  Bl.  Com.,  110  ;  1  St.,  530  ; 
and  11  Co.,  Medcalf's  case. 

Cur.  ad.  milt. 

Per  Curiam.  After  looking  over  all  the  au- 
thorities, we  are  of  opinion  that  a  writ  of  error 
will  well  lie  here,  and  therefore  refuse  this  ap- 
plication for  a  mandamus. 

Motion  denied. 


VAN  PATTEN  r.  OUDERKIRK. 

Certiorari — Return  of  Testimony — Other  Return. 

ON  certiorari.  Emott,  in  behalf  of  the  justice, 
moved  to  quash  the  writ,  because  it  re- 
quired him,  among  other  things,  to  return  the 
testimony.  It  was  admitted  that  no  notice  had 
been  given  the  opposite  party,  but  it  wa^  con- 
tended that  none  was  necessary. 

Per  Curiam.  This  writ  is  the  right  of  the 
party  who  takes  it  out,  and  the  justice  is  bound 
to  obey  it  at  his  peril.  He  is  not,  however, 
bound  to  return  anything  but  what  we  can 
legally  require  of  him,  notwithstanding  the 
command  expressed  in  the  writ.  In  this  case 

COLEMAN. 


1809 


GlLLESPIE    ADS.    PKI8TER    AND   M'COMB. 


118 


he  ought  to  return  all  but  the  testimony,  and 
to  take  no  notice  of  that  part  of  the  precept 
which  enjoins  him  to  return  that. 

Motion  denied. 

S.  C.,  2  Johns.  Cos.,  108. 

Cited  in  25  Wend.,  169 ;  5  Hill.,  3tf8. 


119*] 


*GILLESPIE 

ads. 
PFISTER  AND  M'COMB. 


1.  Security  of  Costs — One  Plaintiff  absent  from 
the  State  and  the  other  Insolvent.  2.  Idem — 
Assignment  of  Cause  of  Action. 

pENDLETON  moved  that  the  plaintiffs  file 
JL  security  for  costs  before  they  be  allowed 
to  proceed  in  the  suit,  on  affidavit  that  one  of 
the  plaintiffs  had  removed  to  New  Jersey  since 
the  commencement  of  the  suit,  and  that  the 
other  was  confined  in  jail  for  debt ;  and  fur- 
ther, that  the  defendant  was  informed  and  be- 
lieved that  the  cause  of  action  was  assigned. 

He  insisted  that  the  insolvency  of  a  plaintiff 
was  the  same  thing  as  it  respected  the  defend- 
ant's remedy  for  his  costs  as  living  without  the 
reach  of  the  process  of  the  court,  and  that  the 
assignment  leaving  him  only  the  trustee  for  the 
benefit  of  a  stranger,  it  was  reasonable  that  se- 
curity should  be  filed. 

Mr.  B.  Livingston,  contra. 

Per  Curiam.  It  is  sufficient  that  one  of  the 
defendants  resides  within  the  reach  of  the  pro- 
cess of  the  court,  and  we  can  take  no  notice 
whether  he  is  insolvent  or  not.  And  as  to  the 
assignment,  the  defendant  has  nothing  to  do 
with  it. 

Motion  denied. 


ANDREWS  v.  ANDREWS. 

Contempt —  Witness — Attachment — Tender  of  In- 
sufficient sum  for  Expenses — No  Objection. 

DTEN  BROECK  moved  for  an  attachment 
.  absolute  against  a  witness,  on  affidavit 
12O*]  *that  he  was  regularly  summoned  and 
money  tendered  him  for  his  expenses,  which 
he  did  not  object  to  for  its  insufficiency,  but 
positively  refused  to  attend.  He  cited  1  Black. , 
49  ;  2  Str.,  1150. 

Per  Curiam.  Here  is  a  strong  case  of  palpa- 
ble contempt,  and  therefore  the  court  will 
award  an  attachment  in  the  first  instance.  The 
sum  of  money  tendered  may,  or  mav  not  have 
been  adequate,  but  as  the  witness  did  not  ob- 
ject to  it  at  the  time,  it  is  to  be  considered  suf- 
ficient. 


WOODWARD  ads.    QUACKENBOS. 

Ejectment — Default  of  Casual  Ejector — Rule  on 
Tenant  to  Plead. 

IT  appeared  that  the  plaintiff's  attorney,  at 
the  time  of  delivering  a  new  declaration, 
after  the  consent  rules  were  exchanged,  not 
having  received  a  plea,  entered  a  rule  in  the 
cause  against  the  tenant  t'o  plead  in  twenty 
days ;  which  not  being  done,  he  proceeded  to 
enter  a  default  against  the  casual  ejector. 

Mr.  Emott  now  moved  to  set  aside  this  default 
for  irregularity.  He  contended,  that  until  the 
tenant  had  complied  with  all  the  requisites  of 
the  consent  rule,  he  could  not  be  considered  as 
being  so  in  court  as  that  he  could  be  known  as 
a  party  to  the  suit,  and  that  therefore  no  rule 
could  be  taken  against  him. 

Mr.  Quackenbos  said  he  had  proceeded  as  had 
always  been  the  practice,  at  least  at  Albany  and 
in  the  northern  part  of  the  State. 

*Per  Curiam.  The  entry  of  the  de-  [*  1 2 1 
fault  in  this  manner  was  certainly  irregular. 
No  rule  could  be  entered  against  the  causal 
ejector  in  a  cause  entitled  against  the  tenant. 
The  signing  the  consent  rule,  delivering  a  new 
declaration,  putting  in  common  bail,  and  filing 
a  plea,  are  all  simultaneous  acts ;  should  the 
tenant,  therefore,  neglect  to  file  his  plea  in- 
stanter,  he  is  to  be  considered  as  not  appearing 
in  the  suit,  and  then  default  is  to  be  entered 
against  the  causal  ejector.  But  the  default 
against  the  causal  ejector  is  taken  under  the 
first  rule  at  the  return  of  the  writ,  and  not  in 
consequence  of  any  new  rule. 

Default  set  aside. 


SLOSSON  ads.  WHEATON. 

Change  of  Venue — Assumpsit — Locus  of  Cause 
of  Action — General  Affidavit. 

DTEN    BROECK  moved  to  change  the 
.  venue,  on  affidavit  that  the  cause  of  action 
arose  out  of  the  county.    . 

Mr.  Emott  opposed  the  motion,  on  the  ground 
that  this  being  an  action  for  money  had  and 
received,  a  general  affidavit  was  not  sufficient. 

Per  Curiam.  It  has  already  been  decided 
that  an  assumpsit,  where  the  count  is  general, 
the  court  will  never  change  the  venue  on  a 
general  affidavit.  To  entitle  the  defendant  to 
prevail  in  his  motion,  the  affidavit  must  be 
special ;  that  is,  it  must  state  that  the  defend- 
ant has  reason  to  believe  that  special  matter  is 
intended  fo  be  given  in  evidence,  enumerate 
*the  particulars,and  declare  that  it  arose  [*  1 22 
in  the  county  to  which  he  would  remove  the 
cause,  and  not  elsewhere. 

Motion  denied. 


KNAPP,  Executor,  v.  MEAD. 
Notice  of  Trial — Motion. 


NOTE.— A  witness  may  dispense  with  the  legal  j  rnuTG  v,Q;««.  *v,r>  /IOTT  ,c,<,;»«,wi  t™  +v.«  *™«i  ~f 
form  of  sen-ing  a  subpoena,  and  under  such  service  I  '  4  being  the  day  assigned  for  the  trial  of 
be  subject  to  attachment.  1  Yeates,  303.  I  J-  the  record  on  which  this  suit  was  brought, 

COEEMAN.  61 


122 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


Mr.  Beers  now  moved  to  bring  it  on,  but  it  was 
objected  for  defendant  that  there  ought  to  have 
been  a  regular  notice  of  trial  of  seven  days,  as 
in  other  cases,  which  had  not  been  given. 

The  court  took  time  to  consider  how  the 
practice  ought  to  be  settled. 

Per  Curiam.  The  trial  by  record  must  here- 
after always  come  on  by  a  motion  of  four  days, 
instead  of  the  old  practice  of  assigning  a  time, 
which  the  present  rules  render  useless. 


SWIFT  ads.  SACKET. 
LIVINGSTON  ads.  THE  SAME. 

1 .  Writ  of  Right — Nonsuit — Default  of  Demand- 
ant. 2.  Idem — Entry  of  Attorney's  name — 
Misprision  of  Clerk. 

Citations-Carth.,  173;  Co.  Litt.,139,  b. 

"DMOTT,  for  the  tenant,  moved  on  the  first 
Jj  day  of  term  that  the  demandants  be  called, 
and  that  for  nonappearance  their  defaults  be 
entered. 

123*J  *And  now,  it  being  the  quarto  die 
post,  he  again  moved  that  the  demandant  be 
called  to  appear  and  excuse  his  default,  or  that 
he  be  nonsuited.  To  shew  that  this  was  the 
correct  practice,  he  cited  7  Viner  Abr.,  436  and 
437  ;  D.  9,  10. 

Mr.  Scott  appeared  for  demandants,  and 
without  attempting  to  show  any  sufficient  ex- 
cuse, read  an  affidavit  that  Mr.  Thompson  was 
the  attorney  of  record  for  the  tenant;  whereas 
it  appeared  from  the  clerk's  minutes  that  the 
motion  had  been  made  on  the  first  day  by  Mr. 
Emott  in  behalf  of  Mr.  Radclift,  who,  he  con- 
tended, was  a  stranger  to  the  suit,  and  could 
take  no  rule  in  it. 

Mr.  FJmott  said,  in  reply,  that  the  motion  was 
really  made  in  the  name  of  Mr.  Thompson,  but 
that  the  mistake  was  in  the  entry  made  by  the 
clerk  on  the  minutes,  and  must  be  considered 
as  his  misprision,  and  so  could  not  injure. 

Per  Curiam.  It  is  settled  in  Carthew,  173 
(Clobf.ryv.  The  Bisfiopof  Exon),  that  the  tenant, 
in  a  writ  of  right,  is  only  demandable  on  the 
quarto  die  pout ;  but  that  the  demandant  is  lia- 
ble to  be  called  on  the  primo  die  placiti,  and 
for  nonappearance  that  his  default  may  be  en- 
tered, which,  if  he  does  not  appear  and  excuse 
on  the  quarto  die  post,  subjects  him  to  a  non- 
suit. (Co.  Litt.,  139,  b.)  At  common  law,  on 
every  continuance  or  day  given  at  or  before 
iudgment,  the  plaintiff  or  demandant  might 
have  been  nonsuited,  and  before  the  Stat.  of  2 
Henry  IV.  after  verdict,  if  the  court  gave  a  day 
1 24*]  to  be  advised,  at  *that  day  the  plaintiff 
was  demandable,  and  therefore  might  have 
been  nonsuited  if  he  did  not  then  appear  ;  but 
that  is  remedied  by  our  Statute.  After  award 
to  answer,  however,  or  demurrer  in  law  joined, 
plaintiff  for  not  appearing  shall  still  be  non- 
suit, for  he  is  not  helped  by  the  Statute.  As  to 
the  misentry  of  the  name,  it  is  to  be  considered 
as  the  clerk's  misprision  and  may  be  amended. 

Judgment  of  nonsuit. 
62 


EDWARDS  ads.  M'KINSTRY. 


Default — Motion  to  Plead  on  Affidavit  of  Merit? 
only. 

ON  a  motion  to  set  aside  a  default,  and  that 
the  defendant  have  leave  to  plead,  on  the 
sole  ground  that  he  has  merits,  the  plaintiff  not 
having  lost  a  trial,  the  court  said  : 

When  a  party  swears  to  merits,  the  court  will 
strongly  incline  to  let  him  in,  but  he  must  be 
able  to  suggest  some  excuse  for  not  having 
pleaded  ;  such,  perhaps,  as  accident  or  inad- 
vertence. Here  the  defendant  does  not  attempt 
to  give  any  reason  at  all,  and  therefore  he  must 
take  nothing  by  his  motion. 


LARROWAY  ads.  LEWIS  ET  AL, 
THE  SAME  ads.  VAN  LOON  ET  AL. 

Attachment — Costs   of    Continuance — Notice  of 
Taxation — On  Council  only. 

1  Salk.,  83,  not  approved. 

VAN  VECHTEN  moved  to  set  aside  the  at- 
tachments which  in  these  two  cases  had 
*been  granted  for  costs  of  putting  off  [*125 
the  trials,  and  that  there  be  a  retaxation. 

He  contended  that  attachments  are  ordinarily 
granted  on  rules  to  show  cause,  and  are  never 
made  absolute  in  the  first  instance,  but  in  very 
flagrant  cases  ;  and  that  if  the  party  answer  he 
shall  be  discharged  from  the  attachment ;  and 
cited  1  Bac.  Abr.,  183,  B;  2  Hawk.  Plea.  Cr., 
214.  He  further  insisted  that  there  must  be  a 
demand  made  of  the  costs  after  the  bill  has 
been  regularly  taxed,  and  at  the  time  of  serving 
the  rule  to  show  cause,  before  the  party  can  be 
considered  as  in  contempt.  He  cited  1  Barnes, 
120;  1  Lilly's  Abr.,  162.  Besides  he  insisted 
that  according  to  1  Salkeld,  83,  no  attachment 
will  lie  at  all  for  the  costs  of  putting  off  a  trial. 

Mr.  C.  Elmendolph,  in  reply,  contended  that 
in  England  the  attachment  is  always  absolute  in 
the  first  instance.  He  cited  Tidd's  Pr.,  364; 
Runnington  on  Ejectment,  142  ;  1  Sellon,  415. 

Per  Curiam.  Whenever  a  cause  goes  off  on 
motion  of  the  defendant  upon  payment  of 
costs,  the  plaintiff  has  his  election,  either  to 
wait  the  event  of  the  suit,  and  have  all  his  costs 
taxed  together,  or  he  may  make  them  out  in- 
stanter  under  the  direction  of  the  court  (sub 
ject,  however,  to  be  reviewed  on  a  future  tax- 
ation if  required),  and  demand  them  immedi- 
ately, and  if  not  paid  he  may  proceed  with  the 
trial  ;  or  he  may  waive  this  privilege  and  resort 
to  his  attachment,  but  if  he  does  *so,  [*126 
he  must  first  have  his  costs  regularly  taxed  on 
a  proper  notice  as  in  other  cases,  and  that  no- 
tice must  be  served  on  the  attorney  in  the  suit, 
and  not  on  the  counsel,  as  it  has  irregularly 
been  in  this  instance.  Had  he  done  this  he- 
would  have  been  entitled  to  his  attachment  in- 
stantly, without  a  previous  notice. 

The  notice  in  this  case  having  been  served  on 
counsel,  and  the  taxation  having  been  made 
the  same  day  notice  was  given,  the  taxation  and 
and  all  proceedings  founded  on  it  were  irreg- 
ular. 

COLEMAN. 


1800 


SEELY  v.  SHATTUCK. 


As  to  the  case  mentioned  from  Salkeld,  it  is 
anonymous  and  stands  alone ;  we  lay  no 
weight  upon  it. 

Let  the  attachment  be  set  oxide  with  costs. 


SEELY  t.  SHATTUCK. 

Rule  to  join  in  Error  on  Hearing  ex-par te — Next 
Term  passed. 

ON  certiorari.     Notice  of  the  rule  for  the  de- 
fendant to  join  in  error  in  eight  days,  or 
that  the  plaintiff  would  be  heard  ex-parte,  had 
been  served  in  April  vacation,  1798,  and  it  was 
now  moved  for  affirmance. 

Per  Curiam.  The  rule  is  gone  ;  the  plaintiff 
should  have  applied  the  term  after  service  of 
the  rule.  He  cannot  lie  by  in  this  manner  and 
revive  the  cause  at  any  distant  period  he  may 
choose. 

He  must  'now  take  nothing  by  his  motion. 


127*]    *HORNBECK  ads.  LOW. 

Making    Case  —  Enlarging    Rule  —  Making 
Amendments. 

PER  CURIAM.  The  two  days  allowed  by 
-T  the  sixth  rule  of  January  Term,  1799,  for 
making  a  case,  cannot  be  enlarged  by  a  judge 
in  favor  of  the  party  making  the  case  ;  but  the 
time  which  may  be  enlarged  under  that  rule, 
is  that  allowed  for  proposing  amendments,  and 
that  for  notifying  an  appearance  before  the 
judge,  and  no  other. 


GIBBS  ads.  SCOTT. 


-Impartial 
ciency  of  Plaintiff's  Affidavit. 

Citation— 3  Burr.,  1330, 13*5 ;  1  Scllon's  Prac.,  269. 

THIS  was  a  motion  to  change  the  venue  in 
an  action  of  slander,  from  the  County  of 
Albany  to  Washington,  founded  on  the  affi- 
davit of  the  defendant's  attorney,  stating  that 
the  cause  of  action  arose  in  VVashington  and 
not  elsewhere,  &c.,  as  the  plaintiff  had  informed 
him,  and  he  verily  believed  to  be  true. 

On  the  part  of  the  plaintiff  this  was  opposed 
by  a  counter  affidavit,  stating  that  "  according 
to  his  persuasion  and  belief,  he  could  not  have 
an  impartial  trial  in  the  County  of  Washington 
by  reason  of  certain  local  prejudices." 

Per  Curiam.  The  first  question  is,  whether 
the  affidavit  on  the  part  of  the  defendant  ought 
not  to  have  been  made  by  the  defendant  him- 
self, according  to  the  established  practice.  As 
the  attorney  swears,  however,  that  the  plaintiff 
128*]  confessed  to  *him  that  the  cause  of 
action  arose  in  Washington,  and  not  elsewhere, 
&c.,  this  may  be  deemed  sufficient ;  especially 
as  the  fact  is  not  denied  by  the  plaintiff.  As 

COLEMAN. 


to  the  counter  affidavit,  it  cannot  avail  to  retain 
the  venue,  inasmuch  as  the  defendant  only 
swears  to  "his  persuasion  and  belief  that  he 
cannot  have  a  fair  trial,  by  reason  of  certain 
local  prejudices,  &c.  He  ought  to  have  stated 
the  reasons  and  ground  of  his  belief,  and  have 
laid  before  the  court  the  facts  and  circumstances 
on  which  it  depends,  that  they  might  judge  of 
its  probable  truth  and  force.  He  merely  states 
his  own  conclusions,  without  stating  also  the 
premises  on  which  his  belief  is  grounded 
(Vide  3  Burr.,  1330,  1335;  1  Sellon  Prac., 
269.) 

Motion  granted. 


HOYT  AND  BENNETT  v.  CAMPBELL. 

1.  Argument — Term  passed  by  Plaintiff— Right 
of  Defendant  to  Notice  Cause.  2.  Idem — 
Service  of  Notice — No  Agent  at  Albany. 

IN  error  on  certiorari.     The  cause  was  at  issue 
in  law  in  July  vacation,  1799,  but  the  plaint- 
iff's attorney  suffered  October  Term  to  pass 
without  having  noticed  it  for  argument. 

The  defendant's  attorney  then  served  a  notice 
to  argue  the  cause  in  January  Term.  Neither 
the  plaintiffs  or  their  attorney,  or  any  counsel 
for  them,  appearing  on  the  notice,  judgment  of 
affirmative  passed  against  them  as  of  course. 

The  plaintiff's  attorney  residing  in  New  York, 
and  not  having  an  agent  in  Albany,  the  service 
of  *the  notice  was  by  affixing  it  in  the  [129 
clerk's  office  there,  and  it  did  not,  until  shortly 
before  the  last  term,  come  to  his  knowledge, 
either  that  the  notice  had  been  served,  or  that 
judgment  of  affirmance  had  passed,  and  in  the 
meantime  the  plaintiffs,  on  being  informed  of 
the  judgment,  either  by  the  defendant  or  his 
attorney,  paid  the  costs  on  it,  and  also  settled 
as  to  the  demand  against  them  in  respect  to  the 
suit  in  the  court  below  before  the  justice. 

On  these  facts,  the  plaintiffs  moved  in  the  last 
term  to  set  the  judgment  aside,  submitting  two 
questions  to  the  court :  first,  Whether  the  de- 
fendant was  entitled  to  notice  the  cause  for 
argument;  and  if  the  opinion  of  the  court 
should  be  against  them  on  this  question.  Then, 
secondly,  Whether  under  the  circumstances  of 
the  case,  the  judgment  may  not  be  set  aside  in 
order  to  give  them  an  opportunity  to  avail 
themselves  in  this  court  of  their  causes  of  error, 
if  they  can  support  them. 

With  respect  to  the  first  question  it  is  to  be 
stated,  that  heretofore,  in  all  cases  where  there 
was  not  to  be  a  decision  by  the  court,  until 
there  had  been  previously  an  argument  be- 
tween the  parties,  being,  except  motions  to  set 
aside  proceedings,  the  same  with  our  present 
enumerated  motions  or  cases,  the  arguments 
were  in  writing,  and  if  either  party  delayed  for 
a  term  to  deliver  in  an  argument,  the  opposite 
party  took  a  rule  against  him  to  argue  by  the 
next* term  or  be  precluded,  and  on  his  default 
the  court  would  proceed  to  examine  and  decide 
*the  cause  on  the  arguments  as  they  [*13O 
then  were,  or  if  there  had  not  been  any  argu- 
ment delivered  in  by  the  party  in  default,  then  on 
the  ex-parte  argument  to  be  thereafter  prepared 
and  delivered  in  by  the  party  who  had  taken 
the  rule  ;  as,  for  instance,  in  case  of  a  writ  of 
error,  if  after  the  parties  were  at  issue  in  law, 

63 


130 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


the  plaintiff  delayed,  then  the  defendant  would 
take  a  rule  against  him  ;  if  the  plaintiff  had  de- 
livered in  his  argument,  he  would  take  a  rule 
against  the  defendant  to  argue  in  answer  ;  if 
the  defendant  had  delivered  in  his  argument, 
he  would  in  this  last  case  take  a  rule  against 
the  plaintiff  to  argue  in  reply,  and  on  the  de- 
fault of  the  respective  parties,  the  court  would, 
in  the  first  case  on  the'ac  parte  argument  of  the 
defendant,  and  without  any  argument  on  the 
part  of  the  plaintiff,  in  the  second  case  on  the 
argument  delivered  in  by  the  plaintiff,  and 
without  any  argument  on  the  part  of  the 
defendant,  and  in  the  third  case  on  the 
argument  delivered  in  by  the  plaintiff,  and  the 
argument  in  answer  delivered  in  by  the  de- 
fendant and  without  any  argument  in  reply  by 
the  plaintiff,  take  up  the  cause  for  examination 
and  decision;  but  the  practice  of  making  de- 
cisions or  adjudications  on  ex-parte  arguments 
or  hearings  being  now  wholly  done  away,  and 
the  substitute  for  it  being,  that  every  party  is 
apprised  that  from  his  default  to  appear  and 
argue,  or,  in  other  words,  to  suggest  generally 
at  least  the  principles  of  his  right,  he  will  be 
presumed  to  have  renounced  it,  and  so  to  have 
consented  to  what  is  claimed  against  him,  and 
and  that  judgment  will  thereupon  pass  for  the 
131*]  opposite  party  as  of  *course,  the  law 
will  therefore,  from  the  necessity  of  the  thing, 
imply  that  there  must  be  a  mean  for  a  party 
whereby  he  may  still  have  it  in  his  power  to 
prevent  his  opponent  from  delaying  on  his  part 
to  bring  the  cause  before  the  court  for  their 
opinion,  and  the  one  which  the  defendant  has 
taken  in  the  present  instance,  of  proceeding  by 
a  notice  of  a  motion,  in  the  nature  of  a  rule  to 
set  the  cause  down  for  argument,  being  equally 
tit  and  advisable  with  any  other  to  be  adopted 
or  provided  as  a  substitute  for  the  former  prac- 
tice of  proceeding  by  the  rule  of  preclusion, 
and  the  plaintiffs,  the  party  entitled  in  the 
present  case  to  open  or  begin,  having  delayed 
for  a  term  to  notice  the  cause  for  argument,  it 
must  be  adjudged  regular  in  the  defendant  for 
him  then  to  notice  it. 

The  plaintiff's  motion,  however,  as  far  as  it 
rests  on  an  irregularity  in  the  defendant,  con- 
sisting in  a  supposed  want  of  right  in  him  to 
notice  the  cause  for  argument,  may  be  decided 
against  them  on  this  ground,  namely,  that  not- 
withstanding a  notice  may  be  irregular  or  de- 
fective, or  in  any  other  respect  improper,  yet 
if  there  has  been  a  due  service  of  it,  the  party 
on  whom  it  has  been  served,  must  appear  to 
oppose  the  motion,  otherwise,  as  has  been  al- 
ready stated,  his  consent  to  it,  or  a  renuncia- 
tion of  his  right  to  oppose  it,  will  be  presumed 
from  his  absence  or  silence  equally  as  if  the 
notice  had  been  perfect,  and  the  motion  proper 
in  the  case ;  and  that  it  is  not  to  be  expected 
the  court  will,  without  the  appearance  and  sug- 
gestion of  the  party,  examine  farther  than  to 
1 32*]  IMJ  *satisfie(i  there  has  been  a  competent 
service  of  the  notice,  comprehending  as  well  the 
manner  as  the  time  of  service.  Indeed,  the  in- 
tent of  the  7th  rule  of  January  Term,  1799, 
was,  that  there  might  in  future  be  a  clear  un- 
derstanding on  the  whole  of  the  subject  to 
which  this  first  question  relates. 

With  respect  ts  the  second  question,  it  will 
suffice  to  observe,  that  although  there  was  a 
sufficient  service  of  the  notice,  yet  it  did  not 


come  to  the  knowledge  of  the  plaintiff's  ajtor- 
ney  until  after  the  defendant  had  obtained  the 
effect  of  it ;  so  that  there  doubtless  will  have 
been  an  hardship  on  the  plaintiffs,  if  the  sub- 
stantial justice  or  real  merits  of  the  case  is  wiih 
them,  and  if  there  is  a  reasonable  excuse  for 
their  attorney  in  not  having  an  agent  in  Albany 
at  the  time,  but  as  these  matters  have  not  been 
shown  to  the  court,  they  cannot  interpose. 

Tlie  plaintiff*,  therefore,  are  to  take  nothing  by 
their  motion,  and  to  pay  costs  to  the  defendant  in 
opposing  it.  B. 


PALMER  e.  SABIN. 

1.  Argument — Term  passed  by  Plaintiff— Right 
of  Defendant  to  Notice  Cause — Costs  not  paid. 

rpHE  like  facts  in  this  cause,  except  that  it 
J-  does  not  appear  that  the  plaintiff  has  set- 
tled with  the  defendant  for  the  demand  in  the 
Court  below,  and  the  costs  on  the  affirmance 
have  not  been  received  from  the  plaintiff,  "he 
being  unable  to  pay  them  ;  and  any  other  ex- 
pense or  trouble  about  the  suit  would  be  a  dead 
charge  against  the  *def endant ;  "  this  [*  1 33 
fact,  however,  not  making  any  material  differ- 
ence, the  same  judgment  therefore  in  this 
cause.  B. 


BROOKS  v.  PATTERSON. 

Attorney  at  law — Pi'ivilege  —  Abandonment  of 
Profession. 

THE  defendant  pleaded  in  abatement  his 
privilege  as  an  attorney  of  the  court;  the 
plaintiff  replied,  "That  on  the  day  of  exhibit- 
ing the  bill  and  for  a  long  time  before,  to  wit, 
for  the  space  of  one  whole  year,  the  defendant 
had  entirely  ceased  to  practice  as  an  attorney 
of  this  court,  and  had  wholly  abandoned  the 
profession,  business,  practice  and  calling  of  an 
attorney  of  this  court,"  &c.,  demurrer  and 
joinder  in  demurrer. 

The  court  held  the  replication  sufficient  to 
oust  the  defendant. 


NEWKIRK  ET  ux.  t.  FOX. 

Stay  of  Proceedings — Neglect  to  Prepare  Case — 
Absence  of  Judge. 

VAN   VECHTEN    moved    to    discharge    a 
judge's  certificate  staying  proceedings,  be- 
cause the  defendant  had  neglected  to  prepare 
his  case  within  the  two  days  allowed. 

It  was  said,  in  answer,  that  the  reason  wan 
because  the  judge  left  the  place  where  the  cir- 
cuit was  held  so  soon  after  an  application  to 
him  that  it  was  not  possible  to  have  the  case 
completed. 

*Pe,r  Cnriam.  As  no  reason  has  been  [*  1 34 
assigned  for  the  subsequent  omission,  the  de- 
fendant appears  before  the  court  without  a 
sufficient  excuse. 


Motion  granted. 


COLEMAN. 


1800 


SHARP  v.  DUSENBURY. 


134 


SHARP  v.  DUSENBURY. 

Inquest — Before  Sheriff  by  Consent — Rulings  ori 
Evidence. 

PW.  YATES  moved  to  set  aside  interlocu- 
.    tory  judgment,  because  the  sheriff  before 
whom  the  inquisition  was  taken  had  admitted 
improper  and  rejected  proper  evidence. 

Mr.  Emott,  on  the  other  side,  read  an  affidavit 
that  it  had  been  agreed  between  the  parties  that 
any  evidence  might  be  given  before  the  sheriff 
which  could  be  given  on  a  trial  or  could  have 
been  pleaded.  And  he  now  contended  that 
such  agreement  ought  to  preclude  either  party 
from  making  objections  to  the  conduct  of  the 
sheriff,  provided  no  corrupt  intention  was  to  be 
imputed  to  him. 

Per  Curiam.  "When  parties  agree  to  submit 
a  controversy  to  the  decision  of  the  sheriff,  the 
inquest  is  to  be  considered  as  in  nature  of  an 
arbitration,  and  therefore  the  court  will  never 
set  aside  the  inquisition  merely  because  the 
sheriff  admits  improper  or  rejects  proper  evi- 
dence. 

Motion  denied. 


135*]    *BEEBE  ads.  PADDOCK. 

Notice  to  Attorney's  Clerk —  Tf  here  Served. 
A  QUESTION  arose  as  to  the  regularity  of  a 
XJL  service  of  a  notice,  which  appeared  from 
affidavit  to  have  been  made  on  the  clerk  of  the 
attorney;  the  court  decided,  that  as  it  did  not 
also  appear  that  the  notice  was  served  on  the 
clerk  while  he  was  in  the  office,  it  was  there- 
fore insufficient. 


THE  PEOPLE,  at  the  relation  of  ALLAIRE, 

v. 
THE  JUDGES  OF  WESTCHESTER. 

Mandamus —  Contempt. 

ON  affidavit  that  a  bill  of  exceptions  had  been 
regularly  tendered  to  the  judges  of  the 
Oourt  of  Common  Pleas  of  the  County  of 
Westchester,  who  had  refused  to  complete  the 
same,  a  motion  was  now  made  for  a  mandamus 
to  compel  them  to  affix  their  seal  to  the  bill  of 
exceptions,  or  show  cause. 

Mr.  Munro,  for  cause,  read  a  counter  affidavit, 
stating  that  the  bill  of  exceptions  varied  mate- 
rially from  the  truth  of  the  case. 

Per  Curiam.  If  a  court  of  common  pleas 
refuses,  without  sufficient  grounds,  to  annex 
their  seal  to  a  bill  of  exceptions,  it  is  a  con- 
tempt for  which  this  court  will  award  com- 
pulsory process.  But  it  appears  here  from  the 
affidavit  on  the  part  of  defendants,  that  the  bill 
of  exceptions  which  was  tendered  was  untrue, 
136*]  and  as  the  party  making  the  *applica- 
tion  has  not  denied  the  correctness  of  the  state- 
ment, he  must  be  considered  as  having  con- 
sented to  it.  This  undoubtedly  was  sufficient 
cause  for  refusal. 

Motion  denied  with  costs  to  the  judges  for  op- 
posing it. 

OOLEMAN.  N.  Y.  REP.,  BOOK  1. 


JENKINS  v.  KINSLEY. 

Trial — On  Record — Authentication  of  Record  of 
Federal  Court  in  Another  State. 

ON  a  trial  by  record  of  an  action  brought 
upon  a  judgment  rendered  in  the  Circuit 
Court  of  the  United  States  for  the  Common- 
wealth of  Massachusetts,  office    copies  were 
offered  in  evidence. 

Mr.  Williams,  for  the  defendant,  objected  that 
there  ought  either  to  be  an  exemplification  of 
the  record;  or  that,  the  action  being  brought 
in  a  court  of  this  State, upon  a  record  of  a  judg- 
ment rendered  in  a  circuit  court  in  Massachu- 
setts, the  record  ought,  agreeably  to  the  act  of 
Congress,  to  have  the  attestation  of  the  clerk 
and  the  seal  of  the  court  annexed,  if  there  be  a 
seal,  together  with  a  certificate  of  the  judge, 
chief  justice,  or  presiding  magistrate,  that  the 
attestation  is  in  due  form. 

Per  Curiam.  This  being  a  record  of  a  court 
of  the  United  States,  and  not  of  a  State  court, 
and  so  not  within  the  act  of  Congress  prescrib- 
ing the  mode  in  which  the  records  and  judicial 
proceedings  of  the  courts  of  any  State  shall  be 
authenticated,  it  remains  with  the  court  to  de- 
cide upon  the  *sufficiency  of  the  evi-  [*137 
dence  in  their  discretion.  The  mode  of  certi- 
fying a  record  observed  in  the  present  instance, 
being  the  ordinary  method  in  the  Common- 
wealth of  Massachusetts,  instead  of  the  technic- 
al exemplification,  the  court  are  of  opinion  it 
is  sufficient. 


WARDELL  «.  EDEN. 

Satisfaction  of  Judgment —  Vacating  Fraudulent 
Entry. 

A  BOND  had  been  execnted  by  Eden  to  War- 
dell  conditioned  for  the  payment  of  $50- 
000,  which  on  the  17th  of  July  last  was  as- 
signed for  a  valuable  consideration  to  Nathan- 
iel Olcott,  and  by  him  on  the  1st  of  August  to 
Solomon  Rowe,  and  by  him  on  the  7th  of 
October  to  the  Bank  of  New  York.  On  the 
7th  day  of  October,  Olcott  became  a  bankrupt, 
and  on  the  next  day  Rowe  died  insolvent.  The 
bank  immediately  gave  notice  to  Eden  of  the 
assignment  to  them,  and  forbid  his  paying  any 
part  of  the  bond  to  Wardell,  and  gave  a  notice 
likewise  to  Wardell,  forbidding  him  to  receive 
anything  from  Eden.  On  the day  of  Oc- 
tober, notwithstanding  the  notices  above, 
Eden  paid  Wardell  a  small  sum  of  money, 
$1,500,  and  thereupon  Wardell  entered  upon 
the  record  satisfaction  of  the  judgment.  It 
appeared  that  the  bond  was  originally  given 
both  for  money  due,  and  to  secure  such  further 
sums  as  Wardell  should  continue  to  advance. 

Mr.  Hamilton  and  Harrison,  on  the  statement 
of  the  above  facts,  now  moved  that  the  entry  of 
satisfaction  *be  struck  out,  on  the  two  [*138 
grounds  of  irregularity  and  of  fraud. 

Mr.  B.  Livingston  raised  a  preliminary  ques- 
tion, whether  the  service  of  the  notice  of  the  pres- 
ent motion  had  been  regularly  made,  as  it  had 
only  been  given  to  Eden's  brother  who  hap- 
pened to  be  at  Eden's  house,  and  it  did  not  ap- 
pear that  it  had  ever  come  to  his  personal 
knowledge  ;  or,  secondly,  as  it  had  been  given 
to  Eden's  attorney,  by  leaving  it  with  his  (the 
5  65 


138 


SUPREME  COUKT,  STATE  OF  NEW  YORK. 


1800 


attorney's)  brother,  who  happened  to  be  alone 
in  the  office. 

Per  Ouriam.  Both  services  cannot  be  good  ; 
wherever  there  is  an  attorney  retained,  the 
service  must  be  on  him  ;  therefore  the  service 
on  Eden  himself  was  irregular,  but  the  service 
on  the  attorney's  brother  being  in  his  office, 
was  good.  Lansing,  Ch.  J.,  and  Lewis,  J., 
were  of  opinion  that  the  attorney  in  this  case 
being  constituted  only  an  attorney  to  confess 
judgment,  his  authority  expired  with  that  act, 
and  therefore  he  could  no  longer  be  considered 
as  attorney  in  the  suit,  but  they  both  agreed 
that  the  service  on  Eden  was  well  made. 

Mr.  B.  Livingston  then,  before  the  counsel  for 
the  bank  proceeded  in  the  argument,  read 
counter  affidavits  contradicting  some  of  the 
principal  facts  contained  in  the  affidavits  on 
the  part  of  the  application. 

The  counsel  for  the  bank  contended,  that  in 
139*]  this  transaction  a  fraud  had  been 
practiced  between  Eden  and  Wardell  on  the 
bank,  by  entering  up  the  satisfaction  after  no- 
tice, which  must  have  been  done  to  defeat  the 
lien,  which  the  judgment  had  given  the  bank 
upon  Eden's  real  estate.  They  now,  therefore, 
appeared  before  the  court  for  the  purpose  of 
getting  that  entry  of  satisfaction  vacated,  and 
strongly  insisted,  1st.  That  the  entry  of  satis- 
faction was  irregular,  because  it  was  done  by 
the  party  himself,  and  not  by  his  attorney. 
They  said  that  although  by  statute  a  party 
might  possibly  "appear,  prosecute,  defend,  &c., 
in  person,"  yet  that  after  he  had  once  made  an 
election  to  appear  by  attorney,  he  could  not  be 
known  in  the  suit  in  person.  3d.  That  not- 
withstanding the  form  of  pleadings  was  still 
preserved,  and  suits  are  still  instituted  in  the 
names  of  obligees,  yet  that  courts  of  law  will 
always  take  notice  of  the  rights  of  assignees, 
and  protect  them  from  injury,  so  that  substan- 
tial justice  shall  be  done  between  the  parties. 
To  show  that  this  had  been  done,  and  to  what 
length  courts  of  law  have  gone,  they  cited  1 
Durn.  &  East,  619  ;  4  Id.,  340.  And  to  show 
that  the  court  may  interpose  in  this  summary 
way,  and  lay  their  hands  at  once  on  the  judg- 
ment, without  turning  the  applicants  round  to 
a  court  of  chancery,  they  cited  Viner  Abr., 
tit.  Judgment,  letter  K.,  a.  636,  4,  5,  6.  Or 
if  there  should  arise  any  doubts  about  the 
facts  alleged,  the  court  might  on  this  motion 
direct  an  issue.  1  Wilf.,  331;  Sayer,  253, 
Barnes's  notes,  136. 

The  Attorney- General  and  Mr.  B.  Livingston, 
contra. 

14O*]  *They  said  that  this  was  a  novel  way 
of  bringing  up  such  a  question,  and  that  really 
neither  of  the  parties  to  the  suit  were  in  court. 
But  they  insisted,  I.  That  it  was  perfectly 
regular  for  the  party  to  enter  up  the  satisfac- 
tion himself,  and  denied  that  it  was  either  the 
province  or  the  duty  of  the  attorney  to  do  it ; 
that  the  very  form  of  his  warrant  showed  this, 
for  l>eing  merely  to  prosecute  and  defend,  the 
entering  up  satisfaction  of  the  judgment  could 
not  be  considered  as  being  comprised  within 
his  powers.  (1  Sellon's  Prac.,  14 ;  Sayer's 
Reports,  217;  2  H.  Black.,  608.)  They  said 
that  by  the  practice  of  courts,  warrants  of  at- 
torney are  in  force  for  one  year  and  a  day,  for 
the  sole  purpose  of  enabling  the  attorney  to 
66 


sue  out  execution  (Bac.  Abr.,  299);  that  the 
general  warrant  of  attorney  only  extends  to 
judgment  and  execution,  and  that  there  ought 
to  be  a  special  warrant  made  out  for  the  pur- 
pose of  authorizing  an  attorney  to  enter  satis- 
faction, which  might  be  made  to  the  attorney 
who  had  conducted  the  suit,  or  to  any  other. 
(Sir  Thos.  Raymond,  69  ;  1  Cromp.  Prac.,  378  ; 
Sellon,  546  ;  Impey,  408.)  They  observed  that 
the  doctrine  contended  for  on  the  other  side, 
viz.,  that  all  acts  relating  to  a  suit  after  it  was 
instituted  must  be  done  by  the  attorney,  could 
not  be  true,  inasmuch  as  it  was  settled  law 
that  a  retraxit  must  be  always  entered  by  the 
party  himself,  and  could  never  be  done  by  at- 
torney. (2  Sellon,  338;  3  Salk.,  245;  8  Mod. 
Rep.,  58;  3  Black.  Com.,  296.) 

As  to  the  second  point,  that  courts  of  law 
will  always  take  notice  of  the  rights  of  as- 
signees, they  *said  this  could  only  be  [*  141 
sub  modo,  for  that  choses  in  action  were  only 
assignable  by  way  of  covenant.  That  they 
might  possibly  form  a  consideration  for  an  as- 
sumpsit,  and  if  so,  the  original  instrument  is 
gone,  the  demand  becomes  a  personal  one,  and 
the  action  must  be  brought  upon  the  promise  ; 
if  not,  then  the  plaintiff  must  always  resort  to 
a  court  of  equity.  (2  Bl.  Reports,  821  ;  4 
Durn.  &  East,  341,  640.)  They  insisted  further, 
that  at  any  rate  this  was  not  the  proper  method 
for  the  plaintiff  to  procure  a  remedy,  by  va- 
cating the  judgment  on  motion.  The  law  in 
such  case  would  oblige  a  party  paying  money 
after  notice  to  pay  it  over  again,  and  the  de- 
mand, therefore,  from  the  time  of  notice,  is 
purely  a  personal  one.  (1  Douglass,  238  ;  6 
Durn.  &East,  361.)  Courts  of  law,  they  said, 
never  vacate  a  judgment  for  fraud,  but  only 
for  irregularity,  or  in  cases  of  legal  disability, 
such  as  of  an  infant,  feme  covert,  or  a  person 
under  duress,  where  the  instrument  is  void- 
able. (1  Sellon,  377.)  At  common  law  the 
remedy  was  by  action  of  deceit,  and  if  it  hap- 
pened subsequent  to  judgment,  by  andita  que- 
reln.  In  cases  of  fraud  or  other  controverted 
facts,  an  issue  is  always  to  be  directed. 
(Cowp.,  727.)  But  if  this  motion  should  suc- 
ceed and  an  entry  be  made  vacating  the  judg- 
ment on  the  ground  of  fraud,  and  afterwards 
a  jury,  whose  exclusive  province  it  is  to  judge 
of  fact,  should  find  the  fact  differently,  then, 
the  record  would  be  at  variance  with  itself. 
Here,  however,  it  would  be  improper  in  this 
court  to  direct  an  issue,  for  the  Court  of  Chan- 
cery is  the  proper  forum  for  that.  Why  can- 
not the  plaintiffs  proceed  by  scire  facia*,  on 
the  *judgment  in  the  name  of  Wardell  [*142 
against  Eden,  when  the  pleadings  would  af- 
ford an  issue  of  fraud  or  no  fraud,  to  be  tried 
by  a  jury?  As  to  the  notice  of  the  assign- 
ment, BO  much  relied  on,  they  contended  that 
the  farthest  the  court  could  go  as  to  notice  to 
assignees,  would  be  to  put  them  on  the  same 
footing  with  indorsers  of  bills  of  exchange, 
and  there  it  was  not  only  necessary  to  give  no- 
tice, but  to  add  that  the'indorser  was  looked  to 
for  payment;  no  such  thing  was  pretended 
here.  They  therefore  insisted  that  the  appli- 
cants had  failed,  both  on  the  ground  of  sub- 
stantial facts,  and  in  the  method  taken  to 
obtain  relief.  It  was  strenuously  insisted  that 
the  remedy  in  such  case  is  by  resorting  to  a 
court  of  chancery. 

COLEMAN. 


1800 


WAKDELL  v.  EDEN. 


142 


Messrs.  Harrison  and  Hamilton,  in  reply,  said 
this  was  the  only  way  that  the  plaintiffs  had  to 
secure  the  property  from  being  placed  entirely 
beyond  their  reach,  and  that  although  a  scire 
facias  should  be  brought  as  suggested  on  the 
other  side,  yet  that  they  could  have  no  secu- 
rity for  satisfaction  of  their  judgment  in  the 
event  of  their  recovering  one.  That  as  to  the 
instance  of  a  retraxit  which  had  been  cited  as 
militating  with  the  principle  they  contended 
for,  it  did  not  apply,  for  the  attorney  is  to 
prosecute  the  suit  for  the  ends  of  obtaining 
satisfaction,  but  a  retraxit  is  not  a  prosecution 
for  such  end  ;  it  is  entering  a  bar  to  the  suit 
without  having  received  satisfaction.  That  it 
is  important  that  attorneys  should  make  the 
entry  of  satisfaction,  as  it  would  guard  the 
court  against  fraud,  for  the  court  can  always 
know  its  own  officers,  but  cannot  be  supposed 
1 43*]  to  know  the  party.  *They  denied  the 
position  that  courts  of  law  could  vacate  judg- 
ments for  irregularity  only,  and  relied  upon 
the  case  of  the  quare  impedit  cited  from  Viner, 
where  a  judgment  was  vacated  on  the  ground 
of  fraud,  not,  they  admitted,  by  motion,  but 
they  said  must  depend  on  the  extension  of  that 
form  of  practice  of  late  years.  They  said  that 
they  should  not  dissemble,  but  that  where  the 
facts  were  disputed  there  might  be  some  doubt 
as  to  the  mode;  perhaps  the  directing  of  an 
issue  might  be  the  most  advisable  method;  but 
in  the  mean  time  that  the  judgment  ought  to 
be  considered  as  remaining  unsatisfied,  yet 
not  subject  to  any  new  liens.  That  as  to  send- 
ing the  plaintiffs  to  a  court  of  chancery,  it  was 
objectionable,  I.  Because  although  a  court  of 
chancery  will  not  interfere  where  the  party 
has  a  remedy  at  law,  yet  the  converse  of  the 
proposition  is  not  true;  II.  Because  it  will 
COLEMAN. 


be  to  turn  a  legal  lien,  which  the  plaintiffs 
have,  into  a  mere  equitable  lien.  III.  Be- 
cause if  there  is  a  remedy  at  law,  chancery  will 
refuse  to  relieve.  They  therefore  prayed  that 
their  application  might  be  granted .  Cur.  ad  milt. 

On  the  last  day  of  term,  BENSON,  J.,  de- 
livered the  following  order  as  the  opinion  of  a 
majority  of  the  court;  LANSING,  Ch.  J.,  and 
LEWIS,  J.,  dissenting: 

"On  reading  and  filing  the  affidavit  of 
Martin  S.  Wilkes  and  the  papers  thereunto 
annexed,  on  the  part  of  the  President,  Direct- 
ors and  Company  of  the  Bank  of  New  York, 
claiming  to  be  assignees  of  the  judgment  in 
this  cause,  and  the  affidavit  of  *the  said  [*144 
Joseph  Eden  and  the  papers  thereunto  an- 
nexed on  the  part  of  the  said  Joseph  Eden, 

"(h'dered,  That  a  vacatur  of  the  entry  of 
satisfaction  of  the  said  judgment  be  entered  on 
the  record,  and  a  minute  thereof  made  in  the 
book  of  dockets  of  judgments.  Provided, 
that  the  said  President,  Directors  and  Com- 
pany shall  not  cause  a  sdre  facias  or  any  writ 
of  execution  to  be  sued,  or  a  suit  in  debt  to  be 
brought  on  the  said  judgment,  until  they  shall 
have  further  applied  to  the  court,  and  it  is  to 
be  understood  also  that  the  said  Joseph 
Eden  may  at  any  time  apply  to  the  court  that 
the  entry  of  satisfaction  may  be  deemed  un- 
vacated,  or  that  satisfaction  be  entered  anew 
on  the  said  record,  and  the  court  will  on  such 
future  applications  of  the  parties  respectively 
take  such  order  as  shall  be  just;  and  it  is 
further  ordered,  that  the  clerk  cause  a  copy  of 
this  rule  to  be  annexed  to  the  said  record." 

S  .C.,  2  Johns.  Cos.,  121.  Affirmed— 2  Johns.  Cas.,  258. 
See  1  Johns.  Rep.,  530. 

Cited— 13  Johns.,  22 ;  19  Johns.,  52 ;  6  Hill.,  239 ;  66 
Barb.,  243 ;  14  Hun,  474 ;  3  How.  Pr..  388 ;  13  How.  Pr., 
27 ;  37  Howard  Pr.,  3 ;  2  Code  R.,  5 ;  6  Pet.,  657. 

67 


REPORTS  OF  CASES  OF  PRACTICE 


DETERMINED   IN   THE 


SUPREME  COURT  OF  JUDICATURE 


STATE  OF  NEW  YORK, 


FROM  APRIL  TERH,  1794,  TO  NOVEMBER  TERM.  1805,  BOTH  INCLUSIVE. 


TO  WHICH  IS   PREFIXED 


KULES  AID  ORDERS  OF  THE  COURT 


TO      THE      -STE-A-IR      18O8. 


RULES  OF  THE  SUPREME  COURT. 


[See  page  31  for  former  rules.] 


16*] 


*OCTOBER  TERM,  1802. 


ORDERED.— That  when  the  plaintiff  stipu- 
lates to  bring  his  cause  to  trial,  he  shall, 
within  twenty  days  from  the  time  of  demand 
made,  pay  to  the  defendant  the  costs  ordered 
to  be  paid  thereon;  and  if  the  same  be  not 
paid  within  that  time,  on  demand  and  on  service 
of  a  certified  copy  of  the  rule  to  pay  costs  and 
the  taxed  bill,  the  defendant,  on  filing  an  affi- 
davit of  such  demand  and  nonpayment,  may, 
after  the  expiration  of  the  said  twenty  days, 
enter  judgment  as  in  case  of  nonsuit,  as  of  the 
preceding  term. 


JANUARY  TERM,  1803. 


ORDERED.— That  every  attorney,  when  he 
gives  notice  of  the  argument  of  any  enu- 
merated motion,  shall  furnish  the  clerk  resid- 
ing in  the  city  where  the  court  is  held,  with 
the  date  thereof,  who  shall,  by  the  first  day  of 
the  term,  make  a  calendar  of  all  causes  which 
may  be  noticed,  according  to  such  dates. 
Causes  of  the  same  date  shall  be  placed  on  the 
calendar  in  the  order  in  which  they  are  re- 
ceived by  the  clerk.  Each  cause  shall  be 
argued  according  to  its  standing  on  the  calen- 
dar, if  the  party  entitled  to  bring  it  on  be 
ready,  otherwise  it  shall  lose  its  preference, 
and  not  be  called  on  again  until  all  the  others 
are  disposed  of.  The  attorney  of  either  party 
.may  give  notice  of  the  argument.  If  any  cause 
be  inserted  in  the  calendar  during  the  term,  it 
17*]  shall  *not  take  place,  whatever  may  be 
its  date,  of  any  other  cause  on  the  calendar  at 
the  opening  of  the  court. 

ORDERED  FURTHER,  —  That  to  every  case 
there  shall  be  added  a  note  of  the  questions  to 
be  made,  and  to  them  the  argument  shall  be 
confined;  if,  however,  any  facts  in  the  case 
give  rise  to  other  questions,  these  also  may  be 
argued,  unless  the  adverse  party  object  that 
these  are  facts  not  appearing  material  to  a  dis- 
cussion of  such  new  questions,  in  which  case 
they  shall  be  abandoned,  or  the  case  be  re- 
ferred for  amendment,  if  the  court  shall  think 
it  necessary. 


NOVEMBER  TERM,  1803. 


ORDERED.— That  every  person  who  shall 
have  regluarly  pursued  juridicial  studies 
COL,.  AND  CAINES. 


under  the  direction  or  instruction  of  a  profes- 
sor or  counselor  at  law  within  this  State,  for 
four  years,  or  shall  have  been  admitted  to  the 
degree  of  counselor  at  law  in  any  other  of  the 
United  States,  and  practiced  as  such  for  four 
years  in  such  State,  shall  be  admitted  as  coun- 
sel in  this  State;  and  that  the  second  rule  of 
October  Term,  1797,  be  annulled. 

Ordered,  That  in  future  the  days  for  non- 
enumerated  motions  be  Monday  and  Thurs- 
day in  the  first  week  of  term,  and  Friday  in 
the  second  week. 


*NOVEMBER  TERM,  1804. 


ORDERED.— That  every  person  who  hath 
been  or  shall  hereafter  be  admitted  to  the 
degree  of  attorney  of  this  court,  and  practiced 
as  such  for  three  years,  shall  be  admitted  to 
practice  also  as  counsel  in  this  court;  and  that 
the  third  rule  of  October  Term,  1797,  as  far  as 
the  same  is  repugnant  hereto,  be  repealed. 


FEBRUARY  TERM,  1805. 


ARDERED.— That  in  future  only  the  oath  of 
W  office  be  administered  to  persons  admitted 
as  counsel  or  attorney  in  this  court. 

Ordered,  That  in  error 'on  certioran  under 
the  ten-pound  Act,  the  plaintiff  be  entitled  to 
have  taxed  against  the  opposite  party,  only 
for  a  general  assignment  of  errors,  special 
assignments  being  unnecessary,  as  the  court  is 
bound  to  decide  on  the  merits  and  overlook 
the  defects  of  form. 

Ordered,  That  hereafter  the  defendant  shall 
not  try  a  cause  by  proviso,  without  a  previous 
rule  for  that  purpose,  to  be  granted  by  the 
court,  on  the  usual  notice. 


*  AUGUST  TERM,  1806. 


ORDERED.— That  hereafter  no  person, other 
than  a  natural  born  or  naturalized  citizen 
of  the  United  States,  shall  be  admitted  as  an 
attorney  or  counselor  of  this  court. 


RULES  OF  THE  SUPREME  COURT. 


1800 


2O*]    *BlLL8    OP    COSTS    SETTLED    BY    THE 

JUDGES  TO  SERVE  AS  PRECEDENTS. 


Costs  on  Confession  of  Judgment  out  of  Court. 


Retaining  fee      ..... 

Warrant  of  attorney 
Filing  warrant  of  attorney 
Drawing  declaration,  folio  4  -        - 
Copy  to  file         -        -        -        -  '     - 

Copy  for  defendant's  attorney       '-  ' 
Filing  declarations     - 
Copy  of  oyer  to  file  and  filing 
Copv  for  defendant's  attorney  - 
Motion  and  rule  for  judgment 
Term  fee    ...... 

Drawing  record,  folio  4  - 
Engrossing  same,  including  declara- 

tion and  plea,  folio  10 
Drawing  up  judgment  and  entering 

on  roll      ..... 
Notice  of  taxing  costs,  copy  and  ser- 

vice     ...... 

Copy  of  bill  of  costs  for  defendant's 

attorney   - 

Taxation  and  attendance   - 
Signing  roll     ..... 

Filing  roll  ...... 

21*]  *Docketing  judgment 
Drawing  execution,  folio  4,  engross- 

ing and  seal 
Return  and  filing    -        -        -        - 

DEFENDANT'S  COSTS. 

Warrant  of  attorney  -        -        -        - 
Filing  warrant  of  attorney     - 
Drawing  common  bailpiece,  folio  2, 

engrossing  and  filing  - 
Drawing  plea,  folio  2,  copy  to  file  and 

filing        ..... 
Copy  for  plaintiff's  attorney  and  ser- 

vice     ...... 

Term  fee 
Certifying  costs 
Attendance  on  same 


$3  62* 

12* 
12* 

75 
25 
25 

12* 

37| 
25 


75" 
1  25 

1  12| 
25 

75 

75 
25 

m 

25 

1  87| 
25" 


$0  12*. 

12* 

75 
62* 


62* 

50 

25 


Costs  on  Judgment  by  Default,  and  on  Assess- 
ment of  Damages. 

Retaining  fee     -        -  $3  62* 

Warrant  of  attorney       -        -        -  12| 

Filing  warrant  of  a'ttprney         -  12* 

Drawing  capias,  folio  3,  engrossing 

and  seal 1  06i 

Clerk  entering  return  and  filing  writ  12* 

Sheriff's  fees 

Term  fee  62* 

Crier's  fee 21| 

Motion  for  body  and  rule  -  81  £ 

Drawing  declaration  folio 
Copy  of  declaration  to  file  and  filing 
22*]  *Motion  and  rule  to  plead  81± 

Copy  of  declaration  for  defendant's 
attorney  and  serving  with  rule  to 
plead  - 

Drawing  affidavit  of  service  of  dec- 
laration and  notice  of  rule  to 
plead,  folio  2  -  371 

Copy  to  file,  filing  and  taking  affi- 
davit 37i 
74 


Reading  and  filing  affidavit    - 

Drawing  recognizance-roll  exclusive 
of  declaration,  folio  5 

Engrossing  same  and  filing  - 

Clerk  searching  for  bailpiece  and  fil- 
ing roll 

Motion  and  rule  to  enter  default    - 

Term  fee     - 

Motion  and  rule  for  interlocutory 
judgment 

Motion  and  rule  that  clerk  assess 
damages 

Notice  of  assessment  on  defendant 

Clerk's  fee  on  assessment 

Brief  and  fee  on  assessment  of  dam- 
ages -  -  -  -  '  7 ' 

Clerk  reading  and  filing  report 

Motion  for  judgment  and  rule       •   ti 

Drawing  roll,  folio  4  - 

Engrossing  the  same  with  pleadings, 
folio 

Copy  of  costs  for  defendant  and  no- 
tice of  taxing  -  ... 

Taxation  and  attendance 

Signing  and  filing  roll,  and  docket- 
ing judgment  .... 

Drawing  testatum  execution,  folio  6, 
engrossing  and  seal 

Return  and  filing        - 


$0  21| 


25 

75 
62* 

75 


25 

1  00 

2  62* 
25" 

BH 

74 


1  00 
75 

62} 

2  00 
25 


CosU  on  a  Trial  at  the  Circuit  or  Sittings,  and 
Judgment  thereupon,  in  the  Supreme  Court. 

Retaining  fee $3  62* 

Warrant  of  attorney        -        -        -  12*. 

*Filing  warrant  of  attorney  [*23]  -  12^ 

Drawing  capias,  folio  3,  engrossing 

and  seal    -  1  06* 

Clerk  entering  return,  and  filing  writ  12* 

Sheriff's  fees  - 

Motion  and  rule  for  body  -        -        -  81  i 

Term  fee  62*. 

Crier's  fee 21J 

Drawing  declaration,  folio 
Copy  of  declaration  to  file,  and  filing 
Motion  and  rule  to  plead   -  81£ 

Copy  of  declaration  for  defendant's 
attorney  and  service  with  rule  to 
plead 

Copy  of  oyer  for  defendant's  attor- 
ney and  copy  to  file  and  filing    - 
Drawing  notice  of  rule  to  plead     -  25 

Drawing  affidavit  of  service  of  copy 
of  declaration  and  notice  of  rule 
to  plead,  folio  2  - 

Commissioner  taking  affidavit        -  12* 

Reading  and  filing  affidavit  2l| 

Drawing  recognizance-roll,   folio  5, 

and  engrossing  same 
Clerk  searching  for  bailpiece  and  fil- 
ing recognizance-roll  -  25 
Notice  of  trial  for  judge         -        -  25 
The  like  for  defendant       -  25 
Note  of  issue  for  clerk  and  service            37* 
Drawing  issue-roll,  folio  4      -        -  75 
Engrossing  the  same  with  pleadings, 

folio 

Drawing  nisi  prius  record,  folio  4  -  75 

Engrossing    same    with    pleadings, 

folio 

COL.  AND  CAINES. 


1803 


RULES  OF  THE  SUPREME  COURT. 


23 


Clerk  filing  issue-roll  and  sealing  nisi 

prius  record     - 
Drawing  venire,  folio  4,  engrossing 

and  seal 

Sheriff's  fees  and  return 
Drawing  subpoena,  jfolio  4,  engross- 
ing and  seal 

Drawing  ticket,  folio  3  - 
24*]  *Entering  cause  in  judge's  book 
Filing  nisi  prius  record      - 
Motion  and  rule  that  cause  be  made 

a  remanet 

Filing  venire       -        -        -        -  •  •  [  - 
Copies  of  ticket,  folio  3,  each        V 
Motion  for  leave  to  try  cause     - 
If  inquest  be  taken  by  default,  then 

motion  that  the  same  be  entered 
Clerk  entering  default  in  such  case  - 
Clerk  entering  return  of  venire,  and 

that  plaintiff  have  leave  to  pro- 
ceed to  trial      - 
Calling  and  swearing  jury 
Swearing  witnesses 
Reading  writings  in  evidence    - 
Swearing  constables    <   -•    •    *:  •  <u 
Entering  verdict 
Clerk  for  certified  copy  of  minutes 

of  court      - 

Fee  to  the  clerk  of  the  circuit 
Crier's  fees  for  calling  and  swearing 

jury 

Attorney's  fee  on  trial 
Counsel's  fee  on  trial      -        -       '•»"''• 

Juror's  fees 

Brief  for  trial 

Drawing  postea 

Reading  and  filing  postea 

Clerk  searching  for  issue-roll  to  enter 

judgment  thereon 
Clerk  Supreme  Court  filing  venire  and 

certificate 

Motion  and  rule  for  judgment  - 
Drawing  entries  on  roll  after  issue 

joined,  exclusive  of  judgment, 

folio 

Engrossing  the  same,  folio 
Drawing    judgment    and    entering 

same  on  record         ... 
25*]  *Copy  of  costs  for  defendant's 

attorney  and  notice  of  taxation 
Taxation  and  attendance 

Signing  roll 

Filing  roll       -        -        ->       - 

Docketing  roll 

Drawing  tenlatum  execution,  folio  6, 

engrossing  and  seal 
Return  and  filing       - 


25 

37i 
12| 

37| 
56i 
25 
12i 

81± 

m 


25 


25 
2  50 


1  50 
3  75 
1  50 

1  12 
75 
25 


75 
25 

m 

25 

2  00 
25 


26*]  *NOTES     RELATIVE     TO     THE 
TAXATION  OF  COSTS. 


IN  August  Term,  1803,  the  court  adopted  the 
following  construction  as  to  the  taxation  of 
costs,  where  the  sum  recovered  was  not  above 
£100,  under  the  fourth  section  of  the  act  con- 
cerning costs: 

1.  That  no  charge  be  allowed  for  services, 
or  compensation  where  the  same  do  not  in  fact 
exist  in  this  court,  but  are  exclusively  appro- 
COL.  AND  CAINES. 


priated  to  the  courts  of  common  pleas;  as,  for 
instance,  the  charge  for  plaints,  and  the  judge's 
and  recorder's  fees. 

2.  That  no  charge  be  taxed,  unless  a  like 
charge  for  a  like  service  would  have  existed 
and  been  taxable  in  the  courts  of    common 
pleas;  and  therefore,  for  example,  no  circuit 
record  is  taxable  in  such  case. 

3.  That  for  a  recognizance-roll   there  be 
allowed  one  dollar  and  fifty  cents,  exclusive  of 
twenty-five  cents  paid  to  the  clerk  for  the  entry 
thereof. 

In  November  Term,  1803,  tire  judges  agreed 
that  sheriffs  were  entitled  to  the  following  fees: 
For  summoning  a  struck  jury  -  $  1  87^ 
For  a  view  -  -  1  871 

For  each  day,  and  for  going  and  re- 
turning -        -        -    $1  25  per  day 
Venire  and  return  1  12£ 
On  a  writ  of  right,  for  summoning 

four  electors        -        -        -        -         1  00 
*Going  to  the  Supreme  Court  with  [*27j 

and  returning        -       •- - '{ '•»•      $3  per  day 
Summoning  recognitors  -  1  00 

Returning  each  process       -        -        -          12£ 

A  brief  is  allowed  in  all  cases  of  special  mo- 
tions, or  arguments  to  be  made  or  opposed  by 
counsel. 

The  recognizance-roll  is  to  include  the 
declaration,  and  the  whole  is  taxable.  (See  2 
Lilly,  521;  2  R.  K.  B.,  316.) 

In  April  Term,  1800,  it  was  decided  that  one 
taxation  of  costs,  in  the  fee  bill,  meant  that  in 
the  cases  where  the  plaintiff  might  consolidate, 
and  yet  proceed  separately,  he  shall  have  costs 
taxed  but  in  one  suit,  and  may  elect  the  suit. 
It  was  also  decided  that  the  plaintiff  was  not 
entitled  to  charge  for  entries  on  the  roll  until 
after  issue  or  judgment. 

In  November  Term,  1804  the  following 
directions  were  given  to  the  clerks,  relative  to 
the  taxation  of  costs: 

1  That  where  the  defendant  proceeds  in  a 
suit,  he  must  add  the  judgment  to  the  issue- 
roll  filed  by  the  plaintiff,  and  is  not  to  be 
allowed  the  taxation  of  a  new  issue-roll  unless 
in  the  opinion  of  the  clerk  or  a  judge  a  new 
issue-roll  was  necessary. 

2.  One  brief  only  for  trial  or  argument  is  to 
be  taxed,  though  they  do  not  come  on  accord- 
ing to  notice. 

3.  A  certificate  of  pursuing  special  plead- 
ings and  entries  may  be  given  by  any  counsel, 
and  is  not  confined  to  the  counsel  employed 
in  the  cause. 

4.  When  a  counselor  is  in  partership  with 
an  attorney,  he  shall  not  certify  as  to  special 
pleadings  and  entries,  if  both  their  names  ap- 
pear as  attorneys  on  record. 

*5.  An  admission  in  writing  by  the  [*28 
opposite  counsel,  as  to  special  entries,  &c., 
shall  be  equivalent  to  a  certificate. 

6.  The  clerk  may  charge  nine  cents  for  fil- 
ing a  note  of  issue. 

7.  The  expense  of  entering  satisfaction  can- 
not be  taxed  in  the  plaintiff's  bill  of  costs. 

It  was  ordered  in  February  Term,  1805, 
that  in  error  on  wrtiorari,  only  one  general 
assignment  of  errors  should  be  taxed.  This 
was  taxed  by  one  of  the  judges,  at  4  folio. 

In  November  Term,  1805,  paper  books  de- 
livered to  the  court  on  a  motion  in  arrest  of 
judgment  were  allowed  to  be  taxed. 

75 


RULES  OF  THE  SUPREME  COURT. 


1796 


In  May  Term,  1806  (1  Johnson,  312),  it  was 
decided  that  the  crier's  fees  for  ringing  the 
bell,  and  calling  the  action  at  circuits  and  sit- 
tings, were  to  be  taxed. 

In  November  Term,  1806  (2  Johnson,  107), 
it  was  decided  that  the  expenses  of  suing  out 
a  commission,  to  examine  witnesses,  such  as 
the  affidavit,  notice  and  motion,  drawing,  en- 
grossing and  sealing  the  commission,  &c., 
were  to  be  taxed;  but  that  none  of  the  ex- 
penses of  executing  the  commission  could  be 
taxed. 

In  the  case  of  Jackson,  ex  dem.  Leicis  et 
al.,  against  Boyd,  submitted  to  the  Chief 
Justice  for  taxation  August  21,  1806,  he 
decided, 

1.  That  if  a  cause  be  noticed  at  the  circuit, 
and  goes  off  for  want  of  time,  the  costs  must 
decide  the  event  of  the  suit. 
29*]  *2.  That  exemplifications  and  copies  of 
records,  maps,  &c.,  are  not  taxable  against  the 
opposite  party.  (See  2  East,  259.) 

Cases  made  for  the  argument  of  a  cause  are 
not  taxable  under  the  act  for  regulating  fees, 
&c.  (See  2  Johnson,  108.) 

If  several  suits  be  consolidated,  and  more 
than  $250  be  recovered  on  the  leading 
suit,  and  less  than  that  sum  on  the  others,  the 
plaintiff  will  not  be  entitled  to  Supreme 
Court  costs  in  the  latter.  (See  1  Caines,  66.) 

If  a  suit  be  compromised  between  the  parties 
without  the  knowledge  of  their  attorneys,  and 
nothing  be  said  about  the  costs,  each  party 
must  pay  his  own  costs.  (See  1  Caines,  66.) 


3O*]        *SURRENDER  OF  BAIL. 


IN  April  Term,  1796,  the  judges  adopted  the 
following  forms  and  rules  of  proceeding,  on 
the  surrender  of  bail: 

1.  Two  certified    copies  of    the    bailpiece 
must  be  made  out  by  the  clerk  in  whose  office 
it  is  filed,  on  one  of  which  the  judge  indorses 
the  following  committitur : 

"  The  defendant,  on  the  prayer,  and  for  the 
indemnity  of  his  manucaptors.  is  committed 

to  the  custody  of  the  sheriff  of ,  at  the 

suit  of  the  plaintiff  in  the  plea  above  (or  with- 
in) mentioned.  Dated,"  &c. 

This  committitur  is  to  be  signed  by  the 
judge,  when  the  bail  surrenders  the  defend- 
ant to  the  sheriff,  before  or  in  the  presence  of 
the  judge.  It  is  then  delivered  to  the  sheriff 
to  be  retained  by  him.  The  defendant  may 
surrender  himself  before  the  judge,  without 
the  act  or  presence  of  the  bail,  and  then  it  is 
stated  to  be,  "on  the  prayer  of  the  defend- 
ant." 

2.  If  the  defendant  be  in  custody,  and  do 
not  appear  before  the  judge,  the  sheriff  must 
sign  the  following  acknowledgment  of  it: 

"  I  acknowledge  that  the  defendant  is  in 
my  custody  in  the  goal  of .  Dated."  &c. 

The  proof  of  this  acknowledgment  must  be 
made  by  a  subscribing  witness  on  oath,  before 
a  judge  or  a  commissioner,  or  by  a  certificate 
76 


of  the  judge  in  whose  presence  *it  was  [*31 
made;  and  the  proof  or  certificate  must  be 
under  the  acknowledgment,  in  the  following 
form: 

"A.  B.,  the  subscribing  witness  to  the  above 
acknowledgment,  being  sworn,  saith,  that  he 
saw ,  the  sheriff  of ,  or , 


deputy  of  the  sheriff  of ,  (as  the  case 

may  be)  sign  the  same. 

Sworn,"  &c.,  or, 

"I  certify  that  A.  B.  (or  C.  D.,  deputy  of 
A.  B.),  sheriff  of ,  signed  the  above  ac- 
knowledgment in  my  presence."  The  judge 
after  this  signs  the  committitur  as  above  men- 
tioned. 

3.  The  surrender  being  made  as  above  di- 
rected, the  judge  indorses,  on  the  other  copy 
of  the  bailpiece,    the    following    order   and 
notice: 

"  Let  notice  be  given,  without  delay,  to  the 
plaintiff,  that  the  defendant  hath,  on  the  pray- 
er and  for  the  indemnity  of  his  manucaptors, 
been  committed  to  the  custody  of  the  sheriff 

of ,   at  the  suit  of  the  plaintiff  in  the 

plea  above  mentioned;  and  that  unless  cause 
to  the  contrary  be  shown  by  the  plaintiff  be- 
fore me  at  my  chambers,  in ,  on , 

at o'clock  in  the noon  of  that  day, 

an  exotieretur  will  be  indorsed  on  the  bail- 
piece  accordingly.  Dated,"  &c.  The  form  of 
notice  is  in  substance  the  same  as  the  order, 
and  must  be  served  two  days  before  the  time 
specified  therein. 

4.  If  the  plaintiff  appears  and  shows  no 
cause,  or  does  not  appear,  and  proof  be  made 
of  the  due  service  of  the  notice,  by  affidavit 
to  be  annexed  to  the  copy  of  the  bailpiece,  on 
which  is  the  order  for  the  notice,  the  judge 
then  orders  the  exoneretur  to  be  entered,  as 
follows: 

*"  The  plaintiff  having  appeared,  and  [*32 
not  having  shown  sufficient  cause  to  the  con- 
trary (or  the  plaintiff  not  having  appeared,  and 
due  proof  being  made  of  the  service  of  notice,  as 
appears  by  the  affidavit  hereunto  annexed,  or 
otherwise,  as  the  case  may  be)  let  an  exoneretvtr 
be  indorsed  on  the  bailpiece  accordingly. 
Dated,"  &c. 

If  proof  of  notice  be  wanting,  or  sufficient 
notice  be  not  given,  the  judge  may  order  a  new 
notice  as  above. 

If  the  surrender  was  not  made  in  the  pres- 
ence of  the  judge,  but  only  upon  an  acknowl- 
edgment by  the  sheriff,  then  before  any  ex- 
oneretur can  be  entered,  the  sheriff  must  make 
a  further  acknowledgment,  as  follows: 

"I  acknowledge  that  the  defendant  was 
still  remaining  in  my  custody  when  the  com- 
mittitur of  him  for  the  indemnity  of  his 
manucaptors  at  the  suit  of  the  plaintiff  in  the 
plea  above  mentioned  came  to  my  hands. 
Dated,"  &c. 

This  acknowledgment  must  be  proved  or 
certified  in  the  same  manner  as  the  former. 

5.  The  following  is  the  form  of  the  eroneretur 
to  be  indorsed  on  the  original  bailpiece: 

"  The  within    defendant    having,    on    the 
prayer   and   for  the   indemnity  of  his  manu- 
captors, been  committed  to  the  custody  of  the 
,  ut  the  suit  of  the  plaintiff  on 


sheriff  of 


the  within  plea,  the  said  manucaptors  of  their 
recognizance  within  contained  are  fully  ex- 
onerated." 

COL.  AND  CAINES. 


1801 


AN  ACT  CONCERNING  THE  SUPREME  COURT. 


32 


When  the  exoneretur  is  indorsed,  the  copy 
of  the  bailpiece,  with  the  proceedings,  is  an- 
nexed to,  and  remains  with  the  original  on 
file. 

33*]  *N.  B. — Except  the  committiiur  notice 
to  the  plaintiff,  and  the  exoneretur,  all  the  pro- 
ceedings before  the  judge  are  entered  on  the 
copy  of  the  bailpiece. 


By  the  act  (Laws,  vol.  1,  p.  387)  the  sur- 
render, committtoir,  and  sheriff's  receipt  there- 
on, may  all  be  made  before  a  judge  of  the 
Court  of  Common  Pleas,  and  on  due  proof 
therefore,  a  judge  of  the  Supreme  Court 
makes  the  order  for  notice,  and  enters  the 
subsequent  proceedings  to  the  conclusion  of 
the  business. 


AN  ACT  CONCERNING  THE  SUPREME  COURT. 
PASSED  24ra  MABCH,  1801. 


35*]     *  Terms  of  the  Supreme  Court. 

I.  Be  it  enacted  by  the  people  of  the  State 
of  New  York,  represented  in  Senate  and  As- 
sembly, That  the  Supreme  Court  of  Judica- 
ture of  this  State  shall  be  held  at  the  four  sev- 
eral terms  following,  to  wit:     On  the  third 
Tuesdays  of  January,  April,  July  and  October 
in    every    year,    and    that    the  said   several 
terms      of  "  the      said      court      shall     con- 
tinue and  be    held    from    the    time  of    the 
commencement,   every  day    except   Sunday, 
until  and  including  Saturday  in  the  next  en- 
suing week,  and  that  the  term  commencing  on 
the  third  Tuesday  of  January  shall  be  called 
January  Term,  and  shall  be  held  in  the  city  of 
Albany,  and    the  term  commencing  on  the 
third  Tuesday  in  April  shall  be  called  April 
Term,  and  shall  be  held  in  the  city  of  New 
York;  and  the  term  commencing  on* the  third 
Tuesday  of  July  shall  be  called  July  Term, 
and  shall  be  held  in  the  said  city  of  New 
York;  and  the  term  commencing  on  the  third 
Tuesday  of  October  shall  be  called  October 
Term,  and  shall  be  held  in  the  said  city  of 
Albany. 

Teste  and  return  of  process. 

II.  And  be  it  further  enacted,  That  there 
shall  be  in  each  of  the  said  terms  two  common 
days  of  return  only,  that  is  to  say,  the  first 
day  and  the  Tuesday  in  the  next  ensuing  week 
of  each  term,  but  that  the  process  in  proceed- 
ings by  bill  or  otherwise,  except  on  original 
writs,  if  issued  in  term,  may  be  tested  any  day 
in  that  term,  and  be  made  returnable  on  any 
day  in  the  same  term,  or  the  next  term;  and  if 
issued  in  the  vacation  may  be  tested  on  any 
day  in  the  preceeding  term,  and  be  made  re- 
turnable on  any  day  in  the  next  term. 

Process  returnable  before  the  judges,  and  pro- 
ceedings to  be  before  the  same. 

36*]  *III.  And  be  it  further  enacted,  That 
all  writs  and  process  returnable  in  the  said  Su- 
preme Court,  shall  be  made  returnable  as  fol- 
lows, that  is  to  say:  "Before  our  justices  of  our 
Supreme  Court  of  Judicature,  at  the  city  hall 
of  the  city  of  New  York"  (or  city  of  Albany, 
as  the  case  may  be),  and  proceedings  in  the 
said  court  which  have  been  supposed  to  be  be- 
COL.  AND  CAINES. 


fore  the  people  of  this  State,  shall  be  before 
the  justices  of  the  people  of  the  State  of  New 
York,  of  the  Supreme  Court  of  Judicature  of 
the  same  people. 

Proceedings,  except  process,  may  be  on  paper. 

IV.  And  be  it  further  enacted.  That  it  shall 
be  lawful  to  use  paper  instead  of  parchment  in 
all  proceedings  in  the  said  court,  except  as  to 
the  process  of  the  same. 

No  trial  at  bar  without  leave. 

V.  And  be  it  further  enacted,  That  no  issue 
in  any  civil  cause  shall  hereafter  be  tried  at 
the  bar  of  the  said  Supreme  Court,  without  the 
leave  of  the  said  court  for  that  purpose  first 
had  and  obtained. 

Clerks  of  tlie  Supreme  Court  and  their  duties. 
Records  and  papers  how,  removable  to  Albany. 

VI.  And  be  it  further  enacted,  That  there 
shall  be  two  clerks  of  the  said  court,  who  shall 
have  like  powers,  be  subject  to  the  like  duties, 
and  be  entitled  to  like  fees  for  services  per- 
formed; and  that  one  of  the  clerks  of  the  said 
court  shall  keep  his  office  in  the  city  of  New 
York,    and  shall  attend  the  said  court  and 
officiate  as  cjerk  thereof  when  the  same  court 
shall  sit  in  the  city  of  New  York;  and  the 
other  of  the  said  clerks  shall  keep  his  office  in 
the  public  building  in  the  city  of  Albany,  and 
shall  attend   the  said  court  and  officiate  as 
clerk  thereof,  when  the  same  court  shall  sit  in 
the  city  of  Albany.     And  that  it  shall  be  law- 
ful for  the  justices  of  the  same  court,  from 
time  to  time,  to  direct  such  records  and  papers 
as  they  shall  think  proper  to  be  removed  from 
the  clerk's  office  in  the  city  of  New  York,  and 
deposited  in  the  clerk's  office  in  the  city  of 
Albany. 

Seals  of  the  said  court.     Clerks  to  ta.r  costs  and 
sign  rolls. 

VII.  And  be  it  further  enacted,  That  there 
shall  be  two  seals  of  the  said  court,  and  the 
descriptions  of  the  same  in  *writiug,    [*37 
deposited  and  recorded  in  the  office  of  the  sec- 
retary of  this  State,  shall   remain  as  public 
records,  and  that  each  of  the  said  clerks  shall 
have  the  custody  of  one  of  the  said  seals,  and 

77 


87 


AN   ACT  CONCERNING  THE   SUPREME   COURT. 


1801 


all  process  and  other  proceedings  issued  under 
either  of  the  said  seals  shall  be  equally  valid. 
And  further,  Thut  all  costs  and  judgment 
rolls  in  the  same  court  may  be  taxed  and  signed 
by  either  of  the  said  clerks. 

Recorder  of  New  York  made  a  commissioner  to 
do  certain  duties  of  a  judge  of  the  Supreme 
Court. 

VIII.  And  be  it  further  enacted.  That  the 
recorder  of  the  city  of  New  York  shall  be  ex 
officio  a  commissioner,  equally  authorized  and 
required  with  a  judge  of  the  Supreme  Court, 
in  respect  to  suits  and  proceedings  in  the  said 
court,  to  do  and  execute  every  act,  power  and 
trust,  excepting  taxing  costs  and  signing  rolls, 
which  according  to  the  practice  of  the  said 
court,  a  judge   may  do  and  execute  out  of 
court;  and  also  to  allow  writs  of  habeas  corpus, 
and  to  admit  prisoners  to  bail  in  all  cases  and 
in  like  manner  as  any  such  judge  may  do. 

Court  to  appoint  commissioners  to  take  affidavits. 
Effect  of  such  affidavits.  Perjury  therein  pun- 
ished. 

IX.  And  be  it  further  enacted.  That  the  said 
court  shall  by  one  or  more  commissions  under 
the  seal  of  the  same,  from  time  to  time  as  need 
shall  require,  empower  such  and  so  many  per- 
sons as  they  shall  deem  fit  in  every  county,  to 
take  affidavits  of  any  person  desirous  to  make 
the  same,  concerning  any  cause  or  matter  de- 
pending, or  any  proceedings  to  be  had  in  the 
said  court  or  in   the  Court  of  Exchequer;  and 
every  affidavit  so  taken  shall  be  of  like  force 
as  affidavits  taken  in  the  said  courts  respective- 
78 


ly,  or  before  a  judge  thereof;  and  that  every 
person  who  shall  commit  perjury  in  any  such 
affidavit,  shall  incur  the  same  penalties  as  if 
such  affidavit  had  been  made  in  open  court. 

Governor  to  change  place  of  holdinf/  courts  in 
case  of  sickness  or  other  calamity. 

X.  And  be  it  further  enacted,  That  the  per- 
son administering  the  government  of  this 
State  is  hereby  authorized,  at  any  time  during 
the  vacation  of  the  Supreme  Court,  or  of  any 
Mayor's  Court,  Court  of  Common  Pleas,  or 
sessions  of  the  peace,  in  any  city  or  coiinty,  if 
he  shall  deem  it  requisite  *by  reason  of  [*38 
war,  pestilence,  or  other  public  calamity,  or 
the  danger  thereof,  that  the  then  next  ensuing 
term  or  session  of  any  such  court  should  be 
held  at  a  different  place  from  the  one  where 
such  term  or  session  would  be  to  be  held  bv 
law,  to  appoint  by  writing  under  his  hand*, 
and  to  be  recorded  in  the  secretary's  office,  and 
published  in  such  and  so  many  public  news- 
papers as  he  may  deem  requisite  for  the  due 
notice  thereof,  such  different  place  for  holding 
such  ensuing  term  or  session  as  he  shall  deem 
most  eligible,  and  at  any  time  thereafter  dur- 
ing such  vacation  to  revoke  every  such  appoint- 
ment, and  in  like  manner  to  appoint  a  place 
anew,  or  leave  such  term  or  session  to  be  held 
at  the  place  where  by  law  it  would  have  been 
held;  and  whenever  such  term  or  session  shall 
be  held  at  any  place  so  appointed,  all  process 
shall  be  returned,  and  all  persons  shall  be  held 
to  appear  at  such  place  equally  as  if  such  term 
"or  session  was  held  at  the  place  where  by  law 
the  same  was  to  have  been  held. 

COL.  AND  CAINES 


OASES  OF  PRACTICE 


ADJUDGED  IN   THE 


SUPREME    COURT 


OP  THE 


STATE  OF  NEW  YORK. 


39*] 


*  APRIL  TERM,  1794. 


DOBBIN  «.  W  ATKINS. 

Nonsuit — Evidence —  Written  Contract — Notice  to 
Produce. 

ON  the  trial  it  appeared  that  the  contract  on 
the  part  of  the  plaintiff  to  deliver,  and 
the  one  on  the  part  of  the  defendant  to  receive 
and  pay  for  the  stock,  had  been  reduced  te 
writing,  and  mutually  signed  and  interchanged 
between  the  parties;  and  the  former  was  the  con- 
sideration of  the  latter  or  of  the  assumpsit  by  the 
defendant  as  charged  in  the  declaration.  The 
plaintiff  could  not  produce  the  writing,  and 
not  having  given  notice  to  the  defendant  to 
produce  it,  whereby  to  entitle  himself  to  prove 
its  contents,  he  was  nonsuited.  B. 


4O*]  *LUDLOW  ads.  THE  PEOPLE. 

Certioi'ari — To  have  Trial  by  Foreign  Jury — Suf- 
ficiency of  Affidavit. 

THE  Defendant  was  indicted  at  the  Oyer  and 
Terminer  in  Queen's  County  for  a  rape, 
and  in  the  last  vacation  he  obtained  from  a 
judge  at  his  chamber,  an  allowance  of  a  cer- 
tiorari  to  remove  the  indictment  into  this  court, 
with  a  view  to  have  a  trial  by  a  foreign  jury. 
The  certiorari  was  directed  to  the  clerk  of  the 
Oyer  and  Terminer,  and  returned  by  him  with 
the  indictment  annexed,  and  the  following 
questions  occurring  :  1st.  Whether  a  certiorari 
to  remove  an  indictment  for  felony  could  be  al- 
lowed otherwise  than  on  motion  in  open  court, 
and  special  cause  shown.  3d.  Whether  a  cer- 
tiorari to  remove  an  indictment  from  the  Oyer 
and  Terminer  ought  not  to  be  directed  to  and 
returned  by  the  commissioners  instead  of  the 
clerk.  3d.  If  the  certiorari  in  the  present  case 
should  be  received  and  filed  in  this  court,  then 
how  and  where  must  the  trial  be  ?  whether  by 
procedendo  to  the  Oyer  and  Terminer,  or  by 
nisi  prius  at  the  circuit,  or  at  bar  ?  and 
whether  a  foreign  jury  could  be  awarded  in  a 
capital  case.  The  court  permitted  the  cerlio- 
rari  and  return  to  be  lodged  only  in  court  for 
the  present,  but  not  as  either  formally  received 
COL.  AND  CAINES. 


or  filed  ;  the  defendant,  however,  having  sub- 
mitted the  affidavit  on  which  he  should  ground 
his  motion  for  a  foreign  jury,  to  the  previous 
examination  of  the  judges,  and  they  deeming 
it  insufficient,  no  opinion  was  therefore  given 
on  either  of  the  above  questions,  and  the 
following  order  was  entered  in  the  cause, 
viz  :  "The  writ  of  certiorari  issued  out  of  this 
court,  in  this  cause,  directed  to  James  Fairlie, 
clerk  of  the  Court  of  Oyer  and  Terminer, 
and  General  Gaol  Delivery,  *in  and  for  [*41 
the  County  of  Queens,  and  the  return  of  the  said 
James  Fairlie  to  the  said  writ  being  read, 
Ordered,  that  the  said  writ  and  return  be  not 
received  and  filed  in  this  court,  and  that  the 
several  matters  intended  by  the  said  return  to 
have  been  certified  and  returned  to  this  court, 
be  in  the  same  state  in  which  they  were  before 
the  said  writ  issued  ;  the  said  writ  and  the  said 
return  notwithstanding."  The  certiorari  and 
return  were  thereupon  entrusted  to  Mr.  Justice 
Lansing,  to  be  by  him  put  again  into  the 
hands  of  Mr.  Fairlie  at  Albany,  where  he  re- 
sided. B. 


THE  PEOPLE  v.  DOWELLE. 

Witness  Fees — Poor  persons  appearing  on  Sub- 
poena, and,  not  on  Recognizance. 

SEVERAL  poor  persons  appeared  on  sub- 
O  pcena  to  give  evidence  against  the  defend- 
ant. The  court  determined  that  on  a  just 
construction  of  the  statute  they  were  equally 
entitled  to  be  paid  as  if  they  had  appeared  on 
recognizance.  B 


APRIL  TERM,  1795. 


CARNES  v.  DUNCAN,  Administrator. 

Pleading — Nul  tiel record  as  one  of  Several  Plevs. 

THE  Defendant  pleaded  payment  and  nul 
tiel  record ;  and  on  motion  on  the  part  of 
the  plaintiff,  the  court  ordered  the  defendant 
to  elect  by  which  of  the  two  pleas  he  would 
abide;  thereby  deciding  that  *where  [*42 
there  are  several  pleas,  nul  ttel  record  cun  never 

79 


42 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1795 


be  one  of  them.  The  principle  of  the  decis- 
ion was  declared  to  be,  that  mil  tid  record  be- 
ing a  matter,  the  knowledge  of  the  proof  of 
which  the  defendant  might  reduce  to  absolute 
certainty,  it  was  not  within  the  reason  of  the 
statute  enabling  defendants  to  plead  several 
pleas,  for  that  the  sole  intent  of  the  statute  was 
to  relieve  against  the  hardship  of  restricting  a 
defendant,  having  several  matters  of  just  de- 
fence— all  of  them,  however,  of  a  nature,  that 
the  proof  of  them  cannot  be  previously  posi- 
tively ascertained — to  rest  his  cause  on  one  of 
them  only.  B. 

Cited— 6  Wend.,  512. 


APRIL  TERM,  1795. 


PLATT  v.  PLATT. 

Habeas  Corpus — Relation  to  suit  below. 

Cases  cited :  Abb.,  199 ;  Bract.,  414,  cited  in  the  last 
Digest,  tit.  5,  c.  5,  par.  3;  Inst.  Cler.,  409;  Inst.  Legal, 
237;  Imp.  Pract.  Com.  PL,  641;  Boote's  suit  at  law, 
14, 17.  34. 

BENSON,  J.  The  pleadings  in  this  cause  are: 
Narr.  intitled  of  October  Term,  1794,  in  as- 
sumpsit  charged,  1st  September,  1794,  plea  in 
abatement,  that  on  the  28th  January,  1793,  the 
defendant  was  taken  and  detained  in  prison 
under  the  custody  of  the  Judges  and  Assistant 
Justices  of  the  Court  of  Common  Pleas  for 
the  County  of  Westchester,  by  virtue  of  a 
plaint  levied  against  him  in  that  court  at  the 
suit  of  the  plaintiff  ;  that  the  plaintiff  declared 
against  the  defendant  on  that  plaint,  and  the 
plea  set  forth  the  declaration  at  large,  which  is 
similar  to  the  declaration  in  this  court  (with 
this  difference  only,  that  in  the  latter 
there  is  an  addition  of  a  count  on  an 
insimul  computassent,  and  in  the  former  the  as- 
sumpitit  is  charged  on  the  1st  of  January,  1793); 
that  the  defendant  sued  out  of  this  court  an 
habeas  corpus  for  removing  the  cause,  tested 
the  9th,  and  allowed  the  27th  August,  1794,  and 
43*  j  returnable  *the  ensuing  October  Term  ; 
that  the  habeas  corpus  was  returned  in  that 
term.and  setting  forth  the  return,  which  is  in  the 
usual  form  ;  that  thereupon  the  defendant  was 
delivered  to  bail  in  this  court  at  the  suit  of  the 
plaintiff  in  the  plea  aforesaid,  whereupon  the 
plaintiff  exhibited  the  bill  aforesaid  in  this 
court  against  the  defendant  in  the  plea  afore- 
said ;  that  inasmuch  as  it  appears  by  the  bill 
here  that  the  causes  of  action  specified  in  the 
bill  had  not  accrued  before  the  term  of  the 
caption  of  the  defendant  by  virtue  of  the 
plaint,  nor  before  the  time  when  the  plaintiff 
declared  on  the  plaint,  nor  before  the  day  of 
the  test,  nor  before  the  day  of  the  allowance  of 
the  habeas  corpus,  the  plea  therefore  concludes 
by  praying  judgment  of  the  bill,  and  that  it 
may  be  quashed.  Demurrer  to  the  plea,  and 
joinder  in  demurrer. 

"It  is  regularly  true  that  if  the  plaintiff  will 
himself  discover  to  the  court  anything  whereby 
it  may  appear  that  he  had  no  cause  of  action 
when  he  commenced  it,  his  writ  shall  abate  ; 
of  his  own  showing,  it  is  against  him.  (Hob. 
199.)  Or  as  it  is  expressed  by  an  ancient  law- 
writer,  "The  Writ  also  falls  if  at  the 
80 


time  of  dating  and  issuing,  the  demand- 
ant had  no  competent  action  or  cause  for  de- 
manding." (Bract.,  414,  as  cited  in  issu- 
ing there  was  no  cause  for  issuing,  because, 
Theloal's  Digest,  Lib.  4,  ch.  5,  par.  3.)  The 
question  therefore  between  the  parties  in  the 
present  case  is,  whether  the  defendant  shall,  to 
that  intent,  where  the  suit  hath  been  removed  by 
habeas  corpus,  allege  any  act  of  the  plaintiff,  or 
other  proceedings,  in  the  court  below,  or  the  test, 
or  the  allowance  of  the  habeas  corpus,  *as  [*44 
the  commencement  of  the  suit.  This  question 
depends  on  another,  viz  :  Whether,  where  a 
suit  is  removed  by  habeas  corpus,  it  does  not 
then  become  a  new  suit  in  the  court  above,  or 
whether  it  is  not  to  be  considered  as  the  same 
suit,  commenced  in  the  court  below,  and  con- 
tinued in  the  court  above.  With  respect  to 
this  question,  it  is  clearly  laid  down  "that  the 
record  itself  is  never  removed  by  habeas  corpus, 
but  remains  below,  and  therefore  the  plaintiff 
must  here  begin  de  novo"  (Salk.,  352),  and 
must  not  only  "declare  de  now,"  but  in  the 
common  bench  must  "bring  a  new  original." 
It  is  part  of  the  condition  of  the  recognizance 
of  bail  on  an  habeas  corpus  in  that  court, 
"That  the  defendant  shall  appear  to  a  new 
original  to  be  filed."  (Inst.  Cler.,  409., 
Inst.  Legal.,  237  ;  Imp.  Pract.  Com.  PI.,  641.) 
And  I  should  suppose,  if  it  is  now  necessary  to 
comply  with  mere  formality  or  fiction,  that 
•where  the  proceedings  are  by  bill,  as  distin- 
guished from  where  they  are  by  writ,  that  the 
bill  "on  which  the  process  used  to  issue 
against  the  defendant,"  which  is  "to  warrant 
the  declaration,"  and  which,  as  analogous  to 
the  original  writ,  is  said  to  be  "the  ground- 
work of  the  cause,"  ought  to  be  filed  de  now. 
(Boote's  Suit  at  Law,  14,  17,  34.)  And 
although  where  a  suit  hath  been  com- 
menced within  the  requisite  period  and  removed 
by  habeas  corpus,  and  the  period  should  expire 
before  the  declaration  de  now  filed,  and  there- 
upon the  defendant  plead  the  statute  of  limita- 
tions, '  'the  plaintiff  may  reply  the  suit  below  " 
(Salk.,  424),  and  in  like  manner,  where  a  suit  is 
commenced  within  the  period,  and  abated  by 
the  death  of  the  plaintiff  before  judgment,  the 
period  being  then  expired,  '  'this  shall  not  pre- 
vent *his  executors;"  yet,  the  reason  is  not,  [*45 
that  in  the  former  case  the  suit  above  is  a  contin- 
uance of  the  suit  commenced  below,  or  that  in 
the  latter  case  the  suit  by  the  executor  is  a  con- 
tinuance of  the  suit  commenced  by  the  testator, 
but  merely  to  show  that  the  plaintiff  "had 
rightfully  and  legally  pursued  his  right."  And 
I  should  suppose,  for  the  same  reason,  that 
where  priority  of  right  attaches  on  bringing  a 
suit,  and  a  suit  should  be  brought  and  be  re- 
moved by  habeas  eorp?/*,and  in  the  intermediate 
time  between  bringing  the  suit  in  the  court  be- 
low and  filing  the  declaration  in  the  court 
above,  another  person  should  bring  a  suit 
against  the  defendant  for  the  same  cause,  and 
the  defendant  should  plead  that  matter  with  in- 
tent to  oust  the  plaintiff  of  his  priority,  that 
the  plaintiff  might  reply,  the  suit  commenced 
in  the  court  below.  The  truth  is,  that  when- 
ever right  or  justice  may  require  it,  a  ^uit  re- 
moved by  habeas  corpus  may,  to  certain  intents, 
be  made  to  relate  to  the  suit  below,  but  not  to  it 
as  to  the  same  suit  technically  continued,  or 
i  on  the  proceedings  in  which  any  of  those 
COL.  AND  CAINES. 


1795 


PRICE  v.  EVERS. 


45 


in  the  court  above  are  founded,  in  the  sense  that 
the  count,  narration  or  declaration  is  said  to  be 
founded  on  the  writ  or  bill,  or  plaint,  which- 
ever may  be  the  original  process. 

There  is  possibly  another  question  between 
the  present  parties,  viz.,  whether  the  rule  is 
not  to  be  taken  strictly,  that  the  defendant 
cannot  avail  himself  of  it  as  pleadable  unless 
the  plaintiff  himself  discover  that  he  had  no 
cause  of  action  when  he  commenced  it.  (Hob. 
ut  supra.)  In  which,  however,  I  should  un- 
derstand to  be  comprehended,  as  well  what  the 
46*]  *plaintiff  must  in  the  first  instance  put  on 
the  record,  as  what  he  is  bound  to  discover  on 
oyer  prayed  by  the  defendant,  and  also  what- 
ever the  defendant  may  elect  to  allege  himself 
instead  of  praying  oyer  of  it  from  the  plaint- 
iff, but  of  which,  if  it  had  been  prayed,  the 
plaintiff  was  bound  to  give  oyer.  (Thel.  Dig., 
lib.  10,  ch.  4;  Brown  Lat,,  red.  1,  pi.  3;  Id., 
2,  pi.  6  ;  Form.  bene.  plac.,  3.)  If  the  Law  is 
so,  and  I  am  inclined  to  think  it  is,  then  it  is 
fatal  to  the  defendant's  plea  ;  because  (and 
which  it  is  to  be  remarked,  is  decisive,  that  the 
process  is  not  continued  from  the  one  court,  to 
the  other,  there  being  no  such  thing,  where  a 
cause  hath  been  removed  by  habeas  corpus,  as 
oyer  in  the  suit  in  the  court  above  of  any  of 
the  matters  in  the  suit  in  the  court  below)  the 
defendant  hath  no  legal  mean  to  make  the 
matter  of  variance  (for  of  that  nature  is  the 
matter  of  the  plea  in  this  case)  appear  on  the 
record.  (Theloal's  Dig.,  lib.  9,  chap.  5.) 

I  wish,  however,  to  be  considered  as 
not  having  come  to  a  decided  judgment  on  this 
point ;  my  opinion  against  the  defendant  is 
grounded  wholly  on  what  I  have  previously 
advanced. 

/  think  tlie  plea  is  insufficient,  and  therefore, 
that  the  defendant  atiswer  over.  B. 

Cited  in  1  Caines,  272. 


PRICE  v.  EVERS. 
Amendment  of  Record. 

IN  the  Court  of  Errors,  1796.  Error  from 
the  Supreme  Court  on  a  judgment  in  as- 
47*]  sumpsit  by  default.  *The  plaintiff  in  the 
court  below  had  in  the  in  toto  attingens  on  the 
roll,  taken  .judgment  for  sixpence  less  than  the 
amount  of  the  damages  and  costs  found  by  the 
jury,  and  the  costs  of  increase.  The  following 
judgment  was  thereupon  entered  in  this  court, 
viz:  "This  court  having  heard  counsel  on 
both  sides,  and  due  consideration  having  been 
had  of  what  was  offered  on  either  side  in  this 
cause,  and  one  of  the  causes  of  error  assigned 
being  a  miscasting  by  the  defendant  in  error, 
it  is  thereupon  ordered  by  this  court,  that  the 
record  in  this  cause  be  amended,  whereby  to 
correct  such  miscasting,  as  follows,  that  is  to 
say,  by  striking  out  the  word  ten  in  the  judg- 
ment between  the  word  pounds  and  the  word 
shillings,  and  inserting  the  word  eleven  instead 
thereof ;  and  by  striking  out  the  words  and 
sixpence,  after  the  said  word  shillings.  And  it  is 
thereupon  further  ordered  and  adjudged  by 
this  court  that  the  said  judgment  given  in 
the  said  Supreme  Court  be,  and  hereby  is  af- 
firmed ;  and  that  the  transcript  of  the  said 
record  so  amended  be  remitted,  to  the  end  that 
COL.  AND  CAINES.  N.  Y.  REP.,  BOOK  1. 


the  record  remaining  in  the  said  Supreme  Court 
be  also  amended  in  like  manner,  and  that  ex- 
ecution may  be  thereupon  had  accordingly. 
And  it  is  further  ordered,  that  the  defendant 
in  error  pay  to  the  plaintiff  in  error  his  costs 
of  prosecuting  the  said  writ  of  error  to  be 
taxed."  B. 

Cited  in  3  Johns.,  99 ;  2  Cow.,  410 ;  1  Demo,  678. 


JULY  TERM,  1796. 


*BRANTINGHAM'S  CASE.      [*48 

Imprisonment  for  Debt  —  Charging  Defendant 
in  Execution  —  Election. 


defendant  having  been  surrendered  in 
1  discharge  of  his  bail,  and  thereupon  com- 
mitted to  custody,  the  plaintiff  proceeded  to 
judgment,  but  suffered  more  than  three  months 
to  elapse  after  judgment  was  entered,  without 
charging  the  defendant  in  execution.  He  was 
then  summoned  before  His  Honour  -Mr.  Justice 
Benson,  at  his  chambers,  to  show  cause  why  a 
supersedeas  should  not  issue,  because  he  had 
not  charged  the  defendant  in  execution  within 
the  time  prescribed  by  the  12th  section  of  the 
Act  entitled  "An  Act  for  the  relief  of  debtors, 
with  respect  to  the  imprisonment  of  their  per- 
sons," passed  the  13th  of  February,  1789.  The 
plaintiff,  after  notice  of  the  application  and 
before  the  time  of  attendance,  charged  the  de- 
fendant in  execution,  and  on  the  hearing, 
showed  that  for  cause. 

His  Honour  Judge  Benson  reserved  the 
question,  and  stated  the  case  to  the  judges 
at  a  conference,  at  which  they  were  all  pres- 
ent. 

They  were  of  opinion  that  a  supersedeas 
ought  not  to  be  allowed.  That  the  intent  of 
the  statute  was  to  enable  the  defendant  to  put 
the  plaintiff  to  his  election,  either  to  charge 
the  defendant's  body  in  execution  or  to  resort 
to  his  estate  ;  and  the  plaintiff  having  made  his 
election  before  the  supersedeas  was  allowed, 
the  defendant  was  not  entitled  to  his  discharge. 


*DRAKE  v.  HUNT. 


[*49 


Nonrpros.  —  Removal  of  Cause  —  Acceptance  of 
Declaration. 


action  was  originally  commenced  in 
JL  the  Mayor's  Court  of  the  city  of  New 
York  and  removed  by  habeas  corpus. 

Bail  had  been  regularly  filed,  and  Munro,  for 
defendant,  moved  the  last  April  Term,  that 
the  plaintiff  be  non  prossed  for  not  declaring. 
He  cited  2  Crompton,  410  ;  2  Salk.,  455  ;  Gil- 
bert's Law  of  Distresses,  139  ;  Cur.  ad  milt. 

The  court  now  gave  their  unanimous  opin- 
ion, That  the  cause  having  been  removed  to 
this  court  without  the  agency  or  approbation 
of  the  plaintiff,  he  was  not  obliged  to  follow 
it,  and  could  not  be  non  prossed  for  not  declar- 
ing here,  as  he  had  never  been  in  court  ;  but 
that  the  defendant  was  not  bound  to  accept  a 
declaration  after  two  terms  had  elapsed.  G. 

6  81 


49 


SUPREME  COUKT,  STATE  OF  NEW  YORK. 


ITitr, 


WENDOVER  v.  BALL. 

Sheriff —  Attachment  —  Bail  —  One  nominal 
Person — Stipulation  of  Sheriff. 

ABAILPIECE  had  been  filed,  containing 
the  name  of  one  real  person,  who  had  at 
the  same  time  filed  an  affidavit  of  justification, 
and  of  one  nominal  person.  A  rule  was  then 
taken  to  bring  in  the  body,  or  show  cause  why 
an  attachment  should  not  issue  against  the 
sheriff ;  and  now 

Mr.  Wood,  for  the  plaintiff,  moved  that  the 
rule  be  made  absolute. 

Per  Curiam.  The  practice  of  inserting  only 
one  real  person  in  bailpieces  has  generally  ob- 
5O*]  tained,  *but  has  passed  because  there  has 
been  no  opposition  to  it.  It  is  requisite,  if  the 
plaintiff  exacts  it,  that  two  real  persons  should 
become  bail. 

But  the  sheriff  stipulating  to  put  in  addi- 
tional bail,  the  motion  was  waived. 


GENERAL  RULE. 

SATURDAY. 

ORDERED,  That  on  trials,  one  counsel  only 
on  each  side  shall  examine  or  cross-exam- 
ine a  witness,  and  that  two  counsel  only  on 
each  side  shall  sum  up  the  evidence  to  the  jury. 


OCTOBER  TERM,  1796. 


COHAN,  Administrator,  ads.  KIPP. 

Default — Imperfect  Plea — Mistake. 

A  PLEA  was  drawn  and  signed,  but  the  de- 
fendant's attorney  forgot  to  file  it,  and  a 
copy  without  signature  was  served.  A  default 
for  not  pleading  was  entered  during  the  last 
vacation,  subsequent  to  the  delivery  of  the 
plea. 

Mr.  Jones,  for  defendant,  now  moved  to  set 
aside  the  default,  on  the  ground  of  irregularity; 
he  produced  also  an  affidavit  of  merits. 

Per  Curiam.  A  plaintiff  may  accept  or  re- 
fuse an  imperfect  copy  of  a  plea;  and  if  he  ac- 
5 1  *]  cepts  it,  the  *court  will  compel  the  defend- 
ant to  file  a  perfect  plea,  if  that  has  not  already 
been  done.  Here  appears  to  have  been  a  mere 
mistake  on  the  part  of  defendant.  Let  him  file 
a  plea  instanter.  and  the  default  be  set  aside  on 
payment  of  costs. 


APRIL  TERM,  1796. 


BRANSON  ads.  BOARDMAN  ET  AL. 

Verdict — Dem  urrer. 

IN  this  cause  a  demurrer  was  filed  to  the  rep- 
lication ;  the   defendant's  attorney  at   the 
same  time  applied  to  the  deputy-clerk  for  leave 
82 


to  strike  out  the  similiter,  but  the  clerk  refused 
to  permit  him  to  do  so.  Notice  of  trial  was 
then  given,  and  an  inquest  taken. 

Mr.  Jones,  for  defendant,  now  moved  that 
the  verdict  be  set  aside  for  irregularity. 

Per  Curiam.  The  9th  rule  of  April  Termr 
1796,  provides  that  "If  either  party  shall  in 
pleading,  in  any  degree,  tender  an  issue  to  the 
country,  and  if  the  opposite  party  shall  not  de- 
mur to  the  pleading  within  twenty  days  after 
service  of  a  copy  thereof,  the  cause  shall  in. 
each  of  these  cases  be  deemed  to  be  at  issue  ;'r 
but  here  was  a  demurrer  filed  within  twenty 
days,  and  the  striking  out  the  similiter  from 
the  replication  which  had  been  filed  was  not 
necessary. 

Let  the  verdict  be  set  aside  with  costs. 

Cited  in  18  Johns.,  138. 


*APRIL  TERM,  1797. 


FRANKLIN  ET  AL.  ads.  NORE. 

Verdict — Notice  of  Motion  for  Struck  Jury. 

TSSUE  was  joined  during  the  last  vacation,. 
J.  and  before  notice  of  trial  was  received  the 
defendant  served  the  plaintiff  with  notice  of  a 
motion  for  a  struck  jury;  notwithstanding 
which,  the  plaintiff  proceeded  to  give  notice  of 
trial,  and  took  an  inquest. 

Mr.  S.  Jones,  for  defendant,  moved  that  the 
verdict  be  set  aside  for  irregularity. 

Per  Curiam.  The  defendant  availed  himself 
of  the  first  opportunity  in  his  power  to  apply 
for  a  struck  jury,  and  it  was  irregular  for  the 
plaintiff  to  proceed  after  receiving  notice  of  the 
intended  motion. 

Let  the  verdict  be  set  aside  icith  cost*. 


JANUARY  TERM,  1798. 


WINTER  «.  CARTER. 
Bail-bond  —  Default  of  Record  —  Judgment. 


was  an  action  on  bail-bond.  The  de- 
1.  f  endant  pleaded  comperuit  ad  diem  ;  plaint- 
iff replied  n  ul  tiel  record  ;  and  issue  being  taken 
thereon,  day  was  given,  by  rule  entered  in  va- 
cation, to  produce  the  record  on  the  first  day 
of  this  term. 

And  now,  on  this  day,  being  the  quarto  die 
post, 

The  Attorney-General,  for  plaintiff,  moved 
that  «the  defendant  be  called  to  produce  the 
record. 

*The  court  expressed  some  doubt  [*53 
whether  this  was  to  be  considered  as  a  com- 
mon rule,  within  the  intent  of  the  first  general 
rule  of  April  Term,  1796,  and  took  timelo  con- 
sider of  it  till  the  succeeding  Monday,  when 
they  ordered  judgment  for  default  of  record. 
COL.  AND  CAINES. 


1798 


OUDENAKDE   V.    VAN  BERGEN. 


53 


OUDENARDE  v.  VAN  BERGEN. 

Interlocutory  Judgment — Default  not  entered. 

HTHE  plaintiff  had  filed  his  declaration  in  va- 
J_  cation,  and  the  rule  to  plead  having  ex- 
pired, he  entered  interlocutory  judgment  the 
last  term,  without  having  first  entered  a  de- 
fault. 

Mr.  Spencer,  for  defendant,  moved  to  set  aside 
this  judgment,  on  the  ground  that  no  default 
had  previously  been  entered. 

On  the  last  day  of  term,  Mr.  Justice  Lans- 
ing delivered  the  unanimous  opinion  of  the 
court : 

When  this  question  was  presented  in  the 
first  instance,  I  did  suppose  that  the  entry  of 
the  default  could  not,  under  the  existing  rule, 
have  any  other  effect  than  merely  to  preclude 
the  opposite  party  from  pleading,  and  that  the 
plaintiff  might  waive  the  entry  of  the  default, 
and  enter  a  rule  for  judgment. 

Upon  further  reflection  on  the  subject,  and 
after  carefully  examining  the  eighth  rule  en- 
tered in  April  Term,  1796,  it  appears  to  me  to 
be  the  better  construction  that  the  entry  of  the 
default  is  indispensable  to  entitle  the  plaintiff 
to  his  judgment,  the  expression  being,  "  That 
54*]  the  default  being  duly  entered,  *the  party 
who  shall  have  had  it  entered  shall  not  be  held 
afterwards  to  accept  a  declaration  or  answer,  as 
the  default  shall  happen  to  be,  and  may  at  any 
time  after  four  days  in  term  shall  have  inter- 
vened thereafter,  have  a  rule  for  such  judgment 
as  is  to  be  rendered  by  law,  by  reason  of  the 
default."  This  imposes  it  on  the  party  enter- 
ing the  default  to  file  the  necessary  proofs  to 
evince  its  regularity,  and  if  any  subsequent 
question  arises  on  that  subject,  a  resort  to  those 
proofs  affords  a  determinate  test. 

We  are  all-  of  opinion  tJiat  the  interlocutory 
judgment  be  net  aside. 


APRIL  TERM,  1798. 


KETTLETAS  «.  NORTH. 

Writ  of  Error — Permission  to  Losing  Party  to 
file  Roll. 

JUDGMENT  had  been  rendered  for  the  de- 
J  fendant  on  verdict,  but  the  roll  had  not 
been  filed. 

Mr.  Burr,  for  plaintiff,  now  suggested  that  he 
intended  to  bring  a  writ  of  error,  and  moved 
for  a  rule  that  the  defendant  produre  the  roll 
to  be  signed  and  filed  in  four  days,  or  that  the 
plaintiff  have  leave  to  do  it. 

Rule  granted. 


55*1      *WICKHAM  v.  WATERS. 

Ejectment —  View — Boundaries. 

p  RAHAM  moved  for  a  view,  on  affidavit 
VT  that  view  was  necessary.    But  as  he  did  not 
state  that  boundaries  were  in  question,    the 
court  refused  to  grant  the  motion. 
COL.  AND  CAINES. 


WIMPLE  ET  AL.  «.  M'DOUGAL. 

Amendment — Ejectment — Declaration — Election 
of  Defendant. 

VAN  VECHTEN,  for  the  plaintiff,  moved 
for  leave  to  amend  the  declaration  in  eject- 
ment, by  adding  a  count  on  the  demise  of  a 
person  not  originally  named  as  a  lessor.     He 
mentioned  the  case  of  Jackson,  ex  dem.  Quack- 
enbos,  v.  Dennis,  where  this  was  allowed. 
Mr.  Graham,  contra. 

Per  Curiam.  In  the  case  of  Quackenbos 
v.  Dennis,  it  was  so  ordered,  and  that  is  to 
be  considered  as  a  precedent  to  govern.  But 
it  is  reasonable  that  the  defendant  should  be 
permitted  to  relinquish  his  defense,  if  he 
chooses  to  do  so,  as  the  introduction  of  a  new 
party  may  vary  his  situation.  Let  him  elect, 
by  Friday  next,  to  abide  by  or  relinquish  his 
plea ;  and  if  he  relinquishes  it,  the  plaintiff 
must  pay  all  the  costs  accrued  up  to  that  day. 


M'GOURCH  v.  ARMSTRONG. 

Sheriff — A  ttachment — Arrest — Notice. 

HENRY  moved  for  an  attachment  against 
the  sheriff  of  Montgomery,  on  a  rule  taken 
by  him  in  vacation  to  bring  in  the  body  by  the 
second  day  of  term.  But  *it  appeared  [*56 
that  notice  of  such  rule  had  not  been  served 
twenty  days. 

Per  Curiam.  Although  the  printed  rules  do 
not  reach  the  case,  the  sheriff  must  have  twenty 
days  at  least  after  service  of  the  notice.  Let 
the  plaintiff  take  nothing  by  his  motion. 


DRIGGS  ads.  VAN  LOON. 

Inquest — Interlocutory  Judgment — Notice  of 
Retainer — Subsequent  Notices. 

MOTION  by  KirJdand  to  set  aside  a  writ  of 
inquiry  and  subsequent  proceedings. 
Defendant  had  retained  an  attorney  after  in- 
terlocutory judgment,  who  gave  notice  there- 
of ;  but  plaintiff  proceeded  to  execute  a  writ 
of  inquiry,  without  giving  notice  to  the  attor- 
ney so  employed. 

Per  Curiam.  Whenever  an  attorney  is  em- 
ployed, though  it  be  too  late  to  plead,  yet  he  is 
entitled  to  all  subsequent  notices. 

Motion  granted. 

Cited  in  8  Cowen,  117. 


BALLARD  AND  PARKMAX,    Manucaptors 
of  CHAPMAN, 

ads. 
KIBBE  AND  LUDLOW. 

Bail — Surrender    of   Principal — Discharge    of 
One  Bail. 

THIS  was  an  application  by  bajl  to  surrender 
their  principal  on  the  following  case  : 
In  April  Term,    1797,   ca.    sa.    against   the 


56 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1798 


principal  was  returned  non  e»t.  On  which 
plaintiffs  issued  a  cap.  ad.  resp.  against  the  bail 
jointly,  on  their  recognizance.  This  writ  was 
57*1  delivered  to  the  sheriff  of  *Herkimer  or 
his  deputy,  early  in  April  vacation,  being  re- 
turnable the  last  Tuesday  of  July  then  next. 

On  the  7th  of  July  the  deputy,  having  pos- 
session of  the  writ,  but  not  in  his  pocket,  met 
Parkman,  one  of  the  bail,  and  informed  him  of 
the  writ ;  on  which  Parkman  promised  to  come 
to  the  house  of  the  deputy  and  indorse  his  ap- 
pearance thereon  before  the  return  day.  He 
accordingly  came  and  indorsed  his  appearance, 
but  at  what  time  precisely,  Cheeseborough,  the 
deputy,  who  is  the  witness,  does  not  recollect. 
By  the  affidavit  of  Parkman  himself,  it  appears 
to  have  been  two  days  after  the  return  day  of 
the  writ.  The  writ  was  then  returned,  with 
such  indorsement,  but  without  any  return  in- 
dorsed by  the  sheriff  himself. 

In  July  vacation,  plaintiff  issued  an  al.  cap. 
against  Ballard,  to  answer  simul  cum  Park- 
man, returnable  in  October  Term,  which  hav- 
ing been  returned  "  non  eat"  plaintiffs  issued  a 
testatum  against  Ballard  alone,  returnable  in 
January,  1798,  directed  to  the  sheriff  of  Onon- 
daga,  who  took  him. 

August  28th,  1797,  defendant's  attorney  had 
delivered  plaintiff's  attorney  a  writing  intended 
as  a  plea  in  abatement,  praying  that  for  want 
of  an  official  return,  as  well  as  on  account  of 
such  irregular  service  of  the  writ  on  Parkman, 
the  plaintiff's  bill  might  be  quashed. 
08*]  *February  10th,  1798,  plaintiff's  attor- 
ney delivered  a  copy  of  the  declaration  filed 
against  the  bail  jointly. 

February  13th,  1798,  plaintiff's  attorney  re- 
ceived a  plea  in  chief,  nil  debet,  in  behalf  of 
Ballard  alone ;  and  at  the  same  time  another 
writing,  intended  as  a  plea  in  abatement,  in  be- 
half of  Parkman  separately,  and  so  entitled, 
and  grounded  upon  the  before  mentioned  ob- 
jection, viz.,  the  want  of  official  return. 

The  proceedings  respecting  the  surrender 
were  as  follows : 

January  13th,  1798,  three  days  before  the 
term,  the  sheriff  of  Herkimer  signed  an  ac- 
knowledgment that  the  principal  was  in  his 
custody  on  a  surrender  by  Parkman,  in  behalf 
of  himself  and  Ballard. 

January  27th.  On  application  of  Ballard  in 
behalf  of  himself  and  Parkman  His  Honor 
Judge  Benson  made  an  order  for  a  commit- 
ment. 

March  oth.  The  sheriff  signed  a  further  ac- 
knowledgment, that  the  principal  was  still  re- 
maining m  his  custody  when  the  committitur 
came  to  his  hands. 

March  20th.  Judge  Benson  made  an  order 
for  the  plaintiffs  to  appear  and  show  cause  why 
an  eroneretur  should  not  be  entered.  They  ap- 
peared accordingly,  and  the  case  was  adjourn- 
ed over  to  be  argued  and  determined  in  open 
court. 

59*]  *On  this  case  the  following  questions 
were  raised  : 

I.  Are  the  defendants  now  too  late  in  their 
application? 

II.  Can  one  bail  be  discharged  alone  when 
the  application  is  for  the  discharge  of  both? 

III.  Will  the  discharge  of  one  bail  operate 
a«  a  discharge  of  all?  and  if  one  is  fixed,  will 
not  the  other  be  so  likewise?    (Curia  ad  cult ) 
84 


Per  Curiam.  The  surrender  by  Ballard  is 
good  as  to  both.  If  a  plaintiff  will  elect  to  sue 
special  bail  jointly,  he  who  is  first  taken  shall 
have  time  to  surrender  till  the  last  is  taken 
also,  and  till  the  time  allowed  him  (the 
last)  for  surrendering  is  expired.  If  he  sues 
them  separately,  then  each  may  be  separately 
fixed  ;  or  one  may  be  fixed,  and  the  other  may 
afterwards  surrender  the  principal,  and  be  dis- 
charged. So  that,  in  fact,  plaintiff  may  have 
the  body  of  defendant  in  custody,  and  at  the 
same  time  go  on  with  a  suit  against  the  other 
bail  which  has  been  fixed.  He  cannot,  how- 
ever, have  more  than  one  satisfaction. 

Let  tJie  defendants  take  the  effect  of  their  mo- 
tion, on  payment  of  costs. 

Cited  in  6  Daly,  397. 


*JULY  TERM,  1798. 


[*60 


WOODMAN  ET  AL.  ads.  LITTLE. 

Scire Facias —  Teste — Second  sci.fa. — Limitation. 

THIS  was  a  motion  to  set  aside  the  proceed- 
ing on  a  scire  facias  quare  ex-  non  and  two 
nihils  returned,  because  there  had  not  been  15 
days  between  the  teste  of  the  first  and  return 
of  the  second  sci.fa.  In  support  of  the  mo- 
tion was  cited,  4  Durn.  &  East,  583. 

It  was  contended  in  reply,  that  when  pro- 
ceedings in  the  original  cause  are  by  bill,  four 
days  are  enough.  (4  Durn.  &  East,  663.) 

Per  Curiam.  There  must  in  all  cases  be  15 
days  between  the  teste  of  the  first  and  return  of 
the  second  set.  fa. 

Mr.  Golden  for  defendant. 

Mr.  Houston  for  plaintiff. 


PEPOON  ET  AL.  ads.  JENKINS. 

Amendment  of  Writ — Omission  of  Clerk's  Name. 

RIGGS,  for  defendants,  moved  to  quash  the 
writ  for  want  of  the  clerk's  name  to  it, 
and  Woods  at  the  same  time  moved  for  leave 
to  amend.  He  contended  that  the  writ  is  sup- 
posed to  be  the  act  of  the  clerk,  and  ought  not 
to  prejudice  the  party;  and  *cited  1  [*61 
Cromp,  106,  and  1  Durn.  &  East,  783;  Yelv.,  64. 

Per  Curiam.     It  may  be  considered  as  the 
omission  of  the  clerk,  and  amendable. 

Let  it  be  amended  on  payment  of  mats. 


THE  PEOPLE,  at  the  relation  of 
THOMPSON, 

v. 

THE  JUDGES  OF  THE  COURT  OF  COM- 
MON PLEAS  FOR  WESTCHESTER. 

Filing  Ritt  mine  pro  tune — Assignment  of  Error. 

AT  a  previous  term,  Woods  had  moved  for 
and  obtained  a  rule  to  stay  proceedings 

COL.   AND  CAINE8. 


1799 


WlSNER   ET   AL.  V.  WlLCOX   ET  AL. 


61 


on  a  writ  of  error  in  this  court,  until  the  com- 
mon pleas  in  Westchester  could  be  moved  for 
leave  to  file  a  plaint  nunc  pro  tune,  the  want  of 
which  had  been  the  error  assigned  here.  Ap- 
plication had  been  made  to  that  court  for  such 
purpose,  and  was  refused  by  them,  on  which 
Mr.  Woods  obtained  the  rule  here  to  show  cause 
why  a  mandamus  should  not  issue  to  compel 
them  to  allow  such  application  ;  and  now 

Mr.  Munroe  showed  cause. 

He  insisted  that  the  court  below  had 
always  a  discretion  in  cases  of  this  kind,  and 
that  in  the  present  instance,  having  considered 
the  judgment  before  them  as  unjust,  had  re- 
fused the  application  on  that  ground,  and  that 
therefore  it  was  not  a  proper  case  to  grant  a 
mandamus. 

Per  Curiam.  The  court  below  have  indeed 
a  discretion,  but  it  is  a  legal  and  not  an  arbitra- 
O2*]  ry  one.  We  *always  allow  a  bill  to  be  filed 
nunc  pro  tune  when  error  is  brought  and  that 
assigned  for  cause. 

Rule  absolute. 


WISNER  ET  AL.  t>.  WILCOCKS  ET  AL. 

Ejectment — Parties — Landlord — Receipt  of 
Rents. 

Cases  referred  to :  3  Burr.,  1293  to  304 ;  Comb.,  209 ; 
Running-ton  on  Ejectment,  72 ;  Buller,  95. 

0  GIL  VIE  moved  that  Amos  Wilcocks  be  ad- 
mitted to  defend  jointly,  on  his  affidavit 
that  the  defendants  hold  of  him  as  their  land- 
lord. 

Mr.Riggs,  for  plaintiff,  opposed  the  granting  a 
rule,  because  the  affidavit  did  not  specify  that 
Amos  Wilcocks  was  in  the  receipt  of  rent. 

Per  Curiam.  There  is  no  case  which  goes 
the  length  of  saying  that  none  are  to  be  con- 
sidered as  landlords  within  the  meaning  of  this 
rule,  but  those  who  actually  receive  rents. 
Some  dicta  look  that  way  (vide  3  Burr.,  1292 
to  1304;  Comb.,  209;  Runnington  on  Eject- 
ment, 72  ;  Buller,  95),  but  it  is  the  privity  of 
interest,  and  not  the  receiving  of  rent,  which  is 
the  true  test.  A  mortgagee  out  of  possession 
may  be  let  in  to  defend.  Strangers  only  are 
to  be  excluded. 

Motion  granted. 
Cited  in  17  Johns.,  113. 


BERRY,  who  is  impleaded  with  BUSHBEE, 

ads. 

ELLES  ET  AL.,  Assignees  of  the  SHERIFF  OF 
NEW  YORK. 

Stay  of  Proceedings  on  Bail-bond — Loss  of  Trial 
— Neglect  of  Plaintiff. 

MOTION  by  Boyd  to  stay  proceedings  on 
bail-bond.  It  appeared  that  the  capias 
in  the  original  suit  had  been  returned  in  Jan- 
uary Term  last,  and  that  a  declaration  was 
O3*]  filed  the  14th  of  June  following;  no  *bail  to 
the  action  then  being  put  in,  process  issued  on 
the  bail-bond  in  the  last  vacation,  and  on  the 
10th  of  August  the  defendant  was  arrested 
thereon.  It  also  appeared  that  the  notice  of 
this  motion  was  accompanied  by  an  offer  of 
good  bail  and  a  cognovit  actionem. 
COL.  AND  CAINES. 


Mr.  Golden  opposed  the  motion,  on  the  ground 
that  the  plaintiffs  had  now  lost  a  trial  in  the 
original  action  for  want  of  bail. 

Per  Curiam.  The  plaintiffs  may  have  lost  a 
trial,  but  they  have  been  negligent  on  their 
part.N  They  should  have  put  the  bail-bond  in 
suit  in  January  vacation.  It  is  not  a  loss  of 
trial  alone  which  will  prevent  our  interfering 
to  relieve  in  these  cases,  but  that  loss  must  be 
without  neglect  on  the  part  of  the  plaint- 
iff, and  must  be  occasioned  by  the  delay 
of  defendant  after  bail  is  called  for.  If  a  dif- 
ferent practice  was  allowed,  a  plaintiff  would 
be  tempted  to  wait  a  term  or  longer,  and  thus 
ensnare  the  bail.  The  court  will  always  stay 
proceedings  if  application  be  made  for  that 
purpose  on  the  return  of  the  bail-bond  writ. 

Let  the  proceedings  be  stayed  on  payment  of 
costs. 


BIRD,  SAVAGE  &  BIRD 

ads. 
ROBERT  MURRAY  &  COMPANY. 

Removal  of  Causes  to  Federal  Courts  by  Alien 
Defendants — Appearance — Sail  excepted  to. 

HARRISON  presented  a  petition  from  the 
defendants  to  remove  the  cause  into  the 
federal  court,  on  affidavit  that  defendants  are 
aliens. 

*It  appeared  that  special  bail  had  been  [*64 
put  in  last  December,  but  an  exception  was  en- 
tered, and  bail  had  not  been  perfected  till  this 
term,  and  till  after  the  petition  had  been  filed. 

Mr.  Pendleton  and  Mr.  B.  Livingston  objected,, 
insisting  that  the  defendants  were  too  late,  their 
appearance  having  been  entered  in  January  last, 
and  the  act  of  Congress,  under  which  the  ap- 
plication is  made,  directs  that  the  petition  be 
filed  when  the  appearance  is  entered. 

Per  Curiam.  The  defendants  are  in  season. 
As  plaintiffs  excepted  to  the  bail,  they  shall  not 
be  allowed  now  to  say  defendants  appeared  be- 
fore. 

Motion  granted. 


SUYDAM  v.  M'COON. 

Amendment — Second  Amendment  of  Writ — Mis- 

prision  of  Clerk. 

TN  this  cause  the  plaintiff,  who  claimed  under 
JL  a  sheriff's  sale,  had  been  nonsuited  on  the 
trial,  for  a  variance  between  the  record  pro- 
duced in  evidence,  and  the  writ  of  venditioni 
exponas,  and  at  January  Term,  1797,  had 
procured  the  nonsuit  to  be  set  aside  on  the 
payment  of  costs,  and  had  moved  for  and  ob- 
tained leave  to  amend  the  writ  by  striking  out 
the  words  twenty-eighth,  and  inserting  the  word 
twentieth. 

Having  been  nonsuited  a  second  time  for  a 
like  variance  between  the  record  and  the  same 
writ, 

Mr.  Evertson  now  moved  for  leave  to  amend 
again,  by  striking  out  the  words  "last  past" 
and  inserting  the  figures  1790,  and  cited  Thomas 
Jones,  41. 

*Mr.  C.  I.  Bogert  objected  that  it  was  [*65 
now  too  late. 

85 


65 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


Per  Curiam.  These  ertrors  are  to  be  consid- 
ered as  the  misprision  of  the  clerk.  On  the 
authority  of  Jones  and  of  the  former  decision 
in  this  court. 

Let  the  amendment  be  made. 


CHILD  v.  MURRAY,  Manucaptor. 

IN  sci.  fa.  on  recognizance  of  bail  and  inquest 
thereon,  the  jury  assessed  interest  from  the 
docketing  of  the  original  judgment,  to  the  re- 
turn of  the  postea. 

To  show  that  this  was  the  just  method 
of  computing  interest,  the  following  authorities 
were  cited  :  2  Durn.  &  East,  57  ;  10 Mod.  Rep., 
278,  notes;  8  Id.,  336,  358. 

Per  Curiam.  The  plaintiff  is  entitled  to 
have  interest  calculated  against  the  bail,  from 
the  day  they  become  fixed.  By  this  the  court 
mean,  after  the  expiration  of  the  time  allowed 
ex  gratia  to  surrender,  that  is,  eight  days  after 
capias  returned. 


JANUARY  TERM,  1799. 


CANNON,   Manucaptor,  ads.    CATHCART. 

Bail — Fxoneretur — Principal  Imprisoned  before 
Return  of  Capias. 

THE  principal  being  confined  in  the  County 
of  Herkimer  on  a  charge  of  felony,  appli- 
cation was  made  for  a  committitur  to  one  of 
the  judges  of  that  county  in  April  vacation, 
O6*J  1798,  and  before  the  return  *of  the  capias 
against  the  bail,  which  was  refused.  In  Sep- 
tember following,  the  principal  was  convicted, 
and  sentenced  to  be  imprisoned  at  hard  labor  in 
the  State  prison  for  life. 

On  these  facts  a  rule  was  taken  to  show 
cause  why  an  exoneretur  should  not  be  entered. 

Per  Curiam.  It  appears  that  the  defendant 
made  a  bonafide  attempt  to  surrender  the  prin- 
cipal before  the  capias  was  returnable,  and  was 
frustrated.  The  principal  was  afterwards  im- 
prisoned for  life,  and  even  if  the  surrender  had 
been  effected,  it  *could  not  have  benefited  the 
plaintiff. 

Let  the  defendant  take  the  effect  of  his  motion 
on  payment  of  costs. 


M'NEALY  ads.   MORRISON. 

Default— Notice  of  Retainer— Similar  Notice  to 
another  Attorney — Notice  thereof. 

SLEIGHT,  plaintiff's  attorney,  received  a 
notice  of  retainer  from  Smith  in  July;  in 
September  following  he  received  a  like  notice 
from  Mr.  Bowman,  and  twice  seemed  recognize 
him  as  the  attorney  in  the  suit,  though  he  never 
served  him  with  any  declaration,  but  served  it 
on  Smith,  and  entered  a  default  for  want  of  a 
plea,  which  Mr.  Bowman  now  moved  to  set 
aside  on  the  above  statement  of  facts. 
86 


Per  Curiam.  It  was  certainly  incumbent  on 
Sleight  to  have  told  Bowman,  when  he  received 
his  notice  of  retainer,  that  lie  had  received  a 
similar  notice  from  Smith. 

*Let  the  default  be  set  aside  ;  the  cost-s  [*67 
to  abide  Hie  event  of  ilie  suit. 


HOLCOMB  ET  AL,.,  Defendants  in  Error, 

ads. 
HAMILTON. 

Amendments  of  Course — Record. 
Citation— 5  Durn.  &  East,  577. 

A  FTER  imparlance,  but  before  judgment,  I. 
li-  S. ,  one  of  the  defendants,  died;  judgment 
was  then  entered  against  both,  and  execution 
issued  against  the  survivor,  without  any  sug- 
gestion on  the  record  of  the  death  of  the  other 
defendant;  and  on  error  coram  vobis,  a  rule 
had  been  taken  to  show  cause  why  the  record 
should  not  be  amended  by  suggesting  the  death 
of  I.  S. 

Mr.  Whiting  showed  for  cause,  that  the  appli- 
cation was  too  late,  the  proceedings  having 
ceased  to  be  on  paper.  (2  Viner's  Abridg., 
title  Amendment,  letter  H.,  pi.  17;  Idem.,  page 
313,  letter  G.,  pi.  2.) 

Mr.  Woods,  in  support  of  the  rule,  read  the  act 
of  this  State,  which  authorizes  the  suggestion  of 
the  death  of  one  defendant  when  the  cause  of 
action  survives,  and  in  answer  to  the  objection 
in  point  of  time,  he  cited  5  Durn.  &  East,  577. 

Per  Curiam.  The  case  cited  from  Durn- 
ford  &  East  is  in  point.  Courts  have  of  late, 
so  long  as  the  record  is  before  them,  gone  into 
the  practice  of  granting  all  amendments  to 
which  the  party  would  have  been  entitled  as  of 
course,  provided  that  it  be  of  no  prejudice  to 
the  other  party. 

*Lel  the  rule  be  made  absolute  on  payment  [*t>8 
of  the  costs  of  this  motion  and  of  the  writ  of  error. 


CHURCH  ads.  CLASON  AND  STANLEY. 

1 .  Consolidation  of  Action* — English  Rule —  Ten- 
der of  Agreement.  2.  Idem — Rule  to  Examine 
Witness  de  bene  esse  Refused. 

HERE  were  18  separate  causes  on  one  policy. 
In  July  Term  last,  on  the  refusal  of  plaint- 
iffs to  enter  into  the  consolidation  rule,  the 
court  granted  imparlances  in  all  the  causes  but 
one,  and  the  like  in  October  Term,  and  now 
Mr.  Boyd,  for  defendant,  makes  application  for 
further  imparlances. 

Mr.  Riggs  objected.  He  produced  an  agree- 
ment which  had  been  tendered  by  plaintiffs 
to  the  defendant,  and  was  refused.  This  he  con- 
tended would,  if  accepted,  have  answered  the 
same  purpose  as  an  exact  compliance  with  the 
rule,  and  ought  to  have  been  received;  and  that 
the  defendants,  after  refusing  that  offer,  were 
not  entitled  to  take  the  effect  of  the  present 
application. 

Per  Curiam.  The  English  consolidation 
rule  is  the  one  the  court  mean  to  insist  on,  and 
they  will  not  permit  the  plaintiffs  to  prescribe 
to  them  any  other. 

Let  the  defendant  take  the  effect  of  his  motion. 
COL,.  AND  CAINES. 


1799 


CARD  ADS.  FITZROY  ET  AL. 


68 


The  plaintiffs  then  applied  for  a  rule  to  ex- 
amine witnesses,  de  bcne  ease,  in  the  one  cause 
which  stood  open  for  trial,  but  the  court  re- 
fused it,  observing  that  they  were  entitled  to 
no  indulgence  till  they  had  first  acceeded  to  the 
terms  already  required. 


•69*]    *CARD  ads.  FITZROY  ET  AL. 

Special  Motion — Service  of  Affidavit. 

MOTION  for  judgment  as  in  cases  of  non- 
suit, for  not  proceeding  to  trial,  on  the 
usual  affidavit;  but  no  copy  had  been  served 
on  the  opposite  party. 

Per  Curiam.  It  is  a  rule  of  practice  without 
•exception,  that  whenever  a  special  motion  is  to 
be  made  founded  on  affidavit,  a  copy  of  such 
affidavit  must  be  regularly  served  on  the 
opposite  party. 

The  defendant  takes  nothing  by  his  motion. 


GILLET  ads.  WILDE. 

Nonsuit — Default — Stipulation. 
1VTOTION  for  like  judgment  for  like  cause. 

Per  Curiam.  A  defendant  is  not  entitled  to 
this  judgment  for  the  first  default,  provided  the 
plaintiff  will  stipulate  to  bring  the  cause  to 
trial  at  the  succeeding  circuit;  but  if  the  plaint- 
iff can  sufficiently  account  for  the  default,  he 
will  not  be  required  even  to  stipulate.  And  in 
-all  cases  the  defendant  must  make  this  motion 
the  next  term  after  the  default,  or  he  will  be 
deemed  to  have  waived  his  claim  to  the  stipu- 
lation. 


HERRING  *.  TYLEE. 

Amendment  of  Interrogations  for  Fuller  Answer. 

ATTACHMENT  against  the  sheriff.  He 
-Q-  had  answered  the  interrogatories,  and  it 
was  now  moved  to  amend  them,  the  amend- 
7O*]  ment  not  being  as  to  any  *new  matter, 
but  only  thereby  to  obtain  a  more  full  answer 
to  the  matters  already  contained  in  them. 


Motion  allowed. 


B. 


WILLIAMS  ads.  BATES. 

Imprisoned  Debtor — Proceedings  for  Relief— Ser- 
vice of  Notice  of  Petition — Absent  Creditor. 

PROCEEDINGS  under  the  Act  of  the  18th 
1  Feb.  1789,  for  the  relief  of  debtors  with  re- 
spect to  the  imprisonment  of  their  persons. 

The  notice  of  the  petition  had  been  served 
on  the  attorney  in  the  suit,  the  plaintiff,  the 
creditor,  residing  out  of  the  State. 


The  service  held  sufficient. 
•COL.  AND  CAINES. 


B. 


MABBIT  ET  AL. 

ads. 
BIRD,   Assignee  of  the   SHERIFF  of    RENS- 

8ELAER. 

Equity — Bail-bond — Before  Forfeiture. 

rPHE  original  suit  was  instituted  against  five; 
-L  the  sheriff  returned  four,  taken,  and  as  to 
one,  non  est;  but  by  mistake  took  bail-bond 
for  the  appearance  of  all.  The  four  who  were 
taken  entered  special  bail,  and  gave  notice,  to 
which  there  was  no  exception. 

The  plaintiff  then  instituted  the  present  suit 
on  the  bail-bond  against  the  whole.  And  now, 

Mr.  Woodworth,  for  defendants,  moved  to  set 
aside  the  proceedings  in  the  suit  for  irregu- 
larity. 

Mr.  Bird,  contra,  He  insisted  that  this  court 
have  no  cognizance  of  a  case  like  the  present; 
that  this  is  an  appeal  to  the  equity  powers  of 
the  court,  which  can  *neverbe  exercised  [*71 
till  after  forfeiture  of  the  condition.  The  de- 
fendants must  resort  to  their  plea, 

Per  Curiam.  The  principle  contended  for 
by  the  counsel  for  the  plaintiff  is  correct. 
Equity  powers  only  arise  after  forfeiture  of 
a  condition  in  the  bail-bond. 

The  defendants  must  rely  upon  their  plea  of 
comperuit  ad  diem.  But  this  decision  is  not  to 
be  understood  as  precluding  defendants  from 
applying  hereafter  to  the  equitable  interposition 
of  the  court. 

Motion  denied. 


PHELPS  v.  BALL. 

Amendment  of  fi.  fa.  after  Satisfaction — Mis- 
takes. 

IN  this  cause  a  motion  was  made  by  the  At- 
torney-General to  amend  the  fi.  fa.  after  it 
was  returned  satisfied,  by  altering  two  mistakes 
in  the  writ.     He  cited  Sir  T.  Jones,  41. 

Motion  granted. 
Citation— Sir  T.  Jones,  41. 


APRIL  TERM.  1799. 


FLEMING,  Executor,  c.  TILER. 

Costs — Nonsuit —  Variance — Clerical  Error. 

THE  plaintiff  shows  as  cause  against  a  rule 
why  he  should  not  pay  costs,  he  having 
been  nonsuited  on  the  trial  at  the  circuit,  that 
the  writing  on  which  the  suit  was  brought  was 
dated  in  seventy,  &c.,  and,  *through  mis-  [*72 
take  in  copying  the  date  in  the  declaration,  as 
entered  on  the  Nisi  Prius  Roll,  was  ninety, 
&c..  and  that  for  this  variance  the  defendant 
had  obtained  the  nonsuit  against  him. 


Rule,  discharged. 


B. 


87 


72 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


WHITE  ads.  SPENCER. 


Costs—  Set-off—  Recovery  of  Insufficient  Amount 
— Attorney's  lien. 

THE  plaintiff  had  recovered,  but  not  above 
£20;  and  now  a  motion  by  the  defendant 
to  set  off  his  costs  against  the  sum  recovered, 
which  was  opposed  on  behalf  of  the  attorney 
for  the  plaintiff,  whose  affidavit  was  read, 
stating  that  the  whole  of  his  costs  was  still  clue 
to  him,  and  that  the  plaintiff  had  become  in- 
solvent. 

Rule  nevertheless  granted  to  the  defendant. 

B. 


PHELPS  ads.  STAFFORD. 

Default — Premature  Entry — Notice  of  Motion  to 
set  aside  Default — Service — Judgment — Execu- 
tion and  Process. 

fPHE  attorney  for  the  plaintiff  had  entered 
J.  the  default,  the  last  July  vacation,  before 
the  rule  for  pleading  had  expired,  and  the  de- 
fault being  entered,  he  had  refused  to  accept  a 
plea  from  the  attorney  for  the  defendant;  who, 
having  shortly  thereafter  discovered  that  the 
default  had  been  prematurely  entered,  gave  a 
notice  of  a  motion,  as  of  the  ensuing  October 
Term,  to  set  it  aside,  and  no  counsel  appearing 
to  oppose  the  motion  on  the  part  of  the  plaint- 
iff, it  was  granted  of  course. 
73*]  *The  attorney  for-the  plaintiff,  when  the 
notice  was  served,  resided  in  Albany,  but  hap- 
pening at  the  time  to  be  out  of  town,  and  his 
office  shut  up,  and  he  having  not  long  before 
expressed  an  intention  that  he  probably  would 
remove  into  the  country,  the  attorney  for 
the  defendant  had  supposed  he  had  re- 
moved, and  not  finding  he  had  appointed  an 
agent,  the  notice  had  been  affixed  up  in  the 
clerk's  office.  The  judgment  has  since  been 
entered,  and  execution  taken  out  against  the 
defendant,  and  process  issued  against  the  bail. 
ORDERED,  That  the  whole  of  the  proceed- 
ings, from  entering  the  default  inclusive,  be 
set  aside,  and  the  costs  to  abide  the  event  of 
the  suit.  B. 


THE  PEOPLE  v.  TOWNSHEND. 

Certiorari — Filing  Proceedings — Returning  Pro- 
ceedings— New  Trial. 

rpHE  defendant  was  convicted  under  the  stat- 
-L  ute,  at  the  last  court  of  Oyer  and  Ter- 
miner  in  Dutchess,  of  perjury,  and  absconded 
before  judgment.  Afterwards  he  voluntarily 
surrendered  himself,  but  judgment  was  not 
pronounced. 

LEWIS,  J.,  who  presided  at  the  trial,  now  re- 
ports to  the  court  that  the  verdict  was  against 
evidence,  and  that  it  was  given  on  grounds  not 
pertinent. 

Per  Curiam.  There  must  be  a  new  trial: 
and  the  judge  who  may  preside  at  the  next 
Oyer  and  Terminer  in  Dutchess  will  communi- 
74*]  cate  this  opinion  to  *the  judges  of  that 
court.  In  the  mean  time  the  defendant  must 
give  bail  for  his  appearance. 
88 


The  proceedings  which  have  been  brought 
up  by  certioran,  not  having  been  actually  re- 
ceived, must  be  returned.  If  they  had  been 
filed  here,  they  could  not  be  sent  back  to 
the  Oyer  and  Terminer;  no  form  of  process 
for  such  purpose  is  to  be  found  in  the  books; 
but  the  court  must  have  proceeded  to  try  the 
defendant  at  bar  by  a  jury  returned  from 
Dutchess,  or  have  sent  the  cause  down  to  the 
next  circuit  to  be  held  there.  The  court  in- 
cline to  the  opinion  that  in  a  capital  case  it 
would  be  otherwise,  and  that  no  such  case 
could  be  sent  down  for  trial. 

BENSON,  J.,  suggested  that  a  certioran  for 
bringing  up  the  proceedings  in  like  cases  ought 
only  to  be  allowed  in  open  court. 

(Vide  Ludlow  ads.  The  People,  ante,  page  34.) 

8.  C.,  1  Johns.  Cas.,  104. 

Cited  in  5  Wend.,  42 ;  1  Den.,  678 ;  20  N.  Y.,  548,  554 ; 
2  Barb.,  288 ;  1  Wheel.,  497 ;  1  Park.,  370, 629 ;  5  Park.. 
645. 


CONKLIN  v.  HART. 

Depositions  de  bene  esse — Aged  and  Infirm  Wit- 
nesses— Cause  not  at  issue. 

ON  affidavit  that  witnesses  were  so  aged  and 
infirm  that  they  could  not  personally  ap- 
pear in  court,  it  was  moved  that  their  deposi- 
tions be  taken,  de  bene  esse,  before  one  of  the 
commissioners  for  taking  affidavits,  which  was 
objected  to,  because  the  cause  was  not  at  issue, 
and  because  there  was  no  precedent  for  such 
an  application. 

Per  Curiam.  This  appears  to  be  a  proper 
case  for  granting  a  commission,  and  it  may  be 
applied  for  at  any  time  after  a  suit  is  instituted 

Motion  granted. 


*HEYERS  v.  DENNING.       [*75 

1.  Vacating  Rule — No  Appearance  of  Bail  for 
defendant.  2.  Attorney  Appearing  as  Agent 
— Costs. 

IN  this  cause  the  plaintiff  had  proceeded  to 
outlawry,  when  he  received  a  notice  of  re- 
tainer from  8.  8.  for  defendant,  who,  in  his 
notice  signed  for  or  on  behalf  of  defendant, 
and  said,  verbally,  that  he  did  not  mean  to  ap- 
pear as  attorney.  At  the  last  term  S.  had  ob- 
tained a  rule  that  all  proceedings  should  be  set 
aside  ;  but  no  bail  had  been  entered. 

Mr.  Jones,  for  plaintiff,  moved  to  vacate  the 
rule  which  was  so  obtained,  on  the  ground  that 
the  interference  by  S.  was  irregular. 

Per  Curiam.  S — ,  appearing  in  the  manner 
he  did,  must  be  considered  as  a  mere  stranger, 
and  could  not  take  any  rule  in  the  cause.  The 
defendant  has  neither  appeared  in  person,  nor 
by  attorney,  nor  entered  bail  ;  therefore  all  the 
proceedings  must  be  set  aside.  And  the  court, 
considering  it  as  improper  practice  in  any  attor- 
ney to  attempt  to  appear  as  agent,  but  not  as- 
attorney,  add,  that  S.  himself  pay  the  costs. 

COL.  AND  CAINES. 


1799 


CORNELL,  v.  ALLEN  AND  TALMADGE. 


CORNELL  v.  ALLEN  AND  TALMADGE. 

Nonsuit  set  aside — Cause  settled — Notice  to  Attor- 
ney— Costs  of  Motion. 

MOTION  to  have  judgment  of  nonsuit  for 
not  bringing  on  the  cause  to  trial,  set 
aside. 

The  suit  was  against  the  defendants 
jointly,  on  a  promissory  note.  Talmadge  only 
was  brought  in,  and  he  employed  an  attorney. 
The  note  was  afterwards,  by  agreement  be- 
76*]  tween  Allen  and  a  third  person,  *taken  up, 
and  the  costs  paid  by  that  person  to  the  plaintiff's 
attorney.  The  attorney  employed  by  Tal- 
madge, notwithstanding  he  was  informed  by 
the  plaintiff's  attorney  that  the  note  was  so 
taken  up  and  the  costs  paid,  filed  a  plea,  the 
general  issue,  and  served  a  copy  on  the  plaint- 
iff's attorney  ;  «nd  in  a  subsequent  term,  after 
there  had  been  a  circuit  in  the  county,  ob- 
tained the  above  rule  for  judgment  of  nonsuit. 

Judgment  set  oxide,  and  the  attorney  employed 
by  Talmadge  ordered  to  pay  to  the  plaintiff's  at- 
torney the  costs  of  this  motion.  B. 


MURRAY  v.  SMITH. 

Costs  of  Declaration  and  Rule  to  Plead — No  Bail. 

THE  cause  had  been  removed  by  habeas 
corpus,  and  the  plaintiff  filed  a  declaration, 
and  entered  a  rule  to  plead  ;  but  the  defendant 
not  having  put  in  bail,  a  procedendo  issued,  and 
the  plaintiff  prevailed  in  the  inferior  court. 
On  a  reference  to  the  judges  by  both  the  par- 
ties, they  declared  that  the  plaintiff  was  not  en- 
titled to  have  the  costs  of  the  declaration  and 
rule  to  plead  in  this  court  taxed  against  the  de- 
fendant, these  services  being  useless,  until  the 
defendant  has  put  in  bail.  B. 


LECONTE  «.  PENDLETON. 

Pleading  Nul  tiel  Record  and  Nil  Debet  — 

Election. 

Citation— Carnes  v.  Duncan,  Col.  Cos.,  41,  ante. 
rpHE  declaration  in  this  cause  consisted  of  a 
J-     single  count  in  debt  on  judgment,  ren- 
dered in  the  State  of  Georgia,  to  which  the 
defendant  pleaded, 
7-7*]     1st.  Nul  tiel  record,  and 

2.  Nil  debet,  with  notice  of  special  matter. 

It  was  then  moved  that  the  defendant  show 
cause  why  one  of  the  pleas  should  not  be  struck 
out. 

Mr.  Harrison,  for  plaintiff,  in  behalf  of  the 
motion,  insisted  that  the  record  of  Georgia  is, 
by  the  Constitution  of  the  United  States,  enti- 
tled to  implicit  faith  ;  and  if  so,  the  two  pleas 
could  not  stand  together ;  or  if  such  faith  is 
not  to  be  given,  the  plea  of  nul  tiel  record  is  a 
mere  nullity,  and  ought  to  be  struck  out,  and 
cited  to  this  point,  1  Douglass,  6  ;  2  Dallas, 
302  ;  1  Cromp.  Prac.,  173.  ,He  also  contended 
that  one  plea  being  triable  by  the  court, 
and  the  other  by  the  jury,  it  was  an  additional 
reason  why  they  ought  not  to  be  allowed  to 
stand  together. 

The  defendant  contended,  in  reply,  that  the 
issue  on  nul  tiel  record  to  judgments  rendered 
COL.  AND  CAINES. 


in  other  States,  can  only  be  an  issue  to  the 
country,  and  that  therefore  both  these  pleas 
must  be  tried  in  the  same  manner.  He  relied 
on  the  case  of  Walker  et  al.  v>.  Wilier  (Doug- 
lass, 1). 

The  court,  without  giving  any  opinion 
on  what  was  also  made  a  question  between  the 
parties,  whether  nul  tiel  recoi-d  was  at  all  plead- 
able  in  the  case,  granted  the  plaintiff  the  fol- 
lowing rule,  viz. : 

Ordered,  That  only  one  of  the  two  pleas  in 
this  cause  be  allowed,  and  that  the  defendant, 
within  four  days  after  the  notice  of  this  rule, 
do,  or  in  default  *thereof  that  the  plaintiff  [*7& 
may  elect  which  shall  be  allowed,  and  that  the 
other  plea  shall  be  deemed  disallowed.  ( Vide 
the  case  of  Carnes  v.  Duncan,  Admr. ,  ante,  p. 
35.) 

Overruled— 6  Cow.,  41. 


JULY  TERM,  1799. 


BAKER  ads.  BURNS. 

Imprisoned  Debtoi' — Proceedings  for  Relief — De 
fectice  Inventory,  a.  Arms  not  Specified,  b. 
Possession  and  Ownership  of  Articles,  c.  Im- 
prisonment  on  Tort. '  d.  Stamped  Inventory. 

LEE  moved  that  the  defendant  be  brought  up 
to  take  the  benefit  of  the  Act  made  "for 
the  relief  of  debtors  with  respect  to  the  impris- 
onment of  their  persons." 

Mr.  Munro,  for  plaintiff,  objected,  1st.  That 
in  the  inventory  served  on  him  the  arms  of  the 
defendant  are  not  specified  in  the  schedule.  2. 
That  the  inventory  does  not  particularize  when 
he  owned  and  had  the  articles,  <fec.  3d.  That 
he  is  confined  on  a  suit  for  breach  of  promise 
of  marriage,  and  that  this  is  to  be  considered 
as  a  tort,  whereas  the  act  only  applies  to 
contracts.  4th.  That  the  inventory  is  not 
stamped. 

Mr.  Lee,  contra. 

Per  Curiam.  All  the  objections  are  un- 
tenable, excepting  the  last,  but  the  inventory 
ought  to  be  stamped,  and  that  objection  is 
fatal. 

Motion  denied. 


*PENDLETON  ads.  LE  CONTE.  [*7!> 

1.  Inquest,  Motion  to  set  aside — Notice  of  Applica- 
tion for  Commission.  2.  Ibid. — Ibid. —  Valid- 
ity of  Plea. 

TSSUE  was  joined  on  the  9th  of  June  last,  and 
J-  on  the  19th,  notice  was  given  by  defendant 
that  application  would  be  made  this  term  for  a 
commission  ;  notwithstanding  which,  on  the 
26th,  the  plaintiff  gave  notice  of  trial  for  the 
July  circuit,  at  which  time  an  inquest  was 
taken  by  default. 

Mr.  B.  Livingston  now  moved  to  set  it  aside 
for  irregularity. 

89 


79 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


Mr.  Harrison,  for  plaintiff.  The  defendant 
having  been  obliged  by  the  order  of  last  term  to 
elect  one  of  the  two  pleas,  has  seen  tit  to  abide 
by  the  plea  of  nil  debut ;  but  no  such  plea  can 
be  received  in  this  action,  and  it  must  be  con- 
sidered a  mere  nullity.  The  merits  of  any 
judgments  rendered  in  a  sister  State  cannot 
under  the  act  of  Congress  be  examined  here. 
Nul  tfrl  record  is  the  only  plea  that  is  admissi- 
ble. And  as  to  the  notice  of  the  intended  ap- 
plication for  a  commission,  it  ought  not  to 
operate  to  procure  the  defendant  a  delay,  for 
it  was  his  neglect  that  he  had  not  applied  last 
term. 

Mr.  Burr,  in  reply.  Whether  any  testimony 
involving  merits  can  be  admitted  under  any 
plea,  or  whether  plea  of  nil  debet  is  proper  in 
this  action,  are  points  not  to  be  tried  in  this 
way.  The  application  for  a  commission  is  in 
time,  according  to  rule  IX  of  April,  1796. 

8O*]  *Per  Curiam.  Issue  not  having  been 
joined  till  after  the  election  was  made  in  vacae- 
tion,  the  defendant  is  in  time  by  the  rule  of 
April,  1796.  On  the  other  point,  we  are  of 
opinion  that  the  propriety  of  the  plea  is  not 
examinable  upon  this  motion. 

Let  tJie  verdict  be  set  aside,  and  a  commission 
issue  ;  the  costs  to  abide  tJie  event  of  tJte  suit. 


HASKINS  ads.  GRISWOLD. 

Demurrer  for  Delay  —  Leave  to  Withdraw  and 
to  Plead. 

BURR,  for  defendant,  moved  for  leave  to 
withdraw  his  demurrer  and  plead  issuably, 
on  affidavit  that  he  had  merits  which  he  did 
not  know  of  until  after  he  had  filed  his  de- 
murrer. 

Mr.  Riffff*  insisted  that  as  the  demurrer  was 
frivolous  and  only  put  in  to  obtain  delay,  the  de- 
fendant ought  not  now  to  be  permitted  to  with- 
draw it.  He  then  read  a  counter  affidavit  on  the 
point  of  merits,  showing  an  acknowledgment 
on  the  part  of  the  defendant,  subsequent  to  the 
commencement  of  the  suit,  of  the  justness  of 
the  demand,  and  a  promise  to  pay  it. 

Per  Curiam.  It  appears  upon  the  face  of 
the  demurrer  itself  that  it  was  frivolous  and 
for  the  purpose  of  delay.  If  a  defendant  puts 
in  a  frivolous  demurrer,  and  then  applies  to 
the  grace  of  the  court,  he  shall  have  none.  He 
has  acted  unmeritoriously,  and  shall  be  held  to 


The  defendant  must  take  nothing  by  his  mo- 
tion. 


81*]*SWARTWOUT,  Manucaptorof  SANDS, 

ads. 

GELSTON,  Assignee  of  the  SHERIFF  OF  NEW 
YORK. 

1.  Retainer  and  Bail — Notice — Due  Service.    2. 
Stay  of  Proceeding*  on  Bail-bond — Laches. 

THIS  was  an  application  to  stay  proceedings 
on  bail-bond.     The  attorney  for  defendant 
in  the  original  suit  had  given  notice  of  retainer 
1)0 


and  of  bail  at  the  same  time,  by  leaving  it  at 
the  office  of  plaintiff's  attorney  which  was  kept 
in  his  dwelling-house,  when  no  person  was 
present.  It  appeared  that  two  terms  had 
elapsed  before  the  present  suit  was  commenced. 
It  was  insisted,  1st,  that  the  service  of  notice 
was  regular,  and  to  this  point  was  cited  4  Duru. 
&  East,  464.  And  2d,  that  the  plaintiff  had 
been  negligent  in  delaying  so  long  to  put  the 
bail-bond  in  sujt.  (Barnes's  Notes,  103.) 

Per  Curiam.  The  notice  was  not  duly  served. 
It  should  have  been  given  to  some  person  in 
the  house.  To  make  a  notice  good,  it  must  be 
shown  that  everything  has  been  done  to  bring 
it  home  to  the  party.  The  service  must 
first  be  on  some  person  in  the  office,  and  be- 
longing there ;  if  nobody  is  there,  it  must  be 
upon  some  one  in  the  house  where  the  attorney 
resides  or  the  office  is  kept ;  and  if  nobody  is 
there  it  may  be  left  in  the  office.  But  as  there 
has  been  a  negligence  on  the  part  of  the  plaint- 
iff in  not  putting  the  bail-bond  in  suit  at  the 
subsequent  term,  we  will  not  now  fix  the  bail 
for  the  irregularity  of  the  notice,  which  the 
prevalence  of  the  yellow  fever  in  the  city  at  the 
time  may  in  some  measure  excuse. 

*Let  the  proceedings  stay  on  payment  of  [*82 
costs,and  receiving  a  justification  of  bail  if  required. 

Mr.  Wortman  for  defendant. 
Mr.  Coleman  for  plaintiff. 


WATERS,    Sheriff    of    Orange,    ads.    THE 
PEOPLE. 

Contempt  —  Sheriff —  Attachment  —  Personal 
Knowledge  of  Execution  —  Delivery  to  Deputy 
and  Affirmance. 

THE  sheriff  Avas  brought  in  upon  an  attach- 
ment, and  the  plaintiff  in  the  original  suit 
having  filed  interrogatories  within  the  four 
days  allowed  him,  and  the  sheriff  having  also 
filed  his  answers  as  taken  by  the  clerk,  the  fol- 
lowing judgment  was  entered: 

Per  Curiam.  A  sheriff  is  not  to  be  consid- 
ered as  in  contempt  for  not  acting  on  an  execu- 
tion which  never  came  to  his  personal  knowl- 
edge, or  was  not  lodged  in  his  office.  But  in 
this  ea«e  it  appears  the  f.  fa.  was  delivered  to 
a  deputy,  and  we  need  not  say  whether 
such  delivery  be  good  so  as  to  charge  the  sheriff 
himself,  because  here  the  sheriff  afterwards 
affirmed  the  receipt  by  interfering  and  acting. 
He  did  not  return  it  within  forty  days,  and  his 
answers  are  not  satisfactory. 

The  court  adjudge  him  to  pay  a  fine  of 
twenty  dollars  for  the  contempt,  and  also  the 
costs  of  the  rule  and  attachment,  and  to  stand 
committed  till  the  fine  and  costs  be  paid. 

Overruled— 6  Cow.,  42. 


IN   THE   MATTER    OF    M'KINLEY    &    CO., 

absent  debtors. 

Attachment — Payment  by  Surety — Superseded*. 

MUNRO,  indorsee  of  a    bill    of    exchange 
drawn  by  M'Kinley  &  Company,  sued 
out  an  attachment  under  the  Act  passed  4th 
COL.  AND  CAINES. 


1799 


CANNON,  MANUCAPTOR,  ADS.  CATHCART. 


82 


April,  1786,  for  relief  against  absconding 
83*]  *and  absent  debtors,  and  seized  a  vessel, 
the  property  of  M'Kinley  &  Co.  Afterwards 
Munro  received  the  amount  of  the  bill  from 
Wheeler,  his  indorser,  but  it  was  agreed  between 
Munro  and  Wheeler,  that  the  proceedings  should 
-still  go  on  for  the  benefit  of  the  latter,  and  Munro 
be  considered  as  his  trustee.  Application  was 
then  made  on  behalf  of  M'Kinley  &  Co.,  to  the 
recorder  for  a  supersedeas,  upon  the  ground 
that  plaintiff,  after  having  been  satisfied  for  his 
demand,  could  not  still  retain  the  attachment. 
The  recorder  allowed  the  supersedeas,  from 
which  there  was  an  appeal  from  this  court. 

Per  Curiam,.  The  22d  section  of  the  act 
provides,  ' '  That  if  any  person  against 
whose  estate  or  effects  such  warrant  of  attach- 
ment shall  be  issued,  shall  at  any  time  before 
trustees  are  appointed,  apply  to  the  judge  who 
shall  have  issued  such  warrant,  and  give  such 
.security  as  such  judge  shall  direct  and  approve, 
to  the  person  or  persons  at  whose  instance  such 
warrant  issued,  to  appear  and  plead  to  any  suit 
or  action  to  be  brought  within  six  months 
thereafter,  &c.,  and  to  pay  all  such  sums  as 
may  be  adjudged  in  such  suit  or  action,  then 
such  judge  shall  issue  a  supersedeas."  And  the 
23d  section  provides,  ' '  That  in  all  cases  where, 
upon  any  such  attachment  or  attachments,  any 
ship  or  vessel,  or  any  part  thereof,  shall  be 
seized  or  attached,  it  shall  be  lawful  for  the 
judge  who  shall  have  issued  such  warrant  or 
warrants,  to  cause  such  ship  or  vessel,  or  part 
thereof,  so  seized  or  attached,  to  be  valued  by 
indifferent  persons;  and  if  any  person  will 
give  security  to  be  approved  of  by  such  judge, 
to  the  people  of  the  State  of  New  York,  for  the 
84*]  benefit  of  the  creditors  *of  .such  debtor, 
to  pay  the  amount  of  such  valuation  to  the  trus- 
tees to  be  in  such  case  appointed,  then  such 
judge  shall  cause  such  ship  or  vessel  to  be  dis- 
charged from  such  attachment." 

Although  a  payment  may  be  equivalent  to 
giving  the  security  required  by  the  22d  section 
of  the  act,  as  has  been  insisted  in  the  argu- 
ment, yet  that  certainly  must  be  a  payment  by 
the  principal  debtor,  and  not  by  his  surety,  or 
one  who  is  collaterally  responsible;  the  appli- 
cants, therefore,  do  not  come  within  that  sec- 
tion. The  next  section  provides  express- 
ly that  the  security  shall  be  given  for  the  bene- 
fit of  all  the  creditors,  and  therefore,  as  the  in- 
dorser here  who  paid  the  money,  must  be  con- 
sidered as  a  creditor,  he  has  a  right  to  avail  him- 
self of  this  attachment,  and  Munro  may  be  con- 
sidered a  trustee  for  his  benefit. 

If  the  prosecutor  is  paid,  and  the  applicants 
would  avail  themselves  of  it,  they  must  resort 
to  their  plea. 

Let  the  order  be  reversed. 

S.  C.,  1  Johns.  Cas.,  137. 

Cited  in  16  Johns.,  14, 164 ;  10  1ST.  Y.,  67 ;  3  Barb.,  13. 


OCTOBER  TERM,  1799. 


CANNON,  Manucaptor,   ads.    CATHCART. 

Costs — Special  Bail — Exoneretur — Demand  for 
Costs. 

IN  January    Term    last,    the    defendant  as 
special  bail  was  relieved,  and  an  exoneretur 
COL.  AND  CAINES. 


was  ordered  to  *be  entered,  on  payment  [*85 
of  costs.  The  costs  not  having  been  paid,  the 
proceedings  went  on;  and  now  it  was  moved 
by  Mr.  Burr  to  have  him  relieved,  on  the  ground 
that  costs  never  having  been  demanded,  or  a 
bill  exhibited,  there  was  no  neglect  on  the  part 
of  the  defendant  in  not  having  paid  them. 

Per  Curiam.  The  discharge  ordered  at  last 
January  Term  was  conditional,  and  it  was  the 
duty  of  defendant  to  have  paid  the  costs  to 
plaintiff  without  waiting  for  a  demand  or  the 
tender  of  a  bill.  If  he  is  relieved  now,  it  must 
be  on  payment  instanter  of  the  costs  or- 
dered last  January  Term,  and  also  the  costs 
of  the  subsequent  proceedings,  including  the 
costs  of  resisting  this  application. 

Let  him  talce  the  effect  of  his  motion  on  those 
conditions. 


PL  ATT  v.  BOBBINS  ET  AL.,  Administrators, 
&c.,  of  SMITH. 

.Motion  for  Judgment — Pleas — Demurrer. 

A  JUDGMENT  against  Smith  in  his  lifetime 
had  been  revived  by  scire  facias  against 
the  defendants  as  his  administrators,  on  which 
there  was  a  judgment  by  default.  A  suit  was 
then  brought  against  the  present  defendants, 
suggesting  a  devastamt,  to  which  they  pleaded, 

I.  Plene  administravit. 

II.  That  the  defendants  as  administrators, 
did  not  eloigne  the  assets. 

*III.  That  Smith,  their  intestate,  exe-  f*86 
to  the  cuted  before  his  death,  a  bond  of  $50,000 
United  States,  which  remains  unpaid. 

It  was  now  moved  on  behalf  of  the  plaintiff 
in  the  suit,  that  judgment  be  rendered  against, 
the  defendants  by  default,  for  it  was  insisted 
that  as  to  the  pleas  put  in,  they  were  mere 
nullities. 

It  was  said  in  reply  that  this  was  not  the 
regular  method  of  testing  the  validity  of 
pleadings,  and  that  the  plaintiff  ought  to 
have  demurred. 

Per  Curiam.  If  pleas  are  not  palpably  bad, 
and  void  upon  the  face  of  them,  the  opposite 
party  must  resort  to  his  demurrer.  All  the 
court  have  doubts  as  to  one  plea,  and  some  of 
them  as  to  all;  and  therefore 

Plaintiff  must  take  nothing  by  his  motion. 
Mr.  Boyd  for  plaintiff. 
Mr.  Burr  for  defendant. 


SALSTONSTALL  ads.  WHITE. 

Ejectment — Admitting  new  Parties  in  Interest — 
Lands  Surveyed  and  Improved. 

PROCEEDINGS  in  ejectment  for  the  Hol- 
land Company  lands,   so  called,   in  the 
County  of  Ontario,  as  for  a  vacant  possession. 
Mr.  D.  A.  Ogden  moved  that  Wilhem  Willinck 
and  three  others,  commonly  called  "  The  Hol- 
land Company,"  be  made  defendants,  instead 
of  Salstonstal'l,  the  present  defendant. 

*Mr.  Troup,  on  the  same  side.  Any  [*87 
one  whatever  claiming  title,  may  be  made  de- 
fendant, though  he  has  never  been  in  actual 
possession;  and  to  this  point  cited  Sty.,  368; 

91 


78 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


Sid.,  24;  1  Lilly's  Abr.,674;  4  Burn.  &  East, 
122;  Comb.,  118. 

Mr.  E.  Livingston,  contra.  It  is  settled 
that  in  proceeding  for  a  vacant  possession,  one 
claiming  title,  who  is  not  already  a  party  to  the 
suit,  cannot  be  admitted  to  defend,  but  must  re- 
sort to  his  action  of  ejectment.  He  cited  2 
Cromp.  ,191,192;  Statute  of  this  State  passed  21st 
Feb.,  1788,  sec.  29,  30;  the  first  of  which  sections 
subjects  tenants  to  penalties  for  not  giving 
notice  to  their  landlords  of  declarations  of 
ejectment;  and  the  last  of  which  provides  that 
landlords  may  be  admitted  defendants  by  being 
joined  with  their  tenants.  From  which  it  fol- 
lows that  no  case  is  contemplated  by  our  laws 
of  admitting  anyone  to  come  in  and  defend 
who  is  not  a  party  to  the  original  suit,  except  a 
landlord  who  has  a  tenant  in  possession. 

Mr.  B.  Livingston,  in  reply.  In  this  case  the 
lands,  in  judgment  of  law,  are  not  vacant. 
The  suit  is  brought  to  recover  several  hundred 
thousand  acres,  and  it  appears  by  the  affidavit, 
that  the  Holland  Company  have  surveyed  the 
tract,  and  erected  buildings  on  some  part  of  it. 

Per  Curium.  The  strict  principles  applica- 
ble to  proceedings  as  for  a  vacant  possession  in 
England,  cannot,  without  manifest  incon- 
venience, be  applied  to  unlocated  lands  in  this 
country.  Besides,  here  has  been  a  survey  of 
this  land,  and  buildings  have  been  erected  on 
some  part  of  it. 

Motion  granted. 


88*]        *BROWN  v.  MITCHELL. 

Ejectment — Confiscated  and  Forfeited  Estates — 
Improvement* — Act  of  May  1,  1786,  sec.  10. 

THE  lessor  of  plaintiff  recovered  at  the  last 
Dutchess  Circuit  on  title  existing  prior  to 
1776,  and  the  defendant  set  up  title  derived 
from  the  State,  under  a  sale  by  the  commis- 
sioners of  forfeitures,  prior  to  1782,  and  under 
the  Act  passed  October  22d,  1799,  entitled, 
"  An  Act  for  the  forfeiture  and  sale  of  the 
estates  of  persons  who  have  adhered  to  the 
enemies  of  this  State,  and  for  declaring  the 
sovereignty  of  the  people  of  this  State,  in 
respect  to  all  property  within  the  same." 

The  Attorney-General,  for  the  defendant, 
now  moved  for  the  appointment  of  appraisers 
under  the  first  section  of  the  Act  passed  May 
12th,  1784,  entitled,  "  An  Act  for  the  speedy 
sale  of  the  confiscated  and  forfeited  estates 
within  this  State,  and  for  other  purposes  there- 
in mentioned,"  to  ascertain  what  improvements 
the  plaintiff  must  pay  before  he  can  take  pos- 
session. 

Mr.  Evertson,  contra.  The  act  of  1784  cannot 
apply  to  sales  made  prior  to  it. 

The  Attorney-General,  in  reply,  cited  the  10th 
section  of  the  Act  passed  May  1st,  1786, 
entitled,  "  An  Act  further  to  amend  an  Act 
entitled,  '  An  Act  for  the  speedy  sale  of  the 
confiscated  and  forfeited  estates  within  this 
State,  and  for  other  purposes  therein  men- 
tioned.' " 

89*]  *Per  Curiam.  The  act  last  cited  its 
retrospective,  and  affects  prior  titles,  and  so 
courts  have  considered  them. 

Let  the  defendant  take  the  effect  of  his  motion. 
92 


GEORGE  ads.  BENNINGER. 

Notice  of  Argument — For  Day  in  Term — Objec- 
tion—  Waiver. 

THE  court  in  this  case  determined,  that  if  a 
notice  of  argument  is  given  for  any  day 
in  term,  subsequent  to  the  first,  the  party 
who  would  object  to  it  on  that  account  must 
appear  and  state  such  objection  at  the  time 
when  the  motion  is  brought  on;  and  if 
he  does  not,  he  will  be  deemed  to  have  waived 
such  objection. 


DRAKE  v.  MILLER. 

Contempt  — Attachment —  Certiorari — Defective 
Notice  of  Return — Act  of  January  24,  1797. 

A  JUSTICE  OF  THE  PEACE  was  brought 
up  on  attachment  for  contempt  in  not 
having  made  return  to  a  certiorari  directed  to 
him,  and  made  returnable  "before  us." 

Per  Curiam.  The  Act  passed  the  24th  of 
January,  1797,  entitled,  "An  Act  concerning 
the  Supreme  Courts,"  enacts,  "That  all  writs 
and  process  to  be  issued  from  and  after  the  ex- 
piration of  October  Term  in  the  present  year, 
and  returnable  in  the  Supreme  Court,  shall  be 
made  returnable  before  our  Justices  of  our  Su- 
preme Court  of  judicature,"  &c.,  and  process 
made  returnable  in  any  other  form  must 
be  considered  as  returnable  out  of  court  and 
void. 

Let  the  attachment  be  discharged  icith  costs. 
Overruled— 5  Johns.,  167,  233. 


*VIELIE  ads.  TOWERS. 


[*90 


Costs — Nominal    Verdict — Certificate  af  Judge 
out  of  Court— Act  of  February  12,  1877. 

THIS  was  an  action  of  assault  and  battery, 
and  a  verdict  for  plaintiff  at  the  circuit, 
for  six  cents  damages  and  six  cents  costs.  A 
certificate  was  given  by  the  judge  who  pre- 
sided at  the  trial,  to  entitle  the  plaintiffs  to  full 
costs,  but  it  was  not  given  at  the  trial. 

Mr.  Woodworth,  for  the  defendant,  under  a 
motion  that  the  certificate  of  the  judge  be  va- 
cated, now  brought  up  the  question  whether 
this  certificate  is  conformable  to  the  5th  sec- 
tion of  the  Act  entitled,  "An  Act  to  reduce 
the  laws  concerning  costs  into  one  statute," 
passed  the  12th  of  February  1787.  He  con- 
tended, that  agreeable  to  this  act  the  certificate 
must  be  granted  by  the  judge  sedente  curia, 
and  could  not  be  granted  with  any  effect  after- 
wards. Such,  he  said,  was  the  English  statute, 
and  such  their  practice  under  it. 

Per  Curiam.  The  Statute  enacts,  "That  in 
all  actions  of  trespass  and  assault  and  battery, 
commenced  or  prosecuted  in  the  Supreme 
Court,  wherein  the  judge,  at  the  trial  of  the 
cause,  shall  not  find  and  certifv  under  his 
hand  upon  the  back  of  the  record,  that  an  as- 
sault and  battery  was  sufficiently  proved, 
or  that  the  freehold  or  title  of  the  land 
mentioned  in  the  plaintiff's  declaration,  was 
COL.  AND  CAINEH. 


1800 


DOLE,  SHERIFF  OF  RENSSELAER,  v.  MOULTON  ET  AL. 


90 


chiefly  in  question,  the  plaintiff  in  such  action, 
in  case  the  jury  shall  find  the  damages  to  be 
udder  forty  shillings,  shall  not  recover  or  obtain 
more  costs  of  suit  than  the  damages  so  found 
shall  amount  to."  This  provision  being  reason- 
91*]  ably  interpreted,  means  only  that  *the  cer- 
tificate should  be  given  by  the  judge  who  pre- 
sided at  the  trial,  and  not  that  the  act  of  mak- 
ing out  the  certificate  should  be  performed  then. 


JANUARY  TERM,  1800. 


DOLE,  Sheriff  of  Rensselaer, 

v. 
MOULTON  ET  AL. 

1.  Amendment  of  Pleading  —  8th  Sec.  Rules  of 
April.  Term,  1796  —  Adding  New  Pleas.  2. 
Election  of  Pleas  —  Demurrer. 


was  an  action  upon  a  bond  given  to  the 
J-  sheriff,  conformably  to  the  Act  passed 
April  5th,  1798,  entitled,  "an  Act  regulating  the 
liberties  of  jails." 

The  defendants  pleaded  five  pleas  : 

1.  Non  estfactum. 

2.  Performance  of  the  condition. 

3.  That  the  escape  was  by  casualty,  and 
that  there  was  a  return  before  suit  brought. 

4.  That  the  penalty  is  for  more  than  double 
the  amount  of  the  sum  for  which  the  pris- 
oner was  confined,  and  so  not  agreeable  to  the 
statute. 

5.  That  the  condition  of  the  bond  is  not 
conformable  to  the  statute. 

92*]  *But  the  two  last  pleas  were  added  after 
demurrer  to  the  second  and  third  pleas,  and 
before  default  or  joinder. 

Mr.  Henry,  for  plaintiff,  withdrew  his  demur- 
rer, and  now  moved  that  the  defendant  elect  one 
•of  the  three  first  pleas  and  abide  by*  it,  for  he 
insisted  that  the  pleas  were  incompatible.  And 
he  moved  at  the  same  time  that  the  two  last 
pleas  be  struck  out  for  irregularity. 

Mr.  Woodworth,  contra.  He  contended  that 
pleas  have  been  allowed  to  stand  together, 
though  seemingly  incompatible;  and  cited  2 
Black.  Reports,  1093.  And  in  answer  to  the  last 
motion  he  insisted  that  it  was  regular  to  file  the 
two  last  pleas  at  the  time  he  did,  under  the 
provision  contained  in  the  8th  section  of  the 
rules  of  the  April  Term,  1796. 

Per  Curiam.  The  rule  referred  to  by  the 
defendant's  counsel,  that  "Where  there  shall 
be  a  demurrer  to  a  declaration,  or  to  any  other 
pleading,  not  being  a  plea  in  abatement,  the 
party  against  whom  the  demurrer  shall  be 
taken  may,  at  any  time  before  the  default  for 
not  joining  in  demurrer  shall  be  entered,  amend 
the  pleading  demurred  to,"  will  never  extend 
to  permit  the  party  to  add  new  pleas  ;  those 
pleas  must  therefore  be  struck  out. 

As  to  the"  first  motion,  the  plaintiff,  after 
demurrer,  comes  too  late  to  drive  the  defend- 
ant to  an  election. 

93*]    *Let  Ihe  defendant  take  only  the  effect 
of  his  motion  in  respect  to  the  tiro  last  pleas. 
COL.  AND  CAINES. 


VANDERWERKER  ads.  CUYLER. 

Stay  of  Proceedings — Second  Suit  after  Nonsuit 
— Costs — Motion  after  Plea  made. 

TUDGMENT  as  in  case  of  nonsuit  had  been 
<J  entered  in  a  former  cause,  for  not  proceed- 
ing to  trial,  and  it  was  now  moved  by 

Mr.  Emott,  after  plea  put  in,  and  notice  of  trial 
received,  that  all  proceedings  should  stay  till 
the  plaintiff  should  pay  the  costs  of  the  first 
suit.  He  cited  2  Durn.  &  East.,  511. 

Mr.  Woodworth,  contra.  Suits  are  not  to  be 
stayed  till  former  costs  are  paid,  except  in  eject- 
ment, or  where  the  merits  have  been  tried,  or  if 
the  suit  appears  to  be  vexatious.  It  has,  however, 
been  done  in  trespass  de  bom's  asportatis,  and  in 
case  of  a  malicious  prosecution.  Besides,  the 
defendant,  after  the  plea  pleaded,  comes  too 
late.  He  cited  in  support  of  his  first  position, 
2  Black.  Reports,  741  ;  3  Wilson,  149  ;  2  Burr, 
1026. 

Per  Curiam.  The  second  suit  shall  be  in- 
tended to  be  vexatious,  the  plaintiffs  having 
voluntarily  suffered  a  nonsuit  in  the  first.  The 
defendant  at  no  time  is  too  late  to  make  this 
application  pending  the  suit  and  before  trial. 

Motion  granted. 


*SHEPHERD  ads.  CASE.        [*94 

New    Trial — Judgment   entered — tth    Rule    of 
January  Term,  1799. 

THIS  was  a  motion  for  a  new  trial,  but  it 
was  opposed  on  the  ground  that  judg- 
ment having  been  entered  and  no  order  ob- 
tained from  a  judge  to  stay  proceedings, 
according  to  the  fourth  rule  of  January  Term, 
1799,  the  defendant  was  now  too  late. 

Per  Curiam.  The  true  construction  of  the 
4th  rule  of  January  Term,  1799,  is, 

First,  That  the  notice  of  a  motion,  accom- 
panied by  a  judge's  certificate,  is  a  substitute 
for  the  former  practice  of  a  rule  to  show  cause, 
and  therefore  if  the  party  neglects  to  obtain  a 
certificate,  the  consequence  is,  that  if,  when 
the  hearing  is  to  come  on,  judgment  be  duly 
entered,  he  cannot  be  heard  on  his  motion. 
We  will  not  hear  an  argument  to  set  aside  a 
verdict,  default,  or  inquisition,  after  judgment 
duly  entered. 

Secondly,  There  is  nothing  in  our  rules  to 
prevent  a  party  dissatisfied  with  the  refusal  of 
a  judge  to  grant  a  certificate,  to  apply  to  the 
court.  The  defendant  is  not  therefore  strictly 
entitled  to  be  heard,  but  as  there  appears  to 
have  been  a  misconstruction  of  the  rule,  we 
will,  in  the  present  instance,  open  the  cause 
and  hear  the  motion. 

Mr.  Sjiencer  for  defendant. 

Mr.  Van  Vechten  for  plaintiff. 


SACKET,  Demandant, 

v. 
LOTHROP,   Tenant. 

Writ  of  right —  Writ  returned  Sedente  Curia  un- 
der Rule —  Waiter  of  Tenant. 
Citation— Soothe,  92. 

THE  Sheriff,  on  the  quarto  die  post,  had  not 
returned  the  writ,  and  the  demandant  ob- 

93 


95 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


95*]  tained  a  rule  *that  he  return  it,  sedente 
curia,  or  shew  cause  why  an  attachment  should 
not  issue  ;  and  now  the  writ  being  returned, 

Mr.  Bogardus,  for  the  demandant,  moved  that 
the  tenant  be  called. 

Mr.  S.  Thompson,  contra.  He  contended  that 
the  demandant  not  having,  on  the  quarto  die 
pout,  obtained  a  day  further,  must  be  consid- 
ered as  out  of  court.  The  rule  on  the  sheriff 
was  a  nullity,  and  instead  of  it  the  demand- 
ant should  have  taken  out  a  second  summons. 
He  cited  1  Reeves,  119,  121. 

Per  Curiam.  The  tenant,  if  he  would  put 
the  demandant  out  of  court,  should  have  en- 
tered a  ne  recipiatur  on  the  quarto  die  post ;  not 
having  done  so  here,  it  must  be  considered  a 
waiver.  By  the  rule  entered,  that  the  sheriff 
return  the  writ  sedente  curia,  the  demandant 
was  to  be  deemed  continued  in  court  from  day 
to  day  during  the  term.  ( Vide  Boothe,  92.) 

So  let  the  tenant  be  called. 


FORRESTER  ads.  BARRET. 

Replevin — Nonsuit. 

was  an  action  of  replevin,  and  plaint- 
JL  iff  having  omitted  to  bring  on  the  cause 
to  trial, 

Mr.  Burr,  for  defendant,  now  moved  for 
judgment  as  in  case  of  nonsuit.  (Barnes,  317.) 

Mr.  Harrison  opposed  the  motion,  and  insisted 
that  it  is  never  grantable  in  this  action ;  and 
ciled  Buller,  65;  3  Dura.  &  East,  661;  1  Black. 
Rep.,  375. 

9G*]  *Per  Curiam.  In  the  action  of  replevin, 
both  parties  are  equally  actors,  and  either  party 
may  carry  down  the  cause  for  trial,  no  judgment 
as  in  case  of  nonsuit,  therefore,  is  ever  given. 

The  defendant  must  take  nothing  by  his  motion. 


HOLMES  ET  AL.  v.  LANSING. 

Amendment  of  Declaration  after  Plea  made — 
Costs — Imparlance. 

TTOIOTT  moved  to  amend  the  declaration 
J_J  after  plea  pleaded,  which  was  granted, 
but  a  queston  now  arose,  whether  the  defend- 
ant is  entitled  both  to  an  imparlance  and  to 
costs.  (Vide  Str.,  950;  1  Dallas,  465:)  Where 
it  is  said  he  shall  only  have  his  election  of  one ; 
but  in  2  Black.  Rep.,  785,  he  had  both. 

Per  Curiam.  There  is  a  diversity  of  prac- 
tice between  the  King's  Bench  and  Common 
Pleas ;  the  court  will  therefore  adopt  a 
rule  of  its  own.  As  the  amendment  is  for  the 
benefit  of  the  plaintiff,  it  is  reasonable  he  should 
pay  the  costs  of  it;  and  it  is  equally  reason- 
able that  the  defendant  should  have  an  oppor- 
tunity to  plead  de  nmo. 

The  plaintiff,  tJierefore,  may  amend  upon  pay- 
ment of  costs  and  giving  an  irnparlfince. 
94 


MARCLAR  ET  AL.  ads.  M'EVERS. 

Inquest — Defective  Notice  of  Trial — Motion  for 
Stay  at  Third  Subsequent  Term. 

THIS  cause  was  noticed  for  the  New  York 
circuit  in  June  last,  but  the  notice  was 
only  of  eight  days;  the  defendant  living  more 
than  forty  miles  distant,  considered  the  notice 
void,  and  paid  no  regard  to  it.  Inquest  was 
taken,  and  when  notice  of  taxation  was 
*given,  application  was  made  to  a  judge  [*97 
to  stay  proceedings;  and  now  the  question 
came  up,  whether  this  court  wolild  set  aside  the 
verdict. 

Per  Curiam.  The  notice,  though  defective, 
was  sufficient  to  put  the  defendants  upon  in- 
quiry, and  they  ought  to  have  made  their  ap- 
plication at  the  next  term. 

The  defendants  are  now  too  late,  and  must 
take  nothing  by  their  motion. 


MARSTON 


LAWRENCE  AND  DAYTON. 

Discontinuance  —  Before  Plea  made  m  Second 
Suit  —  Costs.  2.  Abatement  —  Verification  of 
Plea.  3.  Id.—  Trial. 

Citation—  1  Ld.  Raym.,  274;  2  Ld.  Raym.,  1014; 
Barnes,  257;  Sellon  Pr.,  304;  Impey's  B.  R.,169;  1 
Leon,  105;  2  Coinyn's  Dig.,  tit.  Abatement  1,  11;  8 
Comyn's  Dig.,  tit.  Abatement  1,  14. 

"[DECLARATION  indorsee  v.  indorser.  Plea 
_U  in  abatement,  a  former  suit  by  plaintiff  v. 
defendants,  .to  which  they  had  put  in  a  plea  in 
abatement  that  Francis  Childs  was  a  partner 
and  not  named,  which  suit  was  pending  at  the 
commencement  of  the  present  suit,  and  is  so 
still.  Replication  mil  tid  record,  and  i^sue. 

Mr.  Harrison,  for  plaintiff,  stated  the  facts  : 
That  on  the  13th  of  December,  1799,  a  discontinu- 
ance was  entered  in  the  first  cause  after  receiving- 
the  plea  intabatement  therein  ;  that  the  present 
suit  was  commenced  before  October  Term,  and 
the  declaration  was  filed  Decemmber  28th  ; 
that  the  plea  in  abatement  was  received  Decem- 
ber 31st  ;  that  nil  capiat  per  breve  in  the  former 
was  filed  January  13th,  1800.  Replication  now 
at  issue  was  filed  January  16th. 

*The  principal  question  he  stated  to  be,  [*98 
whether  the  discontinuance  of  a  former  suit, 
must  be  entered  before  new  suit  commenced, 
or  may  be  entered  any  time  before  replication 
of  nut  tid  record  filed.  He  contended  that  the 
discontinuance  being  matter  of  right,  may  be 
entered  at  any  time  before  replication.  To 
this  point  he  cited  1  Cromp.,  188;  Barnes,  257; 
1  Leon.,  105;  Impey's  B.  R.,  169;  1  Sellon, 
304. 

Mr  .  Burr,  for  defendants,insisted  that  a  plaint- 
iff cannot  after  plea  discontinue  without  leave. 

Mr.  Harrison  said  the  proposition  is  erron- 
eous, for  no  leave  is  necessary  in  any  case 
where  there  is  no  room  for  the  court  to  impose 
terms  or  conditions  on  the  defendant.  And 
such  is  the  case  here. 

April  Term,  1800.     LEWIS,  J.,  and  KENT,  J.f 

considered  the  nil  capiat  per  brere  when  entered, 

to  have  had  relation  back  to  13th  of  December, 

when  the    discontinuance    was  entered,   and 

COL.  AND  CAINES. 


1800 


PHELPS  ADS.  FERRIS. 


therefore  was  even  before  plea  pleaded,  and  so 
within  the  cases  in  1  Ld.  Raymond,  274,  and  2 
Id.  1014.  The  other  judges  thought  this  not 
material,  if  the  same  was  entered  before  repli- 
cation, relying  upon  the  case  cited  from  Barnes. 
All  agreed  that  discontinuance  might  be  en- 
tered any  time  before  plea  pleaded  in  the  sec- 
ond suit,  and  without  leave  or  costs.  (Barnes, 
257  ;  Sellon,  304  ;  Impey's  B.  R,  169  ;  1  Leon, 
105.)  That  defendant  ought  to  verify  his 
whole  plea,  vide  Com.  Dig.,  tit.  Abatement,  I. 
11.  That  a  plea  in  abatement,  triable  by  rec- 
ord, requires  only  a  judgment  of  respondeas 
99*]  ouster,  which  *is  the  case  if  tried  by  certif- 
icate or  inspection.  Vide  Com.  Dig.,  ante,  I.  14. 

Per  tot.  Cur.     Judgment  of  respondeas  ouster. 


PHELPS  ads.  FERRIS. 

Judgment  on  Bail-bond — Exception  to  Bail — Mo- 
tion to  Set  Aside. 

MOTION  to  set  aside  judgment  entered  on 
bail-bond,  because  the  plaintiff  had  omit- 
ted to  enter  an  exception  to  the  bail,  and  it  was 
now  contended  that  he  had  by  such  negli- 
gence precluded  himself  from  suing  on  the 
bail-bond. 

Motion  granted. 


APRIL  TERM,  1800. 


BRITT  ET  AL.  v.  VAN  ORDEN. 

Special  Bail — Notice — Subsequent  Filing. 

IN  this  case  a  letter  was  sent  by  A.  B.,  de- 
fendant's attorney,  in  the  month  of  No- 
vember last,  informing  plaintiff's  attorney  that 
special  bail  was  then  filed;  the  plaintiff  relying 
upon  this  information,  and  not  intending  to 
object  to  the  sufficiency  of  the  bail,  proceeded 
to  enter  his  judgment  in  January  Term  last ; 
but  had  discovered  since  that  bail  was  not  en- 
tered till  the  29th  of  January ;  it  further  ap- 
peared that  the  defendant's  attorney  had 
acknowledged  in  his  letter  that  he  was  only 
employed  to  delay. 

1OO*]  *Mr.  Hopkins,  for  plaintiff ,  now  moves 
that  the  bail-piece  filed  in  January  be  considered 
as  filed  on  the  first  day  of  the  preceding  No- 
vember. 
Mr.  Woods,  contra. 

Per  Curiam.  This  was  an  irregularity  in 
practice  not  to  be  countenanced.  Let  the 
plaintiff  take  the  effect  of  his  motion  with 
costs  to  be  paid  by  the  defendant's  attorney 
himself. 


BURR  v.  SKINNER. 

Cost* — Notice  for  Commission — Notice  of  Trial. 

BO  YD,  for  plaintiff,  moves  for  costs,  because 
the  defendant  put  off  the  trial  at  the  cir- 
COL,.  AND  CAINES. 


cuit  on  affidavit  and  notice  of  a  motion  to  be 
made  at  the  succeeding  term  for  a  commission, 
the  issue  having  been  joined  during  the  vaca- 
tion. 
Mr.  Pendleton,  contra. 

Per  Curiam.  When  a  defendant  in  such 
case  wishes  to  sue  out  a  commission,  he  must 
give  notice  of  it  before  he  receives  notice  of 
trial,  or  within  a  reasonable  time,  according  to 
circumstances,  and  such  notice  shall  stay  pro- 
ceedings ;  but  if  it  is  after  notice  of  trial,  he 
must  pay  costs  to  that  time.  Here  the  defend- 
ant was  negligent  in  waiting  till  he  had  first 
received  notice  of  trial,  and  he  must  therefore 
pay  costs. 

Motion  granted. 

S.  C.,  1  Johns.  Cas.  391. 

Cited  in  1  Wend.,  283,  4 ;  2  Wend.,  646 ;  6  How.  Pr.r 
115;  Code  R.  N.  S.  407. 


*HAUSENFRATS  ads.  GRAVES.  [*1O1 

Default — Motion  to  set  aside — 8th  Rule  of  Janu- 
ary Term,  1799 — Sufficient  Posting. 
MOTION  on  the  part  of  defendant  to  set 
aside  a  default  on  affidavit,  stating  that 
the  declaration   was   filed    the    28th    day  of 
January,  and  served  by  being  put  up  in  the 
clerk's  office  ;  that  the  default  was  entered  on 
the  19th  of  February,  at  the  expiration  of  the 
twenty-day  rule,  no  attorney  having  been  then 
employed. 

It  was  now  contended,  that  as  no  attorney 
was  employed  by  the  defendant,  the  dec- 
laration should  have  been  put  up  in  the  office 
forty  days  before  default  entered,  according  to 
the  8th  rule  of  January  Term,  1799. 

Per  Curiam.  The  rule  cited  only  applies  to 
a  case  where  an  attorney  is  employed  for  de- 
fendant, but  neither  lives  in  town  or  has  an 
agent  there. 

The  defendant  must  take  nothing  by  his  motion. 


LODER  ads.  SCOFIELD  ET  ux. 

Writ  of  Righ^-  View. 
Citation— Booth,  40. 

MUNRO  stated  that  tenant  had  at  a  previous 
term  demanded  view,  but  that  demand- 
ant had  not  issued  the  writ,  and  now  he  re- 
newed his  motion  that  the  demandant  sue  out 
the  writ  of  view,  and  cause  view  to  be  given 
by  the  first  day  of  next  term,  or  be  nonsuited  ; 
and  cited  Booth,  40,  to  show  that  though  a 
view  be  granted  at  the  instance  of  the  tenant, 
the  demandant  is  bound  to  sue  it  out. 

Rule  granted. 


*EARL  «.  LEFFERTS.        [*1O2 

Judgment  under  Consolidation  Rule — Limitation 
for  Payment — Costs — Judgment  nunc  pro 
tune. 

A  QUESTION  arose  in  this  cause  on  the  con- 
solidation rule,  whether  on  judgment  be- 

95 


102 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


ing  rendered  in  one  cause,  the  plaintiff  was 
entitled  to  judgment  in  the  other  causes  imme- 
diately. 

Per  Curiam.  The  other  defendants  shall 
have  eight  days  to  pay  the  money,  after 
judgment  in  the  cause  tried  and  taxation  of  the 
costs  in  all  the  causes.  Theplaintiff ,  however, 
may  proceed  immediately  to  perfect  his  judg- 
ment, for  his  better  security  ;  but  if  the  de- 
fendants will  pay  within  the  eight  days,  it  shall 
exempt  them  from  the  costs  of  entering  up 
such  judgments.  When  a  judgment  of  this 
kind  is  rendered  in  Albany,  and  the  defendants 
live  in  New  York,  and  so  rice  versa,  then  in- 
stead of  eight  they  shall  have  fourteen  days  ; 
but  if  payment  is  not  made  within  the  time 
allowed,  or  if  the  plaintiff  does  not  elect  to 
enter  his  judgment  till  the  expiration  of  the 
time,  he  may  then  enter  his  judgment  nunc  pro 
tune,  and  have  his  full  costs. 


DURELL 

ads. 

STANSBURY,  assignee  of  SHERIFF  OF 
WESTCHESTER. 

DELAVAN  ads.  THE  SAME. 

Stay  of  Proceeding* — Compliance  icith  Condition* 
—  Tender  of  Costs. 

RULES  had  been  obtained  at  last  October 
Term  to  stay  proceedings  on  bail-bond 
suits,  the  opposite  party  not  having  appeared 
1O3*]  toobject.  At  last  January  *Term  an  ap- 
plication was  made  to  set  those  rules  aside,  on  the 
ground  that  no  regular  notice  of  them  had  been 
served.  Other  objections  were  added  as  to  the 
regularity  of  the  application  at  October  to  stay 
proceedings,  particularly,  that  one  of  the  plaint- 
iffs had  not  been  truly  named  in  the  bail-pieces, 
and  that  the  bail  in  the  original  suit  had  not 
justified. 

A  variety  of  affidavits  taken  on  both 
sides  were  then  read  to  the  point  of  merits. 
And  it  appeared  that  the  special  bail  and  the 
defendants  to  the  bail-bond  suits  were  the 
same. 

The  court  ordered,  "  That  these  causes  being 
now  opened,  and  in  the  same  situation  in  which 
they  were  the  beginning  of  last  term,  let  the 
proceedings  on  the  bail  bonds  stay,  on  payment 
of  osts  ;  on  bails  justifying,  if  required  ;  and 
on  the  terms  offered  by  the  defendant's  coun- 
sel, viz.,  to  correct  the  name  in  the  bail-pieces 
and  confess  judgment  in  the  original  suit." 

The  defendant's  attorney  not  understanding 
that  the  rule  went  so  for,  but  that  it  merely  ex- 
tended to  the  vacating  the  first  rule,  applied  to 
a  judge  at  his  chambers  on  the  5th  of  February, 
and  obtained  an  order  staying  proceedings  gen- 
erally until  the  next  term.  This  order  was 
then  duly  served  on  the  plaintiff's  attorney,  but 
considering  it  irregularly  obtained,  he  took  no 
notice  of  it,  but  went  on  with  the  suits.  And 
now 

Mr.  Jlinns,  for  the  defendants,  moved  to  set 
a«ide  all  proceedings  since  last  term,  as  being 
1O4*]  contrary  to  *the  judge's  order;  and  for 


a  rule  to  stay  all  proceedinge  upon  the  bail 
bonds,  on  the  terms  formerly  offered. 

Mr.  Jones  objects;  I.  Because  the  judge's  order 
was  irregularly  served,  as  it  was  not  preceded 
by  or  accompanied  with  any  notice  of  the  mo- 
tion, and  because  after  the  order  made  at  term, 
it  was  irregular  to  apply  to  a  judge  at 
his  chambers.  II.  Because  there  had  been  no 
offer  by  the  defendants  to  justify  or  to  give  the 
cognovit  acttonem  till  the  2d  of  April,  although 
the  plaintiff  had  filed  his  declaration  on  the 
bail  bonds  as  early  as  the  7th  of  March.  III. 
Because  the  costs  had  never  been  paid  or  ten- 
dered. 

Mr.  Riggs,  in  reply,  said,  1st.  That  the  defend- 
ants had  never  understood  that  the  order  of 
the  court  at  January  Term  extended  to  any- 
thing further  than  merely  to  vacate  the  order 
obtained  in  October;  but  that,  as  to  one  ob- 
jection that  the  bail  had  not  justified;  upon 
principle  that  could  not  be  requisite,  as  the  bail 
to  the  sheriff  had  become  bail  above,  and  the 
plaintiff,  by  suing  the  bail-bond,  had  admitted 
the  sufficiency.  And  as  to  the  costs,  no  bill 
had  ever  been  made,  nor  had  they  ever  been 
demanded. 

Per  Curiam.  As  all  proceedings  had  been 
stayed  in  term  on  certain  conditions,  those  con- 
ditions should  have  been  first  complied  with, 
to  entitle  the  party  to  any  benefit  under  the 
rule;  and  it  was  certainly  irregular  to  apply  aft- 
erwards to  a  judge  at  his  chambers  for  any 
further  order.  But  as  the  defendants  appear  to 
have  mistaken  the  former  decision,  the  court 
will  now  stay  proceedings  on  the  same  condi- 
tions *as  were  annexed  last  term,  and  [*lOo 
on  payment  of  all  subsequent  costs. 

As  to  the  other  objection,  the  court  observed 
that  it  was  the  duty  of  the  defendants  to  have 
sought  the  plaintiff  and  tendered  the  costs. 


DITZ  ads.  BUTLER  ET  AL. 

Ejectment — Parties — Death  of  one  of  Plaintiff's 
Lessors  —  Proof —  Motion  to  Strike  Out  on 
Argument. 

THE  Attorney-General,  on  affidavit  that  But- 
ler, one  of  the  lessors  of  the  plaintiff,  is 
dead,  and  was  so  when  the  suit  was  instituted, 
now  moves,  previous  to  joining  in  the  consent 
rule,  to  have  the  first  and  second  count,  in 
which  he  is  averred  to  be  the  lessor,  struck  out 
of  the  declaration. 

Mr.  Riggs,  contra.  It  does  not  appear  certainly 
that  this  Butler  who  is  alleged  to  be  dead,  and 
the  lessor  of  the  plaintiff,  are  the  same  person ; 
but  were  it  so,  yet  he  may  have  been  compe- 
tent to  demise  before  his  death. 

Mr.  Harrison,  in  reply.  If  the  plaintiff  will  not 
produce  his  lessor,  or  give  some  account  of  him. 
the  court  ought  to  lay  their  hands  on  the  cause. 
The  lessor  being  dead  no  one  is  answerable  for 
costs.  Besides,  this  is  a  mode  of  trying  a  title 
against  a  man's  will,  or  trying  the  title  of  a  dead 
man. 

Per  Cnruim.     Here  is  evidence  sufficient  to 

cast  the  burden  of  proof  upon  the  plaintiff  to 

show  that  his  lessor  is  alive,  and  as  he  has  not 

COL.  AND  CAINES. 


:1800 


SABLE  v.  HITCHCOCK. 


105 


done  so,  we  are  all  of  opinion  the  demises  by 
Butler  be  struck  out.  We  are  further  of  opinion 
that  this  is  the  proper  time  and  manner  of 
making  the  application. 


1O6*]     *SABLE  v.  HITCHCOCK. 

Demurrer — Plaintiff's  Duty  to  make  up  Paper 
Books. 

fpHE  defendant  here  demurred  to  the  plain t- 
J-  iff's  declaration,  and  both  parties  having 
made  up  the  paper  books,  the  question  now 
arose  whose  right  or  duty  it  was. 

Per  Curiam.  It  belongs  to  the  plaintiff  to 
make  up  the  books  and  bring  on  the  argument 
in  snch  cases.  So  is  the  English  practice,  and 
so  have  been  the  latest  decisions  in  this  court. 


GOURLEY  v.  SHOEMAKERS. 

Change  of  Venue — Material  Witnesses — Material 
Fact. 

ON  motion  to  change  the  venue  on  the  usual 
affidavit. 

The  court  said  it  was  not  to  be  considered  as 
sufficient  cause  for  granting  such  motion, 
merely  that  material  witnesses  reside  in  the 
county  to  which  the  party  wishes  to  remove 
the  cause;  but  it  must  be  added  that  evidence 
will  there  be  given  of  some  material  fact  which 
actually  happened  there. 


CRYGIERS  v.  LONG. 

Arrest — Cause  not  accrued — Return  day  subse- 
quent to  Accrual  of  Action — Bail  and  Plea — 
Waiver. 

IN  this  case  a  verdict  was  entered  for  the 
plaintiff  subject  to  the  opinion  of  the  court 
on  the  following  facts: 

On  the  20th  of  August,  1799,  the  defendant 
was  arrested  by  virtue  of  a  capias  tested  of  July 
Term,  and  returnable  at  October;  but  the  note 
1 0  7  *]  on  which  the  *  writ  issued  did  not  fall  due 
until  the  21st,  and  was  not  payable  till  the  24th 
•of  August. 

Mr.  Hawes,  for  the  defendant,  contended  that 
the  arrest  being  made  before  the  note  became 
due  although  on  process  returnable  after,  was 
void.  He  cited  2  Burr,  962;  1  Wils,  147. 

Mr.  Evertson  insisted  that  nothing  could  be 
considered  as  the  commencement  of  a  suit,  but 
the  filing  of  the  bill;  and  that  if  the  plaintiff 
showsa  cause  of  action  before  exhibiting  the 
Irill,  it  is  sufficient.  He  relied  upon  Cowp.  454; 
7  Durn  &  East,  4. 

Per  Curiam.  If  an  arrest  be  made  before 
the  debt  is  due,  the  defendant  should  apply  in 
the  first  instance  to  the  court,  or  to  a  judge  at 
his  chambers,  and  not  put  in  bail  and  plead. 
Here  the  defendant  having  omitted  to  make 
such  application,  but  having  filed  bail  and 
pleaded  in  chief,  he  is  too  late. 
COL.  AND  CAINES.  N.  Y.  REP..  BOOK  1. 


PERCIVAL  c.  JONES. 

On  Argument — Point  Reserved — Special  Verdict 
— Preparation  and  opening  of  Case. 

rpHE  court  in  this  case  determined,  that  where 
J-  a  point  was  reserved  by  the  judge  at  the 
trial,  it  is  to  be  considered  in  nature  of  a  spe- 
cial verdict,  and  the  plaintiff  is  to  prepare  the 
case  and  to  open  the  argument. 


S.  C.,  1  Johns.  Gas.  393. 

Cited  in  Col.  &  C.  372;  1  Caine, 


I;  2  Caine,  108. 


"  SANDS  ads.  BIRD  ET  AL. 

Trial   before    Referees — Motion    to    Postpone — 
Material  Witness — Commission. 

WORTMAN,  for  defendant,  moved  to  post- 
pone the  meeting  of  referees  till  the  re- 
turn of  a  witness  from  abroad  who  was  ex- 
pected in  two  months. 

*Mr.  Pendleton  objected,  because,  al-  [*1O8 
though  the  cause  had  been  at  issue  for  more  than 
two  years,  no  step  had  been  taken  by  the  defend- 
ant to  get  out  a  commission;  and  because,  al- 
though a  commission  had  issued  by  the  plaint- 
iffs the  10th  of  January,  1798,  to  take  the 
testimony  of  the  same  witness  then  residing 
in  England,  the  defendant  refused  to  join  in  it. 

Per  Curiam.  The  delay  in  the  cause  has 
been  owing -to  plaintiffs;  nor  has  the  defendant 
ever  put  it  off.  The  cause  is  now  ready  to 
come  before  the  referees,  and  this  application 
is  to  be  considered  in  the  same  light  with  the 
first  application  to  put  off  a  trial  on  account  of 
absence  of  a  material  witness.  It  comes  within 
the  settled  practice.  The  power  given  by  the 
act  to  defendant  to  take  out  a  commission  is  in 
his  favor,  and  an  omission  to  do  it  cannot  alter 
the  ordinary  practice. 

Let  the  defendant  have  the  effect  of  his  motion 
to  the  extent  of  two  months  unless  the  witness  re- 
turns sooner. 


WOODS  ads.  DILL. 

Costs  to  Defendant —  Void  Jury  Process. 

MOTION  by  defendant  for  costs  because 
plaintiff  did  not  try  the  cause  at  the  circuit 
after  he  had  noticed  it.  It  was  objected  be- 
cause the  failure  was  owing  to  the  defendant 
himself,  who,  when  the  plaintiff  was  prepared 
to  go  on,  took  exception  to  the  jury  process, 
which  the  plaintiff  himself  acknowledged  to  be 
void. 

*Per  Curiam.  The  defect  of  the  pro-  [*1O9 
cess  was  the  plaintiff's  mistake,  and  the  de- 
fendant was  certainly  under  no  obligation  to 
come  to  trial  on  it,  nor  had  plaintiff  any  right 
to  demand  it  of  him. 

Let  the  defendant  take  the  efftct  of  his  motion. 
Mr.  Bowman  for  defendant. 
Mr.  Elmendolph  for  plaintiff. 
7  97 


109 


t      SUPREME  COURT,  STATE  OF  NEW  YORK. 
JULY  TERM,  1800. 


1800 


POST  P.  VAN  DINE. 

Attachment  against  Sheriff— Tender  of  Money 
in  lieu  of  Bail — Affidavit  of  Merits. 

WRIT  returnable  April  Term  last;  declara- 
tion filed  6th  of  May;  llth  of  June  notice 
of  bail;  13th,  exception  filed;  on  the  llth  of 
July  the  rule  for  bringing  in  the  body  had  ex- 
pired, and  plaintiff  refused  to  accept  of  addi- 
tional bail  unless  they  would  justify;  on  the 
same  day  notice  of  the  second  bail  was  given, 
and  an  offer  made  by  defendant  to  deposit 
a  sum  of  money  to  the  full  amount  as 
security.  Two  more  bail  were  then  put  in 
with  notice  of  justification  on  the  19th  of  July, 
but  they  now  justified  in  open  court.  The  de- 
fendant also  swore  to  merits. 

On  the  above  statement'  of  facts  a  motion 
was  now  made  for  an  attachment  against  the 
sheriff.  Sellon's  Practice,  214,  was  cited  to 
show  that  where  a  trial  is  Lost,  an  attachment 
is  to  go  and  to  remain  as  a  security.  ( Vide  to 
the  same  point,  4  Durn.  &  East,  352.) 
11O*]  *On  the  other  side  it  was  said  the 
case  in  Sellon  was  where  an  attachment  had 
already  issued. 

Per  Curiam.  At  the  last  circuit  there  was 
no  time  to  try  a  junior  cause,  so  that  no  trial 
has  in  reality  been  lost.  As  the  defendant  has 
sworn  to  merits,  and  as  money  to  the  full 
amount  in  lieu  of  bail  was  tendered  on  the 
llth  of  July  and  refused,  and  as  bail  has  since 
justified,  this  motion  must  be  denied,  but  on 
payment  of  the  costs  of  the  rule  to  show  cause 
and  of  the  motion,  by  the  sheriff. 

Mr.  Backer  for  the  plaintiff. 

Mr.  Walton  for  the  defendant. 


COLE  ET  AL.  ads.  STAFFORD. 


Judgment  for  Want  of  Plea — Plea  Mailed — Costs. 

IN  this  case  a  plea  was  sent  by  the  mail,  and 
the  attorney  for  defendant  swore  that  he  be- 
lieved it  was  received  by  the  attorney  for  the 
plaintiff,  who,  notwithstanding,  entered  judg- 
ment for  want  of  a  plea.     And  now 

Mr.  Riker,  for  the  defendant,  moved  to  set  the 
judgment  aside  for  irregularity. 
Mr.  Wortman,  contra. 

Per  Curiam.  As  affidavit  has  been  made  on 
the  part  of  the  defendant  that  the  plea  was  sent 
by  mail,  and  that  it  is  believed  it  was  received; 
and  as  the  plaintiff's  attorney,  after  receiving  a 
copy  of  this  affidavit,  though  he  makes  a  counter 
affidavit  several  days  afterwards,  does  not  deny 
the  reception  of  the  plea,  the  court  will  intend 
that  he  did  receive  it. 

Ill*]  *Let  the  judgment  fe  set  oxide,  and  on 
payment  of  costs  by  the  plaintiff's  attorney  himself. 
98 


FOWLER,  Manucaptor, 

ads. 
BOARDMAN  AND  HUNT. 

Stay  of  Proceedings — Bail — Exoneretur — Sur- 
render of  Principal — Sickness — Deputization. 
MOTION  to  stay  proceedings  on  the  recog- 
nizance, and  for  leave  to  enter  an  exoner- 
elur  on  the  bail-piece.     It  appeared  that  the 
defendant  was  arrested  on  the  recognizance  on 
the  17th  of  April;  that  he  fell  sick  on  the  21st, 
and  lay  ill  10  days;  that  on  the  26th  the  prin- 
cipal was  surrendered  by  an  agent  of  defend- 
ant, he  being  so  unwell  as  to  be  unable  to  do  it 
personally. 

It  was  objected.  I.  That  the  surren- 
der was  not  in  time,  being  after  the  expiration  of 
the  eight  days  allowed  by  law;  and  II.  That  here 
the  surrender  was  made  only  by  an  agent  of 
the  bail,  and  not  by  the  bail  himself,  and  so  not- 
good  because  bail  cannot  depute. 

Per  Curiam.  The  sickness  of  defendant, 
afforded  sufficient  excuse  for  not  surrendering 
within  the  eight  days.  To  the  second  objec- 
tion, it  appears  from  the  form  of  the  sheriff's 
certificate,  that  the  principal  surrendered  him- 
self, and  it  is  to  be  presumed  it  was  done  vol- 
untarily. However,  if  it  were  now  a  question, 
we  incline  to  the  opinion  that  special  bail  may 
depute  ex  necessitate. 

Let  the  defendant  take  the  effect  of  his  motion- 
on  payment  of  cost*.  . 


*FINCH  ads.  KEMBLE.      [*112 

Ejectment — Judgment  —  Plaintiff  serving  New 
Declaration —  Waiver — Costs. 

A  CASE  was  submitted  without  argument, 
consisting  of  the  following  facts:  A 
declaration  was  served  on  the  tenant  in  posses- 
sion, who  shortly  afterwards  quitted,  and 
another  came  in;  then  some  person  acting  a* 
the  agent  of  plaintiff,  caused  a  second  declara- 
tion to  be  served  upon  the  new  tenant;  this 
being  done  without  the  knowledge  of  the 
plaintiff's  attorney,  he  proceeded  under  the 
first  declaration,  and  took  judgment  against 
the  casual  ejector.  And  now 

Mr.  Gephart,  for  the  second  tenant,  moved 
to  set  aside  the  judgment  and  all  subsequent 
proceedings. 

Per  Curiam.  By  the  service  of  a  new  decla- 
ration by  plaintiff's  agent,  though  without 
knowledge  of  his  attorney,  the  first  declaration 
and  service  was  waived.  The  plaintiff  may  at 
any  time  stay  or  waive  his  own  proceedings, 
and  his  acts  shall  bind  him. 

Let  the  proceedings  in  the  first  suit  be  set  aside, 
and  the  lessor  of  the  plaintiff  pay  the  costs  of  this 
application. 


BYRON  ET  AL.  ads.  LEFFERTS. 

Service — Defective  Declaration — Oyer  de  novo. 

THE  declaration  with  oyer  was  served.on  de- 
fendant's attorney,  and  afterwards,  having 
been  discovered  to  be  incorrect,  was  amended 
and  served  de  novo,  without  a  new  oyer,  the 
COL.  AND  CAINES. 


1800 


GRAHAM  ADS.  STOREY. 


112 


one  delivered  being  correct;    the  defendant's 
attorney    refused    to  receive  this  declaration 
without  a  new  oyer,   on  which  plaintiff  pro- 
ceeded and  entered  a  default.     And  now 
113*]     *Mr.    T.    L.    Ogden,  for  defendant, 
moved  to  set  the  default  aside. 
Mr.  Hopkins,  contra. 

Per  Curiam.  The  service  of  oyer  de  novo 
was  altogether  unnecessary.  The  defendant 
must  take  nothing  by  his  motion. 


GRAHAM  ads.  STOREY. 

Service — Declaration  put  in  Clerk's  Office — Ap- 
pearance within  twenty  days — Service  de  novo. 

IN  this  case,  no  attorney  having  been  retained 
for  the  defendant,  the  declaration  was 
served  by  being  put  up  in  the  clerk's  office;  on 
the  19th  day  afterwards,  the  plaintiff's  attorney 
received  a  notice  of  retainer,  but  having  served 
the  declaration  in  the  above  manner,  he  did  not 
consider  himself  bound  to  serve  it  de  novo,  and 
no  plea  having  been  put  in,  he  entered  judg- 
ment for  default  in  pleading.  And  now 

Mr.  Hopkins,  for  defendant,  moved  to  set  it 
aside,  insisting  that  by  the  rules  he  had  a  right 
to  a  service  of  the  declaration  on  himself  de 
novo,  after  notice  given  of  his  retainer. 

Mr.  Bleecker,  contra,  objected,  because  it 
would  be  to  allow  a  defendant  to  take  advan- 
tage of  his  own  negligence,  and  thereby  obtain 
double  the  time  usually  allowed  to  plead. 

Per  Curiam.  If  a  declaration  is  served  by 
being  put  up  in  the  clerk's  office,  and  an  attor- 
ney for  defendant  appears  at  any  time  within 
the  20  days,  he  is  entitled  to  service  de  novo. 

Motion  granted. 


PECK  ads.  PHILLIPS. 

Costs —  Writ  of  Right — Right  to  Nonsuit — Stipu- 
lation/or Trial. 

"DADCLIFT,  for  the  tenant,  in  a  writ  of 
.IX  right,  moved  that  the  demandant,  having 
noticed  the  cause  for  the  last  circuit,  and  hav- 
ing omitted  to  bring  it  on,  stipulate  to  try  at 
the  next  circuit,  or  that  judgment  of  nonsuit 
be  entered  for  not  trying  it  at  the  last,  and  also 
that  the  demandant,  in  the  event  of  his  stipu- 
lating, pay  costs  of  the  last  circuit  and  of  this 
motion,  as  the  continuance  is  matter  of  indul- 
gence to  him.  (2  Cromp.,  Pr.,  468,  469;  2  Bl. 
Rep.,  1110.) 

Mr.  Harrison  agreed  to  stipulate,  but  opposed 
the  application  for  costs,  on  the  ground  that  no 
costs  are  recoverable  by  law  in  real  actions. 

Per  Curiam.  The  allowance  of  costs  in  this 
case  does  not  depend  on  any  statute,  but  upon 
the  rules  and  practice  of  the  court  merely.  It  is, 
1 14*]  of  course,  *discretionary.  As  the  tenant 
is  strictly  entitled  to  judgment  as  in  cases  of  non- 
suit, and  the  demandant,  to  avoid  it,  applies 
for  the  benefit  of  another  rule  of  court,  by 
offering  to  stipulate  to  try  his  action  at  the  next 
circuit,  we  think  we  ought  to  impose  on  him 
the  terms  of  paying  the  costs  already  accrued, 
for  not  proceeding  to  trial  according  to  his 
COL.  AND  CAINES. 


notice.  We  ought  not  to  grant  him  a  favor  by 
allowing  him  to  make  this  stipulation,  and 
thereby  escape  the  consequence  of  his  default, 
without  requiring  him  to  re-instate  the  opposite 
party,  and  place  him  in  the  condition  he  was, 
by  paying  costs. 

Motion  granted. 


IN  THE  MATTER  OF  JOSEPH   WILLIAMS, 
an  insolvent  debtor. 

Insolvent  Debtor — Application  for  Discharge — 
Notice — Non-resident  Creditor — Amount  of 
Execution — Real  Property  not  designated. 

AN  application  was  made  in  behalf  of  the  in- 
solvent, that  he  be  brought  up  to  obtain 
his  discharge  under  the  ' '  Act  for  the  relief  of 
debtors,   with  respect  to  the  imprisonment  of 
their  persons." 

Mr.  Schoonhoven,  for  the  creditors,  raised  three 
objections:  1st.  That  notice  was  not  served  oix 
one  particular  creditor  who  resides  in  Massa- 
chusetts, nor  was  there  any  affidavit  that  he. 
could  not  be  found.  2d.  The  sum  he  is; 
charged  with  on  execution,  is  not  mentioned  in 
the  petition.  3d.  The  inventory  purports  by 
its  caption  to  be  an  inventory  of  real  and  of 
personal  estate,  but  no  real  estate  is  afterwards, 
mentioned. 

*Per  Curiam.  All  the  objections  are  [*1 15^ 
trivial.  A  person  out  of  the  State  is  to  be  con- 
sidered as  to  the  purpose  of  a  service  under 
this  act.  as  not  to  be  found. 

Assignment  ordered. 


OCTOBER  TERM.  1800. 


GROVE  ads.  CAMPBELL,  assignee  of  THE 
SHERIFF. 

1.  Costs — Stay  of  Proceedings — Settlement  with 
Opposite  Party.  2.  Motion — Reading  Supple- 
mentary Affidavits. 

DTEN  BROECK  moved  to  set  aside  the 
.  proceedings  on  the  bail-bond,  on  the 
ground  that  the  plaintiff  had  settled  with 
the  defendant  in  the  original  cause  before 
the  commencement  of  this  suit,  and  had  directed 
the  attorney  to  stay  proceedings,  but  who,  not- 
withstanding, proceeded. 

Mr.  Emoti  produced  counter  affidavits,  which 
were  objected  to  because  the  defendant  had 
not  been  made  acquainted  with  their  contents 
previous  to  their  being  read  in  court,  but  the 
objection  was  overruled.  It  appeared  from 
them  that  the  original  cause  was  commenced 
in  July  vacation,  1797,  that  in  November  an 
accommodation  was  made  between  the  parties, 
and  the  plaintiff  then  directed  the  proceedings 
to  be  stayed  on  payment  of  costs.  The  costs 
remaining  unpaid,  a  suit  was  instituted  on  the 
bail-bond  in  April  vacation,  *1799,  and  [*!!(> 
the  defendant  put  in  a  plea  of  nonestfactum  in 
the  October  vacation  following. 

On  this  statement  it  was  now  contended  that 

99 


116 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


the  proceedings  were  regular,  as  the  attorney 
had  no  other  way  of  enforcing  the  payment  of 
the  costs,  and  that  even  if  it  were  otherwise, 
the  defendant  was  too  late  to  ask  relief  in  this 
way  after  plea  pleaded,  and  the  subsequent 
delay. 

Mr.  Ten  Broeck,  in  reply,  offered  counter  sup- 
plementary affidavits,  but  the  court  would  not 
suffer  them  to  be  read,  observing  that  a  party 
can  never  support  his  motion  by,  any  affidavits 
but  those  on  which  he  originally  grounds  it. 

The  court  having  taken  time  to  advise,  held 
that  the  defendant  should  take  nothing 
by  his  motion.  They  said  that  the  attorney 
had  no  other  way  of  compelling  the  payment 
of  his  costs;  and  besides,  that  the  defendant 
had  suffered  such  a  length  of  time  to  elapse, 
that  they  would  not  now  relieve  if  there  had 
been  originally  just  grounds  for  their  inter- 
ference. 


VISCHER  ET  AL.  ads.  VAN  ALEN. 

Ejectment  —  Default  against  Tenant  —  Consent 
Rules  entered. 

D'TEN  BROECK    moved    to  set  aside  a 
.    default  entered  against  the  tenant  for  not 
pleading. 

Per  Curiam.  In  this  case  it  appears  that  the 
consent  rules  were  entered  into,  a  new  declara- 
117*]  tion  *delivered,  but  no  plea  filed,  and 
thereupon  judgment  was  entered  by  default 
against  the  tenant. 

Although  at  the  time  of  signing  the  rule  the 
plea  ought  to  have  been  put  in,  yet  the  enter- 
ing the  default  in  this  manner  was  improper. 
It  should  have  been  against  the  casual  ejector, 
according  to  the  terms  of  the  consent  rule. 
There  can  be  no  judgment  by  default  against 
the  tenant. 

Let  the  defendant  take  the  effect  of  his  motion. 


IN  THE  MATTER  OP  GEORGE  CASCADIER, 
an  insolvent  debtor. 

Insolvent  Debtor — Rule  on  Trustees  to  Report. 

A  N  application  was  made  in  behalf  of  the 
t\.  debtor,  that  the  trustees  be  laid  under  a 
rule  to  report  within  eight  days. 

Per  Curiam.  The  debtor  as  well  as  his 
creditors  has  an  interest  in  the  account  to  be 
rendered  by  his  trustees,  and  is  equally  entitled 
with  them  to  demand  it. 

It  is  therefore  ordered  that  they  account  within 
eight  days  after  service  of  a  copy  of  this  rule. 


LANSING,    who   is   impleaded   with    DOE, 
ads.  GORHAM. 

Bail— Default-  Time  to  Plead — Enlarging  Rule. 

FOOT  moved  to  set  aside  the  default  and  to 
be  let  in  to  defend,  upon  an  affidavit  of 
118*]  merits,  and  that  *the  omission  to  plead 
was  occasioned  by  urgent  business.  He  stated 
that  it  was  a  case  of  bail,  and  therefore  is  to  be 
100 


considered  as  one  which  comes  recommended 
to  the  grace  of  the  court. 

Mr.  Lush,  contra,  and  read  counter  affidavits 
as  to  merits. 

Per  Curium.  If  a  party  wants  more  time  to 
plead,  he  must  apply  to  a  judge  at  his  cham- 
bers to  enlarge  the  rule.  This  is  stated 
to  be  an  application  in  favor  of  bail,  but 
it  should  be  remembered  that  the  cases  of  bail 
to  which  the  court  are  particularly  indulgent, 
are  where  bail  wants  time  to  surrender  the 
principal,  but -here  he  comes  to  defend  the  suit, 
and  therefore  stands  in  the  same  situation  with 
any  other  defendant. 

Motion  denied. 


THE  PEOPLE,  at  the  relation  of  JANSEN  ET 
AL.,  Admrs.  of  JANSEN, 

v. 
THE  JUDGES  OF  ULSTER. 

Mandamus — Writ  of  Error — Costs — Executors 
and  Administrators. 

p  ARDINER  moved  for  a  mandamus  to  the 
vT  Judges  of  the  Common  Pleas  of  the 
County  of  Ulster  to  compel  them  to  give  costs 
for  plaintiff,  a  recovery  having  been  had  be- 
fore them  for  the  plaintiffs  for  a  sum  less  than 
£10. 

It  was  now  contended  that  it  has  been  settled 
that  executors  or  administrators  cannot  sue  in 
a  justice's  court,  it  must  follow  that  they  shall 
have  costs  *in  the  court  to  which  they  [*1 1O 
are  compelled  to  resort,  and  therefore  that 
the  only  question  now  left  to  be  considered  was 
whether  a  mandamus  was  the  proper  remedy 
in  this  case,  or  whether  it  should  be  error, 
as  the  court  seemed  to  intimate  at  last  term. 

Error,  it  was  said,  would  only  lie  to  reverse  a 
judgment,  and  not  to  compel  the  rendition 
of  a  judgment.  He  cited  to  this  point,  3 
Bac.  Abr.,  535  ;  1  Str.,  698  ;  Cowp.,  378.  That 
this  was  a  proper  case  for  a  mandamus,  he 
cited  1  Burr.  5(58  ;  3  Bl.  Com.,  110  ;  1  St.,  530  ; 
and  11  Co.,  Medcalf's  case. 

Cur.  ad.  vult. 

Per  Curiam.  After  looking  over  all  the  au- 
thorities, we  are  of  opinion  that  a  writ  of  error 
will  well  lie  here,  and  therefore  refuse  this  ap- 
plication for  a  mandamus."* 

Motion  denied, 


VAN  PATTEN  v.  OUDERKIRK. 
Certiorari — Return  of  Testimony — Other  Return. 

ON  certiorari.  Emott,  in  behalf  of  the  justice, 
moved  to  quash  the  writ,  because  it  re- 
quired him,  among  other  things,  to  return  the 
testimony.  It  was  admitted  that  no  notice  had 
been  given  the  opposite  party,  but  it  was  con- 
tended that  none  was  necessary. 

Per  Curiam.  This  writ  is  the  right  of  the 
party  who  takes  it  out,  and  the  justice  is  bound 
to  obey  it  *at  his  peril.  He  is  not,  [*12O 
however,  bound  to  return  anything  but  what  we 
can  legally  require  of  him,  notwithstanding  the 
command  expressed  in  the  writ.  In  this  case 
.  Coi .  AND  CAINES. 


1800 


GlLLESPIE   ADS.    PFISTER   AND  M'COMB. 


120 


he  ought  to  return  all  but  the  testimony,  and 
to  take  no  notice  of  that  part  of  the  precept 
which  enjoins  him  to  return  that. 

Motion  denied. 

8.  C.,  2  Johns.  Cos.,  108. 

Cited  in  25  Wend.,  169 ;  5  Hill.,  2t>8. 


GILLESPIE 

ads. 
PFISTER  AND  M'COMB. 

1.  Security  of  Costs — One  Plaintiff  absent  from 
the  State  and  the  other  Insolvent.  2.  Idem — 
Assignment  of  Cause  of  Action. 

DENDLETON  moved  that  the  plaintiffs  file 
JL  security  for  costs  before  they  be  allowed 
to  proceed  in  the  suit,  on  affidavit  that  one  of 
the  plaintiffs  had  removed  to  New  Jersey  since 
the  commencement  of  the  suit,  and  that  the 
other  was  confined  in  jail  for  debt ;  and  fur- 
ther, that  the  defendant  was  informed  and  be- 
lieved that  the  cause  of  action  was  assigned. 

He  insisted  that  the  insolvency  of  a  plaintiff 
was  the  same  thing  as  it  respected  the  defend- 
ant's remedy  for  his  costs  as  living  without  the 
reach  of  the  process  of  the  court,  and  that  the 
assignment  leaving  him  only  the  trustee  for  the 
benefit  of  a  stranger,  it  was  reasonable  that  se- 
curity should  be  filed. 

Mr.  B.  Livingston,  contra. 

Per  Curiam.  It  is  sufficient  that  one  of  the 
defendants  resides  within  the  reach  of  the  pro- 
121*]  cess  of  the  *court,  and  we  can  take  no 
notice  whether  he  is  insolvent  or  not.  And  as 
to  the  assignment,  the  defendant  has  nothing 
to  do  with  it. 

Motion  dented. 


ANDREWS  v.  ANDREWS. 

Contempt —  Witness — Attachment — Tender  of  In- 
sufficient sum  for  Expenses — No  Objection. 

DTEN  BROECK  moved  for  an  attachment 
.  absolute  against  a  witness,  on  affidavit 
that  he  was  regularly  summoned  and  money 
tendered  him  for  his  expenses,  which  he  did 
not  object  to  for  its  insufficiency,  but  positively 
refused  to  attend.  He  cited  1  Black.,  49  ;  2 
Str.,  1150. 

Per  Curiam.  Here  is  a  strong  case  of  palpa- 
ble '  contempt,  and  therefore  the  court  will 
award  an  attachment  in  the  first  instance.  The 
sum  of  money  tendered  may,  or  may  not  have 
been  adequate,  but  as  the  witness  did  not  ob- 
ject to  it  at  the  time,  it  is  to  be  considered  suf- 
ficient. 


NOTE.— A  witness  may  dispense  with  the  legal 
f o  *tn  of  serving  a  subpoena,  and  under  such  service 
be  b  "ubject  to  attachment.  1  Yeates,  303. 

COL.    « 


WOODWARD  ads.   QUACKENBOS. 

Ejectment — Default  of  Casual  Elector — Rule  on 
Tenant  to  Plead. 

IT  appeared  that  the  plaintiff's  attorney,  at 
the  time  of  delivering  a  new  declaration, 
after  the  consent  rules  were  exchanged,  noi 
having  received  a  plea,  entered  a  rule  in  the 
cause  against  the  tenant  to  plead  in  twenty 
days ;  which  not  being  done,  he  proceeded  to 
enter  a  default  against  the  casual  ejector. 

Mr.  Emott  now  moved  to  set  aside  this  default 
for  irregularity.  He  contended,  that  until  the 
tenant  had  complied  with  all  the  requisites  of 
the  consent  rule,  he  *could  not  be  con-  [*122 
sidered  as  being  so  in  court  as  that  he  could  be 
known  as  a  party  to  the  suit,  and  that  there- 
fore no  rule  could  be  taken  against  him. 

Mr.  Quackenbos  said  he  had  proceeded  as  had 
always  been  the  practice,  at  least  at  Albany  and 
in  the  northern  part  ofthe  State. 

Per  Curiam.  The  entry  of  the  default 
in  this  manner  was  certainly  irregular. 
No  rule  could  be  entered  against  the  causal 
ejector  in  a  cause  entitled  against  the  tenant. 
The  signing  the  consent  rule,  delivering  a  new 
declaration,  putting  in  common  bail,  and  filing 
a  plea,  are  all  simultaneous  acts ;  should  the 
tenant,  therefore,  neglect  to  file  his  plea  in- 
stanter,  he  is  to  be  considered  as  not  appearing 
in  the  suit,  and  then  default  is  to  be  entered 
against  thie  causal  ejector.  But  the  default 
against  the  causal  ejector  is  taken  under  the 
first  rule  at  the  return  of  the  writ,  and  not  ir 
consequence  of  any  new  rule. 

Default  set  oxide. 


SLOSSON  ads.  WHEATON. 

Change  of  Venue — Assumpsit — Locus  of  Cause 
of  Action — General  Affidavit. 

DTEN    BROECK  moved  to  change  the 
.  venue,  on  affidavit  that  the  caiise  of  action 
arose  out  of  the  county. 

Mr.  Emott  opposed  the  motion,  on  the  ground 
that  this  being  an  action  for  money  had  and 
received,  a  general  affidavit  was  not  sufficient.  • 

Per  Curiam.  It  has  already  been  decided 
that  an  assumpsit,  where  the  count  is  general, 
the  court  *will  never  change  the  venue  [*123 
on  a  general  affidavit.  To  entitle  the  defendant 
prevail  in  his  motion,  the  affidavit  must  be 
special  ;  that  is,  it  must  state  that  the  defend- 
ant has  reason  to  believe  that  special  matter  is 
intended  to  be  given  in  evidence,  enumerate 
the  particulars,  and  declare  that  it  arose  in  the 
county  to  which  he  would  remove  the  cause, 
and  not  elsewhere. 

Motion  denied. 


KNAPP,  Executor,  v.  MEAD. 

Notice  of  Trial — Motion. 

rpHIS  being  the  day  assigned  for  the  trial  ot 
-L    the  record  on  which  this  suit  was  brougT^ 

Wl 


123 

•  Mr.  Beers  now  moved  to  bring  it  on,  but  it  was 
objected  for  defendant  that  there  ought  to  have 
been  a  regular  notice  of  trial  of  seven  days,  as 
in  other  cases,  which  had  not  been  given. 

The  court  took  time  to  consider  how  the 
practice  ought  to  be  settled. 

Per  Ouriam.  The  trial  by  record  must  here- 
after always  come  on  by  a  motion  of  four  days, 
instead  of  the  old  practice  of  assigning  a  time, 
which  the  present  rules  render  useless. 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


124*]       *SWIFT  ads.  SACKET. 

LIVINGSTON  ads.  THE  SAME. 

1.  Writ  of  Right— Nonsuit— Default  of  Demand- 
ant. 2.  Idem — Entry  of  Attorney's  Name — 
Misprision  of  Clerk. 

Citations— Garth.,  173 ;  Co.  Litt.,  139,  b. 
pMOTT,  for  the  tenant,  moved  on  the  first 
Jj     day  of  term  that  the  demandants  be  called, 
and  that  for  nonappearance  their  defaults  be 
entered. 

And  now,  it  being  the  quarto  die  post, 
he  again  moved  that  the  demandant  be 
called  to  appear  and  excuse  his  default,  or  that 
he  be  nonsuited.  To  shew  that  this  was  the 
correct  practice,  he  cited  7  Viner  Abr. ,  436  and 
437  ;  D.  9,  10. 

Mr.  Scott  appeared  for  demandants,  and 
without  attempting  to  show  any  sufficient  ex- 
cuse, read  an  affidavit  that  Mr.  Thompson  was 
the  attorney  of  record  for  the  tenant;  whereas 
it  appeared  from  the  clerk's  minutes  that  the 
motion  had  been  made  on  the  first  day  by  Mr. 
Emott  in  behalf  of  Mr.  Radclift,  who,  he  con- 
tended, was  a  stranger  to  the  suit,  and  could 
take  no  rule  in  it. 

Mr.  Emott  said,  in  reply,  that  the  motion  was 
really  made  in  the  name  of  Mr.  Thompson,  but 
that  the  mistake  was  in  the  entry  made  by  the 
clerfc  on  the  minutes,  and  must  be  considered 
as  his  misprision,  and  so  could  not  injure. 

Per  Curiam.  It  is  settled  in  Oarthew,  173 
(Cloberyv.  The  Bishop  of  Exon),  that  the  tenant, 
in  a  writ  of  right,  is  only  demandable  on  the 
t/uarto  die  post ;  but  that  the  demandant  is  liable 
125*]  to  be  called  on  the  *primo  die  placiti,  and 
for  nouappearance  that  his  default  may  be  en- 
tered, which,  if  he  does  not  appear  and  excuse 
on  the  quarto  die  po*t,  subjects  him  to  a  non- 
suit. (Co.  Litt.,  139,  b.)  At  common  law,  on 
every  continuance  or  day  given  at  or  before 
judgment,  the  plaintiff  or  demandant  might 
have  been  nonsuited,  and  before  the  Stat.  of  2 
Henry  IV.  after  verdict,  if  the  court  gave  a  day 
to  be  advised,  at  that  day  the  plaintiff 
was  demandable,  and  therefore  might  have 
been  nonsuited  if  he  did  not  then  appear  ;  but 
that  is  remedied  by  our  Statute.  After  award 
to  answer,  however,  or  demurrer  in  law  joined, 
plaintiff  for  not  appearing  shall  still  be  non- 
suit, for  he  is  not  helped  by  the  Statute.  As  to 
the  misentry  of  the  name,  it  is  to  be  considered 
as  the  clerk's  misprision  and  may  be  amended. 

Judgment  of  nonsuit. 
102 


EDWARDS  ad*.  M'KINSTRY. 


Default— Motion  to  Plead  on  Affidavit  of  Merita 
only. 

ON  a  motion  to  set  aside  a  default,  and  that 
the  defendant  have  leave  to  plead,  on  the 
sole  ground  that  he  has  merits, -the  plaintiff  not 
having  lost  a  trial,  the  court  said  : 

When  a  party  swears  to  merits,  the  court  will 
strongly  incline  to  let  him  in,  but  he  must  be 
able  to  suggest  some  excuse  for  not  having 
pleaded  ;  such,  perhaps,  as  accident  or  inad- 
vertence. Here  the  defendant  does  not  attempt 
to  give  any  reason  at  all,  and  therefore  he  must 
take  nothing  by  his  motion. 


*LARROWAY  ads.  LEWIS  ET  AL.  [*126 
THE  SAME  ads.  VAN  LOON  ET  AL. 

Attachment— Costs   of    Continuance — Notice  of 
Taxation — On  Council  only. 

1  Salk.,  83,  not  approved. 

VAN  VECHTEN  moved  to  set  aside  the  at- 
tachments which  in  these  two  cases  had 
been  granted  for  costs  of  putting  off  the  trials, 
and  that  there  be  a  retaxation. 

He  contended  that  attachments  are  ordinarily 
granted  on  rules  to  show  cause,  and  are  never 
made  absolute  in  the  first  instance,  but  in  very 
flagrant  cases  ;  and  that  if  the  party  answer  he 
shall  be  discharged  from  the  attachment ;  and 
cited  1  Bac.  Abr.,  183,  B;  2  Hawk.  Plea.  Cr., 
214.  He  further  insisted  that  there  must  be  a 
demand  made  of  the  costs  after  the  bill  has 
been  regularly  taxed,  and  at  the  time  of  serving 
the  rule  to  show  cause,  before  the  part}'  can  be 
considered  as  in  contempt.  He  cited  1  Barnes, 
120;  1  Lilly's  Abr.,  162.  Besides  he  insisted 
that  according  to  1  Salkeld,  83,  no  attachment 
will  lie  at  all  for  the  costs  of  putting  off  a  trial. 

Mr.  C.  Elmendolph,  in  reply,  contended  that 
in  England  the  attachment  is  always  absolute  in 
the  first  instance.  He  cited  Tidd's  Pr.,  364; 
Runnington  on  Ejectment,  142  ;  1  Sellon,  415. 

Per  Curiam.  Whenever  a  cause  goes  off  on 
motion  of  the  defendant  upon  payment  of 
costs,  the  plaintiff  has  his  election,  either  to 
wait  the  event  of  the  suit,  and  have  all  his  costs 
taxed  together,  or  he  *may  make  them  [*~L27 
out  instanter  under  the  direction  of  the  court  (sub- 
ject, however,  to  be  reviewed  on  a  future  tax- 
ation if  required),  and  demand  them  immedi- 
ately, and  if  not  paid  he  may  proceed  with  the 
trial  ;  or  he  may  waive  this  privilege  and  resort 
to  his  attachment,  but  if  he  does  so,  he 
must  first  have  his  costs  regularly  taxed  on 
a  proper  notice  as  in  other  cases,  and  that  no- 
tice must  be  served  on  the  attorney  in  the  suit, 
and  not  on  the  counsel,  as  it  has  irregularly 
been  in  this  instance.  Had  he  done  this  he 
would  have  been  entitled  to  his  attachment  in- 
stantly, without  a  previous  notice. 

The  notice  in  this  case  having  been  served  on 
counsel,  and  the  taxation  having  been  made 
the  same  dav  notice  was  given,  the  taxation  and 
and  all  proceedings  founded  on  it  were  irreg- 
ular. 

COL.  AND  CAINEP. 


1800 


SEELY  v.  SHATTUCK. 


127 


As  to  the  case  mentioned  from  Salkeld,  it  is 
anonymous  and  stands  alone ;  we  lay  no 
•weight  upon  it. 

Let  the  attachment  be  set  aside  with  costs. 


SEELY  t>.  SHATTUGK. 

Mule  to  Join  in  Error  on  Hearing  ex-parte — Next 
Term  passed. 

ON  certwrari.     Notice  of  the  rule  for  the  de- 
fendant to  join  in  error  in  eight  days,  or 
that  the  plaintiff  would  be  heard  ex-parte,  had 
'been  served  in  April  vacation,  1798,  and  it  was 
DOW  moved  for  affirmance. 

Per  Ouriam'.  The  rule  is  gone  ;  the  plaintiff 
.should  have  applied  the  term  after  service  of 
128*]  the  rule.  *He  cannot  lie  by  in  this 
manner  and  revive  the  cause  at  any  distant 
period  he  may  choose. 

He  must  now  take  nothing  by  his  motion. 


HORNBECK  ads.  LOW. 

Making    Case  —  Enlarging    Rule  —  Making 
Amendments. 

PER  CURIAM.  The  two  days  allowed  by 
the  sixth  rule  of  January  Term,  1799,  for 
making  a  case,  cannot  be  enlarged  by  a  judge 
in  favor  of  the  party  making  the  case  ;  but  the 
time  which  may  be  enlarged  under  that  rule, 
is  that  allowed  for  proposing  amendments,  and 
that  for  notifying  an  appearance  before  the 
judge,  and  no  other. 


GIBBS  ads.  SCOTT. 

:1.  Change  of  Venue — Slander — Locus  of  Cause 
of  Action — Affidavit  of  Defendant — Plaintiff's 
Mission.  2.  Idem — Impartial  Trial  —  Suffi- 
ciency of  Plaintiff's  Affidavit. 

Citation— 3  Burr.,  1330, 1335 ;  1  Sellon's  Prac.,  269. 

THIS  was  a  motion  to  change  the  venue  in 
an  action  of  slander,  from  the  County  of 
Albany  to  Washington,  founded  on  the  affi- 
davit of  the  defendant's  attorney,  stating  that 
the  cause  of  action  arose  in  Washington  and 
not  elsewhere,  &c.,  as  the  plaintiff  had  informed 
him,  and  he  verily  believed  to  be  true. 

On  the  part  of  the  plaintiff  this  was  opposed 
by  a  counter  affidavit,  stating  that  "  according 
to  his  persuasion  and  belief,  he  could  not  have 
.an  impartial  trial  in  the  County  of  Washington 
by  reason  of  certain  local  prejudices." 

Per  Ouriam.  The  first  question  is,  whether 
the  affidavit  on  the  part  of  the  defendant  ought 
not  to  have  been  made  by  the  defendant  him- 
.self ,  according  to  the  established  practice.  As 
129*]  the  attorney  swears,  *however,  that  the 
plaintiff  confessed'  to  him  that  the  cause  of 
action  arose  in  Washington,  and  not  elsewhere, 
<fcc.,  this  may  be  deemed  sufficient;  especially 
AS  the  fact  is  not  denied  by  the  plaintiff.  AH 
COL.  AND  CAINES. 


to  the  counter  affidavit,  it  cannot  avail  to  retain 
the  venue,  inasmuch  as  the  defendant  only 
swears  to  "  his  persuasion  and  belief  that  he 
cannot  have  a  fair  trial,  by  reason  of  certain  -'' 
local  prejudices,  «fcc.  He  ought  to  have  stated 
the  reasons  and  ground  of  his  belief,  and  have 
laid  before  the  court  the  facts  and  circumstances 
on  which  it  depends,  that  they  might  judge  of 
its  probable  truth  and  force.  He  merely  states 
his  own  conclusions,  without  stating  also  tne' 
premises  on  which  his  belief  is  grounded. 
(Vide  3  Burr.,  1330,  1335;  1  Sellon  Prac., 
269.) 

Motion  granted. 


HOYT  AND  BENNETT  v.  CAMPBELL. 

1.  Argument — Term  passed  by  Plaintiff — Bight 
of  Defendant  to  Notice  Cause.  2.  Idem — 
Service  of  Notice — No  Agent  at  Albany. 

IN  error  on  certiorari.  The  cause  was  at  issue 
in  law  in  July  vacation,  1799,  but  the  plaint- 
iff's attorney  suffered  October  Term  to  pass 
without  having  noticed  it  for  argument. 

The  defendant's  attorney  then  served  a  notice 
to  argue  the  cause  in  January  Term.  Neither 
the  plaintiffs  or  their  attorney,  or  any  counsel 
for  them,  appearing  on  the  notice,  judgment  of 
affirmative  passed  against  them  as  of  course. 

The  plaintiff's  attorney  residing  in  New  York, 
and  not  having  an  agent  in  Albany,  the  service 
of  the  notice  was  by  affixing  it  in  the  clerk's 
office  there,  and  *it  did  not,  until  shortly  [*13O 
before  the  last  term,  come  to  his  knowledge, 
either  that  the  notice  had  been  served,  or  that 
judgment  of  affirmance  had  passed,  and  in  the 
meantime  the  plaintiffs,  on  being  informed  of 
the  judgment,  either  by  the  defendant  or  his 
attorney,  paid  the  costs  on  it,  and  also  settled 
as  to  the  demand  against  them  in  respect  to  the 
suit  in  the  court  below  before  the  j  ustice. 

On  these  facts,  the  plaintiffs  moved  in  the  last 
term  to  set  the  judgment  aside,  submitting  two 
questions  to  the  court :  first,  AVhether  the  de- 
fendant was  entitled  to  notice  the  cause  for 
argument;  and  if  the  opinion  of  the  court 
should  be  against  them  on  this  question.  Then, 
secondly,  Whether  under  the  circumstances  of 
the  case,  the  judgment  may  not  be  set  aside  in 
order  to  give  them  an  opportunity  to  avail 
themselves  in  this  court  of  their  causes  of  error, 
if  they  can  support  them. 

With  respect  to  the  first  question  it  is  to  be 
stated,  that  heretofore,  in  all  cases  where  there 
was  not  to  be  a  decision  by  the  court,  until 
there  had  been  previously  an  argument  be- 
tween the  parties,  being,  except  motions  to  set 
aside  proceedings,  the  same  with  our  present 
enumerated  motions  or  cases,  the  arguments 
were  in  writing,  and  if  either  party  delayed  for 
a  term  to  deliver  in  an  argument,  the  opposite 
party  took  a  rule  against  him  to  argue  by  the 
next  term  or  be  precluded,  and  on  his  default 
the  court  would  proceed  to  examine  and  decide 
the  cause  on  the  arguments  as  they  then  were, 
or  if  there  had  not  been  any  argument  deliv- 
ered in  by  the  party  in  default,  then  on  the  ea-- 
pfirte  argument  to  be  thereafter  preparep  and  de- 
livered  *in  by  the  party  who  had  taken  [*131 
I  he  rule  ;  as,  for  instance,  in  case  of  a  writ  of 
error,  if  after  the  parties  were  at  issue  in  law, 

108 


131 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


the  plaintiff  delayed,  then  the  defendant  would 
take  a  rule  against  him  ;  if  the  plaintiff  had  de- 
livered in  his  argument,  he  would  take  a  rule 
against  the  defendant  to  argue  in  answer  ;  if 
the  defendant  had  delivered  in  his  argument, 
lie  would  in  this  last  case  take  a  rule  against 
the  plaintiff  to  argue  in  reply,  and  on  the  de- 
fault of  the  respective  parties,  the  court  would, 
in  the  first  case  on  the  ex  parte  argument  of  the 
defendant,  and  without  any  argument  on  the 
part  of  the  plaintiff,  in  the  second  case  on  the 
argument  delivered  in  by  the  plaintiff,  and 
without  any  argument  on  the  part  of  the 
defendant,  and  in  the  third  case  on  the 
argument  delivered  in  by  the  plaintiff,  and  the 
argument  in  answer  delivered  in  by  the  de- 
fendant and  without  any  argument  in  reply  by 
the  plaintiff,  take  up  the  cause  for  examination 
and  decision;  but  the  practice  of  making  de- 
cisions or  adjudications  on  ex-parte  arguments 
or  hearings  being  now  wholly  done  away,  and 
the  substitute  for  it  being,  that  every  party  is 
apprised  that  from  his  default  to  appear  and 
argue,  or,  in  other  words,  to  suggest  generally 
at  least  the  principles  of  his  right,  he  will  be 
presumed  to  have  renounced  it,  and  so  to  have 
consented  to  what  is  claimed  against  him,  and 
and  that  judgment  will  thereupon  pass  for  the 
opposite  party  as  of  course,  the  law  will  there- 
fore, from  the  necessity  of  the  thing,  imply  that 
there  must  be  a  mean  for  a  party  whereby  he 
may  still  have  it  in  his  power  to  prevent  his 
opponent  from  delaying  on  his  part  to  bring 
the  cause  before  the  court  for  their  opinion, 
and  the  one  which  the  defendant  has  taken  in 
the  present  instance,  of  proceeding  by  a  notice 
132*]  of  a  motion,  in  the  nature  of  a  *rule  to 
set  the  cause  down  for  argument,  being  equally 
fit  and  advisable  with  any  other  to  be  adopted 
or  provided  as  a  substitute  for  the  former  prac- 
tice of  proceeding  by  the  rule  of  preclusion, 
and  the  plaintiffs,  the  party  entitled  in  the 
present  case  to  open  or  begin,  having  delayed 
for  a  term  to  notice  the  cause  for  argument,  it 
must  be  adjudged  regular  in  the  defendant  for 
him  then  to  notice  it. 

The  plaintiff's  motion,  however,  as  far  as  it 
rests  on  an  irregularity  in  the  defendant,  con- 
sisting in  a  supposed  want  of  right  in  him  to 
notice  the  cause  for  argument,  may  be  decided 
against  them  on  this  ground,  namely,  that  not- 
withstanding a  notice  may  be  irregular  or  de- 
fective, or  in  any  other  respect  improper,  yet 
if  there  has  been  a  due  service  of  it,  the  party 
on  whom  it  has  been  served,  must  appear  to 
oppose  the  motion,  otherwise,  as  has  been  al- 
ready stated,  his  consent  to  it,  or  a  renuncia- 
tion of  his  right  to  oppose  it,  will  be  presumed 
from  his  absence  or  silence  equally  as  if  the 
notice  had  been  perfect,  and  the  motion"  proper 
in  the  case ;  and  that  it  is  not  to  be  expected 
the  court  will,  without  the  appearance  and  sug- 
gestion of  the  party,  examine  farther  than  to 
be  satisfied  there  has  been  a  competent 
service  of  the  notice,  comprehending  as  well  the 
manner  as  the  time  of  service.  Indeed,  the  in- 
tent of  the  7th  rule  of  January  Term,  1799, 
was,  that  there  might  in  future  be  a  clear  un- 
derstanding on  the  whole  of  the  subject  to 
which  this  first  question  relates. 

With  respect  ts  the  second  question,  it  will 
suffice  to  observe,  that  althongh  there  was  a 
sufficient  service  of  the  notice,  yet  it  did  not 
104 


come  to  the  knowledge  *of  the  plaintiff 's  [*133 
attorney  until  after  the  defendant  had  obtained 
the  effect  of  it;  so  that  there  doubtless  will  have 
been  an  hardship  on  the  plaintiffs,  if  the  sub- 
stantial justice  or  real  merits  of  the  case  is  wiih 
them,  and  if  there  is  a  reasonable  excuse  for 
their  attorney  in  not  having  an  agent  in  Albany 
at  the  time,  but  as  these  matters  have  not  been 
shown  to  the  court,  they  cannot  interpose. 

The  plaintiffs,  therefore,  are  to  take  nothing  by 
their  motion,  and  to  pay  costs  to  the  defendant  in 
opposing  it.  B. 


PALMER  v.  SABIN. 

1.  Argument — Term  passed  by  Plaintiff — Right 
of  Defendant  to  Notice  Cause — Costs  not  paid. 

THE  like  facts  in  this  cause,  except  that  it- 
does  not  appear  that  the  plaintiff  has  set- 
tled with  the  defendant  for  the  demand  in  the 
Court  below,  and  the  costs  on  the  affirmance 
have  not  been  received  from  the  plaintiff,  "he 
being  unable  to  pay  them  ;  and  any  other  ex- 
pense or  trouble  about  the  suit  would  be  a  dead 
charge  against  the  defendant; "  this  fact, 
however,  not  making  any  material  differ- 
ence, the  same  judgment  therefore  in  this 
cause.  B. 


BROOKS  v.  PATTERSON. 

Attorney  at  law — Privil-ege  —  Abandonment  of 
Profemon. 

THE  defendant  pleaded  in  abatement  his 
privilege  as  an  attorney  of  the  court;  the 
plaintiff  replied,  "  That  on  the  day  of  exhibit- 
ing the  bill  and  for  a  long  time  before,  to  wit, 
for  the  space  of  one  whole  year,  the  defendant 
had  entirely  ceased  to  practice  as  an  attorney 
of  this  court,  and  had  wholly  abandoned  the 
profession,  business,  practice  and  calling 
*of  an  attorney  of  this  court,"  &c.,  [*134 
demurrer  and  joinder  in  demurrer. 

The  court  held  the  replication  sufficient  to> 
oust  the  defendant. 


NEWKIRK  ET  ux.  v.  FOX. 

Stay  of  Proceedings — Neglect  to  Prepare  Case — 
Absence  of  Judge. 

VAN   VECHTEN    moved   to   discharge   a 
judge's  certificate  staying  proceedings,  be- 
cause the  defendant  had  neglected  to  prepare 
his  case  within  the  two  days  allowed. 

It  was  said,  in  answer,  that  the  reason  was 
because  the  judge  left  the  place  where  the  cir- 
cuit was  held  so  soon  after  an  application  to 
him  that  it  was  not  possible  to  have  the  case 
completed. 

Per  Curiam.  As  no  reason  has  been, 
assigned  for  the  subsequent  omission,  the  de- 
fendant appears  before  the  court  without  as. 
sufficient  excuse. 

Motion  granted. 

COL.  AND  CAINES. 


.800 


SHARP  v.  DUSENBURY. 


134 


SHARP  t>.  DUSENBURY. 

Inquest — Before  Sheriff  by  Consent — Rulings  on 
Evidence, 

PW.  YATES  moved  to  set  aside  interlocu- 
.     tory  judgment,  because  the  sheriff  before 
whom  the  inquisition  was  taken  had  admitted 
improper  and  rejected  proper  evidence. 

Mr.  Emott,  on  the  other  side,  read  an  affidavit 
that  it  had  been  agreed  between  the  parties  that 
any  evidence  might  be  given  before  the  sheriff 
135*]  which  could  *be  given  on  a  trial  or  could 
have  been  pleaded.  And  he  now  contended  that 
such  agreement  ought  to  preclude  either  party 
from  making  objections  to  the  conduct  of  the 
sheriff,  provided  no  corrupt  intention  was  to  be 
imputed  to  him. 

Per  Curiam.  When  parties  agree  to  submit 
&  controversy  to  the  decision  of  the  sheriff,  the 
inquest  is  to  be  considered  as  in  nature  of  an 
arbitration,  and  therefore  the  court  will  never 
set  aside  the  inquisition  merely  because  the 
sheriff  admits  improper  or  rejects  proper  evi- 
dence. 

Motion  denied. 


BEEBE  ads.  PADDOCK. 

Notice  to  Attorney's   Clerk —  Where  Served. 

A  QUESTION  arose  as  to  the  regularity  of  a 
service  of  a  notice,  which  appeared  from 
affidavit  to  have  been  made  on  the  clerk  of  the 
attorney;  the  court  decided,  that  as  it  did  not 
al-*o  appear  that  the  notice  was  served  on  the 
clerk  while  he  was  in  the  office,  it  was  there- 
fore insufficient. 


THE  PEOPLE,  at  the  relation  of  ALLAIRE, 

v. 
THE  JUDGES  OF  WESTCHESTER. 

Mandamus —  Contempt. 

ON  affidavit  that  a  bill  of  exceptions  had  been 
regularly  tendered  to  the  judges  of  the 
Court  of  Common  Pleas  of  the  County  of 
Westchester,  who  had  refused  to  complete  the 
same,  a  motion  was  now  made  for  a  mandamus 
to  compel  them  to  affix  their  seal  to  the  bill  of 
exceptions,  or  show  cause. 
136*J  *Mr.  Munro,  for  cause,  read  a  counter 
affidavit,  stating  that  the  bill  of  exceptions 
varied  materially  from  the  truth  of  the  case. 

Per 'Curiam.  If  a  court  of  common  pleas 
refuses,  without  sufficient  grounds,  to  annex 
their  seal  to  a  bill  of  exceptions,  it  is  a  con- 
tempt for  which  this  court  will  award  com- 
pulsory process.  But  it  appears  here  from  the 
aiBdavit  on  the  part  of  defendants,  that  the  bill 
of  exceptions  which  was  tendered  was  un- 
true, and  as  the  party  making  the  applica- 
tion has  not  denied  the  correctness  of  the  state- 
ment, he  must  be  considered  as  having  con- 
sented to  it.  This  undoubtedly  was  sufficient 
cause  for  refusal. 

Motwn  denied  with  costs  to  the  judges  for  op- 
posing it. 

COL.  AND  CAINES. 


JENKINS  v.  KINSLEY. 

Trial — On  Record — Authentication  of  Record  of 
Federal  Court  in  Another  State. 

ON  a  trial  by  record  of  an  action  brought 
upon  a  judgment  rendered  in  the  Circuit 
Court  of  the  United  States  for  the  Common- 
wealth of  Massachusetts,  office    copies  were 
offered  in  evidence. 

Mr.  Williams,  for  the  defendant,  objected  that 
there  ought  either  to  be  an  exemplification  of 
the  record;  or  that,  the  action  being  brought 
in  a  court  of  this  State, upon  a  record  of  a  judg- 
ment rendered  in  a  circuit  court  in  Massachu- 
setts, the  record  ought,  agreeably  to  the  act  of 
Congress,  to  have  the  attestation  of  the  clerk 
and  the  seal  of  the  court  annexed,  if  there  be  » 
seal,  together  with  a  certificate  of  the  judge, 
chief  justice,  *or  presiding  magistrate,  [*137 
that  the  attestation  is  in  due  form. 

Per  Curiam.  This  being  a  record  of  a  court 
of  the  United  States,  and  not  of  a  State  court, 
and  so  not  within  the  act  of  Congress  prescrib- 
ing the  mode  in  which  the  records  and  judicial 
proceedings  of  the  courts  of  any  State  shall  be 
authenticated,  it  remains  with  the  court  to  de- 
cide upon  the  sufficiency  of  the  evidence 
in  their  discretion.  The  mode  of  certifying 
a  record  observed  in  the  present  instance, 
being  the  ordinary  method  in  the  Common- 
wealth of  Massachusetts,  instead  of  the  technic- 
al exemplification,  the  court  are  of  opinion  it 
is  sufficient. 


WARDELL  «.  EDEN. 

Satisfaction  of  Judgment —  Vacating  Fraudulent 
Entry. 

A  BOND  had  been  executed  by  Eden  to  War- 
dell  conditioned  for  the  payment  of  $50- 
000,  which  on  the  17th  of  July  last  was  as-- 
signed for  a  valuable  consideration  to  Nathan- 
iel Olcott,  and  by  him  on  the  1st  of  August  to- 
Solomon  Rowe,  and  by  him  on  the  7th  of 
October  to  the  Bank  of  New  York.  On  the' 
7th  day  of  October,  Olcott  became  a  bankrupt, 
and  on  the  next  day  Rowe.  died  insolvent.  The" 
bank  immediately  gave  notice  to  Eden  of  the" 
assignment  to  them,  and  forbid  his  paying  any 
part  of  the  bond  to  Wardell,  and  gave  a  notice" 
likewise  to  Wardell,  forbidding  him  to  receive 

anything  from  Eden.  On  the day  of  Oc' 

tober,  notwithstanding  the  notices  above,  Edefl 
paid  Wardell  a  small  sum  of  money,  $1,500, 
and  thereupon  Wardell  entered  *upon  [*138 
the  record  satisfaction  of  the  judgment.  It 
appeared  that  the  bond  was  originally  given 
both  for  money  due,  and  to  secure  such  further 
sums  as  Wardell  should  continue  to  advance. 

Mr.  Hamilton  and  Harrison,  on  the  statement 
of  the  above  facts,  now  moved  that  the  entry  of 
satisfaction  be  struck  out,  on  the  two  ground* 
of  irregularity  and  of  fraud. 

Mr.  B.  Livingston  raised  a  preliminary  ques- 
tion, whether  the  service  of  the  notice  of  the  pres- 
ent motion  had  been  regularly  made,  as  it  had 
only  been  given  to  Eden's  brother  who  hap- 
pened to  be  at  Eden's  house,  and  it  did  not  ap- 
pear that  it  had  ever  come  to  his  personal 
knowledge  ;  or,  secondly,  as  it  had  l)een  given 
to  Eden's  attorney,  by  leaving  it  with  his  (the 


138 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


attorney's)  brother,  who  happened  to  be  alone 
in  the  office. 

Per  Curiam.  Both  services  cannot  be  good  ; 
wherever  there  is  an  attorney  retained,  the 
service  must  be  on  him  ;  therefore  the  service 
on  Eden  himself  was  irregular,  but  the  service 
on  the  attorney's  brother  being  in  his  office, 
was  good.  Lansing,  Ch.  J.,  and  Lewis,  J., 
were  of  opinion  that  the  attorney  in  this  case 
being  constituted  only  an  attorney  to  confess 
judgment,  his  authority  expired  with  that  act, 
and  therefore  he  could  no  longer  be  considered 
as  attorney  in  the  suit,  but  they  both  agreed 
that  the  service  on  Eden  was  well  made. 

Mr.  B.  Livingston  then,  before  the  counsel  for 
the  bank  proceeded  in  the  argument,  read 
139*]  counter  *affidavits  contradicting  some 
of  the  principal  facts  contained  in  the  affida- 
vits on  the  part  of  the  application. 

The  counsel  for  the  bank  contended,  that  in 
this  transaction  a  fraud  had  been  prac- 
ticed between  Eden  and  Wardell  on  the  bank, 
by  entering  up  the  satisfaction  after  no- 
tice, which  must  have  been  done  to  defeat  the 
lien,  which  the  judgment  had  given  the  bank 
upon  Eden's  real  estate.  They  now,  therefore, 
appeared  before  the  court  for  the  purpose  of 
getting  that  entry  of  satisfaction  vacated,  and 
strongly  insisted,  1st.  That  the  entry  of  satis- 
faction was  irregular,  because  it  was  done  by 
the  party  himself,  and  not  by  his  attorney. 
They  said  that  although  by  statute  a  party 
might  possibly  "appear,  prosecute,  defend,  &c., 
in  person,"  yet  that  after  he  had  once  made  an 
election  to  appear  by  attorney,  he  could  not  be 
known  in  the  suit  in  person.  2d.  That  not- 
withstanding the  form  of  pleadings  was  still 
preserved,  and  suits  are  still  instituted  in  the 
names  of  obligees,  yet  that  courts  of  law  will 
always  take  notice  of  the  rights  of  assignees, 
and  protect  them  from  injury,  so  that  substan- 
tial justice  shall  be  done  between  the  parties. 
To  show  that  this  had  been  done,  and  to  what 
length  courts  of  law  have  gone,  they  cited  1 
Dura.  &  East,  G19  ;  4  Id.,  340.  And  to  show 
that  the  court  may  interpose  in  this  summary 
way,  and  lay  their  hands  at  once  on  the  judg- 
ment, without  turning  the  applicants  round  to 
a  court  of  chancery*,  they  cited  Viner  Abr., 
tit.  Judgment,  letter  K.,  a.  636,  4,  5,  6.  Or 
if  there  should  arise  any  doubts  about  the 
facts  alleged,  the  court  might  on  this  motion 
direct  an  issue.  1  Wilf.,  331;  Sayer,  253, 
Barnes's  notes,  136. 

14O*]     *The  Attorney- General  and  Mr.  B. 
lATinq#ton,  contra. 

They  said  that  this  was  a  novel  way  of 
bringing  up  such  a  question,  and  that  really 
neither  of  the  parties  to  the  suit  were  in  court. 
But  they  insisted,  I.  That  it  was  perfectly 
regular  for  the  party  to  enter  up  the  satisfac- 
tion himself,  and  denied  that  it  was  either  the 
province  or  the  duty  of  the  attorney  to  do  it ; 
that  the  very  form  of  his  warrant  showed  this, 
for  being  merely  to  prosecute  and  defend,  the 
entering  up  satisfaction  of  the  judgment  could 
not  be  considered  as  being  comprised  within 
his  powers.  (1  Sellon's  Prac.,  14;  Sayer's 
Reports,  217  ;  2  H.  Black.,  608.)  They  said 
that  by  the  practice  of  courts,  warrants  of  at- 
torney are  in  force  for  one  year  and  a  day,  for 
the  sole  purpose  of  enabling  the  attorney  to 
106 


sue  out  execution  (Bac.  Abr.,  299);  that  the 
general  warrant  of  attorney  only  extends  to 
judgment  and  execution,  and  that  there  ought 
to  be  a  special  warrant  made  out  for  the  pur- 
pose of  authorizing  an  attorney  to  enter  satis- 
faction, which  might  be  made  to  the  attorney 
who  had  conducted  the  suit,  or  to  any  other. 
(Sir  Thos.  Raymond,  69  ;  1  Cromp.  Prac.,  378 ; 
Sellon,  546  ;  Impey,  408.)  They  observed  that 
the  doctrine  contended  for  on  the  other  side, 
viz. ,  that  all  acts  relating  to  a  suit  after  it  was 
instituted  must  be  done  by  the  attorney,  could 
not  be  true,  inasmuch  as  it  was  settled  law 
that  a  retraxil  must  be  always  entered  by  the 
party  himself,  and  could  never  be  done  by  at- 
torney. (2  Sellon,  338;  3  Salk.,  245;  8  Mod. 
Rep.,  58;  3  Black.  Com.,  296.) 

As  to  the  second  point,  that  courts  of  law 
will  always  take  notice  of  the  rights  of  as- 
signees, they  *said  this  could  only'be  [*141 
sub  modo,  for  that  choses  in  action  were  only 
assignable  by  way  of  covenant.  That  they 
might  possibly  form  a  consideration  for  an  ats- 
fwmpfrit,  and  if  so,  the  original  instrument  is 
gone,  the  demand  becomes  a  personal  one,  and 
the  action  must  be  brought  upon  the  promise  ; 
if  not,  then  the  plaintiff  must  always  resort  to 
a  court  of  equity.  (2  Bl.  Reports,  821  ;  4 
Burn.  AEast,  341,  640.)  They  insisted  further, 
that  at  any  rate  this  was  not  the  proper  method 
for  the  plaintiff  to  procure  a  remedy,  by  va- 
cating the  judgment  on  motion.  The  law  in 
such  case  would  oblige  a  party  paying  money 
after  notice  to  pay  it  over  again,  and  the  de- 
mand, therefore,  from  the  time  of  notice,  is 
purely  a  personal  one.  (1  Douglass,  238  ;  6 
Durn.  &East,  361.)  Courts  of  law,  they  said, 
never  vacate  a  judgment  for  fraud,  but  only 
for  irregularity,  or  in  cases  of  legal  disability, 
such  as  of  an  infant,  feme  corert,  or  a  person 
under  duress,  where  the  instrument  is  void- 
able. (1  Sellon,  377.)  At  common  law  the 
remedy  was  by  action  of  deceit,  and  if  it  hap- 
pened subsequent  to  judgment,  by  andita,  que- 
rela.  In  cases  of  fraud  or  other  controverted 
facts,  an  issue  is  always  to  be  directed. 
(Cowp.,  727.)  But  if  this  motion  should  suc- 
ceed and  an  entry  be  made  vacating  the  judg- 
ment on  the  ground  of  fraud,  and  afterwards 
a  jury,  whose  exclusive  province  it  is  to  judge 
of  fact,  should  find  the  fact  differently,  then 
the  record  would  be  at  variance  with  itself. 
Here,  however,  it  would  be  improper  in  this 
court  to  direct  an  issue,  for  the  Court  of  Chan- 
cery is  the  proper  forum  for  that.  Why  can- 
not the  plaintiffs  proceed  by  scire  facias,  on 
the  judgment  in  the  name  of"  Wardell  against 
Eden,  when  the  pleadings  would  afford  an 
issue  of  fraud  or  no  fraud,  to  be  tried  by  a 
*jury?  As  to  the  notice  of  the  assign-  [*142 
ment,  SQ  much  relied  on,  they  contended  that 
the  farthest  the  court  could  go  as  to  notice  to 
assignees,  would  be  to  put  them  on  the  same 
footing  with  indorsers  of  bills  of  exchange, 
and  there  it  was  not  only  necessary  to  give  no- 
tice, but  to  add  that  the  indorser  was  looked  to 
for  payment;  no  such  thing  was  pretended 
here.  They  therefore  insisted  that  the  appli- 
cants had  failed,  both  on  the  ground  of  sub- 
stantial facts,  and  in  the  method  taken  to 
obtain  relief.  It  was  strenuously  insisted  that 
the  remedy  in  such  case  is.  by  resorting  to  a 
court  of  chancery. 

COL.  AND  CAINES. 


1803 


WARDELL  v.  EDEN. 


142 


Messrs.  Harrison  and  Hamilton,  in  reply,  said 
this  was  the  only  way  that  the  plaintiffs  had  to 
secure  the  property  from  being  placed  entirely 
beyond  their  reach,  and  that  although  a  scire 
facias  should  be  brought  as  suggested  on  the 
"other  side,  yet  that'  they  could  have  no  secu- 
rity for  satisfaction  of  their  judgment  in  the 
event  of  their  recovering  one.  That  as  to  the 
instance  of  a  retraxit  which  had  been  cited  as 
militating  with  the  principle  they  contended 
for,  it  did  not  apply,  for  the  attorney  is  to 
prosecute  the  suit  for  the  ends  •  of  obtaining 
satisfaction,  but  a  retrofit  is  not  a  prosecution 
for  such  end ;  it  is  entering  a  bar  to  the  suit 
without  having  received  satisfaction.  That  it 
is  important  that  attorneys  should  make  the 
entry  of  satisfaction,  as  it  would  guard  the 
court  against  fraud,  for  the  court  can  always 
know  its  own  officers,  but  cannot  be  supposed 
to  know  the  party.  They  denied  the  position 
that  courts  of  law  could  vacate  judgments  for 
irregularity  only,  and  relied  upon  the  case  of  the 
quare  impedit  cited  from  Viner,  where  a  judg- 
ment was  vacated  on  the  ground  of  fraud,  not, 
1 4-3*]  they  admitted,  *by  motion,  but  that, 
they  said  must  depend  on  the  extension  of  that 
form  of  practice  of  late  years.  They  said  that 
they  should  not  dissemble,  but  that  where  the 
facts  were  disputed  there  might  be  some  doubt 
as  to  the  mode;  perhaps  the  directing  of  an 
issue  might  be  the  most  advisable  method ;  but 
in  the  mean  time  that  the  judgment  ought  to 
T)e  considered  as  remaining  unsatisfied,  yet 
not  subject  to  any  new  liens.  That  as  to  send- 
ing the  plaintiffs  to  a  court  of  chancery,  it  was 
objectionable,  I.  Because  although  a  court  of 
chancery  will  not  interfere  where  the  party 
has  a  remedy  at  law,  yet  the  converse  of  the 
proposition  is  not  true.  II.  Because  it  will 
"be  to  turn  a  legal  lien,  which  the  plaintiffs 
have,  into  a  mere  equitable  lien.  III.  Be- 
cause if  there  is  a  remedy  at  law,  chancery  will 
refuse  to  relieve.  They  therefore  prayed  that 
their  application  might  be  granted.  Cur.  ad  milt. 

On  the  last  day  of  term,  BENSON,  J.,  de- 
livered the  following  order  as  the  opinion  of  a 
majority  of  the  court;  LANSING,  Ch.  J.,  and 
LEWIS,  J.,  dissenting: 

"On  reading  and  filing  the  affidavit  of 
Martin  S.  Wilkes  and  the  papers  thereunto 
annexed,  on  the  part  of  the  President,  Direct- 
ors and  Company  of  the  Bank  of  New  York, 
claiming  to  be  assignees  of  the  judgment  in 
this  cause,  and  the  affidavit  of  the  said  Joseph 
Eden  and  the  papers  thereunto  annexed  on 
the  part  of  the  said  Joseph  Eden, 

"Ordered,  That  a  vacatur  of  the  entry  of 
satisfaction  of.  the  said  judgment  be  entered  on 
144*]  the  record,  *and  a  minute  thereof  made 
in  the  book  of  dockets  of  judgments.  Provided, 
that  the  said  President,  Directors  and  Com- 
pany shall  not  cause  a  scire  facias  or  any  writ 
of  execution  to  be  sued,  or  a  suit  in  debt  to  be 
brought  on  the  said  judgment,  until  they  shall 
have  further  applied  to  the  court,  and  it  is  to 
be  understood  also  that  the  said  Joseph 
Eden  may  at  any  time  apply  to  the  court  that 
the  entry  of  satisfaction  may  be  deemed  un- 
vacated,  or  that  satisfaction  be  entered  anew 
on  the  said  record,  and  the  court  will  on  such 
future  applications  of  the  parties  respectively 
take  such  order  as  shall  be  just;  and  it  is 
further  ordered,  that  the  clerk  cause  a 
COL.  AND  CAINES. 


copy  of  this  rule  to  be  annexed  to  the  said 
record." 

8  .C.,  2  Johns.  Cas.,  121.  Affirmed-2  Johns.  Cos.,  258. 
See  1  Johns.  Rep.,  530. 

Cited— 13  Johns.,  22;  19  Johns.,  52;  6  Hill.,  239;  66 
Barb.,  243 ;  14  Hun,  474 ;  3  How.  Pr.,  388 ;  13  How.  Pr., 
27 ;  37  Howard  Pr.,  3 ;  2  Code  R.,  5 ;  6  Pet.,  657. 


APRIL  TERM.  1803. 


TOWNSEND 

v. 
NEW  YORK  INSURANCE  COMPANY. 

1.  Commission  —  Objection  to  Commissioners  — 
Failure  to  join  or  object.     2.  Idem — Delay — 

Costs. 

TVT  OTION  for  a  commission  to  examine.  This 
llL  cause  had  been  once  deferred  for  want  of 
testimony,  to  acquire  which  a  commission  had 
issued.  The  defendants  afterwards,  but  pre- 
vious to  the  last  circuit,  gave  notice  to  the 
plaintiff  that  he  should,  on  affidavits  (the  copies 
of  which  he  annexed),  move  for  a  commis- 
sion to  examine  witnesses,  and  specified  the 
*names  of  the  commissioners.  At  the  [*145 
time  of  serving  this  notice,  the  defendants 
offered  to  stipulate  not  to  delay  the  cause.  The 
plaintiff  did  not  assent  to  join  in  the  commis- 
sion, and  in  a  few  days  gave  the  regular  notice 
for  trial.  At  the  circuit,  an  application  was 
made  to  postpone  the  cause,  on  the  usual  affi- 
davit of  the  want  of  that  testimony,  to  obtain 
which  the  commission  noticed  was  to  be  sued 
out.  The  plaintiff's  counsel  objecting,  he  had 
till  the  next  day  to  produce  an  affidavit  of  a 
former  delay.  Not  doing  this,  the  cause  stood 
over  of  course. 

Mr.  Hoffman  now  moved  for  the  commission. 

Mr.  Hamilton  objected  to  its  being  directed 
to  the  commissioners  named. 

BY  THE  COURT.  The  commissioners  having 
been  named  in  the  notice  of  the  motion,  and  the 
plaintiff  having  neither  joined  nor  objected,  is 
now  concluded. 

Mr.  Hamilton  then  argued  against  the  appli- 
cation, because  it  was  uncertain  how  long  it 
would  tie  up  the  cause,  and  the  defendants  had 
not  entered  into  any  stipulation. 

BY  THE  COURT.  It  is  unnecessary,  for  they 
take  the  commission  at  their  peril.  Let  it  issue. 

Mr.  Hamilton  hoped  that  it  would  be  on 
paying  the  costs  of  the  circuit. 

*The  court  ordered  them,  and  seemed  [*  1 46 
to  think,  that  in  all  cases  of  delay,  costs  should 
follow. 


GRISWOLD  ET  AL.  v.  STOUGHTON. 

1.  Default — Sufficiency  of  Affidavit.     2.  Judg- 
ment— Irregu  larity — Perfecting  Judgment. 

A  SSUMPSIT  on  a  promissory  note.  The 
IA.  plaintiffs  had  proceeded  under  the  act  of 
the  Legislature,  and  had  entered  the  demand 
of  a  plea  in  the  clerk's  office,  without  serving 
it  on  the  defendant,  who  lives  in  the  city  of 

107 


146 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


New  York.  Judgment  by  default  having  been 
obtained, 

Mr.  Pendleton  moved  to  set  it  aside  on  an 
affidavit,  stating  that  no  rules  had  been  entered, 
either  for  interlocutory  judgment  or  for  the 
clerk  to  report  damages  on  the  note;  offering  at 
the  same  time  to  pay  costs,  and  put  in  special 
bail. 

Mr.  Riggs,  contra.  The  proceedings  are 
regular  to  the  default;  the  affidavit  states  no 
excuse  for  that;  and  though  the  subsequent 
steps  are  not  according  to  strict  practice,  the 
defendant,  being  in  default,  and  that  default 
regularly  entered,  is  not  entitled  to  favor. 
The  utmost,  therefore,  the  court  will  do,  is  to 
vacate  the  proceedings  from  the  default. 

Per  Curiam.  As  the  default  is  not  account- 
ed for  by  the  affidavit,  it  is  unimpeached,  and 
therefore  must  stand;  but  as  the  subsequent 
proceedings  are  irregular,  they  must  be  set  aside, 
with  the  usual  liberty,  however,  for  the  plaint- 
iffs to  perfect  their  judgment  this  term,  if  they 
can. 


147*]  *MANHATTAN  COMPANY 

v. 
HERBERT. 

Trial— By  Record—Notice. 

HOPKINS  moved  for  a  rule  to  bring  on  a 
trial  by  record. 

By  tfie  Court.  Trials  by  record  are  to  be 
brought  on  by  notice,  in  the  same  manner  as 
cases  for  argument. 


LIVINGSTON  v.  DELAFIELD. 
Nonsuit  —  Absence  of  Material  Witness. 


case  had  been  put  off  on  the  usual  af- 
-  fidavit  of  absence  of  a  witness,  in  expecta- 
tion of  whose  return  the  plaintiff  had  stipu- 
lated to  try  peremptorily;  on  his  not  doing  so, 
the  defendant  had,  on  a  former  day,  moved  for 
judgment,  as  in  case  of  nonsuit,  for  not  pro- 
ceeding to  trial;  but  not  succeeding,  and  the 
cause  not  having  been  brought  on  according  to 
the  second  stipulation,  the  motion  was  not  re- 
peated. On  the  part  of  the  plaintiff,  an  affida- 
vit was  read,  stating  that  the  witness  was  a  sea- 
faring man,  and  had  never  been  within  the 
State  of  New  York  since  the  suit  commenced, 
and  that  the  stipulation  to  try  was  in  expecta- 
tion of  his  return. 

Per  Curiam.  The  witness  having  been  con- 
stantly out  of  the  State  ever  since  the  suit  was 
commenced,  and  being  a  seafaring  man,  some 
indulgence  is  due  from  his  way  of  life.  The 
defendant,  therefore,  can  take  nothing  by  his 
motion. 


148*]  *BEDLE  ET  ex.  r.  WILLETT. 

Motion  to  Refer — Names  of  Referees — Time  for 
Motion. 

BY  THE  COURT.     The  notice  of  a  motion 
to  refer  must  contain  the  names  of  the  ref- 
108 


erees.  The  court  never  nominates  them.  But 
the  making  the  motion  is  not  confined  to  the 
first  day  of  term.  Notice  may  be  given  after- 
wards, "on  showing  a  reasonable  cause  for  the 
omission. 


EDMUND  SEAMAN 

r>. 

JOHN  DAVENPORT  ET  AL., 
Tenants  in  possession. 

Partition — Rule  to  Appear  and  Answer. 

IN  partition,  after  service  of  the  petition  and 
notice,  Mr.  Hopkins  moved  for  a  rule  to  ap- 
pear and  answer.  The  court  at  first  thought  this 
a  rule  of  course;  but  on  the  counsel's  observing 
that  proof  of  service  was  by  the  act  required 
to  be  made  to  the  satisfaction  of  the  court,  and 
that  the  manner  of  the  service  would,  accord- 
ing to  the  act,  vary  in  particular  cases,  the 
court  seemed  to  coincide,  but  said  that  the  rule 
must  be  drawn  up  as  the  party  should  be  ad- 
vised. 


JOHN  B.  CHURCH 

T. 

THE  UNITED  INSURANCE  COMPANY. 

Judgment — On  Verdict — New  Trial — Return  of 
Commission — Misprision  of  Clerk. 

THE  plaintiff  had  obtained,  in  last  January 
Term,  an  order  of  court  for  the  verdict  re- 
covered in  this  cause  to  stand,  and  judgment, 
to  be  given  accordingly,  unless  the  defendant 
should,  fourteen  days  before  the  next  "sit- 
tings" in  New  York,  give  notice  to  the  plaint- 
iff that  a  commission  issued  in  the  suit  had 
been  returned,  in  which  case  there  should  be  a 
new  trial,  and  the  plaintiff  at  liberty  to  amend, 
&c.  The  clerk  had  drawn  up  the  rule  before 
the  next  "  circuit."  *The  plaintiff  had  [*14S> 
given  immediate  notice  of  the  mistake  to  the 
defendant's  attorney,  and  that  he  should  be 
prepared  to  try  the  cause  at  the  sittings.  The 
defendant  not  having  noticed  the  return  of  the 
commission, 

Mr.  Hamilton  moved  that  the  rule  be 
amended  to  "  sittings,"  and  be  made  absolute 
for  judgment. 

Ordered  accordingly. 


JAMES   EVERITT,    Surrogate    of    Orange 
County, 

ads. 

THE  PEOPLE  OF  THE  STATE  OF  NEW 
YORK,  EX.  REL.  CHARLES  BEACH. 

Mandamus — Vacatur — Agreement  between  At- 
torneys. 

HOFFMAN  moved  to  enter  a  tacatur  on  a 
rule  for  a  peremptory  mandamus  and  set 
aside  the  mandamus  which  had  been  issued  on 
the  following  facts: 

A  rule  was  obtained  in  July  Term,  1802,  that 

the  defendant  show  cause,  by  October  Term, 

COL.  AND  CAINES. 


1803 


ABRAHAM  S.  HAI.LETT  v.  DANIEL  COTTON. 


149 


why  a  mandamus  should  not  issue,  compelling 
him  to  proceed  in  a  cause  then  depending  be- 
fore him,  concerning  the  will  of  Thomas  Beach. 

A  return  was  made  to  this  rule,  which,  from 
the  defendant's  counsel  being  unavoidably  de- 
tained on  his  way  to  Albany,  was  not  tiled 
until  the  third  day  of  October  Term. 

On  the  first  day  of  October  Term,  Charles 
Beach  attended,  and  obtained  a  rule  for  the 
15O*]  mandamus;  and  *on  the  third  day,  on 
filing  the  return,  that  rule  was  vacated. 

Notice  of  the  vacatur  was  given  to  the  person 
who  had  acted  in  behalf  of  Beach,  and  obtained 
the  first  rule;  but  Beach  had  previously  left 
Albany,  and  the  mandamus  issued. 

At  the  last  term  Mr.  Golden  was  charged 
with  the  business,  to  make  the  proper  applica- 
tion to  the  court,  and  to  oppose  a  peremptory 
mandamus.  On  Mr.  Golden' s  way  to  Albany, 
he  met  Mr.  Morton,  the  attorney  for  Beach, 
when  it  was  agreed  that  all  further  proceedings 
; should  be  stayed  until  the  present  term.  Mr. 
Golden,  therefore,  did  not  further  attend  the 
•  cause. 

The  relator.  Beach,  attended  at  Albany  at 
the  close  of  the  term,  employed  other  counsel, 
.and  obtained  a  rule  for  a  peremptory  manda- 
mus, which  has  been  issued. 

Motion  granted. 


ABRAHAM  S.  HALLET 


DANIEL  COTTON. 

.New  Trial  —  Motion  to  bring  Amount  of  Verdict 
into  Court. 


cause  was  tried  at  the  sittings  after 
-L  January  Term  last,  when  the  jury  found  a 
verdict  for  the  plaintiff  for  $866.30.  The  de- 
fendant obtained  a  judge's  order  for  a  stay  of 
further  proceedings  until  the  next  term,  for 
the  purpose  of  then  moving  for  a  new  trial. 

Mr.  Haices  now  moved,  on  the  part  of  the 
plaintiff,  for  an  order,  that  the  defendant  bring 
151*]  into  court  the*sum  found  by  the  jury, 
with  costs  of  the  suit;  and  that  in  default  thereof, 
the  order  to  stay  proceedings  be  discharged. 
This  application  was  founded  on  an  affidavit 
stating,  "That  since  this  cause  has  been  at  is- 
sue, the  special  bail  has  been  declared  bank- 
rupt and  discharged  under  the  bankrupt  law 
of  the  United  States.  That,  on  the  trial  of 
this  cause,  a  balance  was  admitted  by  the  de- 
fendant's counsel  to  be  due  to  the  plaintiff  of 
about  $500.  That,  at  the  sittings  in  November 
last,  on  the  application  of  the  defendant,  this 
•cause  was  put  off  for  that  court,  on  the  condi- 
tion of  payment  of  costs;  but  that  those  costs, 
Although  repeatedly  demanded,  were  not  yet 
paid."  A  further  affirmation  of  the  plaintiff 
was  read,  stating  "That  from  the  circumstances 
of  the  defendant,  he  was  in  danger  of  losing 
his  said  debt,  unless  the  money  was  brought 
into  court,  or  the  rule  to  stay  proceedings  dis- 
charged; but  it  was  acknowledged  a  copy  had 
not  been  served." 

For  the  plaintiff  it  was  said,  that  a  motion 
for  a  new  trial  was  an  application  to  the  equi- 
table discretion  of  the  court,  to  relieve  from 
what,  in  the  opinion  of  the  party,  was  an  erro- 
COL.  AND  CAINES. 


neous  or  oppressive  verdict.  That  it  was  a 
maxim  of  law,  founded  on  principles  of  .equal 
justice,  "  that  he  who  seeks  equity,  should  do 
equity."  From  the  affidavit  it  appeared  that 
the  defendant  had  admitted,  on  the  trial,  that 
the  plaintiff  was  entitled  to  recover  about  $500, 
which  sum  entitled  him  also  to  full  costs. 
Before,  therefore,  the  court  would  suffer  the 
defendant  to  be  heard  on  a  motion  for  a  new 
trial,  they  would  require  him  to  do  what  he 
acknowledged  to  be  just.  The  bankruptcy  and 
discharge  of  the  bail,  *and  the  circum-  [*152 
stances  of  the  defendant,  were  additional  rea- 
sons for  requiring  the  defendant  to  bring  the 
money  into  court,  to  abide  the  event  of  the 
suit.  That,  from  the  great  number  of  cases 
now  before  the  court,  it  was  not  in  the  least 
probable  that  the  case  to  be  made  in  this  cause 
could  come  on  in  its  order,  and  a  decision  be 
had  thereon  in  a  shorter  time  than  6  or  9 
months;  by  which  time  the  defendant,  from 
his  present  circumstances,  would,  doubtless,  be 
a  bankrupt,  or,  as  his  bail  were  already  bank- 
rupt, he  might  abscond.  Under  such  circum- 
stances, delay  was  equally  prejudicial  as  a 
denial  of  justice.  It  also  appeared  that  the 
defendant  was  now  in  contempt,  and  liable  to 
an  attachment  for  nonpayment  of  costs, 
incurred  on  putting  off  the  trial  of  this  cau.se 
at  a  former  sitting.  That  it  was  a  standing 
rule  of  the  Mayor's  Court  of  the  city  of  New 
York,  that,  "  upon  every  motion  for  a  new 
trial,  the  defendant  should,  within  eight  days, 
bring  into  court  the  sum  recovered  by  the  ver- 
dict, with  costs;  and  that  in  default  thereof 
the  plaintiff  have  leave  to  proceed."  That, 
although  this  court  might  not  be  disposed  to  go 
the  length  to  establish  such  a  rule  in  all  cases, 
it  was  believed  the  peculiar  circumstances  of 
this  cause  were  such  that  they  woulfl  not 
hesitate  to  make  the  order  now  requested;  or, 
at  least,  for  such  sum  as  was  admitted  to  be 
due,  with  costs. 

Mr.  Bogert  said  the  object  of  the  motion  was 
perfectly  new  and  unprecedented. 

Per  Curiam.  The  practice  of  the  Mayor's 
Court,  in  obliging  the  amount  of  the  verdict  to 
be  brought  into  court  on  a  motion  for  a  new 
trial,  has  never  been  *adopted  here.  [*153 
The  insolvency  of  the  bail,1  is  certainly  not  a 
sufficient  ground  to  induce  us  to  make  such  an 
order;  and  a  copy  of  the  affirmation,  respect- 
ing the  defendant's  circumstances,  has  never 
been  served  on  him;  of  that,  therefore,  we  can 
take  no  notice.2  But,  let  it  be  understood,  we 
do  not  mean  to  say,  that  had  it  been  otherwise, 
we  would  have  granted  the  motion. 

Rule  refused. 


JAMES  W.  GILBERT 

JAMES  c.  'BRAZIER  • 

Sheriff — Fees — Levying  fine. 

PER  CURIAM.      The  question  is,   whether 
the  sheriff  is  entitled  to  fees  on  levying  a 

1.— See  Gillespie  ads.  Pflster  and  STComb,  ante,  p. 
120. 

2.— Card  ads  Fitzrny  ct  al.,  ante,  p.  89.  See,  also, 
Grove  ads.  Campbell,  ante,  p.  115,  that  supplemen- 
tary affidavits  to  rebut  those  in  answer,  cannot 
be  received. 

109 


153 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1803 


fine.  The  statute  directing  the  mode  of  making 
the  levy,  declares  it  shall  be  done  without  fee  or 
reward.  The  fee  bill  gives  a  fee,  but  does  not 
say  bv  whom  it  shall  be  paid.  We  all  know 
how  it  has  been:  the  fee  has  been  charged  by 
the  sheriff  in  his  accounts.  This,  we  think,  is 
the  regular  practice;  for  it  cannot  be  demanded 
from  the  person  who  has  had  to  pay  the  tine. 


L.  AND  N.  VANDYCK 

V. 

VAN  BEUREN  AND  VOSBURG. 

Stay  of  Proceedings — Case  made — Special 
Verdict. 

PER  CURIAM.  Wherever  a  case  is  made, 
with  liberty  to  turn  it  into  a  special  verdict, 
execution  must  stay,  of  course,  till  the  next 
term  after  the  decision  is  given,  that,  if  either 
party  be  dissatisfied,  there  may  be  time  to  make 
up  the  special  verdict. 


the  notice  should  be  entitled,  though  each 
party  should  be  served.  It  does  not  follow 
that  appearing  separately,  and  entering  into 
separate  consent  rules,  justifies  or  requires  a 
different  practice;  for  pleading  separately  does 
not  make  separate  suits.  The  notice  must  be 
as  the  cause  was  originally  entitled,  and  a 
copy  served  on  all  the  attorneys;  for  otherwise 
it  would  imply  a  distinct  issue  in  each  suit. 

Motion  refused  with  co&te  to  the  plaintiff. 


BELL  ET  AL.  v.  RHINELANDER. 

Partition — Reading  of  Petition. 

the  notice  and  a 
not  the  petition. 


IN  partition  only  the  notice  and  affidavit  of 
service  is  read, 


154*]  *.IACKSON,  on  the  demise  of  JOHN 
JAUNCEY, 

v. 
MARTINUS  COOPER  &  JAMES  STYLES. 

Ejectment  —  Severance  in  Appearance  and  in 
Entering  into  Consent  Rules — Division  of  Suit  j 
and  Notices. 

THIS  was  an  action  of  ejectment,  in  which 
the  defendants  severed  in  their  appearances, 
and  entered  into  separate  consent  rules.  The 
plaintiff,  on  motion,  obtained  leave  to  amend 
bv  altering  the  name  of  the  lessor  of  the  plaint- 
iff from  John  to  William  Jauncey;  but  the 
notices  on  which  the  motion  was  founded  were 
entitled  as  above,  against  both  defendants. 

Mr.  Benson  now  moved  to  set  aside  the  pro- 
ceedings for  irregularity,  contending,  that  as  the 
defendants  had  severed,  the  original  suit  be- 
came divided  into  two  distinct  causes.  That, 
therefore,  there  should  have  been  two  separate 
notices,  each  entitled  against  one  defendant, 
and  served  on  the  different  attorneys  of  the 
defendants.  For  there  was  not  then  any  suit 
in  existence  such  as  that  in  which  the  notices 
purported  to  be  given. 

Mr.  Hopkins,  for  the  plaintiff,  insisted  the  no- 
tice was  perfectly  regular,  and  likened  it  to  the 
case  of  a  suit  against  two,  where  one  is  out- 
lawed, yet  the  proceedings  are  entitled  against 
both. 

Per  Ourifim.  The  objection  taken  against 
the  notices  and  rules  is,  that  as  the  defendants 
appeared  by  distinct  attorneys,  and  entered 
into  separate  consent  rules,  these  circumstances 
required  separate  and  distinct  proceedings,  and 
ought  to  have  been  entered  and  entitled  as  sep- 
arate; that  is,  that  the  notices  should  have 
been  separate,  addressed  to  each  party,  and  the 
155*]  *rules  entered  accordingly.  The  notice 
given  to  Van  Schaick,  attorney  for  Cooper,  is 
entitled  against  two;  and  it  is  on  that  notice 
the  application  is  made.  The  court  are  of 
opinion  that  this  is  the  regular  way  in  which 
110 


JACKSON,  ex  dem.  NICHOLAS  Low  ET  AL., 

v. 
JAMES  REYNOLDS. 

Ejectment — Death  of  one  of  iJie  lessors — Motion 
to  Strike  out — Costs. 

Citation— Ditz  ads.  Butler  et  al.,  ante,  105. 

ON  an  affidavit  stating  the  death  of  one  of 
the  lessors  of  the  plaintiff,  from  belief,  infor- 
mation, diligent  search  and  inquiry, 

Mr.  Riggs,  on  the  behalf  of  the  defendant, 
moved  to  strike  out  of  the  declaration  of  one 
count  wholly,  and  in  all  the  others  the  name 
of  Drake. 

Mr.  Hoicett,  contra.  The  application  now 
comes  too  late,  being  after  entering  into  the  con- 
sent rule;  at  all  events  the  affidavit  should  state 
that  the  fact  was  unknown  at  that  time.  In 
addition  to  this,  he  mentioned,*  that  [*156 
from  the  counter  affidavit  which  he  held,  it 
appeared  the  defendant  had  heretofore  con- 
sented to  give  up  possession,  having  failed  to 
try  according  to  stipulation. 

Per  Curiam.     The  motion  must  be  granted. 

It  has  been  before  decided  that  a  defendant 
may  thus  come  in  and  move,  on  the  death  of  a 
party,  before  rtie  commencement  of  the  suit. 
As  to  the  objection  that  the  application  is  out 
of  season,  the  aaswer  is,  that  it  is  never  out  of 
season  when  on  the  ground  of  an  original 
irregularity  in  the  plaintiff  himself.  (See  Ditz 
ads.  Butler  et  al.,  ante,  p.  105.)  Therefore,  the 
not  coming  in  earlier  cannot  be  urged.  The 
affidavit  furnishes  such  evidence  of  the  facts  as 
are  prima  facie  sufficient;  and  if  not  true, 
ought  to  have  been  denied  by  the  plaintiff, 
especially  as  it  is  in  his  power;  for  the  attorney 
of  the  lessor  may,  nay,  certainly  must,  know 
if  his  client  is  alive. 

Mr.  Howett  hoped  the  costs  would  not  be 
allowed. 

Per  Curiam.  It  does  not  necessarily  follow 
that  the  attorney  of  the  plaintiff  must  know  of 
the  death  of  one  of  the  lessors.  He  may  have 
examined  into  the  title  on  behalf  of  one  person 
acting  for  others  equally  interested,  and  seeing 
a  number  of  names  necessary  to  be  made  par- 
COL.  AND  CAINEB. 


1803 


SHEFFIELD  v.  WATSON. 


156 


ties,  he  may  think  them  all  in  existence,  and 
the  affidavit  of  the  defendant  be  the  first  notice 
of  the  death  of  anyone  entitled.  The  costs 
ought  to  be  paid  if  the  fact  was  known  sooner; 
and  the  application  for  the  object  of  this 
motion  ought  to  be  made  as  soon  as  the  right 
to  apply  was  discovered.  The  court,  however, 
reserved  the  consideration  of  costs  till  the  next 
157*]  day,  when  they  denied  them,  *saying 
the  plaintiff  was  irregular  from  the  beginning; 
and  though  he  might  not  have  been  in  fault, 
there  is  no  reason  for  allowing  him  costs,  when 
it  is  to  have  his  proceedings  rectified,  that  the 
defendant  comes  before  the  court. 


CLARKSON  v.  GIFFORD. 

Change  of  Venue — Specialty — Covenant  of 
Seisin. 

HARRISON  moved,  on  the  usual  affidavit, 
to  change  the  venue. 

Mr.  Evertson.  This  action  is  founded  on  a 
specialty;  in  suits  of  this  sort  the  court  does 
not  change  the  venue. 

Mr.  Harrison,  in  reply.  The  action  is  on  a 
covenant  of  seisin,  affecting,  or,  as  the  tech- 
nical phrase  is,  savoring  of  the  realty. 

Motion  granted. 
COL.  AND  CAINES. 


FALLMER  v.  STEELE  ET  AL. 

Amendment — Declaration —  Writ. 

HOPKINS  moved  to  amend  a  count  in  the 
declaration,  in  conformity  to  the  original 
writ  (a  certified  copy  of  which  he  produced), 
by  striking  out  the  words  "  town  of  Herkimer," 
and  inserting  the  "  town  of  German  Flatts." 

Ordered. 


SHEFFIELD  v.  WATSON. 

Nonsuit —  Costs — Stipulation. 

TJOPKINS,  for  the  defendant;  moved  for 
-LI  judgment  as  in  case  of  nonsuit,  for  not 
going  to  trial. 

Mr.  Woods,  contra.  The  cause  was  called  on, 
but  as  there  were  other  causes  on  the  day  cal- 
endar, one  of  which  actually  occupied  the 
court  the  whole  day,  the  plaintiff's  attorney  not 
being  quite  ready,  thought  he  should  be  en-  j 
titled  to  bring  it  on  the  next  day,  the  day  cal- 
endar not  being  gone  through,  but  found  he 
was  put  down  to  the  bottom  of  the  calendar 
for  the  circuit.  This,  therefore,  is  a  plain 
mistake  of  the  rules  of  practice,  which  ought 
not  to  injure  the  plaintiff. 

Mr.  Hopkins.  The  plaintiff  clearly  was  not 
ready;  therefore  equally  in  fault,  whether  the 
rule  was  as  he  imagined  or  not. 

RADCLIFF,  J.  Acting  under  that  belief,  he 
did  not  prepare  himself. 

Mr.  Hopkins  hoped  the  plaintiff  would  be 
ordered  to  stipulate  and  pay  costs. 

Per  Curiam.  The  excuse  is  certainly  not 
sufficient  to  exonerate  from  costs.  If  admit- 
ted in  one  case,  it  must  be  in  all;  and  however 
158*]  the  good  faith  of  the  *plaintiff's  con- 
duct, and  our  belief  of  it,  may  deny  the  judg- 
ment moved  for,  to  refuse  costs  would  do 
away  the  effect  of  the  rule.  The  plaintiff 
must  stipulate. 


MARIA  REMSEN,  Administratrix, 

i}. 
JOSHUA  ISAACS. 

Non-enumerated  Motion — Setting  aside  Repwt 
of  Referee,  for  Irregularity — Merits. 

MULLIGAN  moved  to  set  aside  a  report  of 
referees  for  irregularity  and  on  merits. 
*Mr.  Woods,   contra.      In  King  v.  [*15D 
Hughes,  it  was  determined  that  if  a  motion  be 
made  as  non-enumerated  for  irregularity,  the 
ground  of  merits  must  be  abandoned,  though  on 
the  merits  the  irregularity  may  be  insisted  on. 

Per  Curiam.  The  rule  is  according  to  the 
decision  cited.  The  application  must  be  for 
irregularity  only  to  bring  it  on  as  a  non-enu- 
merated motion.  If  merits  are  united,  it  be- 
comes enumerated. 


HUN  ET  AL.  v.  BOWNE. 

Amendment — Of  Case — Time — Accident. 

C\  OLDEN,  for  the  plaintiffs,  moved  for  leave 
Vj  to  amend  the  case  made  by  the  defendant. 
From  the  affidavit  of  the  attorney  for  the 
plaintiffs,  it  appeared  that  the  defendant's  at- 
torney had  agreed  to  give  the  plaintiff's  attor- 
ney till  the  21st  January  last  to  settle  his  amend- 
ments before  a  judge  at  Albany,  the  cause  hav- 
ing been  tried  in  New  York  ;  that  by  some  ac- 
cident the  amendments  proposed  by  the  plaint- 
iffs to  the  case  made  on  the  part  of  the  defend- 
ant did  not  come  to  the  hands  of  the  counsel 
who  was  employed  to  attend  to  the  business 
there  until  the  22d  January;  and  further,  that, 
the  case  made  by  the  defendant  did  not  set 
forth  the  merits  of  the  cause  as  they  appeared 
on  the  trial. 

Mr.  Hoffman,  amicus.  In  Duff  v.  VanZandt, 
on  a  suggestion  that  the  case  made  did  not 
contain  a  true  statement  of  facts,  the  court 
granted  a  new  trial  after  argument  and  decis- 
ion. 

Mr.  Boyd,  contra,  stated  some  circumstances 
of  strict  and  unaccommodating  conduct  in  the 
plaintiff's  *attorney,  which  had  oc-  [*16O 
curred  previous  to  the  agreement  mentioned  in 
the  affidavit,  read  by  Mr.  Golden,  and  some 
declarations  of  the  plaintiff's  attorney,  that  he 
would  hold  the  defendant  to  strict  practice. 

Per  Curiam.  We  cannot  travel  back  farther 
than  the  agreement  stated.  It  appears  that  the 
defendant  had  given  the  plaintiff  a  time, 
which,  from  accident,  he  could  not  keep  ;  the 
amendments  were  sent  with  due  speed,  and  so 

111 


160 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


that  they  might  have  arrived  at  Albany  in  sea- 
son if  nothing  had  happened  to  prevent  it.  We 
cannot  let  the  plaintiff  suffer  by  circumstances 
which  he  could  not  control.  The  verdict  is  in 
the  hands  of  the  plaintiff,  and  the  defendant 
ohnnot  be  injured  by  a  short  delay. 


ANONYMOUS. 

Argument — Notice. 

T>  Y  THE  COURT.  All  causes  intended  for  ar- 
Jj  gument  must  be  duly  noticed  before  term, 
to  the  clerk,  that  he  may  enter  them  on  the  cal- 
endar. If  not  so  noticed,  they  must  go  to  the 
foot  of  the  calendar,  without  regard  to  the 
date  of  their  issues. 


JOHN  HALSEY 

v. 
JAMES  AND  SAMUEL  WATSON. 

New  Trial — Newly  Discovered  Evidence. 

'PHIS  was  a  motion  for  a  new  trial,  on  an  af- 
L  fidavit  of  a  discovery  of  new  and  material 
evidence.  The  points  and  substance  are  so 
well  and  accurately  condensed  in  the  decision 
of  the  court  that  it  is  unnecessary  to  do  more 
than  state  the  judgment. 

Per  Curiam.  This  is  a  motion  for  a  new 
trial,  and  comes  before  us  on  the  ground  of  a 
161*]  discovery  of  *material  testimony,  since 
the  trial  of  the  cause.  To  see  this  and  judge 
whether  it  be  material  or  not,  it  will  be  neces- 
sary to  state  the  former  testimony  and  nature 
of  the  suit. 

It  is  asftumpsit  by  Halsey,  the  plaintiff,  v. 
James  and  Samuel  Watson,  tJie  defendants,  as 
owners  of  the  ship  Chesapeake,  founded  on  a 
neglect  in  not  taking  on  board  some  tobacco, 
according  to  contract.  The  witness,  Heyer, 
who  appears  to  have  acted  as  agent  for  the 
plaintiff,  states  what  the  contract  was,  and  the 
time  at  which  it  was  to  be  on  board.  This 
Agreement  appears  to  have  been  made  on  a 
Friday.  The  witness  inquired  of  the  defend- 
ant, James  Watson,  when  the  tobacco  should 
be  sent  down  to  the  vessel.  The  answer  was, 
send  it  down  as  quick  as  possible ;  in  conse- 
quence of  which,  it  was  sent  the  very  next  day. 
From  three  witnesses  it  is  shown  that  the  prin- 
cipal part  of  the  tobacco  was  on  the  dock  by 
•eleven  o'clock  in  the  forenoon,  and  that  the 
whole  was  ready  to  be  put  on  board  by  three. 
These  facts,  then,  are  established  by  three  wit- 
nesses. The  captain  swears  that  after  4  or  6 
hogsheads  had  been  brought,  he  requested  the 
•cartmen  not  to  bring  any  more,  as  there  were 
.appearances  of  a  storm.  This  the  principal 
.cartman  has,  in  effect,  denied  ;  for  he  says  he 
was  desired  by  those  on  board  the  ship,  or  the 
captain,  to  bear  a  hand  ;  and  that  he  got  all 
the  tobacco  down  by  dinner  time.  Here  the 
testimony  is  contradictory.  We  are  to  judge, 
then,  if  the  material  evidence,  as  it  is  termed, 
that  has  been  discovered  since  the  trial,  be 
really  testimony  of  materiality.  There  is  one 
person  who  swears  as  to  the  directions  given 
112 


by  the  *captain.  The  court  are  of  [*162 
opinion  that  this  is  not  material,  so  as  to  war- 
rant granting  a  new  trial.  This,  in  two  points 
of  view:  The  testimony  goes  only  to  impeach 
the  credit  of  what  has  been  sworn,  and  not  to 
establish  any  new  fact.  It  is  merely  contra- 
dicting former  evidence.  In  that  point  of 
view,  it  is  not  material ;  nor  can  it  be  so  in 
another,  unless  the  defendants  can  go  further. 
The  direction  not  to  bring  down  the  tobacco 
was  to  a  cartman.  This  is  not  sufficient,  as 
Watson  directed  it  to  be  sent  as  soon  as  possi- 
ble. It  ought  to  have  been  to  the  owner  of  the 
tobacco;  or  to  have  shown  that  the  request  was 
brought  home  to  the  knowledge  of  the  plaint- 
iff; that  it  was  made  to  a  cartman  is  not  suffi- 
cient. The  defendant's  affidavit  states  two 
other  witnesses  who  are  material,  but  does  not 
say  to  what  facts  they  would  testify;  we  can- 
not, therefore,  judge  whether  they  are  material 
or  not.  Blackmer,  it  is  stated,  will  testify  that 
the  tobacco  was  not  marked  till  Monday.  This 
will  only  go  to  impeach  the  credit  of  the  testi- 
mony; for  three  witnesses  swear  to  the  fact  of 
the  marking  before  one  o'clock  on  Saturday. 
The  captain  himself  does  not  pretend  that  the 
reason  for  not  taking  it  on  board  was  the  hogs- 
heads not  being  marked,  but  only  that  he  had 
not  time.  He  does  not  pretend  it  was  not 
ready  to  be  taken  on  board. 
New  trial  refused. 


FRANCIS     HUGUET,     Assignee    of    THE 
SHERIFF, 

v. 
JAMES  HALLETT. 

Default  —  Stay    of  Proceedings  —  Special  Bail  — 
Costs. 

Citation—  Cannon  ads.  Cathcart,  ante,  84;   Grove 
ads.  Campbell,  ante,  115. 


was  a  motion  in  an  action  on  a  bail- 
-L  bond  to  set  aside  the  proceedings  and  ex- 
ecution sued  out.  It  appeared  that  soon  after 
the  bail-bond  was  prosecuted,  *the  at-  [*1G3 
torneys  for  both  parties  had  entered  into  an 
agreement,  in  the  nature  of  a  rule,  to  stay  pro- 
ceedings in  the  bail-bond  suit  on  the  usual 
terms.  That  the  defendant  had  accordingly 
filed  special  bail  in  the  original  suit,  and  had 
given  the  regular  notice,  but  had  not  paid  the 
costs  of  this  suit,  as  by  the  terms  of  the  rule  he  was 
bound  to  do.  The  plaintiff,  on  special  bail 
being  entered,  went  on  in  the  original  suit,  and 
in  July,  one  thousand  eight  hundred  and  two, 
obtained  final  judgment,  on  which  execution 
was  issued  and  thereupon  satisfaction  obtained. 
After  this  the  plaintiff  went  on  with  this  suit, 
entered  a  default,  and  in  January  last  obtained 
final  judgment  and  issued  an  execution,  on 
which  the  sheriff,  by  direction  of  the  plaintiff's 
attorney,  levied  the  costs  only,  but  still  had 
them  in  his  hands.  The  defendant  in  the  last 
vacation  obtained  an  order  or  His  Honor, 
Judge  Radcliff,  to  stay  all  proceedings. 

The  application  now  was,  that  the  sheriff  re- 
store to  the  defendant  so  much  of  the  money 
in  his  hands  as  exceeds  the  costs  which  were 
due  on  the  bail-bond  suit  when  the  rule  to  stay 
proceedings  was  entered  into. 

COL.  AND  CAINKH. 


1803 


W.  P.  VAN  NESS  v.  GEORGE  GARDINER. 


163 


The  counsel  for  the  defendant  produced  an 
affidavit,  by  which  it  appeared  that  the  attor- 
ney for  the  plaintiff  had  frequently  given  the 
attorney  for  the  defendant  verbal  notice  that 
he  was  proceeding  with  the  bail-bond  suit. 
But  it  did  not  appear  that  any  bill  of  costs  had 
been  presented,  or  any  demand  of  a  bill  of 
costs  made  on  the  one  side,  or  of  the  costs  on 
the  other. 

1G4*]  *Mr.  Golden,  for  the  defendant,  con- 
tended that  special  bail  being  tiled  under  the 
rule,  with  an  intent  to  stay  the  proceedings  on 
the  bail-bond,  the  plaintiff  could  not  accept  it  or 
avail  himself  of  it  unless  it  was  to  have  that 
operation. 

That  the  plaintiff  could  not  proceed  with 
both  suits;  at  most  he  had  but  an  option  to 
proceed  with  either,  but  having  elected  to  pur- 
sue the  original  suit,  he  thereby  precluded 
himself  from  going  on  with  the  other. 

That  after  the  defendant  had  filed  special 
bail  the  plaintiff  might  have  gone  on  with  his 
original  suit,  and  the  court  would  probably 
have  compelled  him,  by  attachment,  to  pay  the 
costs  in  that  on  the  bail  bond,  up  to  that  time. 

That  there  was  no  precedent  for  this  double 
proceeding,  which  was  a  strong  evidence  that 
it  could  not  be  right. 

Mr.  -Stuyvesant,  contra.  It  was  the  duty  of  the 
defendant  to  have  paid  the  costs  on  the  bail- 
bond  when  he  gave  notice  of  special  bail.  The 
plaintiff  had  no  other  possible  remedy  for  his 
costs  than  the  mode  he  has  adopted,  and  as 
the  defendant's  irregular  conduct  has  com- 
pelled the  plaintiff  to  proceed,  the  whole  costs 
are  due  from  the  defendant,  and  are  nothing 
more  than  the  result  of  his  own  irregularity 
and  obstinacy. 

Per  Curiam.  This  is  a  motion  to  set  aside 
proceedings  on  the  bail-bond  on  the  facts 
stated  by  the  affidavit.  The  suit  was  com- 
165*]  menced  in  January,  *1802,  returnable 
in  April.  Afterwards,  in  May,  the  action  on 
the  bail-bond  was  brought.  Shortly  after,  the 
plaintiff's  attorney  received  notice  of  bail  in 
the  original  action  and  then  delivered  a  decla- 
ration. He  went  on  to  judgment,  and  pro- 
ceeded on  the  bail-bond  to  recover  costs.  The 
plaintiff's  attorney  states  that  he  called  on  the 
attorney  of  the  defendant,  and  requested  him 
to  pay  the  costs  on  the  bail-bond,  which  he 
did  not  do,  though  no  regular  bail  had  been 
put  in.  On  this,  proceedings  were  continued 
in  the  bail-bond  suit  to  judgment,  on  which 
an  execution  has  issued  for  the  costs.  The 
application  is  to  set  aside  the  proceedings  and 
execution  in  the  bail-bond  suit.  It  is  estab- 
lished, with  respect  to  tendering  costs  on  a 
rule  to  stay  proceedings  on  the  bail-bond,  that 
it  is  the  defendant's  duty,  when  the  rule  is  ob- 
tained, to  plead  and  tender  costs.  (Cannon, 
manucaptor,  ads.  Cathcart,  ante,  p.  84.)  There 
was  no  rule  to  stay  proceedings  :  but  an  equiv- 
ocal agreement  in  the  place  of  that  rule,  and 
should  receive  the  same  construction.  It  was 
the  duty  of  the  attorney  of  the  defendant  to 
plead  and  pay  costs.  This  would  have  been 
ordered  had  he  not  proceeded  in  the  original 
suit;  but  when  he  did  that,  it  was  a  waiver  of 
his  proceedings  on  the  bail-bond,  and  a  waiver 
of  the  right  to  a  plea  from  the  opposite  side. 
The  proceedings  must  be  set  aside  on  payment 
COL.  AND  CAINES.  N.  Y.  REP.,  BOOK  1. 


of  costs  up  to  the  time  when  special  bail  was 
entered  and  notice  of  that  bail  given.  (See 
Grove  ads.  Campbell,  ante,  p.  115.) 


W.  P.  VAN  NESS 

v. 
GEORGE  GARDINER. 

Fine — Proclamation  nunc  pro  tune. 

rpHE  last  proclamation  of  a  fine  had  been 
-L  omitted;  it  ought  regularly  to  have  been 
made  last  term;  the  application  now  was,  to 
have  it  made  nunc  pro  tune,  and  indorsed  as  of 
the  last  term. 

*Per  Curiam.     We  see  no  objection  [*166 
to  it  at  present. 

Ruled  accordingly. 


A.  M'GREGOR  «.  C.  LOVELAND. 

THE  SAME  v.  JOHN  B.  ARNET. 

THE  SAME  v.  THE  SAME. 

Costs — In    Supreme    Court — Limitation  of 
Amount. 

THIS  was  a  question  of  practice,  submitted 
to  the  decision  of  the  court  on  the  follow- 
ing statement: 

The  above  suits  were  brought  on  notes  ex- 
ceeding two  hundred  and  fifty  dollars  each; 
afterwards  a  sum  of  money  was  paid,  and 
security  given  by  Loveland,  the  indorser,  by 
which  the  amount  was  reduced  below  $250: 
cognovits  were  then  given  for  the  residue  by 
each  defendant.  It  was  understood  at  the  time, 
by  the  defendant's  attorney,  that  the  judg- 
ments should  carry  Supreme  Court  costs. 
Query,  May  not  the  clerk  tax  them  accord- 
ingly? 

Per  Curiam.  No;  the  plaintiff  should  have 
taken  his  cognovit  and  entered  his  judgment  for 
a  sum  above  $250,  to  entitle  to  Supreme  Court 
costs;  they  cannot  otherwise  be  allowed. 


JAMES  AND  SAMUEL  WATSON 


FREDERICK  DEPEYSTER  &  CO. 

Costs — Compromise  of  Action. 

THIS  and  three  other  suits  were  commenced, 
against  the  above  defendants  and  several 
others,  on  a  *policy  of  insurance  on  [*167 
the  brig  Defiance,  and  a  consolidation  rule 
signed  and  entered.  About  a  year  afterwards 
the  defendants,  in  the  above  suit,  compromised 
with  the  plaintiffs,  who  cancelled  the  policy  as 
to  them;  of  this  the  defendants'  attorney  had 
no  information,  nor  was  there  any  rule  to  dis- 
continue, or  other  rule  entered,  and  the  other 
suits  proceeded.  The  principle  cause  went  on 
to  trial,  and  the  jury  found  a  verdict  for  the 

8  113 


167 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


defendant,  which  was  acquiesced  in.  The  de- 
fendants' attorney  thereupon  entered  rules  for 
judgment  as  in  case  of  non-suit  in  all  the 
causes,  pursuant  to  the  consolidation  rule,  and 
the  costs  were  taxed  and  judgment  rolls  ready 
to  be  signed.  It  was  now  submitted  to  the 
court  on  these  facts,to  decide  whether  the  rules 
for  judgment,  and  the  judgment  for  costs  as  in 
case  of  non-suit,  were  regular  or  not;  or, 
whether  they  ought  to  be  set  aside.  N.  B. — 
At  the  time  of  compromise  nothing  was  said 
about  costs. 

Mr.  Hoffman,  as  amicus  curia,  informed  the 
bench  that  in  Wallace  v.  Lockwell  it  had  been 
decided  that  if  a  party  compromised  without 
the  knowledge  of  his  attorney,  and  the  plaint- 
iff went  on,  each  paid  his  own  costs. 

Per  Curiam.  In  every  suit  each  party  is 
supposed  to  advance  as  his  suit  proceeds.  If 
each  has  paid  costs  and  then  they  compromise, 
the  suit  is  settled;  for  the  transaction  imports 
no  further  proceeding  is  to  be  had;  nothing 
more  than  a  simple  discontinuance  to  enter  on 
record,  and  nothing  being  said  about  costs, 
each  must  pay  his  own.  The  parties  ought  to 
have  informed  their  attorneys  there  was  a  com- 
promise. 


168*]       *HUDSON  0.  HENRY. 

Nonsuit — Trial  not  7iad — Notice  sent  by  Mail. 

MR.  HENRY  moved  for  judgment  of  non- 
suit against  the  plaintiff  for  nt»t  proceed- 
ing to  trial.     Notice  of  the  motion  had  been 
sent  to  the  adverse  attorney  by  the  mail. 

Per  Curiam.  This  notice  is  insufficient.  A 
letter  may  miscarry;  or  the  attorney  may  be 
absent  when  the  mail  arrives,  or  not  immedi- 
ately inquire  for  letters,  though  an  affidavit  of 
a  plea  sent  by  the  mail  might  save  a  default. 
Let  the  defendant  take  nothing  by  his  motion.1 


MANHATTAN  COMPANY 


SMITH,  in  custody. 

Imprisoned  Debtor  —  Delay  in  enforcing  Execu- 
tion. 

THIS  case  was  brought  up  from  the  Mayor's 
Court.  The  application  was  to  prevent  the 
discharge  of  the  defendant  on  account  of  the 
plaintiffs'  not  proceeding  to  execution  in  due 
time,  according  to  the  act  for  the  relief  of  debt- 
ors with  respect  to  the  imprisonment  of  their 
persons;  the  counsel  for  the  plaintiff  relied  on 
Bmntingharri  '*  case  (ante,  p.  48).  The  court, 
without  hearing  any  argument  for  the  defend- 
ant, said  the  authority  cited  was  conclusive. 

LIVINGSTON,  J.,  acquiesced  because  it  had 
been  so  decided,  but  confessed  he  did  not  be- 
lieve the  Legislature  intended  the  construction 
put  upon  the  act  by  the  court  should  ever  be 
given  to  it.  The  rigor  of  the  practice  was,  in 
his  opinion,  enough  to  condemn  it,  for  he 

1—  See  Cole  et  al.  ads.  Stafford,  ante,  p.  110  ;  Beebe 
i  ds.  Paddock,  ante,  p.  135. 

114 


thought  the  neglect  in  the  plaintiff  ought  to 
accrue  to  the  advantage  of  the  prisoner. 


*STEELE  ET  ux.  ads  TENANT.  [*16» 

STEELE,  AND  FULLER,  his  bail, 

ads. 

TENANT,    Assignee    of   the    SHERIFF    OF 
WASHINGTON. 

Default — Regularity  of  Proceedings  on  Bail-bond 
— Costs. 

rPHE  original  suit  was  trespass  quare  clausum 
JL  fregit,  in  which  Steele  and  his  wife  had 
been  held  to  bail  under  the  statute  (81st 
March,  1801,  c.  102,s.  3);  after  the  return 
of  the  writ  the  plaintiff  obtained  an  assignment 
of  the  bail-bond  on  which  he  issued  the  usual 
process,  filed  his  declaration  on  the  first  of 
October,  1802,  and  entered  a  default  the 
llth  of  November;  on  the  17th  the  partner  of 
the  plaintiff's  attorney  received,  when  in  his 
office,  notice  of  the  retainer  of  an  attorney  on 
behalf  of  the  defendants  in  the  bail-bond  suit, 
but  no  information  was  then  given  of  any  de- 
fault having  been  entered.  In  January  follow- 
ing final  judgment  was  signed.  On  the  eighth  of 
March,  1803,  the  attorney  for  the  defendants,  in 
the  bail-bond  suit,  was  served  with  a  notice  of 
executing  a  writ  of  inquiry1  in  the  original 
suit;  a  declaration  also  in  the  same  suit  was 
then  delivered,  which  the  plaintiff's  attorney 
swore  was  merely  to  apprize  the  defendant  of 
the  nature  of  the  demand ;  but  the  attorney  of  the 
defendant  swore  it  was  served  absolutely,  not 
on  any  condition,  and  that  he  did  not  know  of 
the  entry  of  the  default  in  the  bail-bond  suit,or 
that  any  declaration  had  been  filed;  that  acting 
under  that  impression  he  did  not  attend  the 
execution  of  the  writ  of  inquiry,  or  apply  to 
the  court  last  term.  On  these  facts  the  de- 
fendant now  moved  that  the  default  and  inter- 
locutory judgment  in  the  original  action,  and 
all  the  proceedings  in  the  *bail-bond  [*17O 
suit,  be  set  aside,  and  the  defendants,  in  the 
original  cause,  let  in  to  plead. 

Per  Curiam.  The  court  are  of  opinion  the 
defendant's  attorney  was  in  default.  He  ought 
to  have  seen  that  the  proceedings  in  the  suit  on 
the  bail-bond  were  regular.  He  should  have 
called  after  the  default  and  tendered  costs.  We 
do  not  say  that  the  not  disclosing  the  entry  of 
the  default  in  the  suit  against  the  bail  amounts 
to  a  surprise,  but  it  would-  have  been  rather 
more'  candid  to  have  mentioned  that  circum- 
stance. Let  the  judgment  on  the  bail-bond  stand 
as  security,  and  the  costs  on  that  remain  also. 
The  default  and  subsequent  proceedings  in  the 
original  suit  to  be  set  aside  on  payment  of  the 
costs  of  entering  the  judgment  under  the  stat- 
ute, and  executing  the  writ  of  inquiry.  The 
defendant  to  plead  instanter  to  the  declaration 
filed,  take  short  notice  of  trial,  and  pay  the 
costs  of  this  application. 

LIVINGSTON,  J.,  I  think  the  costs  on  the  bail- 
bond  ought  to  be  paid. 

1.— Under  s.  16,  of  c.  90,  of  31st  March,  1801. 

COL.  AND  CAINES. 


1803 


WILLIAM  LOWRY  v.  ANDREW  LAWRENCE. 


170 


WILLIAM  LOWRY 

v. 
ANDREW  LAWRENCE. 

Demurrer —  Writ — Declaration  Captioned  as  be- 
fore the  Date  of  tlie  Demand. 

Citation— 2  Doug.,  61. 

ON  demurrer.     The  memorandum  was  of  an- 
other term. 

Be  it  remembered,  that  heretofore,  to  wit,  on 
the  third  Tuesday  of  July,  in  July  Term,  in 
the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  one,  &c.,  came  William  Lowry,  and 
brought  into  the  said  court  then  there  his  cer- 
tain bill,  &c. 

171*]  *The  declaration  was  on  a  bill  of  ex- 
change, made  in  1797, presented  for  acceptance 
on  the  first  of  October,  1801,  and  refused,  of 
which  notice  to  the  defendant  .who  on  the  llth 
of  October  promised. 

To  this  the  defendant  demurred,  and  showed 
for  cause,  that  although  the  said  declaration  is 
entitled  of  the  term  of  July,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  one,  yet 
the  said  several  promises  and  undertakings  in 
the  said  declaration  mentioned,  are  therein 
stated  to  have  been  made  on  the  eleventh  day 
of  October,  in  the  year  last  aforesaid,  which  is 
subsequent  to  the  time  of  the  exhibiting  the 
declaration  of  the  said  William  against  the  said 
Andrew,  and  for  that  it  appears,  by  the  said 
declaration,  that  the  pretended  causes  of  action 
therein  specified  had  not,  nor  had  either  of 
them  accrued  to  the  said  William  at  the  time 
of  the  exhibiting  his  said  bill  in  manner  afore- 
said. The  defendant  insisted  that  by  the  practice 
of  this  court  the  suing  out  of  the  writ  was  the 
commencement  of  the  action;  and  if  so,  the 
declaration  showed,  on  the  face  of  it,  no  cause 
of  action  when  the  suit  was  commenced. 

Mr.  Ogden,  for  the  plaintiff.  It  is  contended  | 
on  the  part  of  the  plaintiff  that  nothing  appears  I 
on  this  record  to  warrant  a  judgment  for  the  | 
defendant. 

By  the  course  of  the  court  the  filing  of  the  j 
bill  is  the  commencement  of  the  action  in  a  | 
legal  sense.1 

The  Ifttitat  is  considered  only  as  process. 
172*]  *The  action  is  not  deemed  to  be  com-  j 
menced  until  the  bill  is  filed,  though  the  real  j 
time  of  suing  ont  the  latilat  is  allowed  to  be  j 
shown,  where  it  becomes  material;  as  to  pre- ! 
vent  the  running  of  the  statute  of  limitations,  I 
&c.  (Cowper  454,  Foster  v.  Bonner.)  If  such  i 
a  necessity  existed  in  this  case  the  actual  time  i 
of  suing  out  the  final  process  might  have  been  I 
shown  by  plea.  But  where  it  does  not  exist  I 
the  fiction  of  law  will  be  preserved,  and  es- 1 
pecially  so  when  it  is  in  furtherance  of  justice,  j 
On  this  occasion,  the  true  question  therefore  | 
is,  when,  in  a  legal  or  technical  sense,  was  this  ! 
action  commenced?  This  can  only  be  ascer- 
tained by  showing  the  time  of  filing  the  bill.  I 
(1  Comyn's  Digest,  103;  Mod.  Cases,33.)  The  I 
time  of  filing  the  bill  may  be  examined  into  j 
to  show  the  time  of  commencing  the  action.  ; 
It  ought  to  have  been  shown  by  pleading  in 
this  case.  Not  being  shown,  the  court  are  at  : 
liberty  to  presume  that  it  was  after  the  cause 

1.— 2  Burr.,  950,  Johnson  et  al.  v.  Smith.  See  Lord 
Mansfield's  opinion,  961. 

COL.  AND  CAINES. 


of  action  accrued.  The  caption  of  the  decla- 
ration is  matter  of  fiction,  and  not  conclusive 
upon  either  party.  If  it  be  conclusive,  all  ac- 
tions by  bill  of  privilege;  actions  against  at- 
torneys of  the  court;  actions  against  absent  or 
absconding  debtors,  giving  security  to  appear 
to  any  declaration  which  may  be  filed  by  the 
petitioning  creditor,  would  be  defeated  in  all 
cases  in  which  the  cause  of  action  accrued, 
during  the  vacation  in  which  the  declaration 
is  filed.  Because,  in  all  these  cases,  the  dec- 
laration is  entitled  of  the  preceding  term,  and 
must  necessarily  be  stated  in  the  memoran- 
dum to  have  been  brought  into  court  of  that 
term.  This  doctrine  involves  no  hardship  upon 
the  defendant;  because  if  in  the  first  instance 
process  be  issued  before  the  cause  of  action 
accrued,  a  judge  will  discharge  on  common 
bail.  So  if  the  bill  filed  before  cause  of  action 
accrued,  the  actual  time  of  filing  it  may 
*be  shown  and  pleaded  in  abatement  or  [*1 7o 
in  bar.  In  this  case  it  does  not  necessarily 
follow  that  the  cause  of  action  did  not  accrue 
before  the  commencement  of  the  action,  and 
the  time  of  that  commencement  not  being 
shown,  the  court  are  at  liberty,  and  ought  to 
presume  it  to  have  accrued  afterwards. 

In  addition  to  this  general  reasoning  on  this 
subject,  it  may  be  observed  that,  in  this  in- 
stance, the  real  cause  of  action  is  stated  to 
have  occurred  in  1797,  being  the  date  of  the 
bill  of  exchange  and  long  prior  to  the  issuing 
of  process.  It  is  the  assumption,  founded  on 
that  undertaking,  which  is  stated  to  have  been 
made  in  October,  1801;  and  the  time  of  the 
promise  being  wholly  immaterial,  the  court 
will,  in  this  circumstance,  see  an  additional 
motive  for  adopting  the  principle  contended 
for  by  the  plaintiff. 

Per  Cunam.  This  case  comes  before  the 
court  on  demurrer.  It  was  an  action  of  as- 
sitmpsit,  and  the  declaration  captioned  of  July 
Term,  1801.  The  time  laid  in  the  declaration, 
at  which  the  cause  of  action  arose,  is  on  the 
llth  day  of  October,  1801.  To  this  there  is  a 
special  demurrer,  alleging  for  cause  that  the 
action  appears  from  the  declaration  to  have 
commenced  before  cause  of  action  arose.  It 
is,  we  take  it,  well  settled,  that  if  the  plaint- 
iff, at  the  commencement  of  his  suit,  had  no 
cause  of  action,  a  subsequent  right  would  not 
maintain  his  action.  And  it  has  been  settled 
in  this  court,  in  the  case  of  Carpenter  v.  But- 
ter-field, that  as  to  every  material  purpose,  the 
issuing  the  writ  was  the  commencement  of  the 
suit — so  that  a  *note  purchased  by  the  [*174 
defendant  after  that  time  could  not  be  set  off 
against  the  plaintiff's  demand.1 

The  declaration  must  be  captioned  of  the 
term  when  the  writ  is  returned  served.  This 
point  is  settled  in  the  case  of  Smith  v.  Mutter, 
and  it  is  there  also  determined  that  the  plaint- 
iff cannot  recover  any  demand,  after  the  term, 
when  the  writ  is  returnable,  though  before  the 
declaration  is  actually  filed.  Justice  Buller 
there  says,  according  to  the  ancient  practice, 
the  declaration  was  actually  delivered  the  same 
term  the  writ  was  returned,  and  it  was  only  in 
ease  of  the  plaintiff  that  the  time  of  actual  de- 
livery was  enlarged,  but  still  it  must  be  con- 
sidered as  delivered  nunc  pro  tune. 

1. — See  Crygiers  v.  Long,  ante,  p.  106. 

115 


174 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


Upon  the  principles  of  these  authorities, 
therefore,  it  must  appear  from  the  face  of  the 
declaration  in  this  cause,  and  the  court  must 
necessarily  intend  the  facts,  that  the  writ  was 
returned  in  July  Term,  1801,  and  of  course 
the  action,  both  in  fact,  and  technically  speak- 
ing, commenced  previous  to  that  time.  But 
the  plaintiff  alleges  his  cause  of  action  to  have 
arisen  on  the  llth  of  October  thereafter.  We 
think,  therefore,  it  appears  upon  the  face  of  the 
record  that  the  action  was  commenced  before 
the  right  of  action  accrued.  The  time  of 
actually  filing  the  declaration  cannot,  as  con- 
tended by  the  plaintiff's  counsel,  be  considered 
the  commencement  of  the  suit;  if,  therefore, 
the  defendant,  by  plea,  had  put  the  fact  in 
issue,  it  would  have  been  an  immaterial  fact; 
all  the  material  facts  appear  by  the  plaintiff's 
own  showing.  In  the  case  of  Ward  v.  Honey- 
wood  (Doug.,  61),3  the  judgment  was  reversed 
on  writ  of  error,  on  the  ground  that  it  ap- 
175*J  peared  on  *the  face  of  the  record  that 
there  was  no  cause  of  action  when  the  suit  was 
commenced;  if  this  would  be  error  after  judg- 
ment, advantage  may  certainly  be  taken  of  it 
by  demurrer. 

We  are  therefore  of  opinion  that  judgment 
ought  to  be  for  the  defendant. 

LIVINGSTON,  J.  In  England  it  is  settled 
that  the  tiling  of  a  bill  or  declaration  is  to  be 
regarded  for  every  essential  purpose  as  the 
commencement  of  a  suit  (FwfeCowp.,  454); 
but  in  Carpenter  v.  Butterfield,  decided  by  the 
court,  a  different  rule  was  adopted.  The 
issuing  of  a  writ  was  there  considered  as  the 
beginning  of  action,  so  much  so  that  the  de- 
fendant was  not  permitted  to  set  off  against 
the  plaintiff's  demand,  a  note  which  he  had 
obtained  for  valuable  consideration  between 
the  sealing  of  the  process  and  the  arrest.  This 
rule,  to  operate  fairly,  must  be  mutual;  if  an 
action  begins  by  issuing  a  writ  so  as  to  deprive 
the  defendant  of  a  set-off  in  the  case  mention- 
ed, neither  ought  the  plaintiffs  to  recover  a  de- 
mand not  then  due.  My  judgment,  therefore, 
in  favor  of  the  defendant,  is  not  founded  on 
British  authorities,  but  entirely  on  a  former 
decision  of  our  own. 


M'NEIL'S  Case. 

Bail — Sentence — Of  Defendant  presenting  Him- 
self— No  Record  of  Conviction. 

THE  prisoner  had,  together  with  two  other 
persons,  been  convicted  of  a  conspiracy  at 
the  last  Oyer  and  Terminer  for  the  City  and 
County  of  New  York,  but  had  not  appeared 
on  his  recognizance  in  time  to  receive  sen- 
tence; he  afterwards  came  in,  and  was  now 
brought  up,  on  his  own  petition,  to  have 
176*]  judgment  *pronounced;  the  public 
prosecutor  appeared,  but  the  record  of  the 
conviction  not  being  made  up  and  brought 
into  court,  the  bench  said  they  had  nothing 

2.— That  case  was  on  inarshalsea  process,  where 
the  proceedings  are  by  plaint,  and  In  an  Inferior 
court  the  plaint  is  as  an  original.  Savage  v.  Knight, 
1  Leon.,  302.  See  the  observation  of  Ashhurst,  J., 
in  Doug.,  82. 

116 


before  them  on  which  to  proceed,  and   there- 
fore admitted  him  to  bail. 


ANONYMOUS. 

Motion — Service — On  Person  in  Attorney's 
House. 

THE  notice  of  motion  in  this  cause  was 
served  on  a  person  in  the  house  of  the 
attorney,  and  where  he  kept  his  office,  but 
held  not  sufficient,  as  it  ought  to  have  been  on 
a  clerk  in  the  office. ' 


MOYLE  v.  GILLINGHAM. 


•Ex- 


Non-enumerated    Motions  —  Late    Notice  • 

cuse — Counter  Affidavits. 

"M"OTIGE  may  be  served  on  an  agent  in  town 
ll  on  the  first  day  of  term,  to  show  cause  on 
the  next  day  for  non -enumerated  motions; 
but  then,  it  must  be  accompanied  with  a  suf- 
ficient excuse  for  not  having  been  for  the  first 
day.  If  the  excuse  be  received,  the  adverse 
party  will  have  till  next  term  to  send  into  the 
country  to  his  principal  for  counter  affidavit. 


ABRAHAM  L.   BRAIN 

v, 
RODELICKS  AND  SHIVERS. 

Commission  —  Vacatur  —  Examination  of  Wit- 
nesses. 

IN  this  cause,  it  was  necessary  to  examine  a 
witness  in  the  Havana;  and,  as  that  port 
was  open  only  to  certain  privileged  vessels,  in 
April,  1802,  a  *rule  for  a  commission  [*177 
was  granted  before  issue  joined,  to  prevent 
losing  an  opportunity  of  transmission  which 
then  presented  itself.  No  return  having  been 
made,  the  cause  was  noticed  for  trial  for  the 
last  sittings  in  March,  1803,  when  the  defend- 
ant's attorney,  seeing  some  witnesses  in  the 
court,  whose  absence,  he  feared,  might  delay 
the  cause  after  the  return  of  the  commission, 
appeared,  and  examined  them;  stating,  how- 
ever, the  circumstances  of  his  case,  and  that 
he  begged  to  be  considered  as  acting  without 
prejudice  to  his  future  rights.  He  now  moved 
to  set  aside  the  verdict,  with  costs;  the  plaint- 
iff having  proceeded  to  trial  without  vacating 
the  rule  for  the  commission. 

Per  Curiam.  When  a  rule  for  a  commis- 
sion has  been  obtained.it  suspends  the  cause  till, 
on  application  to  the  court,  a  vacatur  be 
ordered  and  entered.  But,  if  the  defendant 
appear  and  examine  witnesses,  it  is  a  waiver 
of  his  commission,  and  the  racatur  is  un- 
necessary. 

The  motion  must  be  refused. 

1.— Swartwout  ads.  Gclston,  ante,  p.  81.  "The 
service  must  be  on  some  person  in  the  office,  and 
belonging  there;  if  nobody  is  there,  it  must  be  up- 
on some  one  in  the  house  where  the  attorney  rev 
sides  or  the  office  is  kept ;  and  if  nobody  is  there,  it 
may  be  left  in  the  office." 

COL.  AND  CAINEB. 


1803 


CODWISE,  LUDLOW  &  Co.  V.  JOHN  HACKEK. 


177 


CODWISE,  LUDLOW  &  CO. 

v. 
JOHN  HACKER. 

1.  Making  Case  —  Amendments — Cross  Ver- 
dicts —  Plaintiff's  Irregularity  —  Judgment. 
2.  Practice — Case-  made  by  Defendant  or 
Plaintiff— Default. 

rpHE  plaintiffs,  in  the  sittings  of  June,  1802, 
J.  at  New  York,  as  owners  of  a  ship,  of 
which  the  defendant  was  captain,  had,  in  an 
action  against  him,  for  deviating  from  his 
orders,  obtained  a  verdict,  subject  to  the 
opinion  of  the  court,  on  a  case  to  be  made; 
and  he,  in  a  cross  suit,  had  recovered  against 
them  a  larger  sum,  subject  to  deductions,  in 
case  the  opinion  of  the  court  should  be  against 
him  as  to  certain  items  charged  and  allowed 
by  the  jury. 

178*]  *A  case  was  made  on  the  part  of  the 
defendant,  to  which  the  plaintiff  proposed 
amendments,  which  were  adopted;  the  cause 
was  then  noticed  for  argument,  for  the  next 
October  Term,  and  also  for  January  Term 
following,  in  Albany.  But,  it  was  then  recol- 
lected that  some  material  facts  had  been 
omitted,  without  which  the  case  could  not 
present  the  only  important  question  in  the 
cause.  This  was  mentioned  to  the  plaintiffs' 
attorney,  who  would  not  say  whether  he 
would  consent  to  the  amendments  or  not. 
The  papers  from  whence  they  were  to  be 
drawn,  and  the  case  perfected,  were  in  the 
hands  of  the  plaintiffs'  attorney  in  New  York, 
so  that  the  case  could  not  be  completed  in 
Albany.  No  application  was  made  to  a 
judge  to  correct  the  amendments.  Nor  had 
cases  been  delivered. 

Mr.  Hopkins  now  moved  to  set  aside  the  orig- 
inal order  to  stay  proceedings,  that  a  case  might 
be  made,  and  for  leave  to  enter  up  judg- 
ment. 

Mr.  Biker  resisted  the  application,  because 
the  case  was  imperfect,  and  the  papers  from 
whence  only  it  could  be  completed  were  in 
the  hands  of  the  plaintiffs. 

Per  Curiam.  We  must  deny  the  motion; 
because,  in  the  first  place,  there  were  cross 
verdicts  to  nearly  the  same  amount.  Second- 
ly, the  cases  were  never  perfected,  and  it  did 
not  appear  to  be  exclusively  the  fault  of 
either.  Thirdly,  the  plaintiffs'  attorney  not 
having  denied  the  omission  of  certain  material 
facts,  the  court  would  presume  they  had  ap- 
179*]  peared  *on  the  trial,  and  ought  to  be  a 
part  of  the  case.  Let  the  case  be  perfected 
within  thirty  days. 

Mr.  Hopkins  prayed  costs,  insisting  he  had 
been  regular. 

Per  Curiam.  We  consider  that  the  plaint- 
iffs were  irregular  in  not  answering  when  ap- 
plied to,  whether  they  would  receive  amend- 
ments or  not. 

N.  B. — It  was  said,  by  the  court,  that 
where  a  defendant,  after  verdict,  makes  a 
case,  and  notices  for  argument,  if  he  does  not 
appear  at  the  time  when  called,  judgment 
shall  go;  but  when  the  plaintiff  notices  a  case, 
made  on  the  part  of  the  defendant,  and  the 
plaintiff  is  not  ready,  it  shall  go  down. 
COL.  AND  CAIKES. 


CALLAGAN  ET  AL. 

v. 
HALLETT  &  BOWNE. 

1.  Contract  —  Validity — Contract  of  Pilot  to 
bring  in  Vessel.  2.  Arrest  of  Judgment — 
After  Attending  Inquest.  3.  New  Inquiry — 
Quantum  Meruit — Costs. 

THE  plaintiffs  were  pilots  of  the  port  of  New 
York;  the  defendants  owners  of  a  brig 
called  the  Neptune.  The  vessel  had  been 
driven  on  shore  at  Barnegat,  to  bring  her  from 
whence  safe  into  New  York,  the  defendants 
had  agreed  to  give  the  plaintiffs  five  hundred 
dollars,  and  the  service  having  been  perform- 
ed, the  present  action  was  instituted  to  re- 
cover the  money. 

The  declaration  consisted  of  four  counts: 
the  first,  an  agreement  with  the  captain  on  be- 
half of  his  owners;  the  second,  on  one  with 
the  owners  themselves;  the  third,  work  and 
labor  at  the  request  of  of  the  defendants;  the 
fourth,  a  quantum  meruerunt.  To  this  the 
defendants  pleaded  the  general  issue.  A  case 
was  *reserved  for  the  opinion  of  the  [*18O 
court  whether  the  action  was  maintainable  or 
not. 

Mr.  Pendleton,  for  the  plaintiffs.  It  has  long 
been  settled,  that  the  master  may,  when  in 
distress,  hypothecate  either  vessel  or  cargo 
for  necessaries  to  prosecute  his  voyage.  (Bar- 
nard v.  Bridgman,  Moore,  918 ;  Johnson  v. 
Sfiippen,  2  Ld.  Ray.,  984;  Noy,  95.)  A  for- 
tiori, he  may  bind  to  his  engagements,  when 
the  vessel  must  otherwise  be  lost.  If,  then, 
the  action  be  maintainable,  this  can  be  the 
only  tribunal ;  it  cannot  be  in  the  admiralty, 
and  the  reason  is,  that  court  has  jurisdiction 
in  cases  of  hypothecation  on  account  of  the 
extraordinary  interest,  and  because  the  con- 
tract is  on  the  credit  of  the  ship  or  goods  and 
their  safe  arrival.  Owners  are  not  liable  in 
the  Court  of  Admiralty.  (6  Mod.,  2.)  They 
must  then  be  answerable  here.  Whether  the 
contract  was  with  the  owners  or  the  master  is 
immaterial ;  for  the  contract  of  the  master  is 
obligatory  on  the  owner.  (1  Moll.,  331,  sec. 
14,  15.)  If  the  master  ransoms,  the  remedy  is 
against  the  owner  (Cornu  v.  Blackburn,  Doug. , 
619),  and  in  Tates  v.  Hatt,  the  plaintiff  recov- 
ered on  the  engagement  of  the  master  against 
the  owners,  though  the  vessel,  for  payment  of 
the  ransom  of  which  he  remained  as  a  hos- 
tage, was  given  up  in  satisfaction  of  the  ran- 
som bill.  In  addition  to  these  authorities,  the 
laws  of  the  State  render  the  contract  valid. 

Mr.  Boyd,  contra.  Principles  of  general  pol- 
icy and  the  invariable  leaning  of  the  court  are 
against  this  action;  the  words  of  our  law  are 
conclusive.  The  species  of  contract  in  which 
the  master  can  bind  his  owners,  and  the  dis- 
tinctions from  this  case  will  appear  to  the 
*courtin  1  Salk.,35;  2  Dall.,194;  [*181 
1  Bro.  Pa.  Ca.,  284,  and  Abbot  on  Shipping. 

Per  Curiam.  The  defendant  moves  in  ar- 
rest of  judgment.  The  declaration,  states, 

1st.  That  the  defendants  were  owners  of 
the  brig  Neptune  ;  that  the  brig,  when  at  sea 
and  bound  for  New  York,  was  in  distress ; 
that  the  plaintiffs  contracted  with  the  master 
to  bring  her  safe  into  port  for  $500  ;  that  they 
brought  her  in  accordingly. 

117 


181 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


2d.  The  like  against  the  owners. 
3d.  The  usual  counts  on  a  quantum  meruit. 
Three  questions  are  raised  : 
1st.  Whether  the  action  is  maintainable  on 
the  first  count,  which  involves  two  questions : 

1.  Could  the  master,  by  such  contract,  bind 
the  owners  ? 

2.  Was  the  contract  lawful,  the  plaintiffs 
being  branch  pilots  belonging  to  the  port  of 
New  York  ? 

3d.  Can  the  defendant  move  in  arrest  of 
judgment  after  attending  the  execution  of 
the  writ  of  inquiry,  and  examining  witnesses  ? 

3d.  May  not  the  court  order  an  inquiry  de 
now  on  the  third  count,  in  the  event  of  the 
first  and  second  being  held  bad  ? 
182*]     *The  question  of  the  right  of  the  mas- 
ter to  bind  owners,  it  is  not  necessary  to  decide. 

The  legality  of  the  contract  is  most  material. 

The  act  for  the  regulation  of  pilots  and 
pilotage  for  the  port  of  New  York  (7  sess., 
ch.  31,  s.  2  and  3.)  makes  it  the  duty  of  pilots 
to  give  all  the  aid  and  assistance  in  their 
power  to  any  vessel  appearing  in  distress  on 
the  coast,  and  for  neglect  or  refusal  subjects 
them  to  a  fine  or  forfeiture  of  their  places;  but 
for  the  encouragement  of  such  pilots  who  shall 
distinguish  themselves  by  their  activity  and 
readiness  to  aid  vessels  in  distress,  it  enacts, 
that  the  master  or  owner  of  such  vessel  shall 
pay  to  such  pilot,  who  shall  have  exerted  him- 
self for  the  preservation  of  such  vessel,  such 
sum  for  extra  services  as  the  master  or  owner 
and  such  pilot  can  agree  upon ;  and  in  case 
no  such  agreement  can  be  made,  the  master 
and  wardens  of  the  port  are  empowered  to  as- 
certain the  reasonable  reward. 

It  being  made  the  duty  of  the  pilots  to  as- 
sist the  defendant's  vessel,  it  was  oppression, 
in  them  to  exact  the  stipulation  in  question. 
It  would  lead  to  abuses  of  the  most  serious 
nature  if  such  contracts,  founded  on  such 
considerations,  were  held  to  be  legal.  There 
are  several  cases  in  the  books  tending  to  show 
the  leaning  of  courts  of  justice  against  the 
oppressions  of  persons  in  public  trust,  and 
the  illegality  of  exacting  previous  reward  for 
doing  their  duty.  (Bridge  and  Case,  Cro. 
Jac.,103;  Stolesbury  v.  Smith,  2  Burr.,  924.) 
The  law  allows  them  sufficient  compensation 
for  extraordinary  exertion  after  the  service 
performed ;  which  shows  it  was  an  object 
with  the  Legislature  to  prevent  undue  advan- 
183*]  tages  *being  taken.  We  are,  there- 
fore, of  opinion,  the  first  and  second 
counts  are  bad,  as  contrary  to  public  policy 
and  the  spirit  of  the  act.  As  to  the  second 
question,  whether  it  be  too  late  to  move  in 
arrest  of  judgment  after  attending  the  execu- 
tion of  the  writ  of  inquiry,  we  are  of 
opinion  the  authorities  adduced  do  not  apply 
to  questions  on  the  merits,  but  only  to  formal 
defects  in  the  pleadings.  (1  Sell.,  528;  2 
Wils.,  380.) 

On  the  third  point  we  are  of  opinion,  on 
the  authority  of  Eddoire*  v.  Hopkins,  in  Doug- 
las, that  the  plaintiff  may,  on  payment  of 
costs,  have  (if  he  solicits  it)  an  inquiry  de  now 
on  the  quantum  meruit,  reserving  the  ques- 
tion, however,  whether,  on  such  inquest,  he 
shall  be  entitled  to  more  than  his  legal  allow- 
ance, not  having  made  the  prescribed  appeal 
to  the  master  and  wardens. 
118 


AUGUST  TERM,  1803. 


JOTHAM  POST 

v. 

WILLIAM  WRIGHT  AND  ROBERT 
BUCHAN. 

Default — Affidavit  of  Merits — Absence    of 
Counsel. 

AN  inquest  had  been  taken  in  this  cause,  at 
the  last  sittings,  in  June,  at  New  York. 

Mr.  Hoffman  moved  to  set  it  aside,  on  two 
affidavits,  one  made  by  the  defendants,  which 
stated  that  they  verily  *believed  [*184 
he  had  a  good,  substantial,  and  legal  defence; 
the  other  by  the  counsel  in  the  cause.  This  last 
set  forth  that  he  was  counsel  for  the  Humane 
Society  of  New  York,  and,  in  that  capacity, 
obliged  to  visit  the  jail  on  Monday  in  every 
week ;  that  this  cause  being  noticed  for  trial 
on  a  Monday,  he  came  into  court  instantly 
after  discharging  his  duty  to  the  society, 
when  he  found  an  inquest  had  been  taken  in 
the  suit ;  that  he,  on  the  same  day,  wrote  to 
the  attorney  of  the  plaintiff,  offering  to  pay 
all  the  costs  of  the  inquest,  and  to  engage  to 
try  the  cause  in  the  then  sittings,  if  the  plaint- 
iff would  abandon  his  inquest,  which  he  re- 
fused to  do. 

Mr.  Hoffman  also  observed,  the  calendar 
had  been  gone  through  more  than  once,  and 
that  the  plaintiff  needed  not  to  have  lost  the 
sittings  but  for  his  own  obstinacy. 

Mr.  Woods  relied  on  the  counter  affidavit  of 
the  plaintiff's  attorney,  which  stated  that  the 
cause  was  duly  set  down  in  its  order,  on  the 
day-docket ;  that  it  was  regularly  called  and 

tried;  that  when  called  on, , 

Esquire,  was  in  court,  and  in  the  hearing  of 
the  deponent,  said  he  was  of  counsel  for  the 
defendants,  but  as  he  did  not  see  his  clients, 
nor  any  of  their  witnesses,  he  would  not  ap- 
pear ;  that  on  this  the  defendants  were  called, 
and  an  inquest  taken. 

Mr.  Woods  remarked,  that,  if  after  these  facts 
the  inquest  should  be  set  aside,  there  would  be 
no  end  to  these  applications.  A  defendant 
had  only  to  keep  himself  and  his  witnesses,  or 
even  his  counsel  out  *of  the  way,  and  [*  1 8£» 
be  sure  to  gain  a  term  whenever  he  pleased. 

Per  Curtain.  All  reasonable  notice  to  at- 
tend and  defend  the  suit  was  given.  The 
cause  was  on  the  day-docket,  and  there  is 
no  kind  of  excuse  why  the  defendants  were 
absent.  They  had  a  counsel  in  court,  and 
might  have  been  there  themselves,  with  their 
witnesses.  The  defendants,  therefore,  can 
take  nothing  by  their  motion. 

N.  B. — Hoffman  urged  strongly  the  rigor  of 
the  practice,  that  it  would  operate  only 
against  the  attorney  of  the  defendant ;  that 
this  was  the  first  instance  of  such  strictness. 
The  court  answered,  there  must  be  a  first  time 
in  all  proceedings ;  that  they  found  it  neces- 
sary to  enforce  their  rules,  and  had  made  a 
determination  so  to  do,  as  the  only  mode  of 
having  them  obeyed. 

COL.  AND  CAINES. 


1803 


JOHN  P.  RYERS  v.  WILLIAM  HILLYEK. 


185 


JOHN  P.  RYERS  t>.  WILLIAM  HILLYER. 

Nonsuit — Trial  not  had — Mistake  in  Notice — 
Costs — Stipulation. 

O  FENCER  moved,  on  the  common  affidavit, 
O  for  judgment  as  in  case  of  nonsuit  for  not 
proceeding  to  trial. 

Mr.  Hoffman  resisted  the  application,  because 
the  notice  was  titled  William  Hillyer  v.  John  P. 
Ryers  instead  of  William  Hillyer  ads.  John  P. 
Ryers :  this,  he  said,  was  fatal,  there  being  no 
such  suit  in  existence  as  the  one  in  which  the 
notice  was  given,  but  he  added,  he  would  not 
186*]  have  urged  it  except  from  its  being  *one 
of  Mr.  Colden's  causes,  whose  state  of  health 
the  whole  court  knew. 

Mr.  Spencer,  contra,  observed,  that  there  could 
be  no  force  in  the  objection,  unless  it  appeared 
that  the  party  had  been  misled:1  The  notice 
was  for  judgment  as  in  case  of  nonsuit  for  not 
proceeding  to  trial,  therefore  it  must  have  come 
from  a  defendant.  In  the  next  place,  it  was 
on  an  affidavit,  a  copy  whereof  was  annexed, 
and  that  affidavit  was  rightly  entitled.  It  is 
&  mere  question  of  who  shall  pay  costs.  There 
has  been  no  countermand,  and  the  defendant 
kept  all  the  circuit  with  his  witnesses. 

Mr.  Hoffman.  As  this  is  the  first  default, 
will  the  court  oblige  us  to  stipulate? 

Per  Curiam.  Stipulate  to  try  at  the  next 
circuit  for  the  City  and  County  of  New  York, 
jmd  pay  the  costs  of  the  present  application. 


.JAMES  BRANDT,  on  the  demise  of  WILLIAM 
RICKETS  VAN  COURTLANDT,  and  PHILIP 
VAN  COURTLANDT, 

t>. 

MATTHIAS  BUCKHOUT  and  ABRAHAM 
BUCKHOUT. 

Nonsuit — Trial  not  had — Laches — Costs. 

,  fPHE  issue  in  this  cause  had  been  joined  in 
J.  January,  1801,  and  notice  of  trial  given 
187*]  in  the  June  following:  *it,  however, 
(lid  not  come  on,  in  consequence  of  the  de. 
fendant's  applying  for  a  commission  to  obtain 
testimony  from  Virginia.  On  the  arrival  of 
the  commission  in  that  State,  it  was  found  the 
witness  had  removed  into  Kentucky,  whither 
he  was  followed,  and  his  evidence  to  the  inter- 
rogatories taken,  on  a  deposition  made  before 
two  justices  of  the  peace.  A  copy  of  this,  ac- 
companied with  an  affidavit  of  the  facts,  was 
served  on  the  plaintiff's  attorney  in  August, 
1802,  and  communication  at  the  same  time 
made,  that  a  regular  commission  would  be  sued 
•out  and  sent  into  Kentucky.  On  this  the 
plaintiff  did  not  notice  for  trial;  however,  for 
not  proceeding  to  which, 

Mr.  Woods  now  moved  for  judgment  as  in 
case  of  nonsuit. 

1. — On  the  same  principle,  where  a  notice  of  exe- 
cuting a  writ  of  inquiry  "  on  Tuesday,  the  14th  of 
January  instant,"  was  given,  the  court  of  C.  B.  re- 
fused to  set  aside  the  execution  of  the  writ  because 
the  14th  was  on  a  Thursday,  saying  it  was.  clear  the 
•defendant  could  not  have  been  misled.  Batten  and 
Harrison,  3  Bos.  &  Pull.,  1. 

€OL.  AND  CAINES. 


Mr.  Spencer  opposed  the  application  as  being 
too  late,  insisting  it  ought  to  have  been  made 
the  very  first  term  after  the  neglect. 

Per  Curiam.  The  defendant  has  not  ac- 
counted for  his  delay;  if  that  be  not  done,  and 
the  application  be  not  immediately  after  the 
laches,  the  default  is  waived,  and  cannot  now 
be  taken  advantage  of. 

Mr.  Woods  hoped  the  covyjt  would  order  the 
plaintiff  to  stipulate. 

Per  Curiam.     He  is  not  bound  to  stipulate. 
Spencer  prayed  costs  for  resisting  the  appli- 
cation. 

Per  Curiam.     Let  the  plaintiff  take  them. 

*Ordered,  That  the  defendant  take  [*188 
nothing  by  his  motion,  and  pay  the  plaintiff  hi* 
costs  of  opposing. 


PETER  A.  CAMMAN 

0. 

THE    NEW    YORK    INSURANCE    COM- 
PANY. 

Consolidation — Actions  on  Policies  of  Insurance. 

THE  plaintiff  had,  for  himself  and  several 
other  persons  with  whom  he  was  variously 
interested,  effected  eleven  policies  on  distinct 
parts  of  the  cargo  of  the  same  vessel.  The 
name  of  the  plaintiff  was  in  each  insurance, 
but  associated  with  different  parties,  according 
as  he  was  connected.  The  point  in  dispute 
was  the  same  in  all. 

Mr.  Hoffman  moved  to  consolidate  the  actions, 
or  to  stay  proceedings,  in  ten  of  the  suits,  till 
the  eleventh  was  determined;  the  defendants 
being  willing  to  pay  on  the  residue,  if  that 
should  be  determined  against  them.  The  ob- 
ject of  his  endeavour  was,  as  he  said,  to  save 
the  enormous  costs  which  would  otherwise 
accrue. 

Mr.  L.  Ogden.  The  contracts  are  several;  and 
though  a  number  of  actions  on  one  policy  will 
be  consolidated,  that  is  because  the  contract  is 
one;  and  therefore,  the  very  reason  of  the 
practice  in  such  a  case,  is  sufficient  to  overrule 
the  present  application. 

An  application  was  made  by  myself  to  this 
court  for  leave  to  consolidate  five  actions  on 
five  promissory  *notes  to  the  same  [*189 
plaintiff,  and  refused,  because  of  the  diversity 
of  the  contracts.1 

Per  Curiam.  The  contracts  being  separate 
and  independent,  it  is  not  a  case  for  consolida- 
tion, and  not  to  be  distinguished  from  that  of 
the  notes.  There  never  was  an  instance  of 
consolidating  different  policies. 

1. — By  the  practice  of  the  English  courts,  if  the 
defendant  be  held  to  bail  in  two  actions  which  might 
be  joined,  the  plaintiff  will  be  obliged  to  consolidate 
and  have  to  pay  the  costs  of  the  application.  Cecil 
v.  Briggs(2D."&E.,  639.) 

119 


189 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


JAMES  SHUTER 

0. 
RICHARD  S.  HALLETT. 

1.  Commission — Vacatur—  Other  Party  Joining. 
2.  Idem — Rule  to  try  without  Commission. 

DL.  OGDEN  moved  for  a  rule  to  vacate  the 
.    rule  for  a  commission  which  had  issued 
in  this  cause,  in  the  spring  of  1802.     The  facts, 
as  appeared  by  affidavit,  were  these: 

A  commission  had  issued  at  that  time,  in 
which  the  defendant  had  joined,  but  not  being 
returned,  another  was  sued  out  in  November 
last,  and  as  there  were  no  hopes  of  the  first  be- 
ing returned,  the  parties  agreed  that  the  testi- 
mony taken  on  the  second,  which  was  on  the 
same  interrogatories,  should  be  read  in  evi- 
dence on  the  trial.  After  this,  the  cause  was 
duly  noticed,  but  the  judge  refused  to  let  it 
come  on,  as  the  counsel  for  the  defendant  had 
joined  in  the  commission. 

Per  Curiam.  The  commission  is  as  much 
the  defendant's  as  the  plaintiff's,  and  he  may 
19O*]  take  the  benefit  *of  it  on  trial.  We 
cannot,  therefore,  vacate  the  rule,  but  the 
plaintiff  may  have  one  to  proceed  to  trial  not- 
withstanding the  commission.1 


JOSEPH  GROVER  v.  BENJAMIN  GREEN. 

Arrest — WJiUe  Attending   Court — Rule  to  Dis- 
charge— Notice. 

THE  defendant  was  attending  a  reference, 
under  a  rule  of  the  Court  of  Common  Pleas 
for  Cayuga,  in  a  suit  wherein  he  was  plaintiff 
and  the  present  plaintiff  defendant,  when  he 
(Green)  was  arrested  by  Grover  on  a  writ  out 
of  this  court. 

Mr.  Emott  moved  for  a  rule  that  the  defendant 
be  discharged  out  of  custody,  on  common  bail, 
the  plaintiff  having  abused  the  process  of  the 
court,  but  no  notice  had  been  given  of  the 
motion. 

Per  Curiam.  By  this  means  anybody  may 
get  himself  discharged. 

Mr.  Emott.  If  the  affidavit  be  false,  the  party 
may  be  indicted  for  perjury. 

Per  Curiam:  But  the  plaintiff  may  lose  his 
debt.  Take  a  rule  to  show  cause  the*  first  day 
of  next  term,  why  he  should  not  be  discharged, 
and  in  the  meantime,  let  proceedings  be  stayed. 


HUGH  LACKEY  and  JOSHUA  BRIGGS 

v. 
DANIEL  M'DONALD. 

Discontinuance — Cost* — Defendant  in  Prison. 
rp HE  plaintiffs,  in  July,  1802,  had  stipulated 

-L     to  try  this  cause  at  the  next  Circuit  Court, 
and  did  not  do  so. 

191*]     *Mr.  M.  E.  nildreth,  on  this  ground, 
now  moved  for  judgment  as  in  case  of  non-suit. 

L— See  Brain   v.   Rodelicks    and   Shivers,   ante, 
p.  176. 

120 


Mr.  Schoenhoven,  read  an  affidavit,  which  was 
not  denied,  stating  that  the  defendant,  after  the 
commencement  of  the  suit,  and  before  a  trial 
could  be  had,  was  sentenced  to  the  State  prison, 
where  he  still  remained,  and  prayed  to  discon- 
tinue without  payment  of  costs. 

Mr.  Van  Ness,  amicus  curia,  mentioned  that 
when  the  defendant  rendered  proceedings  use- 
less, the  court  was  always  disposed  to  permit  a 
plaintiff  to  discontinue  without  costs.  lu 
Jackson,  ex  dem.  Ludlow  v.  Webb,  after  issue 
joined,  the  defendant  abandoned  the  possession, 
and  the  lessor  of  the  plaintiff  having  entered, 
did  not  notice  the  cause  for  trial.  The  de- 
fendant then  moved  for  judgment,  as  in  case 
of  nonsuit,  but  the  court  denied  his  motion, 
and  gave  leave  to  discontinue  without  payment 
of  costs. 

Per  Curiam.  The  opinion  of  the  court  is 
that  sufficient  has  been  shown  to  prevent  the 
judgment  of  nonsuit.  The  defendant  has,  by 
his  own  act,  deprived  the  plaintiffs  of  that 
remedy,  which  they  might  have  had  against 
his  person;  his  body  is  out  of  their  reach,  and 
that  by  his  own  act.  It  is  not,  therefore,  nec- 
essary that  they  should  proceed  and  incur  ex- 
penses for  nothing,  as  there  is  not  any  prop- 
erty from  whence  they  can  be  re-imbursed. 
The  plaintiffs,  therefore,  are  entitled  to  discon- 
tinue, and  without  costs. 


*RACHEL  MALIN          [*192 

v. 
EPHRAIM  KINNEY. 

THE  SAME  c.  NATHAN  LANE. 

Nonsuit  —  Costs  —  Stipulation  —  Stipulation  to- 
Abide  Result  of  Like  Cases  set  aside. 

rPHESE  causes  were  .noticed  for  trial  at  the 
-L  circuit  held  for  Ontario,  in  June,  1802. 
The  defendants  attended  with  their  witnesses, 
but  the  plaintiff  not  bringing  on  the  causes, 
the  defendants  agreed  to  waive  taking  advan-' 
tage  of  it,  provided  the  plaintiff  would  consent 
that  the  two  above  suits  should  abide  the  de- 
cision of  a  case  made  in  one  by  the  same  plaint- 
iff against  George  Brown,  which  turned  on  the 
same  point,  and  had,  together  with  another  of 
the  same  sort,  been  tried.  The  plaintiff  ac- 
ceded to  the  proposition,  but  at  the  last  term 
applied  to  the  court  to  be  released  from  her 
engagement.  This  the  court  was  pleased  to 
order. 

Mr.  Emott  now  moved  for  judgment  of  non- 
suit, and  that  the  plaintiff  pay  the  costs  not  only 
of  not  proceeding  to  trial  in  1802,  but  those  also 
for  not  trying  at  the  last  circuit.  He  con- 
tended that  as  the  agreement  was  done  away 
on  the  application  of  the  plaintiff,  the  defend- 
ant had  a  right  to  those  costs  which  he  waived 
only  in  consequence  of  that  agreement :  The 
agreement  was  the  consideration  of  the  waiver, 
and  the  consideration  being  taken  away,  he 
had  a  right  to  insist  on  not  waiving.  Then  -as 
to  the  costs  of  the  last  circuit,  it  was  clear  he 
was  entitled;  because,  as  the  plaintiff  had  been 
released  and  had  not  tried,  it  was  manifiest  she 
i  was  in  default  and  costs  due. 

COL.  AND  CAINES. 


1803 


AMBROSE  SPENCER  v.  SAMUEL  B.  WEBB. 


193 


193*]  *Mr.  Stuart,  contra,  showed  on  affi- 
davit that  the  rule  to  discharge  the  agreement 
was  made  at  the  latter  part  of  the  last  term,  and 
that  from  the  late  information  he  received  of 
it,  he  could  not  avail  himself,  at  the  last  circuit 
of  the  advantage  it  afforded. 

Per  Curiam.  The  application  is  for  judg- 
ment as  in  case  of  nonsuit,  and  to  pay  two  sets 
of  costs;  those  of  June,  1802,  and  those  of 
the  last  circuit.  Four  causes  were  depending: 
Two  were  tried,  and,  after  the  court  rose, 
there  was  a  stipulation  that  the  two  causes  not 
tried,  should  abide  the  same  event  as  those 
which  had  been  tried.  An  application  was 
made  in  May  last  to  be  relieved;  that  the  two 
causes  not  tried  might  be  restored,  and  the 
plaintiff  not  bound  by  his  stipulation:  This 
was  ordered,  and  the  causes  restored  as  in 
June,  1802.  If  the  plaintiff  was  relieved, 
the  defendant  was  also;  and  then  the  stip- 
ulation being  vacated,  the  causes  must  stand 
tn  the  same  situation  as  in  June,  1802.  If 
the  defendant  had  then  applied,  nothing  ap- 
pears why  the  rule  should  not  then  have  been 
granted,  at  least  a  rule  to  stipulate  and  pay 
costs.  The  only  reason  to  excuse  now  offered 
is  that  the  plaintiff  did  not  receive  notice  of 
his  own  rule.  Both  circuits  mentioned  have 
passed  without  trial;  therefore  the  defendant 
must  have  the  effect  of  his  motion,  unless  the 
plaintiff  stipulate  to  try  the  cause  at  the  next 
circuit,  and  pay  the  costs  of  that  in  June  last. 


194*]      *AMBROSE  SPENCER, 


SAMUEL  B.  WEBB,  on  Scire  Facias. 

1.  Scire  Facias — Rule  —  Notice  —  Default.     2. 
Idem. — Judgment — Irregularity. 

THE  facts,  as  they  appeared  by  affidavit, 
were  as  follows: 

The  defendant  was  served  with  a  scire  fa- 
cias on  Tuesday,  the  3d  of  May  last,  which 
was  returned  scire  fed  on  the  10th.  On  the 
the  same  day  the  plaintiff  entered  a  rule  for 
the  defendant  to  appear  in  four  days  and  plead 
in  twenty  after  notice,  or  that  his  default  be 
entered.  Notice  of  the  rule  was  not  given, 
nor  was  it  put  up  in  any  conspicuous  part  of  the 
clerk's  office,  nor  was  any  affidavit  of  notice  on 
file.  Default  was  entered,  without  any  such 
affidavit,  on  the  14th  of  May,  on  which  day 
the  plaintiff  entered  his  judgment  also.  The 
plaintiff  swore  to  a  just  and  material  defense, 
and  that  he  had  paid  the  plaintiff  six  hundred 
dollars  which  had  not  been  allowed  him,  and 
offered  to  let  the  judgment  stand  as  a  security. 

On  these  grounds  Mr.  Van  Vechten  moved 
to  set  aside  the  default  and  judgment  thereon, 
and  the  defendant  be  let  in  to  plead. 

Mr.  Spencer.  There  are  several  grounds  of  ob- 
jection taken  to  th.e  proceedings.  One  is  that 
notice  ought  to  have  been  given  of  the  return 
of  the  sti.  fa.  and  of  the  rule  entered.  From 
the  fourth  rule  of  this  court,  made  in  April 
term,  1796  (Ante,  p.-  2),  it  appears  that  rules 
COL.  AND  CAINES. 


to  appear  on  sci.  fa.  and  in  ejectment,  are 
placed  on  the  same  footing.  It  is  not  neces- 
sary, on  entering  the  rule,  to  give  notice  that 
the  rule  has  been  entered.  *The  notices  [*19o 
by  the  sci.  fa.  and  in  ejectment,  by  the  dec- 
laration, are  tantamount.  When  the  attor- 
ney appears,  then  notice  is  required.  But  a 
sci.  fa.  is  notice  in  itself.  The  default,  there- 
fore, being  regularly  entered,  must  stand. 
The  next  question  then  is,  whether,  if  the 
the  proceedings  are  correct  in  entering  the  de- 
fault in  four  days,  the  court  will  let  the  de- 
fendant in,  on  the  merits?  Grmrold  v.  Stovgh- 
ton  (ante,  p.  146);  decided  the  last  term,  is  in 
point,  that  as  there  is  no  account  given  for 
not  appearing,  the  default  is  correct,  and  will 
not  be  set  aside.  There  is  no  excuse  for  not 
entering  an  appearance,  and  for  four  days  the 
defendant  certainly  slept,  In  Edwards  ads. 
McKimtry  (ante,  p.  125),  the  court  said  that  a 
default  must  always  be  accounted  for. 

Mr.  Graham,  asamicuscurice,  observed  that  it 
being  a  point  of  practice  of  some  importance, 
he  took  the  liberty  to  mention  that  according 
to  the  English  practice  when,  on  a  sci.  fa.  to 
receive,  two  nihils  were  returned,  judgment 
was  signed  of  course  on  showing  the  returns 
to  the  officer. 

Mr.  Van  Vechten.  We  are  not  to  obtain  the 
effect  of  our  motion  for  two  reasons.  Because 
according  to  the  English  practice  there  are  no 
rules  on  a  sci.  fa.  and  because  no  account  is 
given  for  the  default.  As  to  the  first,  what- 
ever the  practice  may  be  in  England,  our 
courts  have  established  that  a  four-day  rule 
is  to  be  entered  on  the  return  of  the  writ,  and 
then  the  ordinary  rule  is  to  be  given,  and  if 
the  default  be  not  entered,  the  defendant  may 
come  in  at  any  time.  A  scire  facias  is  to  all  in- 
tents a  new  suit,  and  therefore  there  should 
be  the  same  practice  as  in  other  cases; 
*there  may  be  a  plea,  &c.  In  this  [*19(> 
the  default  has  produced  no  injury.  There 
could  be  no  judgment  till  next  term.  There- 
fore this  rigid  rule  of  saying  that  if  you  do  not 
account  we  will  not  hear  you,  though  you 
give  evidence  of  reasons  for  our  interference, 
can  have  no  force  when  we  apply  to  the  dis- 
cretion of  the  court.  The  power  used  in 
these  cases  is  founded  on  justice,  and  when- 
ever anything  like  injustice  presents  itself,  the 
court  will  interpose  and  see  that  no  advantage 
is  taken.  Here  the  defendant  offers  to  let  the 
judgment  stand,  therefore  the  plaintiff  runs 
no  risk,  as  the  defendant's  lands  are  bound. 
He  swears  six  hundred  dollars  have  been  paid 
on  the  judgment.  The  question  then  is, 
whether  the  defendant  does  not  necessarily 
deserve  favor.  Whether  the  plaintiff  shall 
have  execution  for  six  hundred  dollars  more 
than  are  due  when  merits  are  sworn  to.  That 
the  plaintiff  is  able  to  repay  it,  is  no  answer: 
the  oppression  of  thus  wringing  so  much 
from  the  defendant  may  be  intolerable.  No- 
tice, either  express  or  constructive,  is  neces- 
sary to  a  default;  here  there  is  neither.  O-ris- 
icold  v.  Stoughton  does  not  apply;  it  was  a 
mere  irregularity,  and  no  affidavit  of  merits. 
The  court  cannot  too  much  bear  in  view  that 
no  injury  can  result  by  letting  the  defendant 
in  to  plead. 

Mr.  Spencer,  in  reply.  I  have  strong  doubts 
whether  on  a  scire  facias  there  can  be  any  de- 

121 


196 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1803 


fence1  except  nul  lid  record,  or  the  judgment 
satisfied. 

197*]  *P?r  Curtain.  It  appears  that  the 
defendant  did  not  enter  any  appearance  be- 
fore the  expiration  of  the  rule,  nor  indeed 
was  it  until  some  weeks  after,  that  any  ap- 
pearance was  entered.  It  is  suggested  in  an- 
swer, that  notice  ought  to  have  been  served  of 
the  entrv  of  the  rule:  this  is  on  the  other 
hand  denied;  and  rightly.  The  default,  there- 
fore, is  regular,  and  no  reason  whatever  is  as- 
signed how  it  has  been  incurred.  In  all  such  | 
cases  we  have  determined  to  hold  the  party  to 
his  default.  The  rule  (rule  of  October,  1791, 
<inte,  p.  38),  of  this  court  says  "Upon  the  re- 
turn of  writs  of  sci.  fa.  if  the  defendant  be 
returned  warned,  or  the  second  writ  be  re- 
turned nihil,  the  defendant  shall  appear  in 
four  days,  or  judgment  shall  be  entered  by 
default."  Therefore  the  entry  of  the  default 
is  perfectly  consistent  with  the  practice  of 
the  court,  and  must  remain.  But  as  judg- 
ment ought  not  to  have  been  signed  till  four 
days  after,  and  it  appears  to  have  been  done 
on"  the  very  day,  that  is  irregular,  and  there- 
fore must  be  set  aside. 


WILLIAM   NEILSON. 

v. 

CATHARINE  COX,  MAGDALENE  BEEK- 
MAN,  ABRAHAM  H.  BEEKMAN,  AND 
JOHANNAH,  his  wife. 

Partition — Defendant*  not  Appearing — Farm  of 
Rule  Absolute. 

THIS  was  an  application  on  a  point  of  prac- 
tice in  partition.  The  defendants  had 
not  appeared,  and  as  the  act  does  not  specify 
198*]  any  mode  of  compelling  *them  to 
come  in,  Mr.  Wood*,  on  behalf  of  Riggs,  moved 
that  the  following  rule  be  made  absolute, 
which  the  court,  after  perusal,  was  pleased  to 
order. 

RULE. 

NEW  YORK  SUPREME  COURT. 
William  Neilson 


Catharine   Cox,  Magdalene  1-  In  Partition. 
Beekman,    Abraham    H. 
Beekman  and  Johannah, 
his  wife.  J 

The  defendants    having  neglected    to    an 
swer  or  plead  to  the  petition  of  the  plaintiff, 

1.— To  a  sci .  fa.  the  defendant  may  plead  in  abate- 
ment or  in  bar.  (2  Inst.,  470.)  But  he  can  plead 
nothing  in  bar  which  he  mi#ht  have  pleaded  to  the 
original  action.  Where,  therefore,  the  judgment 
was  on  a  warrant  of  attorney,  as  the  defendant 
could  have  had  no  opportunity  of  pleading,  the  court 
of  K.  B.  has  ordered  an  issue  to  let  in  the  defense 
of  usury.  Cook.  v.  Jones,  (Cowp.,  727).  The  defend- 
ant may  also  plead  in  abatement  that  there  were  not 
fifteen  days  between  the  teste  and  return.  Nares  v. 
Earl  of  Huntiniarton  (Lut.  12),  and  for  want  of 
these  flft«*;n  days,  the  Supreme  Court  has  set  aside, 
on  motion,  the  proceedinjre  on  a  wf.  fa.  Woodman 
and  others  ads.  Little  (ante,  p.  60),  as  a  sctrefadM  is 
a  judicial  writ.  See  Com.  Dig.,  title  Abatement, 
[rf.  U.] 

122 


within  the  time  allowed  them,  by  a  rule  of 
this  court  for  that  purpose,  and  it  appearing 
by  the  said  petition,  that  the  plaintiff  is  seised 
in  fee-simple,  as  tenant  in  common,  of  two 
undivided  fifth  parts  of  the  premises  in  the 
said  petition  mentioned,  and  that  the  defend- 
ant, Catharine  Cox,  is  seised  in  fee-simple,  as 
tenant  in  common,  of  one  equal  undivided 
fifth  part  thereof,  and  that  the  defendant, 
Magdalene  Beekman,  is  seised  in  fee-simple, 
as  tenant  in  common,  of  one  equal  undivided 
fifth  part  thereof,  and  that  the  defendants, 
Abraham  H.  Beekman  and  Johannah  his  wife, 
in  right  of  the  said  Johannah,  are  seised  in  fee- 
simple  of  one  equal  undivided  fifth  part 
thereof,  which  not  being  denied,  the  court 
doth,  therefore,  determine  the  rights  of  the 
said  parties  to  be,  as  in  the  said  petition  is 
stated,  whereupon,  and  on  mot  ion  of  Mr.  Riffff*, 
attorney  for  the  plaintiff,  it  is  ordered  that 
partition  of  the  said  premises  be  made  between 
the  said  parties,  according  to  their  said  re- 
spective rights,  and  it  is  ordered  that  A.  B. 
C.  D.  and  E.  F.  being  three  reputable  free- 
holders of  the  city  of  New  York,  be,  and 
they  are  hereby  appointed  commissioners 
to  make  the  said  partition  among  the  said 
parties,  quality  and  quantity  relatively 
*considered,  according  to  the  respect-  [*199 
ive  rights  of  the  parties  aforesaid. 

N.  B.  The  commissioners  are  named  by 
the  party  to  the  court,  and  if  approved  of, 
appointed  according  to  the  nomination. 


CYRUS  JACKSON 

V. 

RODOLPHUS  MANN. 

Costs — Nonsuit — Countermand. 

"ITTOODWORTH  moved  for  judgment  as  in 
\V  case  of  nonsuit,  for  not  proceeding  to 
trial,  according  to  notice,  on  an  affidavit,  stat- 
ing, that  the  cause  being  duly  noticed,  the  de- 
fendant issued,  and  served  subpoenas  on  his  wit- 
nesses, after  which,  the  notice  was  counter- 
manded. 

Mr.  Schoenhoven,  contra,  read  an  affidavit  set- 
ting forth,  that  the  plaintiff,  for  want  of  a  ma- 
terial witness,  who  could  not  be  then  found,  was 
unable  to  proceed  to  trial,  and  that  notice  of 
countermand  had  been  given  four  days  before 
the  Circuit  Court;  he,  therefore,  insisted  there 
was  no  ground  for  the  application,  and  that 
from  the  principle  of  Biandl  v.  Bnckhout 
(ante,  p.  186),  the  defendant  could  not  only 
take  nothing  by  his  motion,  but  the  plaintiff 
was  entitled  to  his  costs  for  opposing. 

Mr.  Woodieorth  distinguished  this  from  the 
case  mentioned,  by  the  defendant's  having  been 
here  put  to  costs. 

Per  Curium.  The  only  question  here  is, 
who  shall  pay  the  expense.  The  plaintiff 
must,  certainly,  bear  the  charges  of  his  own 
countermand.'  That  and  *the  notice  [*2OO 
are  equally  his  acts;  the  expenses,  therefore, 
incurred  after  notice,  always  fall  to  him  when 
he  countermands.  The  judgment  of  nonsuit 
must,  therefore,  be  refused,  but  the  plaintiff 
to  pay  the  defendant  the  costs  of  subpo3naing 
his  witnesses  prior  to  the  countermand. 

COL.  AND  CAINES. 


1803 


ROBERT  CAMPBELL,  v.  TIMOTHY  MUNGER  ET  AL. 


201 


ROBERT   CAMPBELL 

v. 
THIMOTHY  MUNGER  ET  AL. 

Nonsuit  —  Trial  not  had  —  Plaintiff's  Affidavit 
that  the  Cause  was  to  abide  Result  of  like  Cause 
—  Exception  to  Nonsuit  —  Costs. 


would  have  been  folly  in  him  to  proceed  in 
the  others  until  the  judgment  of  this  court 
could  be  had.  We  think,  therefore,  that  he 
ought  not  to  stipulate,  and  that  the  costs  for 
not  proceeding  to  trial  abide  the  event  of 
the  first. 


S  was  a  motion  for  judgment  as  in  case 
-L  of  nonsuit  for  not  proceeding  to  trial. 
The  affidavit  on  which  it  was  grounded  stated 
that  issue  was  joined  in  January  Term,  1802; 
that  the  cause  was  duly  noticed  for  the  circuit 
in  the  same  year;  that  it  was  not  then  tried, 
and  was  noticed  again  for  the  circuit  in  May 
last,  when  it  was  not  brought  on,  though  it 
was  one  of  the  oldest  issues  on  the  calandar, 
and  no  countermand  of  trial  had  been  given. 
Mr.  Van  A  ntwerp  resisted  the  application,  on 
a  deposition  made  by  himself,  admitting  the 
notice  for  the  last  circuit,  but  setting  forth 
also  that  this  cause,  as  well  as  another  at  the 
suit  of  one  Elijah  Montgomery  against  the  same 
defendants,  were  actions  of  trespass  quare 
clausum  fregit,  involving  the  same  question 
and  same  defense;  that  on  the  trial  of  the  said 
cause,  Elijah  Montgomery  became  nonsuit  at 
the  direction  of  His  Honor,  Mr.  Justice  Kent, 
to  which  direction  an  exception  was  then 
taken,  and  by  consent  of  the  defendant's  at- 
torney, the  making  up  of  the  case  was  post- 
poned till  this  term;  and  it  was  understood 
and  agreed  between  the  deponent  and  the  de- 
fendant's attorney,  that  the  decision  in  one  of 
the  causes  should  be  conclusive  in  the  others; 
and  thereon,  shortly  after  the  trial,  so  as  above 
20  1*]  said  to  *have  been  had  in  the  other 
cause,  the  witnesses  for  both  parties  were  dis- 
missed and  that  it  was  very  doubtful  whether 
a  trial  in  this  present  action  could  have  been 
had. 

Per  Curiam,  delivered  by  LIVINGSTON,   J. 

This  is  a  motion  for  a  nonsuit  for  not  pro- 
ceeding to  trial  at  the  last  circuit  in  Saratoga. 
It  appears  that  this,  as  well  as  another  action 
of  Elijah  Montgomery  against  the  same  de- 
fendants, was  noticed  for  trial  at  that  circuit; 
that  they  were  all  actions  of  quare  clausum  fre- 
git involving  the  same  questions  and  the  same 
defence.  The  action  of  Montgomery  was 
tried  and  the  plaintiff  nonsuited,  by  direction 
of  Judge  Kent,  To  his  opinion  an  exception 
was  taken  by  the  plaintiff's  counsel.  The 
plaintiff's  attorney  upon  this,  thought  it  un- 
necessary, until  the  opinion  given  by  the 
judge  could  be  reviewed  by  this  court,  to 
bring  on  the  trial  of  this  cause;  and  he  swears 
that  '  '  it  was  understood  and  agreed  between 
the  defendants  attorney  and  himself,  that  a  de- 
cision in  the  cause  tried  should  be  conclusive 
in  the  other,  and  that,  thereupon,  shortly  after 
the  trial,  the  witnesses  of  both  parties  were 
dismissed." 

Without  relying  much  on  the  agreement  of 
the  attorneys,  which  was  not  in  writing,  the 
court  think  the  plaintiff  has  accounted  satis- 
factorily for  not  bringing  this  cause  to  trial. 
He  noticed  it  in  good  faith,  and  appears  to 
have  been  prepared  to  try  it,  but  finding  the 
opinion  of  the  judge  against  him  in  another 
cause  embracing  the  same  questions,  and  de- 
2O2*]  pending  *on  the  same  evidence,  it 
COL.  AND  CAINES. 


DAVID  COMBS    T.   PETER    WYCKOFF. 

Motion — To  set  aside  Report  j>f  Referees — Absent 
Witnesses  —  Improper  Damages  —  Enmity  of 
Referee — Newly-discovered  Evidence. 

THE  present  action  was  instituted  to  recover 
damages  for  not  delivering  a  boat  alleged 
to  have  been  purchased  by  the  plaintiff. 

Mr.  Woods  moved  to  set  aside  the  report  of  the 
referees  on  an  affidavit  made  by  the  attorney 
in  the  cause,  stating  these  grounds:  that  the 
witnesses  of  the  defendant  were  seafaring 
men,  and  that  there  had  been  an  express 
agreement  between  the  deponent  and  the 
plaintiff's  attorney,  that  the  referees  should 
not  make  up  their  report  until  the  testimony 
on  the  part  of  the  defendant  could  be  obtained ; 
yet  notwithstanding  this  agreement  the  refer- 
ees had  reported  without  waiting  for  the  evi- 
dence on  which  the  defendant  relied;  that  a 
sum  had  been  allowed  the  plaintiff  for  a  loss, 
said  to  have  been  sustained  by  not  being  en- 
abled to  carry  a  quantity  of  wood  to  New 
York, though  it  was  proved  and  even  admitted 
that  a  part  of  the  wood  was  previously  sold 
by  the  plaintiff,  and  the  residue  might  have 
been  conveyed  to  New  York,  had  he  thought 
fit;  that  the  referees  were  nominated  by  the 
deponent,  without  the  knowledge  of  the  de- 
fendant, between  whom  and  one  of  them  a 
quarrel  had  taken  place,  which  was  not  made 
up;  that  by  the  next  circuit  the  defendant 
hoped  to  be  able  to  procure  *testimony[*2O3 
which  would  at  least  diminish  the  damages 
against  him. 

Mr.  Skinner,  contra,  read  his  own  deposition, 
setting  forth  that  he  did  not  recollect  the 
agreement  above  mentioned,  and  that  at  least 
it  was  not  in  writing;  that  the  referees  met 
several  times,  and  were  as  often  adjourned  at 
the  request  of  the  defendant's  attorney  un- 
der the  pretence  of  not  being  able  to  pro- 
cure the  attendance  of  his  witnesses;  that  at 
the  last  meeting  the  defendant's  attorney  de- 
clined summing  up,  and  so  far  from  any 
enmity  existing  between  the  defendant  and 
one  of  his  referees,  the  very  party  named  as 
being  inimical  was  his  special  bail. 

Per  Curiam,  delivered  by  LIVINGSTON,  J. 
The  defendant  moves  to  set  aside  the  report  of 
referees,  alleging: 

1.  That  it  was  agreed  by  the  plaintiffs  at- 
torney that  no  report  should  be  made  until  the 
defendant's  witnesses  could  be  procured, which 
was  afterwards  disregarded. 

This  agreement  not  being  in  writing,  and 
being  denied  by  the  plaintiff's  attorney  must 
be  laid  out  of  sight.  The  court  cannot  too  fre- 
quently inculcate  the  necessity  of  reducing  to 
writing  all  agreements  between  gentlemen  of 
the  bar.  Many  mistakes,  much  misunder- 
standing and  controversy  will,  by  this  mea- 
sure be  avoided.  In  the  present  case  it  appears 

123 


203 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


that  two  months  elapsed  before  the  report  was 
made,  which  was  allowing  sufficient  time  for 
the  defendant  to  produce  his  witnesses.  If 
2O4*]  they  were  abroad,  he  *might  have  ap- 
plied to  the  court  (for  a  term  intervened  be- 
tween the  appointment  and  report  of  the  refer- 
ees) for  an  order  on  them  not  to  proceed  for  a 
reasonable  time,  which  would  have  been 
granted,  or  a  judge  at  his  chambers  would 
have  ordered  the  proceedings  to  stay  until  ap- 
plication should  be  made  to  the  court. 

2.  Another  objection  is  that  a  sum  was  al- 
lowed, which  was  not  proved  to  be  due.     Of 
this  allegation  there  is  no  satisfactory  proof, 
and  therefore  we  can  take  no  notice  of  it. 

3.  A  third  objection  is  an  enmity  between 
the  defendant  and  one  of  the  referees. 

This  reference,  it  is  to  be  observed,  was 
nominated  by  the  defendants  attorney,  and  al- 
though he  might  have  been  ignorant  of  the 
quarrel  spoken  of,  the  defendant,  by  his  ac- 
quiescence in  the  appointment,  and  submit- 
ting the  cause  to  his  decision,  cannot  now 
avail  himself  of  this  challenge.  He  should 
have  applied* to  the  court  to  remove  him  and 
appoint  another.  It  is  somewhat  remarkable, 
however,  that  the  referee  who  is  repugnant  or 
hostile  to  the  defendant,  should  be  his  special 
bail  in  this  very  cause. 

4.  The  defendant  states  that  "he  can  now 
introduce  evidence  to  diminish  at  least  the 
damages  reported."    This  is  very  loose,  to  say 
the  least.     Why  was  not  this  testimony  ob- 
tained before?    And  to  what  exterit  will  the 
damages  be  reduced,  if  it  be  offered   now? 
Will  it  justify  a  diminution  of  only  one  dollar 
or  less?    If  so  de  minimi*  non  curat  lex,  and 
2O5*]  *if  the  discovery  had  been  made  even 
prior  to  the  report,  it  would  be  no  reason  for 
disturbing  it.     Let  the  defendant  take  nothing 
by  his  motion  and  pay  the  costs  of  this  applica- 
tion. 


THE  PEOPLE    v.   HARRY    CROSWELL. 

Arrest  of  Judgment — Libel — Trial  at  Circuit — 
Tried  as  Civil  Action. 

rPHE  defendant  had  been  convicted  before 
J-  His  Honor  Chief  Justice  Lewis,  at  the  last 
circuit,  held  in  and  for  the  County  of  Colum- 
bia, on  an  indictment  for  a  libel  on  the  Presi- 
dent of  the  United  States.  The  proceedings 
were  originally  commenced  before  the  justices 
in  general  sessions,  from  whence  they  were  re- 
moved into  this  court,  and  went  down  to  the 
circuit  in  the  usual  manner.  On  his  convic- 
tion recognizances  were  taken  for  his  appear- 
ance the  first  day  of  term  to  receive  judgment, 
but  his  counsel  considering^  the  Chief  Justice 
to  have  totally  misdirected  the  jury,  were 
rather  at  a  loss  how  to  bring  the  matter  before 
this  court.  It  was  resolved  by  the  bench  that 
on  the  cause  being  brought  up  and  sent  down 
to  the  circuit,  the  suit,  though  in  its  nature  a 
criminal  prosecution,  took  the  course  of  a  civil 
action ;  that  within  the  first  four  days  of  the 
term  ensuing  the  conviction, a  motion  in  arrest 
of  judgment  might  be  made,  or  the  parties 
may  make  a  case,  and  bring  everything  fully 
before  the  court.  This  measure  they  advised", 
as  being  in  the  present  instance  more  explicit, 
124  ' 


and  it  being  adopted,  they  gave  day  till  the 
fourth  day  of  next  term,  taking  recognizances 
from  the  defendant  and  two  others  for  his  due 
appearance,  himself  in  $500,  his  sureties  in 
$250  each. 


*LUSHER  v.  WALTON.      [*2O6 

Motion  w  liefer — Answering  Affidavit — Weight 
of  Evidence — Closing  of  Accounts — Questions 
of  Law — Insufficient  Affidavit. 

Citation— Bedle  v.  Willett,  Col.  and  Caines's  Cas., 
148,  followed. 

VAN  VECHTEN.     This  is  a  motion  for  a 
rule  to  refer.     The  affidavit  states  there  are 
long  accounts  to  adjust. 

Mr.  Emott.  I  must  oppose  it.  The  notice  does 
not  mention  the  names  of  the  referees;  from 
Bedle  v.  Willett  (ante,  p.  148),  decided  last  term 
this  is  necessary. 

Per  Curiam.  If  the  cause  contains  long  ac- 
counts you  cannot  try  it. 

Mr.  Spencer  observed  to  the  court  that  a  cause 
should  not  be  referred  at  the  circuit;  but  from 
the  case  cited,  the  application  might  be  re- 
newed the  next  non-enumerated  day. 

Mr.  Emott.  If  the  court  say  they  will  hear 
it,  I  shall  waive  the  objection. 

Per  Curiam.  The  omission  must  be  ac- 
counted for,  and  therefore  we  cannot  say  we 
will  hear  it.  All  notices  must  be  for  the  first 
day;  if  not,  an  excuse  must  be  offered.  But  a 
party's  misapprehending  a  rule  has  frequently 
been  received  as  an  excuse.  The  decision 
quoted  has  altered  the  former  practice,  and  if 
the  party  will  swear  he  did  not  know  it,  he 
may  apply  again. 

Mr.  Emott  waived  his  objection  as  to  the 
omission  of  the  names. 

*Mr.  Van  Vechten  read  his  affidavit  ]*2O7 
and  another  in  support  of  it. 

Mr.  Emott  opposed  the  rule  on  a  deposition  by 
the  plaintiff,  stating  an  account  between  him 
and  the  defendant  had  been  long  ago  settled, 
on  which  there  appeared  a  certain  balance  due, 
for  which  the  present  action  was  brought,  and 
that  he  believed  the  matter  in  dispute  involved 
points  of  law. 

Per  Curiam.  From  the  plaintiff's  affidavit 
it  does  not  appear  there  was  a  final  closure  of 
accounts,  so  as  to  entitle  to  oppose  the  rule; 
besides,  there  are  two  affidavits  against  him ; 
the  weight  of  evidence  must,  therefore,  pre- 
ponderate, and  his  single  affidavit  must  give 
way.  His  second  ground  for  resisting  the  ap- 
plication is,  that  on  the  examination  questions 
of  law  will  arise;  This,  if  properly  stated, 
would  have  been  a  good  reason  for  denying 
the  rule;  but  on  that  point  the  affidavit  is  de- 
fective: it  states  his  information  and  belief 
that  it  will  arise;  it  ought  to  have  said  that 
"  he  is  advised  by  his  counsel,"  and  even  then 
to  have  set  forth  the  particular  and  specific- 
point,  to  satisfy  us  that  it  did  exist.  For  these 
reasons,  therefore,  as  the  first  taken  objection 
is  waived,  the  plaintiff's  affidavit  is  insufficient 
and  the  defendant  must  take  his  rule. 

COL.  AND  CAINES. 


1803 


JACKSON  v.  MARTIN  M'Evoy. 


207 


JACKSON,  on  the  demise  of  JOSEPH  WINTER,       JACKSON,  on  the  Demise  of  RODMAN, 


MARTIN  M'EVOY,  Tenant  in  Posession. 

Ejectment  —  Judgment —  Vacatur  on  Motion  of 
Claimant,  not  Landlord  or  Privy. 

¥OODS  applied  to  vacate  the  judgment 
entered  against  the  casual  ejector,  and 
2O8*]  to  admit  Henry  Masterton  *to  be  made 
defendant,  on  such  terms  as  the  court  might 
be  pleased  to  order. 

From  the  affidavit  of  Masterton,  it  appeared 
that  the  suit  was  instituted  to  recover  posses- 
sion of  forty-five  acres  of  land  in  the  County 
of  Westchester,  to  which  he  claimed  title,  and 
has  a  real  and  substantial  defence  to  make: 
that,  on  the  26th  day  of  July  last,  the  de- 
ponent discovered  in  the  book  of  common 
rules  of  this  court,  that  a  rule  for  judgment 
against  the  casual  ejector  had  been  entered  in 
the  above  cause,  on  the  12th  day  of  May  pre- 
ceding; that  the  tenant  in  possession  never  in- 
formed the  deponent  of  any  declaration  in  the 
said  suit  having  been  served  upon  him,  till  a 
long  time  after  the  rule  for  judgment  had  been 
entered;  that  the  deponent  believed  the 
knowledge  of  it  was  withheld  from  him,  owing 
to  a  good  understanding  between  the  lessor  of 
the  plaintiff,  and  the  tenant  in  possession,  to 
prevent  that  defence  being  made,  which  the 
lessor  of  the  plaintiff  was,  previous  to  the 
commencement  of  the  above  suit,  told  by  the 
deponent  he  would  make,  and  that  on  search 
he  finds  no  record  has  been  filed  in  the  above 
cause. 

These  facts  and  allegations,  he  contended, 
were  tantamount  to  a  positive  assertion  of 
title,  that  it  was  impossible  without  one  to 
have  a  real  and  substantial  defence.  That 
nothing  would  be  lost  by  the  plaintiff,  as  a 
trial  might  be  had  at  the  circuit  in  September. 
That  the  question  would  then  fairly  come  up, 
whether  the  deponent  or  Winter  was  really 
•entitled. 

2O9*]  *RADCLIFF,  J.  There  does  not 
appear  to  be  any  relation  between  Masterton  and 
the  tenant. 

Mr.  Woods.  Perhaps  the  affidavit  does  not  go 
quite  far  enough  in  stating  that  expressly,  but 
surely  it  may  well  be  gathered  from  the  whole. 

Mr.  Emott,  contra.  The  deponent  does  not 
swear  to  any  title,  he  only  says  he  has  a  claim; 
he  does  not  swear  that  he  is  the  landlord;  not 
•even  that  there  is  a  privity  between  him  and 
the  tenant.  If,  then,  there  is  no  title,  if  he  is 
not  landlord,  and  if  there  is  no  privity,  how 
can  he  be  made  a  defendant?  If  a  man  may 
thus  come  in  and  vacate  a  judgment  without 
any  complaint  from  the  tenant,  there  is  not  one 
which  may  not  be  set  aside.  There  is  nothing 
stated  which  shows  that  notice  of  the  eject- 
ment ought  to  have  been  given  to  the  deponent. 
The  tenant  is  not  obliged  to  hunt  out  all  per- 
sons who  have  claims;  he  can  only  be  expected 
to  communicate  to  his  privies. 

Per  Curiam.     The  party  can  take  nothing 
"by  his  motion. 
<COL.  AND  CAINES. 


ADAM  BROWN. 

Nonsuit — Trial  not  had — Costs — Sickness  of  At- 
torney and  Counsel. 

SPENCER  moved  for  judgment,  as  in  case 
of  nonsuit,  for  not  proceeding  to  trial. 
The  notice  was  served  on  the  first  day  of  term 
for  argument  on  this.  The  affidavit  accounted 
for  its  not  being  noticed  for  the  first  day,  by 
stating  that  it  had  been  delivered  on  the 
twenty-sixth  of  July  to  a  person  who  was 
*then  about  leaving  Hudson  for  [*21O 
Albany,  but  who  had  either  lost  it,  or  left  it 
behind  with  some  papers  of  his  own. 

Mr.  Van  Vechten  opposed  the  motion,  by  an 
affidavit  of  the  indisposition  of  both  attorney 
and  counsel  in  the  cause,  when  too  late  to  em- 
ploy others. 

The  cause  was  countermanded,  but  after  the 
circuit  began. 

Per  Curiam.  The  excuse  is  sufficient  to 
prevent  granting  the  judgment  applied  for,  but 
the  plaintiff  must  pay  the  costs  of  not  proceed- 
ing to  trial.  It  was  a  misfortune,  it  is  true, 
that  the  parties  should  have  been  afflicted  with 
sickness,  but  it  is  a  misfortune  that  ought  not 
to  fall  on  the  defendant. 


JACKSON,  on  the  Demise  of  ELKANAH  WAT- 
SON, 
v. 
JOHN  MARSH. 

Nonsuit — Trial  not  had — Notice  to  Produce — Dis- 
tance— Costs — Stipulation. 

W  WOODS  moved,  on  the  common  affi- 
.  davit,  for  judgment  as  in  case  of  non- 
suit for  not  proceeding  to  trial. 

Mr.  Emott  resisted  it  by  a  counter  affidavit, 
setting  forth  that  the  cause  was  duly  noticed  for 
Cayuga  County,  but,  nine  days  before  the 
trial,  the  defendant  served  a  notice  to  produce 
papers,  which  were  in  Albany. 

Mr.  Emott  stated  some  circumstances  tending 
to  show  tricking  practice,  but  nothing  of  that 
sort  appeared  by  the  affidavit. 

*Per  Curiam.     What  is  the  distance  [*2 1 1 

from  the  Coimty  Court  in  Cayuga  to  Albany? 

Mr.  Emott.     One  hundred  and  eighty  miles. 

Per  Curiam.  The  plaintiff  must  stipulate 
and  pay.  costs.  There  is  no  proof  of  want  of 
time. 


SAMUEL  B.  WEBB 

v. 
THOMAS  WILKIE. 

Amendment — Declaration  —  Of  course  —  Vaca- 
tur— Costs — Plea. 

rPHIS  was  an  action  on  a  sealed  note,  dated 
L     on    the    thirtieth    of    the    month.      The 

125 


211 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1803 


declaration  stated  the  date  to  be  the  thirteenth. 
Etnott  on  the  first  day  of  term  had  obtained  a 
rule  to  amend  the  declaration  by  striking  out 
the  word  "thirteenth,"  and  inserting  the  word 
"  thirtieth."  No  person  appearing  to  oppose, 
the  motion  was  granted  of  course,  and  without 
imposing  terms. 

Mr.  Van  Vechten  now  applied  to  vacate  that 
rule,  and  that  it  be  ordered  that  the  amend- 
ment be  on  the  usual  terms.  This,  he  said, 
was  necessary,  because  the  plea  of  non  estfac- 
tum,  which  was  then  proper,  might  now  be 
highly  the  reverse.  The  court  was  always  dis- 
posed to  set  things  right,  if  it  lay  in  their 
power.  They  never  could  mean  that  the 
plaintiff,  who  had  been  guilty  of  a  mistake  in 
his  declaration,  should  have  liberty  to 
amend  that,  and  the  defendant  be  held  to  a 
plea  that  might  be  inapplicable.  Besides, 
there  was  ample  time  to  give  a  plea  before  the 
next  circuit,  and  surely  the  court  will  not  shut 
out  the  defendant  from  pleading  de  nono,  when 
his  first  plea  was  the  result  of  the  plaintiff's 
mistatement. 

2 1 2*]  *Per  Curiam.  Let  the  former  rule 
be  vacated,  and  the  plaintiff  amend  on  the 
usual  terms. 


WILLIAM  GILLILAND 

v. 
JOSEPH  MORRELL. 

Default — Affidavit  of  Merit* — Irregularity — Ap- 
pearance—  Waiver. 

Citation— Brain  v.  Rodelicks,  Col.  and  Cai.,  176, 
followed. 

THE  affidavit  that  was  read  stated,  that  in 
October,  1802,  a  motion  was  made  on  the 
part  of  the  defendant  for  judgment,  as  in  a 
case  of  nonsuit ;  which  no  one  appearing  to  op- 
pose, was  granted  as  of  course.  The  judg- 
ment, thus  taken,  was,  in  the  same  term,  set 
aside  by  the  plaintiff,  on  the  usual  terms  of 
stipulating  to  try  the  next  circuit,  and  paying 
the  costs  of  not  proceeding  to  trial.  The  stip- 
ulation was  entered  into,  the  costs  taxed,  and 
demanded,  but  not  paid,  and  now  continued 
unsatisfied;  that,  therefore,  and  as  the  defend- 
ant's only  witness  could  not  be  found,  he  did 
not  attend '  by  himself  or  attorney  at  the  last 
circuit  in  April. 

On  these  facts  dulv  sworn  to,  and  on  an  affi- 
davit of  the  defendant,  that  he  had  a  good 
and  substantial  defence,  as  informed  by  his 
counsel,  which  he  verily  believed  to.be  true; 
that  on  the  merits,  the  plaintiff  could  not  re- 
cover, and  that  a  material  witness  was  want- 
ing, without  whose  testimony  the  defendant 
could  not  proceed  to  trial,  but  which  he  could 
procure  by  the  next  circuit. 

Mr.  Van  Vechten  moved  to  set  aside  the  ver- 
dict, and  grant  a  new  trial. 

Mr.  Woodworlh,  contra, produced  a  certificate 
from  the  clerk  of  the  circuit  court,  that  the 
trial  of  the  above  cause  was  had  on  the  eighth 
day  of  April  last,  *when  Mr.  Van  [*213 
Vechten  appeared  for  Mr.  Fink  attorney  for 
the  defendant.  On  this,  he  contended,  every 
126 


irregularity  was  waived,  and  the  verdict  must 
stand,  otherwise  the  chance  of  a  verdict  might 
be  taken  at  any  time  after  a  little  advantage 
obtained,  and  in  case  of  a  want  of  success,  a 
motion  to  set  it  aside  resorted  to. 

Per  Curiam.  This  is  an  application  to  set 
aside  a  verdict.  There  are  many  facts  stated. 
With  respect  to  the  entry  of  the  rule  for  set- 
ting aside  the  judgment,  as  in  case  of  non- 
suit, there  may  be  some  doubt:  The  clerk  find* 
no  rule  entered,  but  as  there  was  a  stipulation 
filed,  the  court  take  it  for  granted  that  it  was 
on  the  usual  terms.  It  is  necessary,  however, 
that  in  all  cases  of  stipulation,  there  should  be 
a  demand  of  costs;  this  demand  should  be  ac- 
companied with  a  copy  of  the  rule,  and  if  the 
costs  be  not  paid  in  twenty  days  after,  then  the 
party  may  enter  up  judgment  of  nonsuit,  and 
take  the  effect  of  his  application.  The  defend- 
ant swears  that  he  did  present  a  bill  of  costs, 
but  does  not  say  it  was  with  a  copy  of  the  rule 
annexed;  this,  too,  was  on  the  agent,  and  not 
on  the  party,  or  his  attorney.  The  defendant, 
therefore,  has  not  been  correct  in  his  proceed- 
ings, and  if  the  demand  was  not  regular,  the 
plaintiff  was  regular  in  noticing  his  cause  for 
last  April,  and  bringing  it  on  to  trial.  But, 
admitting  that  in  so  doing,  he  had  been  guilty 
of  an  irregularity,  the  defendant's  appearing 
on  the  trial,  is  a  waiver  of  all  advantage  to 
which  he  might,  otherwise,  have  been  entitled. 
It  was  decided  last  term,  in  the  case  of  Brain 
v.  Roddicks  and  Shivers  (Ante,  p.  176),  that  if  a 
party  appear,  he  waives  all  irregularity.  But 
it  has  been  *shown  there  was  not  any;  [*214r 
and  if  there  was,  the  conduct  of  the  defendant 
has  placed  the  case  in  the  same  situation  as  if 
there  was  not.  The  plaintiff,  therefore,  is 
regular.  Against  this,  is  read  an  affidavit  of 
merits,  on  such  an  affidavit,  the  court  will  not 
set  aside  a  regular  verdict.  There  is  no 
irregularity;  the  defendant  appeared,  and  has 
shown  no  excuse  why  he  did  not  defend;  for 
if  his  witness  could  not  have  been  obtained, 
the  court,  on  the  common  affidavit,  would  have 
put  off  the  trial.  The  defendant  must  take 
nothing  by  his  motion. 


SALMON  COGSWELL 


EVERT  VANDERBERGH. 

Default  —  Surprise  —  Costs  —  Stipulation. 

117  OOD  WORTH,  on  the  part  of  the  defend- 
M  ant,  moved  to  set  aside  the  default,  and 
all  subsequent  proceedings  on  two  affidavits, 
made  by  the  defendant  and  another  person, 
stating  that  a  capias  ad  respondendum  in  this 
suit,  was  duly  issued  and  served  in  the  month 
of  November  last;  that  in  February  following, 
the  defendant  called  on  the  plaintiff  and 
offered  to  pay  part  of  the  debt  if  he  could 
have  time  for  the  residue;  that  this  being 
agreed  to,  the  defendant  paid  $300  and  the 
plaintiff  promised  to  stay  all  proceedings;  the 
defendant's  affidavit  further  showed  that  he 
had  frequently  called  on  the  plaintiff  to  settle 
the  residue,  but  that  he  was  either  from  home 
or  engaged  in  company,  and  had,  notwith- 
COL.  AND  CAINES. 


1803 


JOSEPH  HAWKINS  ET  AL.  v.  S.  BRADFORD. 


214 


standing  his  agreement  to  stop  the  suit,  gone 
on,  obtained  a  judgment  by  default,  and  taken 
out  execution;  that  the  defendant,  relying  on 
the  agreement,  had  not  employed  any  attorney, 
and  the  execution  was  for  more  than  was  due, 
credit  not  having  been  given  the  defendant  for 
an  account  which  he  had  against  the  plaintiff. 
215*]  The  affidavit,  *Mr.  Woodworth  said,  in 
addition  to  its  being  supported  by  the  deposi- 
tion of  another  person,  carried  internal  evi- 
dence of  its  truth.  It  was  not  natural  to  sup- 
pose that  a  man  should  pay,  after  an  arrest,  so 
large  a  sum,  on  account  of  the  debt,  under  no 
kind  of  agreement,  but  leave  himself  open  to 
an  execution  for  the  residue,  the  very  next 
moment.  He  therefore  hoped  the  court  would 
set  aside  the  whole  proceedings  as  being  in 
violation  of  every  principle  of  good  faith. 

Mr.  Van  Antwerp,  contra,  read  a  long  affidavit 
by  the  plaintiff,  denying  the  receipt  of  the 
money  on  any  condition,  and  swearing  to  the 
justness  of  his  execution.  But  the  denial 
rested  on  his  own  testimony  alone. 

Per  Curiam.  This  is  an  application  to  set 
aside  the  judgment  and  all  subsequent  pro- 
ceedings. The  affidavits  are  very  lengthy 
and  so  far  as  they  relate  to  merits,  we  put 
them  totally  out  of  view,  for  on  that  point 
they  cannot  be  received,  the  plaintiff  having 
been  perfectly  regular  according  to  the  rules 
of  this  court.  But  the  motion  is  made  on  the 
further  ground  of  surprise.  To  this  effect  the 
defendant  has  sworn  and  his  testimony  is  cor- 
roborated by  that  of  another  witness  to  the 
same  effect.  On  the  other  hand  may  be  op- 
posed the  positive  denial  of  the  plaintiff.  If 
the  weight  of  testimony  be  to  decide,  it  will  be 
found  with  the  defendant.  There  has  at  least 
been  a  misunderstanding  in  this  business. 
The  defendant  thought  he  paid  his  money  that 
the  suit  might  not  go  on  and  therefore  did  not 
make  any  defence.  It  is  evident  some  great 
mistake  has  been  made;  the  plaintiff,  how- 
ever, is  perfectly  regular,  and  as  each  side 
may  have  thought  himself  right,  the  judg- 
216*]  ment  *and  proceedings  must  be  set 
aside  on  payment  of  costs,  pleading  issuably, 
and  taking  notice  of  trial  for  the  next  circuit. 


JOSEPH  HAWKINS  ET  AL., 
S.  BRADFORD. 

Reference — Special  Return — Motion  for  Report — 
Admission  of  Papers. 

VAN  VECHTEN  moved  for  a  rule  against 
the  referees  in  this  suit,  to  show  cause 
why  an  attachment  should  not  issue  against 
them  for  not  making  up  their  report,  or  that 
they  be  ordered  so  to  do.  The  affidavit  on 
which  the  application  was  founded,  set  forth 
that  at  the  meeting  of  the  referees,  after  the 
counsel  of  the  plaintiffs  had  opened  their  case 
and  stated  the  nature  of  their  demand,  the 
counsel  for  the  defendant  presented  a  plea  to 
the  referees  on  receipt  of  which  they  refused 
to  hear  any  testimony  on  the  part  of  the  plaint- 
iffs, and  neither  reported  anything  due  to 
them  nor  did  they  make  any  report  in  favor 
of  the  defendant/ 
COL.  AND  CAINES. 


Mr.  Spencer,  contra,  resisted  the  application 
and  submitted  to  the  court  a  special  statement 
of  the  matter  in  the  nature  of  a  report.  The 
facts  as  there  stated  were,  that  after  the  due 
assembling  of  the  referees,  &c.,  they  called  on 
the  counsel  of  the  plaintiffs  to  specify  his 
clients  demand,  which,  excepting  the  question 
of  interest,  was  originally  admitted  by  the 
defendant's  counsel  to  amount  to  about  $1,400, 
but  that  there  was  a  defence  which  would 
supersede  the  necessity  of  proving  the  exact 
sum  claimed,  though  it  might  be  ascertained 
by  the  books  and  bills  before  the  referees; 
that  the  defence  was  payment  of  $1,469  in  full 
satisfaction,  for  proof  of  which  a  receipt  was 
offered  in  evidence,  and  an  acknowledg- 
*ment,  under  the  hand  of  the  defend-  [*2 1 7 
ant's  attorney,  admitting  certain  things  which 
the  subscribing  witness  would  have  sworn  to 
if  present.  That  the  plaintiffs  objected  to  the 
admission  of  this  testimony,  but  before  the 
question  of  admissibility  could  be  argued,  the 
defendant  produced  the  following  plea: 
"  And  now  at  this  day,  that  is  to  say,  on  the 
19th  day  of  July,  18*03,  before  George  Hale, 
Samuel  Edmonds,  and  Roswell  Hotchkis, 
referees  herein  appointed,  it  being  the  first 
day  and  time  of  their  meeting  hereon,  and 
upon  the  matters  referred  to  them  in  the 
above  cause,  comes  the  said  John,  by  Erastuz 
Root,  his  counsel,  and  says  that  the  said 
Joseph,  &c.,  ought  not  further  to  maintain 
their  said  action  against  him,  the  said  John, 
because  he  says  that  after  the  14th  day  of 
May  last  past,  from  which  day  day  was  given 
to  the  said  referees  to  make  their  report  until 
the  first  Monday  in  August  next,  before  the 
justices  of  the  Supreme  Court,  &c.,  at  the 
city  hall  of  the  City  of  Albany  aforesaid,  the 
aforesaid  action  was  continued,  to  wit,  on  the 
28th  day  of  May,  in  the  year  aforesaid,  at  the 
City  of  Albany  in  the  County  of  Albany 
aforesaid,  the  said  John  did  pay  to  the  said 
Joseph,  &c.,  the  sum  of  one  thousand  four 
hundred  and  sixty-nine  dollars  in  full  satisfac- 
tion and  discharge  of  all  and  singular  the 
matters  and  things  and  the  sums  of  money  due 
to  the  said  plaintiffs,  and  •  for  the  recovery 
whereof,  this  aforesaid  action  hath  been 
brought  and  prosecuted,  and  which  said  sum 
of  one  thousand  four  hundred  and  sixty-nine 
dollars,  was  then  and  there  accepted,  taken 
and  received  by  the  above  plaintiffs  in  full 
satisfaction  and  discharge  of  all  *and  [*218 
singular  matters  and  things,  and  of  the  sums 
of  money  due  to  them  and  for  the  recovery 
whereof , this  aforesaid  action  hath  been  brought 
and  prosecuted,  and  this,  &c.,  wherefore,"  &c. 
That  thereon  the  referees  adjourned  the 
further  hearing  and  returned  the  said  plea. 

This  was  a  report;  it  was  all  the  referees 
could  do  as  they  could  not  undertake  to  decide 
whether  the  plea  was  good  or  not,  that  being 
matter  of  law. 

Per  Curiam.  The  motion  is  that  the  refer- 
ees be  ordered  to  make  a  report,  they  having, 
instead  of  that,  made  a  special  return  of  all 
the  facts  to  which  they  have  annexed  the  plea 
of  the  defendant,  offered  to  them  at  the  hear- 
ing. The  application  must  be  granted;  there- 
fore, let  the  rule  be,  that  the  referees  report 
by  the  first  day  of  next  term. 

127 


218 


SUPREME  COUKT,  STATE  OF  NEW  YORK. 


1803 


N.  B.  After  giving  the  opinion  of  the 
court,  Kent,  J.  observed,  that  their  honors 
would  advise  the  referees  in  making  up  their 
report  to  allow  the  receipt,  if  they  believed  it 
genuine  and  to  have  been  fairly  obtained,  in 
order  that  the  plaintiff,  on  whose  affidavit  the 
application  was  made,  if  he  thought  himself 
aggrieved,  or  that  it  was  improper  to  allow  a 
receipt  given  after  the  rule  to  refer,  might 
apply  to  the  court  to  set  aside  the  report  on 
that  ground,  at  which  time  the  question  might 
be  fully  argued. 

The  court  desired  that  all  cases  submitted 
to  them  without  argument,  should  be  so 
219*]  indorsed,  because  *they  might  other- 
wise be  laid  aside  under  an  idea  that  an  argu- 
ment would  take  place. 


PETER  RENAUDET 

v. 
EPHRAIM  CROCKEN. 

1.  Trespass — Locus  in,  quo — Division  of  Town. 
2.  Witness — Surveyor — Ownership.  3.  Idem — 
Agent — Money  to  be  Refunded  in  like  Cases  if 
Plaintiff  failed  in  Writ.  4.  Verdicts-Weight 
of  Evidence — Credibility  of  Witnesses. 

THIS  was  an  action  of  trespass  qua  re  clau»um 
fregit,  tried  at  the  May  circuit,  for  the 
County  of  Saratoga,  in  the  year  1803,  before 
His  Honor  Mr.  Justice  Kent.  The  only  ques- 
tions raised  for  the  determination  of  the  court, 
were: 

1st.  Whether,  if  a  trespass  be  committed  in 
a  part  of  a  town  which,  by  a  division  made 
before  the  commencement  of  the  action,  is  an- 
nexed to  another  township,  the  plaintiff  can 
declare  as  for  a  trespass  committed  in  the 
township  where  the  locus  in  quo  was  originally 
situated? 

2d.  Whether  a  surveyor,  acting  under  the 
authority  of  a  person  appointed  by  virtue  of  a 
power  of  substitution  in  a  letter  of  attorney, 
ought  to  be  admitted  to  testify  to  the  facts  of 
such  survey,  without  showing  the  letter  of 
attorney,  though  it  was  acknowledged  to 
exist? 

3d.  Whether  an  agent,  having  received  sev- 
eral sums  of  money  on  account  of  trespasses 
alleged  to  have  been  committed  on  the  lands 
of  his  principal,  and  which  he  promised  to 
refund  if  he  did  not  recover  in  the  present 
action,  was  a  competent  witness? 
22O*j  *The  fourth  was  merely  as  to  the 
weight  of  testimony. 

Per  Curifim,  delivered  by  LIVINGSTON,  J. 
\.  The  trespass  having  been  committed  in 
1797,  at  a  place  then  within  the  town  of  Sara- 
toga, the  plaintiff  had  a  right  to  allege  it  was 
done  in  that  town,  according  to  the  truth  of 
the  case,  without  regard  to  its  subsequent 
division.  The  judge,  therefore,  properly 
overruled  this  objection. 

2.  It  was  not  necessary  to  produce  the 
plaintiff's  letter  of  attorney  to  Beriah  Palmer. 
The  object  of  Baldwin's  testimony  was  to  show 
that  Jacobs  lived  on  a  lot  of  the  plaintiff  and 
acknowledged  his  right;  that  it  was  then  re- 
garded as  the  plaintiff's,  taken  care  of  as  his, 
128 


and  possessed  under  him;  whether  this  had 
been  done  under  a  power  or  not,  was  immate- 
rial.— The  ownership  and  possession  of,  or 
under  him  were  the  important  facts  to  be 
established. 

3.  Beriah  Palmer  was  a  competent  witness, 
notwithstanding  the  agreement  he  may  have 
made  to  refund  the  moneys  he  had  received 
from  other  trespassers,  in  case  the  plaintiff 
failed  in   this  suit.     Such  moneys  must  have 
been  received  for  the  plaintiff;  and  he  only, 
and  not  the  witness,  would  be  affected  by  such 
refunding. 

4.  If  the  jury  believed  the  plaintiff's  wit- 
nesses, and  we  are  to  presume  they  did,  the 
verdict  is  not  against  evidence  and  ought  not 
to  be  disturbed. 


*  JACKSON,  on  the  Demise  of  WILL-  [*221 

IAM8  ET  AL., 

V. 

CHAMBERLIN  ET  AL. 

Nonsuit — Trial  not  had — Many  Causes  tried — 
Seniorty  of  issues — Costs — Stipulation. 

T>  USSELL  moved  for  judgment,  as  in  case 
Lt  of  nonsuit,  for  not  proceeding  to  trial. 
The  affidavit  stated  that  issue  was  joined  pre- 
vious to  June,  1802. 

Mr.  Van  Vcchten  read  an  affidavit, setting  forth 
that  thirty -five  cases  were  on  the  calendar,  of 
which  only  thirteen  were  tried,  but,  from  the 
length  of  those,  and  the  criminal  business  be- 
fore the  court,  the  present  action  could  not  be 
heard. 

Per  Curiam.  As  many  causes  were  tried,  it 
is  incumbent  on  the  plaintiff  to  show  that 
those  issues  were  older  than  his.  Let  the  de- 
fendant take  the.  effects  of  his  motion,  unless 
the  plaintiff  stipulate  and  pay  costs. 


DAVID  DBAS 

V. 

PASCHAL  N.  SMITH,  PRESIDENT  OP 
THE  COLUMBIAN  INSURANCE  COM- 
PANY. 

1.  Nonsuit — Trial  not  had — Additional  Affida- 
vits. 2.  Idem — Commission — Proof  not  given 
— Oilier  Witnesses — Due  Diligence. 

TSSUE  had  been  joined  in  this  cause  in  1800, 
_L  and  two  commissions  had  been  sued  out; 
one  had  been  returned,  but  a  long  time  having 
elapsed,  the  defendant  gave  notice  for  the 
last  term,  that  he  would  then  move  for  judg- 
ment, as  in  case  of  nonsuit.  On  its  being 
brought  on,  the  plaintiff  stipulated  to  try  at 
the  next  sittings,  or  circuit  court,  reserving  to 
himself  the  right  of  applying  to  the  court  for 
a  renewal  of  the  stipulation,  in  case  the  other 
commission,  then  pending,  should  not  be  re- 
turned. 

*Mr. Benson  now  renewed  the  applica-  [*222 
tion  for  judgment,  on  an  affidavit  stating  that  a 
few  days  after  the  above  stipulation  was  en- 
tered into,  the  commission  to  which  it  alludes 

CAINKS. 


1803 


DAVID  DBAS  v.  PASCHAL  N.  SMITH. 


222 


arrived,  and  that  the  cause  had  been  duly  no-  j 
ticed  for  the  last  sittings,  but  had  not  been 
brought  on. 

Mr.  Woods,  contra,  read  an  affidavit  by  the 
parties  on  account  of  whom  the  plaintiff  had 
effected  the  policy  of  insurance,  on  which  the 
present  action  was  brought.  The  affidavit 
stated  the  loss,  exhibition  of  proofs,  application 
for  payment,  refusal  to  pay,  commencement 
of  suits,  suing  out  of  commissions,  and  their 
return.  That  the  interest  was  not  fully  proved  j 
by  the  witnesses  examined  under  the  last  com- 1 
mission,  as  they  were  privy  only  to  the  lading 
of  what  was  purchased  by  one  of  the  witnesses, 
and  covered  by  a  former  policy,  but  knew 
nothing  of  the  residue;  that  the  cause  jsvas, 
nevertheless,  noticed  for  trial  under  an  idea  of 
proving  interest  in  sundry  other  articles  of  the 
cargo  by  one  York  Wilson,  who,  though  a  sea- 
faring man,  the  deponent  believed  to  be  per- 
manently resident  in  New  York,  as  he  had 
lived  there  for  twelve  months  uninterruptedly 
but  had  lately  gone  to  the  East  Indies;  the  de- 
ponent first  learned  this  circumstance  during 
the  time  of  the  last  sittings,  and  his  witness 
was  not  expected  to  return  before  the  ensuing 
winter;  that  being  advised  the  testimony  of 
Wilson  was  material,  the  defendant  did  not 
proceed  to  trial.  But  that  he  was  advised  and 
believed,  one  William  Robinson,  shortly  ex- 
pected here,  was  a  material  witness  for  him, 
and  that  he  believed  he  should  be  able  to  ob- 
tain Robinson's  attendance  at  the  next  sittings 
in  New  York,  or  the  circuit  thereafter;  that, 
223*]  as  the  deponent  *was  informed  and 
believed,  the  ground  of  defence  insisted  on  by 
the  defendant,  was  the  want  of  interest,  and 
that  the  deponent  understood  and  believed, 
the  defendant  or  some  person  in  his  behalf, 
offered  to  return  the  premium  and  pay  costs, 
which  offer  the  deponent  refused  to  accept. 
That  the  deponent  was  informed  and  believed 
the  cause  was  one  of  the  oldest  on  the  calen- 
dar, but  was,  when  called  in  its  order,  passed, 
for  the  accommodation  of  the  defendant;  that 
the  deponent  would  have  proceeded  to  trial, 
but  for  a  notice  to  produce  certain  papers, 
which  he  was  not  prepared  to  do.  These  rea- 
sons, Woods  argued,  were  sufficient  to  prevent 
the  object  of  the  motion ;  at  least,  if  a  nonsuit 
was  ordered,  it  would  be  an  condition  of  the 
defendant's  abiding  by  his  own  proposal,  and 
paying  what  was  acknowledged  to  be  due,  the 
premium  and  costs  of  suit. 

Mr.  Benson  offered  a  counter  affidavit  to  show 
that  York  Wilson  was  a  slave,  and  therefore 
the  want  of  his  testimony  could  never  have 
prevented  the  cause  from  being  heard,  be- 
cause, had  he  been  present,  his  evidence  could 
not  have  been  received. 

Mr.  Woods  contended,  that  counter  affidavits 
were  inadmissible,  because,  in  the  first  place,  a 
copy  had  never  been  furnished,  and  in  the  next 
place,  the  practice  was  to  exclude  them,  it  be- 
ing incumbent  on  the  party  moving,  to  sup- 
port his  application  on  his  original  deposi- 
tions. 

Mr.  Benson  acknowledged  the  general  prop- 
osition, but  distinguished  the  present  case  by 
this  circumstance;  that  the  counter  affidavit 
224*]  was  not  to  support  the  motion,  *but 
to  contradict  a  collateral  and  independent  fact 
asserted  by  the  plaintiff;  and  as  to  not  being 
COL.  AND  CAINES.  N.  Y.  REP.,  BOOK  1. 


furnished  with  a  copy,  the  plaintiff  had  not 
given  a  copy  of  his. 

Mr.  Woods.  Copies  of  affidavits  in  excul- 
pation, are  never  afforded,  those  to  charge  or 
demand,  are. 

Per  Curiam.  The  application  is  for  judg- 
ment, as  in  case  of  nonsuit;  this  is  opposed  by 
a  deposition  read  by  the  plaintiff,  disclosing 
facts,  to  rebut  which,  the  defendant  offers  a 
counter  affidavit ;  a  question  is  made  whether 
it  can  be  received.  On  examining  into  the 
point,  the  court  finds  the  practice  to  be  settled 
against  its  reception.  It  is  expressly  decided 
in  Grove  ads.  Campbell,  ante,  115,  "that  a  party 
can  never  support  his  motion  by  any  affidavits 
but  those  on  which  he  originally  grounds  it. " 

The  motion  must,  therefore,  depend  on  the 
first  affidavits.  From  that  by  the  plaintiff, 
among  other  things  which  it  contains,  it  ap- 
pears that  the  commission  mentioned  in  his 
stipulation  as  the  one  then  pending,  was  re- 
turned before  the  last  circuit,  and  that  he  might 
have  then  gone  to  trial.  His  affidavit  further 
states  that  the  return  was  examined,  and  the 
proof  wanted  not  contained  in  the  answers  to 
the  interrogatories;  that  the  interest  required 
did  not  appear;  that  there  was  a  witness  who 
resided  in  New  York,  by  whom  it  was  expect- 
ed to  establish  the  same  facts.  This  witness 
was  not  applied  to,  nor  was  any  measure  taken 
to  procure  his  testimony  till  after  the  com- 
mencement of  the  court,  and  then  he  is  found 
to  be  gone  to  the  East  Indies.  There  is,  how- 
ever, another  *witness  who  knows  [*225 
something  material,  but  it  is  not  stated  what, 
nor  that  any  measure  is  taken  to  procure  his 
attendance.  It  is  further  stated,  that  this  is 
one  of  the  oldest  issues;  that  it  was  called  on 
and  passed,  for  the  accommodation  of  the  de- 
fendant, though  it  is  before  sworn  he  did  not 
proceed  to  trial,  because  the  testimony  of  York 
Wilson  was,  as  the  plaintiff  was  advised  by  his 
counsel,  material  and  could  not  be  had.  The 
court  are  of  opinion  the  reasons  are  not  suffi- 
cient. This  is  a  second  application  for  judg- 
ment; there  has  already  been  a  stipulation,  and 
that  a  special  one.  The  w£nt  of  a  witness  is 
alleged,  and  no  diligence  shown  to  procure 
him.  There  ought  to  have  been  immediate 
measures  taken  to  subprena  him.  It  does 
not  sufficiently  appear  that  the  cause 
was  passed  for  the  accommodation  sworn  to; 
it  was  necessary  to  have  substantiated  this; 
it  rests  on  the  single  oath  of  the  party;  the 
counsel  himself  ought  to-  have  stated  this. 
But  though  we  should  grant  the  nonsuit, 
we  are  requested  to  do  this  on  condition.  The 
affidavit  as  to  making  the  offer,  is  equivocal; 
and  if  in  any  case  we  would  impose  such  terms, 
this  is  not  one,  for  the  plaintiff  has  not  dis- 
closed enough  to  show  the  proposition  was 
ever  made. 

Mr.  Benson  pressed  the  court  to  reconsider 
the  case  determined  in  October  term,  1800, 
(Grove  ads.  Campbell),  and  weigh  his  distinc- 
tion. 

Per  Curiam.  We  shall  look  into  it,  and  if 
we  see  occasion  to  alter  our  opinion,  the  bar 
will  be  informed  *of  it.  In  the  mean  [*22<> 
time,  judgment  of  nonsuit  must  be  entered. 

N.  B.     The  court  never  spoke  to  it  again. 

9  129 


226 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


THE    PRESIDENT   AND   DIRECTORS  OF 
THE  MANHATTAN  COMPANY, 

v. 
LEDYARD  &  LED YARD. 

Variance — Negotiable  Instrument*  of  Partner- 
ship— Pleading  Legal  Effect. 
HIS  case  was  submitted  without  argument. 


T 


RADCLIFFE,  Justice,  now  delivered  the 
opinion  of  the  court.  • 

This  is  an  action  by  the  plaintiffs,  as  in- 
dorsees of  a  promissory  note  made  by  Brown, 
Talbot  &  Co.  "to  the  defendants,  for  488  dollars 
and  17  cents,  and  indorsed  by  them  to  the 
plaintiffs. 

The  declaration  avers  that  James  Brown, 
William  Talbot  and  John  Goodere,  acting  un- 
der the  firm  of  Brown,  Talbot  &  Co.,  made  the 
note  in  question,  the  proper  name  and  firm  of 
Brown,  Talbot  &  Co.,  being  thereunto  sub- 
scribed; and  that  the  defendants  being  part- 
ners under  the  firm  of  Austin  Ledyard  &  Co. 
indorsed  the  said  note  in  writing,  the  proper 
name  and  style  of  the  said  firm  of  Austin  Led- 
yard &  Co.  being  thereunto  subscribed.  The 
other  parts  of  the  declaration  are  in  the  usual 
form. 

The  partnership  of  the  makers  and  indorsees 
of  the  note,  and  the  making  and  indorsing  of 
the  same  as  above  set  forth,  are  admitted. 

The  evidence  on  the  trial  was  that  Brown, 
one  of  the  makers,  subscribed  the  note  by  the 
227*]  partnership  *firm,  and  that  Austin  Led- 
yard, one  of  the  firm  of  Austin  Ledyard  & 
Co.,  indorsed  the  same  with  the  name  of  that 
firm.  The  question  submitted  by  the  parties 
is,  whether  the  evidence  supports  the  aver- 
ments contained  in  the  declaration. 

We  have  no  doubt  that  the  averments  were 
sufficiently  supported  by  this  evidence.  It  was 
not  necessary  to  set  forth  that  one  of  the  part- 
ners of  each  of  the  firms  made  and  endorsed 
the  note  in  the  name  or  style  of  the  respective 
partnerships.  Although  made  and  endorsed 
by  one  of  the  partners  of  each  house,  the  legal 
effect  was  the  same,  and  it  is  in  all  cases  suffi- 
cient to  set  forth  swwriting  according  to  its  le- 
gal effect  or  operation.  We  are,  therefore,  of 
opinion  that  the  plaintiffs  are  entitled  to  judg- 
ment. 


JOHN  J.  ARJO  v.  JOAQUIM  MONTEIRO. 

Removal  of  Causes  to  Federal  Courts — Petition 
•   by  Alien — Time. 

BY  THE  COURT.     If  an  alien  defendant 
file  his  petition,  &c.,  to  remove  the  suit 
into  the  circuit  court  of  the  United  States,  at 
the  time  of  filing  special  bail,  he  is  in  season, 
though  the  bail  may  have  been  excepted  to. 


JACKSON,  on  the  demise  of  HOOEBOOM, 

JOHN  STILES,  AUSTIN  GRIFFIN, 
Tenant  in  Possession. 

Amendment — Ejectment — Filing  in   Blanks  in 

Declaration — Notice. 

A  TITLE  to  the  premises  in  question  had 
-/V  been  awarded  to  the  lessor  of  the  plaintiff 
ISO 


by  the  commissioners  appointed  to  settle  dis- 
putes to  land,  in  the  county  of  Onandago,  and 
he  had  served  declarations  on  the  tenants, 
with  the  usual  notices  annexed.  The  declara- 
tions, however,  contained  blanks  for  the  towns 
*and  counties,  which,  at  the  time  of  [*22H 
service,  were  not  filled  up,  nor  were  they  in 
the  copies  annexed  to  the  affidavits  of  service, 
and  filed  with  them,  on  which  the  usual  rule 
was  entered.  The  declarations  were  served 
on  the  tenants  within  the  three  years  allowed 
by  law  for  prosecuting  the  titles  awarded,  but 
they  were  now  elapsed. 

Mr.  Spencer,  on  these  circumstances  being  dis- 
closed by  the  affidavit  of  the  plaintiff's  lessor, 
stating  also  the  services  having  been  made  with 
the  full  intent  of  carrying  into  effect  the  actions 
instituted,  moved  for  a  rule  against  the  ten- 
ants, to  show  cause,  by  the  first  day  of  next 
term,  why  the  declarations  should  not  be  re- 
spectively amended,  by  the  insertion  of  the 
names  of  the  towns  and  counties,  and  that  fix- 
ing up  the  rule  in  the  clerk's  office  should  be 
deemed  good  service. 

Mr.  Emott.  Are  the  tenants  to  take  notice  of 
declarations  which  are  mere  nullities,  void  in 
themselves,  and  to  which  they  are  not  parties? 
They  have  not  appeared;  they  are  not  in  court, 
and 'John  Stiles  is  the  only  defendant  to  the 
suit,  that  can  be  known  by  the  record. 

Per  Curiam.  Notice  having  been  served  on 
the  tenants,  it  was  enough  to  put  them  on  in- 
quiry. There  is  time  enough  for  them  to  come 
in  if  they  please. 

Take  the  effect  of  yaur  motion. 


COLE  v.  STAFFORD. 

Bail  —  Discharge  of  Principal  under  Insolvent 
Laics — Stamp. 

IN  this  case  the  exoneration  of  bail,  whose 
principal  had  been  relieved  under  the  insolv- 
ent law,  was  *opposed  on  the  ground  [*22J> 
of  the  discharge  not  having  been  duly  stamped 
according  to  the  act  then  in  force. 

Per  Curiam.  We  cannot  go  into  it;  the  act 
makes  the  discharge  conclusive  except  in  cases 
of  fraud;  the  matter  was  before  the  court  be- 
low, and  they  were  the  proper  judges  whether 
every  thing  was  regular  or  not. 


GARRIT  ABEEL 

v. 
WOLCOTT,     who    is    impleaded    with    VAN 

NORDEN. 

Inquest — Setting   aside  —  Writ    not   before    the 
Court. 

VAN  VECHTEN,  on  behalf  of  the  plaintiff, 
V    moved  that  the  writ  of  inquiry,  and  pro- 
ceedings stated  in  the  affidavit  on  which  he 
applied,  should  be  set  aside,  and  a  writ  of  in- 
quiry issue  de  now.     The  affidavit  set  forth, 
that  by  an  agreement  in  writing  entered  into 
COL.  AND  CATNES. 


1803 


JACKSON,  EX  DEM.  FINCH  ET  AL.,  v.  JOHANNIS  KOUGH. 


229 


between  the  attorneys  of  the  parties,  it  was 
stipulated  that  on  the  execution  of  the  writ  of 
inquiry,  every  defence  which  could  have  been 
made,  had  a  trial  taken  place,  should  be  availed 
of;  that  both  sides  should  have  the  same 
liberty  of  excepting  to  the  admissibility  of 
evidence,  reduce  their  objections  to  writing 
and  make  a  case  in  the  same  manner  as  if  the 
cause  had  been  heard  at  the  circuit.  That  the 
evidence  of  each  party  having  been  gone 
through  and  closed,  the  attorney  for  the  plaint- 
iff went  home,  after  which  the  jury  called  in 
the  defendant  Wolcott's  attorney,  and  asked 
him  if  a  verdict  should  go  against  Wolcott, 
whether  he  could  recover  his  proportion  against 
Van  Norden?  and  whether,  if  it  should  be 
against  the  plaintiff,  he  could  carry  it  before 
the  supreme  court?  To  the  first  of  which 
23O*]  questions,  Wolcott's  attorney  *an- 
swered  no;  and  to  the  latter,  yes;  in  conse- 
sequence  of  which  a  verdict  was  rendered 
against  the  plaintiff,  but  the  writ  has  never 
been  returned,  but  has  been  handed  to  the 
plaintiff's  attorney,  without  any  inquisition 
annexed. 

Per  Curiam.  The  application  is  to  set  aside 
a  writ  of  inquiry,  when  there  is  none  before 
the  court.  There  is  no  return,  no  inquisition, 
and  nothing  to  set  aside.  There  was  a  written 
agreement,  which  does  not  appear  to  have 
been  complied  with.  The  plaintiff  is  in  pos- 
session of  his  own  writ  of  inquiry,  and  we 
see  no  objection  to  his  issuing  a  new  one, 
for  as  the  writ  is  not  before  us,  we  cannot 
grant  him  the  effect  of  his  motion  as  to  setting 
it  aside. 


JACKSON,  on  the  demise  of  FINCH  ET  AL. 

v. 
JOHANNIS  KOUGH. 

Ejectment — Amendment — Of  Declaration — Plea 
— Costs. 

TV  ECLARATIONS  had  been  served  in  these 
-U  causes  nearly  six  years  ago. 

Mr.  Van  Vechten  moved  to  amend  by  insert- 
ing several  demises  from  different  lessors. 

Mr.  Metcalf  opposed  it  on  the  ground  that  it 
might  vary  the  tenant's  defence. 

Mr.  Van  Vechten  observed, that  in  the  Warren- 
Bush  cases  the  same  thing  had  been  done.  If 
the  defendant  relinquish  his  defence,  then  all 
the  costs  heretofore  incurred  are  to  be  paid;  if 
he  abide  by  it,  then  there  is  no  injury  done. 
231*]  The  costs  in  the  first  case  *must  be 
paid  up  to  the  day.  This  the  plaintiff  is  will- 
ing to  do,  and  accept  any  plea  so  that  the 
cause  might  be  brought  on  at  the  next  circuit. 

Per  Curiam.  .  Amend  on  those  terms. 


WILHELMUS  VAN  DER  MARK 

#. 
JAMES    JACKSON    on    the    demise    of   Os- 

TRANDER. 

Writ  of  Error — Non  pros —  Writ  Not  Returned. 

IN  ERROR.     Judgment  having  been  entered 
in  the  court  of  common  pleas  for  the  county 
COL.  AND  CAINES. 


of  Ulster,  on  a  verdict  for  the  now  defend- 
ants, the  present  plaintiff  brought  his  writ  of 
error  returnable  in  this  court.  To  this  the 
clerk  of  the  common  pleas  made  his  return  in 
the  manner  said  to  have  been  usually  practised 
in  that  county,  by  annexing  a  transcript  of 
the  record,  and  delivered  it  to  the  now  plaint- 
iff's attorney,  who  sent  it  back  with  directions 
to  annex  the  original  record.  This  was  not 
done  but  the  writ  re-delivered  to  the  plaintiff's 
attorney,  with  only  the  transcript  returned. 

The  defendant,  without  any  service  of  a  scire 
facias  quare  executwnem  non,  and  without  giv- 
ing any  rule  to  assign  errors,  nonprossed  the 
plaintiff's  writ,  before  it  had  been  returned 
and  filed,  served  him  with  a  copy  of  a  bill  of 
costs,  and  sued  out  a  writ  of  possession. 

Mr.  Gardinier,  on  affidavit  of  these  facts, 
moved  to  set  aside  the  judgment  of  nonpros 
for  irregularity,  and  that  if  any  writ  of  pos- 
session had  been  issued,  a  writ  of  re-restitu- 
tion be  awarded. 

*Per  Curiam.  As  the  writ  was  never  [*232 
returned,  this  court  never  was  in  possession  of 
the  cause;  whatever  has  been  done  here,  must 
therefore  be  set  aside. 

Take  your  rule. l 

1.— See  Leith  v«  Mac  Ferlan,  3  Burr,  1772 ;  Accourt 
v.  Smith,  1  Ld.  Raym..  339. 


BERIAH  PHELPS  «.  TRISDALE  EDDY. 

Nonsuit — Trial  not  had — Continued  to  Day  in      4 
Term — Adjournment  of  Court — Absent   Wit- 
ness. 

VITOODWORTH,  on  an  affidavit  stating  that 
V?  issue  had  been  joined  in  this  cause  in 
November,  1801,  and  noticed  for  trial  at  the 
last  circuit  for  the  county  of  Columbia,  but 
not  brought  on,  moved  for  judgment  as  in 
case  of  nonsuit. 

Williams  read  a  counter  deposition  acknowl- 
edging the  notice,  but  adding  that  the  attorney 
for  the  defendant  did  not  attend;  that  his 
counsel,  however,  was  there,  with  whose  con- 
sent an  agreement  was  made  between  the 
agent  for  the  defendant  and  the  plaintiff's  at- 
torney, that  the  cause  should  not  be  brought 
on  before  the  Friday  in  the  second  week  of 
the  circuit,  on  the  Thursday  next  preceding 
which  day,  the  court  adjourned;  that  it  was 
impossible  to  bring  on  the  trial  during  the  cir- 
cuit, because,  in  consequence  of  the  agree- 
ment entered  into,  the  plaintiff  had  sent  his 
witness  home,  and  they  were  not  to  return  till 
the  Friday  appointed. 

,  Per  Curiam.  IM  the  defendant  take  nothing 
by  hi»  motion,  and  pay  the  plaintiff  his  costs  for 
opposing. 


*JOHN  RUSSEL 


JONATHAN  BALL  ET  AL. 


[*233 


1.  Nonsuit — Trial  not  had — Unavoidable  Events 
— Costs.  2.  Notice — Service  on  Agent — Per- 
sonal Service. 

THE  court  ruled  in  this  cause,  that  service 
on  the  agent  of  an  attorney  plaintiff  is  as 

131 


233 


SUPREME  COURT,  STATE  OK  NEW  YORK. 


1803 


good  as  in  any  other  suit,  and  that  it  need  not  be 
personal.  Also  that  though  unavoidable  oc- 
currences may  prevent  judgment,  as  in  case  of 
nonsuit,  yet  they  will  not,  separately  consid- 
ered, excuse  from  payment  of  costs;  for  the 
misfortune  of  the  plaintiff  ought  to  be  borne 
by  himself,  and  not  work  a  prejudice  to  the 
defendant. 


ROBERT  LYLE  t>.  ISAAC  CLASON,  AND 
ISAAC  CLASON 

v. 
ROBERT  AND  JOHN  LYLE. 

1.  Shipping — Contract  of  Master — Receipt  of 
Benefits  by  Owner — Set-off.  2.  Contract — 
Parties — Partnership  Debts  and  Claims. 

rpHESE  were  cross-suits,  brought  under  the 
J-  following  circumstances: 

On  the  first  of  September,  1793,  Robert  Lyle 
engaged  with  Clason  to  go  to  Europe  as  his 
agent,  and  transact  his  business  at  a  salary  of 
ISO/,  per  annum,  New  York  currency,  besides 
his  expenses.  In  consequence  of  this  arrange- 
ment, Robert  Lyle  embarked  on  board  a  ves- 
sel of  Clason's,  called  the  Hafe,  destined  to 
Hamburgh,  with  a  cargo  of  sugar  and  coffee, 
In  an  account  made  out  by  Robert  Lyle, 
against  Clason,  he  charges  his  salary  for  six 
months,  at  421.  3s.  4d.  ending  in  March,  1794, 
No  evidence  appeared  that  Clason  either  then, 
or  at  any  time  after,  discharged  Lyle  from  his 
service;  and  in  an  account  rendered  by  him  to 
Robert  Lyle,  he  gives  Lyle  credit  for  one 
year's  salary  at  the  above  rate. 
234*]  *ln  March,  1794,at  which  time  John 
Lyle  was  employed  in  the  Loan  Office  of  the 
United  States,  Robert  was  in  Paris,  and  while 
there,  entered  into  a  contract  with  the  French 
government,  ostensibly  in  his  own  name.but  in 
fact  for  the  house,  and  through  the  influence 
of  Delard,  Swan  &  Co.  of  Pans,  for  the  deliv- 
ery of  from  ten  to  fifteen  hundred  tons  of  pot 
and  pearl  ashes,  in  any  port  of  France,  at  £53 
sterling  per  ton  (payable  as  soon  as  delivered), 
two  fifths  in  bills  on  Hamburgh,  and  three 
fifths  in  louis  d'ors,  with  a  license  of  exporta- 
tion for  the  specie. 

On  the  nineteenth  of  the  same  month,  Rob- 
ert Lyle  wrote  to  Clason  an  account  of  the 
contract,  urging  him  to  embark  in  it,  and  in- 
closing a  more  particular  letter  from  Swan, 
offering  Clason  an  interest  in  the  contract,  by 
the  terms  of  which  the  profits  were  to  be  thus 
divided:  one  third  to  Delard,  Swan  &  Co., 
and  two  thirds  to  Clason,  giving  to  Lyle  for 
the  use  of  his  name,  a  fifth  of  the  whole;  one 
third  of  which  was  to  be  paid  by  Delard,  Swan 
&  Co.,  the  remaining  two  thirds  by  Clason. 
Robert  Lyle,  in  his  letter  cautions  Clason 
against  being  too  explicit  in  what  he  may 
write,  for  fear  of  capture,  and  advises  him  to 
let  the  language  he  might  use  accord  with  the 
appearance  the  business  might  be  obliged  to 
assume. 

In  consequence  of  this  letter,  and  without 
any  other  information  of  the  contract  than 
what  the  letter  of  Robert  Lyle  contained,  Cla- 
son, in  July,  1794,  dispatched  to  France,  under 
182 


the  command  of  one  Gideon  Gardner,  a  vessel 
named  the  Joseph,  laden  with  pot  and  pearl- 
ashes,  giving  to  Gardner  at  the  same  time  the 
following  letter  of  instructions: 
*  "  Capt.  Gideon  Gardner,  [*235 

"  NEW  YORK,  26th  July,  1794. 

"  Dear  Sir: — You  will  please  to  ta'ke  charge 
of  the  ship  Joseph,  and  proceed  as  fast  as  pos- 
sible to  France.  I  shall  not  confine  you  to 
any  one  port,  but  by  all  means  endeavor  to 
get  into  any  port,  the  first  that  you  can  make, 
which,  if  you  are  fortunate  enough  in  arriving 
safe,  you  will  immediately  apply  to  one  of  our 
American  Consuls  for  instructions  respecting 
the  customs  of  the  place,  and  there  make  sale 
of  your  cargo  to  the  best  advantage  for  my 
account;  perhaps  you  will  be  able  to  make  a 
sale  of  the  whole  to  the  republic  of  France,  at 
a  good  profit,  by  taking  part  in  brandy; 
which,  if  so,  and  the  brandy  should  appear  to 
you  of  a  good  quality,  and  at  such  a  price  as 
you  might  judge  would  answer  to  bring  here, 
you  will  do  it;  if  not,  you  will  endeavor  to 
sell  for  cash,  and  if  times  should  appear 
favourable  in  England,  you  will  remit  the 
greater  part  of  your  avails  to  Messrs.  Bird, 
Savage  &  Bird,  merchants  in  London;  and  if 
you  don't  find  freight  from  France,  or  any 
other  article  that  will  answer,  you  may  run  to 
any  port  in  England,  and  either  load  there 
with  salt,  or  get  freight,  whichsoever  you  may 
judge  will  be  most  to  my  interest.  However, 
it  is  impossible  for  me  to  give  you  any  posi- 
tive instructions,  from  the  precariousness  of 
the  times ;  much  will  depend  on  your  good 
judgment  on  your  arrival.  I  think  likely  you 
may  see  or  hear  from  Robert  Lyle;  if  so,  he 
will  give  you  very  essential  *assistance  [*23<> 
in  your  negotiating  your  business  in  that 
country.  I  am,  Sir,  &c., 

"(Signed)  ISAAC  CLASON." 

Gardner  set  sail  with  the  Joseph,  and  on  the 
4th  September,  1794,  arrived  at  Cherbourg. 
From  thence  he  addressed  himself  to  Delard, 
Swan  &  Co.,  and  on  the  9th  of  October,  1794, 
wrote  them  thus: 

"CHERBOURG,  9th  October,  1794. 
"  Messrs.  Delard,  Swan  &  Co. 

"  Gentlemen: — I  received  yours  this  morn- 
ing, of  the  15th  Vendemaire.  I  wrote  you 
yesterday,  and  inclosed  you  a  receipt  from  the 
garde  Magazin  for  my  cargo.  The  cost  of  my 
cargo  I  sent  you  in  my  letter;  yours  now  men- 
tions of  receiving  ;  but,  agreeable  to  your  re- 
quests, you  have  it  here  inclosed.  The"  pot 
and  pearl-ashes,  as  per  invoice,  cost  £12,012 
3  0,  £12,012  3  0 

"  One  barrel  ashes  delivered 
more  than  the  invoice,  which  I 
received  as  a  barrel  of  beef,  aver- 
age 350  wt.  at  46*.,  8  1 


"New  York  currency,  £12,020  4  0 

' '  Charges  here — paid 

charterage,  £1,000 

"  Do.  weighing,  25 

1,025 

"  I  know  of  no  other  charges  here;  if  any  to 
be  paid  to  the  commission  of  commerce,  you 
will  please  to  charge  them  in  the  account.  If 
you  *recollect,  yoii  took  off  the  foots  [*237 
of  the  invoice  when  I  was  at  Paris,  on  the 
letter  I  left  with  you.  The  letter  I  wrote  you 
COL.  AND  CAINEB. 


1803    ROBERT  LYLE  v.  ISAAC  CLASON,  AND  ISAAC  CLASON  v-.  ROBERT  AND  JOHN  LYLE.      237 


about  my  owner,  you  mention  of  having  found 
it,  and  say  it  was  inclosed  in  yours  I  received 
this  morning,  but  I  expect  you  omitted  it,  as 
it  has  not  come  to  hand.  Please  to  forward  it 
as  soon  as  possible,  as  it  may  make  some  alter- 
ation in  my  affairs.  You  mention  of  the  un- 
certainty of  receiving  cash  or  bills  for  any 
article  from  America.  I  would  thank  you,  in 
your  last  to  me  to  mention  whether  we  may 
place  full  confidence  in  their  paying  me  in 
good  bills  or  cash,  agreeable  to  the  contract, 
for  the  quantity  of  ashes  specified,  as  that  was 
my  particular  orders  from  Mr.  Clason.  You 
have  once  mentioned  it,  but  your  two  last  let- 
ters leave  it  doubtful  in  my  mind.  I  would 
thank  you  to  acquaint  Mr.  Lyle  of  my  pro- 
ceedings as  soon  as  the  bills  are  obtained.  I 
am  only  waiting  for  the  bills,  and  beg  you  to 
make  all  dispatch  in  your  power,  and  am 
yours. 

"(Signed)  GIDEON  GARDNER." 

On  the  seventh  of  December  following, 
Gardner  addressed  a  letter  to  Lyle  in  these 
terms: 

"  CHERBOURG,  7th  December,  1794. 
"  Dear  Sir: — I  received  yours  of  the  loth 
November.  I  arrived  here  4th  September, 
and  proceeded  to  Paris  and  delivered  the  cargo 
on  the  contract  of  53;  and  as  Mr.  C.  was  in 
advance  for  the  whole,!  arranged  it  for  D.  S.  to 
have  one  third,  agreeable  to  the  account  an- 
238*]  nexed.  They  are  to  settle  *with  you  for 
one  third  of  what  you  are  entitled  to,  and  Mr.C. 
to  settle  with  you  two  thirds,  after  delivering 
the  cargo,  and  the  receipt  presented  for  pay- 
ment. There  was  a  suspension  of  all  payments 
in  bills  or  money.  I  returned  to  Paris,  and, 
after  a  long  and  tedious  detention,  I  obtained 
bills  on  Hamburgh,  though  not  at  the  rate 
agreed  for.  They  are  for  90  days,  and  the 
exchange  185  livres  for  100  marks  banco; 
which  bills  I  forwarded  by  post  to  Lubert  & 
Dumas,  who,  I  understood,  did  your  business 
there.  I  was  fearful  you  were  in  England,  by 
what  I  had  heard,  or  I  would  have  sent  them 
to  you.  My  orders  to  them  were,  to  negotiate 
the  bills  and  remit  the  money  to  B.,  S.  &  B., 
London,  on  Mr.  C.'s  account,  except  there 
should  be  appearance  of  war.  In  that  case, 
they  are  to  consult  you.  ( I  was  cautioned  by 
Mr.  C.  in  respect  to  that.)  I  presented  a  peti- 
tion for  demurrage,  &c.,  to  the  amount  of 
£1,250  sterl.,  which  has  passed  two  or  three 
offices,  which  I  wish  you  to  press  hard  for.  I 
sent. two  bills  by  different  posts,  and  wrote 
you.  I  have  two  thirds  of  a  cargo  of  prize 
salt  on  freight;  about  £400  sterl.  freight.  It 
is  almost  half  on  board,  and  am  taking  in  the 
rest;  shall  sail  in  a  few  days  for  New  York, 
and  expect  to  return  as  fast  as  possible  with 
the  remainder  of  the  contract.  Swan  is  gone 
to  America.  Mr.  C.  shipped  by  Captain  S. 
Armour  about  two  hundred  tons — Major  Con- 
oily  is  the  supercargo.  They  have  sold  to  in- 
dividuals for  specie.  I  have  wrote  B.,  S.  & 
B,,  since  I  sent  the  bills,  and  also  informed 
them  of  this  other  cargo. 

239*]       *  ACCOUNT   OP   MY   CARGO. 

To  the  cost  in  America,  as  per 

invoice,  -    £12,020  4  0 

Insurance,  5  per  cent. ,        -  601  0  2 


12,621  4  2 


Interest  on  do.  from  1st  July  to 

1st  December,  at  6  pr.  cent.,  315  10  7 

My  commission,                           -  1,000 

Freight,  1,200  sterl.,  2,133    68 


New  York  currency, 
Is,  sterl., 


16,070    1  5 


3,200  7  10 
1,600  3  10 


9,039    8  4 


COL.  AND  CAINES. 


13,840 
Paper  money  expenses    on    the 

cargo  was  2,795  livres,  2-3  1-3. 

BY  SALES. 
Of  two  hundred  and    sixty-one 

tons  and  286  lb.,  at  £53  per 

cwt.,        -  -    £13,840 

The  amount  of  bills  I  remitted 

is,  M.  Banco,  158,786  10 

To    this,    Delard    &    Co  added, 

"Approved  this  account;    the 

assignats    to  be  settled  at  ten, 

and  Clason  obliged  to  satisfy 

Lyle  for  two  thirds  of  his  com- 
mission or  gratification. 
"(Signed) 

"D.  D.  S.  &Co." 

In  the  month  of  March,  1801,  Robert  Lyle 
arrived  in  New  York.  Clason  refusing  to  pay 
the  two-thirds  of  the  fifth  of  the  emoluments 
arising  from  the  contract  with  the  French 
republic,  in  April,  1801,  Robert  brought  the 
present  action  against  him.  Shortly  after 
which  Clason  arrested  Robert  and  John  Lyle 
in  the  cross  suit,  for  a  very  considerable  sum 
of  money. 

In  December,  1801,  both  causes  were,  by 
order  of  Court,  referred. 

On  the  10th  of  March  following,  the  attor- 
ney for  Robert  Lyle  submitted  the  following 
proposition  to  the  attorney  of  Clason: 

*"As  the  suit  instituted  by  Mr.  Cla-  [*24O 
son  against  Mr.  Lyle  does  not  include  any  claim 
for  damages  arising  from  the  misconduct  of  the 
latter,  and  more  particularly  for  damages  like 
those  claimed  on  the  business  of  the  Hare,  it 
would  be  proper  (lest  these  should  be  made 
the  subject  of  a  future  suit  on  the  part  of  Mr. 
Clason,  the  ground  of  an  objection  to  the  re- 
port on  the  part  of  Mr.  Lyle)  that  all  claims 
and  controversies  of  this  nature  be  included  in 
the  submission  already  made,  which,  in  a  legal 
point  of  view,  extends  only  to  the  subject 
matter  in  difference  in  the  particular  suits 
referred. 

"(Signed)      THOS.  L.  OGDEN,  for  Lyles." 

To  this  the  attorney  of  Clason  subjoined  the 
following  memorandum: 

"It  is  understood  that  the  demands  for  dam- 
ages above  mentioned,  and  all  claims  and 
demands  on  both  sides,  founded  on  contract, 
express  or  implied,  are  submitted."  To  this 
addition  the  attorneys  of  both  parties  added 
their  signatures,  and  the  consent  of  the  liti- 
gants themselves  were  given  in  these  words: 
' '  We  agree  to  the  above,  and  that  all  the  ac- 
counts, as  already  exhibited,  shall  be  reported 
on  by  the  referees  in  these  causes. 

"(Signed)  I.  CLASON, 

"  ROBT.  LYLE." 

On  the  30th  December  the  deposition  of 
Gardner  was  taken  in  behalf  of  Clason;  in 

133 


240 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


which,  among  other  things,  Gardner  swore 
241*]  that  his  letter  of  instructions  con-; 
tained  the  only  orders  that  he  had  from  Cla- 1 
son;    that    Delard    &  Co.  informed  him    of  j 
their  contract  with  the  French  government,  i 
and  he  contracted  with  them;   that  they  in- ' 
formed  him  the  contract  was  in  Lyle's  name,  i 
lie  being  a  neuter;  that  they  informed  him  Lyle  ' 
was  to  have  a  gratification,  but  what  it  was,  j 
he,  Gardner,  never  knew;  thinking,  and  being 
fully  assured  in  his  own  mind,  that  it  would 
apply  to  the  benefit  of  (Mason,  Lyle  being  his 
salaried  agent,  which  consideration   induced 
him,  Gardner,  to  consent   to   Clason's  being 
accountable  to  Lyle  for  two  thirds  of  the  said 
gratification,  which  he  expected  would  be  paid 
by  the  salary  at  which  Lyle  was  retained. 

On  the  22d  of  June  the  referees  made  their 
report  in  both  causes,  and  in  each  reported 
in  favor  of  the  defendants. 

On  the  20th  of  July  the  report  in  the  cross- 
suit  by  Clason,  was,  on  motion  in  court,  duly 
confirmed.  Immediately  after  which,  on  the 
23d  of  the  same  mouth,  Robert  Lyle,  in  order 
to  set  aside  the  report  in  favor  of  Clason,  made 
an  affidavit,  which  stated,  that  the  suit  insti- 
tuted by  him  in  April,  1801,  was  to  recover 
money  had  and  received  by  Clason  to  the  de- 
ponent's use;  that  it  was  referred,  and  at  the 
meeting  of  the  referees,  the  deponent,  as  the 
basis  of  his  claim,  did  prove,  aud  make  ap- 
pear, &c.  (mentioning  the  contract  and  cir- 
cumstances, and  letters  detailed  in  the  be- 
ginning of  the  case),  that  the  net  profits  on  the 
sales  made  by  Gardner  under  the  contract, 
were  £4,800  11  8  sterling;  that  the  fifth,  to 
which  the  deponent  was  entitled,  in  pursuance 
242*]  of  the  engagements  made  *with  him, 
was  £960  2  4,  of  which,  by  an  original  account 
of  Delard,  Swan  &  Co.,  produced  to  the 
referees,  it  was  proved  Delard,  Swan  &  Co. 
had  paid  their  one  third,  according  to  the 
agreement  with  Gardner;  but  no  payment  was 
shown,  or  pretended  to  have  been  made  of  the 
other  two  thirds  of  the  fifth,  nor  was  there  be- 
fore the  referees  any  set-off  or  counter  claim 
established  against  the  defendant;  that  the 
deposition  of  Gardner  (before  shortly  stated) 
was  shown  to  the  referees,  and  Gardner  him- 
self personally  examined;  that  he  then  testi- 
fied he  was,  previously  to  his  departure  from 
America,  with  the  sa'id  cargo,  per  the  ship 
called  the  Joseph,  made  acquainted  with  the 
existence  of  the  said  contract,  by  the  defend- 
ant, and  with  the  terms  or  price  therein  stipu- 
lated; that  he  did  not  consider  himself  bound 
by  the  instructions  of  the  defendant,  to  de- 
liver his  cargo  under  the  contract,  nor  restrict- 
ed from  doing  so,  but  at  liberty  to  act  accord- 
ing to  his  discretion;  that  his* motives  for  in- 
quiring from  Delard  &  Co.  respecting  the  re- 
liance to  be  placed  on  punctual  payment,  and 
also  for  alleging  this  to  be  done  at  the  desire 
of  the  defendant,  was  to  hold  out  the  idefc  of 
future  shipments,  and  so  insure  the  payment 
of  what  had  been  delivered,  but  not  settled 
for;  that  it  was  made  to  appear  without  any 
denial,  that  the  defendant  had  only  received 
his  two  thirds  of  the  profit  on  the  contract 
aforesaid;  that  the  report  had,  notwithstand- 
ing, been  made  in  favor  of  the  defendant, 
under  an  idea  that  Gardner  had  no  authority 
to  bind  Clason  to  the  payment  of  anything  to 
134 


the  deponent;  and  that  Clason  had  altered  the 
deposition  of  Gardner,  after  it  was  made,  and 
before  presented  to  the  referees,  without  com- 
municating the  alteration  to  them. 

*On  the  6th  of  October,  1802,  Clason  [*243 
made  an  affidavit  to  vacate  the  report  in  favor 
of  the  Lyles,  in  which  he  set  forth  the  insti- 
tuting the  two  suits;  their  being  referred;  the 
reports  made  in  favor  of  the  respective  de- 
fendants, and  that  they  were  duly  filed,  on 
the  first  day  of  July  Term  last  past,  so  that 
judgment  would,  according  to  the  usual 
course  of  the  court,  be  absolute,  the  then 
term;  that  the  reports,  according  to  his  in- 
formation and  belief,  were  drawn  up  by 
agreement  between  the  counsel  in  both  suits, 
that  each  should  draw  the  report  in  favor  of 
his  own  client;  that  the  deponent's  attorney 
was,  on  the  23d  of  July  last,  served  with  a 
copy  of  an  affidavit,  accompanied  with  a 
notice  of  moving  upon  it  to  set  aside  the  re- 
port in  favor  of  the  deponent;  that  the  mat- 
ters contained  in  the  affidavit,  went  to  the 
merits  of  the  case,  respecting  which,  on  ac- 
count of  sickness  in  the  deponent's  family, 
and  absence  from  New  York,  the  deponent 
could  not  make  any  explanations  to  his  coun- 
sel; that  he  acquiesced  in  the  report  against 
himself,  from  a  conviction  nothing  could  be 
obtained  from  Lyle,  and,  therefore,  no  report 
could  operate  more  favorably  to  the  interest 
of  the  defendant;  that  the  known  inability  of 
Lyle  to  pay,  was  one  reason  why  the  referees 
were  less  particular  in  examining  the  de- 
ponent's claims  against  him,  than  they  other- 
wise would  have  been,  deeming  it  unim- 
portant; that  the  whole  reports  were  made, 
and  intended  by  the  referees  as  set-offs  the 
one  agains-t  the  other,  and  to  this  end,  they  in- 
structed counsel  to  prepare  them  accordingly; 
that,  among  other  charges  against  Lyle.  the 
deponent  gave  in  evidence,  an  account  ren- 
dered by  Lyle,  in  which  he  acknowledged 
having  in  his  hands  a  balance  of  244,246 
livres  in  assignats,  *amounting,  at  the  [*244 
then  rate  of  exchange, -to  4,477  dollars,  and 
that  assignats  were  then  never  kept  on  hand, 
but  always  converted  into  property,  to  avoid 
depreciation;  that  since  the  account  so  ren- 
dered, the  deponent  never  had  any  further 
money  or  mercantile  transactions  with  the 
Lyles,  and  that  Lyle  neither  accounted  for, 
nor  made  any  set-off  against  the  said  assignats. 
but  the  same  were  totally  unaccounted  for; 
that  the  deponent,  as  soon*  as  the  sickness  of 
his  family  permitted,  consulted  respecting 
measures  to  be  taken  about  opposing  the  mo- 
tion, to  set  aside  the  report  in  his  favor,  but 
there  was  not  time  enough  left  in  the  term  to 
do  it;  that  but  for  the  application  of  Lyle  to 
set  aside  the  report  in  favor  of  the  defendant, 
he  should  never  have  applied  to  set  aside  that 
in  favor  of  Lyle,  for  the  insolvency  of  Lyle 
made  it  of  no  consequence. 

The  notice  of  motion  with  which  this  affi- 
davit was  accompanied,  was  repeated  on  the 
7th  of  January,  1803. 

To  oppose  this,  Robert  Lyle  made,  on  the 
14th  of  January,  1803,  an  affidavit,  stating, 
that  he,  and  his  brother  John,  the  other  de- 
fendant, acted,  in  the  j'ear  1795,  as  agents  for 
Clason,  in  which  capacity  they  had  received 
various  large  sums  of  money,  the  whole  of 
COL.  AND  CAINEB. 


1803     ROBERT  LYLE  v.  ISAAC  CLASON,  AND  ISAAC  CLASON  v.  ROBEKT  AND  JOHN  LYLE.      244 


which  had  been  faithfully  accounted  for;  that 
the  suit  against  C'lason  was  for  money  due  in- 
dividually to  the  defendants,  on  another  con- 
cern, and  for  damages  for  libelous  letters  and 
slanders  published  against  him  by  Clason; 
that  he  and  his  brother  were  arrested,  as  be- 
fore mentioned,  and  the  two  causes  referred; 
that  in  the  suit  against  the  deponent  and  his 
1245*]  brother  (the  declaration  on  which 
was  for  goods  sold  with  the  usual  money 
counts  only)  Clason  produced  an  account  with 
charges,  against  the  deponent  and  his  brother, 
for  breach  of  orders  and  neglect  of  duty,  to  a 
very  large  amount;  that  on  asking  for  some 
evidence,  by  which  it  might  appear,  those 
charges  were  included  in  the  submission,  the 
agreement  of  the  10th  March,  1802,  was  pro- 
duced; that  the  same  was  intended  merely  to 
extend  the  powers  of  the  referees  to  claims  of 
the  nature  of  those  mentioned  in,  and  warrant- 
ed by,  the  declarations  to  which  the  deponent 
had  confined  himself;  that  his  and  his  broth- 
er's faithful  agency,  and  due  accounting  for 
all  sums  of  money,  were  fully  proved;  that  in 
the  cross-suit  against  the  deponent'  and  his 
brother,  the  referees  made  their  report  on  a 
•conviction  nothing  was  due  to  Clason,  and 
not  from  any  regard  to  the  deponent's  insol- 
vency or  circumstances,  as  he  was,  by  the 
referees  themselves,  personally  informed;  that 
the  deponent  proved,  to  the  satisfaction  of  the 
referees,  that  the  value  of  the  assignats  men- 
tioned in  Clason's  affidavit,  was,  at  the  time 
specified,  only  £278  2  9,  and  not  $4,477;  that 
they  were  not  then  usually  converted  into 
property,  but  held  by  many  persons  in  hopes 
of  their  rising,  and  that  the  said  assignats 
were  not  only  not  made  use  of  by  the  de- 
ponent, or  kept  in  his  hands,  but  had,  from 
the  time  of  their  first  reception,  been  paid  over 
by  him  to  the  correspondents  of  Clason,  Lub- 
bert,  Freres  &  Ellis,  of  Bordeaux,  by  whom 
they  were  converted  into  specie,  for  the  use 
of  Clason,  and  accounted  for  with  Gardner, 
when  acting  as  Clason's  agent;  that,  so  far 
J24G*J  from  the  acquiescence  of  *Clason  in 
the  report  against  him,  for  the  reasons  he  had 
aligned,  he  had,  after  it  was  made,  pur- 
chased protested  bills,  on  which  the  deponent's 
name  was  as  an  indorser,  and  had  commenced 
suits  against  the  deponent  upon  them,  in  or- 
der, as  he  believed,  to  create  a  set-off  against 
the  verdict  the  deponent  might  untimately  ob- 
tain. 

After  some  struggle  by  Mr.  Hamilton,  on  the 
part  of  Lyle,  to  discriminate  the  two  suits,  the 
•court  was  pleased  to  order  the  arguments  to 
set  aside  the  several  reports  to  come  on  to- 
gether. 

Mr.  Hamilton,  for  Lyle,  after  stating  the  cir- 
cumstances, and  commenting  on  them,  and 
the  affidavits  of  Clason  and  Gardner,  observed, 
that  it  was  very  singular  Gardner,  without 
any  knowledge  of  the  contract  of  Delard, 
Swan  &  Co.  with  the  French  republic,  or  of 
Lyle's  intent,  should  deliver  exactly  under 
that  contract,  and  write  a  letter, acknowledg- 
ing the  very  interest  Lyle  claimed  under  it, 
and  that  Clason  should  pay  him  what  he  was 
thus  entitled  to.  Gardner,  without  knowing 
the  contract,  goes  further;  he  asks  Delard  & 
Co.  if  the  French  government  will  be  punctual 
in  paying,  and  this,  he  adds,  Clason  desired 
•COL.  AND  CAINES. 


him  to  inquire  about.  Clason,  too,  ratifies  the 
engagement  of  Delard  &  Co.  and  Gardner, 
with  Lyle,  by  adjusting  the  account  with 
Delard  &  Co.  and  receiving  under  that  ac- 
count the  two  thirds,  by  the  very  express 
terms  of  it,  charged  with  the  payment  of  the 
two  thirds  of  Lyle's  fifth.  To  argue  on  the 
assertions  of  Gardner,  would  be  really  super- 
|  fluous.  The  referees  must  have  thought 
Gardner  had  no  right  to  bind  Clason.  This 
idea  is  clearly  repugnant  *to  every  [*247 
principle  of  law.  He  that  entrusts  another 
with  general  power;-,  must  abide  the  result  of 
his  agent's  conduct.  Therefore,  though  the 
report  in  favor  of  Lyle  may  and  ought  to 
stand,  that  in  favor  of  Clason  ought  to  be  set 
aside. 

Messrs.  Hopkinnund  Trmip, contra.  In  making 
the  reports  in  these  causes,  the  referees  were  ac- 
tuated by  a  wish  to  make  the  parties  even  and 
leave  them  just  as  they  were  found.  For  this 
purpose  the  report  in  our  cause  was  in- 
tended as  a  set-off  to  the  other,  and  to  ef- 
fect this  object,  the  counsel  were  desired  to 
frame  the  reports  in  such  a  manner  as  might 
best  obtain  the  desired  end.  The  various  facts 
appear  in  the  affidavits  before  the  court;  but 
it  is  material  to  state,  that  the  party  who  first 
made  the  application  to  disturb  these  reports, 
has  not  presented  any  original  agreement  on 
which  his  suit  is  founded.  Delard,  Swan  & 
Co.  made  a  contract  with  the  French  govern- 
ment, for  a  certain  quantity  of  pot  and  pearl- 
ashes;  as  these  articles  enter  into  the  composi- 
tion of  gunpowder,  it  was  necessary  to  have  a 
neutral  name  in  the  business.  It  is  difficult  to 
say  what  ought  to  be  the  true  relative  com- 
pensation for  the  protection  a  neutral  charac- 
ter would  afford;  but  it  is  to  be  observed,  that 
Delard  &  Co.  were  the  real  contractors;  Lyle 
a  mere  nominis  umbra:  for  this,  however,  he 
says  he  is  to  have  one  full  fifth,  one  third  of 
it  to  be  paid  by  Delard,  Swan&  Co.,  the  other 
two  thirds  by  Clason.  These  terms,  it  is 
alleged,  were  stipiilated  by  a  formal  contract, 
yet  this  contract,  which  Lyle  must  have  had, 
is  never  produced;  on  the  contrary,  instead  of 
relying  upon  it,  he  rests  on  a  letter  received 
from  Gardner.  In  addition  to  the  inference  to 
be  *drawn  from  this  fact,  it  appears  f*248 
that  at  the  very  time  when  this  pretended 
contract  was  made,  Lyle  was  in  Europe,  under 
an  annual  allowance  from  Clason,  and  ac- 
tually his  salaried  agent,  receiving  wages  for 
every  service  performed.  A  doubt  has  been 
entertained,  how  far  the  court  can,  under  the 
existing  circumstances,  with  propriety  set 
aside  the  report  in  favour  of  Clason:  but, 
surely,  whenever  they  clearly  preceive  that 
the  referees  have  proceeded  on  a  mistake, 
either  of  law  or  fact,  this  tribunal  will  always 
interfere.  If  the  court  will  set  aside  an  award, 
they  will  on  the  same  principles  vacate  a  re- 
port; and,  whatever  argument  will  induce 
them  to  do  it  in  one  of  the  now  causes,  will 
have  equal  force  in  the  other;  for  if  the  refer- 
ees have  been  mistaken  in  their  endeavors  to 
create  mutual  set-offs,  both  reports  will  be  set 
aside;  or,  on  the  other  hand,  if  they  have  acted 
properly,  both  will  be  confirmed;  for  the 
court  will  not,  unnecessarily,  do  away  what 
the  referees  have  done.  In  making  their  de 
termination,  they  considered  that  the  power  to 

135 


248 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


sell,  and  the  power  to  give  away  profits,  were 
two  things;  to  this  latter,  it  cannot  be  con- 
tended, that  the  authority  of  an  agent  or  a  fac- 
tor can  extend.  There  is  no  question  about  an 
agent's  right  over  the  property  passed  to  him, 
but  he  cannot  enter  into  collateral  engage- 
ments; he  may  sell  and  warrant  a  title;  but 
not  give  away  the  property.  If  he  may,  in 
any  degree,  do  this,  he  may  go  on  indefinitely, 
and  make  away  with  the  whole.  He  may  go 
on  making  contracts  ruinous  to  his  employer, 
and  contrary  to  the  purposes  of  his  delegation. 
Under  a  power  to  sell,  if  he  should  be  allowed 
even  to  exchange,  can  he  be  authorized  to  pay 
a  difference?  The  boundary  of  his  power  to 
249*]  bind,  must  *be  connected  with  that  of 
his  authority  to  sell;  it  must  be  confined  to 
that,  and  will  not  warrant  him  to  give  away 
profits;  to  pay  another  sum  of  money  on  an- 
other account  than  that  of  the  sale.  The  point 
turns  on  whether  Gardner  had  a  competent 
authority  to  bind  Clason,  to  pay  two  thirds  of 
a  fifth  of  the  profits.  It  was  derived  from  the 
letter  of  instructions.  That  letter  delegates 
only  a  general  power.  From  the  exercise  of 
such  a  power,  the  claim  cannot  be  supposed. 
That  a  factor  may  sell  by  a  broker,  and  give 
a  commission,  if  customary,  is  not  contested; 
but  it  is  contested,  that  a  factor  or  agent,  hav- 
ing only  a  general  authority  to  sell,  can  give 
away  a  substantive  part  of  the  merchandise 
when  it  was  sold;  that  he  can  do  so,  there  is 
not  a  dictum  in  the  books.  It  would  be,  in 
fact,  to  enable  him  to  dispose  of  a  portion  of 
the  property  he  is  entrusted  to  vend.  It  would 
give  rise  to  the  most  serious  consequences;  a 
fraudulent  collusion  would  completely  destroy 
the  interests  of  the  principal,  by  enabling  to 
constitute  a  sale  regular  in  its  form,  the  pre- 
cise mode  of  which  could  not  be  easily  for- 
seen.  The  intention  of  Clason's  agent  must 
be  taken  into  consideration,  and  the  motives 
on  which  he  proceeded  permitted  to  explain 
how  he  meant  to  bind  his  principal.  Gard- 
ner never  knew  what  the  gratification  to 
be  paid  Lyle  actually  was.  The  inducement 
he  had  to  consent  to  any,  was,  that  he  deemed 
the  amount  immaterial;  for  as  Lyle  was  in 
the  service  of  Clason,  at  a  fixed  salary,  Gard- 
ner naturally  concluded  all  Lyle's  labour 
would  accrue  to  Clason.  On  the  principles  of 
natural  justice,  the  demand  cannot  be  substan- 
tiated. He  lends  his  name  to  Delard,  it  be- 
25O*]  ing  necessary  to  make  use  of  a  *neuter. 
The  douceur  must  certainly  be  according  to  the 
situation  of  the  party.  The  letter  to  Clason, 
containing  the  terms  of  the  contract,  does  not 
state  the  sum  to  be  paid.  It  is  obvious,  there- 
fore, that  this  was  never  intended.  It  was 
considered  as  too  trifling  to  specify. 

Gardner  knew  when  he  left  America,  that 
Lyle  was  a  salaried  agent.  This  is  not  a  case 
or  good  faith  between  an  agent  and  a  person 
totally  a  stranger,  and,  therefore,  the  princi- 
pal called  on  to  pay;  but  we  are  called  upon, 
on  the  strength  of  a  little  memorandum 
touched  into  the  foot  of  an  account.  It  is  not 
to  be  forgotten  that  the  referees  were  mer- 
chants, and  well  knew  the  course  of  trade  and 
business,  when  the  transaction  took  place,  as 
well  as  the  rights  of  an  agent  at  a  fixed  annual 
allowance.  The  claim,  too,  goes  by  the  ex- 
press name  of  a  gratification;  and  who  ever 
186 


heard  of  a  partnership  share  (which  this  in 
fact  is)  ever  being  known  by  the  appellation 
of  a  gratification?  When  was  £600  sterling 
ever  considered  as  a  gratification  for  a  person 
at  a  salary  of  £150  per  annum,  New  York  cur- 
rency? The  referees  might,  therefore,  have 
justly  ejected  the  claim.  No  inference  can  be 
drawn  from  Gardner's  letter,  speaking  of  a 
contract:  he  might  have  sailed  on  another. 
But  it  was  not  the  mere  matter  of  the  contract 
that  was  referred;  subsequent  matters  were 
added,  not  included  in  the  two  causes:  this 
was  by  agreement  of  the  parties,  and  how  can 
the  court  say  the  full  claim  on  the  contract 
has  not  been  allowed,  when  it  might  have  been 
counterbalanced  by  damages  and  misconduct 
in  the  matter  of  the  Hare?  This,  therefore, 
being  an  application  to  the  equitable  jurisdic- 
tion of  the  *court,  they  will  so  mould  [*2o  1 
and  blend  the  two  causes  as  will  best  an- 
swei  the  ends  of  justice;  and,  if  in  the  suit 
by  Lyle  the  report  be  set  aside,  the  court  will 
do  it  on  terms,  and  vacate  the  report  in  that 
against  him. 

Clason  declares  he  never  heard  what  Lyle's 
compensation  was,  till  after  the  suit  was 
brought.  But  can  the  court  say  this  particu- 
lar claim  onght  not  to  be  disallowed?  After 
the  rules  to  refer,  other  matters  were  added 
and  blended;  all  contracts,  "express  or  im- 
plied/' were  submitted.  It  cannot  be  said 
there  were  not  other  claims  to  extinguish  this 
demand  of  two-thirds  of  the  fifth.  It  might 
have  been  admitted,  and  liquidated  by  a 
counter  claim.  Referees  and  arbitrators  may 
so  consider  the  subject  matter  before  them,  a*s 
will  best  answer  the  ends  of  justice;  they  may 
take  into  view  matters  both  of  law  and  of  fact; 
perform  the  offices  of  judges  and  jurors,  and 
are  entitled  to  found  their  decision  either  on 
law,  or  principles  of  general  equity.  The 
whole  of  this  was  delegated  to  them,  and  they 
have  determined,  on  a  view  of  all  matters  in 
controversy  blended  together  in  one  mass,  all 
the  objects  in  these  two  causes,  even  in  that 
against  both  the  Lyles,  as  consolidated  before 
them.  Whether  they  have  been  perfectly  ac- 
curate in  thus  beholding  them,  is  immaterial, 
if  they  did  so  consider  them,  have  acted  under 
that  idea,  and  have  attained  the  real  ends  of 
justice,  though,  perhaps,  by  extraordinary 
means.  It  was  evidently  the  wish  of  the  par- 
ties to  set  all  controversies  between  them  fully 
at  rest,  and  this  has  been  accomplished.  The 
court,  therefore,  will  never  say  that  on  ere- 
port  shall  be  confirmed,  and  the  other  set 
asid.  The  consideration  *of  the  report  [*252 
in  the  suit  by  Clason  might  have  influenced 
in  the  making  up  that  in  the  action  against, 
him.  That  it  did  so  is  evident,  because  the 
reports  were  intended  as  mutual  set-offs. 
Whether  this  could  be  supported  on  strict 
legal  reasoning,  had  been  doubted;  but  the 
spirit  of  the  case  in  8  D.  &  E.  might,  perhaps, 
fully  warrant  the  conduct  of  the  referees.  It 
may  be  a  question,  also,  how  far  Gardner 
could  give  such  an  interest,  as  might,  perhaps, 
create  a  partnership  between  Lyle  and  Clason. 

Messrs.  Harrison  and  Hamilton,  in  reply.  If  ,in 
cases  of  full  and  fair  investigati9n  before 
juries,  this  court  will  interpose,  when  a  ver- 
dict has  been  rendered  on  an  evident  mistake 
of  the  law,  they  certainly  will  do  so  in  the 
COL.  AND  CAINES. 


1803     ROBERT  LYLE  v.  ISAAC  CLASON,  AND  ISAAC  CLASON  v.  ROBERT  AND  JOHN  LYLE.      252 


case  of  a  report  made  by  referees,  however 
appointed.  That  this  reasoning  applies  to 
the  suit  of  LyU  v.  Clason  is  manifest,  and  it 
will,  therefore,  be  sent  for  further  examina- 
tion. With  respect  to  the  contract  made  be- 
tween Lyle  and  Gardner,  the  agent  of  Clason, 
it  is  for  the  court  to  determine  whether  it  be 
obligatory  or  not.  The  affidavits  on  the  part 
of  Clason  do  not  state  that  he  was  ignorant  of 
the  contract  with  the  French  government,  but 
of  the  claim  of  Lyle.  It  appears  from  Lyle's 
deposition,  and  is  not  controverted,  that  in 
March,  1794,  letters  were  written  by  Lyle  and 
Swan,  informing  Clason  of  the  contract ;  of 
Lyle's  right,  and  that  he  (Clason)  might  share, 
if  he  thought  proper.  The  letters  were  pro- 
duced, and  that  they  were  recieved,  Clason's 
conscience  would  not  let  him  negative.  There 
was  a  stipulation  to  compensate,  with  a  share 
of  the  actual  profits,  for  the  use  of  the  neutral 
name  of  Lyle  ;  when  these  profits  were  ascer- 
253*]  tained,  the  right  of  Lyle  attached.* 
There  is,  to  be  sure,  no  express  recognition  by 
Clason  of  the  contract,  but  in  the  September 
following  the  date  of  Lyle's  letter,  Gardner 
arrives  in  France  with  exactly  such  a  cargo  as 
the  contract  demanded.  Are  there  not  cir- 
cumstances enough  to  think  he  went  there 
for  the  purpose  of  acting  under  it  ?  But 
even  allowing  there  are  not,  does  not  the  letter 
of  instructions  substitute  Gardner  as  owner  of 
the  property  he  carried,  and  invest  him  with 
all  Clason's  power  over  it  ?  He  is  to  exercise 
his  judgment ;  do  his  best ;  sell  for  French 
brandy;  sell  to  the  French  government,  &c., 
he  had,  therefore,  a  right  to  make  any  con- 
tract under  the  words  of  the  letter.  He  ar- 
rives in  France  with  a  power  to  dispose;  he 
finds  Delard  possessed  of  a  contract,  in  the 
name  of  Lyle,  under  which  the  power  to  dis- 
pose may  be  exercised  with  great  advantage. 
He  does  exercise  it,  receives  the  emolument, 
settles  with  Delard  &  Co. ,  but  refuses  to  do  so 
with  us.  The  inquiry  then  is,  had  Gardner  a 
power,  and  has  he  exercised  it '(  That  he  had 
and  has,  no  doubt  can  be  entertained  ;  and  as 
little  that  it  was  under  our  contract ;  for  the 
affidavit  susequently  made  by  Gardner,  does 
not  deny,  but  admits  the  fact.  He  says,  how- 
ever, that  he  knew  not  what  the  gratification 
was ;  this  is  extraordinary ;  he  seems  to  have 
forgotten  his  own  letter  after  a  very  few 
months ;  and  though  that  does  not  specify  the 
exact  sum,  the  two  thirds  for  which  he  men- 
tions Clason  is  to  settle  it  affords  an  internal 
evidence  that  he  did  know  it,  much  stronger 
than  his  own  assertion  to  the  contrary.  Gard- 
ner's letter  of  the  7th  December,  1794,  partic- 
ularizes two  thirds,  and  gives  and  account  of  the 
sales.  Allowing,  however,  Gardner  not  to  be 
254*]  appraised  of  the  *exact  sum,  as  Lyle's 
right  was  ascertained  and  perfected  under  the 
contract  to  which  Gardner  consented,  acced- 
ing to  the  payment  of  two  thirds  by  Clason,  it 
follows  Clason  must  be  bound.  The  rule  is, 
that  he  who  places  confidence  shall  suffer  by 
the  abuse  of  that  confidence.;  Clason,  there- 
fore, and  not  Lyle,  is  to  be  the  loser  by  Gard- 
ner's actions.  It  is  extraordinary  that  Clason 
should  have  remained  ignorant  of  the  amount 
of  Lyle's  claim  four  years  after  Gardner's  re- 
turn and  rendering  an  account  of  his  transac- 
tion. If  Gardner  then,  having  an  authority 
COL.  AND  CAINES. 


to  bind  Clason,  did  so,  and  Clason  has  re- 
ceived the  benefit  of  that  transaction,  Lyle's 
right  is  perfect.  The  assertion  of  his  being  a 
salaried  agent  does  not  affect  the  claim.  His 
time  of  service  expired  in  September.  Be- 
yond that  Clason  himself  allows  no  salary, 
and  Gardner's  letter  is  dated  in  December. 
Gardner  himself  ackowledges  Lyle's  right,  by 
telling  Delard  to  pay  one  third  of  it.  Had  it 
been  otherwise,  Gardner  would  have  said,  you 
are  not  to  pay  the  third  of  the  fifth  to  Lyle, 
but  to  Clason,  for  whose  benefit  Lyle  is  act- 
ing. There  is  a  further  proof  in  the  letter  to 
Lyle.  Gardner  there  says,  "Mr.  Clason  is  to 
settle  with  you  for  two  thirds."  Here  then  is 
a  clear  established  right  in  Lyle  to  receive 
from  Clason  two  thirds  of  the  fifth  of  the 
whole  profits.  If  .  so,  the  arbitrators  have 
been  guilty  of  a  mistake,  in  point  of  law,  in 
considering  Gardner  unauthorized  to  bind 
Clason,  and  this  the  court  will  assuredly  set 
right.  There  is  also  another  ground  on  which 
they  have  clearly  erred ;  for  if  they  have 
blended  the  reports  in  the  two  causes,  or  made 
one  enter  into  the  composition  of  the  other, 
they  are  manifestly  wrong.  The  is  no  evi- 
idince  of  anything  *against  Lyle's  [*255 
right,  but  the  demands  in  the  cause  against 
him  and  his  brother.  Though  both  causes 
were  referred,  the  referees  have  not  any  right 
to  blend  matter  extraneous  to  the  respective 
suit.  Robert  Lyle's  action  is  for  his  own  sep- 
arate account.  That  of  Clason  against  Robert 
and  John  Lyle,  is  against  the  partnership,  and 
the  one  cannot  be  set  off  against  the  other, 
being  in  different  rights.  This  is  very  wide 
from  the  case  of  a  surviving  partner,  where  the 
rights  and  duties  center  in  one  person.  The 
agreement  does  not  alter  this,  for  it  was  merely 
to  allow  of  such  matters  as  were  admissible 
against  the  same  parties,  though  not  specifi- 
cally proceeded  for ;  to  settle  all  disputes  for 
which  actions  might  be  instituted  against  the 
respective  defendants  ;  to  allow  of  damages 
arising  from  breach  of  contracts,  express  or 
implied,  by  the  Lyle's,  to  be  settled  under  the 
reference  of  the  suit  against  them,  in  which 
counts  were  used  not  applicable  to  actions  of 
damages,  but  never  to  permit  one  suit  to  be 
set  off  against  the  other,  or  make  Robert  Lyle 
give  up  the  benefit  of  his  claim  against  Clason. 
They  did  not  even  take  it  into  consideration, 
as  they  considered  it  not  due ;  the  report, 
therefore,  in  favor  of  Robert  and  John  Lyle, 
may  well  be  suffered  to  remain,  and  that  in 
favor  of  Clason  be  set  aside ;  for  the  amount 
of  the  profits  claimed  from  him  not  being 
taken  into  consideration  in  the  accounts  by 
the  referees,  now  remain  unsettled.  If,  there- 
fore, without  including  this  demand,  Clason 
has  not  any  demand  against  Robert  and  John 
Lyle,  the  report  does  not  prevent  Robert  from 
having  a  demand  against  Clason.  Besides,  it 
is  evident  the  contract  must  have  been  known 
to  Clason  and  Gardner,  by  the  latter's  ex- 
pressing *an  intention  of  returning  [*256 
with  the  residue.  The  not  mentioning  it  in 
the  letter  of  instructions,  was  to  avoid  the 
risk  of  capture  and  condemnation  ;  fates  that 
were  sure  to  attend  a  cargo  of  a  contraband 
nature,  going  under  an  avowed  contract  with 
the  French  government.  The  receipt  by 
Clason,  of  the  proceeds  of  the  cargo,  is  a  rati- 

137 


256 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


fication  of  every  contract  under  which  it  was 
made,  and  no  disavowel  of  Gardner's  au- 
thority can  be  permitted.  Clason  enjoys  the 
benefit,  and  if  any  charges  do  accompany  the 
agreement,  it  is  to  be  taken  cum  onere.  The 
allowance  of  the  account  by  Delard,  Swan  & 
Co.,  is  conclusive  on  the  terms. 

LEWIS,  C.  J.,  delivered  the  judgment  of  the 
court.  These  actions  were  referred  under 
rules  of  court  to  three  referees,  who  have  re- 
ported in  each  against  the  respective  plaint- 
ill's,  declaring  nothing  due  on  either  side. 
Motions  are  now  made  to  set  aside  the  several 
awards. 

In  the  first  cause,  in  which  Lyle  is  plaintiff, 
the  application  is  founded  on  a  presumption 
that  the  referees  have  been  mistaken  on  a 
point  of  law.  That  they  have  either  rejected 
a  contract  entered  into  by  the  defendant's 
ship-master  and  consignee,  as  not  obligatory 
on  his  principal,  or  have  set  off  the  balances 
found  for  the  plaintiffs,  in  the  respective 
causes  against  each  other. 

To  this  the  defendant  answers,  that  he  was 
not  bound  by  the  engagemt  of  his  ship-master, 
who  was  also  his  consignee,  and  that  if  the 
257*]  referees  have  *made  such  off  set,  they 
were  justified  on  principles  of  law,  and  by 
an  agreement  entered  into  between  the  re- 
spective atorneys. 

As  far  as  the  facts  can  be  collected  from 
affidavits  and  documents  furnished  the  court, 
they  are  these:  That  the  Lyles  being  engaged 
in  business  in  France,  were  charged  with 
some  commercial  concerns  of  Clason,  on 
which  he  claims  a  balance  of  account,  and  on 
which  they  deny  anything  to  be  due.  That 
Robert  Lyle,  while  in  France,  was  employed 
by  the  house  of  Delard,  Swan  &  Co.,  there 
established  in  business,  to  negotiate  a  contract 
for  the  supply  of  certain  quantities  of  pot  and 
pearl-ashes  to  the  French  government,  which 
he  affected,  and  for  which  they  were  to  allow 
him  one  fifth  of  the  profits.  That  the  com- 
pany, as  well  as  Robert  Lyle,  wrote  to  Mr. 
Clason  in  March,  1794,  acquainting  him  with 
their  contract,  and  proposing  to  him  to  make 
shipments  thereon.  That  in  September  a  ves- 
sel called  the  Joseph,  belonging  to  the  plaint- 
iff, arrived  in  France  loaded  with  ashes,  con- 
signed to  Gideon  Gardner,  the  master,  who 
had  general  instructions  to  sell  to  the  govern- 
ment, or  to  inviduals,  at  his  election.  That 
Gardner,  after  making  inquiries  as  to  the  gov- 
ernment's punctuality,  agrees  with  Delard, 
Swan  &  Co.,  to  turn  in  his  cargo  under  their 
contract,  which  is  accordingly  done,  and 
nets  a  profit  of  £6,800  11  8  sterling;  whereof 
Clason  receives  two  thirds  in  consideration  of 
his  having  made  the  advances,  and  the  house  of 
Delard,  Swan  &  Co.  one  third.  On  the  ad- 
justment of  this  account,  it  appears  that  the 
company  and  Clason  were  to  account  to  Rob- 
258*]  ert  Lyle  for  his  one  fifth,  according  *to 
the  proportions  of  profits  by  them  respectively 
received. 

Captain  Gardner's  powers  being  discretion- 
ary, he  was  perfectly  justifiable  in  making 
the  disposition  he  did  of  the  cargo  entrusted  to 
him,  and  even  if  he  was  not,  it  does  not  appear 
that  Mr.  Clason  ever  denied  that  transaction 
his  sanction,  but  that  on  the  contrary,  he  has 
188 


received  by  remittances  to  Bird,  Savage  & 
Bird,  of  London,  the  proceeds  of  the  cargo, 
including  his  proportion  of  the  profits.  Under 
these  circumstances,  there  can  be  no  doubt  that 
Captain  Gardner,  having  turned  in  his  cargo 
under  the  contract,  bound  Mr.  Clason  to  the 
fulfillment  of  the  terms  of  that  contract;  and 
the  latter,  having  received  the  full  two  thirds 
of  the  profits  of  the  adventure,  under  the  stip- 
ulation made  by  his  agent,  that  he  should  ac- 
count to  Lyle  for  two  thirds  of  his  douceur,  or 
whatever  else  it  may  be  called  (for  names  will 
not  alter  the  essential  quality  of  the  thing),  he 
is  bound  to  perform  such  stipulation. 

If,  therefore,  the  referees  have  not  admitted 
this  claim,  they  have  erred  as  to  the  law,  and 
the  award  ought  to  be  set  aside. 

If,  on  the  contrary,  they  have  admitted  it, 
then  they  must  have  allowed  a  balance  found 
due  to  Clasou  in  the  other  suit,  as  a  set- 
off  against  it.  This  also  is  incorrect;  for  the 
suits  are  not  between  the  same  parties,  and  the 
partnership  funds  should  have  been  first  appro- 
priated to  the  discharge  of  the  partnership 
debts.  The  agreement  between  the  attorneys 
does  not  authorize  such  set-off.  Its  only  ob- 
ject, is  the  *admission  of  certain  de-  [*25J> 
mands  which  would  not  fall  within  any  of  the 
courts  in  the  respective  declarations,  in  order 
to  avoid  further  litigation. 

The  award,  therefore,  in  each  suit,  ought,  in 
my  opinion,  to  be  set  aside.  The  one  against 
Clason,  for  the  reasons  above  mentioned,  and 
the  one  in  which  he  is  plaintiff,  because  there 
is  a  probability  that  the  referees  found  a  bal- 
ance there  due  to  him,  which  he  would  other- 
wise lose  the  benefit  of. 

The  judgment  of  the  court  is,  that  both  awards 
be  set  aside. 


ROBERT  M.  BRETT  and  JOHN  BUNN 


MATHEW  HOOD. 

Stay  of  Proceedings — Motion  to  Set  Aside — No 
Appearance — Costs. 

TUIE  plaintiffs  had  in  the  last  term  recovered 
.L  a  verdict  against  the  defendant,  who,  on 
making  a  case,  had  obtained  the  usual  certifi- 
cate to  stay  proceedings;  to  set  aside  which, 
the  plaintiffs  gave  notice  of  a  motion,  but  not 
attending  to  argue  it, 

Mr.  Caines,  forthedefendant.onthelastdayof 
term,  applied  for  costs,  which  the  court  was 
pleased  to  order. 

N.  B.  It  was  during  this  term  intimated  by 
the  bench,  that  they  would  not  hear  any  argu- 
ment to  set  aside  a  judge's  certificate  to  stay 
proceedings  on  a  case  made. 


*RATHBONE  v.  BLACKFORD.  [*26O 

Notice — Service  on  Person  in  Attorney's  Office — 
Sufficiency. 

THE  service  of  a  notice  in  this  cause  was 
stated  in  the  affidavit  to  have  been  on  a 
person  in  the  office  of  the  attorney, 

COL.  AND  CAINES. 


1803 


PAKKMAN  v.  SHERMAN. 


260 


Per  Curiam.  It  is  not  sufficient.  There 
does  not  appear  to  be  any  relation  between  the 
party  served  and  the  attorney.  The  notice 
might  have  been  given  to  a  mere  stranger.  A 
connection  ought,  therefore,  to  have  been  stated, 
so  that  the  com-t  might  be  convinced  of  a  priv- 
ity between  the  party  to  whom  the  notice  is 
delivered,  and  the  attorney  on  whom  it  is 
meant  to  take  effect. 


PAKKMAN  v.  SHERMAN. 

Notice — Affidavit — Parties  Reversed. 

Distinguished— Ryers  v.  Miller,  Col.  and   Caines 
Cas.,  185. 

IN  this  cause  the  court  determined,  that  when 
both  notice  and  affidavit  are  wrong  titled 
by  reversing  the  parties  and  putting  the  de- 
fendant in  the  place  of  the  plaintiff,  the  error 
is  fatal;  and  this  case  was  distinguished  from 
that  of  Ryers  v.  Hillyer  (ante,  p.  185),  because 
there,  though  the  parties  were  reversed  in  the 
title  of  the  notice,  yet  in  that  of  the  affidavit 
they  were  rightly  named;  so  that,  independent 
of  the  object  of  the  notice  in  that  suit,  there 
was  a  proper  title  to  rectify  the  mistake,  but 
in  this,  where  in  every  paper  the  action  was, 
as  if  by  the  defendant  against  the  plaintiff, 
there  was  not  anything  by  which  the  mistake 
could  be  cleared  up,  and  the  notice  might, 
therefore,  be  in  a  cross-suit,  where  the  parties 
actually  were  reversed. 


261*] 


*JOHN  MIL  WARD 

v. 
RICHARD  S.  HALLETT. 


Amendment — Of  Cases — Proper  Form. 

rPHE  plaintiff  had  recovered  a  verdict  against 
.L  the  defendant,  on  whose  part  a  case  had 
been  made,  and  a  copy  served  on  the  attorney 
of  the  plaintiff.  Many  inaccuracies  being  ob- 
served in  it,  a  full  statement  was  drawn  up  on 
the  part  of  the  plaintiff,  and  served  on  the  de- 
fendant's attorney,  who,  on  receipt  of  it,  ob- 
jected to  the  informality  of  thus  making  a  new 
case.  The  usual  time  for  objecting  to  the 
amendments  having  elapsed,  the  attorney  of 
the  plaintiff  gave  notice  of  argument,  set  the 
cause  down  for  hearing,  and  served  copies  of 
the  cases  he  had  drawn  up. 

Mr.  Caines,  on  an  affidavit,  to  which  was  an- 
nexed a  copy  of  the  altered  case,  made  on  the  part 
of  the  plaintiff,  and  also  a  copy  of  the  service  of 
notice,  moved  to  bring  on  the  argument,  or 
that  the  plaintiff  have  leave  to  enter  up  his 
judgment. 

Mr.  Benson,  contra,  resisted  the  application, 
contending  that  the  case  now  before  the  court 
was  a  new,  and  not  an  amended  case.  That  the 
rule  allowing  amendments  to  be  proposed,  did 
not  authori/e  making  an  entire  new  case,  like 
that  on  which  it  was  wished  to  proceed. 

Mr.  Caines,  in  reply,  hoped  the  court  would  not 
harken  to  a  distinction  which  really  did  not 
COL.  AND  CAINES. 


seem  to  have  any  solidity.  Every  case  differ- 
ing from  that  first  served,  was,  in  fact,  an 
altered,  or  amended  case.  The  objection  re- 
solved itself  into  this,  that  every  amendment 
must  be  written  on  the  same  piece  of  paper 
*which  held  the  case  served.  If  so,  [*2G2 
close  lines,  narrow  margins,  and  great  omis- 
sions, would  render  every  case  superior  to 
amendment,  and  totally  exclude  all,  that  the 
party  who  made  it,  might  please  to  reject.  It 
was,  however,  conceived,  every  variation  no- 
ticed, though  on  a  separate  piece  of  paper,  was 
as  much  an  amendment,  as  if  the  diversity  had 
been  marked  on  the  paper  containing  the  case 
originally  made. 

Per  Curiam.  Every  amendment  must  be  on 
the  case  made,  or  refer  to  the  line  and  page  in 
which  it  is  proposed  to  be  inserted.  This, 
not  because  it  is  less  an  amendment  when 
written  on  a  separate  piece  of  paper,  but  in 
order  to  inform  the  judge  before  whom  the 
cause  was  tried,  where  to  direct  his  attention, 
in  case  the  facts  should  be  disputed,  and  not 
reduce  him  to  the  necessity  of  reading  over  and 
comparing  two  cases: 

The  plaintiff  can  take  nothing  by  his  motion. 


NICHOL  AND  THOMSON 

«. 

THE    COLUMBIAN    INSURANCE    COM- 
PANY OF  NEW  YORK. 

Commission — Second  Commission  to  Same  Wit- 
ness as  to  Fact  Disclosed. 

T?MOTT  moved  for  a  second  commission  in 
J-J  this  cause,  to  re-examine  the  same  wit- 
nesses to  a  particular  fact  disclosed,  and  from 
which,  as  the  answers  then  stood,  it  might  be 
supposed  a  deviation  had  been  made,  to  which 
point  the  former  investigation  was  not  directed. 

Mr.  Benson,  contra.  It  is  now  too  late;  there 
was  never  an  instance  of  a  second  commission 
to  examine  the  same  witnesses.  The  answer 
shows  the  defense  *that  arises  on  the  [*263 
return,  and  this  is  an  attempt  to  do  it  away. 

Mr.  Emott,  in  reply.  The  application  may  be 
novel,  but  it  is  not  unreasonable.  Suppose  the 
witness  had  been  examined  in  court,  and  had 
testified  to  a  certain  fact,  which,  taken  without 
any  explanation,  would  have  one  effect,  if  ex- 
plained, another,  might  not  a  question  be  asked 
to  explain,  especially  when  it  comes  out  col- 
laterally? Here  the  deviation  was  not  the  ob- 
ject of  inquiry.  The  question  was  simply  to 
and  from  what  places  were  you  bound?  There 
may  be  an  apparent,  though  not  a  real  devia- 
tion; for  there  might  be  a  custom  to  go  that 
route. 

Per  Curiam.  Take  your  commission.  The 
answer  being  directed  to  another  point,  maybe 
explained  by  an  interrogatory  to  the  one  wThich 
it  discloses;  for  it  may  assign  very  sufficient 
reasons  for  the  Her  adopted.  The  commission, 
however,  must  be  at  the  peril  of  the  party. 

189 


264 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


264*]      'NOVEMBER  TERM,  1803. 


THE  PRESIDENT,  DIRECTORS  AND 
COMPANY  OF  THE  UNION  TURN- 
PIKE ROAD 

v, 

THOMAS  JENKINS. 

THE  SAME 

v. 
THE  SAME,  in  three  other  actions. 

1.  Corporation  —  Subscription  —  Validity.  2. 
Idem — Idem — Notice  of  Stock  taken.  3.  Idem 
— Idem — Sufficient  caUs  for  Installments.  4. 
Amendment — Pleading —  Uncertain  and  Con- 
tingent Payment — Special  Agreement. 

BY  an  Act  of  the  3d  of  April,  1801  (Oh.  118), 
certain  persons  were  incorporated,  for  the 
purpose  of  improving  the  road  from  New  Leb- 
anon to  Hudson,  under  the  name  of  ' '  The 
President,  Directors,  and  Company  of  the 
Union  Turnpike  Road." 

By  the  second  section  of  the  act,  it  is  ordered, 
' '  that  Robert  Jenkins  and  Elisha  AVilliams  be, 
and  they  are  hereby  appointed  commissioners, 
to  do  and  perform  the  several  duties  hereafter 
mentioned:  that  is  to  say,  they  shall,  on  or  be- 
fore the  first  day  of  May  next,  procure  two 
books,  and  in  each  of  them  enter  as  follows :  We, 
whose  names  are  hereunto  subscribed,  do,  for 
ourselves,  and  our  legal  representatives,  prom- 
ise to  pay,  to  the  President,  Directors,  and 
Company  of  the  Union  Turnpike  Road,  twenty- 
five  dollars,  for  every  share  of  stock  in  the 
said  company,  set  opposite  to  our  respective 
names,  in  such  manner  and  proportion  as  shall 
be  determined  by  the  said  President,  Directors, 
and  Company;  and  every  subscriber  shall,  at 
the  time  of  subscribing,  pay  unto  either  of  the 
said  commissioners,  the  sum  of  ten  dollars,  for 
each  share  so  subscribed;  and  the  said  commis- 
265*]  sioners,  shall,  *as  soon  as  one  thousand 
shares  have  been  subscribed,  cause  an  adver- 
tisement to  be  inserted  in  the  public  newspaper, 
printed  in  Hudson,  giving  at  least  ten  days  no- 
tice of  the  time  and  place  the  said  subscribers 
shall  meet,  for  the  purpose  of  choosing  five  di- 
rectors, who  shall  be  stockholders,  for  the  pur- 
pose of  managing  the  concerns  of  the  said 
Company,  for  one  year;  and  the  day  of  choos- 
ing the  said  directors,  shall,  thereafter,  be  the 
anniversary  day  of  choosing  directors;  and  the 
directors  elected  by  the  votes  of  the  stockhold- 
ers, shall  immediately  proceed  to  the  choice  of 
one  of  their  members  for  President;  and  the 
said  President  and  Directors  shall  and  may 
meet  from  time  to  time,  at  such  time  and  place 
as  they  may  by  their  by-laws  direct,  and  shall 
have  power  to  make  such  by-laws,  rules,  orders 
and  regulations,  not  inconsistent  with  the  Con- 
stitution of  this  or  the  United  States,  as  shall 
be  necessary  for  the  well  ordering  of  the  affairs 
of  the  said  corporation:  Provided,  that,  at 
the  election  of  the  directors,  every  person  shall 
have  a  number  of  votes  equal  to  the  number  of 
shares  owned  by  such  person,  if  such  number 
140 


shall  not  exceed  fifty,  and  one  vote  for  every 
three  shares  owned  by  such  person  exceeding 
fifty." 

By  the  last  section,  it  is  enacted,  "That  it 
shall  be  lawful  for  the  said  directors,  to  call 
for,  and  demand,  of  and  from  the  stockhold- 
ers respectively,  all  such  sums  of  money  by 
them  subscribed,  or  to  be  subscribed,  at  such 
times  and  in  such  proportions,  as  they  shall 
see  fit,  under  pain  of  forfeiture  of  their  shares, 
and  of  all  previous  payments  *made  [*266 
thereon,  to  the  said  President,  Directors  and 
Company. 

The  defendant  had  subscribed  for  280 
shares,  but,  at  the  period  of  writing  his  name 
in  the  book,  as  directed  by  the  first  section, 
the  $10  therein  ordained  to  be,  at  that  time 
paid,  were  neither  so  paid,  nor  were  demand- 
ed. Two  orders  for  paying  in  $5  on  each 
share  subscribed  were  made,  with  which  the 
defendant  refused  to  comply,  and  for  their 
amount  the  present  actions  were  brought. 
The  first  count  in  the  declaration  stated  the 
passing  of  the  act  and  incorporating  the  com- 
pany. It  also  set  forth  the  second  section, 
omitting,  however,  that  part  requiring  the 
payment  of  the  $10  on  each  share  at  the  time 
of  subscription;  it  went  on  averring  the  com- 
pliance with  the  requisites  of  that  section,  the 
subscription  of  the  defendant,  and  of  2,900 
shares;  it  stated  the  election  of  a  president 
and  directors,  and  two  orders  made  by  them 
for  payment  of  two  installments,  of  $5  cash, 
on  each  share  subscribed,  notice,  and  by  rea- 
son whereof,  &c. 

The  second  count  was  in  these  words,  "And 
whereas,  also,  the  said  Thomas  Jenkins,  on 
the  seventh  day  of  April,  1801,  at  the  city  of 
Albany,  in  the  county  of  Albany,  made  his 
certain  prommissory  note  in  writing,  by  him, 
in  his  own  proper  handwriting  subscribed, 
the  date  whereof,  is  on  the  same  day  and  year 
aforesaid;  whereby  the  said  Thomas  prom-* 
ised  for  himself,  and  his  legal  representatives, 
to  pay  to  the  President,  Directors  and  Company 
of  the  Union  Turnpike  Road,  the  sum  of  $25 
for  every  share  of  stock  set  opposite  to 
*his  name,  in  such  manner  and  propor-[*267 
tion,  and  at  such  time  and  place,  as  should  be 
determined  by  the  said  president,  directors 
and  company,  and  the  said  Thomas  did  then 
and  there  set  opposite  to  his  name,  fifty 
shares,"  with  an  averment  of  their  determining 
that  he  should  pay  $5  on  each,  on  the  10th  of 
September,  then  next,  with  notice,  liability 
and  assumption. 

The  third  count  was  in  the  same  form  on  a 
promissory  note,  for  230  shares. 

The  causes  were  tried  at  the  Albany  cir- 
cuit, in  January  last,  and  general  verdicts 
found  for  the  plaintiffs. 

After  this,  the  defendant  gave  notice  of 
moving  in  arrest  of  judgment,  and  assigned 
the  following  reasons: 

1st.  That  the  first  counts  in  the  declara- 
tions in  the  said  causes,  being  founded  upon 
the  statute,  do  not  set  forth  that  the  said  de- 
fendant at  the  time  of  subscribing  the  said 
subscription,  paid  to  the  said  commissioners 
the  $10  on  each  share,  by  him  subscribed,  ac- 
cording to  the  regulations  of  the  said  act,  and 
that  it  appears  by  the  said  counts,  that  the 
commissioners  therein  named,  did  not,  as  soon 
COL.  AND  CAINES. 


1803 


THE  PRESIDENT,  &c.,  OF  THE  UNION  TURNPIKE  KOAD  v.  THOMAS  JENKINS. 


267 


as  one  thousand  shares  were  subscribed,  in  the 
manner  directed  by  the  said  act,  proceed  to 
give  the  notice  by  the  said  act  required,  for 
the  purpose  of  choosing  directors,  and  that  no 
order  and  determination  of  the  president,  di- 
rectors and  company,  in  the  said  declarations 
mentioned,  is  stated  in  the  said  first  counts, 
268*]  *for  the  payment  of  any  money  upon 
the  shares  of  stock,  therein  mentioned  to  have 
been  subscribed;  so  that  the  defendant  never 
became  liable  to  pay  any  such  money,  and 
'that  the  promises  in  the  said  first  counts 
stated,  are  void  for  want  of  consideration. 

3d.  That  the  second  and  third  counts,  in 
the  declarations  in  the  said  causes,  are  founded, 
on  agreements  or  promises  in  writing  between 
the  parties,  as  on  a  note  of  hand,  which  is  not 
within  the  statute,  &c.,  and  that  the  said 
counts  do  not  set  forth  any  good  or  valid  con- 
sideration, upon  which  the  said  agreements  in 
writing  were  made  and  given. 

Immediately  after  service  of  notice  of  the 
above  reasons,  in  arrest  of  judgment,  on  an 
affidavit  stating  that  the  evidence  offered  at 
the  trial  was  under  the  first  counts  in  the 
declarations,  and  calculated  to  support  them 
in  particular  (the  second  and  third  counts  not 
being  read  to  the  jury,  nor  referred  to  by  the 
counsel)  the  plaintiffs  gave  notice  of  a  motion 
to  amend  the  verdicts  in  the  several  suits 
from  the  judge's  notes,  so  as  to  make  them 
apply  only  to  the  first  counts  in  the  several 
declarations,  and  to  enter  verdicts  on  the 
second  and  third  counts  for  the  defendant, 
and  to  amend  the  postea  and  rules  for  judg- 
ment entered  thereon,  in  conformity  to  such 
order  as  the  court  might  make. 

Mr.  Champlin,  for  the  defendant.  The  first  ob- 
jection is,  that  the  $10,  ordered  by  the  act  to  be 
paid,  was  not  so  done.  The  contract  then,  on 
which  the  action  is  founded,  is  not  according 
to  the  order  of  the  statute.  In  the  next  place, 
269*]  the  orders  stated  by  the  *declaration  to 
have  been  made  for  payment  of  the  sums  de- 
manded, are  not  in  pursuance  of  the  law.  By 
that,  the  order  is  to  be  by  the  president,  di- 
rectors and  company;  the  declaration  sets 
forth  one,  by  the  president  and  directors  only. 
This  is  fatal,  for  as  the  plaintiffs  have  a  par- 
ticular authority,  they  ought  to  show  a  strict 
literal  compliance  with  the  law  by  which 
they  are  authorized.  If  they  have  a  right  to 
omit  the  company  in  their  orders,  they  may 
the  directors,  and  so  the  president  alone  may 
govern  the  affairs  of  the  corporation.  The 
two  last  counts  are  plainly  bad:  they  are  on 
promissory  notes,  under  the  statute,  where 
those  notes  appear  to  depend  on  a  contin- 
gency. The  declarations,  therefore,  on  them 
cannot  be  maintained.  Carlos  v.  Faneourt  (5 
D.  &  E.  482).  For  a  note  on  a  contingency  is 
not  a  note  within  the  statute.  Not  that  such 
a  note  cannot  be  declared  on,  but  then  it  must 
be  as  a  special  agreement,  and  the  considera- 
tion set  out.  As  to  the  notice  to  amend,  it  is 
before  the  court;  they,  perhaps,  will  not  be 
disposed  to  allow  it.  We  object,  however, 
that  the  application  is  too  late,  because  a  term 
has  intervened,  and  the  evidence  which  was 
given  in  one  count  would  equally  apply  to  all. 
Yet,  if  we  are  wrong  in  this,  if  the  court 
should  give  leave  to  amend,  they  will  not  do 
it  without  ordering  at  the  same  time  a  new 
COL.  AND  CAINES. 


trial.     Tomlinmm  v.  Blacksmith  (7  D    &  E 
132).  > 

* Messrs.  Williams  &i\&  Van  Ness,  con-  [*27O 
tra.  The  application  on  the  part  of  the  defendant, 
is  to  amend  the  verdict  from  the  notes  of  the 
judge,  so  as  to  apply  the  evidence  to  the  first 
count  only,  and  to  enter  verdicts  for  the  defend- 
ant on  the  second  and  third.  It  is  evident  that  the 
testimony  could  have  gone  only  to  the  first, 
for  the  two  last  are  stated  simply  as  contracts, 
though  the  form  be  somewhat  like  that  on  a 
note  of  hand.  They  were  engagements  to  an 
organized  company,  and  it  was  only  in  relation 
to  that  company,  that  they  were  taken;  they 
must,  therefore,  comport  with  the  defendant's 
liability  to  that  company,  under  the  first 
count.  When  a  general  verdict  is  given,  it  is 
almost  of  course  to  amend,  if  that  verdict  does 
not  correspond  with  the  judges  notes.  (3  D.& 
E.,  659.  )2  So  in  Eddowes  v.  Hopkins  (Doug., 
376.  See  also,  Williams  v.  Breedon,  1  Bos.  & 
Pul. ,  329),  it  was  ruled,  that  if  the  evidence  be 
only  on  a  good  or  consistent  count,  and  there 
be  others  bad  in  point  of  law,  a  general  ver- 
dict given  on  the  whole  declaration,  shall  be 
amended  according  to  the  judge's  notes.  Even 
in  a  criminal  case  it  has  been  done,  and  the 
criminal  executed  according  to  the  amend- 
ment. (Grant  v.  Astle,  Doug.,  370.) 

In  slander,  it  is  true,  where  some  counts  are 
for  words  not  actionable,  and  others  for  words 
actionable,  on  a  general  verdict,  judgment  will 
be  arrested,  but  even  then  the  court  will  order 
a  venire  de  now  to  assess  *damages  on  [*2  7 1 
the  good  count.  An  application  like  the  pre- 
sent is  never  too  late.  In  1  D  &  E.,3  it  is  said 
an  amendment  will  be  ordered  even  after  error 
brought,  and  the  record  sent  back  from  the 
exchequer  chamber.  The  same  principle  is 
found  in  Taylor  v.  Whitehead  (Doug.,  746).4 
If  we  are  successful  on  the  point  of  an  amend- 
ment, all  objections  taken  to  the  second  and 
third  counts  are  at  an  end.  But  even  should 
these  be  objected  to,  we  contend  they  are 
good.  The  instrument  declared  on  is  an  en- 
gagement in  writing  by  which  the  defendant 
promised  to  pay.  The  being  a  note  in  writing 
is  enough,  and  purports  a  consideration 

1.— In  that  case,  the  amendment  was  by  altering' 
the  verdict  from  a  small  to  a  larger  sum;  which 
amendment  was  moved  for,  on  the  face  of  the  de- 
claration. The  court  said,  in  fact  we  cannot  load 
the  defendant  with  more  than  the  jury  of  his  coun- 
try has  determined,  without  sending  him  back  to 
another  jury. 

2.— Petrie  v.  Harnay.  There  were  two  issues  in 
that  case,  the  verdict  was  on  one,  and  no  notice 
taken  of  the  other,  the  amendment  was  allowed 
after  error  brought,  and  this  assigned  as  a  cause,  on 
payment  of  costs. 

3.— Green  v.  Rennet,  783,  per  Buller  J.  But  that 
case  does  not  apply  to  amendments  of  verdicts.  It 
relates  to  amending  mistakes  by  the  act  of  the 
clerk  where  there  is  something  to  amend  by.  As  if 
he  enter  against  an  executor,  judgment  de  bonis 
proprite,  instead  of  de  bonis  test-atoris. 

4. — The  decision  referred  to,  is  very  different.  A 
verdict  had  been  found  for  the  defendant :  a  motion 
for  a  new  trial  on  account  of  the  verdict's  being 
against  evidence  had  been  denied,  after  which  the 
plaintiff  obtained  a  rule  to  show  cause  why  he 
should  not  be  allowed  to  enter  up  judgment  on 
that  issue,  because,  notwithstanding  the  finding  of 
the  jury,  the  point  of  law  was  in  favour  of  the  de- 
fendant. The  court  said  this  being  a  motion  in  the 
nature  of  one  for  an  arrest  of  judgment,  was 
never  too  late  before  judgment  entered  up. 

141 


271 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


though  none  be  stated.  (2  Black.  Comm.,446; 
PiUans  v.  Van  Mierop,  3  Burr.,  1670. )l 

272*1  *KENT,  /.  That  doctrine  has  been 
completely  overruled  in  a  case  where  Skyuner, 
Baron,  delivered  in  the  House  of  Lords  the 
unanimous  opinion  of  the  twelve  judges. 

Mr.  Caines,  Amicus  curia.  Harm  \.  Hughe* 
7D.  &E.,  350. 

273*]  *  Van  New.  A  written  contract  with- 
out consideration  may  be  declared  on  as  it  is. 

LEWIS,  C.  J.  This  court  has  decided  that  a 
contract  merely  in  writing,  does  not  supersede 
the  necessity  of  a  consideration. 

Mr.  Williams.  That  the  contract  was  not  con- 
summated by  payment  of  the  $10  required  by 
the  act,  is  also  urged  as  a  reason  why  the  ac- 
tion cannot  be  maintained,  but  surely  the  com- 
missioners might  have  dispensed  with  this.  As 
to  the  objection  that  the  promise  was  given  to 
pay  such  sum  as  the  President,  Directors  and 
Company  should  order;  and  that  the  order  was 
only  by  the  President  and  Directors,  it  can 
hardly  be  thought  the  defendant  ever  hoped  to 
rely  upon  it.  The  President  and  Directors  are 
the  agents  of  the  company,  duly  chosen  by 
them  physically  and  legally  to  express  their 
will.  The  order  made  by  the  President  and 
Directors,  is  an  order  made  by  the  Company. 
This  follows  necessarily,  for  the  President  and 
Directors  are,  by  the  words  of  the  law,  to  act 
274*]  for  *and  to  manage  the  concerns  of  the 
company.  When  they  were  chosen  the  powers 
of  the  company  were  transferred  to  them,  and 
and  this  being  under  the  letter  of  the  statute, 
they  were  the  only  persons  to  make  the  order. 
Had  it  been  complied  with  the  defendant 
would  never  again  have  been  called  upon  for 
anything  paid  under  it. 

Mr.  IIarrison,m  reply.  In  support  of  the  notice 
in  arrest  of  judgment,  nothing  can  be  more 
clear,  than  that  where  entire  damages  are 
given,  and  one  count  is  bad,  the  judgment 
must  be  arrested.  But  in  this  declaration 
there  is  not  one  good  count,  and  this  is  ap- 
parent on  the  face  of  the  record  without  any 
aid,  aliunde.  On  the  first  count,  the  objection, 
as  to  the  order,  is  certainly  fatal.  The  act 
operating  like  a  charter,  specifies  a  particular 

1.— The  two  books  cited,  will  certainly  warrant 
th"  position  of  the  learned  counsel,  but  the  parts 
referred  to  are  not  law.  In  Sharington  v.  Strot- 
ton,  Plow.,  358,  it  is  said,  "  By  the  law  of  this  land 
there  are  two  ways  of  making  contracts,  or  agree- 
ments for  lands  and  chattels :  the  one  is  by  words, 
which  is  the  inferior  method  ;  the  other  is  by  writ- 
ing, which  is  the  superior.  And  because  words  are 
oftentimes  spoken  by  men  unavoidably  and  with- 
out deliberation,  the  law  has  provided  that,  a  con- 
tract by  words  shall  not  bind  without  considera- 
tion. But  where  the  agreement  is  by  deed,  there  is 
more  time  for  deliberation  ;  for  which  reason  they 
art?  received  as  a  lien  final  to  the  party,  and  are  ad- 
judged to  bind  the  party  without  examining  upon 
what  cause  or  consideration  they  were  made."  The 
reader  will  observe,  that  when  Plowden  speaks  of 
contracts  by  writing,  he  means  by  deed  under  seal. 
This  is  more  explicitly  declared  in  the  case  of  Rann 
v.  Hughes.  Baron  Skynner  there  says,  "  All  con- 
tracts are  by  the  laws  of  England  distinguished  into 
agreements  by  specialty,  and  agreements  bv  parol  ; 
nor  is  there  any  such  third  class  as  some  of  the  coun- 
sel have  endeavoured  to  maintain,  as  contracts  in 
writing.  If  they  are  merely  written.and  not  special- 
ties they  are  parol.and  a  consideration  must  be  prov- 
ed." In  Pillans  v. Van  Mierop,  Wilmot,J".,nrgued,that 
if  a  stipulation,  which  was  only  by  words,  was  ac- 
cording to  the  civil  law,  binding  without  considera- 

142 


manner  in  which  the  orders  of  the  subscribers 
are  to  be  made;  the  by-laws  of  the  company 
are  not  to  oppose  the  laws  of  this  State,  or  the 
laws  of  the  Union;  and  yet,  supposing  the 
company  to  have  authorized  the  president 
and  directors  to  make  orders  on  the  stock- 
holders, that  very  authority  can  be  supported 
only  by  allowing  a  violation  of  the  law  by 
which  the  company  itself  is  incorporated.  If 
one  branch  of  those  by  whom  a  specific  act  is 
ordered  to  be  done,  can  be  dispensed  with,  an- 
other may,  and  there  is  no  saying  how  far  this 
principle  is  to  be  carried;  no  power  can  be  ex- 
ercised under  the  statute,  but  what  is  created 
by  it,  and  executed  in  the  manner  it  prescribes. 
On  the  point  in  consideration  the  authority 
from  5  D.  &  E.,  is  decisive:  no  consideration 
appears  by  the  declaration;  the  amendment 
asked  must  be  denied,  because  it  is  evident 
whatever  *went  to  support  the  first  [*275 
count,  must  have  been  applicable  to  the  second 
and  third  counts,  which  were  on  the  same 
note  as  that  mentioned  in  the  first;  if  so  Ed- 
dowes  v.  Hopkins,  relied  on  by  the  plaintiffs, 
shows  the  amendment  cannot  be  granted. 

Per  Curium,  delivered  by  RADCLIFF,  J,  In 
this  case  there  is  a  motion  in  arrest  of  the 
judgment,  founded  on  objections  made  to  all 
the  counts  in  the  declaration. 

The  counts  are  three  in  number,  and  the  ob- 
jections which  apply  to  all  are, 

1st.  That  the  promise  or  contract  set  forth 
in  the  declaration  is  void  for  want  of  consider- 
ation, and  connected  with  this  is  another  ob- 
jection, which  was  distinctly  urged,  that  the 
first  installment  of  $10  not  being  paid,  the 
contract  was  incomplete,  and  not  obligatory  on 
the  company  and  therefore  also  void. 

2d.  That  the  commissioners  appointed  by 
the  act  did  not,  as  soon  as  1.000  shares  were 
subscribed,  give  the  notice  required  by  the 
act  to  choose  directors. 

3d.  That  no  order  or  determination  of  the 
President,  Directors  and  Company  requiring 
the  payment  of  the  instalment  in  question,  is 
stated  in  the  declaration  to  have  been  made. 

To  the  second  and  third  counts  there  is  a 
further  objection,  that  the  plaintiffs  have  de- 
clared on  the  promise  or  subscription  in  writ- 

tion,  a  fortiori,  so  must  be  an  agreement  in  writ- 
ing. But  the  civil  law  itself  will  not  warrant  this 
reasoning.  The  obligatory  force  of  a  stipulation 
arose  from  the  words  being  spoken  in  a  precise 
form  before  a  public  officer ;  for,  if  that  form  was 
not  adhered  to,  the  stipulation  was  void :  therefore 
if  to  the  question  promitits,  the  partys  tipulating 
had  answered  spondeo,  the  stipulation  was  a  nul- 
lity. I  am  therefore  disposed  to  think,  that  the 
stipulation  was  taken  in  the  manner  of  our  recog- 
nizances, and  when  acknowledged  became  a  species 
of  record.  I  am  peculiarly  induced  to  this  opinion 
from  the  manner  in  which  they  are  now  entered 
among  the  acts  of  the  court,  in  those  of  the  Eng- 
lish tribunals,which  follows  the  civil  code :  and  also 
from  considering,  that  the  reduction  of  a  con- 
tract into  writing  did  not,  even  by  the  rules  of  the 
Roman  jurisprudence,  preclude  from  entering  into 
the  consideration  on  which  it  was  made.  By  that  sys- 
tem the  obligation  literatum  arising  from'  the  con- 
tracts ex  Uteris,  was  invariably  contcstible  in  the 
three  following  cases :  1st.  When  the  consideration 
was  not  expressed.  2d.  Even  then  within  two 
years.  3d.  In  all  cases  of  loans  of  money,  by  the 
ejrceptin  fle  nnn  mimerata  pectinia,  which  threw  the 
on  11*  of  proving  a  consideration  upon  the  plaintiff. 
The  codex,  too,  is  express  that  no  form  of  words  or 
writing,  but  assent  alone,  formed  the  contract.  Cod. 
lid.  2,  tit.  3, 1. 17. 

COL.  AND  CAINEB. 


1803 


THE  PRESIDENT,  &c.,  OP  THE  UNION  TURNPIKE  EOAD  v.  THOMAS  JENKINS.         275 


ing,  as  upon  a  promissory  note  within  the  stat- 
ute. 

276*]  *As  to  the  fi.rst,  the  form  of  the 
subscription  which  contains  the  promise,  is 
prescribed  by  the  act  in  the  following  terms: 
"  We,  whose  names  are  hereunto  subscribed, 
do  for  oui-selves  and  our  legal  representatives, 
promise  to  pay  to  the  President,  Directors  and 
Company  of  the  Union  Turnpike  Roads,  the 
sum  of  $25  for  every  share  or  stock  in  said 
company, set  opposite  to  our  respective  names, 
in  such  manner  and  proportion,  and  at  such 
time  and  place,  as  shall  be  determined  by  the 
said  President,  Directors  and  Company."  The 
declaration  states  the  plaintiff's  subscription  in 
these  terms,  but  does  not  aver  that  the  $10 
on  each  share  were  paid,  and  which  the  act 
required  the  defendant  to  pay  at  the  time  of 
subscription. 

I  cannot  discover  any  ground  on  which 
this  promise  ought  to  be  considered  as  void. 
The  subscription  was  taken  by  commissioners 
who  were  authorized  to  receive  it,  and  in  the 
form  prescribed  by  the  act.  That  form  con- 
tains an  absolute  promise  to  pay  the  money 
to  the  President,  Directors  and  Company.  On 
the  one  side  the  interest  of  the  company  in 
selling  the  shares,  and  the  public  advantage  to 
be  derived  from  the  success  of  the  institution, 
and  on  the  other  the  expected  profits  to  accrue 
from  the  stock,  were  sufficient  considerations 
to  render  the  promise  binding.  By  force  of 
the  act  itself  it  must  be  considered  as  good. 
The  Legislature  also  must  have  intended  that 
it  should  be  obligatory,  for  else  the  formal 
manner  in  which  it  was  prescribed  to  be  taken 
would  be  senseless  and  nugatory.  I  cannot 
imagine  that  a  contract  in  terms  so  expressed 
•and  complete  should  be  designed  to  mean 
nothing. 

277*]  *The  last  section  of  the  act  by  which 
the  Company  was  created,  cannot,  in  my 
opinion,  destroy  its  effect.  It  is  thereby  fur- 
ther enacted,  that  the  Directors  may  call  for 
and  demand  the  sums  so  subscribed,  at  such 
times  and  in  such  proportions  as  they  shall  see 
fit,  under  pain  of  the  forfeiture  of  the  shares 
and  all  previous  payments.  This  provision 
was  designed  as  an  additional  security  for  the 
proportion  of  the  shares  which  should  remain 
unpaid,  and  to  enable  the  Company  by  a  de- 
cisive measure  to  compel  the  prompt  payments 
which  the  objects  of  the  institution  required. 
They  had  an  election  to  adopt  this  expedient, 
and  exact  the  forfeiture,  or  to  enforce  pay- 
ment in  the  ordinary  course  by  a  suit  on  the  j 
original  contract.  Not  having  insisted  on  the 
forfeiture,  they  of  course  haveTa  right  to  main- 
tain this  action. 

The  objection  which  is  founded  on  the  idea 
that  the  contract  was  not  obligatory  on  the 
Company,  and  therefore  not  mutual  in  its 
operations,  I  also  think  is  not  well  taken.  The 
subscription  was  for  the  full  sum  originally 
due  for  each  share.  The  $10  on  each  share 
were  due  immediately,  and  the  engagement 
with  respect  to  that  sum  was  like  a  note  or  ob- 
ligation payable  on  demand.  The  contract 
was  complete  and  the  defendant  had  a  right  to 
tender  the  payment  of  the  $10,  and  demand  its 
performance  on  the  part  of  the  Company,  who 
had  an  equal  right  to  enforce  it  against  him.  I 
Neither  party  could  revoke  it  without  mutual  i 
COL.  AND  CAINES. 


consent,  or  a  default  on  the  adverse  side.  I, 
therefore,  consider  the  contract  as  reciprocally 
binding,  and  founded  on  a  valid  consideration. 

*The  second  objection  is,  that  the  [*278 
commissioners  appointed  by  the  act,  did  not, 
as  soon  as  1,000  shares  were  subscribed,  give 
notice  to  the  stockholders  to  choose  Directors. 
This  was,  I  think,  properly  relinquished  by 
one  of  the  defendant's  counsel.  It  does  not 
appear  when  the  precise  number  of  1,000  shares 
were  subscribed.  The  defendant  subscribed 
his  shares  on  the  17th  of  April,  1801,  and  it  is 
averred,  that  on  the  21st  of  the  same  month 
upwards  of  1,000  shares,  to  wit,  1,990  were 
subscribed,  and  that  the  commissioners,  on 
that  day,  gave  notice,  to  choose  Directors. 
The  particular  time  of  giving  this  notice,  after 
1,000  shares  were  subscribed,  could  not  be 
material.  The  act  in  this  respect  was  merely 
directory  to  the  commissioners,  and  if  they  did 
not  strictly  execute  their  trust,  it  could  not 
affect  the  existence  of  the  Company,  nor  any 
contracts  made  with  them. 

The  third  objection  is,  that  no  order  or  de- 
termination of  the  President,  Directors  and 
Company,  requiring  the  payment  of  this  in- 
stalment, is  averred.  It  is  averred  that  the 
President  and  Directors  only,  made  the  order. 
The  promise  was  made  to  the  President, 
Directors  and  Company,  according  to  the  form 
prescibed  by  the  act,  and  it  is  therefore  argued 
that  this  order  ought  to  have  been  made  by  the 
Company  as  well  as  by  the  President  and 
Directors.  This  criticism  ought  not  to  prevail 
against  the  only  practicable  construction  that 
can  be  given  to  the  mode  of  executing  the 
powers  of  this  corporation.  It  is  obvious  that 
the  Company,  in  their  collective  capacity,  can 
never  act.  The  President  and  Directors  are  their 
representatives,  and  they  alone  are  authorised 
to  *manage  the  concerns  of  the  Com-  [*279 
pany.  The  act  invests  them  with  this  power, 
and  it  is  thus  set  forth  in  the  declaration. 
They  alone  could  require  the  payment  in  ques- 
tion, and  the  order  was  properly  made  by  them. 

The  last  objection  applies  to  the  second  and 
third  counts  only,  in  which  the  plaintiffs  have 
declared  on  the  defendant's  subscription  as 
upon  a  note  of  hand,  without  setting  forth  the 
act,  or  any  consideration  to  support  the  defend- 
ant's promise.  It  is  not  expressly  declared 
upon  as  a  note  within  the  statute  concerning 
promissory  notes,  but  the  counts  can  be  sup- 
ported on  that  idea  alone,  for  they  do  not  state 
any  consideration  independent  of  the  making 
of  the  note.  The  shares  of  stock  to  which  the 
defendant  would  be  entitled,  are  not  set  forth 
as  the  consideration  of  the  promise,  but  merely 
as  descriptive  of  its  extent,  and  as  designating 
the  amount  he  undertook  to  pay.  These 
counts,  therefore,  cannot  be  maintained  unless 
the  note  be  considered  to  come  within  the 
statue,  which  I  think  it  does  not.  Although 
by  the  note  the  defendant  promised  to  pay  $25 
for  each  share,  it  depended  on  the  future  opera- 
tions of  the  Company,  which  was  not  yet 
organized,  whether  the  whole  or  any  part  of 
that  sum  would  finally  be  demanded  or  be- 
come due.  The  payment  was,  therefore, 
uncertain  and  contingent,  and  such  a  note  has 
frequently  been  held  not  to  come  within  the 
statute,  and  can  be  declared  xipon  only  as  a 
special  agreement. 

148 


279 


SUPREME  COUKT,  STATE  OF  NEW  YOKK. 


1803 


These  counts  being,  therefore,  defective,  and 
the  verdict  general,  the  judgment  ought  to  be 
arrested  unless  the  verdict  be  amended  by  ap- 
28O*]  plying  it  to  the  *first  count  in  the  dec- 
laration. *  An  application  fpr  that  purpose 
was  made  by  consent,  concurrently  with  the 
motion  in  arrest  of  judgment.  And  if  the 
judge  before  whom  the  cause  was  tried  will 
certify  that  the  evidence  applied  solely  to  that 
count,  or,  as  I  apprehend  the  correct  rule  to 
be,  that  all  the  evidence  given  would  properly 
apply  to  that  count  as  well  as  to  the  others,  I 
think  the  amendment  ought  to  be  allowed. 
The  practice  of  amending  in  such  cases  is  well 
established,  and  is  consistent  with  reason  and 
justice  to  the  parties.  The  result  of  my  opin- 
ion, therefore,  is,  that  the  judgment  be  arrested 
unless  such  amendment  be  made,  and  in  that 
case,  that  the  motion  be  denied. 

LEWIS,  C.  J.  These  are  actions  of  assumpsit, 
brought  by  the  President,  Directors  and  Com- 
pany of  the  Union  Turnpike  Road,  against  the 
defendant,  Thomas  Jenkins,  on  two  several 
subscriptions,  amounting  to  two  hundred  and 
eighty  shares  in  the  capital  stock  of  said  Com- 
pany, for  certain  payments  called  for,  pursuant 
to  the  act  of  incorporation,  by  the  said  Presi- 
dent and  Directors. 

The  declaration  contains  three  counts.  The 
first  sets  forth  the  act  of  incorporation,  the 
formation  of  the  Company  pursuant  thereto, 
the  subscription  of  the  defendant,  the  call  for 
certain  payments  of  seven  dollars  on  each 
share,  and  his  refusal  to  pay,  whereby  he  be- 
came liable,  &c. 

The  two  remaining  counts  are  on  the  several 
subscriptions  of  the  defendant,  as  on  his  prom- 
issory notes. 

281*]  *A  verdict  was  found  generally  for 
the  plaintiffs,  and  the  cause  is  now  before  us, 
on  a  motion  in  arrest  of  judgment,  on  the  part 
of  the  defendant,  and  a  motion  on  the  part  of 
the  plaintiffs,  to  amend  the  verdict  by  the 
notes  of  the  judge  who  tried  the  cause,  so  as  to 
confine  it  to  the  first  count  in  their  declaration, 
on  an  affidavit,  that  no  evidence  was  offered  on 
the  other  counts. 

The  principal  ground  of  the  motion  in  arrest 
of  judgment,  is  the  alleged  want  of  a  consid- 
eration to  support  the  promise,  without  which, 
it  is  insisted,  the  action  is  not  sustainable.  On 
the  record  no  consideration  is  stated.  No  loss 
or  gain  to  either  party;  and  testing  the  con- 
duct of  the  commissioners,  bv  the  provisions 
of  the  act,  none  is  to  be  found,  in  my  opinion, 
in  the  contract  itself.  The  act  requires,  that 
to  constitute  a  stockholder,  he  shall  subscribe 
an  engagment  in  the  words  following:  "We, 
whose  names  are  hereunto  subscribed,  do  for 
ourselves  and  our  legal  representatives,  promise 
to  pay  to  the  President,  Directors  and  Com- 
pany of  the  Union  Turnpike  Road,  the  sum  of 
twenty-five  dollars,  for  every  share  of  stock  in 
the  said  Company,  set  opposite  to  our  respect- 
ive names,  in  such  manner  and  proportion, 
and  at  such  time  and  place,  as  shall  be  deter- 
mined by  the  said  President,  Directors  and 
Company."  It  also  further  requires,  that 
every  subscriber  shall,  at  the  time  of  subscrib- 
ing, pay  unto  either  of  the  commissioners,  the 
sum  of  ten  dollars,  for  each  share  so  subscribed. 
The  subscription  and  payment  are  both  essen- 
144 


rial  to  the    consummation    of    the    contract. 
These  were  cotemporaneous  acts. 

*The  declaration  states  the  subscrip-  [*282 
tion  by  the  defendant  merely,  without  averring 
any  payment  or  demand  of  the  ten  dollars  on 
each  share  ;  and  it  was  admitted  on  the  argu- 
ment, that,  in  fact,  they  were  neither  demand- 
ed nor  paid. 

I  cannot  see,  then,  any  consideration  for  this 
promise;  and  the  legislature  appear  to  have 
been  apprised  of  the  inconvenience  that  might 
arise  from  this  source,  and  have  provided  for 
it,  in  some  measure,  by  the  last  clause  in  the 
•statute,  which  gives  a  power  to  the  Directors, 
"to  call  for,  and  demand  of  and  from  the 
stockholders  respectively,  all  such  sums  of 
money  by  them  subscribed,  or  to  be  subscribed, 
at  such  times,  and  in  such  proportions  as  they 
shall  see  fit,  under  pain  of  forfeiture  of  their 
shares,  and  of  all  previous  payments  made 
thereon." 

Suppose  the  speculation  had  been  an  advan- 
tageous one,  and  before  the  first  call  of  the 
President  and  Directors,  the  stock  had  risen 
considerably  in  value,  could  not  the  Directors, 
with  propriety,  have  refused  to  consider  Mr. 
Jenkins  as  a  stockholder,  on  account  of  his  not 
having  made  the  payment  required  by  the  act 
on  his  subscribing?*  I  think  they  could.  No 
positive  benefit  then,  arising  from  the  future 
emoluments  of  the  Company  transactions,  can 
be  considered  as  a  consideration  for  the  prom- 
ise, and  if  it  could,  none  such  is  stated  on  the 
record. 

Notwithstanding  the  motion  to  amend,  it  was 
insisted  the  suit  was  maintainable  on  the  sec- 
ond and  third  counts.  I  think  not.  For  a 
promise  to  pay  on  *a  contingency,  [*28J5 
which  may  or  may  not  happen,  cannot  be  de- 
clared on  as  a  note  of  hand.  The  instrument 
must  be  payable  at  all  events. 

The  propriety  of  amending,  I  need  not  con- 
sider, as  I  am  of  opinion,  no  suit  can  be  main- 
tained on  the  first  count  for  want  of  a  con- 
sideration. 

lam  of  opinion  judgment  ought  to  be  arrested,* 

1.— After  pronouncing  the  judgment  of  the  court, 
Radcliff,  J.,  observed,  that  he  thought  the  regular 
practice  was  to  obtain  the  certificate  of  the  judge 
before  whom  the  cause  was  tried,  that  the  evidence 
applied  only  to  the  count  on  which  it  was  meant  to 
enter  judgment.  Kent,  J.,  who  tried  the  cause, 
said  the  affidavit  of  the  plaintiffs'  attorney  was  cor- 
rect, and  therefore  he  deemed  it  sufficient  for  the 
amendment.  In  this  the  bench  concurred. 


THE  PEOPLE  v.  SAMUEL  S.  FREER. 

Information — Rule  to  SJww  Cause —  Unavoidable 
Dentention — Overrating  Rule. 

A  RULE  had,  in  the  last  term,  been  granted 
ijL  against  the  defendant,  to  show  cause  on 
the  first  day  of  the  present  term,  why  an  in- 
formation should  not  be  filed  against  him,  and 
no  cause  having  been  shown  on  the  day  ap- 
pointed, the  rule  was  made  absolute. 

Mr.  Hoffman  now  stated  to  the  court,  that  the 

defendant    had    been    prevented    by    adverse 

winds,  which  detained  himself,  counsel  and 

papers,  until  after  the  rising  of  the  court  on 

COL.  AND  CAINES. 


1803 


THE  PEOPLE  OF  THE  STATE  OP  NEW  YORK  v.  CALEB  BKOWN  ET  AL. 


283 


the  first  day  of  the  term,  and  prayed  that  the 
rule  might  be  overrated. 

1284*]  *Per  Curiam.  It  is  of  course.  Take 
your  motion  but  show  cause,  on  the  first  non- 
enumerated  day. 


CALEB  BROWN  ET  AL. 

1.  Forfeiture  of  Lands — Seizin  or  Possesssion  of 
Lands  for  Breach.  2.  Ibed. — Entry — Office 
Found.  3.  Ibid — Entry  and  Action — Office 
Found — Sci.  fa. 

Distinguished— Finch's  Case,  1  Cro.  Eliz.,  230;  2 
L,ev.,  134 ;  9  Rep.,  95  a.  b. 

'PHIS  was  an  information  filed  at  the  direc- 
1  tion  of  the  Legislature,  by  the  late  Attor- 
ney-General, against  the  defendants,  for  an  in- 
trusion on  certain  lands  lying  in  the  county 
of  Otsego. 

The  defendants  claimed  under  letters  patent, 
of  the  6th  September,  1770,  for  9,200  acres, 
granted  by  His  Majesty,  George  III.  of  Great 
Britain,  France  and  Ireland,  King,  &c.,  at  a 
quit  rent  of  2s.  6d.  sterling,  for  every  hundred 
acres.  After  the  usual  reservations  of  mines, 
and  white  pine  trees  for  masts,  the  grant  con- 
tained the  following  proviso:  "Provided,  fur- 
ther, and  upon  condition  also,  nevertheless, 
and  we  do  hereby  for  us,  our  heirs  and  suc- 
cessors, direct  and  appoint,  that  this  our  pres- 
ent grant  shall  be  registered  and  entered 
on  record,  within  six  months  from  the  date  here- 
of, in  our  secretary's  office  in  our  city  of  New 
York,  in  our  said  province,  in  one  of  the  books 
of  patents,  there  remaining;  and  that  a  docquet 
thereof  shall  be  also  entered  in  our  auditor's 
office  there,  for  our  said  province,  and  that  in 
default  thereof  this  our  present  grant  shall  be 
void  and  of  none  effect,  any  thing  before  in 
these  presents  contained,  to  the  contrary  there- 
of in  any  wise  notwithstanding." 

It  was  admitted  that  no  docket  of  the  said 
letters  patent  had  been  entered  in  the  office  of 
285*]  the  auditor,  *pursuant  to  the  said 
proviso;  but  the  following  entry  made  since 
the  year  1797,  is  found  in  a  memorandum  took 
of  patents  in  the  office  of  the  comptroller  of 
this  state,  to  wit:  "1558,  patent  granted  to 
Leonord  Lispenard,1  and  others,  for  9,200  acres 
of  land  in  Albany  county,  dated  the  6th  of 
September,  1770,  at  2*.  Qd.  sterling  for  every 
hundred  acres."  About  the  same  time,  when 
the  above  memorandum  was  made,  Samuel 
Jones  Esq.,  comptroller  of  this  state,  pursuant 
to  the  laws  relative  to  quit  rents,  caused  the 
aforesaid  tract  of  land  to  be  advertised*  for 
payment  of  the  quit  rents  due. 

It  was  further  admitted,  that  on  the  3d  of 

1.— The  name  of  the  first  patentee. 

2.— Under  the  8th  section  of  the  "act  concerning 
quit  rents,"  passed  the  8th  of  April,  1801. 

3. — The  decision  alluded  to,  is  Stephens  v.  Potter, 
Cro.  Car.  100. 2  Res.,  but  that  merely  determined  that 
a  lease  for  years,  reserving-  rent  payable  at  the  ex- 
ohequer,  is  void  on  nonpayment  without  office 

COL.  AND  CALNES.         N.  Y.  REP.,  BOOK  1. 


April,  1799,  the  sum  of  3  dollars  and  84  cents, 
was  paid  into  the  treasury  of  this  state  by 
George  Stanton,  one  of  the  original  patentees, 
in  pursuance  of  the  act  for  the  collection  of 
quit  rents,  as  the  arrears  and  commutation 
then  due,  on  lots  No.  41  and  42;  and  that  on 
the  28th  of  October  following,  3  dollars  and  82 
cents  were  in  like  manner  paid  on  50  acres  of 
the  grant  by  one  Jesse  Clark,  who  had  pur- 
chased under  the  patent  from  which  the  de- 
fendant Brown  derives  his  title;  but  neither 
the  lots  41  and  42,  nor  the  50  acres  on  which 
the  said  3  dollars  and  82  cents  were  paid,  con- 
stitute any  part  of  the  lands  in  his  tenure. 

On  these  facts  it  was  submitted  to  the  court 
whether  the  defendants  were  or  were  not 
guilty  of  the  intrusion  complained  of. 

Mr.  Spencer,  Attorney-General.  It  is  admitted 
that  there  was  no  docket  entered  in  the  audi- 
tor's *office,  according  to  the  proviso  [*286 
in  the  letters  patent.  The  information  is 
grounded  on  this  principle:  that  the  forms  re- 
quired by  the  grant  created  a  condition,  pro- 
viso or  limitation,  which  was  to  make  it  void, 
on  the  not  doing  a  certain  act  by  the  patentees. 
If  therefore  this  act  has  not  been  performed, 
the  instrument  is  a  nullity,  and  the  people 
have  a  right  to  consider  all  persons  now  on  the 
land  as  intruders.  It  may,  perhaps,  be  urged 
in  behalf  of  the  defendant,  that  the  act  con- 
cerning quit  rents  has  done  away  the  forfeit- 
ure; especially,  as  the  officers  of  government 
have  received  the  quit  rents  due,  and  have 
therefore  considered  the  patent  as  in  existence 
and  good.  That,  however,  will  depend  on 
whether  the  not  docketing  the  patent  within 
the  time  limited,  did  not  cause  the  estate  of 
the  patentees  instantly  to  cease;  or  whether, 
even  allowing  the  contrary,  the  payment  could 
purge  the  forfeiture  for  more  than  those  very 
lands  on  which  made,  and  which  do  not  in- 
clude those  for  which  the  intrusion  is  brought. 
There  can  be  no  doubt  that  every  grantor, 
whether  a  state  or  an  individual,  may  annex 
to  his  grant  whatever  conditions  he  pleases, 
provided  they  are  not  repugnant  to  principles 
of  law.  Here  the  condition  is,  that  the  grant 
shall  "be  void  and  of  none  effect."  Therefore 
the  acceptance  of  rent  could  not  restore  what 
was  gone.  Sir  Moyle  Finch's  case  (Cro.  Eliz., 
321)  shows  the  soundness  of  this  position. 
This,  it  may  be  said,  was  the  case  of  a  demise 
for  years.  A  distinction,  therefore,  may  be 
attempted  between  that  and  the  present,  which 
is  of  a  fee.  In  fact,  however,  the  diversity 
does  not  exist.  This  the  *court  will  [*287 
see  in  17  Vin.,  81.  pi.  1.  n.3  it  is  not,  that  in 
one  case  the  estate  is  void,  and  in  the  other 
voidable;  but  whether  the  determination  be 
by  the  same  means  as  create  the  interest.  The 
proviso  here,  was  a  limitation  which  ended 
the  estate  on  nonperformance,  because,  as  it 
was  created  by  matter  of  record,  so  it  was  to 
be  destroyed  by  matter  of  record.  It  is  gen- 
erally true,  that  where  a  freehold  is  to  be  de- 
feated, entry  is  necessary,  but  it  is  not  so, 

found;  whereas,  if  the  rent  be  payable  to  the  re- 
ceiver-general, nonpayment  without  office  found, 
does  not  vacate.  The  reason  is  obvious,  as  the  crown 
can  grant  only  by  record,  it  can  be  informed  only 
by  record;  the  nonpayment  to  the  receiver  is  a 
matter  in  pain;  when  fo'und  by  office,  it  is  of  record, 
and  so  is  nonpayment  at  the  exchequer.  See  this, 
however,  doubted,  2  Roll's  Abr.  216.  (H.) 

10  145 


287 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


where  an  act  that  ought  to  appear  of  record  is 
not  done.  It  is  laid  down,  that  if  an  estate 
granted  by  the  crown  determine  by  a  condi- 
tion broken,  the  king  shall  be  seised  without 
office  found,  where  the  breach  is  apparent  up- 
on record.  (7  Com.  Di.  53.,  D.  70.)'  It  is  the 
revesting  of  the  estate  which  we  contend  for 
here.  This  makes  the  difference  between  the 
present  question,  and  that  of  Van  Shaick  in 
1796,  in  which  it  was  decided  by  the  court  of 
errors,  that  a  new  grant  would  not  be  made 
till  after  office  found,  not  that  an  information 
would  not  lie  before.  There  can  be  no  doubt 
of  the  words  used  in  the  grant  creating  a  con- 
dition (Lit.  Sec.  329),  which  was  a  limitation 
or  qualification  of  the  estate.  For  this 
288*]  *purpose,  the  word  "provided,"  was 
certainly  the  most  fit.  On  breach  of  it,  the 
estate  must  be  judged  in  the  grantor;  or,  as 
here,  in  the  people,  Lit.  sec.  350. 8  So  here,  as 
the  non-performance  was  a  record,  the  right 
to  proceed  by  intrusion  accrued  before  office 
found,  the  estate  of  the  patentees  being  totally 
divested.  The  next  consideration  is,  whether 
any  thing  has  been  done  to  waive  the  forfeit- 
ure. This  may  be  laid  down  as  an  established 
position,  what  is  void  cannot  be  confirmed, 
what  is  voidable  may.  As,  then,  the  interest 
of  the  patentees  was  absolutely  annulled,  the 
receipt  of  the  quit  rents  could  not  revive  it, 
Jenkins  v.  Church  (Cowp. ,  482).  Doe  v. Butcher, 
(Doug.,  50.)  Even  in  voidable  cases,  the  mere 
acceptance  of  rent,  unaccompanied  with  any 
other  circumstances,  will  network  a  confirma- 
tion. (See  Green's  case,  Cro.  Eliz.,  3;  Roe  v. 
Harrison,  2  D.  &  E.,  425.)  No  receipt  can  re- 
vive or  confirm,  unless  taken  with  a  knowl- 
edge of  the  forfeiture,  and  an  intent  to  waive. 
The  act  concerning  quit  rents  does  not  recog- 
nize any  loss  of  title  in  the  defendant,  or  oth- 
ers holding  under  the  same  patent.  No  pay- 
ment, therefore,  to  an  officer  acting  by  au- 
thority of  a  general  law,  with  a  power  merely 
to  extinguish  quit  rents,  could  revest.  All 
that  he  could  do  was  to  bar  the  right  of  the 
people  on  them  when  due,  and  not  by  taking 
them  if  not  due,  to  give  away  the  land  of  the 
state. 

289*]  *Mr.Erru>tt&nd.Mr.  VanVechten, contra. 
Though  from  the  length  of  time  the  defend- 
ant and  those  under  whom  he  claims  have 
been  in  possession,  the  case  is  a  hard  one,  still 
we  are  ready  to  exculpate  both  the  present 
and  late  Attorney-General,  from  all  imputa- 
tion of  rigor.  They  have  acted  only  in  obe- 
dience to  resolutions  of  the  Legislature.  The 
case  divides  itself  into  two  questions.  1st. 
Whether  the  grant  be  void  or  voidable?  2d. 
Whether,  if  so,  the  present  form  of  action  is 
the  appropriate  remedy?  Whether  void  or 
voidable,  will  depend  on  a  number  of  subord- 
inate inquiries.  We  did  not,  it  must  be  con- 
fessed, expect  that  the  proviso  would  have 
been  urged  as  a  limitation  which  always  goes 

1.— The  cases  there  referred  to  are  of  leases. 

2.— The  case  of  n  lease  for  five  yours, w  ith  condition 
to  have  f<*\  on  paying1  of  40  marks  at  the  end  of  two 
years,  and  livery  of  seisin  according  to  the  deed. 
Revested  by  implication,  because  grantor  could  not 
enter  upon  the  br(«eh,  as,  by  his  own  grant,  the 
grr-ntee  nad  three  years  in  the  land. 

3.— As  to  conditional  limitations,  see  Fearne.  Con. 
Rein.  6  ed  9. 

4.— That  is,  if  the  act  done  be  in  law  tantamount 


on  a  certain  express  time  of  determination;  it 
is  a  condition3  and  nothing  more,  in  which 
case,  as  the  estate  might  continue  over,  it  was 
voidable  and  not  void.  But  the  words  in 
question  created  neither  the  one  nor  the  other; 
they  were  merely  directory  on  the  officers  of 
government  and  did  not  oblige  us  to  do  any- 
thing; they  are  separated  from  the  conditions 
by  which  the  grantees  were  bound  by  specific 
acts.  The  words  are,  "we  direct  and  ap- 
point." The  clause  itself  is  rare,  this  being 
the  only  grant  we  can  find  in  which  it  is  con- 
tained. The  officers  of  government  ought, 
the  clause  being  directory,  to  have  given  notice 
to  the  patentees  to  come  in  and  docket;  for,  to 
the  patentees  themselves,  the  act  was  nuga- 
tory, as  they  had  complete  evidence  of  the 
right  by  the  grant  itself.  But,  considering  the 
clause  as  a  condition,  then  we  contend  it  is 
repugnant  to  the  grant,  and  void.  It  was  for 
an  act  to  be  done  by  the  officers  of  the  crown, 
for  the  benefit  of  the  crown  alone.  It  is*[*29O 
the  same  as  if  a  grantor  had  conveyed  on  con- 
dition that  he  should  himself  lodge  the  con- 
sideration money  within  twenty  days,  in  the 
United  States  Bank,  or  the  conveyance  be 
void.  The  result  would  be  to  put  the  whole 
grant  within  the  power  of  the  crown;  or  what 
is  the  same  thing,  within  that  of  its  officers. 
But  shoxild  the  condition  in  the  proviso  be 
deemed  a  valid  one  and  obligator}7  on  us,  we 
say  it  has  been  performed;  for,  if  the  intent 
be  complied  with,  it  is  sufficient.  That  the 
leaning  of  the  court  is  against  forfeitures,  we 
cite  Bull.,  N.  P.,  96,  and  that  the  intent  and 
not  the  letter  of  the  words,  ought  to  regulate, 
Shep.  Touch.,  139.4  1  Atk.,  375.6  Daley  v.  De»- 
bouverie,  2  Atk.,  261,  and  the  cases  cited  in  p.  1. 
What,  then,  was  the  intent  to  be  answered  by 
this  docket?  Merely  to  inform  the  court  of  the 
existence  of  the  grant  and  the  value  of  the  re- 
served rent,  that  no  interfering  patents  might 
issue  and  the  amount  of  its  revenue  be  known. 
The  entry,  therefore,  in  the  comptroller's 
office,  taken  from  the  old  minutes  there,  was 
fully  adequate  to  every  purpose.  For,  though 
two'  acts  are  mentioned  in  the  proviso  to  be 
done,  it  does  not  follow  that  both  are  neces- 
sary to  be  performed.  I^ong  v.  Dennis,6  4 
Burr. ,  2052.  *In  the  present  case,  how-  [*29 1 
ever,  after  a  lapse  of  30  years,  in  a  country 
circumstanced  as  this  was  during  the  revolu- 
tionary war,  and  when  the  very  record  may 
be  supposed  to  have  been  taken  away  by  the 
officers  of  the  crown,  to  presume  a  docket 
regularly  entered,  is  no  more  than  what  the 
law  will  warrant.  Beetle's  case,  12  Rep.,  5. 
Should  it,  nevertheless,  be  held  that  the  for- 
feiture was  incurred,  we  still  contend  that  it 
has  been  waived.  The  argument  urged 
against  this  position,  that  there  is  a  distinction 
between  the  acts  of  individuals  and  those  of 
officers  of  government,  is  contrary  to  the  im- 
plication arising  from  the  case  of  Sir  Moylc 

to  the  condition  expressed,  as  if  to  enfeoff;  and  a 
lease  release  be  executed.  So,  in  the  case  put,  Litt. 
sec.  SJ2,  on  the  doctrine  of  cj/  pros. 

5. — Harvey  v.  Aston,  the  condition  there  was  mar- 
rying with  consent.  The  other  authority  from 
Atkins,  relates  also  to  conditions  in  restraint  of 
marriage. 

(I.— That  also,  was  a  decision  on  a  case  in  restraint 
of  marriage,  in  which  the  conditions  were  held  to 
be  in  the  disjunctive,  performance,  therefore,  of 
one  sufficient. 

COL.  AND  CAINES. 


1803 


THE  PEOPLE  OF  THE  STATE  OF  NEW  YORK  v.  CALEB  BROWN  ET  AL. 


Finch,  relied  upon  by  Mr.  Attorney-General. 
For  the  people  are  bound  by  the  acts  of  their 
agent,  in  the  same  manner  as  any  common 
person.  What,  then,  are  those  acts?  First, 
the  permitting  thirty  years  to  elapse  in  silence; 
next,  the  comptroller  has  made  a  record  or 
docket,  by  entering  the  memorandum  stated 
in  the  case,  to  have  been  written  in  1797;  it 
fully  sets  forth  the  dates,  parties,  and  rents: 
this,  too,  is  an  act  of  a  public  officer.  Sec- 
ondly, by  advertising  these  very  lands  for  the 
quit  rents  due,  under  the  authority  of  the  act 
mentioned  in  the  case.  For  the  language  of 
the  advertisement  is,  we  claim  not  the  lands 
but  the  quit  rents  due.  Thirdly,  the  comp- 
troller has  received  from  one  of  the  patentees, 
and  from  a  person  holding  under  the  grant  to 
them,  quit  rents  for  some  of  those  lands  and 
though  they  have  been  paid  but  upon  portions 
of  the  tract,  yet  they  will  accrue  to  the  benefit 
of  the  whole  grant.  (Goodright  v.  Davids, 
292*]  Cowp.,  803;1  Pennants  case,  3  Rep.,  *64 
b?  Green's  case,  CYo.  Eliz.,  3;3  3  Salk.,  3.) 
Independent,  however,  of  what  has  been  be- 
fore advanced,  we  contend  that  an  informa- 
tion for  an  intrusion  cannot  be  supported  be- 
fore office  found.  This  is  absolutely  neces- 
sary to  entitle  the  people  to  proceed.  In  the 
case  of  common  persons,  if  it  be  intended  to 
destroy  an  estate  for  condition  broken,  it  is  in- 
dispensable that  an  entry  should  first  be  made, 
Shep.  Touch.,  153.  Whenever  an  entry  is  re- 
quired of  an  individual,  an  office  must  be 
found  for  the  king,  9  Rep.,  96  b.  (Sir  George 
Reynel's  case.)  16  Vin.  Abr.,  84  pi.  24,  p. 
Ibid.  83.  pi.  19,  20.  Even  where  the  whole 
estate  has  become  void  by  the  non-perform- 
ance of  the  condition,  still  an  office  must  be 
found  before  the  tenant  can  be  held  an  in- 
truder (Sir  Moyle  Finch' '*  case,  2  Leon.,  143. 
Payne's  case,  Ibid,  206).  The  proviso  on 
which  the  Attorney-General  relies,  being  a 
condition,  and  the  estate  under  the  patent  tak- 
ing effect  immediately,  it  is  plain  that  the 
grant  was  voidable  only  and  not  absolutely 
void.  This  being  so,  and  nothing  done  to 
avoid  the  grant  and  put  the  people  into  pos- 
session, intrusion  cannot  lie,  for  it  is  essential 
to  intrusion  that  it  be  on  the  actual  possession4 
293*]  of  the  crown,  3  Black.  Com.,  *261. 
Moore,  375.  Therefore,  in  all  cases  of  for- 
feiture, &c.,  intrusion  will  not  lie  till  office 
found,  this  being  the  legal  substitute  for  entry 
by  a  private  person,  and  the  only  means  for 
the  crown  to  regain  the  possession  for  the 
injury  to  which  the  intrusion  is  brought,  Litt. 
Abr.  p.  97.  (E.)  Moore,  296,  7.  That  this  only 
to  be  done  by  office  found,  Parstow  v.  Corn, 
Cro.  Eliz.,  855,  is  an  authority  fully  in  point. 
Besides,  the  title  created  by  the  patent  was 
matter  of  record,  and  of  course  must  be 
avoided  by  that  which  is  of  equal  solemnity, 
Plowd.,  229,  and  the  cases  there  cited.  The 
only  method  then,  to  have  been  pursued,  was 
by  an  office  finding  the  forfeiture,  and  intru- 
sion upon  that.  This  will  appear  still  more 
evident  if  we  consider  the  effect  of  the  differ- 

1.— The  point  there  was,  that  acceptance  of  rent, 
after  condition  broken  with  notice  of  the  breach,  is 
a  waiver  of  the  forfeiture. 

2. — Which  of  the  resolutions  there  made  is  alluded 
to,  I  know  not;  possibly  the  third,  but  that  g-oes  on 
the  distinction  between  void  and  voidable  leases. 

COL.  AND  CAINES. 


ent  proceedings.  On  the  inquest  of  office, 
performance  of  the  condition,  or  refusal  by 
the  officer,  which  is  tantamount  (10  Rep.,  67, 
b.  2  Res.)  might  have  been  shown,  but  this 
could  not  be  done  under  an  information  for  in- 
trusion which  merely  states  the  possession  of 
the  crown  and  the  defendant's  intrusive  entry, 
case  of  Alton  Woods,  1  Rep.,  28.  Plow.,  479. 
The  necessity,  therefore,  of  these  measures 
must  appear,  that  the  parties  might  have 
notice  of  the  grounds  of  the  claim  against 
them.  This  cannot  be  done  by  the  informa- 
tion now  brought,  which  is  not  like  a  writ  of 
escheat  that  sets  forth  the  whole  claim  on  the 
part  of  the  crown.  If  what  has  been  laid 
down  already  for  us  be  true,  that  the  docket- 
ing was  a  duty  to  be  performed  by  the  officer, 
then  it  is  for  the  honor  of  the  crown,  as  the 
old  books  say,  to  be  presumed  that  it  has  been 
done,  case  of  the  Churchwardens  of  St. 
Saviour,  Southwark,  (10  Rep.,  66.)  For  it 
can  never  be  imagined  that  the  crown  would 
make  a  grant,  dependent  for  its  validitty 
*on  acts  to  be  performed  by  itself  and  [*294 
omit  those  acts.  Let  it  be  observed  too,  that 
no  form  of  docketing  is  prescribed  by  the 
grant;  and  as  the  revolutionary  war  has  inter- 
vened, it  may  well  be  intended  that  the  entry 
made  in  the  comptroller's  office  in  1797,  was 
by  way  of  docket,  which  would  be  no  more 
than  a  memorandum  for  the  guidance  of  the 
officers  of  the  crown.  If,  however,  the  pro- 
viso be  a  voidable  condition,  then  the  doctrine 
of  waiver  will  apply.  For  government  can 
never  be  supposed  to  do  so  great  a  wrong  as  to 
permit  men  to  make  improvements,  then  offer 
to  receive  a  commutation  in  discharge  of  quit 
rents  due  on  those  very  lands  which  they 
claim  as  forfeited,  receive  the  amount  and 
then  attempt  to  defeat  their  grant.  Because, 
having  dispensed  with  the  condition  in  part, 
by  a  partial  receipt  of  quit  rents,  the  condi- 
tion is  dispensed  with  in  the  whole.  Cro. 
Eliz.,  816.  (Dumper  v.  Sim*.)  This  species  of 
construction  is  due  to  the  liberality  and  honor 
which  we  are  to  suppose  constantly  actuate 
the  proceedings  of  government  and  is  a  prin- 
ciple universally  acknowledged.  (9  Rep.,  131; 
Benley's  case;  Rolyn's  case,  6  Rep.,  5;  10  Rep., 
67.)  In  a  more  peculiar  manner  is  this  to  be 
adhered  to  after  a  lapse  of  30  years,  when  the 
rights  of  third  persons,  bona  fide  purchasers 
and  others,  are  implicated.  In  Van  Schaick's 
case  it  was  settled  that  where  a  forfeiture  was 
apparent  by  matter  of  record,  then  a  scire 
facias  should  go;  when  it  arose  on  matter  in 
pain,  an  office  must  be  found.  The  informa- 
tion, therefore,  must  fall. 

Mr.  Spencer  in  reply.  The  words  of  the  pro- 
viso are  sufficient  to  show  the  docketing  was 
not  directory  to  the  officers  of  the  crown.  The 
grant  was  to  be  valid  *on  doing  several  [*295 
acts,  some  in  pais,  some  in  record.  If  not 
performed  in  a  certain  time  the  letters  patent 
were  to  be  void.  The  words  ' '  direct  "and  "  ap- 
point," are  declaratory  to  the  patentees,  that 
the  estate  granted  should  be  subject  to  the 

3.— Determined  that  receipt  of  rent  due  does  not 
prevent  re-entry,  but  if  accompanied  with  a  receipt 
calling  the  lessee  his  farmer  or  tenant,  it  does. 

4.— The  words  in  Moore,  are,  "  an  information  for 
intrusion  is  not  a  real  but  personal  remedy,  and 
resembles  in  all  points  a  trespass  aprainst  a  subject, 
for  it  supposes  the  queen  in  possession." 

147 


295 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


condition  of  their  registering  and  docketing. 
This  must  always  be  at  the  request  of  the 
parties,  who  must  do  an  act  towards  it:  nay, 
they,  according  to  the  colonial  system,  had  to 
pay  for  its  being  done,  and,  therefore,  was 
clearly  a  duty  in  them;  for  it  is  coupled  with 
a  stipulation,  that  if  it  be  not  performed,  the 
letters  patent  shall  be  void.  This  makes  the 
proviso  a  limitation;  and  when  so  it  is  not 
necessary  that  an  office  should  be  found,  be- 
cause the  crown  would  be  immediately  reseised. 
(Poph.,  53.)  Whether,  however,  it  be  consid- 
ered as  a  limitation  or  a  condition,  is  immate- 
rial; for  no  office  was  necessary.  It  is  required 
only  to  make  the  forfeiture  known  by  matter 
of  record.  Here  the  docket  for  a  matter  of 
record,  and  whether  the  grant  was  docketed 
or  not,  would  appear  by  inspection  of  the 
records.  The  forfeiture,  therefore,  being 
thus  by  matter  of  record,  needed  not  to  be 
found  by  office.  The  authorities  cited  by  the 
other  side  are  in  conformity  to  this  position. 
(2  Roll.  Abr.,  215;  Cro.  Car.,  100;  Steven*  v. 
Potttr.)  On  the  not  docketing  according  to 
the  terms  of  the  proviso,  the  estate  of  the 
patentees  was  gone,  and  this  being  by  matter 
of  record,  the  people  were  reseised.  No  act, 
therefore,  of  their  officer  in  taking  rents  not 
due,  could  revive  an  interest  absolutely 
avoided  and  null.  The  cases  from  Cowper 
and  Douglas,  when  looked  into,  will  show 
this,  though  they  are  quoted  as  authorities 
against  the  people.  The  principle  they  settle 
is,  that  no  acceptance  will  waive  a  forfeiture, 
296*]  without  *knowledge  of  all  the  circum- 
stances by  which  that  forfeiture  was  worked. 
The  people  had  acquired  fee  on  breach  of  the 
condition.  The  quit  rents,  therefore,  were 
merged,  and  a  tortious  taking  by  their  officer 
of  what  was  not  due,  not  knowing  it  not  to  be 
due,  can  never  waive  their  rights. 

Mr.  Van  Vechten.  We  say,  by  the  act  he  was 
constituted  judge  whether  quit  rents  were  due 
or  not. 

Mr.  Spencer.  We  say  he  was  not ;  that  he  was  a 
mere  receiver,  delegated  to  receive  alone.  The 
act  of  the  officer  in  making  the  entry  in  1797, 
was,  allowing  his  acts  to  enure  to  the  advan- 
tage of  the  defendant,  yet  it  was  not  in  time. 
In  arguing  from  the  presumption  the  30  years 
lapse  has  afforded,  the  counsel  seem  to  forget 
that  there  is  a  law1  by  which  the  limitation  of 
suits  by  the  people  for  land,  is  settled  at  40 
years.  It  is  an  absurdity  to  settle  a  limitation 
at  40  years,  and  presume  against  it  at  30.  Nor 
can  anything  be  presumed  from  the  rev- 
olution, because  the  court  knows  all  the  papers 
in  the  various  offices  were  preserved.  In  one 
of  the  cases  referred  to,  the  presumption  arose 
from  this  that  as  the  deeds  were  delivered  in 
to  be  cancelled  (10  Rep.  67,  2d  Rev.),  the  of- 
ficer should  be  presumed  to  have  cancelled 
them;  but  were  the  deeds  here  delivered  to  be 
docketed?  On  every  ground,  therefore,  we 
consider  the  people  entitled;  especially  as  the 
want  of  docketing  is  proved  by  the  records, 
and  an  office  found  would  be  only  surplusage. 

Per  Curiam,  delivered  by  LEWIS,  C.  J. 
This  is  an  information  of  intrusion, filed  by  the 

1.— Act  for  limitation  of  criminal  prosecutions, 
and  of  actions  at  law.  1  Rev.  Laws,  562. 

148 


late  Attorney  *General,  and  now  pros-  [*297 
ecuted  by  his  successor  in  office.  It  comes  be- 
fore the  court  on  a  case  which  sets  forth,  that 
a  royal  grant,  by  letters  patent,  issued  in  1770, 
to  Leonard  Lispenard  and  others,  for  9,200 
acres  of  land,  now  in  the  county  of  Otsego, 
but  then  in  the  county  of  Albany,  on  the  an- 
nual quit-rent  of  2s.  6d.  sterling  per  hundred 
acres.  The  grant  contains  sundry  conditions, 
on  the  non-performance  of  any  of  which  it  is 
declared  to  be  void  and  of  none  effect.  Among 
the  number,  are  the  following:  That  the 
grant  shall  be  registered  and  entered  on  record, 
within  six  months  from  the  date,  in  the  secre- 
tary's office;  and  that  a  docket  thereof  shall 
be  also  entered  in  the  auditor's  office.  It  is 
admitted,  that  though  the  letters  patent  were 
duly  recorded,  no  docket  was  found  in  the  au- 
ditor's office;  but  that  a  note  of  them  is  found, 
entered  in  a  memorandum  book  of  patents, 
kept  in  the  office  of  the  comptroller  of  the 
state,  bearing  date  in  1797,  and  that  the  quit- 
rents,  on  parts  of  the  tract,  have  been  paid  to 
the  existing  government. 

The  defendant  claims  title  under  the  said 
patent,  and  the  question  for  the  court  is,  guilty 
or  not  guilty.  • 

To  decide  this  question,  it  is  necessary  to 
inquire  whether  an  information  of  intrusion 
lies  under  the  circumstances  of  this  case.  To 
sustain  a  prosecution  of  this  description  it  is 
necessary  that  the  crown  formerly,  and  the 
government  now,  should  be  in  the  actual  seisin 
or  possession  of  the  subject  intruded  on.  I 
shall  lay  down  a  few  general  principles  or 
maxims,  *which  I  conceive  incontro-  [*298 
vertible,  and  which  may  be  gathered  from  the 
two  principal  cases,  relied  on,  that  of  Sir 
Moyle  Finch  (Cro.  Klitz.,  220.,  2  Lev.  134), 
and  of  Sir  George  Reynel  (9  Rep.  95  a.),  as 
well  as  from  the  decision  of  the  court  for  the 
correction  of  errors,  in  the  case  of  the  devisees 
of  Van  Schaick  v.  King. 

1st.  That  the  state  can  acquire  seisin  or 
possession  of  lands,  for  breach  of  condition, 
by  matter  of  record  only. 

2d.  That  generally  where  entry  is  neces- 
sary in  the  case  of  a  common  person,  an  office 
is  necessary  to  entitle  the  state. 

3d.  Where  entry  and  action  are  necessary 
to  a  common  person,  an  office  and  sci.  fa.  are 
necessary  to  the  state. 

It  is  true,  there  are  cases  (9  Rep.  95  b) 
where  the  crown  may  be  in  possession  by 
seizure  without  office,  "but  they  are  not  cases 
of  this  description,  they  are  confined  to  the 
forfeitures  of  temporality  of  alien  ecclesias- 
tics, where  the  certainty  of  the  matter  appears 
in  the  exchqeuer. 

There  is  an  important  and  striking  distinc- 
tion between  the  case  of  Sir  ^^r>ylf  Pinch,  and 
the  one  now  before  us.  The  forfeiture  there 
was  of  a  term;  here,  if  any,  of  fee;  now  a 
fee  shall  never  be  void,  absolutely  for  condi- 
tion broken,  but  voidable  by  entry  onlv, 
though  it  is  otherwise  of  a  term.  But  even  in 
Finch's  case,  as  reported  by  Mr.  fsonard,  who 
states  it  much  more  at  large  than  Mr.  OoAv.both 
Mr.PopluimanA  *Mr.  CVflAv,  who  argued  [*299 
for  the  plaintiff,and  Mr. Mamrowl, {.'\\lci  -Baron, 
in  giving  judgment  for  the  plaintiff,  admitted, 
that,  although  the  lease  was  void  without  of- 
fice, it  was  void  in  interest  and  property  only, 
COL.  AND  CAINES. 


1803 


JACKSON,  EX  DEM.  EDMUND  PRIOR,  ABRAHAM  KNAP,  &c.,  v.  HALEY  BROWN. 


299 


but  not  in  possession.  And  that  though  the 
Queen  without  office.and  a  common  person  with- 
out entry,  might  grant  it  over,  yet  the  former 
could  not  without  office  prosecute  for  an  in- 
trusion, nor  the  latter  without  entry  for  a 
trespass. 

These  opinions,  I  think,  decide  the  question; 
and  that  judgment  must  be  accordingly  for  the 
defendant. 


JACKSON,  ex  dem.  EDMUND  PRIOR,  ABRA- 
HAM KNAP  and  ELI  KNAP. 

v. 
HALEY   BROWN. 

Costs — Continuance  of  Trial — Epidemic — Coun- 
termand. 

THIS  was  an  application  for  costs  for  not 
proceeding  to  trial.     The  plaintiff  relied 
on  the  prevalence  of  the  yellow  fever,  which, 
after  noticing  for  the  circuit,  prevented  him 
from  obtaining  a  paper  necessary  on  the  trial. 

Per  Curtain.  It  does  not  appear  that  any 
countermand  was  ever  given,  though  there 
was  time  for  doing  so,  between  the  period 
when  the  impossibility  of  procuring  the  docu- 
ment was  discovered,  and  the  day  fixed  for 
the  circuit.  It  is  true,  the  act  of  God  is  to 
work  injury  to  no  one.  but  when,  as  here,  the 
impossibility  induced  by  that  act  could  have 
been  communicated  to  the  defendant  in  sea- 
son to  have  prevented  his  attendance  on  the 
circuit,  and  this  was  omitted,  the  fault  was 
with  the  plaintiff,  and  he  must  pay  costs. 


3OO*]          *THOMAS  KIRBY 

v. 
SALMON  COGSWELL. 

Argument — Notice — Stay  of  Proceedings. 

IT  was  ruled  in  this  cause,  that  after  a  certifi- 
cate of  probable  cause  to  stay  proceedings, 
both  parties  may  notice  for  argument,  and  that 
the  not  entering  and  noticing  for  argument  by 
the  party  obtaining  the  certificate  to  stay,  is  no 
cause  for  a  motion  to  discharge  the  order; 
(Vide  ante,  p.  259);  especially  if  made  without 
notice. 


THE   PEOPLE  v.  FREER,   Printer  of  The 
Ulster  Gazette. 

Contempt — Attachment — Publication  of  Court 
Proceedings — Affidavit  of  defendant — Personal 
Appearance  and  Answer. 

A  RULE  was  granted  last  term,  for  the  de- 
fendant to  show  cause  on  the  first  day 
of  this,  why  an  attachment  should  not  issue 
against  him,  for  a  contempt,  in  publishing 
some  paragraphs  in  TJie  Ulster  Gazette,  respect- 
ing the  trial  of  Harry  Croswell,  for  a  libel  on 
the  President,  then  subjudice. 
COL.  AND  CAINES. 


Mr.  Hamilton,  on  bringing  in  the  affidavit  of 
the  defendant  (who  did  not  himself  appear  in 
court),  moved  for  an  enlargment  of  the  rule 
till  the  next  term,  to  consult  with  the  defend- 
ant as  to  expunging  some  part  of  the  the  mat- 
ters introduced,  as  irrelevant.  The  idea  of  an 
intentional  contempt  was,  he  said,  denied,  but 
there  were  circumstances  introduced,  which 
counsel  thought  had  better  be  omitted. 

Per  Curiam.  If  the  application  had  been 
to  supply  any  new  fact,  and  that  fact  had 
been  made  to  appear  by  affidavit,  it  would 
have  been  attended  to;  but  we  cannot  enlarge 
a  rule  merely  to  give  counsel  an  opportunity 
to  consider  of  the  propriety  of  expunging 
*parts  of  an  affidavit,  which,  we  must  [*3O1 
consider,  has  been  made  according  to  the 
truth  of  the  case. 

Mr.  Hamilton  then  read  the  affidavit,  which 
did  not  deny  the  publication,  but  only  went  to 
negative  any  intentional  contempt  or  disre- 
spect towards  either  the  court  or  its  members. 

Mr.  Sanford,  contra.  The  publication  being 
confessed,  the  court  has  only  to  pronounce, 
whether  it  amounts  to  a  contempt  or  not. 
The  intention,  giving  it  the  utmost  latitude, 
can  be  taken  only  in  mitigation.  It  cannot 
make  the  publication  less  a  contempt,  A 
man  cannot  justify  his  conduct  by  saying,  I 
have  offended,  but  did  not  mean  to  sin.  The 
question  is  simply  this,  ought  an  attachment 
to  go  for  this  publication?  In  deciding  this 
question  the  court  is  not  to  look  beyond  the 
words  contained  in  the  paper. 

Mr.  Hamilton,  in  reply.  I  cannot  subscribe  to 
the  doctrine,  that  the  court  will  not  look  be- 
yond the  paper  itself.  This  is  extending  the 
doctrine  of  libels.  I  have  heard,  that  there 
the  truth  may  not  be  given  in  evidence,  but 
never  yet  did  I  hear  that  another  paper  or 
circumstance  may  not  be  given  in  evidence  to 
show  the  intent,  So  here,  the  motive  of  pub- 
lication may  surely  be  urged  to  prove  that  no 
contempt,  in  fact,  existed. 

Per  Curiam.  The  affidavit  does  not  justify 
the  publication.  It  is  at  best  but  an  excuse. 
On  such  occasions  as  the  present,  the  defend- 
ant ought  to  appear  in  person  and  answer. 
Let,  therefore,  the  rule  for  an  attachment  be 
made  absolute. 

Cited  in  Col.  &  C.,  411. 


*JAMES  HOUGHTON   [*3O2 


PETER  B.  STRONG. 

CerUorari — Declaration — Statement  of  Cause  of 
Action. 

ON  certiorari  from  a  justice's  court.  The 
declaration,  as  appeared  from  the  return, 
stated,  that  the  defendant  "privily,  wilfully 
and  maliciously,  by  certain  conduct,  damaged 
the  plaintiff  to  the  amount  of  twenty-five  dol- 
lars." General  errors  were  assigned;  and  it 
was  principally  relied  on,  that  no  cause  of  ac- 
tion was  stated  in  the  court,  so  as  to  show  the 
justice  had  cognizance  of  the  suit. 

149 


302 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


Pei'  Ouriam.  The  declaration  is  bad.  It 
ought  to  have  stated,  not  only  the  injury,  but 
how  it  arose.  If  this  be  necessary  in  this  court, 
it  is  more  so  before  inferior  tribunals,  whose 
proceedings  may  be  reviewed  here.  Unless 
the  cause  of  action  be  stated  with  certainty,  it 
is  impossible  for  us  to  know  whether  the  jus- 
tice had  jurisdiction  or  not.  This  very  suit 
may,  for  aught  that  appears,  have  been  in 
slander,  or  for  an  assault  and  battery,  or  for 
some  other  matter  not  cognizable  before  a 
justice.  Nor  does  it  appear  by  any  part  of 
the  record  (none  of  the  testimony  being  re- 
turned) what  kind  of  action  was  proved  by  the 
witnesses. 

The  judgment  must,  tJiwefore,  be  reversed 
•inith  costs. 


MAYLO  KNAP  ».  JOHN  PALMER. 

Amendment — Of  Certiorari — Cause  of  Action. 

ERROR  on  certiorari.  The  affidavit  on 
which  the  certiorari  was  granted,  set  forth 
the  action  to  be  debt;  the  certiorari  itself 
stated  it  to  be  trespass  on  the  case.  The 
defendant  had  served  the  plaintiff  with  a  rule 
to  assign  errors,  before  the  expiration  of 
3OJ?*]  which  *an  application  was  made  to 
His  Honour,  Mr.  Justice  Kent,  at  his  chambers, 
for  an  enlargement  of  the  time;  this  his  hon- 
our was  pleased  to  order  on  an  affidavit  of  the 
plaintiff's  attorney,  specifying  the  original 
cause  of  action,  and  that  the  describing  the 
cause  as  trespass  on  the  case,  was  a  mistake. 
To  this  affidavit  the  plaintiff  had  annexed  a 
copy  of  a  notice  to  move  the  court  to  allow 
the  amendment  of  the  certiorari,  and  had  duly 
served  the  plaintiff's  attorney.  Mr.  Woods  now 
moved  for  leave  to  amend  the  certiorari,  by 
striking  out  the  words  "trespass  on  the  case," 
and  in  their  stead  inserting  the  word  "debt." 

Ordered  accordingly. 


LIVINGSTON  v.  ROGERS. 

Argument  Calender — New  Notice — Next  Term. 

rpHE  court  ruled  that  causes  which  had  been 
J-  noticed  for  argument,  and  duly  entered 
by  the  clerk,  if  not  brought  on,  are  to  be  re- 
noticed  to  the  clerk  for  him  to  re-enter,  as  they 
will  not  be,  of  course,  carried  over  to  the  cal- 
endar of  the  next  term. 


DEN  v.  FEN. 

1 .  Inquest  —  Feigned  Issue — Irregularity  —  Re- 
lief—Court.    2.  Default— No  Notice  of  Trial. 

IF,  in  a  feigned  issue  from  the  Court  of 
Chancery,  an  inquest  be  improperly  taken, 
relief  must  be  sought  in  this  court.  If  an  in- 
quest be  taken  at  a  circuit  court  by  default,  and 
notice  of  trial  has  not  been  given,  it  will  be  set 
aside,  with  costs,  to  be  paid  by  the  plaintiff's 
attorney. 
lf>0 


*JOHN  R.  BOWNE,  surviving  part-  [*3O4 
ner  of  JOHN  R.  BOWNE  and  SAMUEL 
EMBREE, 

v. 
JOHN  SHAW. 

THE  SAME 

v. 

WILLIAM  NELSON  and  GEORGE 
BUNKER. 

1.  Marine  Insurance — Contraband  Goods  — 
Knowledge  of  Insurer.  2.  Idem — Return  of 
Premium — BroJcer  and  Assurer  and  Assured. 

'PHESE  were  two  actions  on  a  policy  of  as- 
1  surance  on  the  cargo  of  the  schooner  Polly, 
in  which  verdicts  were  taken  for  the  plaintiff, 
subject  to  the  opinion  of  the  court  on  a  case 
made,  with  liberty  to  turn  the  same  into  a 
special  verdict. 

The  only  question  was  on  the  effect  of  the 
warranty  against  loss  "by  capture,  or  deten- 
tion for,  or  on  account  of  any  illicit  trade,  or 
trade  in  articles  contraband  of  war." 

The  facts  were,  shortly,  these:  The  prop- 
erty insured,  no  part  of  which  was  contra- 
band, really  belonged  to  the  plaintiff  and  his 
deceased  partner,  who  were  also  owners  of  the 
schooner.  They,  however,  as  agents  for  Jos- 
eph M.  Stansbury,  shipped  on  his  account,  in 
the  same  vessel,  other  articles  which  were 
contraband,  and  Embree  even  made  out  the 
invoice  in  his  own  hand-writing.  The  differ- 
ence of  premium  between  contraband  and 
other  goods  for  that  voyage,  was  21  per  cent. 
At  the  time,  however,  of  subscribing  the  pol- 
icy, Shaw  knew  there  were  contraband  articles 
onboard;  Neilson  and  Bunker  did  not;  and 
as  soon  as  they  did  know  it,  insisted  on  being 
discharged  from  the  policy.  This  the  plaintiff 
agreed  to  do,  but  did  not  erase  their  names 
from  the  instrument.  The  vessel  was  taken, 
and  together  with  her  cargo  condemned  as 
lawful  prize.  In  promulgating  *  the  [  *  3O5 
sentence,  on  the  13th  of  December,  1800,  the 
judge  rested  himself  on  the  general  interest  of 
the  plaintiff  in  the  contraband.  This  he  infer- 
red, from  its  appearing  that  Stansbury  was 
part  owner  of  the  vessel  in  the  September 
preceding,  and  there  being  no  evidence  of  his 
having  ever  alienated  his  share.  He  also  re- 
lied on  the  invoice  of  the  contraband  being  in 
the  hand-writing  of  Embree.  It  was,  how- 
ever, admitted  that  the  plaintiff  had  not,  either 
directly  or  indirectly,  any  interest  in  the  con- 
traband articles. 

In  the  case  of  Neilson  and  Bunker,  the  re- 
turn of  premium  was  the  sole  object  of  suit. 
The  defendants  contending  the  broker  was  as 
much  the  debtor  for  the  premium  to  the  as- 
sured, as  to  the  assurer,  and,  therefore,  the 
action  improperly  brought.  The  facts  on 
this  point  are  fully  detailed  in  the  opinion  of 
the  court. 

Mr.  Hoffman,  for  the  plaintiff.  The  court  is 
called  on  to  say  whether  the  warranty  is  con- 
fined to  the  goods  insured  by  the  policy,  or 
shall  be  considered  so  extensive  as  to  guard 
against  all  losses,  whatsoever  they  may  be, 
arising  from  any  article  on  board  which  may 
be  contraband.  There  is  no  position  of  law 
COL.  AND  CAINES. 


1803 


JOHN  R.  BOWNE  v.  JOHN  SHAW,  ETC. 


305 


more  known,  or  more  acted  on,  than  that  the 
mere  letter  of  a  contract  is  not  to  be  the  rule 
of  exposition.  It  is  to  be  construed  according 
to  the  spirit,  and  expounded  according  to  the 
intent.  If  so,  though  the  words  be  large 
enough  to  cover  all  goods,  we  may  examine 
into  the  intent,  which  cannot  be  better  done 
than  by  inquiring  into  the  reason  of  introduc- 
ing this  clause,  the  mischief  it  was  meant  to 
3OO*]  redress,  and  *the  remedy  it  was  de- 
signed to  afford.  It  owes  its  origin  to  Seton, 
Maitland  &  Co.  They  insured  contraband 
merchandise  without  communicating  its  na- 
ture, and  this  court  decided  a  neuter  need  not 
avow  the  quality  of  his  shipment,  all  goods 
being  to  him  lawful  trade.  To  communicate 
to  the  underwriter  the  particular  species  of 
commodity  shipped,  and  yet  to  warrant  only 
as  to  that  commodity,  was  the  clause  intro- 
duced into  our  policies.  The  conduct  of 
Neilson  and  Bunker  show  this  construction 
ought  to  be  adopted.  On  being  informed 
there  were  contraband  articles  on  board,  they 
desired  to  be  released  from  their  responsibil- 
ity; this  was  unnecessary,  if  the  warranty 
covered  those  articles.  The  generality  of  the 
construction  is  against  it.  An  importer  must 
warrant  against  transactions  and  parties  thou- 
sands of  miles  distant,  and  always  in  the 
dark.  This  would  destroy  insurance  itself. 
Besides,  Shaw  underwrote  with  a  knowledge 
of  all  the  circumstances,  and  must  be  pre- 
sumed to  have  taken  the  risk  of  consequences 
from  contraband  articles,  on  himself.  Our 
construction,  therefore,  as  to  him,  must  pre- 
vail. 

Messrs.  Pendletonand  Harison,contra.  Thein- 
tention  of  introducing  the  clause,  on  the  con- 
struction of  which  the  whole  of  this  contro- 
versy depends,  was  to  relieve  the  underwriter 
from  his  general  liability.  It  was  an  excep- 
tion from  what  was  considered  as  the  effect  of 
the  policy.  Being  so,  the  exception  must  be 
co-extensive  with  the  effect.  The  words  also 
used  for  this  purpose  are  equally  large.  They 
are,  "for  or  on  account  of  any  illicit  or  pro- 
hibited trade."  But  in  deciding  the  present 
case,  it  is  not  necessary  to  determine  the  uni- 
3O7*]  versal  operation  of  the  clause  in  *ques- 
tion.  The  plaintiff  here  was  owner  of  the 
vessel.  He  is  presumed  connusant  of  all  that 
comes  on  board.  By  the  old  maratime  law, 
his  vessel  was  liable  for  confiscation  for  hav- 
ing contraband  on  board,  merely  from  the 
circumstance  of  his  supposed  knowledge. 
This,  on  general  principles,  would  affect  the 
cargo  which  belonged  to  him,  because  the 
taint  of  contraband  is  communicated  wherever 
there  is  privity.1  It  is  only  in  modern  days 
that  we  have  had  the  rule  relaxed,  but  that  is 
only  when  actual  knowledge  is  not  proved. 
Here  the  reverse  is  the  case,  and  the  circum- 
stance of  the  plaintiff's  partner  having  written 
out  the  invoice,  was  a  principal  ingredient  in 
causing  the  condemnation.  In  the  case  of 
NeiUon  and  Banker,  allowing  the  plaintiff  en- 
titled to  recover,  it  must  be  from  the  broker, 
and  not  from  the  defendant. 

Mr.  Hamilton,  in  reply.  It  is  contrary  to  the 
principles  of  a  warranty,  that  it  should  extend 

1.— Sec  the  case  of  the  Franklin,  3  Rob.  Ad.  Rep., 
317,  and  the  note  there,  p.  221  (a),  where  this  point  is 
ably  treated. 

COL.  AND  CAINES. 


to  all  things.  It  can  relate  only  to  the  subject 
matter  insured.  When  we  warrant  of  a  cer- 
tain thing,  we  warrant  of  that  thing  alone. 
When  we  warrant  against  acts,  we  may  war- 
rant against  the  acts  of  all  the  world.  The 
intent  of  the  clause  cannot  be  doubted.  It 
was  framed  by  myself,  to  avoid  the  construc- 
tion contended  for  on  the  other  side,  and  to 
confine  the  operation  of  it  simply  to  the  article 
insured.  I  have  heard  that  every  new  clause 
in  an  instrument  is  but  a  fertile  source  of  liti- 
gation, and  it  is  with  regret  I  find  in  myself  a 
personal  verification  of  the  truth  of  the  re- 
mark. But  whatever  may  be  the  construction 
of  the  effect  of  the  warranty,  it  cannot  touch 
the  present  case,  because  all  was  known  to  the 
defendant.  I  cannot,  however,  agree  that  the 
operation  of  the  clause  is  to  be  *differ-  [*3O8 
ent  against  different  persons.  The  rule  of  law 
must  be  the  same  as  to  all. 

Per  Curiam,  delivered  by  LEWIS,  C.  J. 

The  question  between  the  parties  to  this  suit 
arises  upon  the  warranty  against  loss  by  capture 
or  detention  for  trading  in  articles  contraband  of 
war.  The  effect  which  contraband  shall  have 
upon  lawful  goods,  when  going  to  the  port  of 
a  belligerent,  would  be  here  a  proper  subject 
of  inquiry,  had  the  fact  of  the  Polly's  carrying 
such  contraband  been  secreted  from  the  in- 
surer at  the  time  of  subscribing  the  policy. 
But  it  is  stated  in  the  case  that  the  circum- 
stance was  within  his  knowledge.  It  is,there- 
fore,  only  necessary  to  inquire  into  the  under- 
standing the  parties  had  of  the  contract  they 
entered  into.  The  goods  covered  by  the  policy 
on  which  this  suit  was  brought,  were  lawful, 
and  insured  at  a  premium  of  nine  per  cent. 
Certain  contraband  articles  were  shipped  in 
the  same  vessel  by  the  plaintiffs,  as  agents, 
and  insured  at  a  premium  of  30  per  cent. 
With  a  knowledge  of  this  fact  the  defendant 
subscribed  the  policy,  and  as  both  parties 
must  be  presumed  equally  acquainted  with 
the  law  upon  the  subject,  he  doubtless  took 
the  risk  of  all  the  consequences  that  might 
result  to  the  lawful  from  the  illicit  goods; 
the  warranty  extending,  in  the  understanding 
of  the  parties,  to  the  goods  only,  which  were 
the  subject  of  the  policy. 

lam,  there/are,  of  opinion  the  plaintiff  is  en- 
titled to  recover  as  for  a  total  loss. 

In  the  case  of  the  same  plaintiff  against 
Neihon  and  Bunker,  I  think  the  former  entit- 
led to  a  return  of  *premium.  The  [*  3O9 
broker  who  held  funds  of  both  parties,  debited 
the  plaintiff  in  account.with  the  whole  amount 
of  premium  due  on  the  policy,  and  credited 
the  defendants  for  their  proportion.  In  Ma^v, 
1801,  he  settled  with  the  plaintiff,  and  paid 
him  a  balance  which  did  not  include  the  pre- 
mium in  question.  On  two  several  accounts 
rendered  the  defendants,  the  amount  of  pre- 
mium still  stood  to  their  credit.  And  although 
a  balance  in  their  favor  has  always  lain  in  the 
hands  of  the  broker,  to  a  greater  amount 
than  the  premium,  it  does  not  appear  to 
have  been  left  there  for  the  purpose  of  re- 
payment to  the  plaintiff.  No  authority  for 
this  purpose  has  ever  been  given,  and  the  de- 
fendant must  be  considered  as  still  withhold- 
ing it  from  the  plaintiff. 

151 


309 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1804 


FEBRUARY  TERM,  1804. 


JOB  ATTERBURY 


WILLIAM  TELLER,  JUNIOR. 

Second  Suit  —  Plaintiff  Setting  a»ide  1m  Damages 
assessed  by  the  Clerk  in  the  First  Suit  —  Costs. 

rPHIS  was  an  action  on  two  promissory  notes, 
JL  on  which  the  clerk  had,  according  to  the 
practice  of  the  court,  assessed  damages. 

A  former  suit  had  been  brought  on  the  same 
notes,  which  were  the  foundation  of  the  pres- 
ent action.  The  attorney  for  the  plaintiff  lived 
in  New  York,  and  had  not  any  agent  in 
3  1O*1  Albany,  near  to  which  the  *attorney 
of  the  defendant  resided.  Whilst  the  plaintiff's 
attorney  was  proceeding  in  New  York  to  ob- 
tain judgment,  the  defemdant's  attorney  put 
up,  in  the  clerk's  office  in  Albany,  the  usual 
notice  of  appearance,  and  of  a  rule  to  declare, 
after  the  expiration  of  which,  no  declaration 
having  been  received,  the  defendant,  after  the 
regular  affidavit  of  due  service,  entered  a  non 
pros  for  not  declaring.  During  these  transac- 
tions in  Albany,  the  plaintiff  went  on  in  New 
York,  and  there  obtained,  subsequent  to  the  en- 
try of  -non  pros  in  Albany  ,  a  judgment  by  default  ; 
after  which,  the  clerk  of  the  court  duly  as- 
sessed damages,  and  indorsed  the  amounts  on 
the  respective  notes.  The  attorney  on  record 
for  the  plaintiff  having  been  changed,  the 
present  attorney  discovered  the  above  circum- 
stances, and  as  the  judgment  of  non  pros  had 
been  entered  in  consequence  of  the  original 
attorney  for  the  plaintiff  not  having  had  an 
agent  in  Albany,  he  paid  the  defendant's  attor- 
ney the  costs  of  non  pros,  and  agreed  to  vacate 
his  own  judgment,  which  was  accordingly 
done. 

A  second  action  being  now  commenced,  the 
plaintiff  was  apprehensive  that  the  assessment 
of  damages  under  the  first  might  be  made  use 
of  on  the  trial,  as  a  species  of  judgment  already 
recovered. 

Mr.  Pendlelon,  on  affidavits  containing  the 
above  facts,  moved  for  liberty  to  strike  out  the 
assessment  indorsed,  and  proceed  to  trial  on 
the  merits,  in  the  same  manner  as  if  the  dam- 
ages had  never  been  assessed.  Mr.  Van  Antwerp 
resisted  the  motion,  relying  on  the  assessment 
being  conclusive  as  to  the  amount. 

311*]  *Per  Curiam.  Take  the  effect  of  your 
motion,  with  costs  of  this  application,  to  be  paid 
by  the  defendant. 


JAMES  JACKSON,  on  the  demise  o'f  SILAS 
SMITH, 

v. 
JOHN  HAMMOND. 

Judgment — Nm   Prim    Record   lost— Leave  to 
Make  up  and  File  new  Record. 

IN  this  cause,  on  an  affidavit,  stating  a  ver- 
dict having  been,  in   1792,  taken   for  the 
152 


plaintiff,  subject  to  the  opinion  of  the  court, 
on  a  case  agreed  on  between  the  parties,  on 
which  judgment  had  been  given  in  1798, 
for  the  plaintiff;  and  also  that  the  nisi  prius 
record  and  issue  roll,  were  not  to  be  found  in 
the  office  of  the  clerk  of  this  court,  nor  the 
nisi  pnus  record  among  the  papers  of  the 
former  clerk  of  the  circuit,  in  which  the  cause 
was  tried,  and  if  left  with  the  plaintiff's 
attorney,  had  been  burnt  or  lost,  leave  was 
given  to  make  up  and  file  a  new  nisi  prius 
record,  with  a  postea  to  be  indorsed  thereon, 
conformable  to  the  minutes  of  the  trial,  and 
also  to  enter  up  judgment,  and  issue  exe- 
cution for  the  plaintiff,  according  to  the 
opinion  of  the  courtln  1798. 

No  opposition. 


AMBROSE   SPENCER 


EZRA   SAMPSON. 

Struck  Jury — Important  or  Intricate   Cause — 
Libel  of  Public  Official. 

THIS  was  an  application  on  the  part  of  the 
plaintiff  for  a  struck  jury,  in  an  action  on 
the  case  for  a  libel.  The  affidavit  on  which  it 
was  founded  stated  that  the  words  spoken  of 
the  plaintiff,  concerning  him  in  his  official 
character  as  Attorney-General,  were  false,  and 
that  the  cause  was  at  issue. 

*Mr.  W.  W.  Van  Ness  opposed  the  mo-  [*3 1 2 
tion,  urged,  that  to  entitle  to  a  struck  jury,  the 
cause  ought  to  be  important  and  intricate; 
that  though  he  might  allow  the  importance  of 
every  cause  relating  to  character,  yet,  its  in- 
tricacy he  must  deny,  and  both  these  circum- 
stances are  necessary  by  our  statute. 

Per  Curiam.  The  words  of  the  statute  are, 
"intricate  or  important."  It  is  of  great  con- 
sequence to  this  court  to  protect  its  officers, 
and  those  of  the  public,  in  the  discharge  of 
their  duty. 

Take  your  rule. 


RICHARD  D. 


ARDEN  AND  EPIPHALET 
W.  CLOSE 


RANDAL  RICE,  CONSIDER  WHITE,  ANI> 
HENRY  TOWNSEND. 

Judgment — In  Vacation — Demurrer — Delay. 

THIS  cause  had  been  noticed  by  the  plaint- 
iffs for  argument,  at  the  last  term,  on  a 
general  demurrer  filed  by  the  defendants  to 
the  declaration;  the  court  had,  on  the  state- 
ment of  the  plaintiffs'  counsel  that  the  de- 
murrer was  merely  for  delay,  overruled  it,  and 
granted  a  rule  for  judgment;  the  counsel 
pledged  himself  to  open  the  rule  any  day  on 
an  affidavit  of  good  cause  of  demurrer,  or  of 
merits.  On  service  of  the  rule  for  judgment, 
the  defendants  gave  a  cognovit,  on  which  the 
plaintiff  entered  up  his  judgment  in  the  last 
vacation. 

Cor,.  AND  CAINES. 


1804 


EGBERT  GILCHRIST  v.  PKTEK  VAN  WAGENEN  AND  JOHN  I.  MOORE,  ETC. 


312 


Mr.  Foot  moved  to  set  aside  the  judgment, 
contending  that  it  could  not  be  entered  but  in 
term. 

Some  little  variance  of  opinion  existing  on 
the  bench,  respecting  the  practice  on  this 
313*]  point,  it  stood  *over  till  the  last  day 
of  term,  when  the  court  thus  decided: 

Per  Curiam.  By  the  8th  rule  of  April,  1796, 
judgment,  after  a  default  entered,  may  be 
entered  at  any  time  after  four  days  in  term 
have  intervened.  The  rule  of  July  Term, 
1796,  ordering  all  rules  for  judgment  to  be 
entered  in  term,  and  not  in  vacation,  was 
abolished  in  Apri^  Term,  1799,  and  restored 
the  first  rule.  There  is  no  good  reason  why 
four  days  in  term  should  be  given  in  this  case 
to  the  defendants,  any  more  than  on  a  war- 
rant of  attorney  to  confess  judgment.  The 
defendants  take  nothing  by  their  motion. 

SPENCER,  J. ,  dissented,  on  the  ground  that 
the  practice  had  been  different. 


ROBERT  GILCHRIST 

r. 

PETER  VAN  WAGENEN  AND  JOHN  I. 
MOORE. 


AUGUSTINE  H.  LAWRENCE 


PETER  VAN  WAGENEN. 

Special  Bail — Surrender  of  Defendant — Flight 
of  Defendant. 

rPHIS  was  an  application  by  the  attorney  of 
I    the  plaintiffs,  for  liberty  to  file  special  bail 
in  both  suits,  to  enable  him  to  surrender  the 
defendant. 

The  circumstances,  as  disclosed  on  affidavit, 
were  these:  The  defendant,  Van  Wagenen, 
had  been  arrested  in  both  actions,  one  of 
which  was  for  $4,000,  and  the  other  for  $400, 
at  a  very  late  hour  of  the  night,  and  was  by 
the  officer  who  took  him,  carried  to  the  house 
of  the  plaintiff's  attorney,  who  was  then  in 
bed.  Being  called  up,  the  defendant  request- 
ed him  to  take  as  bail  one  John  S.  Moore,  who 
314*]  *was  at  first  refused.  But  on  the 
defendant's  representing  the  distressed  state 
his  family  would  be  in,  and  the  shock  it 
would  be  to  his  credit,  should  he  go  to  jail, 
the  attorney,  on  receiving  his  faithful  assur- 
ance that  sufficient  bail  should  be  put  in  by 
nine  o'clock  the  next  morning,  agreed  to  ac- 
cept John  S.  Moore  as  bail  for  that  night,  and 
the  defendant  was  accordingly  suffered  to  go 
at  large.  The  defendant,  however,  instead  of 
putting  in  satisfactory  bail,  as  he  had  promis- 
ed, went  immediately  on  board  a  vessel  that 
he  owned,  which  was  bound  for  the  West 
Indies,  though  he  knew  at  the  time  that 
Moore,  who  has  since  been  declared  a  bank- 
rupt, was  then  insolvent.  On  this  the  plaint- 
iff's attorney  filed  common  bail  in  each  of  the 
suits,  according  to  the  provisions  of  the  stat- 
ute; but  having  been  threatened  by  the  plaint- 
iffs with  being  called  on  for  the  amount  of 
their  debts, 
COL.  AND  CAINES. 


Mr.  Boyd  made  the  application  above  men- 
tioned, which,  not  being  opposed,  was  granted. 


JAMES  JACKSON,  on  the  demise  of  STEPH- 
EN HOGEBOOM, 

v. 

JOHN    STILES    AND  AUSTIN  GRIFFIN, 
Tenants  in  Possession. 

Ejectment — Defective  Papers — Setting  aside  Rules 
to  Appear — Consent  Rules — Statute  of  Limita- 
tions. 

IN  this,  and  several  other  actions  under  the 
demises  from  the  same  lessor,  the  tenants 
moved  to  set  aside  the  rules  which  had  been 
entered  to  appear,  and  enter  into  consent 
rules,  or  that  judgment  go  against  the  casual 
ejector. 

The  notice  of  motion  stated  that  the  appli- 
cations would  be  grounded  on  an  inspection 
of  the  declarations,  notices  and  affidavits  on 
file,  by  which  it  would  *appear  that  [*3 15 
three  of  the  notices  were  directed  in  blank, 
and  one  to  James  Perkins,  instead  of  the  ten- 
ant, James  Kerman. 

Mr.  Harison.  In  ejectment,  the  declaration 
is  analogous  to  process,  and  ought,  therefore,  to 
be  governed  by  the  same  rules.  If  a  sheriff 
were  to  serve  one  man  with  a  writ,  directed  to 
another,  it  certainly  would  not  be  a  legal 
service,  and  in  ejectment  a  notice  to  A  is  not 
a  notice  to  B.  Kerman  can  never  be  Perkins; 
the  court  will  not  permit  the  possession  of 
one  man,  to  be  charged  by  proceedings  against 
another. 

Mr.  Woodworth,  Attorney-General,  read  an 
affidavit,  stating  that  James  Kerman  was  per- 
sonally served,  and  that  the  declaration,  with 
notices  annexed,  were  served  on  the  tenants. 
The  court  will  see  these  facts  also  (ante,  p. 
227),  which  was  an  application  in  this  very 
cause.  If  the  effect  of  the  present  motion  be 
allowed,  it  will,  in  fact,  be  to  try  and  decide 
the  cause  against  the  lessor  of  the  plaintiff,  as 
the  limitation  of  the  statute  will  then  apply. 

Mr.  Harison, in  reply.  The  effect  of  the  statute 
cannot  be  taken  into  consideration.  Suppose 
trespass  for  carrying  away  goods  brought,  in- 
stead of  assumpsit,  and  the  six  years  passed, 
would  the  court  interfere  to  prevent  the 
operation  of  the  statute  ?  This  case  deserves 
no  indulgence;  twelve  months  elapsed  before 
the  application  to  amend  in  August  last  was 
made. 

*Per  Curiam.  The  application  in  [*31O 
these  suits  is  founded  on  a  reference  to  the  pro- 
ceedings on  file,  by  which,  it  is  said,  it  will 
appear  that  one  'of  the  notices  was  mis- 
directed, and  the  others  in  blank.  In  the  affi- 
davit on  behalf  of  the  plaintiff,  it  is  sworn 
that  the  direction  of  the  one  served  on  James 
Kerman  was  to  him  in  his  name,  and  that 
the  tenants  were  duly  served;  if  the  facts  were 
otherwise  it  would  have  been  very  easv  to 
evince  them,  by  producing  the  several  notices, 
&c.,  actually  served,  without  referring  to 
those  on  file.  It  is,  therefore,  to  be  presumed 
that  the  services  have  been  regular.  The 

153 


316 


SUPREME  COURT,  STATK  OF  NEW  YORK. 


1804 


court  will,  in  the  present  case,  support  this 
presumption,  as  otherwise,  by  the  intervention 
of  the  limitation  of  the  statute,  the  plaintiff 
would  be  barred.  The  case  of  Reynolds  is 
very  different  from  this;  there  no  proceedings 
had  been  served  on  him;  a  different  tract  of 
laud  was  claimed;  the  first  intimation  he  had 
was  by  an  execution  which  turned  him  out, 
and  that  very  execution  against  the  possession 
of  a  different  man.  We  there  protected  the 
right  of  the  party,  and  we  do  so  here.  The 
tenants  can  take  nothing  by  their  motion. 


JOHN  KIHBY  AND  EDWARD  KIRBY 


EDWARD  WATKEYS. 

Commission  —  Plaintiff  not  Joining  —  Vacatur 
for  Trial. 

fPHE  defendant  had,  after  due  notice,  ob- 
L  tamed  a  rule  in  the  last  term  for  a  com- 
mission, in  which  the  plaintiff  did  not  join,  to 
examine  a  person  in  Port  Republican,  and 
.since  then  had  not  given  any  notice  of  further 
proceedings  under  the  commission.  On  these 
facts 

Mi:  Harison  moved  to  vacate  the  rule. 

317*]  *Per  G'uriam.  Let  the  rule  be  so  far 
vacated  as  to  permit  the  plaintiffs  to  proceed 
to  trial  notwithstanding  the  commission. 

N.  B.  On  a  commission  to  England  the  court 
will,  after  eight  months  without  return,  give 
leave  to  proceed  to  trial,  notwithstanding  the 
commission;  but  this  does  not  prevent  cause 
being  shown  at  the  circuit,  why  the  trial  should 
not  then  be  put  off. 


JAMES  JACKSON,  on  the  demise  of  ROSE- 

KRAKS, 

V. 

JOHN  STILES,  BENJAMIN  HOWD, 
Tenant. 

Ejectment — Default — Irregularity  of  Service  of 
Plea  and  Consent  Rule — Costs  Paid — Setting 
aside  Judgment — Restitution, 

THIS  was  an  action  of  ejectment,  brought  to 
recover  lands  to  which  the  tenant  derived 
title  under  the  state. 

The  declaration,  &c.,  had  been  duly  served 
on  the  tenant,  and  by  him  delivered  to  the 
Attorney-General  on  the  14th  of  April  last. 
The  notice  was  of  course  for  the  last  May 
Term,  and  the  consent  rule  and  plea  were 
immediately  afterwards,  drawn  and  forwarded 
to  a  clerk  in  the  office  of  the  clerk  of  this 
court  in  Albany,  directed  to  the  attorney  for 
the  plaintiff,  who  the  Attorney-General  be- 
lieved to  reside  in  or  near  Albany.  The  con- 
sent rule  and  plea  were  duly  received,  but 
from  inattention  in  the  clerk  to  whom  they 
were  transmitted,  they  were  filed  instead  of 
being  served.  The  consent  rule  and  plea  not 
having  been  received,  the  plaintiff  took  his 
judgment  by  default  against  the  casual  ejector, 
154 


sued  out  a  writ  of  possession,  and  turned  out 
the  tenant.  On  these  facts  it  was  intended  to 
move  the  court  last  term  to  set  aside  the  judg- 
ment and  writ  of  possession,  and  that  a  writ 
of  restitution  *should  issue;  but  it  be-  [*318 
ing  inconvenient  to  both  parties  to  bring  it  on 
then,  a  written  agreement  was  entered  into, 
consenting  to  postpone  the  application  till  this 
term,  and  that  the  delay  should  not  be  deemed 
a  laches  in  the  tenant. 

Mr.  Guinea,  on  the  above  facts,  substantiated 
by  affidavit,  now  moved  to  set  aside  the  default 
and  subsequent  proceedings,  and  that  a  writ  of 
restitution  should  is.sue.  There  were,  he  said, 
but  two  objections  which  could  be  made  to  the 
motion.  First,  that  the  default  was  not  ac- 
counted for;  second,  that  the  application 
ought  to  have  been  made  at  .an  earlier  day.  As 
to  the  first,  this  court  had  allowed  the  mis- 
carriage of  pleas  when  sent  by  the  mail  to  ex- 
cuse a  default  (Hudson  v.  Henry,  ante,  p.  168), 
and  though  this  was  not  exactly  that  case,  it 
was  Avithin  its  principle;  for,  the  defendant's 
attorney  had  taken  every  necessary  step  in  due 
time.  On  the  second  point,  the  written  agree- 
ment was  a  complete  answer.  In  addition  to 
this,  no  injury  could  be  induced  by  granting 
the  application;  if  the  plaintiff  had  any  right, 
he  would,  on  a  trial,  be  able  to  prove  it;  on  the 
other  hand,  if  the  motion  was  denied,  it  might 
be  of  the  utmost  prejudice,  as  it  would  shut 
out  the  defendant  from  all  possibility  of  show- 
ing his  title.  Besides,  the  rule  was  not  asked 
for  but  on  payment  of  all  costs,  so  that  the 
plaintiff  would  be  where  he  was,  with  all  his 
rights,  titles,  and  even  his  pocket  unimpaired. 

Mr.  Van  Vcehten,  contra,  read  affidavits  stat- 
ing that  the  lessor  of  the  plaintiff  had  been  duly 
put  in  possession  of  the  lands  in  question  by 
the  sheriff  of  the  county,  and  had,  on  the  same 
day,  granted  a  lease  of  *the  premises  [*31$) 
to  a  third  person;  that  in  conversations  with 
the  lessor  of  the  plaintiff,  he  had  acknowledged 
that  he  held  under  the  patent  of  Clifton  Park, 
where,  as  those  delivered  were  claimed  under 
that  of  Kayaderosseras,  and  that  the  lessor  of 
the  plaintiff  had  acknowledged  he  believed  the 
premises  delivered  under  the  writ,  were  in 
Kayaderosseras.  It  was,  therefore,  insisted, 
that  as  now  the  right  of  a  third  person  was 
implicated,  the  court  would  not  interfere;  that 
the  title  was  acknowledged,  and  it  would, 
therefore,  be  useless.  The  excuse  of  the  de- 
fault was  also  denied  to  be  similar  to  the  cases 
relied  on. 

Mr.  Caines,  in  reply.  The  lease  granted  since 
the  execution  of  the  writ,  and  before  the  sign- 
ing of  the  agreement,  must  have  been  so  re- 
cent as  to  admit  of  no  improvements.  The 
third  person,  therefore,  can  sustain  no  injury. 
Allowing  the  right  to  be  with  the  lessor,  stiH 
it  cannot  be  thus  tried  on  affidavit.  A  jury  is 
the  tribunal  for  its  determination.  In  refer- 
ring it  to  a  jury,  he  has  all  his  rights,  and  the 
expense  he  has  been  put  to  we  agree  to  pay. 
He,  therefore,  cannot  suffer;  but  the  defend- 
ant may,  as  he  cannot  obtain  compensation 
from  the  state,  unless  he  shows  a  defence,  to 
which  alone  he  asks  to  be  admitted. 

Per  Curiam.     The  proceedings,  on  the  part 
of  the  defendant  certainly  have  not  been  per- 
fectly regular,  for  they  ought,  in  strictness,  to 
COL.  AND  CAINES 


1804 


EDMUND  KIRBY  v.  SAMUEL  COGSWELL. 


319 


have  been  sent  to  the  agent  of  the  plaintiff's 
attorney.  It  appears,  however,  that  every 
measure  necessary  for  the  defence  was  actually 
taken,  though,  from  an  idea  on  one  hand  of  the 
32O*]  clerk  of  the  defendant's  attorney,  *that 
the  plaintiff  resided  near  Albany,  and  a  mis- 
take on  the  other,  in  the  office  of  the  clerk  of 
the  court,  the  papers  never  reached  their  proper 
destination.  In  ejectment,  as  it  is  the  creature 
of  the  court,  every  thing  will  be  done  to  pro- 
mote the  justice  of  the  case,  according  to  right, 
and  the  court  will  go  further  to  protect  the 
possession,  when  it  can  be  done  without  in- 
jury to  the  plaintiff's  claim,  than  it  is  willing, 
in  other  cases,  to  proceed.  As,  therefore, 
there  was  a  full  knowledge  in  October  last  of 
an  intention  to  make  this" application,  and  the 
transactions  are  all  of  a  recent  date,  we  are  of 
opinion  that  the  default  entered  against  the 
casual  ejector,  the  judgment  thereon,  and  the 
writ  of  possession  sued  out,  be  set  aside,  and  a 
writ  of  restitution  issue,  on  payment  of  costs. 


EDMUND  KIRBY 

«. 
SAMUEL  COGSWELL. 

Stay    of    Proceedings  —  Certificate    of  Probable 
Cause  —  Notice  of  Motion. 


was  an  action  on  a  promissory  note  by 
-  the  indorsee  against  the  maker.  It  appeared 
on  the  trial,  which  took  place  during  the  last 
Albany  circuit,  that  the  plaintiff  was  one  of  a 
firm,  and  had  indorsed  the  note,  in  the  name 
of  the  house,  to  himself,  and  now  sued  in  his 
individual  capacity.  On  this  account  an  ob- 
jection was  taken,  the  defendant  insisting  that 
the  plaintiff  could  not  by  his  indorsement  in 
the  style  of  the  co-partnership,  transfer  to 
himself,  in  his  private  character,  the  note  so 
as  to  give  a  right  of  action.  This,  however, 
being  overruled  by  His  Honor,  Mr.  Justice  Kent, 
the  defendant,  within  the  time  limited  by  rule, 
made  a  case,  and  served  it  on  the  plaintiff's 
attorney.  He,  observing  it  to  be  incorrect, 
made  another,  detailing  the  facts  accurately, 
321*J  and  *also  serve  his  end,  titling  it  an 
'  'amended  case.  "  (See  Milward  v.  Hattett,  ante 
p.  261.)  On  the  —  of  November  last,  being  the 
first  day  of  November  Term,  the  plaintiff  filed 
his  certificate  of  trial,  nisi  prius  record,  with  the 
postea  indorsed,  jury  process,  and  entered  a 
rule  nidi  for  judgment.  On  the  8th  of  No- 
vember, the  defendant  taking  no  notice  of  the 
case  intended  as  an  amendment,  obtained,  on 
his  own  statement  of  facts,  a  certificate  from 
Mr.  Justice  Kent  to  stay  proceedings.  This, 
with  a  copy  of  his  case,  but  without  any  no- 
tice of  motion,  he  served  the  next  day  on  the 
plaintiff's  attorney,  observing  to  him,  at  the 
same  time,  that  the  amendment,  according  to 
the  practice  of  the  court,  ought  to  have  been 
proposed  and  not  sent  in  the  shape  of  a  new 
case.  The  plaintiff's  attorney  then  offered  to 
make  a  fair  statement,  as  should  be  agreed  on, 
alleging  his  ignorance  of  the  strict'rules  of 
making  a  case.  The  defendant's  attorney  seem- 
ing to  evade  this,  the  plaintiff,  on  the  16th  of 
COL.  AND  CAINES. 


November  served  a  copy  of  a  bill  of  costs  in 
the  suit,  with  the  regular  notice  of  taxation, 
which  he  proceeded  to  execute,  signed  judg- 
ment, and  issued  &  fen  facias. 

Mr.  Van  Antwerp  now  moved  to  set  aside  the 
judgment  and  all  subsequent  proceedings,  in- 
sisting that  the  certificate  of  the  judge  was  a 
complete  stay,  without  any  notice  of  motion 
annexed;  for  the  plaintiff  had,  as  well  as  the 
defendant,  a  right  to  bring  on  the  argument  on 
the  case. 


Per  Curiam.  The  question  is,  as  to  the  op- 
eration of  a  certificate  of  probable  cause  to  stay 
proceedings.  The  4th  rule  of  January,  1799, 
settles  that  *at  the  time  of  service  of  [*322 
the  order,  it  must  be  accompanied  with  a  no- 
tice of  motion.  The  right  of  the  opposite 
party  to  .notice  for  argument  does  not  take 
away  the  necessity  of  notice;  for  the  mere  cer- 
tificate itself  is  no  stay.  The  defendant,  there- 
fore, can  take  nothing  by  his  motion,  and  must 
pay  the  costs  of  the  present  application. 


MANHATTAN  COMPANY  v.   BROWEH. 

Confession  of  Judgment — Defendant  in  Custody 
— Advice  of  Attorney. 

THE  defendant  in  this  suit  being  in  custody 
on  mesne  process,  executed  a  warrant  of 
attorney  to  confess  judgment  for  the  amount 
of  the  debt,  but  it  was  not  witnessed  by  any 
person  as  his  attorney,  acting  in  that  capacity 
for  him. 

Mr.  Hoffman,  on  this  ground,  moved  to  have 
the  warrant  of  attorney  delivered  up  to  be  can- 
celled, and  to  vacate  the  judgment  entered. 

Mr.  Hamilton,  contra,  read  some  affidavits, 
showing  that  the  defendant  at  the  time  of  exe- 
cutingthe  instrument,  was  perfectly  well  ap- 
prised of  its  nature,  which  had  been  ex- 
plained to  him  *by  an  attorney,  though  not 
actually  his  attorney,  or  the  attorney  of  the 
plaintiffs,  and  that  the  whole  transaction  was 
bonafide,  and  without  surprise. 

The  inclination  of  the  court  appearing  to  be 
against  the  application,  the  proceedings  hav- 
ing been  within  the  spirit  of  the  rule  relied  on ; 
and,  it  being  suggested  at  the  bar  that  it  was 
doubtful  whether  the  English  rules  of  E,  15 
Car.  II.  and  E.  4  G.  II.  had  ever  been  made  a  rule 
of  this  court,  though  the  practice  *was  [*323 
acknowledged  to  have  been  in  conformity  to  its 
regulation," 

Mr.  Hoffman  consented  to  withdraw  his  mo- 
tion, and  let  the  judgment  stand  as  a  security  for 
the  debt,  the  plaintiffs  delivered  a  declaration, 
and  agreeing  to  go  to  trial  on  the  merits. ' 


1.— In  Hutson  v.  Hutsoii  (7  D.  &  E.,  8),  the  Court  of 
King's  Bench,  held  that  the  benefit  of  the  English 
rules  referred  to,  could  not  be  waived  by  a  prisoner, 
and  that  the  presence  of  the  plaintiff's  attorney  was 
insufficient,  though  acting-  for  the  prisoner  at  his  re- 
quest and  entreaty,  and  though  pressed  to  send  for 
another  attorney  to  witness  the  instrument,  with 
the  nature  of  which  the  defendant  was  perfectly  ac- 
quainted. 

155 


323 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1804 


STEPHEN  ROSS  ET  AL. 

v. 

NEHEMIAH  HUBBLE  AND  JEMIMA  his 
Wife,  Administratrix  of  ICHABOD  PATER- 
SON. 

Default  —  Trespass—  Entry    of  Appearance    by 
Attorney  —  Laches  of  the  Clerk. 


was  a  motion  to  set  aside  the  default 
J-  entered  in  the  cause,  and  all  subsequent 
proceedings,  with  costs. 

The  affidavits  contained  a  variety  of  unim- 
portant facts,  but  the  only  question,  worth  no- 
ticing, which  was  relied  on,  was  one  of  prac- 
tice, whether  it  was  regular  to  a  writ,  which 
was  in  trespass  only,  and  returned  with  the 
names  of  the  defendants  indorsed,  to  enter 
their  appearance  in  the  clerk's  office,  after 
judgment  was  signed. 

It  was  contended  that,  as  the  court  would 
order  it  to  be  done  on  application,  it  was,  in 
fact,  doing  no  more  than  that,  which  the 
court  would  sanction. 

324*]  *Per  Curium.  It  is  said  that  no  ap- 
pearance of  the  defendants,  by  special  or  com- 
mon bail,  or  an  entry  of  appearance,  was  of 
record,  when  the  default  and  judgment  were 
returned.  As  the  process  in  the  cause  did  not 
require  bail,  the  defendants  indorsed  their  ap- 
pearance on  the  cfipias.  It  was  the  business  of 
the  clerk,  and  not  of  the  attorney,  to  have  en- 
tered their  appearance.  This  may  be  done 
mine  pro  tune.  The  laches  of  the  clerk  ought 
never  to  prejudice  the  attorney.  We  there- 
fore deny  the  motion,  with  costs  of  opposing. 


HENRY  WARERBERY  ET  AL. 
JOHN  DELAFIELD. 

Commission — In    Consolidated   Cause — Heading 
Evidence  in  Principal  Suit. 

THIS  was  the  principal  suit  in  several  ac- 
tions on  a  policy  of  insurance,  in  which  a 
consolidation  rule  had  been  granted.  A  com- 
niission  to  examine  had  been  taken  out,  titled 
in  a  consolidated  cause;  in  the  commission  the 
defendant  joined  and  titled  his  cross  interroga- 
tories in  the  same  manner. 

Mr.  Hoffman  moved  to  read,  in  the  principal 
cause  the  evidence  taken  under  commission 
titled  in  that  which  had  been  consolidated. 
The  court,  after  some  words  by  Pendleton,  in 
opposition,  granted  the  motion,  with  cost  to 
abide  the  event  of  the  suit. 


DAVID  GORDON  survivor  of  JOAN  MUNRO 
and  DAVID  GORDON 

v. 
WALTER  BOWNE. 

Appearance — Nunc  pro  tune — Set-off— Assign- 
ment. 

THIS  was  an  application  for  leave  to  file  the 
cfipias,  and  enter  the  defendant's  appearance 
nunc  pro  tune  as  of  the  last  August  Term. 
1M 


*The  facts  as  they  appeared  on  the  sev-[*325 
eral  and  long  affidavits  read, were,that  the  plaint- 
tiffs  were  the  assured  on  a  policy  of  insurance 
underwritten  by  the  defendant;  that,  being  in 
embarrassed  circumstances,  and  unable  to 
meet  their  payments,  they  entered  into  a  com- 
position with  their  creditors,  of  whom  the  de- 
fendant was  one,  to  pay  them,  on  receiving  a 
release  from  all  demands,  fifteen  shillings  in 
in  the  pound,  ten  shillings  to  be  paid  by  ap- 
proved indorsed  notes,  and  the  remaining  five 
shillings,  by  their  own;  the  indorsers  to  re- 
ceive an  assignment  of  a  part  of  the  property 
of  the  plaintiff  and  his  partner,  by  way  of 
security  against  their  indorsements;  that  in 
pursuance  of  this  agreement  the  defendant 
received  his  two  notes  of  ten  shillings  and  five 
shillings  in  the  pound,  executed  a  release,  and 
the  policy  in  question  was  assigned  to  persons 
for  whose  benefit  the  present  action  was 
brought;  that  the  note  for  ten  shillings  in  the 
pound  was  duly  paid  by  the  assignees  of  the 
policy.  The  attorney  for  the  plaintiff  called 
on  the  defendant,  a  few  days  before  August 
Term,  to  inform  him  of  the  intended  suit,  when 
defendant  assured  the  attorney  that  the  matter 
would  be  accommodated,  ana  if  not  that  he 
would  consent  to  proceedings  being  as  of 
August  Term;  that  a  capias  was  afterwards 
sued  out  on  the  second  of  August  last,  return- 
able the  sixth,  but  not  served  till  after  August 
Term,  at  which  time  the  defendant  indorsed 
his  appearance,  and  as  the  plaintiff's  attorney 
verily  believed,  with  intent  that  all  proceed- 
ings should  be  deemed  as  of  August  Term ; 
that  the  declaration  was  titled  as  of  August 
Term,  though  the  capias  has  not  been  yet 
filed;  that  since  August  the  plaintiff  has  be- 
come a  bankrupt,  and  that  the  defendant  had 
pleaded,  giving  a  notice  of  setting  *off  [*32G 
a  note  which  fell  due  on  the  8th  of  September 
last,  and  was  the  very  note  for  five  shillings  in 
the  pound  given  by  the  plaintiff  and  his  part- 
ner, in  composition  for  their  debts. 

Mr.  Hoffman  insisted  that  the  indorsement  of 
the  writ  by  the  defendant,  was  tantamount  to 
a  written  agreement,  as  it  was  evidence  in 
writing  of  the  agreement,  which  was  further 
corroborated  by  the  pleadings. 

SPENCER,  J.,  delivered  the  judgment  of  the 
court: 

The  defendant  resists  the  application,  relying 
principally  on  this:  That  he  holds,  to  nearly 
the  amount  of  the  plaintiff's  demand,  a  note 
against  him  due  on  the  8th  of  September  last, 
which  he  intends  to  set-off.  The  object  of  the 
plaintiff's  motion,  is,  if  possible,  to  exclude 
this  effect;  on  this  ground,  that  his  demand  is 
assigned  for  the  benefit  of  certain  persons  who 
have  paid  debts  for  him,  incurred  by  indorse- 
ments to  his  compounding  creditors.  The  de- 
fendant denies  notice  of  such  assignment; 
both  parties  admit  the  insolvency  of  the 
plaintiff.  The  verbal  agreement  between  the 
attorney  for  the  plaintiff  and  the  defendant 
cannot  be  attended  to;  a  rule  of  this  court  for- 
bids such  agreement  being  alleged. 

There  has  been  laches  on  the  part  of  the 
part  of  the  plaintiff,  in  not  entering  his  suit  as 
of  August  Term,  and  to  avoid  that  laches  the 
court  is  now  applied  to.  In  granting  favors 
of  this  kind,  the  court  ought  to  be  careful  not 
COL.  AND  CAINES. 


1804 


MASTERS  v.  EDWARDS. 


326 


to  do  injustice,  and  it  appears  to  them,  that 
granting  the  rule  as  applied  for,  might  have 
that  effect;  for,  most  certainly,  the  defendant's 
claim  to  offset  is  better  founded  than  that  of 
327*]  the  assignees  to  recover.  *Let  a  rule  be 
entered  that  the  plaintiff  have  leave  to  file  his 
writ,  and  enter  the  defendant's  appearance  as 
of  the  last  term. 

THOMPSON,  J.  I  am  sorry  to  be  under  the 
necessity  of  differing  from  the  court;  but  I 
think  the  indorsement  of  appearance  is  evi- 
dence of  an  agreement  as  strong  as  if  it  had 
been  reduced  to  writing,  and  sufficiently  indi- 
catory of  the  intent  of  the  parties  to  avoid 
any  of  the  consequences  against  which  the 
rule  in  question  was  framed.  How  far  the 
defendant  may,  by  filing  the  capias,  and  enter- 
ing an  appearance  of  August  Term,  be  pre- 
cluded from  a  set-off,  or  by  the  present  rule 
entitled  to  it,  is  unnecessary  to  determine.  My 
opinion  is  that  the  plaintiff  ought  to  have  the 
effect  of  his  motion. 

KENT,  J.  I  concur  in  the  opinion  last 
given.  I  deem  it  a  point  of  moral  rectitude  to 
enforce  all  agreements,  when  the  evidence  is 
such  as  is  not  contravened  by  any  rule  of  law. 
But  as  the  judgment  of  the  court  is  to  deny 
the  full  extent  of  the  plaintiff's  application  he 
can  take  no  more  than  has  already  been  pro- 
nounced. 


MASTERS  v.  EDWARDS. 

Sail — Exoneretur — Surrender — Svpersedeas — 
Not  charged  in  Execution. 

Distinguished— Branting-ham's  Case,  Col.  Caa.,  48. 

THE  defendant  had  been  surrendered  in  ex- 
oneration of  his  bail,  final  judgment  ob- 
tained against  him,  and  after  three  months  he 
was,  on  regular  notice  to  the  plaintiff,  super- 
seded for  want  of  being  charged  in  execution 
in  due  time.  Notwithstanding  this,  the  plaint- 
iff's attorney  sued  out  an  execution  against  the 
"body  of  the  defendant,  upon  the  judgment  on 
328*]  which  *he  had  been  in  custody,  and 
took  him  upon  the  ca.  sa.  thus  issued. 

Mr.  Henry,  on  these  facts,  disclosed  by  affida- 
vit, moved  that  he  should  be  discharged.  This 
•case  is  to  be  distinguished  from  that  of  Brant- 
ingham:  in  that  the  court  held  the  plaintiff  en- 
titled after  notice  of  a  rule  fora  supersedeas,  to 
come  in,  charge  in  execution,  and  show  that 
circumstance  as  a  cause  for  refusing  the  appli- 
cation. Blandford  v.  Foote  (Cowp.,  72)  recog- 
nizes the  principle  of  the  application.  The 
court  there  decided,  that  a  man  released  for 
want  of  being  charged  in  execution  might  be 
taken  on  a  ca.  sa.  in  an  action  founded  on  the 
judgment,  in  the  original  suit.  It  is  to  be  in- 
ferred, therefore,  that  on  an  execution  sued 
out  in  the  original  suit,  he  could  not  be  taken. 

Messrs. Benson  andfiiggs,  contra.  The  English 
courts  proceed  on  this  maxim:  "once  super- 
sedeable,  and  ever  supersedeable."  This  we 
have  departed  from,  and  overruled  in  Brant- 
ingJiam's  case.  Besides,  the  whole  object  of 
the  motion  is  to  prevent  us  from  doing  that 
directly,  which  they  allow  we  can  accomplish 
circuitously;  for  they  say,  we  must  proceed  by 
<COL.  AND  CAINES. 


action  on  the.  judgment,  and  have  execution 
in  the  second  suit.  This  is  contrary  to  the 
settled  principle,  that  circuity  and  multipli- 
city of  actions  are  abhorred  in  the  law. 

Mr.  Henry,  in  reply.  The  doctrine  contended 
for  by  the  plaintiff  would,  go  to  shut  out, 
from  a  defendant  any  right  of  set-off.  Sup- 
pose a  man  discharged;  in  the  course  of  a  fair 
dealing,  he,  by  services,  or  other  means,  pays  • 
a  part  of  the  debt;  if  he  is  to  be  taken 
*on  the  original  judgment,  he  is  ex-  [*32O 
eluded  from  showing,  perhaps,  a  full  satisfac- 
tion, till  he  applies  to  the  court  for  relief,  and 
during  that  period  is  deprived  of  his  liberty. 

Per  Curiam.  In  Brantingharn's  case  we  cer- 
tainly did  depart  from  the  English  practice. 
We  there  allowed,  on  a  rule  to  show  cause,  the 
being  charged  in  execution  subsequent  to  no- 
tice of  the  application,  to  be  shown  as  a  rea- 
son for  denying  the  supersedeas.  The  court 
proceeded  there  on  the  idea  that  the  statute 
gave  the  plaintiff  a  right  of  electing  to  have 
execution  against  the  body,  or  the  goods;  and 
that  he  was  not  obliged  to  manifest  this  election 
till  called  on.  The  present  case  is  not  of  that 
description;  the  statute  was  only  to  prevent 
double  executions.  The  plaintiff  has  elected 
to  relinquish  the  person  of  his  debtor,  who 
having  been  once  actually  superseded,  must 
continue  so,  and  the  plaintiff  shall  never  have 
liberty  again  to  resort  to  his  first  judgment. 

Let  the  defendant,  therefore,  be  discharged,  but 
without  costs. 


COLES,  TITFORD  AND  BROOKS 

v. 
JAMES  THOMPSON. 

Nonsuit — Trial  not  had — Commission  —  Due 
Diligence. 

BOYD    moved    for    judgment,    as    in   case 
of  nonsuit,  for  not  going  to  trial,  on  an 
affidavit  that  the  cause  was  at    issue  in   Sep- 
tember,   1802,  noticed    for    trial    in    Novem- 
ber following,  and  has  not  since  been  noticed. 
An  affidavit,  contra,  was  read  on  the  part 
of  the  plaintiff,  stating,  that  on  the  9th  of  last 
March,  a  commission  issued  to  London  to  ex- 
amine witnesses  on  his  *behalf,  which  [*33O 
had  not  been  returned,  but  was  daily  expected. 

Per  Curiam.  In  the  cause  of  Juhel  v.  The 
United  Insurance  Company,  October  Term, 
1801,  we  held,  that  three  months  was  a  suf- 
ficient time  for  executing  and  returning  a  com- 
mission arrived  in  London.  In  Miller  and 
Graham  v.  De  Peyster  and  Charlton,  January 
Term,  1803,  it  was  decided  that  where  a  plaint- 
iff has  delayed  his  own  cause  by  a  commission, 
and  it  does  not  appear  that  due  diligence  has 
been  used,  the  defendant  may  apply  for  a  rule 
for  nonsuit,  and  compel  the  plaintiff  to  stipu- 
late or  be  nonsuited,  as  if  no  commission  had 
issued.  In  the  present  case  it  does  not  appear 
that  the  plaintiff  has  used  due  diligence  in 
causing  his  commission  to  be  executed,  as 
eight  months  elapsed  between  suing  it  out  and 
the  sittings. 

Unless,  therefore,  lie  stipulate,  the  motion  must 
be  (granted. 

157 


330 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1804 


SHUTER  v.  RICHARD  S.  HALLETT. 

Case  made — Payment  of  Debt  into  Court. 

A  VERDICT  had  been  obtained,  in  this 
JJL  cause,  against  the  defendant,  on  which  a 
case  had  been  made,  and  a  judge's  certificate 
of  probable  cause  duly  granted. 

Mr.  D.  A.  Ogden,  on  an  affidavit  by  the  plaint- 
iff stating  his  fear  of  losing  his  debt,  from  the 
circumstances  of  the  defendant,  moved  to  have 
the  amount  recovered  brought  into  court. 

Mr.  Pendkton,  contra,  cited  Hallet  v.  Cotton 
(ante,  p.  150). 

331*]  *Per  Curiam.  The  practice  of  the 
court  has  never  been  according  to  the  appli- 
cation. It  would  be  often  oppressive,  and 
amount  to  a  denial  of  right,  as  the  defendant 
may  not  be  able  to  comply  with  the  condition, 
yet  have  a  complete  defence  to  the  suit. 


JOHN  R.  LIVINGSTON 

v. 
WILLIAM  ROGERS. 

1.  Arrest  of  Judgment — Consideration — Record. 
2.  New  Trial — Newly  Discovered  Evidence.  3. 
Amendment, — Of  Declaration — Increasing  De- 
mand. 

Citationa-1  Esp.  Di.,  132;  Bull.  N.  P.,  146,  147; 
Hob,  88 ;  1  Bac.  Abr.,  287,  n.,  In  margin  (new  ed.) ;  Cro. 
Eliz.,  137;  2  Latch.,  150;  3  Burn,  and  East.,  653; 
Hut  ton,  84 ;  T.  Rav.,  260 ;  2  Leon.,  Ill ;  1  Saund.  264. 
Note  1.— 1  Fonb.  336 ;  Hob.,  106 ;  2  Stra.  933 ;  3  Burr., 
1671;  3  Mor.  Va.  Me.  142;  2  Rich.  C.  P.,  73;  3  Wile. 
185,  n.;  2  Saund.,  101 ;  1  Durn.  and  East.,  783 ;  4  Bro.  Pa. 
Cas.,  288 ;  1  Llll.  Ent.,  243 ;  Yelv.,  76 ;  Cro.  Jac.,  206 ; 

1  Sulk.,  403;  1  Ld.  Raym.,  10;  Carth.,  319 ;  Skin.,  514 ; 

2  H.  Black.,  211;  1  Roll.  Abr.,  200,  pi.  27;  Bac.  Abr., 
tit.  Amendment  (D),  lib.  tit.  Juries,  J.;  2  Latch.,  194; 
Hob.,  76 ;  7  Durn.  and  East.,  56. 

THIS  cause  came  before  the  court  on  three 
several  motions,  which  the  counsel  upon 
the  argument  agreed  should  be  taken  and  con- 
sidered together.  The  first  was  a  motion  by 
the  defendant  in  arrest  of  judgment.  The 
second,  one  by  the  defendant  also,  for  a  new 
trial  on  the  ground  of  a  discovery  of  evidence. 
The  third,  by  the  plaintiff,  for  leave  to  amend 
his  declaration,  by  increasing  the  damages 
laid,  so  as  to  cover  the  extent,  of  his  demand. 

The  decision  of  the  court  was  confined  to 
only  the  first  and  third  motions ;  and,  as  it 
embraces  all  the  points  relied  on  by  the  coun- 
sel, it  is  unnecessary  to  give  the  arguments 
used. 

In  support  of  the  motion  in  arrest  they  re- 
lied on  two  reasons : 

1st.  That  the  several  a#sumptiits  in  the  three 
first  counts  of  the  declaration  (which  was  on  a 
stock  contract)  were  void,  for  want  of  con- 
sideration. 

2d.  That  there  was  no  record  in  the  office, 
to  warrant  the  circuit  record,  by  virtue  of 
which  the  trial  was  had. 

332*]  *The  counts  complained  of  stated 
the  agreement  to  deliver  and  receive  the  stock, 
and  that  in  consideration  the  plaintiff  had,  at 
the  defendant's  request,  promised  to  perform 
his  part,  the  defendant  afterwards,  to  wit,  on 
the  same  day  promised,  &c. 
158 


Per  Curiam,  delivered  by  KENT,  J.  This  is 
a  case  of  mutual  promises,  where  the  one  is 
intended  to  be  the  consideration  for  the  other. 
It  is  a  well  settled  rule  that  in  such  cases  the 
promises  must  be  stated  to  have  been  made  at 
the  same  time.1  Otherwise,  the  one  ante- 
cedently made  will  be  without  consideration, 
and  consequently  not  sufficient  to  support  the 
other.  The  question  here  is,  whether  a  valid 
promise  is  laid,  on  the  part  of  the  plaintiff,  so 
as  to  form  a  consideration  for  that  on  the  part 
of  the  defendant.  The  case  in  Hobart  uses 
the  strong  language,  that  the  promises  must  be 
at  one  instant,  or  they  are  nude  pacts.  It  was 
once  held,  in  Hmrlett's  case  (Latch.,  150),  that 
to  lay  the  defendant's  promise  afterwards 
on  the  same  day,  was  sufficient ;  because  the 
court  would  not  allow  of  any  division  in  a  day. 
But  in  other  respects  that  case  is  not  altogether 
applicable.  There  the  defendant's  promise 
was  in  consideration  of  an  antecedent  sale  and 
delivery  in  part ;  and  the  point  advanced,  of 
not  allowing  a  division  in  a  day,  is  repugnant 
to  the  case  of  Cooke  v.  Of  ley  (3  D.  &  E.,  653). 
It  was  in  that  decided  that  if  one  party  has  till 
a  different  time  of  the  same  day  to  assent  to 
the  agreement,  the  other  party  is  not  held  to 
his  prior  promise,  and  the  promises  are  nitda 
pacta.  It  is  clear,  therefore,  from  this  last 
decision,  and  from  the  reason  of  the  thing, 
that  mutual  promises,  where  one  is  the  con- 
sideration of  the  other,  must  be  made  not  only 
on  the  same  day,  *but  at  the  same  [*333 
time ;  they  must  be  concurrent  engagements. 
The  plaintiff's  promise  is  here  stated  to  have 
been  made  at  the  request  of  the  defendant.  If, 
instead  of  a  naked  promise,  the  plaintiff  had, 
at  the  defendant's  request,  done  an  act  which 
was  either  a  damage  to  himself,  or  a  benefit  to 
the  defendant,  it  would  have  been  sufficient  to 
have  supported  the  defendant's  promise.  An 
as»umpsit  founded  on  a  past  consideration  of 
beneficial  service  rendered  to  the  defendant  at 
his  request,  is  good.  Such  are  the  cases  of 
Franklin  v.  Bradett  (Hutton,  84),  Church  v. 
Church  (T.  Ray.,  260),  and  Stile  v.  Smith  (2 
Leon.,  Ill;  Vide  also  Cro.  Eliz.  282).  The 
reason  that_  a  past  consideration,  beneficial  to 
the  defendant,  must  be  laid  to  have  been  done 
upon  request  is,  that  it  is  not  reasonable  that 
one  man  should  do  another  a  kindness,  and 
then  charge  him  with  a  recompense.  This 
would  be  obliging  him,  whether  he  would  or 
not,  and  bringing  him  under  an  obligation 
without  his  concurrence.  In  many  cases  a 
request2  may  be  implied  from  the  beneficial 
nature  of  the  consideration,  and  the  circum- 
stances of  the  transaction.  But  in  the  present 
case  the  plaintiff's  promise  being  laid  to  have 
been  made  upon  request,  gives  it  no  validity 
from  that  circumstance;  for  the  request  alone 
creates  not,  of  itself,  any  consideration.  In 
addition  to  the  request,  there  must  be  some- 
thing made  or  done  between  the  parties,  bene- 
ficial to  the  one,  or  onerous  to  the  other. 
There  must  either  be  a  consideration  executed, 
or  executory.  Even  one  executed  will  do  if 

1.— Esp.  Di.  132,  Bull.  N.  P.  146,147;  Hob.,  88;  1 
I  Bac.  Abr.,  267,  n.,  in  margin,  new  edition.  Cro. 
Eliz.,  137 ;  Kirby  v.  Cole. 

2.— See  1  Saund.,264,  note  1  by  Williams,  Serjt.  who 
has  collected  the  law  on  the  subject  of  assumptions 
laid  upon  request.  See  also  1  Fonb.,  326  and  Hob., 
106. 

COL.  AND  CAIKES. 


1804 


JOHN  R.  LIVINGSTON  v.  WILLIAM  ROGERS. 


333 


laid  to  have  been  done  upon  request.  The 
plaintiff's  promise  in  the  present  case  can  be 
valid  only  because  made  in  consideration  of 
the  defendant's  promise;  and  if  the  latter  was 
not  made  at  the  same  time,  but  at  a  subsequent 
334*]  period,  the  *plaintiff's  promise  was 
without  consideration  and  void.  I  am  of 
opinion  this  is  the  just  and  necessary  con- 
clusion in  this  case;  for  the  promises  are  not 
laid  as  concurrent,  but  as  made  at  different 
times.  The  case  of  Hayes  v.  Warren  (2  Stra., 
933),  I  regard  as  perfectly  in  point.  That  was 
an  action  on  the  case  upon  promises,  and  after 
judgment  by  default  and  entire  damages,  it 
was  alleged,  in  error  from  the  Common  Pleas 
to  the  King's  Bench,  that  on  the  fourth  count, 
which  was  for  work  and  labor  done,  the  con- 
sideration was  laid  as  past  and  executed,  and 
not  to  have  been  done  upon  request.  Although 
the  work  and  promise  were  both  laid  on  the 
same  day,  it  was  held  that  it  must  be  taken  to 
be  a  past  consideration,  as  it  was  stated  that 
"postea"  he  promised;  and  the  judgment  was 
reversed.  The  work  and  labor  here  were 
beneficial  to  the  defendant,  but  not  being  laid 
to  have  been  done  upon  request,  the  court 
would  not  declare  it  so.  They  seemed,  how- 
ever, to  doubt  whether  a  request  might  not  be 
inferred  from  some  other  expressions  in  the 
count,  and  rather  intimated,  that,  had  the 
judgment  been  after  verdict,  the  request 
might  have  been  inferred.  But  there  appeared 
to  be  no  doubt  that  the  defendant's  promise, 
by  being  laid  as  being  made  afterwards, 
although  upon  the  same  day,  was  to  be  deemed 
subsequent,  so  as  to  render  the  plaintiff's  act, 
a  past  and  executed  consideration.  In  a  case 
in  Burrows  (Pillanx  v.  Van  Mierop,  3  Burr., 
1671),  this  decision  is  pronounced  by  Wilrnot, 
«/.,  to  be  absurd.  It  was  not,  however,  on  the 

f  round  that  the  consideration  was  not  justly 
eemed  as  executed,  but  because,  in  his  opin- 
ion, according  to  the  cases  I  have  mentioned, 
a  past  beneficial  consideration,  with  circum- 
stances to  imply  a  request,  was  sufficient  to 
support  the  promise.  The  case,  therefore, 
335*]  *for  the  purpose  that  I  cite  it,  stands 
unimpeached,  and  is  conclusive  on  the  ques- 
tion. If  we  consult  the  precedents  of  declara- 
tions upon  mutual  promises  (3  Mor.  Va.  Me., 
142;  2  Rich.  C.  P.,  73),  they  uniformly  state 
the  promises  to  be  concurrent;  that  when  the 
plaintiff  had  promised,  the  defendant  in  con- 
sideration thereof,  then  and  there,  assumed 
upon  himself.  From  hence  I  conclude  that 
the  promises  in  the  three  first  counts  of  the 
declaration,  are  not  laid  as  a  sufficient  considera- 
tion for  each  other ;  .  because  they  are  not 
stated  to  have  been  made  concurrently,  or  at 
the  same  time,  but  at  different  times  of  the 
same  day.  According  to  the  decision  in 
Strange,  and  according  to  common  under- 
standing, the  meanings  of  the  expressions 
"afterwards"  and  "at  the  same  time,"  are 
totally  distinct.  The  last  count  is  good,  but 
the  damages  being  entire  (3  Wils.,  185;  Cowp., 
276),  the  judgment  must  be  arrested.  The 
case  of  Crosby  v.  Adam*  and  Bellamy,  decided 
in  this  court  in  July  Term,  J795,  and  after- 
wards reversed  upon  error,  is  stated  also  to  be 
in  point.  The  counts  in  that  cause  were  pre- 
cisely the  same,  as  to  laying  the  time  of  the 
mutual  promises,  and  if  the  Court  of  Errors 
COL.  AND  CAINES. 


went  upon  the  same  objection  that  I  have 
been  considering,  as  was  suggested  in  the 
argument1  of  this  cause,  that  decision  is  suf- 
ficient to  uphold  this  opinion.  Though  it  is 
not  now  necessary  to  consider  the  want  of  a 
record  authorizing  the  trial,  which  was  urged 
as  another  ground  for  arresting  the  judgment; 
yet,  as  connected  with  the  other,  it  may  not 
be  inexpedient  to  notice  it.  It  appears,  "from 
the  record,  that  on  the  first  trial  a  verdict  was 
given  for  the  defendant,  and  an  exception 
taken  to  the  opinion  of  the  judge.  That  upon 
the  removal  of  the  cause  into  the  Court  of 
Errors,  the  judgment  of  this  court  in  favor  of 
the  defendant  *was  reversed,  a  venire  [*336 
de  novo  ordered,  and  the  record  was  remitted 
back  to  this  court.  This  order  of  the  court 
above  was  correct.  Not  having  the  record  be- 
fore them,  but  only  a  transcript  of  it,  they  could 
not  of  themselves  award  a  venire  de  novo,  but 
agreeably  to  the  English  precedents,  they  very 
properly  adjudged  that  the  court  below  should 
make  such  an  award.  (2  Saund.,  101.  v. ;  1  D. 
&  E.,  783;  4  Bro.  Pa.  Ca.,  288;  1  Lill.  Ent., 
243;  Yelv.,  76;  Cro.  Jac.,  206;  1  Salk.,  403;  1 
Ld.  Ray.,  10;  Carth.,  319;  Skin.,  514;  2  H. 
Black.,  211.)  This  is  all  that  appears  before 
us.  This  court  never  has  made  an  award  of 
a  venire  de  novo  in  pursuance  of  the  direction 
of  the  Court  of  Errors.  The  second  trial  was 
consequently  without  any  authority,  and  in 
my  opinion  altogether  null  and  void.  There 
certainly  never  was  an  instance  of  a  new  trial 
had  without  any  award  by  the  court  for  the 
same,  and  without  any  record  of  such  award, 
and  such  new  trial  held  good,  merely  in  con- 
sequence of  the  appearance  of  the  defendant. 
A  defect  of  record  is  moveable  in  arrest  of 
judgment  (1  Roll.  Abr.,  -200.  pi.  27;  Bac. 
Abr.,  tit.  Amendment.  (D.)  4.  lib.  tit.  Juries. 
J.),  and  is  a  deficiency  that  is  not  in  any  shape 
amendable.  Irregularities  in  the  contents,  or 
in  the  execution  of  jury  process  are  amend- 
able. The  process  is  amendable  by  the  roll, 
and  the  circuit  record  is  amendable  by  the 
issue  roll.  So  mere  continuances  may  be  en- 
tered after  judgment,  but  no  case  ever  came 
up  to  the  present.  In  this  there  was  a  trial 
without  any  award  for  it  whatsoever,  either 
upon  the  record  or  the  minutes  of  the  court. 
The  circuit  judge  had  no  authority  to  try  a 
second  time  the  matter  in  issue  on  the  issue 
roll;  without  an  award  of  a  venire  de  novo  by 
the  court.  There  are  cases  where  a  trial  has. 
been  held  void,  because  the  venire  was  not 
warranted  by  the  roll,  and  the  cause  was  tried 
by  a  different  jury  than  that  which  the  record 
directed.  (Latch.,  194;  Hob.,  76.)  To  hold 
this  amendable  in  the  present  case,  would  be 
unprecedented,  and  in  my  *opinion  [*337 
would  tend  to  the  abolition  of  all  regularity, 
form  and  order  in  our  practice  and  judicial 
proceedings.  I  hold  it  essential,  that  it  should 
be  made  to  appear,  that  previous  to  the  last 
trial  there  was  an  order  for  a  venire  de  novo, 
the  Court  of  Errors  not  having  of  themselves 
made  such  an  order,  and  not  having  the 
authority  to  do  it.  As  then  the  second  trial 
was  without  any  award  of  a  venire,  it  was  an 
absolute  nullity,  and  the  judgment  must  be 
arrested,  unless  the  party  choose  to  move  to 

1.— By  Benson,  who  was  at  that  time  on  the  bench 


331 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1804 


award  a  new  venire.  As  there  is  one  good 
count  in  the  declaration,  the  plaintiff  may,  if 
he  choose,  on  the  first  ground,  sue  out  a 
venire  de  now,  and  may  also  amend  his  three 
first  counts  by  striking  out  the  words  "after- 
wards, to  wit"  (7  D.  &  E.,  56),  being  the 
ground  on  which  the  judgment  ought  to  be 
arrested.  This,  however,  must  be  on  payment 
of  costs  since  declaring.  On  the  point  of 
amending  by  enlargement  of  the  damages  laid, 
the  court"  is  divided,  consequently  the  plaint- 
iff in  this  respect  takes  nothing  by  his  mo- 
tion. 


PETER  DELAMATER 

v. 
JAMES  BORLAND. 

Certiorari—  Variance, — Excessive  Judgment. 

IN  error  on  a  certiomri  from  a  justice's  court. 
The  declaration  was  for  ten  dollars,  de- 
posited in  the  hands  of  the  defendant  below  as 
a  stake  on  a  wager.  The  demand  at  the  trial 
was  for  $25  due  on  a  note,  on  which  five  had 
been  paid,  and  the  judgment  was  for  fifteen 
dollars. 

Per  Curiam.  It  appears  that  the  plaintiff 
below  declared  for  one  thing,  and  gave  evi- 
dence of  another  totally  variant,  To  this  the 
338*]  defendant  made  an  objection,  *which 
was  overruled.  In  the  next  place,  the  declara- 
tion is  for  ten  dollars,  and  the  judgment  for 
fifteen.  Both  errors  are  fatal,  and  there  must 
be  a  reversal,  with  costs.2 


knowledgement  from  the  attorney  of  the 
plaintiff  of  service  of  notice  of  the  motion, 
but  this  was  not  accompanied  with  any  affi- 
davit of  the  importance  or  intricacy  of  the 
cause. 

*Per  Curiam.  The  court  ought  to  [*34O 
be  satisfied  that  the  cause  is  either  intricate 
or  important,  and  that  by  affidavit.  (Vide 
Spencer  v.  Sampson,  ante,  p.  311.) 

N.  B.  The  court  seemed  inclined  against 
the  granting  of  struck  juries,  as  a  matter  of 
course,  on  a  mere  formal  affidavit. 


339*] 


*>!AY  TERM,  1804. 


JOHN  R.  LIVINGSTON 

v. 

THE    COLUMBIAN    INSURANCE    COM- 
PANY. 

Struck  Jury  —  Important  or  Intricate   Cause  — 


Citation—  Ante.,  311. 

BOGERT,  in  behalf  of  the  defendants,  moved 
for  a  struck  jury  in  this  cause,  on  an  ac- 

1.—  Consisting  of  only  Kent  and  Thompson,  Jus- 
tice*, no  others  giving  any  opinion. 

2.—  The  multiplicity  01  cases  from  the  justices' 
courts  will  excuse  the  insertion  of  the  following 
determination,  by  which  it  was  decided  that  they 
have  no  jurisdiction  under  the  Joint  Debtor  Act. 

JAN  CAB  Y  TERM,  1799. 


JOSIAH  JONES  AND  JOSIAH  CRAWFORD 

». 
DAVID  REID. 

Justice*'  Court— Jurisdiction— Joint  Debtor  Act. 

Per  Curiam.  It  is  clear  and  salutary  principle, 
that  inferior  jurisdictions,  not  proceeding  accord- 
ing to  the  course  of  the  common  law,  are  confined 

160 


SALAH  STRONG  ET  AL. 

v. 
ZEBULON  SMITH. 

Trespass — Before  Justice — Plea  of  Title-*- Gen- 
eral Issue — Costs — 1  Rev.  Laws,  491 — 1  Rev. 
Laics,  494. 

THIS  was  an  action  of  trespass  commenced 
before  a  justice  of  the  peace  in  the  County 
of  Suffolk,  under  the  "act  for  the  more 
speedy  recovery  of  debts  to  the  value  of 
twenty-five  dollars."  (1  Rice  Laws,  491.)  The 
defendant  justified  under  a  plea  of  title.  Upon 
this,  proceedings  were  stayed  before  the  jus- 
tice pursuant  to  the  tenth  section  of  the  act 
(Ibid.,  494),  and  the  action  prosecuted  before 
the  Court  of  Common  Pleas;  from  thence  the 
defendant  removed  it  by  habeas  corpus  into 
this  court,  where  he  pleaded,  1st.  The  general 
issue.  2d.  That  the  closes  mentioned  in  the 
declaration  were  the  freehold  of  the  trustees 
of  the  freeholders  and  commonalty  of  the  town 
of  Huntington,  and  that  by  their  command 
and  direction,  he  entered.  3d.  That  the  trus- 
tees of  the  freeholders  of  the  town  of  Hunt- 
ington were  seized  of  the  premises,  and 
granted  him  a  lease  for  a  year,  by  virtue  of 
which  he  entered  and  was  possessed  until  the 
plaintiffs,  by  colour  of  title,  turned  him  out, 
on  whom  he  again  entered,  and  committed 
the  trespasses  complained  of.  A  suggestion 
of  these  circumstances,  according  to  an  inti- 
mation on  a  former  day  given  by  the  court, 
having  been  entered  *on  the  record,  [*341 
an  application  was  now  made  to  compel  the 
defendant  to  strike  out  his  plea  of  the  general 
issue,  and  rely  on  his  title  only. 

Mr.  Riggs  for  the  plaintiff. 

Mr.  Sfindford  for  the  defendant. 

strictly  to  the  authority  given  them.  They  can  take 
nothing  by  implication,  but  must  show  the  power 
expressly  given  them  in  every  instance. 

The  sound  rule  of  construction,  in  respect  to  jus- 
tices' courts,  is  accordingly  this :  to  be  literal  in 
reviewing  their  proceedings  as  far  as  respects  regu- 
larity and  form,  and  strict  in  holding  them  to  the 
exact  limits  of  jurisdiction  prescribed  to  them  by 
the  statute. 

To  apply  these  principles  to  the  present  case : 
The  act  making  joint  debtors  answerable  to  their 
creditors  separately,  and  giving  a  new  mode  of  pro- 
ceeding, is  posterior  to  the  act  granting  civil  juris- 
diction to  justices  of  the  peace,  and  makes  no 
mention  of  them.  It  directs  that  process  shall  issue 
against  the  joint  debtors  in  the  manner  then  in  use, 
nnd  if  either  be;  taken  and  brought  into  court,  he 
shall  answer.  This  act  contemplates,  in  every  in- 
stance, a  compulsory  process  on  which  the  defend- 
ant is  taken  and  brought  into  court  and  until  that 
be  done  the  court  cannot  proceed  in  the  cause ; 

COL.  AND  CAINES. 


1804 


CORNELIUS  J.  ROOSEVELT  v.  DANIEL  KEMPER. 


341 


Per  Curiam.  The  construction  of  the  act 
no  doubt  is  that  when  a  defendant,  sued  for  a 
trespass  before  a  justice,  relies  on  his  title,  he 
admits  the  trespass.  But  lest  the  title  should 
be  in  a  third  person,  the  act  gives  him  a  right 
to  show  that  also.  Either  one  or  the  other 
acknowledges  the  trespass.  To  this,  as  the 
whole  matter  appears  on  the  record,  it  would 
not  be  permitted  the  defendant  on  the  trial  of 
nisiprius  to  say  the  contrary,  nor  would  the 
plaintiff  be  called  on  to  prove  the  trespass 
done.  The  general  issue,  then,  is  perfectly 
nugatory,  and  must  be  struck  out,  but  not 
with  costs. 

SPENCER,  J.,  dissentient. 


CORNELIUS  J.  ROOSEVELT 

v. 
DANIEL  KEMPER. 

Inquest — Affidavit  of  Merits. 

rpHE  plaintiff  had  in  this  cause  taken  an 
JL  inquest  at  the  last  circuit,  the  judge  lay- 
ing it  down  as  a  general  rule  that  any  party 
might  take  an  inquest,  but  at  his  peril. 

Mr.  Harwon  moved  to  set  aside  the  inquest 
on  a  simple  affidavit  of  merits. 

J342*]  *Per  Curiam.  Whenever  an  inquest 
is  taken,  it  is  at  the  risk  of  the  plaintiff,  and 
on  such  an  affidavit  as  the  present,  must  set 
aside,  with  costs. 

N.  B.  The  court  seemed  to  intimate  that 
counter  depositions  of  a  want  of  merits  could 
not  be  received,  as  it  would  be  trying  a  cause 
on  affidavits. 


FREDERICK  DEPEYSTER 
WILLETT'  WARNE. 

Default — Judgment — Notice  of  Retainer — Stipu- 
lation not  to  me  for  False  Imprisonment. 

HARISON  moved  to  set  aside  the  default, 
interlocutory  judgment,  and  all  subse- 
quent proceedings,  on  affidavits  of  the  defend- 
ant's attorney  and  his  clerk,  stating  notice  of 
retainer  served  at  the  office  of  the  opposite 
attorney,  which  was  acknowledged  to  have 
been  received  by  a  person  then  in  the  office  of 
the  plaintiff's  attorney,  and  acting  either  as 
clerk,  agent  or  partner,  and  also  setting  forth 
service  of  notice  of  special  bail  having  been 
filed,  an  entry  of  which,  and  of  service  of  re- 
tainer, was  made  in  the  register  of  the  depo- 
nent. 


Mr.  Evertson  opposed  the  application  on  an 
affidavit  made  by  himself,  stating  the  debt  to  be 
on  a  promissory  note,  in  which  there  was  no 
defence,  and  that  if  the  defendant  could  make 
any,  he  had  several  times  offered  to  give  up 
the  judgment.  That  the  person  mentioned  in 
the  affidavits  on  behalf  of  the  defendant  as 
being  a  clerk,  agent,  or  partner,  was  neither 
the  one  nor  the  other;  that  neither  the  defend- 
ant nor  any  of  the  clerks  knew  of  any  person 
being  retained  as  an  attorney  for  the  defend- 
ant, though  in  the  register  *of  the  de-  [*343 
ponent,  was  entered  a  receipt  of  a  service  of 
notice  of  bail.  That  the  defendant  was  in 
execution,  and  an  insolvent.  From  these  cir- 
cumstances, and  because  the  defendant  had 
not  sworn  to  merits,  it  was  contended  that  the 
default  and  proceedings  ought  to  stand. 

Per  Curiam.  There  is  strong  reason  to  be- 
lieve that  notice  of  retainer  was  duly  served, 
and  though  no  merits  are  sworn  to,  we  cannot 
depart  from  our  rules.  Let  the  default,  judg- 
ment, and  all  subsequent  proceedings  be  set 
aside,  with  costs;  but  on  condition  that  the 
defendant  does  not  bring  any  action  for  false 
imprisonment. 


VALENTINE  BAKER   AND    GERARD    S. 
SLOANE 

v. 

HENRY    SLEIGHT,    Esq.,    Sheriff    of    the 
County  of  Ulster. 

1.  Change  of  Venue — Transitory  Suit. 

2.  Idem — Local  Influence  of  SJieriff. 

T?VERTSON,  on  an  affidavit  not  specifying 
-CJ  the  ground  of  action,  moved  to  change 
the  venue  from  the  County  of  Dutchess  to  that 
of  Ulster. 

Mr.  Hopkins  opposed  it  on  a  counter  affidavit, 
stating  a  belief,  that  in  consequence  of  the  in- 
fluence the  defendant  possessed  in  Ulster,  from 
his  office,  a  fair  and  impartial  trial  could  not 
be  had  there.  He  insisted  also  on  the  defect- 
iveness  of  the  plaintiff's  affidavit,  in  not  set- 
ting forth  the  ground  of  action,  and  that  it 
ought,  therefore,  to  be  presumed,  it  was  not  a 
transitory  suit. 

Per  Curiam.  The  court  cannot  intend  that 
the  action  is  not  transitory,  it  ought  to  have 
been  shown  *by  the  defendant,  and  [*344 
the  influence  of  a  sheriff's  office,  never  can 
prevent  an  impartial  trial.  Take  your  rule. 


whereas,  the  ten  pound  act,  giving  civil  authority 
to  justices,  intends  only  a  summons  in  the  first  in- 
stance against  freeholders  and  inhabitants,  having 
families,  and  if  the  summons  was  personally  served 
and  the  defendant  does  not  appear,  the  justice  can- 
not compel  him,  but  is  to  proceed  and  try  the  cause 
without  his  either  being  taken  or  brought  into 
court.  The  joint  debtor  act,  accordingly,  gives  a 
power  and  jurisdiction  different  from  and  unknown 
to  the  ten  pound  act.  So  in  respect  to  executions 
the  joint  debtor  act  directs,  that  the  execution  shall 
be  against  all  the  debtors;  but  shall  not,  however, 
issue  against  the  body  or  sole  property  of  the  one 
not  taken  and  brought  into  court.  Whereas,  by  the 

€OL.  AND  CAINES.  N.  Y.  REP.,  BOOK  1. 


ten  pound  act,  execution  is  directed  to  go  against 
the  entire  goods  and  chattels  of  the  person  against 
whom  it  is  granted,  and  for  want  of  sufficient  goods 
of  such  person,  to  take  his  body.  Here  are  new 
powers  and  new  modes  of  proceeding,  applicable  to 
the  courts  of  common  law,  and  contrary  to  the  ex- 
press forms  and  directions  given  to  the  justices' 
courts,  and  in  which  no  mention  is  made  of  them. 

We  are,  therefore,  of  opinion,  that,  according  to 
the  settled  rules  of  interpretation,  justices  of  the 
peace  have  no  jurisdiction  in  the  case  of  joint 
debtors,  unless  both  are  duly  served  with  process, 
and,  therefore,  that  the  judgment  in  this  case  must 
be  reversed. 


11 


161 


344 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1804 


AARON  PELL  t>.  GEORGE  BUNKER. 
Commission — Not  returned  from  Europe — Trial. 

IN  this  cause  Mr.  Hawes  moved  to  vacate,  in 
part,  a  commission  sued  out  in  November 
last,  so  as  to  go  to  trial  notwithstanding,  at 
the  next  circuit. 

Mr.  D.  A.  Ogden  opposed  it  on  the  ground 
that  eight  months  had  not  elapsed  since  it  was 
issued,  and  relied  on  this  as  the  established 
practice,  in  cases  of  commissions  to  Europe. 

Per  Curiam.  Granting  the  motion  will  do 
no  injury;  the  time  may  or  may  not  elapse  be- 
fore the  cause  is  brought  on,  and  it  does  not 
prevent,  even  then,  the  showing  of  cause 
further  to  postpone  the  trial. 


COTES,  TITFORD  AND  BROOKES 

v. 
JAMES  THOMPSON. 

Nonsuit —  Under  Stipulation  to  Try — Lost  Com- 
mission found — New  Stipulation — Costs. 

THE  court  had  the  last  term  denied  a  motion 
for  judgment,  as  in  case  of  nonsuit  for 
not  proceeding  to  trial,  on  the  plaintiff's  stipu- 
lating to  try  at  the  last  sittings  for  the  city  and 
county  of  New  York,  nine  months  having 
elapsed  since  issuing  the  commission  in  the 
cause.  The  plaintiffs  not  having  proceeded 
agreeably  to  that  stipulation, 

Mr.  Boyd  moved  again  for  judgment  as  in 
case  of  nonsuit. 

345*]  *Mr.  Munroe,  contra,  read  an  affidavit 
stating  the  commission  to  have  been  mislaid 
by  the  defendant's  commissioner;  it  is  now 
found,  and  is  shortly  expected  to  be  returned. 

Per  Curiam.  Ike  motion  must  be  refused; 
but  the  plaintiff  must  pay  costs  and  stipulate 
anew. 


ANONYMOUS. 

Stipulation —  Costs. 

THE  court  intimated  that  when  a  stipulation 
is  offered,  before  notice  of  motion,  then 
costs  will  be  allowed  up  to  the  time  of  offer. 
When  after  notice,  and  before  actual  applica- 
tion, up  to  that  time.  But  when  not  till  the 
court  is  applied  to,  then  all  costs  must  be  paid. 


ANONYMOUS. 

Judgment — Frivolous  Demurrer — Notice  of  Ar- 
gument. 

IT  was  ruled  by  the  court,  that  to  take  the 
effect  of  a  motion  for  judgment  when  a 
frivolous  demurrer  is  put  in,  notice  of  bring- 
ing on  the  argument  must  be  given. 


THE   PRESIDENT  AND  DIRECTORS   OP 
THE  MANHATTAN  COMPANY 

v. 
STEPHEN  MILLER. 

Replication  —  Special  Plea  —  Counsel. 


S  was  an  action  on  a  promissory  note  in 
-L  which  the  plaintiff  had  duly  appeared  by 
attorney,  and  the  defendant  pleaded  a  judg- 
ment recovered.  To  this  the  plaintiffs  replied; 
but  in  their  replication  began,  "And  the  said 
president  and  directors  of  the  Manhattan 
*Company  say,"&c.,  without  mention-  [*34-O 
ing  by  attorney,  and  so  went  on  negativing 
the  whole  plea,  without  having  their  replica- 
tion signed  by  counsel,  concluding  to  the 
country,1  and  adding  the  similiter  on  which 
they  went  to  trial  and  took  an  inquest. 

Mr.  Woods,  on  an  affidavit  stating  these  facts, 
moved  to  set  the  inquest  aside  for  irregularity. 

Mr.  Bogert,  contra.  The  replication  is  in  the 
usual  form.  It  is  a  mere  negation  of  the  plea 
without  alleging  any  new  fact,  and  therefore 
not  a  special  pleading.  Besides,  the  name  of 
a  counsel  is  indorsed  on  the  back. 

Per  Curiam.  There  was  no  occasion  for  a 
counsel's  hand;  unquestionably  the  plea  is  not 
special.  If  it  was,  there  is  the  name  of  coun- 
sel indorsed.  Besides,  had  it  been  so,  it 
ought  not  have  been  retained.  Let  the  de- 
fendant take  nothing  by  his  motion,  and  pay 
the  costs  of  resisting  the  application. 


SIMONDS'  v.  CATLIN. 

Judicial  Sales —  Validity — Irregularity — Ft.  fa. 
in  Another  County  with  Testatum  —  Fi.  fa. 
Tested  out  of  Term — No  Sheriff's  Deed. 

Citations— Black.  Rep.,  897 ;  3  Burn,  and  East,  388  ; 
Barnes,  209 ;  2  Salk.,  700 ;  7  Mod.,  30 ;  Latch.,  11 ;  T. 
Jones,  150 ;  1  Stra.,  137, 138 ;  2  Rev.  Laws,  283. 

THIS  was  an  ejectment  for  lands  in  the 
County  of  Onondaga. 

Upon  the  trial  the  plaintiff  produced  the  ex- 
emplification of  a  judgment  of  this  court,  in 
the  cause  of  Levi  Barker  against  the  defend- 
ant for  debt,  and  entered  of  the  term  of  July, 
1800,  in  which  cause  the  venue  was  laid  in 
Albany.  He  further  produced  the  exemplifi- 
cation of  a  fi.  fa.  directed  to  the  sheriff  of 
*Onondaga,  and  tested  the  9th  day  of  [*347 
August,  1800,  commanding  him  to  levy  the 
debt  and  costs  of  the  above  judgment,  and 
which  execution  contained  an  indorsement  of 
being  received  by  the  sheriff  on  the  4th  of  Oc- 
tober, 1800.  It  also  contained  a  return  an- 
nexed, in  the  words  following,  viz: 

"I,  Levi  Sherman,  under  sheriff  to  Elnathan 
Beach,  Esq.,  late  sheriff,  deceased,  do,  in  pursu- 
ance of  the  law,  and  in  consequence  of  the  death 
of  the  sheriff,  return,  that  the  said  sheriff  sold  at 
vendue,  all  that  farm  or  tract  of  land  in  the 
town  of  Pompey,  in  the  said  county,  in  the 
occupancy  of  the  defendant,  some  time  in 
January,  1801,  and  before  the  15th,  to  one 

1.— See  Sandford  v.  Rogrere,  2  Wils.,  113 ;  2  Tidd's 
Prac.,  673.  See  also  Esplin  v.  Smallet,  Say.,  208. 

COL.  AND  CAINES. 


1804 


SIMONDS  v.  CATLIN. 


347 


Ebenezer  Butler,  Junior,  he  being  the  highest 
bidder,  for  26  dollars.  That  the  said  Butler 
did  not  pay  the  money  for  the  same;  and  by 
order  of  the  said  sheriff,  I  did,  on  the  22d  day 
of  January  aforesaid,  expose  the  said  land  to 
sale  again,  and  that  Joseph  Simonds  pur- 
chased the  same  for  50  dollars,  he  being  the 
highest  bidder.  That  the  said  sheriff  died  on 
the  evening  after  the  vendue  last  aforesaid, 
and  before  the  said  writ  was  returned.  And 
I,  the  said  under  sheriff,  do  make  this  return, 
this  23d  January,  1801.  LEVI  SHERMAN." 

The  plaintiff  further  proved  that  the  defend- 
ant, at  the  time  of  the  sale,  and  at  the  com- 
mencement of  the  suit,  was  in  possession  of 
the  premises.  The  defendant  then  moved  for  a 
nonsuit,  and  was  overruled.  He  then  offered 
to  prove  that  the  sale  to  E.  Butler,  Junior,  was 
not  a  ready  money  sale,  but  at  a  credit,  and  that 
Butler  had  always  been  ready  to  pay,  and  that 
348*]  the  second  *sale  was  made  at  the 
solicitation  of  the  lessor  of  the  plaintiff,  who 
was  the  attorney  in  the  original  cause,  without 
any  notice  by  advertisement,  and  on  his  in- 
demnity to  the  sheriff,  who  was  then  on  his 
death-bed,  and  incompetent  to  attend  to  his 
business,  and  that  the  lessor  of  the  plaintiff 
knew  of  the  previous  sale.  The  defendant 
further  offered  to  prove  that  the  indorsement 
on  the  execution  was  made  in  May,  1802,  at 
the  request  of  the  said  lessor;  but  the  testi- 
mony was  overruled.  The  defendant  then  of- 
fered in  evidence  a  deed  from  the  said  Elna- 
than  Beach  to  the  said  Butler,  for  the  prem- 
ises, in  pursuance  of  the  first  sale,  bearing  date 
the  7th  day  of  August,  1801,  and  to  which 
deed  was  annexed  a  certificate  of  proof  of  the 
same  before  a  master,  by  the  acknowledgement 
of  the  said  Levi  Sherman,  that  he  executed 
the  same  in  the  name  of  the  said  Beach,  and 
as  under  sheriff  to  the  same,  the  said  Elnathan 
being  dead,  which  evidence  was  likewise  over- 
ruled, and  a  verdict  taken  for  the  plaintiff. 

Upon  this  case  a  motion  was  made  to  set 
aside  the  verdict  for  these  reasons:  1.  That  a 
fi.  fa.  issuing  into  a  different  county  than  that 
in  which  the  venue  was  laid,  without  a  testatum 
is  void.  2.  That  the  fi.  fa.  bore  test  out  of 
term.  3.  That  there  is  no  deed  from  the 
sheriff  to  the  plaintiff.  4.  That  the  return  of 
the  sale  contains  evidence  of  a  void  sale.  5. 
That  the  evidence  offered  at  the  trial  ought  to 
have  been  received. 

Per  Curiam,  delivered  by  KENT,  J. 

The  two  first  objections  go  to  the  form  of  the 
execution, and  considering  the  circumstances  at- 
349*]  tending  this  case,  the  *plaintiff  ought, 
in  justice,  to  be  held  strictly  to  a  legal  title. 
He  was  the  attorney  who  sued  out  the  execu- 
tion, and  the  second  sale  was  made  on  short 
notice,  if  indeed  any  notice  was  given,  and  he 
himself  became  the  purchaser.  The  plaintiff 
is,  therefore,  properly  chargeable  with  notice 
of  every  irregularity  attending  the  execution. 
Prior  to  this  motion,  a  rule  was  granted  to 
amend  the/,  fa.  by  making  it  a  testatum,  but 
as  the  rule  was  granted  upon  the  express  con- 
dition of  being  without  prejudice  to  the  ob- 
jection to  be  raised  in  this  case,  and  which  wa 
then  pending  for  argument,  the  court  are  jus- 
tified in  putting  the  amendment  out  of  view. 
And  there  can  be  no  doubt  but  that  the./?,  fa. 
COL.  AND  CAINES. 


ought  to  be  set  aside  for  irregularity,  on  the 
ground  of  the  first  objection,  as  the  cases  of 
Allen  v.  Allen,  and  Brand  v.  Mears  (Black. 
Rep.,  697;  3  D.  &  E.,  388;  See  also  Barnes, 
209),  go  that  length  even  after  execution  exe- 
cuted. 

The  second  objection  to  this  fi.  fa.  that  it 
bears  test  out  of  term,  is  equally  well  taken. 
(2  Salk.,  700;  7  Mod.,  30,  Latch.  11;  T.  Jones, 
150;  1  Stra.,  137,  138.)  The  process  for  that 
reason  is  held  to  be  void,  and  the  party  suing 
it  out  cannot  take  advantage  of  it,  although  it 
may  justify  the  sheriff,  and  if  the  case  be 
within  the  reach  of  an  amendment,  yet  as  the 
amendment  must  always  be  a  matter  of  sound 
discretion,  I  should  not  be  inclined  to  grant  it 
in  the  present  case,  for  the  reasons  I  have  sug- 
gested. 

The  next  objection  goes  to  the  merits  of  the 
case,  and  is  founded  on  the  want  of  a  convey- 
ance from  the  sheriff.  This  is  a  question  of 
importance  and  difficulty.  It  has  been  attend- 
ed with  doubt  and  embarrassment  in  my  mind, 
but  I  have  come  to  the  opinion  *that  [*35O 
the  estate  of  a  defendant  cannot  pass  at  a 
sheriff's  sale  but  by  deed  or  note  in  writing,  to 
be  signed  by  the  sheriff,  as  the  party  or  agent 
who  passes  the  estate. 

The  act  directing  the  sale  of  real  estates  on 
execution  is  silent  as  to  a  conveyance  from 
the  sheriff;  and  yet  a  conveyance  upon  such 
sales  is  dictated  by  the  same  policy  that  ap- 
plies to  all  other  alienations  of  land.  Without 
a  deed  or  note  in  writing,  there  would  be 
no  written  document  of  the  sale;  for,  in  the 
first  place,  it  is  not  requisite  to  the  validity  of 
the  proceedings  on  execution,  that  the  writ 
should  ever  be  returned:  nor  is  it  requisite, 
even  if  a  return  be  made,  that  the  sheriff 
should  specify  with  certainty  the  particular 
lands  sold,  or  the  name  of  the  purchaser.  It 
would  be  sufficient  to  state,  that  of  the  lands 
and  tenements  of  the  defendant  he  had  caused 
to  be  made  the  debt  and  damages  specified  in 
the  writ,  as  he  was  thereby  commanded.  If, 
therefore,  the  estate  passes  upon  the  sale, with- 
out any  writing  whatever,  the  general  policy 
of  the  law  would,  in  this'  instance,  be  contra- 
vened, and  would  be  productive  of  manifest 
public  inconveniences.  In  the  county  where 
the  lands  in  question  lie,  every  iconveyance, 
whereby  any  lands  in  that  county  may  be  in 
any  way  affected  in  law,  or  equity,  shall  be 
deemed  void  against  any  subsequent  purchaser 
or  mortgagee  for  valuable  consideration, unless 
recorded.  (2  Rev.  Laws,  263.)  The  present 
case  is  not  within  the  act,  because  here  is  no 
subsequent  purchaser  to  contend  with,  but 
cases  of  that  kind  must  often  arise,  and  if 
sheriffs'  sales  be  not  within  the  provisions  of 
the  act,  it  would  work  very  great  imposition 
and  fraud.  A  purchaser  would  go  to  the  re- 
cords, and  if  he  found  no  conveyance 
*from  the  defendant,  he  would  natur-  [*351 
ally  conclude  he  might  purchase  in  safety. 
But  if  the  sheriff's  sale  is  to  defeat  him,  he 
would  in  vain  seek  for  the  evidence  of  it.  The 
purchaser  from  the  sheriff  has  nothing  to 
show.  There  is  even  wanting  the  livery  of 
seisin,  which  in  the  simplicity  of  ancient 
times,  and  before  writing  was  much  in  use, 
was  held  indispensable  to  the  transfer  of  an 
estate.  He  could  only  ascertain  the  fact  of  the 

103 


351 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1804 


sale  by  the  sheriff,  from  searching  after  and 
examining  those  who  may  happen  to  have  been 
eye-witnesses  of  the  transaction.  I  cannot 
think  that  the  law  intended  to  induce  such  in- 
convenience, and  uncertainty.  If  we  were  to 
judge  of  the  sense  of  the  Legislature  from  the 
various  other  cases  in  which  the  law  is  explicit 
and  which  are  cases  in  part  material,  it  would 
leave  .no  doubt  on  this  question.  All  sales 
made  by  the  surveyor-general  at  auction,  by 
order  of  the  commissioners  of  the  land  office; 
sales  of  land  by  order  of  the  Court  of  Probate, 
for  payment  of  debts ;  sales  at  auction  by 
loan-officers,  of  lands  mortgaged  to  them,  and 
sales  by  sheriffs  for  quit  rents,  by  virtue  of 
process  from  the  Exchequer  (and  this  last  is  a 
case  perfectly  analogous  to  the  present)  are  re- 
quired to  be  completed  by  a  formal  conveyance 
from  the  public  officers.  (1  Rev.  Laws,  274, 
280,  289,  295,  298,  299,  302,  324,  610.)  It  ap- 
pears to  me  that  sheriffs'  sales  must  be  within 
the  statute  of  frauds,  which  declares  that  no 
estates  of  freehold,  or  terms  of  years,  shall  be 
granted,  but  by  deed  or  note  in  writing,  or  by 
act  and  operation  of  law.  (1  Rev.  Laws,  79.) 
I  need  not  undertake  to  show  that  a  sheriff's 
sale  is  not  an  act  and  operation  of  law,  within 
the  meaning  of  this  statute.  These  words  are 
strictly  technical,  and  refer  to  certain  definite 
estates,  such  as  those  by  the  curtesy  and 
dower,  or  those  created  by  remittitur.  It  has 
352*]*been  said  by  Lord  Hardwicke  (1  Ves., 
221),  that  a  judicial  sale  of  an  estate  took  it 
entirely  out  of  the  statute.  The  reason  why  it 
is  out  of  the  statute  I  do  not  so  well  compre- 
hend ;  it  is  not  because  the  sale  is  at  auction, 
for  it  is  settled  that  those  sales,  if  they  relate 
to  land,  are  within  the  statute  of  frauds.  Nor 
does  a  sheriff's  sale  appear  to  me  to  be  in  its 
own  nature  free  from  all  danger  of  introduc- 
ing fraud  or  perjury,  and  so  not  within  the 
mischief  intended  to  be  prevented  by  the  stat- 
ute. 

The  case  in  which  Lord  Hardwicke  is  said 
to  have  ruled  as  broadly  as  I  have  stated,  is 
quite  obscurely  reported.  (1  Bos.  &  Pul.,  307; 
1  Esp.,  101;  1  Powell,  271,  272.)  The  agree- 
ment must  have  been  made  before  the  master, 
or  acquiesced  in,  in  court;  and  it  seems  to  have 
been  more  like  a  consent  upon  record,  than 
anything  else.  At  any  rate,  I  cannot  consider 
that  observation  in  chancery  as  a  sufficient 
authority  to  set  aside  the  plain  letter  of  the 
statute. 

I  apprehend  the  general  practice  has  been 
different;  and  that  upon  sales  under  the  direc- 
tion of  a  master  in  chancery,  as  well  as  sales 
by  sheriffs  at  law,  the  sale  has  uniformly  been 
consummated  by  a  conveyance. 

Tliis  general  usage  ought  to  have  great 
weight  in  a  case  where  a  statute  is  susceptible 
of  two  constructions;  and  especially,  when  the 
literal  interpretation  and  perhaps  the  reason  of 
the  thing,  are  in  favour  of  the  construction 
adopted  in  practice. 

The  minute  provisions  in  our  statute  regulat- 
ing sales  on  execution,  and  even  the  facts  in 
353*]  the  very  case  *before  us,  are  sufficient 
to  show  that  these  kind  of  sales  are  equally 
within  the  danger  of  the  mischiefs  which  the 
acts  ought  to  prevent.  The  Court  of  Chancerv 
itself  has  latterly  admitted  (3  Vez.,  712)  that  it 
had  gone  rather  too  far  in  permitting  part  per- 
164 


formance  and  other  circumstances,  to  take 
cases  out  of  the  statute  of  frauds.  I  am  of 
opinion,  therefore,  that  a  sheriff's  sale  is  within 
the  statute  of  frauds. 

There  was  an  ancient  principle  of  the  com- 
mon law  that  would,  if  it  applied,  have  super- 
seded the  necessity  of  a  deed.  It  was  a  rule 
that  where  a  thing  took  effect  out  of  a  naked 
power  or  authority,  it  was  good  without  deed ; 
but  where  a  thing  took  effect  out  of  an  interest 
there  it  must  be  by  deed,  if  incorporeal;  and  by 
livery  if  corporeal.  In  pursuance  of  this  rule 
it  hath  been  held  that  if  executors  be  ordered 
in  a  devise  to  sell  land,  they  may  do  it  by  deed 
or  by  parol,  because  the  vendee  takes  under  the 
devise  and  not  under  the  conveyance  of  the  exec- 
utors; according  to  the  principle,  that  who- 
ever claims  under  the  execution  of  a  power, 
must  make  title  under  the  power  itself.  Whether 
this  principle  would  or  would  not  have  applied 
to  the  present  case  I  need  not  now  examine, 
for  admitting  that  it  did,  I  am  satisfied  that 
the  statute  of  frauds  has  done  it  away.  The 
only  remaining  inquiry  upon  this  head  is 
whether  the  return  of  the  under  sheriff  was 
not  a  sufficient  deed  or  note  in  writing  within 
the  act?  But  there  are  several  objections  to 
this  return.  In  the  first  place  it  is  not  in  pur- 
suance of  the  statute  a  return  in  the  name  of 
the  sheriff.  It  is  expressly  a  return  in  his  own 
name.  When  a  *man  acts  in  contem-  [*354 
plation  of  law,  by  the  authority  and  in  the 
name  of  another,  if  he  does  an  act  in  his  own 
name,  although  alleged  to  be  done  by  him  as 
attorney,  it  is  void.  In  the  case  of  J?rontm  v. 
Sinall,  the  attorney  executed  a  lease  in  her 
own  name,  although  stated  to  be  made  for  and 
in  the  name  of  the  principal,  and  the  lease  was 
held  to  be  void  because  made  in  her  own  name. 
This  case  was  recognized  as  good  law,  so  late 
as  the  case  of  Wilk«  v.  Back.  This  return  is 
not,  therefore,  an  act  of  the  sheriff,  of  which 
we  can  take  notice.  But  admitting  it  to  have 
been  nade  in  the  name  of  the  sheriff,  it  could 
not  be  a  sufficient  deed  or  note  in  writ- 
ing of  the  sale,  because  it  has  not  the  requisite 
certainty.  It  does  not- appear  what  estate  was 
sold,  whether  an  estate  for  years,  for  life  or  in 
fee,  nor  is  there  any  certainty  as  to  the  thing 
sold.  It  is  stated  to  be  all  that  farm  or  tract 
of  land  in  Pompey  in  the  tenure  and  occupa- 
tion of  the  defendant.  But  there  is  no  kind 
of  estimation  of  the  quantity  of  land  sold,  nor 
in  what  part  of  the  town  it  lays,  or  how  marked 
and  bounded.  I  do  not  mean  to  be  under- 
stood to  say  that  a  note  in  writing  of  a  sheriff's 
sale  must  be  precise  as  to  the  quantity  of  acres, 
and  as  to  the  metes  and  bounds,  but  the  thing 
sold  must  in  all  cases  be  specified  with  so 
much  precision  as  from  the  description  it  can 
be  reduced  to  certainty,  and  especially  in  the 
case  of  sheriff's  sales;  for  it  was  decided, 
Jackson,  ex  dem.  Jones  v.  Striker  (Oct.  Term, 
1799),  that  at  such  sales  no  property  could 
pass  but  what  was  at  the  time  ascertained  and 
declared.  This  appears  to  me  to  be  an  excel- 
lent rule  to  prevent  fraud  and  speculation  at 
such  sales,  and  I  should  be  sorry  to  see  it  im- 
paired. *A  general  sale  by  the  sheriff  [*3I>J> 
of  all  that  tract  of  land  in  the  town  of  Pompey 
in  the  tenure  and  occupation  of  the  defendant 
does  not  appear  to  me  to  comport  with  the 
rule.  It  might  as  well  have  been  all  that  tract 
COL.  AND  CAINKS. 


1804 


CYRUS  JACKSON  v.  RODOLPHUS  MANN. 


355 


of  land  in  the  county  in  his  possession.  I  am 
of  opinion,  a  more  definite  description  of  the 
situation  and  amount  of  the  land  and  of  the 
quantity  of  the  defendant's  interest  therein, 
ought  to  have  been  stated,  and  that  the  evi- 
dence of  this  sale,  even  admitting  it  to  have 
been  duly  made  by  the  sheriff,  has  not  the  re- 
quisite certainty. 

In  England,  when  the  sheriff  extends  lands 
by  elegit,  he  returns  an  inquisition,  specifying 
the  farm,  the  number  of  acres,  the  metes  and 
bounds,  the  value,  &c.  Yet  the  statute  of 
West.  (2.  13  E.  I.,  c.  18)  which  gave  the  elegit, 
only  required  in  general,  that  the  sheriff  de- 
liver one  half  of  the  defendant's  land,  until 
the  debt  be  levied  upon  a  reasonable  price  or 
extent.  If,  however,  all  the  objections  hith- 
erto raised,  had  been  surmounted,  I  am  of  the 
opinion  that  the  evidence  offered  on  the  part 
of  the  defendant  at  the  trial,  ought  to  have 
been  received,  to  show  the  sale  was  fraudu- 
lent and  void.  The  evidence  went  to  show, 
that  the  first  sale  was  valid  and  binding,  and 
had  been  carried  into  effect  by  a  deed  from  the 
sheriff.  That  the  second  sale  was  made,  at 
the  solicitation  of  the  plaintiff,  without  any 
notice  by  advertisement,  on  his  indemnity  to 
the  sheriff,  who  was  then  on  his  death  bed, 
and  incompetent  to  do  business.  These  cir- 
cumstances ought  to  have  been  left  to  a  jury, 
356*]  to  draw  *such  inference  from  them 
as  the  case  required,  and  it  is  not  to  be  dis- 
puted but  that  the  whole  sale  may  be  rescind- 
ed on  ground  of  fraud.  For  these  rea- 
sons, I  am  of  the  opinion  the  verdict  ought  to 
be  set  aside,  with  costs  to  abide  the  event. 

Gated— 35  Barb.,  623 ;  1  Lans.,  411. 


AUGUST  TERM,  1804. 


CYRUS  JACKSON®.  RODOLPHUS  MANN. 

1.  Nonsuit  —  Absent  Witness  —  Stipulation. 
2.   Costs — Attachments, 

HENRY  moved  for  judgment,  as  in  case 
of  nonsuit,  for  not  proceeding  to  trial, 
and  also  for  costs  of  the  last  circuit,  and  those 
formerly  ordered,  on  an  affidavit,  stating  a 
a  similar  motion  in  a  former  term,  in  which 
the  expense  of  witness  only  was  allowed, 
as  the  cause  had  been  countermanded  by  con- 
sent; that  these  costs  had  been  demanded  and 
not  paid,  after  which  the  cause  was  again 
noticed,  but  neither  the  plaintiff  nor  his  wit- 
nesses attending  at  the  circuit,  the  defendant 
requested  that  he  and  his  witnesses  might  be 
discharged,  which,  however,  the  plaintiff's 
attorney  absolutely  refused. 

Mr.  Van  Yeveren,  contra,  read  an  affidavit, 
setting  forth  that  the  plaintiff  had  duly  sub- 
poenaed one  Obadiah  Phelps,  his  principal 
witness,  but  that  he  did  not  attend,  and  was, 
as  the  deponent  verily  believed,  kept  away  by 
the  contrivances  of  the  defendant.  He  in- 
357*]  sisted  *  also,  that  as  notice  of 
trial  for  the  last  circuit  was  accepted,  the 
COL.  AND  CAINES. 


defendant  had  waived  his  right  to  the  former 
costs.  If  the  court  should  be  against  him  on 
these  points  he  hoped  they  would  grant  an 
attachment  against  Phelps,  whose  contempt 
in  disobeying  the  subpoena,  was  the  cause  of 
not  proceeding  to  trial. 

Per  Curiam.  The  absence  of  the  plaintiff's 
witness  is  sufficient  to  induce  us  to  refuse  the 
application  for  a  nonsuit,  and  even  to  excuse 
him  from  stipulating;  but  as  he  is  in  contempt 
for  not  paying  the  costs  formerly  ordered,  let 
him  pay  those  of  the  last  circuit  within 
twenty  days  after  due  demand ;  in  default 
thereof  the  defendant  to  be  at  liberty  to  enter 
up  judgment  as  in  case  of  nonsuit.  As  to 
those  costs  which  on  the  former  occasion 
were  allowed,  we  do  not  take  them  into  con- 
sideration, the  defendent  having  it  in  his 
power  to  enforce  them  by  attachment ;  and 
with  respect  to  the  attachment  prayed  for  by 
the  plaintiff,  it  is  not  usual  to  grant  one  in 
the  first  instance,  unless  some  wilful  disobe- 
dience to  the  authority  of  the  court  is  made 
to  appear;  the  plaintiff,  therefore,  can  have 
only  a  rule  to  show  cause. 


JAMES  JACKSON,   on  the  demise  of 
DAVID  VAN  BERGEN  ET  AL.  , 

•». 
SAMUEL  HAIGHT. 

Nonsuit — Trial  not  had — Necessary  Papers  not 
Attainable —  Costs. 

SCOTT,  on  affidavit  stating  his  cause  had 
been  duly  noticed  for  the  three  last  cir- 
cuits, and  that  younger  issues  had  been  tried, 
moved  for  judgment  as  in  case  for  nonsuit, 
for  not  proceeding  to  trial  at  the  last  circuit 
in  Green,  persuant  to  notice. 

*Mr.  Champlin  resisted  the  applica-  [*358 
tion,on  a  deposition  setting  forth  that  the  papers 
necessary  for  the  defense  had  been  left  with  him 
for  eight  months  previous  to  the  circuit,  to 
use  at  the  trial;  but  that  they  had  been,  two 
weeks  before  it  was  to  have  been  held,  taken 
from  him  by  the  person  from  whom  he  had  re- 
ceived them,  under  a  promise  to  return  them  be- 
fore the  time  the  cause  would  come  on. 
That  the  title  depended  on  the  Catskill  patent; 
from  the  great  length  of  the  documents,  and 
exemplifications  in  which,  the  expense  of 
copies  was  so  great,  as  to  render  the  saving  it 
an  object  of  importance.  That  in  all  other 
respects  the  defendant  was  ready  for  trial, 
and  now  relied  on  these  circumstances  being 
received  as  sufficient  excuse. 

Mr.  Scott,  in  reply,  urged  that  the  benefit  of 
the  papers  might  have  been  had  by  a  subpoena 
diices  tecum. 

Per  Curiam.  We  think  the  excuse  suffi- 
cient to  prevent  a  nonsuit,  but  not  to  relieve 
from  costs;  let,  therefore,  the  defendant  take 
nothing  by  his  motion,  on  the  plaintiff's  pay- 
ing costs,  for  not  bringing  the  cause  to  trial 
at  the  last  circuit. 

165 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1804 


SOLOMON  CHANDLER  ET  rjx. 

v. 
WILLIAM  W.  TRAYARD. 

Non-enumerated  Motion  —  New   Trial — Newly 
Discovered  Evidence. 

SCOTT  endeavoured  to  bring  on,  as  a  non- 
enumerated  motion,  an  application  for  a 
new  trial  in  this  cause,  on    an    affidavit  of 
newly  discovered  evidence. 

359*]  *Per  Curiam.  It  is  clearly  an  enu- 
merated motion,  and  cannot  be  heard  this 
day. 


JACKSON,   ex.  dem.  JOHN  L.   NORTON 

ET  AL. ,  1). 

GEORGE  GARDNER. 

Nonsuit — Trial  not  had — Notice  of  Trial — Suffi- 
ciency of  Affidavit. 

VAN  VECHTEN  moved  on  the  common 
affidavit  for  judgment,  as  in  case  of  non- 
suit, for  not  proceeding  to  trial,  but  the  affi- 
davit of  service  stated  only  that  it  was  made 
by  leaving  copies  on  the  table  of  the  attor- 
ney's office,  about  one  o'clock  in  the  after- 
noon. 

Per  Curiam.  The  affidavit  is  defective; 
it  does  not  set  forth  that  there  was  no  one  in 
the  office.  The  notice  might  have  been  slip- 
ped down  without  any  intimation,  and  have 
remained  there  unobserved.  To  make  such  a 
service  good,  it  ought  to  have  been  stated 
there  was  not  anyone  in  the  office.  The  de- 
fendant can  take  nothing  by  his  motion. 


CASPARUS  BAIN 

v. 
DAVID  THOMAS  and  JAMES  GREEN. 

Nonsuit — Trial  not  had — Verbal  Agreement — 
Withdrawal  of  Motion. 

T)  USSEL  moved  for  judgment  as  in  case  of 
XV  nonsuit. 

Mr.  Blanchard,  resisted  the  application  on  an 
affidavit  stating  a  conversation,  which  he  con- 
sidered as  an  agreement  to  waive  the  irregu- 
larity. 

Mr.  Russel  wished  not  to  rely  on  the  rule  re- 
specting written  agreements,  could  the  con- 
versation be  substantiated. 

36O*]  *Per  Curiam.  The  court  cannot 
take  notice  of  agreements  between  attorneys, 
unless  reduced  to  writing.  If  it  is  intended 
to  waive  the  rule  on  this  subject,  the  motion 
must  be  withdrawn;  otherwise  judgment  of 
nonsuit  must  be  entered,  unless  the  plaintiff 
stipulate  and  pay  costs. 
166 


BERIAH  PALMER,  PHILIP   H.    SCHUY- 
LER  and  JOSHUA  NELSON 

v. 

AMOS  MULLIGAN,  HERMAN  MOODY, 
NOADIAH  MOODY  and  WILLIAM 
GATES. 

Monsuit — Trial   not   Juid — Cane    made  in  like 
Cause —  Costs — Stipulation. 

VAN  ANTWERP,  on  the  common  affida- 
vit, moved  for  judgment  as  in  case  of 
nonsuit,  for  not  proceeding  to  trial. 

Mr.  Woodworth,  contra,  stated  that  this  was 
one  of  two  causes  depending  on  the  same  point. 
That  in  the  other,  a  verdict  had  been  given 
against  the  plaintiffs,  contrary  to  the  opinion 
and  charge  of  the  judge  before  whom  the 
cause  had  been  tried,  for  which  reason  the 
present  suit  had  not  been  brought  on,  and  a 
case  was  made  in  that  which  had  been  heard, 
and  was  now  before  the  court. 

Mr.  Van  Antwerp,  in  reply.  A  case  ought  to 
have  been  made  in  the  other  cause.  As  it 
has  not  been  done,  it  is  a  waiver  of  intention 
to  rest  on  the  point  in  the  other.  The  plaint- 
iffs must,  therefore,  pay  costs  and  stipulate; 
or  we  must  have  our  judgment. 

Per  Curiam.  You  are  enitled  to  costs,  but 
as  there  is  a  sufficient  reason  for  not  proceed- 
ing to  trial,  we  shall  not  oblige  the  plaintiff 
to  stipulate. 

*SPENCER,  J.  I  think  they  ought  [*361 
to  stipulate.  There  is  a  verdict  in  favor 
of  the  defendants  which,  till  the  contrary  is 
shown,  we  ought  to  think  correctly  given. 


NICHOLAS  BRADT 
BETHUEL  WAY  and  HANNAH  his  wife. 

Nonsuit — Trial   not  had — Agreement  to  Arbi- 
trate— Costs. 

VAN  ANTWERP  moved  for  judgment  as 
in  case  of  nonsuit,  for  not  proceeding  to 
trial  according  to  notice. 

Mr.  Van  Yeveren  read  an  affidavit  stating, 
that  previous  to  the  circuit  arbitration  bonds 
had  been  entered  into  by  the  parties  in  the 
suit,  and  an  award  made. 

Per  Curiam,  let  the  defendant  take  nothing 
by  his  motion,  and  pay  the  cost  of  resisting 
this  applicaton. 

N.  B.  It  seems  that  wherever  the  affidavits 
contra  disclosed  circumstances  that  clearly 
show  the  application  noticed  will  be  ineffect- 
ual, costs  for  resisting  will  follow  the  denial. 


JARED  STOCKING 
ELLIOT  DRIGGS. 

Certiorari — Action  on  Promissory  Note — Judg- 
ment— Note  not  proved — 1  Rev.  Laws,  497. 

ERROR  on  a  certiorari  upon  a  judgment  in 
a  justice's  court. 

COL.  AND  CAINES. 


1804 


THE  PEOPLE  v.  THE  JUDGES  OF  THE  COURT  OF  COMMON  PLEAS. 


361 


From  the  return,  it  appeared  that  the  action 
below  was  brought  against  the  now  plaintiff, 
3G2*]  as  the  *maker  of  a  promissory  note 
for  $20;  that  after  a  plea  of  nvn  a&tumpsit, 
the  defendant  below  prayed  an  adjournment, 
which  being  granted,  the  plaintiff,  Driggs,  ap- 
peared on  the  day  given.  The  record  went 
on  thus:  "And  the  defendant  not  appearing, 
although  solemnly  called,  I,  the  said  jus- 
tice, proceeded  on  the  producing  the  said  note 
by  the  said  plaintiff,  and  gave  judgment  for 
the  plaintiff  on  the  said  note,  for  the  sum 
of,"&c. 

Mr.  Williams  for  the  plaintiff. 
Mr.  W.  Van  Ness  contra. 

Per  Curiam.  The  judgment  ought  to  have 
been  "on  hearing  the  proofs  and  allegations" 
(1  Rev.  Laws,  497)  of  the  parties.  The  judg- 
ment must,  therefore,  be  reversed,  for  it  was 
error  in  the  justice  to  give  judgment  till  he 
had  proof  of  the  note. 


THE  PEOPLE. 

v. 

THE  JUDGES  OF  THE  COURT  OF  COM- 
MON PLEAS  IN  AND  FOR  THE 
COUNTY  OF  WASHINGTON. 

Mandamus — Attachment — Affidavit  of  Service. 

T^MOTT  moved  for  an  attachment  against 
J-J  the  defendants  for  not  obeying  a  per- 
emptory mandamus,  commanding  them  to 
sign  a  bill  of  exceptions.1  The  affidavit  did 
not  state  the  service  to  have  been  when  the 
court  was  sitting,  or  the  persons  on  whom 
made. 

Mr.  Champlin,  for  these  reasons,  objected  to 
the  application. 

363*]  *KENT,  C.  J.  It  ought  to  appear 
that  the  persons  who  were  served  were  those 
who  ought  to  have  sealed  the  bill.  Nothing 
can  be  taken  by  the  motion. 


THE  PRESIDENT  AND  DIRECTORS  OF 
THE  COLUMBIAN  TURNPIKE 

v. 
ROBERT  WOODWORTH. 

Penalty — Riding    through    Toll-gate — Force    or 
Violence — Suit  for  Toll. 

THIS  was  an  action  brought  for  the  penalty 
under  the  ninth  section  of  the  act  incor- 
porating The  Columbia  Turnpike  Road,  for 
simply  riding  through  a  gate  without  paying 
toll,  without  any  force  or  violence. 

Per  Curiam.  The  act  had  in  contempla- 
tion only  forcible  and  violent  passages;  the 
plaintiffs  may  sue  for  their  toll,  but  this  cer- 
tainly is  not  a  case  within  the  penalty  of  the 
section  relied  on. 

1. — See  Games'  Rep.,  vol.  1,  p.  511. 
COL.  AND  CAINES. 


HENRY  MASTERTON,  Gentleman,  one,  &c. 

v. 
EVERARD  BENJAMIN. 

Stay  of  Proceedings — Bail-bond — Laches. 
Col.  Cos.,  57,  followed. 

VAN  WYCK  moved  to  stay  proceedings  on 
a  bail-bond,  under  the  following  circum- 
stances: 

The  writ  in  the  original  suit  was  sued  out 
in  last  August  vacation,  returnable  in  the 
November  following.  Special  bail  was  filed 
on  the  ninth  of  December  then  next,  but  no- 
tice of  it  not  given.  On  the  5th  of  May,  after 
a  ca.  ad.  resp.  was  issued  on  the  bail-bond,  re- 
turnable in  the  then  May  Term,  on  which  the 
bail  in  the  principal  suit  were  taken.  On  this, 
notice  of  bail  having  been  filed,  was  given, 
with  an  offer  of  justification,  which  the  plaint- 
iff, being  satisfied  of  their  *com-  [*364 
petence,  waived.  On  this,  the  defendant,  on 
the  6th  of  June,  served  the  plaintiff  with  an 
order  from  the  recorder  of  New  York,  to 
show  cause  before  him  why  the  proceedings  on 
the  bail-bond  should  not  be  stayed,  and  upon 
service,  the  plaintiff,  without  acting  upon  the 
order,  agreed  to  the  proceedings  till  the  de- 
cision of  this  court  could  be  had. 

Mr.  Williams,  contra,  insisted  the  application 
ought  to  have  been  made  the  last  term,  and 
not  to  the  recorder.  This  was,  therefore,  a 
laches  not  accounted  for. 

Mr.  VanWyckin  reply,  cited  Cole.  Ca.  Prac., 
57,  58 ;  Cromp.,  75 ;  High  on  Bail,  54,  55. 

Per  Curiam.  The  case  in  Coleman  is  de- 
cisive. Let  all  proceedings  on  the  bail-bond  be 
stayed  on  the  payment  of  costs. 


THE  PEOPLE,  on  the  complaint  of  JARED 
BENNETT, 

v. 
AMASA  KING. 

Certiorari — Forcible  Entry  and  Detainer  — 
Quashing  Conviction — Re-restitution  —  Seizin 
or  Possession  of  Complainant — Grand  Jury — 
Sufficient  number  to  find — Offer  of  Defendant 
to  Traverse. 

ON  cerliorari  upon  a  convictin  for  a  forci- 
ble entry  and  detainer. 
Mr.  Gold,  for  the  defendant,  moved  to  quash 
the  conviction,  and  that  a  re-restitution  issue, 
for  the  following  reasons:  1st.  For  want  of 
certainty  in  the  description  of  the  premises, 
they  being  described  only  as  "tenements  and 
improvements,"  without  naming  the  county 
in  which  situated.  2d.  Twenty-four  persons 
were  sworn  upon  the  grand  jury,  who  found 
the  bill,  so  that  more  than  twelve  were  neces- 
sary to  *the  finding.  3d.  Because  a  [*365 
challenge  to  a  grand  juror  for  having  given 
a  bond  of  indemnity1  to  the  complainant,  was 
overruled.  4th.  Because  the  defendant  was  not 
brought  into  court  before  restitution  awarded 
to  traverse  the  indictment.  5th.  Because,  when 


1.— See  Trelawney  v.  Thomas,  1  H.  Black.,  303. 


167 


365 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1804 


the  defendant  voluntarily  appeared  and  offered 
to  traverse,  he  was  refused.  6th.  Because  it 
is  not  alleged  that  the  complainant  was  seised 
or  possessed  of  the  premises. 

Mr.  Henry,  contra,  opposed  the  issuing  a  writ 
of  restitution,  because  the  term  under  which 
the  defendant  claimed  had  expired. 

KENT,  C.  J.  The  inquisition  and  proceed- 
ings below  must  be  quashed,  and  re-restitution 
be  awarded.  The  last  objection  is  fatal,  within 
the  decisions  of  this  court,  in  Beebet  ads.  The 
People,  in  January  Term,  1802.  and  Shaw  ads. 
The  People,  August,  1803.  (1  Caines,  125.)  1 
think  the  second  and  fifth,  also,  are  equally 
fatal.  As  to  the  objection  that  the  term  is  ex- 
pired, and  neither  party  have  title,  we  cannot 
inquire  into,  and  decide  by  affidavit  in  this 
way  on  the  title  or  rights  of  the  parties;  the 
complainant  below  has  nothing  to  do  with 
that.  He  must  give  up  the  possession  irregu- 
larly obtained,  put  the  defendant  in  statu  quo, 
and  then  proceed  legally  to  the  question  of 
title. 


ASA  MANN  t.  I.  MARSH. 

Payment — Application. 

THE  court  ruled  that  where  a  person  pays 
money  to  a  creditor,  -who  has  demands 
3OO*]  against  him  on  two    *accounts,  the 
creditor  may  place  it  to,  which  he  pleases,  un- 
less the  debtor  direct  its  application. 


JOHN  MARSCROFT 


CALOIN  BUTLER. 
Insolvent  Debtor — Discharge — Due  Application. 

THE  defendant  had  applied  for  his  dis- 
charge, under  the  Insolvent  Act,  on  the 
first  Thursday  in  term,  but  no  measures  had 
been  taken  to  bring  him  up  till  the  last  day. 
The  plaintiff  then  moved  for  time  to  oppose 
on  an  affidavit,  stating  that  notice  of  the  ap- 
plication had  come  to  him  only  on  the  second 
day  of  the  then  August  Term.  That  one 
Benjamin  Prescott,  of  Massachusetts,  was  a 
material  witness  to  prove  the  falsity  of  the 
defendant's  inventory,  and  that  he  expected 
to  be  able  to  obtain  his  testimony. 

Per  Curium.  The  prisoner  must  be  re- 
manded till  the  first  day  of  the  next  term. 
We  do  this  with  regret,  but  the  act  is  too  im- 
perative to  admit  of  discretion.  As  the 
defendant  did  not  apply  to  be  brought  up  at 
an  earlier  day,  it  is  in  some  degree  his  own 
laches.  Let  him  be  brought  up  next  term. 


an  enumerated  motion,  and  it  was  also  at  an- 
other day,  in  this  same  suit,  determined  that 
if  the  notice  of  motion  specify  that  it  will  be 
grounded  on  the  frivolousness  of  the  demur- 
rer, it  will  give  the  applicant  a  priority  before 
other  enumerated  causes,  and  entitle  him  to  his 
judgment  *on  reading  the  affidavit  of  [*3G7 
service,  and  of  general  notice  for  argument, 
if  no  opposition  be  made. 


JOHN  CROSS,  JUN.,  v.  GEORGE  HOBSON. 

Arrest — Insolvent  Discharge — Plea. 

rPHIS  was  an  application  to  be  discharged 
J.  out  of  custody,  the  defendant  having 
been  exonerated  from  the  demand  under  the 
insolvent  law. 

Per  Curiam.  The  defendant  can  take  noth- 
ing bjr  his  motion.  In  the  cause  of  Caldteell 
v.  Graham,  decided  in  January  Term,  1803, 
we  determined  we  would  not  help  an  insolvent 
who  omitted  to  plead  his  discharge  as  he  might 
have  done. 


WILLIAM  BODWELL  v.  JOHN,  WILCOX. 

Motion — Notice — Date — Court  Boom. 

IN  this  case  an  objection  was  taken  that  the 
notice  of  motion  did  not  specify  "at  the 
city  hall  of  the  city  of  Albany,"  but  was  only 
for  the  first  day  of  the  term,  without  desig- 
nating the  place. 

Per  Curiam.  The  notice  is  sufficient. 
Every  one  knows  where  the  different  terms 
are  held,  and  the  party  himself  evinces  that 
by  coming  here  to  oppose  it. 


*FRANCIS  COLE  v.  JOHN  GRANT.  [*36S 
THE  SAME  v.  GIDEON  KING. 

FRANCIS  COLE  ET  ux. 

v. 
JOHN  GRANT  AND  GIDEON  KING. 

FRANCIS  COLE. 

v. 
JOHN  GRANT  AND  GIDEON  KING. 

Set-off — Several     Causes —  Costs — Dam  ages — A  t- 
torney's  Lien. 


COSTS  had  been  allowed  to  the  defendants 
in  the  three  first  of  these  causes,  to  $26.53, 
and  in  the  last  also,  to  Gideon  King,  to  $14.84, 
but  in  the  last  cause  damages  had  been  assessed 
against  Grant,  to  $20  besides  costs,  and  Cole 
was  unable  to  pay  the  costs  taxed  against  him. 
Mr.  Russel,(m  an  affidavit  disclosing  the  above 
facts,  moved  to  set  off  the  costs  allowed  the 
TT  was  ruled  in  this  case  that  an  application  |  defendants  against  the  damages  and  costs  re- 
J-  for  judgment  on  a  frivolous  demurrer  is  I  covered  by  the  plaintiff  in  the  last.  . 
168  COL.  AND  CAINES. 


JAMES  McCABE  v.  JOHN  McKAY. 

1.  Enumerated  Motions — For  Judgment — Frivo- 
lous Demurrer.  2.  Idem — Priority — Specif c 
Notice  of  Motion. 


1804     JACKSON,  ON  THE  DEMISE  OF  JACOB  SPILSBURY  ET  AL.,  v.  AARON  WATSON. 


368 


Per  Curiam.  Let  the  defendants  have  leave 
to  set  off  their  costs  in  the  three  first  causes 
against  $20  damages  recovered  by  the  plaint- 
iff in  the  last.  The  costs  of  the  plaintiff's  at- 
torney in  the  last  suit  not  to  be  included  in 
the  set-off,  as  he  has  a  lien  for  them.  (Spencer 
v.  White,  April,  1799,  2  Black.  Rep.,  317,  869, 
871;  4D.  &E.,  123.) 


JACKSON,  on  the  demise  of  JACOB  SPILS- 
BURY ET  AL., 

v. 
AARON  WATSON. 

Ejectment — Possession — Payment  for    Improve- 
ments— Judgment — Stay  of  Proceedings. 

THIS  was  an  application  to  be  paid  for  the 
value  of  improvements  pursuant  to  the 
provisions  of  the  Act  of  the  5th  of  April,  1803, 
entitled,  "An  Act  granting  relief  to  certain 
369*]  persons  claiming  title  to  lands  *in  the 
counties  of  Cayuga  and  Onondaga;"  that  till 
the  improvements  were  paid  for,  execution  on 
the  suit  of  possession  might  be  staid,  and  that 
the  judgment  on  the  verdict  obtained  might 
be  entered  without  any  costs  of  increase. 

Mr.  W.  Woods,  in  support  of  the  motion,  read 
an  affidavit,  stating  that  the  patent  for  the 
lands,  to  recover  which  the  action  was  brought, 
was  in  the  name  of  Jacob  Spilsbury,  who  died 
previous  to  the  2^h  of  March,  1803.  That  the 
defendant,  in  1797,  settled  on  the  premises,  un- 
der a  bona  fide  purchase,  for  the  consideration 
of  $387.50,  and  was  in  possession.  That  the 
improvements  had  not  been  appraised,  nor  had 
the  value  of  them  been  tendered  or  paid. 

Mr.  Hildreth,  contra,  read  an  affidavit,  men- 
tioning that  previous  to  bringing  the  suit,  an 
offer  was  made  to  pay  the  value  of  the  improve- 
ments. He  urged  also,  that  nothing  was  dis- 
closed to  the  court  evincing  a  claim  in  fee,  or 
that  the  estate  of  the  defendant  was  such  as 
would,  according  to  the  act,  entitle  him  to  the 
value  of  his  improvements.  But,  admitting  it 
was,  it  ought  to  be  made  appear  in  a  legal 
manner.  This  could  not  be  by  the  mere  affi- 
davit of  the  party.  It  must  be  proved  by  the 
same  evidence  as  titles  are  in  other  cases  sub- 
stantiated. That  this  not  being  done,  the  de- 
fendant had  not  made  out  any  right  to  what 
he  claimed. 

37O*]  *Mr.  W.  Woods  in  reply.  The  act 
points  out  no  particular  mode,  and  this  has 
been  adopted. 

Per  Curiam.  Let  the  plaintiff  have  leave 
to  perfect  his  judgment,  with  costs  to  be  taxed, 
and  let  all  other  proceedings  be  staid,  that  the 
defendant  may  havejt  in  his  power  to  apply 
to  the  Chancellor,  under  the  second  section  of 
the  act,  as  he  is  entitled  to  the  benefit  of  its 
provisions.  As,  however,  the  plaintiff,  pre- 
vious to  the  commencement  of  his  action, 
offered  to  pay  the  value  now  demanded,  we 
think  him  entitled  to  his  costs,  and  we  wish  it 
to  be  understood  that  in  future  the  claims  of 
defendants  to  the  value  of  their  improvements 
under  this  act  will  depend  upon  the  report  of 
the  circuit  judge. 
COL.  AND  CAINES. 


DANIEL  L.  VAN  ANTWERP 

v. 
R.  ANDJ.  INGERSOLL. 

Set-off — Judgment —  Costs. 
Citation— 1  Rev.  Laws,  347,  530. 

rpHIS  was  a  question  of  costs,  by  consent 
JL  submitted  to  the  court.  The  facts  were, 
that  in  an  action  in  the  common  pleas  on  a 
bill  penal  for  $60,  to  secure  two  installments, 
the  defendant  pleaded  non  eslfactum,  with  no- 
tice of  setting  off  a  receipt,  which  was  allowed 
as  to  one  installment,  and  left  a  balance  under 
$25  due  to  the  plaintiff. 

The  point  was  whether  the  plaintiff  should 
pay  costs  to  the  defendant. 

Per  Curiam.  The  plaintiff  must  pay  costs. 
(1  Rev.  Laws,  530.)  This  was  a  plea  under 
the  act  authorizing  set-offs.  (1  Rev.  Laws, 
347.)  The  statue  is  positive  and  peremptory 
that  judgment  must  be  for  the  balance  only. 
The  *penalty,  therefore,  is  immaterial  [*371 
on  this  point,  for  the  judgment  is  the  test  by 
which  the  costs  are  to  be  determined. 


JOHN  STROWELL  v.  JOHN  VROOMAN. 

Arrest  of  Judgment — Motion  not  Decided — Case 
Made  by  Parties. 

IN  this  action,  which  was  still  pending  in  the 
Common  Pleas  for  Saratoga,  a  motion  had 
been  made  in  the  court  below  in  arrest  of 
judgment,  on  which  no  decision  had  been  pro- 
nounced. The  counsel,  however,  on  both 
sides,  agreed  to  make  a  case  of  it,  and  sub- 
mit the  matter  to  the  determination  of  this 
court. 

Per  Cunam.  This  practice  is  increasing, 
and  becoming  grievous.  It  is  time  it  should 
be  arrested.  We  ought  not  to  decide  cases 
unless  there  be  a  Its  pendens  here.  We  cannot 
otherwise  enforce  our  decision,  and  the  very 
point  may  come  lip  again.  We,  therefore, 
must  refuse  taking  up  the  case. 


SCHERMERHORN,  MASON  AND  BISHOP, 

v. 
GIDEON  TRIPP,  JUN. 

Trespass — Judgment  by  Justice,  a  Tavern  Keeper 
or  Resident — Liability  of  Constable. 

TERROR  from  the  Common  Pleas  in  Rens- 
-LJ  selser  County.  The  suit  below  was  tres- 
pass de  bonis  asportatw  against  a  justice  of  the 
peace,  a  constable,  and  a  plaintiff,  in  a  suit 
before  the  justice  under  the  101.  act,  for  taking 
the  goods  of  the  defendant,  in  an  execution 
on  a  judgment  rendered  by  the  justice.  The 
defendants  all  joined  in  a  plea  of  not  guilty. 
The  evidence  adduced  was  that  the  justice 
lived  in  a  tavern  where  he  officiated  as  the 
tavern-keeper,  made  out  the  bills  and  received 
payment  for  them,  but  that  the  justice  did  his 
business  in  a  small  out-room,  *and  the  [*372 

169 


372 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1804 


license  for  the  house  was  taken  out  in  the  name 
of  the  justice's  son.  This,  however,  it  ap- 
peared from  the  justice's  own  declarations,  was 
done  to  avoid  the  operation  of  the  20th  section 
of  the  act.  (1  Rev.  Laws,  502.)  On  this,  the 
defendant  below  demurred  to  the  evidence. 
The  court  having  given  judgment  for  the 
plaintiffs,  the  cause  now  came  up  on  a  writ  of 
error,  in  which  the  general  errors  were  as- 
signed. 

Mr.  Foote,  for  the  plaintiffs  in  error,  sub- 
mitted the  case  on  the  facts  presented  by  the 
record. 

Mr.  Woodworth,  contra,  relied  on  the  words 
of  the  act,  and  the  testimony  being  such  as  to 
bring  the  justice  clearly  within  them.  If  so, 
as  they  are  all  joined  in  the  same  plea,  they 
are  all  equally  responsible.  For  where,  in 
trespass  against  several,  all  unite  in  a  plea  of 
not  guilty,  the  separate  justification  which  one 
might  have  pleaded,  is  gone.  (2  Wils.,  384; 
2  Str.,  993.) 

SPENCER,  J.  The  same  point  has  been  de- 
cided in  this  court  in  the  case  of  Percwal  v. 
Jones,  which  was  an  action  brought  by  a  resi- 
dent freeholder1  against  a  justice  for  appre- 
hending him  on  a  warrant. 

Mr.  Woodworth  was  stopped  by  the  court. 

Per  Curiam,  From  the  evidence  below,  it 
was  conclusively  shown,  that  the  justice 
(Schermerhorn)  was  in  fact  a  keeper  of  a  tav- 
ern, or  lived  in  one.  If  so,  he  had  no  juris- 
diction to  try  the  cause,2  and  as  the  constable 
(Mason)  joined  with  him  and  the  plaintiff 
373*]  *in  pleading  the  general  issue,  they 
are  all  equally  trespassers.  Had  the  constable 
pleaded  separately,  he  would  probably  have 
been  excused;  but  he  has  now  involved  him- 
self with  the  others,  and  we  cannot  separate 
their  fates. 


STEPHEN  GOULD 

ads. 
AMBROSE  SPENCER. 

THE  SAME  ads  THOMAS  TILLOTSON. 

MATHIAS  WARD 

ads. 
AMBROSE  SPENCER. 

THE  SAME  ads.  THOMAS  TILLOTSON. 

1.  Default — Indorsement  of  Declaration  by  one 
Attorney  only.  2.  Inquisition — Notice — Time 
after  Default. 

IN  these  actions,  which  were  for  libellous 
publications  on  the  plaintiffs,  in  a  paper 
entitled    "  The    Corrector,"    judgments    had 
been  entered  on  default,  and  writs  of  inquiry- 
executed. 

Mr.  Jdmes  8.  Smith  moved  to  set  aside  the  de- 
faults and  inquisition  of  damages,  on  an  affida- 
vit made  by  himself,  stating  that  by  the  writs 

1.  Under  the  3d  sec.  1  Rev.  Laws,  492. 

2.  Sec.  20, 1  Rev.  Laws,  502. 

170 


sued  out  in  these  causes,  Messrs.  Woodworth  and 
Osborn,  appear  to  have  been  the  attorneys  on 
record  for  the  plaintiffs,1  but  that  the  declara- 
tions were  indorsed  with  the  name  of  Mr. 
Osborn  only.  That  the  rules  also,  which  had 
entered  in  these  causes  were  signed  with  the 
name  of  Mr.  Osborn  only,  and  this  without 
any  order  of  court  obtained  for  that  purpose; 
and  that  the  interlocutory  judgments  had  been 
entered  only  four  days  before  execution  of 
the  writs  of  inquiry. 
Mr.  Woodworth,  Attorney-General,  contra. 

Per  Curiam.  If  the  proceedings  were  not 
correct  by  being  in  the  name  of  one  attorney 
only,  yet  the  *defendants  show  no  [*374 
excuse  for  not  applying  at  an  earlier  day  of 
this  term.  This  is  fatal  to  their  motion.  Be- 
sides, it  is  sufficient  if  one  of  the  attorneys 
appearing  on  the  writ  continue  to  indorse  and 
sign  the  proceedings.  It  must  be  presumed 
the  defendants  were  not  misled,  but  knew  they 
were  the  parties  meant  by  the  original  suit. 
As  to  the  second  objection,  there  is  no  force 
in  it.  The  settled  practice  is  to  allow  of  notice 
of  inquiry  being  given  at  any  time  after  de- 
fault, and  it  is  enough  if  the  interlocutory 
judgment  be  entered  at  any  day  before  execu- 
tion of  the  writ  of  inquiry. 

LIVINGSTON,  /.  I  concur  in  the  decision  of 
the  court  on  the  question  in  this  case.  But  I 
do  not  say,  if  two  persons  be  attorneys  on  the 
writ,  one  may  go  on  with  the  proceedings  in 
his  name  singly.  Were  on«  to  die,  then  the 
right  to  carry  on  the  suit  would  survive.  On 
the  points  now  before  us,  I  consider  the  ap- 
pointment of  Mr.  Woodworth  to  the  place  of 
Attorney-General,  as  a  species  of  civil  death. 
Therefore,  on  the  present  occasion  I  agree 
with  the  opinions  of  my  brethren.  The  de- 
fendants can  take  nothing  by  their  motion. 


JOAQUIN  L.  STEINBACH 

t. 

THE  COLUMBIAN  INSURANCE  COM- 
PANY. 

1 .  New  Trial —  Witness  Correcting  Mistake —  Wit- 
ness making  subsequent  Explanation.  2.  Ma- 
rine Insurance — Abandonment — Date — Total 
Loss.  3.  New  Trial — Newly  Discovered  Evi- 
dence— Accumulative  Evidence. 

THIS  was  an  action  on  a  policy  of  insurance 
on  the  ship  Catharine,  at  and  from  Barce- 
lona to  Baltimore.  The  loss  averred  to  be  from 
arrest  and  detention  by  the  Spanish  govern- 
ment at  Barcelona.  The  depositions  of  a  Mr. 
Benjamin  M.  Mumford,  examined  on  the  part 
of  the  defendants,  and  *cross-examined  [*375 
by  the  plaintiff,  were,  on  the  trial,  read  by  the 
plaintiff.  Their  contents  led  to  establish  a  be- 
lief that  the  voyage  actually  intended,  was 
direct  to  the  Havanua,  or  some  place  in  the 
West  Indies.  They  referred,  however,  to  cer- 
tain papers  and  documents,  prepared  by  the 
deponent  at  Barcelona,  shortly  after  the  seiz- 

1.— A  party  cannot  plead  In  the  name  of  a  firm. 
Per  Ld.    Ellenborough,  Bunn  v.  Guy,  4  East,  105. 

COL.  AND  CAINES. 


1804 


JOAQUIN  L.  STEINBACH  v.  THE  COLUMBIAN  INSURANCE  COMPANY. 


375 


ure  of  the  Catharine,  in  order  to  obtain  com- 
pensation from  the  Spanish  government,  and 
in  the  caption  of  all  these,  the  voyage  was 
described  as  for  Baltimore,  and  from  thence  to 
the  Havana,1  in  order,  as  stated  by  the  papers, 
to  reship  at  Baltimore,  and  avoid,  by  this  cir- 
cuitous mode,  the  danger  of  confiscation,  for 
going  immediately  from  one  belligerent  port  to  j 
another.  These  papers  were  lettered,  and  at 
the  time  of  Mumford's  examination,  shown  to 
him,  and  he  swore  he  believed  them  to  be  true 
copies  of  originals,  deposited  in  the  archives  of 
the  consular  office  in  Barcelona.  In  order  to 
explain  the  manner  in  which  the  voyage  to  the 
Havana  was  to  be  prosecuted,  the  plaintiff 
offered  these  copies,  to  which  the  counsel  for 
the  defendants  objected,  that  as  the  depositions 
were  now  read  by  the  plaintiff,  Mumford  was 
his  witness,  and  these  papers  being  only  cop- 
ies, unauthenticated,  and  adduced  with  a  view 
of  discrediting  his  testimony,  could  not  be 
received.  This  being  overruled,  a  verdict  was 
brought  in  for  the  plaintiffs.  The  present 
application  was  to  set  it  aside,  and  grant  a  new 
trial,  on  account  of  the  admission  of  the  above 
testimony,  and  on  account  of  some  other  wit- 
nesses being  since  discovered,  who  could 
further  testify  to  the  facts  deposed  to. 

LIVINGSTON,  J.,  delivered  the  opinion  of  the 
court: 

Several  objections  are  made  to  the  plaint- 
376*]  iff's  right  *of  recovering.  1st.  It  is 
alleged  that  the  voyage  contemplated  while 
the  Catharine  was  at  Barcelona,  was  different 
from  the  one  insured,  and  that,  therefore,  the 
risk  never  commenced.  The  insurance  being 
at  and  from  Barcelona,  it  may  admit  of  doubt, 
whether,  as  the  loss  happened  there,  the  de- 
fendants would  not  be  liable,  although  a  voy- 
age to  the  Havanna  were  in  contemplation. 
But  on  this  point  of  law  we  give  no  opinion, 
because  it  is  sufficiently  proved  that  the  vessel 
was  destined  for  Baltimore.  Thus  have  the 
jury  found,  nor  could  their  verdict  have  been 
different,  without  disregarding  all  the  testimony 
in  the  cause.  The  defendants  themselves  are 
aware  that  this  finding  comported  with  the 
evidence,  and  have  accordingly  directed  their 
principal  attack  against  the  testimony  itself; 
for  they  say,  2d.  That  Mumford  was  the 
plaintiff's  witness,  and,  therefore,  could  not  be 
discredited  by  him.  Whether  this  gentleman 
be  regarded  as  the  witness  of  the  one  or  of  the 
other  party,  is  not  very  material  in  deciding 
this  cause;  he  had  been  examined  out  of  court, 
at  the  instance  of  the  defendants,  and  cross- 
examined  by  the  plaintiff,  who  produced  his 
deposition  on  the  trial.  Perhaps  the  best  gen- 
eral rule  in  such  cases,  would  be  to  consider 
the  witness,  if  his  deposition  be  read,  as  belong- 
ing to  the  party  on  whose  application  he  was 
examined,  without  any  regard  to  the  person  who 
may  finally  make  use  of  it.  But  without  decid- 
ing this  point,  we  think  nothing  was  done  by 
the  plaintiff  to  discredit  Mumford,  even  if  he 
had  been  his  witness.  It  is  not  every  mistake 
which  a  witness  may  make,  when  speaking 
from  memory,  that  will  discredit  him,  and  it 
377*]  would  be  a  strange  rule  indeed,  *that 
a  party  producing  a  witness,  should  not  be 

1.— Murdock  v.  Potts,  was  cited.  See  the  observa- 
tions on  that  cause.  1  Lex  Mer  Amer.,  320. 

COL.  AND  CATNES. 


permitted,  even  by  the  witness  himself,  to  cor- 
rect a  mistake  which  he  may  have  committed. 
Nothing  more  was  done  here;  Mumford  had 
sworn,  that  from  certain  papers  the  destination 
of  the  cargo,  according  to  his  recollection ,  ap- 
peared to  be  for  the  Havanna;  after  this,  there 
could  be  no  impropriety  in  showing  him  the 
papers  to  which  he  alluded,  or  any  other  to 
refresh  his  memory,  and  to  enable  him  to  cor- 
rect his  error,  if  he  had  made  one.  This  was 
no  imputation  on  his  character;  it  neither  ren- 
dered him  infamous  nor  unworthy  of  credit,  as 
to  the  other  point  to  which  he  had  deposed. 
It  discovered  in  the  witness  a  laudable  prompt- 
itude to  rectify  a  mistake,  into  which  an  im- 
perfect recollection  had  betrayed  him,  and  thus 
added  to,  rather  than  detracted  from,  the 
weight  of  his  testimony.  3d.  The  exhibits  B 
and  C  being  only  copies,  should  not,  it  is  said, 
have  been  produced.  If  no  allusion  had  been 
made  to  these  papers  by  Mumford,  they  could 
not  have  been  produced  to  show  the  real  object 
of  this  voyage;  but  he  had  already  testified 
that  he  had  made  out  certain  claims  against 
the  Spanish  government,  for  the  Catharine  and 
her  cargo,  which  stated  the  vessel  to  be  bound 
directly  for  the  West  Indies  ;  these  papers,  he 
added,  were  lodged  in  the  consulate  office  at 
Barcelona.  Having  sworn  thus  far  from  mem- 
ory, the  plaintiff  had  a  right  to  refresh  his  rec- 
ollection, by  the  showing  him  copies  of  the  claims 
referred  to.  On  inspection  he  might  probably 
be  able  to  determine  whether  they  were  true 
copies  or  not;  and  certainly  if  he  believed  them 
true,  they  would  furnish  better  evidence  of 
what  the  *originals  contained,  than  [*378 
any  parol  account  of  their  contents,  which  was 
the  only  way  in  which  the  defendants  had  at- 
tempted to  prove  them.  There  is  no  reason  to 
say  the  originals  were  in  the  plaintiff's  posses- 
sion. They  remained  in  a  public  office  in 
Spain;  and  this  kind  of  inferior  proof  was  ren- 
dered proper  by  the  defendant's  own  conduct. 
They  had  not  only  examined  the  witness  as  to 
the  contents  of  these  papers,  but  gave  the 
plaintiff  every  reason  to  believe  that  nothing 
would  be  required  of  him  but  proof  that  the 
property  was  American.  4th.  The  abandon- 
ment, it  is  said,  was  too  late.  The  Catharine 
was  seized  in  September,  1800,  and  not  aband- 
oned until  fifteen  months  thereafter.  It  has 
already  been  decided  by  this  court,  in  Earl  v. 
Shaw,  that  an  abandonment  may  be  made  at 
any  time  after  the  accident,  provided,  at  the 
date  of  the  abandonment,  the  loss  still  contin- 
ues total.  This  being  the  case  here,  the 
abandonment  was  in  season.  5th.  It  is  con- 
tended that  Mr.  Mumford  was  mistaken  or 
surprised  on  his  cross-examination,  and  that, 
therefore,  a  new  trial  should  be  had.  For  this 
purpose  his  affidavit  is  produced,  taken  nine 
months  after  the  trial,  in  which  he  states  that 
the  captions  of  the  exhibits  B  and  C  were  not 
shown  to  him,  to  the  best  of  his  knowledge  and 
belief,  and  endeavors  to  explain  why  they  were 
made  as  they  appear,  to  wit,  to  prevent  endan- 
gering the  insurance.  This  explanation  comes 
too  late  ;  a  witness  under  examination  may  ex- 
plain and  correct  himself,  but  it  will  be  dan- 
gerous and  improper  to  receive  any  elucidation 
from  him  after  the  trial,  and  especially  after 
the  lapse  of  so  many  months ;  besides,  the  de- 
fendants were  apprised  of  his  deposition  long 

171 


378 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1804 


before  the  trial,  and  are  without  excuse  for  not 
379*]  calling  on  *him  then,  to  make  such 
explanations  as  might  be  deemed  important. 
6th.  But  there  has  been  a  discovery  of  new 
evidence,  and  for  that  reason  there  should  be' 
another  trial.  It  is  said,  that  if  a  new  trial  be 
granted,  there  are  two  witnesses  who  were  not 
known  to  the  defendants  at  the  time  of  the 
trial,  who  can  testify  as  to  the  destination  of 
the  Catharine.  This  was  the  fact  principally 
controverted  on  the  former  trial,  and  we  are 
now  applied  to  for  another,  merely  because  all 
the  witnesses  who  knew  something  of  the 
matter,  have  not  been  examined.1  Every  one 
must  perceive  the  inconvenience  and  delay 
which  will  arise  from  granting  new  trials  upon 
the  discovery  of  new  testimony,  or  other  wit- 
nesses to  the  same  fact.  It  often  happens  that 
neither  party  knows  all  the  persons  who  may 
be  acquainted  with  some  of  the  circumstances 
relating  to  the  point  in  controversy;  if  a  sug- 
gestion then,  of  the  present  kind,  be  listened  to, 
a  second,  if  not  a  third  and  fourth  trial,  may 
always  be  had.  There  may  be  many  persons 
yet  unknown  to  the  defendants  who  may  be 
material  witnesses  in  this  cause,  and  this  may 
continue  to  be  the  case  after  a  dozen  trials; 
cases  may  occur  in  which,  if  great  doubts  ex- 
ist as  to  the  first  decision,  it  may  be  proper,  on 
the  discovery  of  further  witnesses,  even  to  the 
38O*]  same  fact,  to  open  the  cause  *for  a 
second  discussion;  but  this  is  not  one  of  them; 
the  principal  fact  here  was  clearly  proved,  and 
if  Lewis  and  Byrnes  had  both  been  examined,  it 
is  very  uncertain  whether  the  result  would  not 
have  been  the  same.  7th.  The  last  reason 
assigned  for  a  new  trial  is,  that  a  juror  was 
challenged,  in  the  absence  from  court  of  the 
defendant's  counsel,  and  in  consequence  of 
such  challenge  did  not  serve.  It  appears  that 
the  defendant's  counsel  was  in  court  when  the 
trial  of  the  cause  was  moved  for  and  brought 
on;  if  he  afterwards  left  it,  it  was  his  own 
fault.  In  contemplation  of  law,  he  was  so  far 
present  during  the  whole  trial,  that  no  motion 
by  the  adverse  counsel,  after  he  had  once  ap- 
peared, could  be  regarded  as  ex-parte.  He  had 
a  right  to  make  his  challenges  to  the  jurors, 
without  inquiring  whether  the  other  counsel 
was  in  court  or  in  the  hall.  On  the  challenge 
itself  it  is  unnecessary  to  decide;  it  may  well 
be  doubted,  however,  if  it  were  not  a  good  one 
to  the  favour;  underwriters  can  hardly  be 
proper  jurors,  in  cases  in  which  persons  pursu- 
ing the  same  business  are  parties.  Jurors  should 
be  omni  exceptions  majores. 

The  judgment  of  the  court  is,  that  the  de- 
fendants take  nothing  by  their  motion,  and 
that  the  rule  to  show  cause  why  there  should 
not  be  a  new  trial,  be  discharged  with  costs. 

N.  B. — In  another  action  on  the  freight  of 
the  same  vessel,  under  the  same  facts,  there 
was  a  demurrer  to  the  evidence,  on  which  the 
question  was  raised,  whether  a  demurrer  to 
evidence  confesses  all  the  facts  which  a  jury 
might  infer  ?  But  the  court  avoided  a  de- 


1.— It  Is  no  ground  for  the  court  to  grant  a  new 
trial,  that  a  witness  called  to  prove  a  certain  fact 
was  reJL-cted  on  a  supposed  ground  of  Incompe- 
tency,  where  another  witness  who  was  called,  estab- 
lishtKl  the  same  fact,  and  the  defence  proceeded 
upon  a  collateral  point,  on  which  the  verdict  turned. 
Edwards  v.  Evans,  3  East,  451. 
172 


cision  on  this  point,  saying  there  was  enough 
to  *warrant  the  verdict  of  the  jury.  [*38 1 
SPENCER,  J.,  however,  declared  he  considered 
the  demurrer  confessed  everything  a  jury 
might  infer.  That  he  founded  his  opinion 
on  the  case  of  Coksedge and Fanshaw  (in  Doug., 
119),  and  a  similar  decision  in  the  Livingston 
causes,  in  our  own  court  of  errors. 

Cited— 16  Abb.  N.  S.,  247  (note). 


JOSEPH  DAY  v.  WILLIAM  WILBER,  Q.  T. 

Certiorari — Selling  Liquors  Without  a  License — 
Indorsement  on  Warrant — Plea  or  Debt  men- 
tioned on  Process — Waiver — Defective  Venire 
— Continuing  Justice's  Court  for  Three  Daya — 
Oath  to  Constable  Attending  Jury. 

IN  error  on  a  certiorari  to  a  justice's  court, 
upon  a  conviction  under  the  10J.  Act,  for 
selling  spirituous  liquors  without  a  licence. 
The  plaintiff  assigned  twenty  errors,  but  re- 
lied principally  on  the  following:  1st.  That 
there  was  no  indorsement  on  the  warrant, 
either  of  the  name  of  the  plaintiff  or  the  title 
of  the  statute  on  which  the  process  was  issued. 
2d.  That  in  the  process  or  warrant  issued  on 
the  plaint,  there  was  no  plea  mentioned,  nor 
that  the  defendant  owed  the  plaintiff  and  the 
overseers  of  the  poor  any  money  and  detained 
it  from  them.  3d.  That  the  plaintiff  and  de- 
fendant being  freeholders,  the  process  was  by 
warrant,  and  not  by  summons.  4th.  That 
the  declaration  was  in  the  name  of  the  plaint- 
iff and  the  overseers  of  the  poor,  when  the 
process  was  in  the  name  of  the  plaintiff  only. 
5th.  That  the  justice  refused,  on  a  motion 
made,  to  quash  the  proceedings.  6th.  That 
before  the  jury  process  was  returned,  another 
was  issued.  7th.  That  the  justice  opened  the 
court  on  the  second  day  of  June,  and  con- 
tinued it  open  till  the  third  before  he  tried  the 
cause.  8th.  That  the  justice  swore  the  con- 
stable "to  attend  the  said  jury,  and  to  the  ut- 
most of  his  ability  to  keep  that  jury  together 
until  they  had  agreed  upon  their  verdict." 
*whereas,  by  the  law  of  the  land  he  [*38!2 
ought  to  have  sworn  the  constable  to  keep 
them  "  in  some  private  and  convenient  place 
without  meat  or  drink,  except  water,  and  not 
to  suffer  any  person  to  speak  to  them,  nor  to 
speak  to  them  himself,  unless  by  order  of  the 
justice,  or  to  ask  them  whether  they  have 
agreed  on  their  verdict,  until  they  have  agreed 
on  their  verdict." 

KENT,  C.  J.  I  shall  consider  the  causes 
alleged  for  error  in  the  order  in  which  they 
naturally  arise.  1st.  It  is  alleged  that  the 
directions  of  the  act,  commonly  called  the  10£. 
Act,  have  not  been  observed,  as  the  first  pro- 
cess was  by  warrant  and  not  by  summons. 
The  act  directs  that  the  justice,  on  application 
under  the  act,  shall  issue  a  summons  or  war- 
rant, as  the  case  may  require;  that  the  first 
process  against  freeholders  and  inhabitants 
having  families,  shall  be  by  summons,  un- 
less the  plaintiff  shall  prove  on  oath  that  he  is 
in  danger  of  losing  his  demand,  or  that  he 
believes  the  defendant  will  depart  the  coun- 
COL.  AND  CAINES. 


1804 


JOSEPH  DAY  v.  WILLIAM  WILBEK,  Q.  T. 


382 


try,  or  unless  the  plaintiff  be  non-resident, 
&c.  The  return  states,  that  the  plaintiff  be- 
low prayed  process  by  warrant,  and  that  the 
justice  thereupon,  and  in  pursuance  of  the 
act,  issued  his  warrant;  that  the  defendant 
was  brought  in  on  the  warrant,  and  the 
plaintiff  declared,  and  the  defendant  joined 
issue  thereon  and  prayed  an  adjournment, 
which  was  granted,  and  on  the  day  to  which 
adjourned,  the  parties  again  appeared,  and 
then  the  defendant  objected  that  the  warrant 
did  not  issue  in  comformity  to  the  act  regu- 
lating informations.  As  the  defendant,  there- 
fore, acquiesced  in  the  process  and  never  ob- 
383*  J  jected  to  it  because  *it  was  a  warrant, 
and  it  being  stated  to  be  issued  in  pursuance 
of  the  act,  we  are  to  intend  it  was  duly  issued, 
or  if  not  so,  the  irregularity  was  waived  by 
the  defendant.  2d.  It  is  alleged,  that  the  suit 
being  for  a  penalty  given  by  the  16th  section 
of  the  Tavern  Act  (1  Rev.  Laws,  490),  ought 
to  have  followed  the  directions  of  the  Act 
passed  6th  February,  1788,  to  redress  disorders 
by  common  informers,  which  requires  the 
name  of  the  plaintiff  and  the  title  of  the  act 
to  be  indorsed.  Proceedings  under  the  10?. 
Act  are  to  be  regulated  entirely  by  that  act, 
and  the  act  relative  to  common  informers, 
does  not  apply  to  these  proceedings.  The 
terms  of  it  are  altogether  inapplicable.  It 
vsupposes  process  to  be  issued  by  a  clerk,  and 
says  that  the  like  process  shall  be  awarded  as 
in  an  action  of  trespass  at  common  law.  3d. 
The  warrant  is  alleged  not  to  state  a  plea  or 
cause  of  action  to  which  the  defendant  is  to 
answer,  and  that  it  is  stated,  that  the  defend- 
ant is  to  answer  to  the  people,  whereas  the 
10?.  Act  says  that  justice  shall  not  have  cog- 
nizance of  any  cause  wherein  the  people  are 
concerned.  The  defects  in  the  warrant,  what- 
ever they  may  be,  are  cured  by  the  general 
plea  of  the  defendant.  He  has  waived  all 
these  defects  since  he  pleaded  the  general 
issue,  and  afterwards  made  no  other  objection 
to  the  warrant,  than  that  it  did  not  conform 
to  the  act  relative  to  common  informers,  and 
which  act,  as  I  have  already  observed,  did 
not,  and  could  not  apply.  We  have  decided 
in  the  cases  of  Wool  v.  Bevil,  July  Term, 
1801,  and  of  Young  v.  Canada,  January 
Term,  1802,  that  a  defective  venire  was  cured 
if  the  party  made  no  objection  at  the  time, 
but  went  on  to  trial,  and  there  is  equal,  if  not 
384*]  stronger  *reason  why  a  like  conduct 
should  cure  a  defective  process,  the  only  ob- 
ject of  which  was  to  bring  the  party  into 
court.  But  I  consider  the  process  as  good. 
It  states  the  ground  of  action  specifically,  and 
that  the  plaintiff  was  the  complainant  upon 
oath,  and  that  the  defendant  was  to  be 
brought  in,  to  answer  to  the  complaint  of  the 
plaintiff,  and  does  not  allege  that  he  was  to 
answer  to  the  people.  4th.  It  is  alleged  that 
the  declaration  varies  in  substance  from  the 
process.  The  proper  answer  to  this  is,  that 
the  defendant  by  not  pleading  that  variance, 
but  pleading  in  chief,  has  waived  it,  and  so 
this  court  has  frequently  decided  in  like  cases. 
But  it  is  not  true  in  fact,  that  there  is  any 
substantial  variance.  The  declaration  only 
unfolds  more  at  large  the  same  charge,  which 
is  briefly  stated  in  the  process,  to  wit,  the  re- 
tailing of  spirituous  liquors  without  a  permit. 
OOL.  AND  CAINES. 


5th.  Another  objection  is,  that  the  justice 
overruled  the  motion  to  quash  the  proceed- 
ings, or  as  the  record  says,  to  abate  the  war- 
rant. The  answer  to  this  has  already  suffi- 
ciently been  given,  since  the  only  reason  as- 
signed why  it  should  be  abated,  was  that  the 
process  did  not  conform  to  the  act  for  regu- 
lating informations.  6th.  It  is  next  object- 
ed, that  the  venire  is  defective,  but  as  the 
venire  was  issued  at  the  instance,  and  upon 
the  prayer  of  the  defendant,  it  does  not  lie 
with  him  to  allege  error  in  it.  This  point 
was  decided  by  this  court  in  the  cause  of 
Callinan  v.  Jittson,  October  Term,  1801,  and 
it  has  frequently  been  so  decided  in  other 
cases,  nor  do  I  conceive  it  to  have  been 
illegal  for  the  justice  to  have  issued  a  fresh 
venire  when  the  first  venire  had  not  been  carried 
into  effect,  but  had  been  mislaid,  kept,  or 
withheld  by  the  defendant  himself,  to  whom 
it  had  been  *delivered.  This  allega-  [*38o 
tion  in  the  record  we  are  to  take  for  truth, 
and  it  became  indispensable  then,  that  a  new 
venire  should  issue,  or  the  act  of  the  defend- 
ant might  have  totally  defeated  the  plaintiff's 
action.  It  would  not  have  been  legal,  I  ap- 
prehend, for  the  justice  to  have  proceeded  to 
try  the  cause  without  a  jury,  after  the  prayer 
of  the  defendant  for  one,  and  it  would  be 
most  unjust  for  him  to  avail  himself  of  his 
own  laches  or  act  to  injure  the  action  of  the 
plaintiff.  I  am  of  opinion,  therefore,  that 
the  issuing  of  the  second  venire  was  proper, 
and  that  it  is  to  be  considered  as  the  process 
of  the  defendant  below,  and  that  no  objection 
to  the  form  of  it  will  now  lie  with  that  de- 
fendant. 7th.  Another  objection  is,  that  the 
court  was  continued  over  from  the  second  of 
June,  when  the  first  venire  was  returnable,  to 
the  third  of  June,  when  the  cause  was  tried. 
If  the  court  was  opened  on  the  second  of 
June,  as  we  must  intend,  and  the  delay  cre- 
ated by  the  defendant  in  summoning  the  jury 
rendered  it  requisite  to  keep  the  court  open 
till  the  next  day,  there  was  no  error  in  that 
proceeding.  It  became  necessary,  and  the 
parties  were  bound  to  take  notice  of  it  and  at- 
tend accordingly.  There  is  nothing  in  the 
law  to  prohibit  a  justice  from  continuing  his 
court  from  one  day  to  the  next,  when  the 
exigencies  of  the  case  require  it.  If  the  de- 
fendant neglected  or  refused  to  attend,  the 
justice  was  authorized  to  proceed  in  the  trial 
without  him;  but  we  are  rather  to  intend  that 
the  parties  were  present  at  the  trial,  for  the 
record  states  that  the  jury  did  hear  the  proofs 
and  allegations,  then  and  there  made  and  ex- 
hibited. However,  it  is  immaterial  in  respect 
to  the  objection,  whether  the  defendant  was 
or  was  not  *present.  8th.  The  last  error  [*386 
alleged,  and  which  requires  notice  is,  that  the 
constable  was  not  sworn  according  to  law  to 
keep  the  jury.  The  act  gives  a  precise  form 
of  oath  in  this  case,  and  the  return  states  that 
after  the  jury  had  heard  the  proofs  and  alle- 
gations, the  constable  was  sworn  to  attend 
them,  and  to  the  utmost  of  his  ability  to  keep 
them  together  in  some  private  and  convenient 
place,  until  they  had  agreed  upon  their  ver- 
dict. The  return  does  "not  state  any  further 
as  to  the  oath,  nor  are  there  any  negative 
words  excluding  the  inference  that  the  whole 
oath  was  administered  in  the  form  prescribed. 

173 


386 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1804 


As  far  as  the  oath  is  stated  it  is  correct,  and, 
in  mv  opinion,  we  must  intend  the  whole  oath 
was  "duly  administered.  This  intendment  is, 
in  many  respects,  reasonable,  for  in  the  first 
place  there  was  no  objection  stated  at  the 
time  by  either  party  to  the  form  of  the  oath, 
and  setting  forth  the  words  of  the  oath  was  an 
act  of  supererogation  in  the  justice,  as  it 
formed  no  part  of  the  record  and  process  be- 
fore him.  The  form  of  the  oath  to  the  wit- 
nesses is  equally  prescribed  by  the  act,  and 
yet  the  form  is  never  or  rarely  set  forth  in  the 
return  to  a  certioran,  nor  is  it  ever  required. 
The  record  does  not  set  forth  the  oath  stated 
as  given  in  hac  verba.  It  does  not  pretend  to 
give  the  exact  form  of  the  one  administered. 
If  the  oath,  as  far  as  stated,  had  varied  from 
the  act,  it  might  have  altered  the  case,  but 
pursuing  it  as  far  as  stated,  and  not  being 
averred  to  have  been  all  the  oath  that  was  ad- 
ministered, we  are-  bound  to  conclude  the  con- 
stable was  legally  sworn.  It  has  been  estab- 
lished by  several  decisions  in  this  court,  that 
we  would  liberally  intend  in  favor  of  the 
legality  of  justices'  proceedings.  Thus  in  the 
387*]  *case  of  Wright  v.  Antlumy,  January 
Term,  1802,  we  said  we  would  intend  an  issue 
joined  if  the  parties  went  to  trial  on  the  merits; 
and  in  the  case  of  Carna  \.  Penfield,  at  the 
same  term,  the  jury,  it  appeared,  had  found 
eight  cents  for  the  defendant  on  a  plea  of 
payment,  and  we  intended  a  set-off,  to  help  it 
out.  These  decisions  are  in  conformity  to  the 
intent  and  spirit  of  the  act,  which  declares 
(p.  500)  that  we  shall  give  judgment  accord- 
ing as  the  very  right  of  the  case  shall  appear, 
without  regarding  any  imperfection,  omission 
or  defect  in  the  proceedings  in  the  court  be- 
low in  mere  matters  of  form.  I  cannot  but 
think  that  reversing  a  justices'  judgment,  be- 
cause part  only  of  the  constable's  oath  is  in- 
serted in  the  record,  would  be  a  decision  at 
once  new  and  rigorous;  especially,  when  none 
of  it  need  be  inserted;  when  there  are  no 
words  negativing  the  idea  that  the  whole 
form  was  administered,  when  no  objection 
was  taken  at  the  time  by  the  parties,  when  we 
are  bound  to  overlook  all  defects  of  form  and 
decide  on  the  very  right  of  the  case,  and  when 
in  manv  other  instances  we  have  liberally  in- 
tended in  support  of  thair  judgments. 

THOMPSON,  J..  concurred  in  the  above 
opinion  in  all  points. 

LIVINGSTON,  SPENCER,  and  TOMPKINS,  J., 
in  all,  except  as  to  the  constable's  oath;  on 
that  point  they  conceived  the  error  fatal,  and 
therefore  ordered  judgment  of  reversal. 

Mr.  Gold,  the  next  day,  on  an  affidavit  stating 
that  the  manner  in  which  the  oath  was  set 
388*]  forth  in  the  record  *arose  from  a 
clerical  error  in  copying,  applied  on  the  au- 
thorities of  Cowp.,325  (Varelst  and  Smith  v. 
Rfifcet),  Doug.,  134  (The  King  v.  Lyme  Reyis), 
and  1  H.  Black.,  238  (Skutt  v.  Woodward),  to 
amend  the  return.  The  court  was  pleased  to 
order  that  the  entry  of  judgment  should  be 
staid  until  further  order,  and  that  the  justice 
have  leave  till  the  first  day  of  next  term  to 
amend  his  return,  so  far  as  relates  to  the 
form  of  the  said  oath. 
174 


DE  WITT  CLINTON 

«. 
PETER  B.  PORTER. 

Amendment — of  Declaration — Oyer —  Variance. 

IN  debt  on  a  bond,  the  plaintiff  set  out  the 
real  oyer  of  it.  The  defendant  then  de- 
manded oyer,  which  was  given  to  him  variant 
from  that  set  out,  on  which  the  defendant 
pleaded  non  est  factum.  The  plaintiff  then, 
without  any  rule  or  notice,  served  a  fresh 
oyer,  setting  out  the  bond  and  condition 
truly;  twenty  days  having  elapsed,  he  signed 
judgment  by  default. 

Mr.  Emott,  on  affidavit  disclosing  the  above 
facts,  moved  to  set  aside  the  default  and  sub- 
sequent proceedings. 

Mr.  Van  Vechten,  contra,  insisted.that  the  case 
was  within  the  eighth  rule  of  April,  1796,  which 
allows  of  amending  declarations,  <fcc.,  and 
that  all  permitted  by  that  rule  might  be  done 
of  course. 

Per  Curiam.  Take  the  effect  of  your  motion, 
with  costs. 


*JACKSON,  ex  dem.  VAN  SLYCK  [*389 

ET    AL. 

THOMAS  SON. 

1.   Cross-examination — (hrn    Witness.     2.    En- 
dence— Parol  Proof  of  Writ— Notice  to  Produce. 

IN  ejectment  on  a  motion  for  a  new  trial. 
It  appeared  that  at  nisi  prius  the  plaintiff 
claimed  by  descent.  On  the  cross  examina- 
tion of  one  of  his  witnesses,  by  the  defendant, 
it  came  out  that  the  ancestor  had  made  a  will, 
of  which  the  judge  who  heard  the  cause,  ad- 
mitted parol  testimony  without  any  notice  to 
produce  it  having  been  given. 

Per  Curiam.  A  new  trial  must  be  awarded 
with  costs  to  abide  the  event.  When  the 
defendant  cross-examined  he  made  the  wit- 
ness as  much  his  own  as  if  he  had  himself 
called  him.  He,  therefore,  could  not  intro- 
duce through  him  any  proof  which  would  not 
have  been  legal,  had  the  witness  been  origin- 
ally produced  on  his  behalf.  In  Jackson  ex 
dem.  Van  Renssettcer,  April  Term,  1801,  the 
same  point  was  ruled.  The  judge,  therefore, 
was  clearly  wrong  in  admitting  parol  proof 
of  a  will,  as  the  party  did  not  show  any 
notice  on  the  opposite  side  to  produce  it. 


*NOVEMBER  TERM,  1804       f*39O 


THE  PEOPLE 
SAMUEL  and  JOB  WRIGHT. 

Jurisdiction — Of  Offence*  in  Another  State — Re- 
quisition. 

THE  defendants  were  in  the  custody  of  the 
sheriff,  on  very  heavy  civil  process,  and 
COL.  AND  CAINES. 


1804 


JOMES  VAN  HOBNE  v.  JOSEPH  D.  PETRIE,  ET  AL. 


390 


while  thus  detained  a  warrant  was  issued 
against  them  by  one  of  the  special  justices  for 
the  city  of  New  York,  grounded  on  an  authen- 
ticated copy  of  an  indictment  found  against 
them  in  Massachusetts,  for  a  fraud  alleged  to 
have  been  committed  there. 

Mr.  Hiker,  District- Attorney,  on  these  facts, 
moved  to  have  them  taken  out  of  the  custody 
of  the  sheriff  and  committed  to  Bridewell. 

Per  Curiam.  We  cannot  do  it.  We  have 
no  jurisdiction  over  offences  committed  in 
other  States.  The  Constitution  points  out  a 
mode  by  which  offenders  flying  from  one 
State  into  another,  may  be  claimed.  They 
must  be  demanded  by  the  executive  authority 
of  the  State  from  which  they  fled. 

The  prisoners  must  be  remanded. 


JOMES  VAN  HORNE 

«. 
JOSEPH  D.  PETRIE,  ET  AL. 

Costs — Of  Increase — Verdict  for  $50  and  6  cents 
Costs — Statute. 

IN  this  case  the  jury  found  a  verdict  in  favor 
of  the  plaintiff,  for  fifty  dollars  damages 
and  six  cents  costs.     It  was  submitted  to  the 
court,  whether  he  was  not  entitled  to  his  costs 
of  increase. 

391*]  *Per  Curiam,  delivered  by  LIVING- 
STON, J.  We  think  he  is  not.  The  act  de- 
clares that  if  the  plaintiff  "  shall  not  recover 
above  the  sum  of  fifty  dollars  besides  costs,  he 
shall  not  recover  any  costs,  but  shall  pay 
costs  to  the  defendant."  The  recovery  here 
spoken  of  means  the  damages  assessed  by  the 
jury  eo  nomine,  exclusive  of  the  costs  which 
they  may  arbitrarily  find.  The  finding  of  a 
jury  as  to  costs,  has  nothing  to  do  with  those 
which  are  to  be  allowed  in  taxation,  other- 
wise they  might  entirely  control  the  statute 
on  this  subject;  for,  in  many  cases,  where 
they  could  not,  in  conscience,  give  more  than 
a  cent  in  damages  to  the  plaintiff,  they  might 
think  it  hard  on  him  not  to  recover  costs  of 
increase,  and,  therefore,  to  entitle  him  to 
them,  they  might  find  a  verdict  of  one  cent 
damages  and  seventy  dollars  costs;  this  would 
hardly  be  allowed.  If  the  verdict  were 
recorded  in  this  form,  the  court  would  not 
hesitate  in  rendering  judgment  on  it,  to  reject 
the  finding  as  to  the  costs,  as  altogether  nuga- 
tory, and  not  within  the  province  of  a  jury: 
or,  if  they  gave  judgment  for  the  costs  thus 
found,  the  damages  being  under  fifty  dollars, 
they  would  (and  such  is  our  judgment  here) 
order  the  plaintiff  to  pay  costs  to  the  defend- 
ant. 


CALEB   SEAMAN  v.   DANIEL   BAILEY. 

Costs — Verdict  for  $25  and  6  cents  Costs — 1  Bev. 
Laws,  530. 

fFHIS  case,  which  came  before  the  court  on 
J-  a  writ  of  error  to  the  Common  Pleas  of 
Orange  County,  was,  like  the  former,  a  ques- 
tion of  costs.  The  plaintiff,  who  was  the 
COL.  AND  CAINES. 


plaintiff  below,  had  recovered  twenty-five  dol- 
lars in  the  inferior  court,  and  the  judges  there 
had  ordered  costs  to  the  defendant 

*Per  Curiam,  delivered  by  LIVING-  [*392 
STON,  J.  The  plaintiff  below,  who  is  also 
plaintiff  here,  had  his  damages  assessed  by  a. 
jury  of  inquiry,  over  and  above  his  costs  and 
charges,  to  twenty -five  dollars  and  for  those 
costs  and  charges  to  six  cents.  On  this  inqui- 
sition, the  Court  of  Common  Please  rendered 
judgment  that  "  the  plaintiff  recover  against 
the  defendant,  his  damages  aforesaid,  by  the 
said  inquisition  above  found,  being  twenty- 
five  dollars  and  six  cents;  and  further,  that 
the  plaintiff  pay  to  the  defendant,  eleven  dol- 
lars and  nine  cents  for  his  costs." 

This  judgment  the  plaintiff  insists  on  is 
erroneous,  inasmuch  as  it  awards  costs  to  the 
defendant,  when  he  ought  to  have  paid  costs 
to  the  plaintiff.  For  the  reasons  assigned  in 
the  preceding  case  of  Van  Home  v.  Petrie  et 
al.,  we  think  the  judgment  below  was  right. 
The  fifth  section  of  the  "  Act  to  reduce  cer- 
tain laws  concerning  costs  into  one  statute  " 
(1  Rev.  Laws,  530),  enacts  that  if  any  action 
of  the  nature  of  the  present,  brought  in  any 
Court  of  Common  Pleas,  "the  plaintiff  shall 
not  recover  above  the  sum  of  twenty -five  dol- 
lars, he  shall  not  recover  any  costs,  but  shall 
pay  costs  to  the  defendant."  In  our  opinion, 
the  plaintiff  did  not,  within  the  meaning  of 
this  section,  recover  more  than  twenty-five 
dollars,  notwithstanding  the  jury  gave  him 
six  cents  costs,  nor  does  the  manner  of  rend- 
ering judgment  which,  is,  in  fact,  only  for  the 
damages  assessed  by  the  jury,  make  any  dif- 
ference, although  the  attorney,  in  making  up 
the  record,  has  in  a  parenthesis,  and  in  a  way 
not  very  usual,  stated  these  damages  (very  in- 
correctly by-the-bye)  to  amount  to  twenty -five 
dollars  and  six  cents.  As,  in  the  case  just 
determined,  we  take  no  notice  of  *the  [*393 
costs  found  by  the  jury,  but  consider  the  sum 
assessed  as  damages,  as  the  recovery  intended 
by  the  law. 

The  judgment  below  must,  therefore,  be  af- 
firmed. 


DANIEL  FARRINGTON 
SAMUEL  RENNIE. 

Costs — Verdict  for  $17 — Freehold  in  Question — 
1  Rev.  Laws,  529 — Plea  of  Liberum  Tene- 
nientum. 
Citation— 1  Rev.  Laws,  529. 

IN  trespass  de  bonis  asportatw  the  defendant 
pleaded  not  guilty,  and  gave  notice  that 
the  Is>cus  in  quo  was  his  freehold.  At  the 
trial,  $17  only  were  recovered.  The  plaintiff, 
however,  contended  he  was  entitled  to  full 
costs,  as  it  appeared  from  the  notice  that  the 
freehold  had  come  in  question.  » 

Per  Curiam,  delivered  by  LIVINGSTON,  J.: 
By  the  fourth  section  of  the  "  Act  to  reduce 
certain  laws  concerning  costs,  into  one  statute," 
(1  Rev.  Laws,  529),  it  is  enacted  that  "  if  in  any 
personal  action  prosecuted  in  this  court,  the 
plaintiff  shall  not  recover  above  the  sum  of 

175 


393 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1804 


fifty  dollars,  besides  costs,  be  shall  not  recover 
any  costs  but  shall  pay  costs  to  the  defendant, 
to  be  taxed."  "Provided,  however,"  that 
nothing  therein  contained,  "shall  extend  to 
any  action  where  the  freehold  or  title  to  land 
shall  in  any  wise  come  in  question."  In  this 
case  we  think  it  does  not  appear  that  it  did. 

Where  libenim  tenementum  is  put  on  the 
record  in  form  of  a  plea,  it  does  not  necessari- 
lv  follow  that  the  title  will  come  into  question. 
T-he  plaintiff,  by  his  replication,  may  admit 
that  fact,  and  yet  have  a  right  to  recover. 
394*]  Still  less  inevitable  is  this  conclusion* 
where,  subjoined  to  the  plea,  is  a  notice  of  the 
kind  given,  to  which  a  party  cannot  reply,  and 
the  matter  of  which  may  be  altogether  aband- 
oned, ar  not  insisted  on  at  the  trial.  Upon 
the  whole,  instead  of  looking  at  the  pleadings, 
and  relying  on  them  how  costs  in  these  actions 
are  to  be  disposed  of,  we  think  it  best  in 
future,  in  all  cases  of  trial,  to  require  a  certifi- 
cate of  the  judge  who  presided,  "  that  the 
freehold  or  title  to  lands  and  tenements,  did 
come  in  question,"  as  the  best  and  only  evi- 
dence of  costs  being  due  under  this  proviso. 
Although  the  act  be  silent  as  to  any  certificate, 
we  think  it  a  mode  of  ascertaining  the  fact, 
the  most  free  of  objection,  and  not  so  liable  to 
mistakes,  as  conclusions  drawn  from  a  refer- 
ence to  the  pleadings. 

In  this  case  we  are  of  opinion  that  the  plaintiff 
pay  costs  to  tJte  defendant. 


BENJAMIN  HOUGH 

v. 
TIMOTHY  STOVER. 

Non-enumerated  Motion — Arrest  of  Judgment — 
Specifying  Reasons. 

IT  was  ruled  in  this  case  at  the  last  term  that 
no  application  in  arrest  of  judgment  was  a 
non-enumerated  motion,  and  that  the  notice 
need  not  specify  the  reasons;  because,  as  they 
are  on  the  face  of  the  record,  they  must  neces- 
sarily appear  to  the  adverse  party. 


HENRY    H.   STALEY 

V. 

JAMES-BARHITE,  and  MARY,  his  Wife. 

1.  Judgment — Joinder  of  Wife  in  Assvmpsit.  2. 
Ibid — Jury— Constable  not  Sworn. 

IN  error  on  certiorari,  Ostrander  submitted 
that  the  judgment  obtained  against  the 
now  plaintiff  by  the  present  defendants, 
ought  to  be  reversed.  1st.  Because  the  wife 
3f)5*]  was  joined  in  the  action  below,  *which 
was  a##ump*it,  without  showing  how  she  had 
any  interest.  2d.  Because  it  appeared  from 
the  record  that  a  person  not  a  constable  was 
sworn  to  attend  the  jury,  and  for  these  reasons 
the  judgment  was  accordingly  reversed. 
170 


DAVID  HALLOCK  v.  JOHN  ROBINSON. 

1.   Trespass — Plea  of  Liberum  Tenementum — 
New  Assignment.     2.  Amendment — Costs. 

ON  demurrer  in  trespass  quare  clausumfregit. 
The  plaintiff  declared  generally,  for 
breaking  and  entering  his  close  in  the  town- 
ship of  Brookhaven.  The  defendant  pleaded 
liberum  tenementum,  specifying  and  setting  it 
out  by  metes  and  bounds.  To  this  the  plaint- 
iff, without  new  assigning,  replied  his  own 
freehold,  traversing  the  freehold  of  the  de- 
fendant and  concluding  with  an  el  7ioc  paratus 
praying  his  damages.  The  defendant  demurred 
specially,  and  showed  for  cause  a  variety  of 
reasons,  but  relied  principally  on  the  want  of 
a  new  assignment  and  the  not  concluding  to 
the  country. 

Mr.  Sanford,  for  the  demurrer. 
Mr.  Woods,  contra. 

KENT,  C.  J.  The  replication,  is  evidently 
no  answer  to  the  plea  of  the  defendant,  set- 
ting forth  by  specific  metes  and  bounds  a  par- 
ticular close  as  his  freehold.  The  plaintiff 
replies  only  that  the  close  in  the  declaration  is 
his  close,  but  says  nothing  as  to  the  specific 
close  in  the  plea,  which  is  left  totally  unan- 
swered. If  the  plaintiff  had  averred  the  close 
in  the  plea  to  be  his,  he  ought,  perhaps,  to 
have  tendered  an  issue.  As,  however,  we 
think  the  plaintiff  *should  have  new  [*39<> 
assigned,  it  is  unnecessary  to  decide  in  what 
manner  his  replication  should  have  concluded. 

Mr.  Woods  applied  for  leave  to  amend  on 
costs. 

Mr.  Sanford  resisted,  as  there  had  been  one 
amendment  without  costs,  and  hoped,  if  it 
was  granted,  it  would  be  on  payment  of  those 
formerly  incurred. 

KENT,  C.  J.  Amend  on  payment  of  the  costs 
of  this  demurrer. 


JOHN  VAN  COTT 

v. 
NATHANIEL  NEGUS. 

Costs — Case — Negligence —  Verdict  of  six  cent 
Damages  and  six  cents  Costs. 

rTRESPASS  on  the  case,  brought  in  the 
J-  Common  Pleas,  against  the  defendant,  for 
so  negligently  and  unskillfully  managing  his 
vessel  that  she  ran  foul  of  and  injured  the 
vessel  of  the  plaintiff,  and  disabled  some  of 
his  sailors.  The  jury  found  a  verdict  for  the 
plaintiff  with  six  cents  damages  and  six  cents 
costs.  It  was  submitted  to  the  court  to  deter- 
mine whether  the  plaintiff  should  recover  his 
costs  or  pay  costs  to  the  defendant. 

Per  Curtain.     We  think  the   defendant  en- 
titled to  receive  costs  from  the  plaintiff . 

COL.  AND  CAINES. 


1804 


^WILLIAM  H.  DEVOE  v.  JACOB  ELLIOTT. 


396 


WILLIAM  H.  DEVOE 


JACOB  ELLIOTT. 

Fieri  Facias  —  Levy  on  Property  Acquired  After 
the  Return  Day. 


was  an  action  against  the  defendant  to 
J-  recover  the  value  of  a  mare,  sold  by  him 
to  the  plaintiff. 

397*]  *The  facts  were  that  on  the  17th  of 
June,  1800,  a  writ  of  fieri  facias  was  delivered  to 
the  sheriff  of  Montgomery,  against  the  goods, 
<fec.  ,  of  A  very  Herrick,  returnable  on  the  third 
Tuesday  in  July,  then  next.  On  the  10th  of  No- 
vember following,  Herrick  bought  the  mare  in 
question,  and  sold  her  to  the  defendant,  of 
whom  she  was  purchased  by  the  plaintiff.  A 
few  days  after  this  the  sheriff  levied  on  the 
mare  in  the  plaintiff's  hands,  and  sold  her  by 
virtue  of  the  writ,  then  remaining  unsatisfied. 
The  only  question  for  the  court  was,  whether 
a  sheriff  by  virtue  of  &  fieri  facias,  put  into  his 
hands  before  the  return  day,  can  legally  sell 
goods  which  the  party,  against  whose  property 
the  writ  issues,  may  acquire  subsequent  to  the 
return? 

Mr.  Cadey,  for  the  plaintiff. 
Mr.  Hildreth,  contra. 

Per  Curiam,  delivered  by  THOMPSON,  J. 
The  only  question  arising  in  this  case  for  the 
consideration  of  the  court  is,  whether  a  sheriff 
can,  by  virtue  of  a  fieri  facias,  duly  delivered 
to  him  before  the  return  day,  legally  levy  on 
and  sell  goods  and  chattels  acquired  by  the  de- 
fendant after  the  return  day  in  the  execution? 
I  think  he  cannot.  I  take  it  to  be  a  general 
principle,  that  all  process  must  be  served  be- 
fore the  return  day.  The  utmost  length  the 
law  allows  for  executing  a  writ  is,  the  day 
whereon  it  is  returnable.  When  a  sheriff  has 
levied  an  execution  in  due  time,  he  may  com- 
plete the  same  by  sale  after  the  return  day,  but 
4598*]  should  he  omit  levying  until  that*day 
was  passed,  I  should  deem  the  execution  dead. 
If  these  positions  be  correct,  I  cannot  see  how 
goods  purchased  by  a  defendant,  after  the  re- 
turn day  in  an  execution  is  passed,  can  be 
taken  and  sold  under  such  process.  The  only 
mode,  I  conceive,  of  getting  at  such  property 
is,  by  procuring  a  return  of  the  execution  and 
issuing  an  alias.  A  contrary  practice  would 
be  mischievous  and  a  fraud  upon  other  credi- 
tors. 

The  opinion  of  the  court,  therefore,  is,  that 
Judgment  of  nonsuit  be  entered  pursuant  to  the 
stipulation  in  the  case. 


DE  WITT  CLINTON 

v. 
MACKAY  CROSWELL. 

Change  of  Venue — Libel — Circulation  of  Libel. 
rPHIS  was  an  action  for  publishing  a  libel. 

Mr.  Hopkins,  on  the  common  affidavit  moved 
to  change  the  venue  from  the  City  and  County 
of  New  York  to  the  County  of  Greene. 
COL.  AND  C \INES.  N.  Y.  REP.,  BOOK  1. 


Mr.  Biker,  contra,  read  an  affidavit  by  the 
plaintiff,  stating  that  he  resides  in  New  York, 
and  that  the  suit  was  brought  for  the  publica- 
tion of  a  libel,  in  a  newspaper  published  in  the 
County  of  Greene,  by  the  defendant,  and  which 
he  saw  exposed  to  the  view  of  many  persons 
in  this  city,  and  that  the  plaintiff  verily  be- 
lieved the  defendant  was  the  editor  or  printer 
of  the  said  paper.  On  these  facts  it  was  in- 
sisted that  the  affidavit  of  the  cause  of  action 
arising  wholly  in  the  County  of  Greene  was 
not  correct,  because,  wherever  the  paper  circu- 
lated a  right  of  action  accrued.  It  was  con- 
tended to  be  of  more  importance  to  *an  [*39& 
individual  to  protect  his  character  against  li- 
bels disseminated  in  the  place  of  his  residence, 
than  in  a  remote  part  where  he  might  be  scarce- 
ly known.  Therefore,  in  Pinkney  \.  Collins 
(1  D  &  E.,  571),  the  court  refused  to  change 
the  venue  from  the  place  where  the  libel  was 
circulated  to  that  where  printed. 

Per  Curiam.  There  is  no  ground  for  the 
application.  The  defendant  can  take  nothing 
by  his  motion,  and  must  pay  costs  to  the  plaint- 
iff. 


CANDEE  «.  GOODSPEED. 

Justice's  Court — Adjourning  for    More    Than 
three  Days  against  Objection. 

IN  error  on  certiorari  from  a  justice's  court. 
The  plaintiff  was  a  nonresident,  and  the  suit 
commenced  by  warrant. 

The  defendant,  on  account  of  the  inevitable 
absence  of  a  material  witness,  and  after  due- 
diligence  used  to  procure  him,  requested  an 
adjournment  for  more  than  three  -days,  offer- 
ing the  same  security  as  is  required  by  the  8th 
section  of  the  101.  Act.  The  plaintiff  refusmg 
to  consent  to  the  delay,  the  justice,  of  his  own 
authority,  adjourned  over.  This  was  alleged 
for  error. 

Per  Curiam.  The  seventh  section  is  too 
positive  and  peremptory  to  be  got  over.  The 
justice  had  not  any  power  to  adjourn  beyond 
the  three  days. 


ANONYMOUS. 

Nonsuit — Trial  not  Had — Preference  where  At- 
torney-General or  District  Attorney  are  Con- 
cerned. 

IT  was  ruled  that  the  causes  in  which  public 
officers.such  as  the  Attorney-General, district, 
attorney,  *and  the  like,  are  concerned,  [*4rOO 
have  no  preference  at  the  sittings  or  circuits; 
nor  will  such  circumstance  afford  an  excuse 
for  not  going  to  trial  according  to  notice,  or  a 
reason  to  refuse  judgment  of  nonsuit ;  it  being 
the  duty  of  public  officers  to  provide  other 
counsel  when  they  cannot  themselves  attend, 
and  if  they  do  not,  it  is  at  their  peril. 

12  177 


400 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1804 


JOSIAH  WADDINGTON 

v. 
CHAMBERLIN  AND  CLASON. 

Attachment— Renewal  of  Rule — Failure  of  Clerk 
to  Forward  Rule. 

T  AST  term  the  court  had,  in  this  suit,  grant- 
±J  ed  a  rule  to  show  cause  why  an  attachment 
should  not  issue  against  A.  B.,  but  from  some 
accident  in  the  clerk's  office  in  Albany,  the 
rule  had  not  been  forwarded  so  as  to  admit  of 
serving  a  copy  twenty  days  before  the  term. 

Mr.  Riggs,  on  these  facts,  moved  to  renew 
the  rule  for  the  attachment,  which  was    . 

Ordered  accordingly. 


DAY  v.  WILDER. 

Vacating  Rule   Granted  on  argument  by  Full 
Court,  two  Justices  only  Present. 

rpHE  court, consisting  of  only  Livingston  and 
-L  Tompkins,  Justices,  said,  very  slight  grounds 
would  be  sufficient  to  induce  them  to  refuse 
vacating  a  rule,  granted  on  argument,  in  full 
court. 


MUMFORD  AND  MUMFORD 

v. 

THE    COLUMBIAN    INSURANCE    COM- 
PANY. 

Nonsuit — Trial  not  had — Motion — Time. 
Citation— Ante,  186. 

IT  was  ruled  that  judgment,  as  in  case  of 
nonsuit  for  not  proceeding  to  trial,  must  be 
4O1*]  moved  for  the  next  *term  after  the 
laches,  and  the  practice,  according  to  the  case 
of  Brandt  v.  Buckhmit  (ante,  p.  186),  was  now 
confirmed. 


CODWISE  AND  LUDLOW  v.  HACKER. 

Reference — Cross    Suit — Set-off — Questions    of 
Law. 

THE  plaintiff  had  brought  an  action  against 
the  defendant  for  disobedience  of  orders. 
The  declaration  consisted  of  two  special  counts, 
and  one  for  money  had  and  received.  A  ver- 
dict having  gone  against  the  defendant,  he,  in 
February  last,  applied  to  set  it  aside,  which 
being  ordered,  he  instituted,  for  the  recovery 
of  his  wages,  money  laid  out,  &c.,  a  cross  suit, 
in  which  the  general  issue  only  was  pleaded. 
On  this  being  referred,  it  was  agreed  by  a  con- 
sent indorsed  on  the  plea,  that  everything 
might  be  shown  in  evidence,  in  the  same  man- 
ner as  if  pleaded.  At  the  reference,  the  plaint- 
iffs in  this  action  perceived  a  report  would 
probably  be  given  in  their  favor,  on  the  money 
counts  in  this  suit,  if  they  could  also  be  re- 
ferred, and,  therefore,  gave,  notice  that  they 
would  apply  for  permission  to  refer  the  money 
counts  in  this  cause,  on  agreeing  to  no  further 
prosecute  the  special  counts  for  disobedience. 
178 


Mr.  Riker, district  attorney,  resisted  the  appli- 
cation as  involving  in  the  discussion  points  of 
law,  and  being  made  with  no  other  intention 
than  to  endeavor  to  get  the  referees  to  appor- 
tion the  balance  they  might  report  due  between 
the  two  suits,  and  thus  give  the  plaintiffs  costs 
on  both.  The  full  effect  of  this  motion,  he 
contended,  had  already  been  obtained;  the  now 
*plaintiffs  having,  in  the  suit  against  [*4O2 
them,  set  off  everything  they  could  against 
Hacker's  demands.  He  argued  that  it  was 
plain  the  motion  was  only  to  avoid  going  to 
trial  on  the  suit  which  they  saw  they  must 
lose,  because  their  demands  on  the  counts  they 
now  relied  on  were  settled  by  the  reference, 
and  as  to  the  special  counts,  the  former  de- 
cision of  the  court  had  determined  those  against 
them. 

TOMPKINS,  J.  Upon  an  affidavit  of  the 
plaintiffs,  that  a  suit  of  Hacker  against  them 
was  depending  in  this  court,  which  had  been 
referred,  and  that  the  referees,  it  was  appre- 
hended, were  inclined  to  report  a  balance  in 
their  favor,  if  the  state  of  the  pleadings 
would  admit  of  it,  I  granted  an  order  in  vaca- 
tion, to  stay  the  filing  of  the  report  of  the  ref- 
erees, in  the  suit  in  which  Hacker  is  plaintiff, 
to  give  the  plaintiffs  in  this  cause  an  oppor- 
tunity of  making  the  present  application. 

Upon  the  state  of  facts  now  disclosed,  it 
appears  to  me  Improper  to  grant  the  plaintiffs' 
motion.  By  virtue  of  the  consent  indorsed 
upon  the  general  issue,  in  the  cause  heretofore 
referred,  the  plaintiffs  have  their  election  to 
have  the  balance  which  may  appear  due  to 
them  reported  in  their  favor  in  that  suit,  or 
upon  the  trial  of  this  cause  to  recover  such 
balance  under  the  general  counts.  The  cir- 
cumstance that  the  trial  of  the  cause  will  re- 
quire the  discussion  and  decision  of  important 
principles  of  law,  affords  a  strong  reason 
against  the  reference  prayed  for. 

*Let  the  plaintiffs  take  nothing  by  [*4O& 
their  motion,  and  pay  the  costs  of  resisting. 

N.  B.  Only  Tompkins  and  Livingston, 
Justices,  were  present  at  the  application.  The 
latter  gave  no  opinion,  having  been  concerned,, 
nor  did  the  other  judges,  as  they  had  not 
heard  the  motion. 


DANIEL  WILLIAMS 

v. 

PASCHAL  N.  SMITH,  President  of  the  CO- 
LUMBIAN INSURANCE  COMPANY. 

1.  New  Trial — Covts.     2.  Interest — On   Verdict 
— Plaintiff's  Delay. 

THE  plaintiff  in  this  cause  had  recovered  for 
a  pro  rata  freight.  Thinking  himself  en- 
titled to  a  verdict  for  the  whole,  he,  in  May 
Term  last,  moved  for  a  new  trial,  which  the 
court  refused,  but  said  nothing  as  to  the  costs 
of  application.  The  questions  now  were, 
whether  the  defendant  should  be  allowed  them; 
and  whether,  in'  taxing  the  general  costs,  in- 
terest should  he  allowed  beyond  the  day  on 
which  the  verdict  was  given? 

COL.  AND  CAINES. 


1804 


MICHAEL  BERGEN  AND  ELSIE  GARRITSON  v.  NICHOLAS  BCERUM. 


403 


Per  Curiam.  The  costs  of  resisting  the 
motion  go  to  the  defendant  of  course.  As  to 
the  interest,  the  plaintiff  has  himself  been  the 
means  of  delaying  payment.  The  calculation 
therefore,  must  be  carried  no  further  down 
than  to  the  day  on  which  the  verdict  was 
rendered. 

N.  B.  In  another  cause,  between  the  same 
parties,  the  court  said,  that  the  granting  new 
trials  was  always  on  payment  of  costs,  unless 
otherwise  expressed,  or  when  for  the  misdi- 
rection of  a  judge ;  in  which  latter  case  they 
abided  the  event  of  the  suit. 


4O4*]  *MICHAEL  BERGEN  AND  ELSIE 
GARRITSON 

v. 
NICHOLAS  BCERUM. 

Equity — Execution — For  More  than  Condition  of 
Bond. 

TjWERTSON  moved  to  set  aside  the  execu- 
-CJ  tion  issued  in  this  cause,  and  to  have 
satisfaction  entered  on  the  judgment  upon  an 
affidavit  stating  that  the  amount  of  the  debt  in 
the  condition  of  the  bond,  on  which  the  judg- 
ment had  been  confessed,  had,  together  with 
interest  and  costs,  been  paid  to  the  sheriff, 
who  nevertheless  threatened  to  go  on  and  sell, 
in  pursuance  of  the  directions  he  had  received, 
as  the  fi.  fa.  issued  was  on  a  judgment  for  the 
penalty,  and  the  writ  indorsed  to  levy  more 
than  the  sum  paid. 

He  insisted  that  the  sum  in  the  condition  is 
the  actual  debt.  By  the  words  of  our  statute 
(1  Rev.  Laws,  349,  sec.  6),  it  is  made  so.  It 
allows  the  bringing  into  court  the  principal, 
interest  and  costs,  in  bar  of  the  suit;  and 
though  the  terms  of  the  law  are,  that  it  be 
"pending  the  action,"  which  may  be  now 
deemed  to  be  at  an  end,  yet  in  Rich.  K.  B., 
211,  and  1  Sell.  359,  360,  it  will  be  seen  that 
courts  of  common  law  will  extend  the  equity 
of  a  statute  in  cases  like  this,  and  that  by  virtue 
of  their  general  controling  power  over  their 
own  judgments. 

Mr.  Emott,  contra,  read  counter  affidavits,  set- 
ting forth  that  the  bond  and  warrant,  on  which 
the  execution  was  issued,  were  given  to  secure 
a  debt  larger  than  the  condition,  for  the  sur- 
plus of  which  a  promissory  note  was  made  by 
the  defendant,  payable  at  thirty  days,  under 
an  agreement  that  if  it  was  not  duly  honored, 
the  amount  might  be  levied  by  execution,  on 
4O5*]  the  *warrant  of  attorney;  that  the 
plaintiffs  had  also  other  demands  against  the 
defendant,  for  bona  fide  debts,  on  notes  of 
hands,  to  the  amount  of  which  the  sheriff  had 
been  directed  to  levy,  but  that  the  whole  did 
not  exceed  the  penalty  of  the  bond,  the  condi- 
tion of  which,  together  with  interest  and 
costs,  had  not  been  fully  satisfied,  as  on  cal- 
culation two  dollars  appear  to  be  still  due. 

Mr.  Evertson  in  reply  was  stopped  by  the 
court. 

Per  Curiam.  We  have  no  doubt  of  our 
equitable  jurisdiction.  It  would  be  attended 
with  the  most  mischievous  consequences,  to 
COL.  AND  CAINES. 


allow  collecting  more  than  is  due  on  the  con- 
dition. It  would  be  trying  the  equity  of  the 
case  in  this  way.  It  is  against  the  very  form 
of  the  contract,  and  liable  to  great  abuse.  It 
would  be  a  deception  on  the  world,  for  the 
condition  which  is  to  discharge  the  judgment 

s  on  record.  If,  therefore,  it  was  to  reach  to 
other  demands,  it  would  be  impossible  to  know 
what  would  satisfy  the  debt.  As  to  the  two 
dollars,  de  minimis  non  curat  lex.  Take  the 

iffect  of  your  motion,  with  the  costs  of  this 
application  and  those  of  that  to  the  judge  for 
the  order  to  stay  proceedings. 

*  *  *  An  objection  was  taken  to  the  no- 
tice of  motion,  for  being  simply,  "Nicholas 
Evertson,"  without  the  addition  of  "attorney 
for  the  defendant,"  but  the  court  paid  no 
attention  to  it. 

N.  B.  It  was  ruled  in  this  cause  that  an 
affidavit  containing  new  matter  coujd  not  be 
read  in  support  of  a  motion,  though  the  facts 
in  it  were  not  known  *till  the  day  of  [*4O6 
bringing  it  on.  The  party  should  have  served 
copies,  and  moved  the  next  day. 


JOSEPH  DAY  v.  WILLIAM  WILBER. 

Amendment — Return — Clerical  Error. 

THE  plaintiff  had,  in  the  last  term,  obtained 
a  reversal  of  the  judgment  below,  for  a 
defect  in  the  return  of  the  oath  administered 
to  the  constable.  So  soon  as  the  court  had 
delivered  their  opinion,  the  plaintiff's  counsel 
left  town.  The  next  day  Mr.  Gold,  on  affidavit 
that  the  error  arose  from  a  clerical  mistake  in 
copying,  obtained  a  peremtory  order  to  amend. 
After  the  plaintiff  had,  on  the  judgment  pro- 
nounced, made  up  his  record,  he  was  served 
with  a  copy  of  the  order  to  amend.  The  ap- 
plication now  was  to  vacate  that  order. 

Mr.  Simonds  for  the  plaintiff. 
Mr.  Harison,  contra. 

Per  Curiam.  We  ought  to  alter  the  order 
complained  of,  and  give  till  the  first  day  of 
next  term,  to  show  cause  against  the  amend- 
ment; that  in  the  meantime  all  proceedings 
stay,  and  that  the  defendant's  attorney  serve 
a  copy  of  Mr.  Gold's  affidavit,  on  the  attorney 
of  the  plaintiff. 


ANONYMOUS. 

Commission — Before  Issue  Joined. 

TONES  moved  for  a  commission,  to  be  di- 
J  rected  to  New  Orleans,  though  issue  was 
not  joined,  nor  the  writ  returned. 

*Per  Curiam,.  There  must  be  pecu-  [*4O7 
liar  circumstances  to  warrant  the  application. 
(Brain  v.  Rodelleks  and  Shivers,  1  Caines,  73  S. 
P.)  The  intercourse  between  this  and  New 
Orleans  is  constant.  It  is  impossible  to  judge 
whether  the  testimony  asked  for  will  be  mate- 
rial, before  declaration,  or  knowing  the  point 
in  contest. 

179 


407 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1805 


JACKSON  EX  DEM. 


Non-enumerated  Motion — Notice — Hearing. 

rpHE  notice  of  motion  to  set  aside  a  writ  of 
J.  possession,  was  not  for  the  first  day  of 
term,  nor  for  a  non-enumerated  day. 

Mr.  Biker,  contra.  It  is  bad.  Though  the 
court  allows  notice  of  a  non-enumerated  motion 
to  be  for  another  day  than  the  first,  still  it 
ought  to  be  for  a  non-enumerated  day. 

Per  Curiam.  If  the  excuse  is  sufficient,  the 
notice  is  good,  though  for  any  day,  notwith- 
standing the  court  will  hear  it  only  on  a  non- 
enumerated  day. 


.1.  &  S.  WATSON  v.  JOHN  DEL  AFIELD. 

•      Commission — Notice. 

ON  a  motion  for  a  commission,     Mr.  Pendle- 
ton  objected,  because  notice  of  the  appli- 
cation had  not  been  given. 

Mr.  Hoffman.  The  decision,  making  it  neces- 
sary, was  pronounced  only  yesterday,  and  this 
is  the  last  day  of  term. 

4O8*]  *Per  Ouriam.  That  would  have  af- 
forded a  sufficient  reason  for  not  giving  the 
regular  notice,  but  notice  is  requsite  in  all 
cases. 

Take  notice  by  your  motion. 


ANONYMOUS. 

Ejectment  —  New  Lessor  —  New  Count  —  Terms. 


.L 


plication  was  to  add  a  new  count  on 
the  demise  of  a  new  lessor. 


Per  Curiam.  Let  the  plaintiff  have  leave  on 
the  following  terms.  The  defendant  to  have 
twenty  days  after  service  of  the  declaration 
thus  amended,  to  elect  whether  he  will  con- 
tinue to  defend  the  suit,  and  if  he  shall  so 
elect,  then  he  is  to  have  the  costs  usual  in 
cases  of  amendment  in  other  suits,  and  twenty 
days  from  the  time  of  making  such  election, 
to  plead  de  now  or  abide  by  his  former  plea. 
If  the  defendant  elect  to  proceed  no  further, 
then  to  receive  all  his  costs  up  to  the  day  of 
making  such  election. 


RALPH  POMROY 

THE    COLUMBIAN    INSURANCE    COM- 
PANY. 

New  Trial — Newly  Discovered  Evidence — Affida- 
vit of  Witness — General  Character. 
BOGERT  applied,  in  this  case,  for  a  new 
trial,  on  an  affidavit  of  newly  discovered 
evidence  from  A.  B. ,  a  man  of  good  character 
and  reputation. 

~  Mr.  Starr  offered  affidavits  to  show  the  person 
from  whom  the  information  was  derived  was 
a  man  not  worthy  of  belief,  and  in  the  present 
instance  actuated  by  motives  of  revenge. 
1HO 


*Mr.  Bogert  objected  to  their  being  re-  [*4O9 
ceived,  because  it  was  trying  a  man's  char- 
acter, in  a  collateral  way,  by  surprise,  when  he 
could  never  expect  to  b6  called  on  to  support 
it,  and  must,  therefore,  be  unprepared. 

Per  Curiam.  This  person  comes  forward  in 
the  light  of  a  witness:  every  man  who  does  so 
puts  his  general  character  in  issue.  You  have 
invited  the  inquiry  by  stating  him  to  be  a  man 
of  character  and  reputation.  Every  witness  at 
a  trial  is  equally  unprepared;  we  do  not,  there- 
fore, see  why  we  may  not  question  his  credi- 
bility as  much  as  if  he  was  before  a  jury. 

Read  the  affidavits. 

SPENCER,  J.  I  dissent  entirely  from  this 
determination.  I  think  it  may  lead  to  very  op- 
pressive and  serious  consequenses.  A  man's 
character  is  to  be  sifted,  not  from  what  he  ap- 
pears and  says  himself,  but  from  what  others 
relate  of  him.  He  may  not  even  be  present 
when  the  information  he  gives  is  made  use  of, 
and  must,  therefore,  be  surprised  by  such  an 
inquiry.  .  I  cannot  agree  to  trying  a  man's  rep- 
utation in  this  manner. 


ANONYMOUS. 

Ejectment — New  Lessor — New  Count — Terms. 

JONES,  on  a  mere  notice  of  motion  and  af- 
fidavit of  service,   moved  to  add  a  new 
count  in  a  declaration  in  ejectment,  on  the  de- 
mise of  a  new  lessor.     It  was  opposed.     But, 

*Per  Curiam.  Take  your  motion  on  the[*4 1 0 
usual  terms.  If  the  opposite  side  abandon  his 
defence,  you  pay  all  costs  (S.  P.  Wimple  et  al. 
v.  M'Dougal,  ante,  p.55,  citing  Jackson  ex  dem. 
Quackenbos  v.  Dennis),  if  he  vary  it,  the  costs 
of  the  former  pleading. 


FEBRUARY    TERM,    1805. 


SAMUEL  HENSHAW 

V. 

THE  MARINE  INSURANCE  COMPANY. 

Argument — Service  of  Points  in  Court. 

TJOFFMAN,  for  the  defendants,  objected  to 
Jl  the  cause  being  brought  on,  because  the 
points  on  which  the  plaintiffs  meant  to  rely 
were  not  added  to  the  case  served  upon  him. 

Mr.  Jones,  contra,  then  tendered  to  him  a  state- 
ment of  the  points,  and  at  the  same  time  served 
the  judges  with  copies.  This  he  contended 
was  sufficient. 

Mr.  Hoffman,  in  reply.  The  rule  ordering 
points  to  be  subjoined  to  the  cases  made,  was 
intended  as  much  for  the  ease  of  the  opposite 
counsel,  as  of  the  court. 

Per  Curiam.  It  is  sufficient  to  serve  the 
points  on  the  opposite  party  at  the  time  when 
the  case  is  delivered  to  the  court,  and  when  the 
motion  is  made  to  bring  on  the  argument. 

COL.  AND  CAINES. 


1805 


THE  PEOPLE  v.  PIERRE  C.  VAN  WYCK. 


411 


411*]  *THE  PEOPLE 

v. 
PIERRE  C.  VAN  WYCK. 

1.  Contempt —  Witness — Attacliment — Personal 
Appearance.  2.  Idem  —  Ticket — Place  of 
Court.  3.  Idem — Subpcena — W/tether  Shown. 

Citation— Ante,  300,  367. 

ON  a  motion  by  the  Attorney-General  for  an 
attachment. 

The  ground  of  application  and  objections  to 
it,  being  contained  in  the  decision,  it  is  un- 
necessary to  relate  the  argument  by  counsel. 

Per  Curiam,  delivered  by  LIVINGSTON,  J. 

In  November  last,  a  rule  was  obtained  by 
the  Attorney-General,  calling  on  the  defendant 
to  show  cause,  on  the  first  day  of  this  term, 
why  an  attachment  should  not.  issue  against 
him,  for  not  appearing  as  a  witness  between 
The  People  and  Richard  Biker,  after  being 
regularly  served  with  a  subpoena.  The  de- 
fendant shows  for  cause  and  by  affidavit,  with- 
out personally  appearing  in  court,  that "  a  ticket, 
which  is  annexed  to  his  affidavit,  was  served 
on  him,  but  that  no  subpoena  was  shown  to 
him  at  the  time,  and  further  that  there  was  an 
indictment  pending  in  the  oyer  and  terminer 
against  Riker,  who  was  bound  to  appear  in 
that  court,  and  not  at  the  term. 

It  is  insisted  that  the  defendant  should  have 
shown  cause  in  person,  and  that  the  facts  dis- 
closed by  his  affidavit,  if  cause  can  be  shown 
in  that  way,  are  not  sufficient  to  prevent  the 
rule  for  an  attachment  being  made  absolute. 

In  the  case  of  The  People  v.  Freer  (ante  p. 
300),  cause  was  shown,  as  here,  by  affidavit, 
and  although  the  court  say,  that  "  on  such  oc- 
412*1  casions  the  *defendant  ought  to  ap- 
pear in  person  and  answer,"  that  point  was 
not  raised,  and  of  course  ought  not  to  be  re- 
garded as  settled. 

Nor  is  it  important  to  ascertain  what  is  the 
mode  in  England.  In  a  point  of  practice.and  this 
is  nothing  more,  we  certainly  may  adopt  a  rule 
for  ourselves,  and  alter  it  again  if  it  becomes  in- 
convenient. We  think  it  would  produce  great 
oppression  and  unnecessary  expense, to  compel 
a  party  who  may  be  perfectly  innocent,  on  a 
rule  to  show  cause  to  appear  in  person.  Why 
bring  a  man  from  Ontario  to  New  York  to 
swear  that  he  was  sick  and,  therefore,  unable 
to  attend  on  a  subpoena,  when  that  fact  can 
be  as  easily  communicated  by  his  affidavit, 
properly  taken  ?  An  attachment  might  almost 
as  well  go  in  the  first  instance.  We,  therefore, 
think  the  defendant's  personal  attendance  was 
unnecessary. 

The  merits  of  his  affidavit  are  next  to  be 
examined.  It  appears  by  the  ticket  left  with 
him  that  the  name  of  the  city  in  which 
the  court  was  to  be  held  is  omitted.  (Sod- 
well  v.  Wittcox,  ante,  p.  367.)  The  terms  of 
this  court  and  the  places  of  its  meeting 
being  regulated  by  a  public  act,  we  think  the 
ticket  good,  notwithstanding  this  omission, 
especially,  too,  as  the  defendant  does  not  pre- 
tend ignorance  on  this  head,  and  is  a  counsel- 
lor of  this  court.  Neither  is  it  important  that 
the  indictment  on  the  trial  of  which  he  was 
to  testify  was  found,  and  then  pending  in  the 
COL.  AND  CAINES. 


oyer  and  terminer.  The  Attorney-General 
could  have  brought  it  into  court  for  trial 
on  the  return -day  of  the  subpoena,  which 
would  have  been  sufficient. 

*The  greatest  difficulty  arises  from  the  [*41 3 
defendant's  denial  that  a  subpoena  was  shown 
to  him  at  the  time  of  leaving  the  ticket.  But 
as  the  officer  who  served  it  swears  positively 
to  this  fact,  we  think  some  further  explanation 
necessary.  The  defendant  does  not  say  that  a 
subpoena  was  at  no  time  shown  to  him,  nor 
that  this  was  the  only  ticket  he  received. 
It  is  probable  the  officer,  on  recollecting  the 
mistake,  may  have  returned  and  shown  it,  or 
that  he  made  an  entire  new  service,  or  that 
something  may  have  passed  rendering  the  ex- 
hibition of  a  subpoena  unnecessary.  At  any 
rate,  we  think  this  matter  ought  to  be  further 
inquired  "into,  and  that,  therefore,  the  rule  for 
an  attachment  be  made  absolute. 


JOHN  SAYER  v.  JOHN  FINCK. 
Inquest — Setting  Aside— Attorney  Misled — Coste. 

TTOPKINS  moved  to  set  aside  the  inquest 
H  taken  in  this  cause  at  the  last  sittings  in 
New  York,  on  an  affidavit  by  two  persons 
that  the  debt  for  which  the  action  was  brought 
had  been  paid,  and  on  another  affidavit  by  the 
defendant's  attorney,  stating  that  he  did  not 
attend  when  the  cause  was  called  on,  be- 
cause, from  a  conversation  with  the  partner 
of  the  plaintiff's  attorney,  and  who  he  thought 
was  attorney  also  for  the  plaintiff,  he  was  led 
to  imagine  the  trial  could  not  be  had  on  that 
day,  as  there  were  eighteen  prior  causes  on 
the  day-docket, and  that  the  plaintiff 's  attorney 
himself  would  not  attend. 

Per  Curiam.  Let  the  inquest  be  set  aside 
on  payment  of  all  costs.  The  court  grant 
this  only  under  the  peculiar  circumstances  of 
the  case.  It  appears  *that  the  defend-  [*414 
ant's  attorney  thought  he  was  conversing  with 
a  person  who  was  acting  as  attorney  for  the 
plaintiff.  This  belief  might  easily  be  induced 
from  this  circumstance,  that  the  attorney  on 
record  and  the  person  spoken  with  were  in 
partnership.  It  was,  however,  but  an  opin- 
ion of  the  adverse  attorney,  that  the  cause 
would  not  be  heard.  We  shall,  in  future,  ex- 
pect more  explicit  reasons  for  thinking  a 
cause  will  not  be  brought  on.  The  affidavit 
of  merits  is  very  strong.  Taking  this  together 
with  the  misapprehension  of  the  defendant's 
attorney,  that  the  partner  of  the  plaintiff's  at- 
torney was  absolutely  concerned  in  the  suit, 
are  the  grounds  of  our  present  determination. 


JAMES  JACKSON  EX  DEM.  JONATHAN  JACK- 
BON  AND  JOHN  RUSSELL,  STEPHEN  WILLIMS, 
Tenant,  « 

0. 
JOHN  STILES. 

Ejectment — Admission  to  Defend — Avoidance  of 
Copy  of  Ca.  Sa. — Attachment — Service. 

IT  was  ruled  that  if  a  person  be  admitted  to 
defend  on  payment  of  cost,  and  after  en- 

181 


414 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1805 


tering  into  the  consent-rule,  keep  out  of  the 
way  to  avoid  being  served  with  a  copy  of  the 
ca.sa.  against  the  casual  ejector,  a  rule  will  be 
granted  to  show  cause  why  an  attachment 
should  not  go  against  him;  and  that  service 
of  that  rule,  at  the  defendant's  house,  shall  be 
sufficient. 


JOHN  KANE  AND  OLIVER  KANE 

v. 
ISAAC  SCOFIELD. 

Demurrer — Notice — Preference. 

THE  declaration  in  this  case  stated  the  in- 
dorsement of  a  promissory  note  to  a  firm 
whose  surnames  only  had  been  used,  in  the 
following  manner,  "to  certain  persons  using 
415*]  the  name,  style  and  firm  of*Willoughby 
&  Weston,"  and  it  afterwards  stated  their  in- 
dorsement to  the  plaintiffs,  thus:  "  and  the 
said  persons  so  using  the  name,  style,  and 
firm  of  Willoughby  &  Weston,  indorsed  the 
said  note,  the  proper  handwriting  of  one  of 
them,  in  their  said  copartnership,  name,  style 
and  firm,  being  to  such  indorsement  sub- 
scribed." To  this  the  defendant  put  in  a  gen- 
eral demurrer. 

Mr.  Hopkins,  on  a  notice  of  motion,  for  the 
eleventh,  moved  to  overrule  it  as  frivolous, 
and  claimed  on  that  account  a  priority  to 
other  causes  entered  for  argument. 

Mr.  Caines,  contra,  insisted,  that  the  right  of 
bringing  on  a  demurrer  in  preference  to  other 
causes  set  down  for  argument,  applied  only 
to  cases  where  no  opposition  was  made.  AT- 
C'abe  v.  M'Kay  (ante,  p.  366),  in  August  last. 
That  at  all  events  the  notice  was  bad,  being 
for  the  eleventh  instead  of  the  first  day  of 
term. 

Mr.  Hopkins,  in  reply.  The  demurrer  book 
was  not  made  up  till  the  first  day;1  the  caption 
is  of  this  term. 

Per  Curiam.  By  the  opposition  of  the  case 
cited,  is  not  intended  the  mere  saying  of  coun- 
sel that  they  oppose;  it  must  be  such  as  has  at 
least  a  color  or  semblance  of  reality.  The 
416*]  notice  could  not  be  for  *the  first  day. 
It  appears  by  the  record  that  it  was  not  till 
then  that  there  was  a  joinder  in  demurrer. 

N.  B.  It  was  ruled  in  this  case  that  where 
the  reason  of  not  noticing  for  the  first  day  of 
term  appears  on  the  face  of  the  record,  no  af- 
fidavit of  excuse  need  be  made. 


RICHARD  FURMAN 

n. 
BENJAMIN  F.  HASKIN. 

Demurrer —  Withdrawal. 

HARI8ON,  after  judgment  for  the  defend- 
ant on  the  demurrer,  asked  leave  of  the 

1.— The  time  at  which  a  question  on  demurrer 
shall  be  deemed  to  arise  shall  be  the  day  the  joinder 
was  received  by  the  party  demurring.  3d  Rule, 
January,  1799.  Ante,  p.  10. 

1H2 


court   to  withdraw  the  demurrer  and    take 
issue  on  the  fact. 

KENT,  C.  J.  Take  it,  for  it  is  allowable  in 
all  cases  where  the  demurrer  is  not  frivolous,  if 
applied  for  in  the  same  term,. 


NOAH  POMROY  v.  JOHN  PRESTON. 

IN  Error  on  a  bill  of  exceptions  from  the 
Common  Pleas.  The  plaintiff  had  not  as- 
signed errors,  and  after  the  return  of  a  sci.fa. 
quare  executionem  non,  moved  for  leave  to  take 
out  a  writ,  ordering  the  judges  of  the  court 
below  to  come  in  and  confess  or  deny  their 
seal,  and  that  in  the  meantime  all  proceedings 
by  the  defendant  should  be  stayed.  Ordered 
accordingly,  and  that  the  judges  appear  at  the 
city  hall  of  the  city  of  New  York,  on  the  first 
day  of  next  term. 


*WILLIAM  VAN  DOREN     [*417 

v. 
JACOB  WALKER. 

Certiorari — Return  not  stating  t/iat  Constable  was 
Sworn  to  Attend  tJie  Jury. 


I 


N  error  on  certiorari. 


Mr.  Cadey,  for  the  plaintiff.  The  return  does 
not  state  that  any  constable  was  sworn  to  at- 
tend the  jury,  though  it  is  evident  they  re- 
tired. 

Mr.  Van  Vechten,  contra.  As  no  improper 
practice  is  alleged,  and  it  does  not  appear  a 
constable  was  not  sworn,  the  court  will  intend 
it  was  done. 

Per  Curiam.  As  nothing  is  said  about  a 
constable's  being  sworn,  or  having  charge  of 
the  jury,  the  court  cannot  supply  it  by  intend- 
ment.  There  are  no  words  in  the  return  to 
intend  by.  We  might  as  well  intend  an  issue 

¥'  lined,  or  a  venire,  when  nothing  is  stated, 
he  justice  must  state,  as  the  writ  requires 
him,  all  his  proceedings;  the  whole  history  of 
the  suit.  When  a  proceeding  so  essential  is 
omitted,  we  cannot  consider  it  as  done. 


NICHOLAS  LOW 

v. 
JACOB  W.    HALLETT. 

Change  of  Venue — No    Witness  for  Plaintiff— 
Papers. 

ON  a  motion  to  change  the  venue  from  New 
York  to  Ontario,  in  an  action  for  use  and 
occupation,  the  defendant  swore  all  his  wit- 
nesses resided  in  the  latter  county,  where  the 
house  was  situated. 

Mr.  Hoffman  resisted  it  because  the  action 
was  transitory, and  on  an  affidavit  by  the  plaint- 
iff, stating  his  *case  to  rest  on  writ  ten  [*418 
receipts,  and  an  agreement  executed  in  New 
York. 

Coi>.  AND  CAINES. 


1805 


LUTHER  SPENCER  v.  WILLIAM  R.  HULBERT. 


418 


Per  Curiam.  Take  the  effect  of  your  ap- 
plication. The  papers  may  be  more  easily 
transferred  to  Ontario,  than  the  witnesses  car- 
ried to  New  York.  The  plaintiff  does  not 
show  he  has  a  single  witness  where  his  venue 
is  laid,  and  the  action  being  founded  in 
privity  of  contract,  not  of  estate,  is  of  course 
transitory. 


LUTHER  SPENCER 

v. 
WILLIAM  R.  HULBERT. 

Change  of  Venue — Witnesses — Goods  Sold  and, 
Delivered. 

OIMONDS  moved  to  change  the  venue  to 
O  Onondaga,  on  affidavit  by  the  defendant 
that  the  witnesses,  which  his  counsel  advised 
were  material  for  him,  resided  there. 

Mr.  Williams,  contra.  The  action  is  for  goods 
sold  and  delivered  in  Hudson,  where  the 
plaintiff  lives. 

Per  Curiam.  Here  is  special  matter  in  ad- 
dition to  the  common  affidavit,  and  in  such  a 
case,  unless  the  plaintiff  will,  by  affidavit, 
state  that  he  has  one  or  more  witnesses  re- 
siding elsewhere  than  in  the  county  where  the 
venue  is  moved  for,  the  court  will  order  it  to 
be  changed.  It  is  just  and  reasonable,  where 
the  plaintiff  has  no  witnesses  out  of  the 
county  where  venue  is  moved  for,  that  we 
should  grant  the  application,  even  though  the 
action  be  for  goods  sold  and  delivered,  or 
other  transitory  matter. 


419*]   *BRANDT,  ex.  dem.  WALTON, 

v. 
OGDEN. 

Calendar — Preference — Peace  of  County. 

IT  was  ruled  in  this  cause  that  if  a  public  of- 
ficer inform  the  court  that  the  situation  of 
a  county  is  such  as  to  require,  for  the  sake  of 
the  peace  of  the  people,  a  decision  on  the 
point  contained  in  a  case,  it  will  take  pref- 
preference  of  all  others  on  the  calendar. 


JOHN  B.  BREVORT 

v. 
SAMUEL  SAYRE  AND  PHINEAS  HURD. 

Inquest — Setting  Aside — Pending  Compromise. 

BOYD  moved  to  set  aside  the  inquest  taken 
in  this  cause,  on  an  affidavit  stating  that 
the  day  on  which  the  cause  was  set  down  for 
trial,  one  of  the  defendants,  who  was  merely 
a  surety  for  the  other,  sent  a  message  to  the 
plaintiff,  by  which  he  requested  a  meeting,  to 
settle  the  suit  if  possible,  in  consequence  of 
which  an  appointment  was  made  for  the  even- 
ing, in  order  to  try  and  compromise,  but 
during  the  course  of  the  day  the  inquest  was 
taken. 

Per  Curiam.     Take  your  motion. 
COL.  AND  CAINES. 


ANONYMOUS. 

Calendar — Preference — Frivolous  Plea. 

IT  was  ruled,  that  a  motion  to  overrule  a 
frivoulous  plea,  and  be  at  liberty  to  enter 
a  default,  as  if  no  plea  had  been  filed,  has 
the  same  preference  as  motions  on  frivolous 
demurrers. 


*JOAQUIN  L.  STEINBACH      [*42O 

9, 
WILLIAM  OGDEN. 

Argument — Points  not  Served. 

IN  the  case  made,  the  points  relied  on  were 
not  specified,  but  merely  stated  by  the 
opening  counsel. 

Per  Curiam.  You  are  not  entitled  to  bring 
on  the  argument.  The  points  should  have 
been  reduced  to  writing,  and  this  not  merely 
for  the  benefit  of  the  court,  but  of  all  parties. 


THE   MAYOR  AND   CORPORATION  OF 
NEW  YORK 

v. 
COMFORT  SANDS. 

Default  —  Judgment  —  Surprise  —  Affidavit    of 
Merits. 

pENDLETON  moved  to  set  aside  a  default 
_L  and  judgment  obtained  on  a  penal  ordi- 
nance by  the  corporation  of  the  city  of  New 
York,  directing  the  defendant,  as  owner  of 
certain  vacant  lots,  to  fill  them  up.  The  af- 
fidavit read  denied  his  being  owner.  It  also 
set  forth,  that  the  defendant  had,  on  that 
ground,  applied  by  petition  to  be  relieved, 
but  before  any  answer  was  given,  and  whilst 
the  application  was  pending,  the  default  and 
judgment  were  entered. 

Mr.  Harison,  contended  that  as  the  proceed- 
ings were  regular,  the  petition  ought  not  to  have 
the  effect  of  suspending  them.  The  fact  re- 
lied on  as  an  excuse,  was  a  legal  defence,  and 
might  have  been  pleaded  if  true. 

Per  Curiam.  The  proceedings  complained 
of  took  place  while  a  petition  was  pending, 
and  there  is,  *therefore,  something  of  [*42 1 
surprise.  In  addition  to  this,  there  are  in  ef- 
fect merits  disclosed.  Let  the  default  and 
judgment  be  set  aside. 


JOHN  PATRICK 

v. 
HALLETT  AND  BOWNE. 

Nonsuit — Trial  not  liad — Second  Trial. 

MOTION  for  judgment  as  in  case  of  non- 
suit, for  not  going  to  trial. 
Mr.  Riggs  resisted,  because  the  cause  had  been 
once  tried,  and  our  act  (1    Rev.  Laws,  353), 
being  like  that  of  the  English,  required  the 


421 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1805 


same  construction,  under  which  it  was  held  a 
plaintiff  could  not  be  nonsuited  for  not  trying 
a  second  time.  If  we  are  wrong,  we  are 
ready  to  stipulate. 

Per  Curiam.  We  have  no  doubt  of  the 
power  of  the  court  to  nonsuit  on  a  second 
trial.  A  plaintiff  who  has  once  tried  his  cause, 
after  which  the  verdict  is  set  aside  and  a  new 
trial  awarded,  is  bound  to  try  again  and  again, 
if  necessary,  and  if  he  do  not,  the  defendant 
may  apply  for  a  nonsuit.  But  as  the  English 
practice  has  misled,  and  our  own  has  not 
been  perfectly  settled,  the  plaintiff  may  stipu- 
late, and  without  costs. 


ROGERS  v.  GARRISON. 

Nonsuit— Trial  not  had— Counsel  Misled— Stipu- 
lation— Costs. 

rpHIS  cause  had,  at  the  last  New  York  sit- 
-L  tings,  been  set  down  for  trial  on  the  day 
docket,  but  from  some  little  confusion  as  to 
the  suits  that  would  be  heard  before  the  re- 
spective judges,  who  separately  at  different 
times  presided,  the  counsel  did  not  attend. 
422*]  *A  motion  was  made  for  judgment  as 
in  case  of  nonsuit. 

Per  Curiam.     Stipulate  and  pay  costs. 

LIVINGSTON,  J.  I  dissent  from  this,  be- 
cause the  only  use  of  a  day  docket  is  to  enable 
the  bar  to  know  what  causes  will  come  on, 
and  it  then  becomes  their  duty  to  attend.  If 
we  allow  of  excuses  of  this  sort,  the  force  of 
the  rule,  in  the  city  of  New  York,  by  which 
day  dockets  have  been  established,  will  be  to- 
tally done  away. 


JOHN  A.  EKHART 
JUSTUS  DEARMAN. 

Default — Relinqnishment — Change  of   Venue — 

No  Opposition. 

ASTRANDER  moved  to  set  aside  the  de- 
\J  fault  and  all  subsequent  proceedings  on 
the  following  facts:  On  the  second  of  October, 
the  declaration  was  served  on  an  agent.  On 
the  eleventh,  the  defendant  gave  notice  of  a 
motion,  to  be  made  the  12th  of  November,  for 
leave  to  change  the  venue,  but  on  the  10th, 
the  plaintiff  entered  a  default,  and  never  ap- 
peared on  the  12th,  to  oppose  the  application, 
in  consequence  of  which  the  venue  was 
changed  as  of  course. 

Per  Curiam.  The  defendant's  conduct  has 
not  been  perfectly  regular.  He  ought,  ac- 
cording to  the  rules  of  practice,  to  have  ob- 
tained a  judge's  order  to  enlarge  the  time  to 
plead,  or  a  certificate  to  stay  proceedings. 
But  though  there  was  an  irregularity  in  the 
defendant,  and  the  plaintiff  was  correct  in 
entering  the  default,  he  has  waived  both  by 
423*]  silently  acquiescing  *in  the  event  of 
a  motion,  which  he  knew  must  be  successful. 
By  not  appearing  his  language  is,  I  consent  to 
the  application.  If  so,  he  certainly  agrees  to 
relinquish  the  default,  and  every  other  ad- 
vantage. 
184 


PALMER  KT  AL  v.  MULLIGAN  ET  AL. 

Costs — On  Motion — New  Term. 

THE  Court  ruled  that  if  a  party  neglect  ap- 
plying, in  a  former  term,  for  all  the  costs 
he  was  entitled  to  on  his  then  motion,  he  » 
waives  those  for  which  he  does  not  ask,  and 
cannot  in  a  future  term  make  them  the  ground 
of  a  subsequent  motion. 


MANHATTAN  COMPANY  «.  LYDIG. 

Struck  Jury — Motion  Opposed — Intricate  or  Im- 
portant Cause — Sufficiency  of  Affidavit. 

HOFFMAN  moved  for  a  struck  jury,  on  an 
affidavit,  stating  the  case  to  be  intricate 
and  important. 

Mr.  Jones  contended  that  it  was  defective  in 
not  showing  wherein  the  importance  or  intri- 
cacy consisted. 

Per  Curiam.  In  all  these  cases  the  court 
ought  to  see,  from  the  facts  laid  before  them, 
that  the  cause  is  either  intricate  or  important, 
and  not  submit  themselves  to  the  opinion  of 
the  attorney.  We  want  something  beyond  his 
mere  affidavit.  The  words  of  the  statute  re- 
quire this.  If,  indeed,  there  be  no  opposition, 
then  the  motion  passes,  as  in  other  cases,  of 
course ;  because  the  opposite  party  by  his. 
conduct  confesses  these  requisites. 


*SHAWE  v.  WILMERDEN.  [*424 

Insolvent  Debtor — Pleading  Discharge — Costs. 

\  FTER  pleading  the  general  issue,  the  de- 
-Q-  fendant  obtained  his  discharge  under  the 
insolvent  law.  His  then  attorney,  who  had 
long  since  declined  business,  gave  notice  that 
he  would  give  this  special  matter  in  evidence. 
The  action  being  now  again  proceeded  in,  ap- 
plication was  made  for  leave  to  strike  out  the 
notice,  and  plead  the  discharge,  as  the  mistake 
of  the  attorney  formerly  employed  was  the 
reason  why  it  was  not  before  done. 

Mr.  Hanson,  contra.  The  known  rule  is,  that 
an  insolvent  must  plead  his  discharge.  In  the 
present  case  it  ought  to  have  been  puis  darrein 
continuance.  It  is  a  defence  slricti  juris,  and 
not  to  be  favored. 

Per  Curiam.  Let  the  defendant,  on  pay- 
ment of  costs,  have  leave  to  withdraw  bis 
notice  and  plead  the  special  matter,  the  plaint- 
iff to  be  set  at  liberty  to  discontinue  without 
costs. 


MANHATTAN   COMPANY    r.    BROWER. 

Nonsuit — Trial  not  had — Day  Docket. 

TTOFFMAN  objected,  on  a  motion  for  judg- 
-TL  ment  as  in  case  of  nonsuit,  for  not  pro- 
ceeding to  trial  at  the  New  York  sittings,  ac- 
cording to  notice,  that  the  affidavit  did  not 
state  the  cause  to  have  been  on  the  day  docket. 
COL]  AND  CAINES. 


1805 


WILLIAM  SMITH  v.  JAMES  CHEETHAM. 


424 


This  he  contended  ought  always  to  be  shown, 
because,  unless  so  placed,  it  could  not  come 
on,  and  the  plaintiff,  therefore,  could  not  be 
in  default. 

425*]      *Per  Curiam.     Its  not  being  on  the 


ANONYMOUS. 

Case  Made — Service — Placed   Under  Attorney's 
Door — Presumption  of  his  Presence. 

service  of  the  case  made  in  this  cause 


*.  PuttinS    *  «nderthe  door  of  the 


day  docket  is  matter  of  excuse  to  come  from  the    \  .  ere     oor  o        e 

*3L**  n.n*n*  M*  &,  n.4Mn.*i*  '  opposite  attorney  _s  office,  which  was  locked, 


plaintiff,  and  appear  by  affidavit. 


WILLIAM  SMITH 

V. 

JAMES  CHEETHAM. 

Non-enumerated  Motion — Setting  Aside  Verdict 
— Conduct  of  Jury. 

IT  was  ruled  in  this  cause,  that  an  applica- 
tion to  set  aside  a  verdict  for  irregular 
conduct  in  a  jury,  is  a  non-enumerated  mo- 
tion. 


KOY  v.  CLOUGH. 

Inquisition — Excessive  Damages — Illness  of  De- 
fendant's Attorney — Stipulation. 

THE  attorney  in  this  cause,  from  a  sudden 
and  dangerous  illness,  was  unable  to  at- 
tend the  execution  of  the  writ  of  inquiry,  in 
consequence  of  which  the  plaintiff's  attorney 
was  requested  to  postpone  the  execution  of  it, 
but  he  refusing  to  do  this,  went  on  and 
executed  the  writ,  upon  which  pretty  smart 
damages  were  given.  Application  was  now 
made  to  set  aside  the  inquisition. 

Per  Curiam.  The  inability  of  the  defend- 
ant's attorney  to  attend  the  execution  of  the 
writ,  and  the  defendant  himself  having  no 
notice  of  the  day,  are  reasons  for  setting  aside 
the  inquisition,  especially  as  the  damages  are 
rather  excessive.  But  as  the  defendant's 
default  is,  in  some  degree,  a  confession 
of  the  plaintiff's  right,  the  rule  can  be 
only  on  the  defendant's  consenting  that  the 
judgment  on  the  inquisition  shall  be  entered 
as  of  this  term. 


426*] 


*REUBEN   KNAPP 

v. 
GARRET  ONDERDONK. 


Amendment — Of  Justice's  Return — Laches. 

SMITH  moved  for  leave  to  the  justice  to 
amend  his  return. 

Mr.  Caines,  contra.  Independent  of  errors 
having  been  assigned  and  joinder,  the  justice 
has  made  an  affidavit  contradicting  the  exist- 
ence of  the  fact  in  which  the  amendment  is  re- 
quested. Besides  two  notices  of  argument  on 
the  error  assigned  have  been  given. 

Per  Curiam.  There  is  an  evident  laches. 
If  the  amendment  is  necessary,  it  ought  to 
have  been  applied  for,  before  noticed  for  argu- 
ment. The  plaintiff  in  error  must  have  known 
what  was  necessary  to  support  his  own  assign- 
ment. 

COL.  AND  CAINES. 


but  from  the  window's  being  open  when  this 
was  done,  and  being  very  shortly  after  seen  to 
be  shut,  the  plaintiff's  attorney  swore  he  had 
reason  to  believe  the  case  came  to  the  hands 
of  the  attorney  of  the  defendant.  From  these 
circumstances,  and  their  not  being  contradict- 
ed, the  court  was  pleased  to  consider  them  as 
evidence  of  the  case  being  received. 


*M'KAY  [*427 

v. 
THE  MARINE  INSURANCE  COMPANY. 

Verdict — Setting    Aside — Absence    of  Mater  ud 
Witness — Opportunity  Passed. 

Citation— Ante,  183. 

rPHE  defendants  at  the  New  York  circuit, 
JL  moved  to  put  off  the  trial,  for  want  of 
the  testimony  of  a  material  witness,  who  was 
a  transient  person,  and  had  once  been  within 
their  power.  The  court  refusing  to  do  this,  a 
verdict  went  against  them,  in  consequence  of 
which,  and  the  absence  of  their  principal 
counsel,  the  defendants  moved  to  set  it  aside. 

Per  Curiam.  The  decision  at  the  circuit 
was  right.  Whenever  a  party  has  had  an 
opportunity  to  examine  a  transient  witness, 
and  has  suffered  it  to  pass  by,  the  want  of  his 
testimony  is  no  objection  to  going  to  trial.  In 
Post  v.  Wright  and  Buchan  (ante  p.  183),  the 
absence  of  counsel  was  urged  as  an  excuse, 
but  the  court  refused  to  admit  it,  and  we 
think  all  excuses  of  that  sort  ought  to  be  dis- 
countenanced. 


JOHN  FELTER  v.  WILLIAM  MULLINER- 

Amendment — Of    Justice's    Return  —  Forrtter 
Trial. 

ON  certiorari.     The  court  ruled  that  if  there 
has  been  a    former  trial,  for  the  same 
cause  of  action,  and  a  justice  refuse  evidence 
of  it,  he  will  be  ordered  to  amend  his  return, 
by  setting  forth  the  testimony  offered. 


JACKSON,  ex  dem.  KEMP  ET  AL., 

v. 
PARKER  AND  BREWSTER. 

Judgment  Roll — By  Plaintiff— Cost*. 

/RAINES  applied  for  a  rule,  ordering  the 
\J  plaintiff,  who  had  obtained  a  verdict,  to 
make  up  the  record  within  a  given  time,  or 
that  the  defendant  have  leave  *to  do  it  [*428 
for  him,  as  the  verdict  was  complete  evidence 

185 


428 


SUPREME  COUKT,  STATE  OF  NEW  YORK. 


1805 


for  the  defendant  in  a  suit  in  chancery,  be- 
tween the  same  parties. 

Smith  resisted  the  application,  because  the 
defendant  had  never  requested  it  to  be  done. 

Per  Curiam.  Take  your  rule,  allowing 
twenty  days1  for  the  plaintiff  to  make  up  the 
record  and  carry  in  the  roll,  but  without  costs 
on  either  side.  "  Not  to  the  defendant,  because 
lie  ought  to  have  made  a  request  to  the  plaint- 
iff before  notice  of  application  to  the  court, 
and  we  refuse  them  to  the  plaintiff,  because 
he  ought  not  to  have  come  here  to  resist. 


LUCET  ET  AL  v.  BEEKMAN  ET  AL. 

Partition — Seizin — Of  Certain  Portion — Fee. 

IF  a  party  named  in  a  petition,  for  partition, 
be  stated  to  be  seised  of  a  certain  portion, 
the  court  will  intend  it  to  be  of  a  fee. 


ANONYMOUS. 

Advertisement — For     Three    Months  —  Weekly 
Notices. 

THE   court  said  that  in  all  cases  where  a 
three  months'  advertisement  is  required, 
a  weekly  notice  is  sufficient. 


HECTOR  M'KENZIE  v.  JOHN  WILLIAMS. 

Non-enumerated  Motion  —  Trial  by  Record. 

by  record  is  a  non-enumerated  mo- 


-L     tion. 


429*]  *MITCHELL  «.  INGERSOLL. 

Assigning  Errors — Default — Expecting   Trans- 
cript— Costs. 

THE  rule  for  assigning  errors  having  ex- 
pired, the  defendant  entered  a  default 
against  the  plaintiff. 

Mr.  Hojikins  moved  to  set  it  aside,  on  an 
affidavit,  stating  that  the  transcript  had  been 
written  for,  and  was,  when  the  rule  expired, 
daily  expected. 

Mr.  Whiting,  contra,  urged  that  an  order  to 
enlarge  the  time  for  assigning  errors,  ought  to 
have  been  obtained. 

Per  Curiam.  No  laches  is  imputable  to  the 
plaintiff.  He  had  reasonable  grounds  for  ex- 
pecting the  transcript;  let,  therefore,  the  de- 
fault be  set  aside  on  payment  of  costs. 


LUDLOW  r.  HEYCRAFT. 

Default— Plea  Sent  by  Post—Cost*. 

THIS  was  an  action  against  the  acceptor  of 
a  bill  of  exchange,  in  which  the  plea, 

1.— Kfttletas  v.  North,  ante,  p.  54,  four  (lavs  al- 
lowed. 

1M 


having  been  sent  by  the  post,  did  not  arrive 
in  time,  in  consequence  of  which  a  default 
was  entered. 

Mr.  Henry  moved  to  set  it  aside  on  an  affi- 
davit that  the  acceptance  was  conditional. 

Mr.  Williams  resisted,  because  it  did  not  ap- 
pear to  have  been  on  the  face  of  the  bill. 

Mr.  Henry,  in  reply.  It  might  have  been  ver- 
bal, and  is  sworn  to. 


*Per  Curium, 
payment  of  costs. 


Take  your  motion,  on  [*43O 


GEORGE  CODWISE  ET  AL. 
JOHN  HACKER. 

Trial — By    Defendant — By    Proviso — Previous 
Rule. 

THE  defendant  in  this  cause,  without  any 
previous  rule  for  trying  it  by  proviso, 
gave  a  simple  notice  that  he  should  bring  it 
on,  but  inserted  a  proviso  clause  in  the  venire. 
Under  these  circumstances  he  obtained  a  non- 
suit at  the  last  term,  to  set  aside  which  ap- 
plication was  now  made  on  behalf  of  the  plaint- 
iff, who  did  not  notice  for  trial;  the  court, 
however,  refused  the  motion  in  consequence 
of  the  proviso  clause  being  inserted  in  the 
venue,  but  at  the  same  time  made  the  following 
general  rule. 

Ordered:  That  hereafter  the  defendant  shall 
not  try  a  cause  by  proviso,  without  a  previous 
rule  for  that  purpose,  to  be  granted  by  the 
court  on  the  usual  notice. 


MAY  TEKM,  1805. 


STEPHEN  BROWN  v.  CALEB  SMITH. 

Verdict — For  One  Mill — Costs — Jury — Statute. 

ON  certiorari  from  a  justice's  court,  in  tres- 
pass qvare  rlausumfregit.  the  errors  relied 
on  were,  1st.  That  the  verdict  being  for  one 
mill,  no  judgment  *could  be,  or  in  [*431 
fact  was  rendered  upon  it.     2d.  That  as  no 
costs  were  found  by  the  jury,  the  justice  was 
not  warranted  in  giving  judgment  for  any. 
Mr.  Sanford,  for  the  plaintiff. 
Mr.  Bogert,  contra. 

Per  Curiam.  On  the  second  point  it  is  un- 
necessary to  say  anything.  The  jury  need 
not  find  costs  ;  they  are  given  by  the  statute, 
wherever  damages  are  found.  But  the  judg- 
ment must  be  reversed  ;  without  any  law,  none 
could  be  given  on  such  a  verdict;  it  is  a  nulli- 
ty and  could  not  be  the  basis  of  any  judg- 
ment.1 In  that  which  is  now  rendered,  the 
justice  is  obliged  to  reject  the  verdict,  for 
there  is  no  judgment  as  to  the  mill.  It  is  for 
costs  only,  and  if  carried  into  effect,  there 
could  be  no  levy  for  the  verdict.  There  is  no 
such  currency  as  the  sum  given. 

1.— Set-  Finch's  Law,  29 ;  Shore  v.  Thomas,  Nov. 
Hop.,  4,  Contra;  Mai-sham  v.  Huller,2  Roll.  Rep.,  21 ; 
Vlae  ulso  2  Bos.  &  Pull.,  36;  Governor,  etc.  of  Har- 
row School  v.  Alderston. 

COL,.  AND  GAINER. 


1805 


MATTHEW  COD  ET  ux.  v.  RICHAKD  HARRISON  ET  AL. 


431 


MATHEW  COD  ET  ux. 

v. 
RICHARD  HARISON  ET  AL. 

Partition — No  Opposition — Notice  and  Affidavit 
of  Service  Read. 

IT  was  ruled,  that  in  partition  the  practice  is 
the  same,   when  unopposed,  as  in  other 
cases,  and,  therefore,  only  the  notice  and  affi- 
davit of  service,  need  be  read. 


JAMES  JACKSON,  ex.  dem.  PETER  WAG- 
GONER ET  AL., 

V. 

JAMES  MURPHY. 

Ejectment — Stay  of  Proceedings — Consent  Rule 
for  Serving. 

TT'MOTT  moved  for  a  rule,  ordering  the  les- 
J-J  sors  of  the  plaintiff  to  permit  a  survey  to 
be  taken  by  the  defendant  of  the  boundaries 
and  marked  trees  of  a  patent  under  which  he 
432*]  claimed,  on  an  affidavit  stating  *that 
it  was  necessary  for  his  defence  to  ascertain 
the  lines  of  it,  but  that  a  person  sent  by  him 
for  that  purpose  had  been  prevented  by  the 
agent  of  the  lessors,  who  derived  title  under  an 
adjoining  grant. 

KENT,  C.  J.  Were  we  to  grant  this  appli- 
cation, could  we  enforce  the  leave  we  had 
given  ?  Suppose  an  action  of  trespass  brought, 
would  this  be  a  justification?  But,  it  does  not 
appear  to  me  that  our  inference  is  necessary. 
The  judge  at  the  circuit  would,  upon  the 
grounds  now  shown  to  the  court,  postpone 
the  cause.  You  may,  however,  take  your 
rule  to  stay  proceedings,  till  the  lessors  of  the 
plaintiff  enter  into  a  consent  rule  for  having  a 
survey  made. 


NICHOLAS  LOW 

v. 
JACOB  W.  HALLETT. 

Reference — Long  Account — Questions  of  Law — 
Affidavit  "on  Advice  of  Counsel." 

TjlMOTT,  on  the  common  affidavit  that  the 
J-J  trial  of  this  case  would  require  the  ex- 
amination of  long  accounts,  moved  for  a  ref- 
erence. 

Mr.  Hoffman,  contra,  read  an  affidavit  by  the 
plaintiff,  simply  stating  that  as  he  was  advised 
by  his  counsel,  and  verily  believed,  the  contro- 
versy would  necessarily  involve  questions  of 
law. 

Mr.  Emott,  in  reply,  submitted  to  the  court 
whether  the  affidavit  ought  not  to  have  speci- 
fied what  those  questions  of  law  were.  (See 
Lusher  v.  Water,  ante,  p.  206.) 

THOMPSON,  J.  I  believe  the  usual  mode 
has  been  to  state  them. 

433*]  *Per  Curiam.  The  addition  of  "as 
ad  vised  by  counsel,"  is  sufficient.  It  is  to  be 
presumed  that  counsel  would  not  advise,  un- 
COL.  AND  CAINES. 


less  there  was  some  foundation. 

Take  nothing  by  your  motion,  and  pay  the 
costs  of  resisting. 


SETH  MORE  v.  ASA  BACON. 

Amendment — Of  Justice's    Return — Joinder  of 
Error  in  Precaution  only. 

MOTION  to  amend  a  justice's  return  by 
altering  the  date  of  an  act,  mentioned  to 
have  been  passed  on  the  7th  day  of  April 
1804,  to  the  7th  day  of  April,  1801. 

Mr.  P.  W.  RadcUff  read  an  affidavit  by  the  at- 
torney of  the  defendant  in  error,  that  the  mis- 
take was  a  clerical  misprision,  which  he  did 
not  discover  till  the  27th  of  March  last,  when 
a  copy  of  the  assignment  of  errors,  in  which 
this  was  set  forth  as  a  cause,  was  served  on 
on  him,  with  a  notice  to  join  in  error  in  twen- 
ty days,  or  that  a  default  would  be  entered. 

Mr.  Caines,  contra,  urged  that  the  application 
could  not  now  be  heard,  as  from  an  affidavit 
of  the  attorney  for  the  plaintiff,  it  appeared  to 
be  after  joinder  in  error  on  this  very  point,  so 
late  as  the  22d  of  April,  and  that,  in  such 
cases,  the  rule  was  not  to  allow  of  amend- 
ments. 

Mr.  P.  W.  Radcliff,  in  reply.  The  papers  be- 
fore the  court  show  that  the  parties  live  in  a 
remote  county,  and  the  joinder  was  merely  to 
prevent  the  entry  of  a  default  for  want  of  be- 
ing served  with  an  order  to  stay  proceedings. 

*Per  Curiam.  The  observation  of  [*434 
the  defendant's  counsel  takes  this  case  out  of 
the  general  rule.  The  order  to  stay  proceed- 
ings was  applied  for,  and  evinces  that  the 
joinder  was  a  mere  matter  of  precaution,  not 
a  reliance  on,  or  affirmance  of  the  correctness 
of  the  proceedings.  The  amendment,  there- 
fore, must  be  allowed,  on  payment  of  the 
costs  of  the  assignment  of  errors,  and  those  of 
resisting  this  application. 


BACH  AND  BACH  v.  COLES. 

Case  Made — Stay  of  Proceedings — First  Appli- 
cation. 

THIS  was  an  application  to  the  court,  in  the 
first  instance,  for  an  order  to  stay  pro- 
ceedings on  a  case  made. 

Per  Curiam.  Though  the  rule  authorizing 
parties  to  apply  to  a  judge  for  this  purpose 
does  not  abrogate  the  power  of  the  court,  yet 
we  ought  never  to  be  resorted  to  till  the  other 
mode  has  been  attempted.  This  is  chamber 
business. 


RICHARD  HARTSHORNE  ET  AL. 

v. 

DAVID  GELSTON. 
Struck  Jury — On  Character  of  Parties  only. 

pENDLETON  moved  for  a  struck  jury  in 
-L  this  suit,  which  was  for  erecting  a  beacon 
on  the  plaintiffs'  lands  at  Sandy  Hook,  after 

187 


434 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1805 


being  warned  not  to  do  so,  on  an  affidavit 
stating  a  former  action  and  recovery  for  the 
name  offence,  the  pendency  of  two  suits  for  a 
continuance  of  the  original  trespass,  and  that 
the  defendant  was,  as  he  verily  believed,  re- 
imbursed by  the  government  of  the  United 
States  for  the  damages  paid  in  the  first  action, 
and  would  be  indemnified  by  them  against  any 
435*]  recovered  in  the  *present  or  other 
suits.  These  circumstances,  and  the  proba- 
bility that  the  general  government  was  inter- 
ested in  the  cause,  were  sufficient,  he  con- 
tended, to  make  it  of  such  importance  as  to 
require  a  struck  jury. 

Per  Curiam.  There  is  nothing  in  this  case 
which  is  not  fitted  to  the  capacity  of  an  ordi- 
nary jury.  The  parties  litigant  do  not  make 
a  case  important. 


JOHN  BALL  v.  JOHN  P.  RYERS. 

Execution — Rule  on  Sheriff  to  pay  oner  Surplus 
Money. 

THE  plaintiff  in  this  suit  had  issued  a  fi.  fa. 
upon  a  judgment  he  had  recovered. 
Mr.Riker,  citing  Doug.  231, '  now  moved  for  a 
rule  directing  the  sheriff  to  pay  over,  on  the 
execution  thus  sued  out,  the  sum  of  $197.26, 
being  the  surplus  arising    from  a  leasehold 
property,   levied  on    and   sold    in    an  action 
against  the  same  defendant,   at  the    suit  of 
another  plaintiff. 

Ordered  accordingly. 


COLMAN  I.  KEELER 


JOHN  ADAMS. 

1.  Amendment  —  Of  Justice's  Return^—  Notice  of 
Set-off—  Weight  of  Evidence  —  Justice's  Affida- 
vit in  Opposition.  2.  Idem  —  Tort  —  Set-off. 

HOPKINS  moved  for  a  rule  on  a  justice, 
ordering  him  to  amend  his  return  by  in- 
436*]  serting  the  *substance  of  a  notice  given 
at  the  trial  of  the  cause,  and  the  testimony 
adduced  under  it. 

The  affidavits  of  the  defendant  and  his  attor- 
ney, set  forth  that  the  action  was  trespass  on 
the  case,  for  not  returning  and  misusing  four 
beds,  bedsteads  and  some  furniture,  let  to  the 
defendant  for  six  months,  to  which  not  guilty 
was  pleaded,  with  a  notice  that  at  the  trial 
evidence,  would  be  given  that  the  hiring  was 
for  twelve  months,  at  the  rate  of  four  dollars 
per  bed  per  annum,  and  that  the  defendant  had 
paid  more  to  the  plaintiff  than  the  rent  for  six 

1.—  Armistead  v.  Philpot.  But  if  a  plaintiff  have, 
in  the  hands  of  the  sheriff,  money  arising:  from  an 
execution,  a  levy  cannot  be  made  on  such  money 
by  virtue  of  a  fl.  fa.  against  the  plaintiff,  for  the 
mere  raising-  the  money  by  execution  does  not,  it  is 
said,  pass  the  property  in  it  to  the  creditor.  Turner 
v.  Kendall,  1  Cranch,  117.  In  the  principal  case, 
LdvinKSton,  J.  said  he  had  no  doubt  money  mijirht 
be  levied  on.  See  Dalton's  Sheriff  Accord.  But 
vide  Fieldhouse  v.  Croft,  4  East,  510,  overruling 
Armistead  v.  Philpot. 

188 


months  amounted  to;  and  also,  that  the  plaint- 
iff had,  before  the  expiration  of  the  year,  by 
force,  taken  away  the  goods  demised,  and  that 
the  defendant  would,  on  the  hearing,  insist  on 
recovering  the  balance  due  him,  on  the  over- 
plus of  the  rent  paid.  That  proof  was  made 
of  these  circumstances,  and  the  jury  found  a 
verdict  in  his  favour  for  three  dollars  damages 
and  six  cents  costs,  upon  which  the  plaintiff 
sued  out  a  certioran,  and  had  assigned  for 
error,  that  the  jury  gave  damages  for  the  de- 
fendant, when  he  claimed  none  by  his  plea. 

To  these  depositions  was  annexed  a  certifi- 
cate from  the  justice  himself,  corroborating 
their  contents. 

Mr.  Emott,  contra,  read  affidavits  made  by  the 
plaintiff,  his  attorney  and  the  justice,  denying 
the  notice  of  set-off,  but  admitting  one,  of  giv- 
ing in  evidence  that  the  hiring  was  for  six,  not 
twelve  months.  In  that  by  the  justice,  the 
contradiction  between  his  certificate  and  affi- 
davit was  explained  to  arise  from  surprise  in 
*the  hurry  of  business,  and  conceiving  [*437 
the  former  which  was  brought  to  him  ready 
prepared,  to  relate  to  the  argument  used  by 
by  the  defendant  on  the  trial. 

From  these  facts,  and  the  tenor  of  the  de- 
fendant's affidavits,  he  insisted,  that  as  the  suit 
below  was  an  action  on  the  case  for  damages, 
there  could  be  no  set-off,  and  that  the  court 
would  not  order  a  return,  contrary  to  the  de- 
position of  the  justice,  as  that  would  be  oblig- 
ing him, to  lay  himself  open  to  an  action. 

Per  Curiam,  delivered  by  TOMPKINS,  J.  I 
am  of  opinion  that  the  present  motion  ought 
not  to  be  granted.  The  evidence  of  the  notice 
of  set-off  which  the  defendant  alleges  to  have 
been  given,  consists  of  his  own  affidavit,  that 
of  his  counsel,  and  a  certificate  of  the  justice. 
To  this  is  opposed  the  affidavits  of  the  plaintiff 
and  his  counsel,  and  an  affidavit  of  the  justice, 
stating  the  notice  of  special  matter  given  at  the 
trial  of  the  cause  to  be  different  from  the  one 
specified  in  the  affidavits  on  the  part  of  the 
defendant. 

The  latter  notice  was  of  such  matters  as  it 
was  competent  for  the  defendant  to  give  in 
evidence  under  the  general  issue,  and,  there- 
fore, a  return  of  it  by  the  justice,  in  addition 
to  the  general  issue,  would  be  unnecessary  and 
immaterial  in  the  final  determination  of  the 
cause. 

The  weight  of  evidence  before  us  is  against 
the  allegations  of  the  defendant,  since  the  affi- 
davit 01  the  justice  ought  to  receive  greater 
credit  than  his  certificate;  *especially  [*438 
as  in  the  former  he  explains  the  circumstances 
under  which  the  latter  was  obtained,  and  his 
inadvertence  and  misapprehension  at  the  time 
of  giving  the  latter.  We  cannot  suppose  that 
the  justice,  if  compelled  to  amend,  would  re- 
turn any  other  notice,  than  the  one  to  which 
he  has  now  sworn,  and,  as  I  remarked  before, 
the  notice  amounted  to  no  more  than  the  gen- 
eral issue. 

I  should  not  be  inclined  to 'grant  the  defend- 
ant's motion,  if  the  affidavits  on  his  part  were 
uncontradicted  by  opposite  proof.  The  decla- 
ration below  was  for  a  tort,  to  which  the  defend- 
ant properly  pleaded  not  guilty,  and  in  such 
an  action  evidence  of  set-off  is  inadmissible. 
It  cannot,  therefore,  be  important  for  the  de- 
COL.  AND  CAFNES. 


1805 


CHRISTOPHER  WOLFE  v.  WILLIAM  HORTON, 


438 


fendant  to  have  a  return  of  the  notice  which  he 

alleges  to  have  been  given,  as  it  would  not  vary 

the  determination  of  the  cause  in  this  court. 

Let  the  defendant  take  nothing  by  his  motion. 

KENT,  C.  J.,  gave  no  opinion  on  the  point 
of  set-off. 


CHRISTOPHER  WOLFE 
WILLIAM  HORTON. 

1.   Certiorari — New  Declaration — Copy  sent  up. 
2.  Notice  of  Trial — Correct  Date — Erroneous 
Week  Day — Surplusage. 
Citation— 2  Salk.,  565. 

ON  certiorari  to  the  Mayor's  Court  after  issue 
joined,  the  plaintiff,  without  declaring  de 
now  here,  served  a  notice  of  trial  for  Tuesday, 
the  18th  of  April,  and  took  an  inquest  at  the 
last  New  York  sittings. 

Mr.  Woods,  on  affidavits  showing  these  circum- 
stances, moved  to  set  aside  the  inquest,  con- 
tending that  the  proceedings  should  have  com- 
439*]  menced  anew,  and  a  declaration  in 
this  court  have  been  regularly  served.  He  also 
took  an  exception  to  the  return  of  the  writ,  in 
certifying  that  a  copy  only  was  sent  up,  and 
insisted  the  original  bill,  &c.,  ought  to  have 
been  removed.  In  addition  to  this,  he  urged 
that  the  notice  of  trial  being  for  Tuesday 
instead  of  Monday  the  18th,  was  insufficient, 
and,  therefore,  on  this  ground,  as  well  as  the 
others,  the  application  ought  to  be  granted. 

Messrs.  Evertson  and  Boyd,  contra.  The  prac- 
tice under  a  certiorari  is  to  be  distinguished  from 
that  on  a  habeas  corpus  cum  causa.  By  the 
former  the  proceedings  themselves  are  brought 
up;  by  the  latter  only  a  transcript  is  returned. 
In  the  first  case,  therefore,  as  the  original 
pleadings  in  the  cause  are  actually  before  the 
court  above,  the  case  is  taken  up  as  they  then 
appear,  and  the  suit  goes  on  from  the  last  step 
below,  without  any  renovation.  This  reason- 
ing does  not  apply  to  a  habeas  corpus.  The 
return  to  that  is  not  of  the  record  itself,  but  of 
its  tenor;  of  necessity,  then,  a  new  declaration 
must  be  filed  here,  for  the  purpose  of  creating 
a  record  on  which  the  superior  jurisdiction 
may  act.  It  is  no  argument  against  this  rea- 
soning, to  say  that  the  record  is  not  in  fact 
removed  by  a  certiorari,  and  that,  in  the  pres- 
ent instance,  the  very  return  specifies  only  a 
copy  is  sent  up;  for,  in  no  case  are  the  pro- 
ceedings really  moved  from  the  court  below. 
On  writs  of  error  from  the  King's  Bench  to  the 
Common  Pleas,  the  record  is  not  actually 
transmitted,  yet  by  the  fiction  of  law  it  is  so 
considered;  and  it  is  on  this  intendment,  made 
from  the  nature  of  the  writ,  that  the  practice 
44O*]  is  founded.  That  the  notice  was  *for 
Tuesday,  instead  of  Monday  the  18th,  is  imma- 
terial. It  was  impossible  the  defendant  could 
have  been  misled.1 

Per  Curiam.  The  last  objection  is  a  cap- 
tious attempt  to  take  advantage.  The  period 
at  which  the  sittings  were  held  was  a  matter 
of  general  notoriety.  The  day  of  the  month 

1— See  exactly  the  same  point  in  Batten  v.  Hari- 
«on,  3  Bos.  &  Pul.,  1. 

COL.  AND  CAINES. 


was  right,  and  though  that  of  the  week  was 
wrong,  it  could  not,  as  the  plaintiff's  counsel 
have  remarked,  mislead,  and  must  therefore  be 
rejected  as  surplusage,  for  it  was  not  necessary 
to  state  it.  With  regard  to  the  regularity  of 
the  practice  adopted,  it  is  settled,  that  upon  a 
certiorari  in  a  civil  suit  we  must  proceed  as 
the  court  below  would  have  done,  and  con- 
sider the  cause  in  the  same  state  here  as  it 
was  there.  On  the  return  of  the  writ,  there- 
fore, the  cause  was  at  issue,  and  nothing  more 
required  than  to  notice  for  trial.  On  a  habeas 
corpus,  the  history  of  the  cause  is  sent  up;  on 
a  certiorari,  the  record  itself.  We  cannot  at- 
tend to  the  statement  of  the  return,  that  it  is 
only  a  copy  which  has  been  transmitted.  In 
the  eye  of  the  law  this  is  the  record;  and  its 
being  called  a  copy  in  the  return  cannot  make 
us  consider  it  otherwise.  In  the  analogous 
case  of  a  writ  of  error,  urged  on  the  argument, 
the  transcript  only  is  before  the  Court  of 
King's  Bench.  But  it  is  always  regarded  as 
the  record  itself.  (Hex  v.  North,  2  Salk.,  565.) 
The  same  principle  governs  the  present  case. 
Nothing  is  shown  to  take  it  out  of  the  general 
rule.  If  there  are  merits,  they  ought  to  have 
appeared  on  affidavit.  This  not  being  done, 
we  must  hold  to  strict  practice,  and  deny  the 
motion. 


v. 
CHRISTOPHER  WHIPPLE. 

Common  Bail — Nunc  pro  tune — Bail-bond  lost. 

THE  plaintiff's  original  attorney  had  left  this 
State  before  the  return  of  the  writ;  the 
one  now  employed  found,  on  search,  a  rule 
entered  to  declare  or  be  non  prossed.  In  con- 
sequence of  which  he  served  a  declaration, 
received  a  plea  of  the  general  issue,  went  to 
trial,  and  obtained  a  verdict. 

Mr.  Emott,  on  an  affidavit  containing  the  above 
statement,  and  that,  from  having  received  no 
instructions  or  papers  from  the  first  attorney, 
he  could  not  obtain  the  bail  bond  given  in  this 
suit,  which  was  taken  by  one  of  the  plaintiffs, 
who  was  specially  deputised  to  make  the 
arrest,  moved  to  file  common  bail  nunc  pro 
tune,  which  was,  after  slight  opposition, 

Ordered  accordingly. 


JOHN  THOMPSON  AND  CHARLORA 
ADAMS 

AMAZIAH  PAYNE. 

Default — Notice  of  Retainer — Misapprehension 
of  Name  of  Party — Affidavit  of  Merits. 

MOTION  to  set  aside  a  default  and  all  sub- 
sequent proceedings,  on  an  affidavit  of 
merits  by  the  defendant,  and  two  affidavits  by 
the  attorney  and  his  clerk,  that  a  notice  of 
retainer  had  been  duly  served  on  the  agent  of 
the  plaintiffs'  attorney,  but  which,  from  mis- 
apprehension of  the  Christian  name  of  Adams, 

180 


441 


SUPREME  COURT,  STATE  OF  NEW  YOKK. 


1805 


had  been  entitled  John  Thompson  and  Charles 
Adams  against  the  defendant. 

On  the  opposite  side,  the  attorneys  of  the 
plaintiffs  swore  positively  that  they  had  never 
442*]  received  any  *notice  of  retainer  in  the 
present  suit,  or  any  other,  in  the  title  of  which 
the  Christian  name  of  Charles  was  used  instead 
of  Charlora. 

KENT,  C.  J.  There  must  have  been  some 
mistake  in  this  business,  and  as  merits  are 
sworn  to,  let  the  default  and  proceedings  be 
set  aside  on  payment  of  costs. 


0 


JACKSON,  EX  DEM.  COUNTER, 

0. 
ISAIAH  GILES. 

Argument — Defective  Service  of  Notice. 

N  reading  the  affidavit  of  service,  it  stated 
the  notice  to  have  been  delivered  to  the 
clerk  of  the  attorney,  without  saying  where. 

Per  Ouriam.  The  service  is,  on  the  face  of  it, 
insufficient.  We  do  not  investigate  the  merits 
of  any  application  which  the  other  side  does 
not  oppose ;  because  we  construe  silence  into 
consent,  and  an  acknowledgement  that  the 
law  is  with  the  person  moving.  But  we  re- 
quire the  notice  and  affidavit  of  service  to  be 
read,  because  they  are  to  conform  to  our  own 
rules,  all  of  which  are  known  to  the  court. 
This  reasoning,  however,  does  not  apply  to 
transactions  between  the  parties  to  a  suit.  The 
motion  must,  therefore,  be  denied,  though 
there  is  no  opposition. 


JOSHUA  WHITNEY  t>.  JOHN  CROSBY. 

1.  Demurrer — Count  for  Interest — From  June 
1 — No  year  stated — Construction.  2.  Idem — 
To  Whole  Declaration— One  Count  good. 

TO  a  declaration  on  a  note  dated  the  15th  of 
July,  1803,  acknowledging  there  was  due 
to  the  plaintiff  $188.90  on  interest  from  the 
1st  day  of  June,  with  a  second  count  for 
443*]  money  had  and  *received,  the  defend- 
ant assigned,  as  a  special  cause  of  demurrer  to 
the  whole  declaration,  the  uncertainty  in  not 
specifying  from  what  June  the  interest  was  to 
accrue. 

Per  Curiam.  The  first  count  is  good,  be- 
cause certain  to  a  common  intent.  When  a 
day  or  month  is  mentioned  as  antecedent,  or 
subsequent  to  a  contract,  and  the  precise  day 
or  month  is  not  specified,  it  means  the  time 
nearest  to  the  date  of  the  contract.  As  the  money 
here  was  payable  immediately,  with  interest 
from  the  1st  of  June,  it  must  mean  the  preced- 
ing 1st  of  June.  It  can  have  no  other  inter- 
pretatation.  A  further  reason  why  the  plaint- 
iff must  have  judgment  is,  the  demurrer  is  to 
the  whole  declaration,  and  the  second  count  is 
clearly  good. 

190 


JACKSON,  ex  dem.  RUSSEL  ET  AL., 

«. 
STILES  DOCKSTADER,  Tenant. 

SAME  v.  SAME.  FREELICK,  Tenant. 

Default — Affidavit  of  Defences  only — None  to  the 
Merits. 

TO  set  aside  the  default  and  proceedings  in 
these  causes,  the  defendants  relied  on  an 
affidavit  of  their  attorney's  clerk,  stating  a  ser- 
vice of  notice  of  appearance  and  the  consent 
rule,  by  leaving  them,  on  the  17th  of  January, 
1804,  between  the  hours  of  2  and  4  in  the  af- 
ternoon, at  the  office  of  J.  V.  Henry,  the  agent 
for  the  attorney  of  the  plaintiffs,  and  that  there 
were  good  and  substantial  defences.  On  the 
other  hand,  from  the  depositions  of  the  plaint- 
iffs' attorney  it  appeared,  that  Mr.  Henry  was 
not  appointed  their  agent  till  Julv,  1804 ;  that 
notice  of  appearance,  &c.,  *hacfnot  [*444 
been  received;  that  in  one  suit,  a  writ  of  pos- 
session had  been  sued  out  in  May  Term  of  that 
year,  and  executed  in  the  vacation  following; 
and  that  in  the  other,  the  tenant  had  com- 
promised and  bought  the  land  of  the  lessor  of 
the  plaintiff. 

SPENCER,  J.  The  affidavits  go  only  to  there 
being  defences,  but  this  is  no  evidence  of 
merits.  The  proceedings  have  been  perfectly 
regular  on  the  part  of  the  plaintiffs,  and 
nothing  appears  from  whence  a  mistake  could 
have  arisen.  The  applications  must,  therefore, 
be  denied. 


PETER  BROOKS  v.  ABIJAH  HUNT. 

Nonsuit—  Ti-ial  not  had — Costs — Stipulation. 

ISSUE  had  been  joined  on  the  1st  of  March 
last,  but  the  cause,  the  venue  of  which  was 
laid  in  the  county  of  Albany,  had  not  been 
brought  on  at  the  last  April  circuit. 

Mr.  Sanford,  on  these  facts,  moved  for  judg- 
ment as  in  case  of  nonsuit. 

Mr.  Paris,  contra,  showed  that  the  defendant 
had  delayed  the  cause  by  obtaining  time  to 
plead  till  the  first  day  of  March;  that  from  the 
matter  of  the  plea  then  delivered,  there  was 
reason  to  believe  it  would  be  necessary  to  sub- 
poena witnesses  from  New  York ;  and  that  from 
the  short  interval  between  the  receipt  of  the 
plea  and  the  circuit,  he  had  no  opportunity  of 
consulting  with  the  plaintiff,  who  resided  in 
the  most  westerly  part  of  Montgomery.  From 
these  circumstances,  he  argued  that  the  mo- 
tion ought  to  be  denied  without  either  costs  or 
stipulation. 

*Mr.  Sanford,\n  reply.  The  words  of  [*445 
the  statute  (1  Rev.  Laws,  353,  sec.  12)  are,  that 
where  issue  is  joined  and  the  plaintiff  "neglect 
to  bring  such  issue  to  be  tried  according  to  the 
course  and  practice  of  the  court,"  the  defend- 
ant shall  be  entitled  to  judgment  as  in  case  of 
nonsuit.  From  the  1st  day  of  March  to  the 
circuit  in  April  was  time  enough  to  notice. 

Per  Curiam.     The  defendant  had  a  right  to 
move,  and,  therefore,  though  we  deny  his  mo- 
tion, it  must  be  on  payment  of  costs;  but,  from 
COL.  AND  CAINES. 


1805 


MYNDERT  LANSING  v.  DAVID  HOHNER. 


445 


the  circumstances  of  the  case,  the  plaintiff  is 
excused  from  stipulating. 

THOMPSON,  J.  I  do  not  think  this  according 
to  practice.  The  cause  was  long  enough  at 
issue  to  allow  of  a  notice,  and  he  ought,  there- 
fore to  stipulate. 

*#*  It  was  said  by  the  bench  that  in  all  cases 
the  period  within  which  costs  are  to  be  paid  is 
twenty  days. 

MYNDERT  LANSING 
DAVID  HORNER. 

Default — Execution — Notice   of  Retainer — 
Laches. 

T?MOTT  moved  to  set  aside  the  default  en- 
J-J  tered  the  21st  of  January  last.and  the  judg- 
ment and  execution  thereon,  upon  the  affida- 
vit of  the  defendant  swearing  to  merits,  and 
one  from  his  attorney,  stating  that  notice  of 
retainer  and  of  special  bail  had  been  in  due  time 
transmitted  with  the  bail  piece  by  the  mail,  to 
his  agent  in  Albany,  desiring  him  to  serve 
them  on  the  attorney  of  the  plaintiff,  and  that 
he  himself  had  never  received  a  declaration. 
446*]  *Mr.  Bleecker,  contra,  read  an  affida- 
vit, setting  forth  that  he  had  never  received  any 
notice  of  retainer  or  bail,  and  that  he  had  pro- 
ceeded regularly. 

KENT,  C.  J.  As  the  papers  were  sent  to  the 
party's  own  agent,  why  does  not  he  show  that 
he  has  not  received  them?  This  was  his  duty, 
and  the  not  doing  so  is  a  palpable  neglect. 
There  is  also  a  laches  in  not  applying  last 
term.  The  defendant  can  take  nothing  by 
his  motion. 


LEWIS  DU  BOYS  v.  HENRY  FRONK. 

Change  of   Venue — Witnesses — Plaintiff's    Wit- 
nesses. 

O ANFORD  moved  to  change  the  venue  in  an 
O  action  of  covenant,  from  Dutchess  to  Mont- 
gomery, on  an  affidavit  stating  that  he  had  a 
great  number  of  witnesses,  all  of  whom,  ex- 
cepting one  in  Rensselser,  resided  in  Mont- 
gomery. 

Mr.  O.  Van  Ness,  contra.  The  action  is 
transitory. 

KENT,  C.  J.  We  last  term  decided  that 
where  the  body  of  witnesses  resided  in  a  county 
different  from  that  in  which  the  venue  was 
laid,  we  would  change  it  on  the  application  of 
the  defendant,  unless  the  plaintiff  show  that 
he  has  witnesses  where  the  venue  is  laid. 

Take  your  motion. 


CORNELIUS  C.  BEEKMAN 
BENJAMIN  FRANKER. 

Default — Attorney  Not  Employed  through  Ignor- 
ance. 

IT  was  ruled  that  ignorance  of  the  necessity 
of  employing  an  attorney,  previous  to  the 
€OL.  AND  CAINES. 


trial  of  the  cause,  is  not  sufficient  to  induce 
the  court  to  set  aside  *a  regular  default  [*447 
and  subsequent  proceedings,  though  accom- 
panied with  a  strong  affidavit  of  merits. 


JAMES  WOODS  v.  EPHRAIM  HART. 

New   Trial — Sheriff's  Jury — Person  present  at 
Deliberation —  Costs. 

BOGERT  moved  to  set  aside  the  inquisition 
assessing  very  small  damages,  on  account 
of  the  sheriff's  having  permitted  a  person  to 
remain  and  converse  with  a  jury,  whilst  de- 
liberating on  their  verdict,  though  known  to 
be  inimical  to  the  plaintiff,  and  rejected  as  a 
juror  on  that  account. 

Mr.  Hoffman,  contra.  On  inquests,  after  a  de- 
fault, confessing  a  cause  of  action,  there  never 
is  the  same  regularity  as  on  a  trial  where  the 
very  right  is  questioned.  It  is  not  alleged  that 
the  man  who  remained  with  the  jury  spoke 
adversely  of  the  plaintiff,  or  used  any  means 
to  lessen  the  amount  of  damages. 

Mr.Bogert,\n  reply.  On  an  inquisition  the  law 
is  as  jealous  of  the  conduct  of  jurors  as  on  a 
trial.  (4  D.  &  E. ,  473,  Stainton  v.  BedU.)  The 
oath  of  the  constable  is  the  same,  and  shows 
the  same  conduct  is  required  in  one  case  as  the 
other. 

KENT,  C.  J.  No  one  ought  to  mix  with  a 
jury  whilst  deliberating.  They  should,  to  pre- 
serve the  purity  of  justice,  be  kept  by  them- 
selves, and  on  this  point  there  is  no  difference 
between  an  inquiry  before  the  sheriff,  and  a 
trial.  The  inquisition  must,  therefore,  be  set 
aside,  each  party  paying  his  own  costs.  We 
order  it  thus,  because  neither  party  is  to 
blame;  and,  were  we  to  direct  them  to  abide  the 
event  of  the  *suit,  it  would,  in  fact,  [*448 
as  there  has  been  a  default,  be  saying  the  de- 
fendant is  to  pay  them.  This  case,  therefore, 
is  to  be  distinguished  from  that  of  granting  a 
new  trial  after  verdict,  for  the  misbehavior  of 
the  jury.  There,  each  of  the  litigants  has  a 
chance  in  his  favor,  and  ordering  the  costs,  on 
such  occasion,  to  abide  the  event  of  the  suit, 
does  not,  necessarily,  impose  them  on  either. 
Here  the  event  is  known. 


JAMES  HO  WELL 

v. 
DANIEL  DENNISTON. 

1.    Default — Irregularity — Merits.      2.    Idem — 
Notice  to  Plead  before  Return  of  Writ. 

THE  plaintiff  in  this  cause  filed  his  declara- 
tion de  bene  esse,  and  entered  his  rule  to 
plead  on  the  return  day  of  the  writ  on  which 
the  defendant  was  taken,  but  the  writ  was  not, 
in  fact,  returned  till  seven  days  afterwards. 

Mr.  Blake,  on  these  grounds,  moved  to  set 
aside  the  default  and  all  subsequent  proceed- 
ings. 
Mr.  Emott,  contra. 

KENT,  C.  J.     The  rule  to  plead  was  irregu- 
larly entered;  because,  until  the  writ  be  re- 

191 


448 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1805 


turned,  bail  filed,  or  an  appearance  entered, 
there  is  no  basis  for  a  proceeding,  and  the 
court  has  no  cognizance  of  the  cause,  so  as  to 
authorize  pleadings.  With  respect  to  there 
being  no  merits,  we  never  regard  that,  when 
the  application  is  for  irregularity. 


MATTHIAS  AND  JAMES  BRUEN 

v. 
ADAMS  AND  MERRILL. 

Inquest— Defective  Affidavit  of  Defence — Advice 
of  Counsel. 

WOODS  moved  to  set  aside  an  inquest  taken 
early  in  the  last  New  York  sittings,  in 
449*]  the  absence  of  *the  defendants'  attor- 
ney, on  an  affidavit  stating  that  the  demand 
was  for  more  than  was  actually  due,  and  the 
cause  stood  so  low  down  in  the  calendar  as 
No.  116. 

Mr.  T.  L.  Ogden,  contra,  read  a  deposition 
showing,  that  the  attorney  for  the  defendants 
had  acknowledged  delay  would  be  desirable, 
under  their  then  embarrassed  circumstances, 
and  that  a  frivolous  demurrer  had  already  been 
filed  and  overruled.  He  contended  also,  that 
the  affidavit  of  the  defendants  was  insufficient, 
in  not  expressly  averring  there  was  a  defense. 

Mr.  Woods,  in  reply.  The  same  thing  is  in  sub- 
stance done.  All  inquests  at  a  circuit  are  at 
the  peril  of  the  party.  (Roosevelt  v.  Kemper, 
ante,  341.) 

THOMPSON,  J.  The  practice  I  adopted  was 
that  if  the  defendant's  counsel  said  there  was 
a  defence,  I  did  not  allow  it  to  be  taken. 

Per  Curiam.  The  affidavit  is  defective  in 
not  saying  there  is  a  defence  "as  advised  by 
counsel."  In  this  case  there  has  been  a  frivo- 
lous demurrer,  and  that  is  a  very  suspicious 
circumstance. 

The  defendants,  therefore,  take  nothing  by 
their  motion. 


JONATHAN  HOLMES 

v. 
ELISHA  WILLIAMS. 

Amendment — Expunging  Improper  Costs. 

rPHE  defendant,  in  a  suit  against  the  plaint- 
JL  iff,  the  venue  of  which  was  laid  in  Albany, 
had  obtained  a  judgment  in  which  the  costs 
awarded  were  nine  dollars  twelve  cents,  and 
4«3O*1  on  the  supposition  that  the  original  *ca. 
sa.  had  iasued  into  Columbia,  sued  out  a  testa- 
turn  ca.  sa.  inserting  $14.44.  The  now  plaint- 
iff having  been  taken  on  his  writ  brought  the 
present  action  for  false  imprisonment. 

Mr.  Williams,  on  an  affidavit  disclosing  the 
above  facts,  and  adding  that  he  did  not  person- 
ally issue  the  execution  or  ever  see  it,  or  knew 
of  the  mistake  till  the  6th  day  of  the  present 
month,  moved  to  amend  the  testatum  ca.  sa.  by 
expunging  the  $14.44,  and  inserting  $9.12. 

Mr.  Van  Wyck,  contra.  This  is  an  application 
in  one  suit,  to  amend  mistakes  and  errors  in 

192 


another.  If  the  amendment  is  to  be  in  the 
cause  of  Williams  v.  Holmes,  the  papers  ought 
not  to  be  entitled  in  that  of  Holmes  v.  Wil- 
liams. The  motion  goes  to  take  away  the 
basis  and  foundation  of  our  action. 

Per  Curiam.     Take  your  motion. 


ROBERT  G.  SHAW  AND  CHRISTOPHER 
BARKER 

v. 

ROBERT   COLFAX,  WILLIAM  COLFAX 
AND  ALEXANDER  RICHARDS. 

Default — No  Declaration — Failure  to  Enlarge 
Rule. 

ON  the  last  day  of  February  Term,  the  de- 
fendants Robert  Colfax  and  Alexander 
Richards  entered  a  default  against  the  plaint- 
iffs for  not  declaring. 

Mr.  Hopkins  moved  to  set  it  aside,  together 
with  the  subsequent  proceedings  on  these  facts. 

In  November  Term  last,  the  capias  issued 
was  returned  "taken,"  as  to  Robert  Colfax 
and  Alexander  Richards,  and  "  not  found,"  as 
to  William  Colfax,  to  *arrest  whom  [*451 
several  ineffectual  attempts  had  been  made,  as 
he  resided  in  New  Jersey,  and  either  did  not 
come  into  New  York  at  all,  or  did  it  SQ  secretly 
as  to  avoid  the  process  sued  out,  but  on  that 
account  the  idea  of  proceeding  against  him 
was  not  relinquished;  on  the  contrary,  an  alias 
capias  had  been  sued  out,  under  the  belief 
that  he  had  received  information  of  the  former 
writ,  but  before  it  was  issued  a  rule  to  declare 
against  the  other  two  defendants  had  been 
served,  upon  which  the  present  default  had 
been  entered. 

He  argued  that  at  common  law  the  plaintiff 
could  not  proceed  till  all  the  defendants  were 
brought  in ;  and  though  by  statute1  a  different, 
practice  might  be  pursued,  still  it  was  at  the 
election  of  the  plaintiff,  and  therefore,  no  ad- 
vantage could  be  taken  of  the  omission.  For 
this  he  cited  Tidd's  Practice,  376,  379. 

Mr.  D.  A.  Ogden,  contra.  Had  the  proceeding 
been  by  original,  the  authority  relied  on  might 
have  applied,  but  as  it  is  by  bill,  the  plaintiffs 
have  placed  themselves  in  the  same  situation, 
as  if  all  the  defendants  had  appeared.  If 
necessary  that  all  the  defendants  should  be 
brought  in,  the  plaintiffs  should  have  obtained 
an  order  to  enlarge  the  time  for  declaring. 
According  to  the  practice  now  contended  for, 
a  defendant  may  be  kept  under  bail  for  his 
life. 

Mr.  Hopkins,  in  reply.  Whether  the  proceed- 
ing is  by  bill,  or  original,  is  immaterial.  The 
distinction  is  whether  the  suit  be  in  trespass  or 
on  contract.  In  the  former  they  may  sever, 
in  the  latter  they  cannot;  as  *they  there-  [*452 
fore  must  be  proceeded  against  jointly,  they 
cannot  separately  non  pros.  Suppose  the  only 
solvent  defendant  not  to  be  taken,  must  a 
plaintiff  go  on  against  a  person  from  whom 
nothing  can  be  recovered?  The  inconvenience 

1.— Act  for  the  amendment  of  the  laws,  1  Bev. 
Laws,  353. 

COL.  AND  CAIKES. 


1805 


ROBINSON  AND  HARTSHORNE  v.  FISHER. 


452 


alone  of  such  a  principle,  is  a  sufficient  argu- 
ment against  it. 

Per  Curiam.  The  plaintiffs  should  have  ap- 
plied for  further  time  to  declare,  and  shown 
•either  that  they  were  endeavoring  to  bring 
all  the  defendants  into  court,  or  pursuing  one 
to  outlawry.  That  would  have  been  a  good 
ground  to  enlarge  the  rule  from  time  to  time. 
Not  having  done  so,  and  being  authorized  by 
our  act  to  proceed  against  the  defendants 
brought  in,  the  plaintiffs  were  liable  to  be  non- 
prossed equally  as  if  all  the  defendants  had 
been  before  us. 


ROBINSON  AND  HARTSHORNE 


FISHER. 

Dilatory  Plea  —  Verification  —  Plea  that  Assump- 
sit  was  Joint. 

TO  a  declaration  on  a  promissory  note,  the 
defendant  pleaded  in  bar,  that  the  as- 
sumpsit  was  by  him  and  Robinson  jointly,  and 
not  by  him  separately.1  The  plaintiff's  attor- 
ney considering  the  plea  a  nullity,  entered  a 
default. 

Mr.  Woods  moved  to  set  it  aside,  and  cited  in 
support  of  the  plea  a  precedent  in  3  Went., 
114.  He  said  also,  no  plea  could  be  treated 
as  a  nullity  unless  it  appeared  on  the  face  of 
453*]  it  to  be  frivolous.  In  all  other  *cases 
the  court  would  drive  the  defendant  to  his  de- 
murrer. 

Mr.  G.  Ogden,  contra.  The  matter  of  this  plea 
is  clearly  in  abatement;  and  if  so,  might,  for 
want  of  being  verified  by  affidavit,  be  treated 
as  a  nullity.  (1  Sell.,  301.) 

Per  Curiam,  delivered  by  LIVINGSTON,  J.  : 
This  is  a  dilatory  plea,  the  definition  of  which 
is,  that  it  only  delays  the  suit  by  questioning 
the  propriety  of  the  remedy  rather  than  by  de- 
nying the  injury.  Thus  the  injury  complained 
of  here  is  not  denied,  but  that  it  was  com- 
mitted with  another.  If  it  be  a  plea  of  this 
description,  it  wants  the  verification  required 
by  statute,  and  is  therefore  bad.  Even  as  a 
plea  in  bar,  I  should  not  be  for  countenancing 
it,  for  it  is  totally  out  of  the  usual  form  of 
general  issue  which  it  was  intended  to  try,  and 
which  would  have  answered  as  well,  and  fur- 
Dished  a  record  in  the  common  form. 


PAUL   SCHENK   AND    HENRY    TEN 
BROECK 

V. 

MELANCHTON  LLOYD  WOOLSEY. 

Inquest — Defence — Counsel  Mute — Merits. 

IN  scire  facias,  to  revive  two  judgments,  one 
for  £4,224,  the  other  for  £1,718,  obtained 

1.— See  Mainwaring  v.  Newman,  2  Bos.  &  Pull., 
130,  in  which  such  a  plea  as  the  present  was  held 
#ood  on  demurrer,  on  the  authority  of  Moffat  v. 
Millingen  et  a/.,  E.  27  G.  III.,  B.  R.,  declaring  that  the 
matter  was  not  pleadable  in  abatement. 

€OL.  AND  CAINES.  N.  Y.  REP.,  BOOK  1. 


in  1783,  inquests  had  been  taken  at  the  sittings 
in  December,  1803. 

Mr.  D.  A.  Ogden,  under  an  agreement  that  the 
application  should  be  considered  as  in  time, 
moved  to  set  them  aside  on  affidavits,  which 
contained  in  substance  these  facts: 

*The  defendant,  who  lives  at  Plats-  [*454 
burg  in  the  County  of  Clinton,  was  in  1875 
duly  discharged  under  the  then  insolvent  law 
of  the  State.  In  February,  1803,  the  declara- 
tions were  filed,  to  which  payment  was  pleaded, 
with  notices  subjoined  of  giving  the  discharge, 
&c.,  in  evidence;  but  as,  on  procuring  a  copy 
of  the  proceedings  under  the  insolvent  law, 
the  discharge  itself  could  not  be  found,  the 
attorney  of  the  defendant  wrote  to  him  in  the 
August  following,  communicating  this  cir- 
cumstance, and  requesting  him  to  make  in- 
quiry after  it.  On  the  cause  being  noticed  for 
trial  on  the  12th  of  December  in  that  year,  the 
defendant's  attorney  again  wrote  to  him,  re- 
peating the  contents  of  his  former  letter;  and 
urging  him  to  attend  personally,  that  measures 
might  be  taken  to  procure  the  discharge,  or 
substantiate  by  parol  evidence  its  former  ex- 
istence and  loss.  The  first  of  these  letters  did 
not  reach  the  defendant  till  the  middle  of  Sep- 
tember, the  latter  not  till  the  29th  of  Novem- 
ber, then  next.  To  each  of  these  the  defend- 
ant replied,  stating  that  in  consequence  of  a 
fractured  leg,  he  was  utterly  unable  to  travel, 
and  desiring  the  trial  to  be  postponed  till  the 
February  following,  as,  by  that  time,  he  hoped 
to  be  able  to  procure  the  discharge,  which  had 
been  given  to  Mr.  Du  Boys,  the  then  sheriff  of 
Dutchess,  to  warrant  his  release  from  confine- 
ment. The  first  of  these  answers  never  came 
to  hand,  and  the  latter  which  was  received 
bore  date  on  the  18th  of  December;  but  though 
the  discharge  itself  was  not  found,  the  attorney 
employed  for  the  insolvent,  who  was  also 
assignee  of  his  estate,  swore  that  the  discharge 
had  been  obtained  on  a  due  and  full  adherence 
to  the  requisites  of  the  act,  and  that  he  was 
then  petitioning  Congress  for  the  lands  to 
which  *the  defendant  was  entitled  as  [*455 
an  officer  in  the  revolutionary  army,  in  conse- 
quence of  their  having  passed  by  the  assign- 
ment of  the  insolvent's  estate.  None  of  these 
circumstances,  however,  appeared  when  the 
inquests  were  taken;  for  the  counsel  of  the 
defendant,  when  the  causes  were  called  on, 
refused  to  answer  the  court  whether  there  was 
any  defence,  thinking  that  he  was  not  bound 
to  do  so,  and  in  consequence  of  this  silence 
the  inquests  were  taken. 

Per  Curiam,  delivered  by  SPENCER,  J. : 
The  inquest  is  regular.  Counsel,  if  present, 
ought  to  answer  whether  he  believes  there  is  a 
defense.  The  time  at  which  a  trial  shall  come 
on  is  not  the  privilege  of  a  defendant,  but  is 
adopted  from  a  regard  to  the  seniority  of  is- 
sues. Infinite  delay  would  take  place  in  cases 
where  no  dispute  exists,  if  the  counsel  were 
to  be  mute  when  required  to  state  whether 
there  be  a  defense.  It  appears,  however,  that 
the  defendant  has  been  discharged  under  an 
insolvent  act,  and  by  accident  has  not  been 
able  to  produce  his  discharge  to  his  attorney. 
But  though  the  court  will  not  decide  in  this 
way,  whether  parol  evidence  might  or  might 
not  be  given  of  its  loss  and  contents,  yet  they 
13  193 


455 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1805 


will  regard  the  peculiar  situation  of  parties. 
In  this  case  the  defendant  lives  remote,  and 
was  from  that  circumstance,  and  infirmity, 
prevented  from  attending  to  these  suits  at  an 
earlier  period.  The  moral  obligation,  under 
which  the  defendant  is  supposed  to  labor,  of 
paying  his  debts,  is  not  to  operate  with  the 
court,  unless  a  new  liability  has  been  incurred. 
From  the  misconception  of  counsel,  the  re- 
mote distance  of  the  defendant,  his  infirmi- 
45tf*]  ties,  and  his  having  a  *meritorious 
defense,  the  court  grant  the  application  upon 
payment  of  costs. 


ANONYMOUS. 
Plea — In  Abatement — Withdrawal   of  General 


THE  court  refused  to  permit  the  general  is- 
sue to  be  withdrawn  to  let  in  a  plea  of 
coverture  in  abatement,  delivered  after  service 
of  the  general  issue,  though  the  defendant 
swore  the  general  issue  was  pleaded  without 
his  knowledge,  by  a  person  he  never  meant  to 
retain  as  attorney,  and  the  plea  in  abatement 
was  delivered  in  due  time. 


SAMUEL  BAYARD 

v. 

SAMUEL    B.    AND    RICHARD    M.    MAL- 
COLM. 

Argument — Notice  of  Motion — Counsel's  Forget- 
fulness. 

THE  notice  of  motion  was  not  for  the  first 
day  of  the  term. 

Mr.  Munro  accounted  for  this  by  an  affidavit, 
stating  that  he  had  absolutely  forgotten  the 
day  on  which  the  term  commenced,  imagining 
it  to  be  one  week  later  than  it  really  was. 

Mr.  Ilarison,  contra,  objected  to  the  reception 
of  this  excuse,  as  Mr.  Towt  was  the  attorney  on 
the  record,  therefore  for  him  the  forgetful- 
ness  of  Mr.  Munro  could  afford  no  excuse. 

Per  Curiam.  There  can  be  no  doubt  of 
the  mistake,  nor  but  that  the  whole  is  in  good 
faith. 

Though  Mr.  Towt  appears  the  attorney  on 
record,  everyone  knows  the  connection  be- 
457*]  tween  him  and  *Mr.  Munro.  He  is  to 
be  supposed  to  act  only  under  the  direction  of 
Mr.  Munro. 


SAMUEL  STRYKER 

v. 

THOMAS  TURNBULL,  ROBERT  DENTON 
AND  BERNARDUS  VOORHEES. 

Foreign  and  Struck  Jury — Right  of  Fishery 
on  Long  Island. 

HARISON,   on   behalf  of    the  defendants, 
moved  for  a  foreign  and  struck  jury,  to 
be  taken  from  the  City  and  County  of  New 
York,   on   an   affidavit,   stating  that  the  suit 
wax  prosecuted  at  the  joint  expense  of  the  in- 


habitants  of  the  town  of  Gravesend  in  King's 
County,  who  had  combined  for  maintenance 
of  a  supposed  right,  claimed  by  them  as  in- 
habitants of  the  said  town,  of  erecting  huts  for 
the  purpose  of  fishing,  upon  the  lands  of  the 
defendants;  of  taking  and  heaping  up  sea- 
weed, and  carrying  it  away  at  their  pleasure, 
and  that  other  claims  and  disputes,  in  some 
respects  of  a  similar  nature,  exist  in  the  neigh- 
boring county  of  Richmond. 

Mr.  Baldwin,  contra.  The  same  principle 
would  warrant  the  application  in  most  insur- 
ance causes.  Those  interested  in  a  point,  con- 
tribute their  quotas  towards  the  defense.  No 
more  is  done  here.  But  why  not  take  the  jury 
from  Queen's  or  any  other  county  on  Long: 
Island? 

KENT,  C.  J.  This  is  a  cause  in  which  the 
right  of  fishery  will  come  in  question.  Where 
the  counties  are  so  small  as  these  mentioned,, 
an  impartial  trial  cannot  be  had  on  a  claim  of 
a  general  nature.  New  York  is  as  near  as  any 
other,  and  where  a  right  of  fishery,  or  any 
similar  claim  is  to  be  litigated,  it  is,  in  my 
*opinion,  sufficient  to  take  the  matter  [*458- 
from  a  Long  Island  jury.  The  expense  is  at 
the  door  of  the  party  who  applies,  and  the 
contribution  to  support  the  suit  shows  strong- 
ly the  disposition  of  the  county. 


THE  PEOPLE 

v. 
JESSE  BURDOCK  AND  JONATHAN  CASE. 

Filing  Record — Nunc  pro  tune — Record  Lost. 

AN  indictment  found  against  the  defendants 
for  a  forcible  entry  and  detainer,  in  April 
Term,  1798,  had,  on  being  removed  into  this 
court,  been  quashed,  and  restitution  ordered, 
but  the  record  of  it  could  not,  on  search  in  the 
clerk's  office,  be  found. 

Mr.  Riker  applied  for  leave  to  file  a  record 
nunc  pro  tune, on  an  affidavit  03-  the  attorney  ein  • 
ployed  in  the  prosecution,  disclosing  the  above 
facts,  and  that,  on  an  examination  of  his  reg- 
ister, he  found  not  only  that  a  record  had  been 
duly  filed,  but  that  he  actually  obtained  an  ex- 
emplification of  it,  which  had  been  lost. 

Granted  accordingly. 


DANIEL  DELAVAN 

v. 
JONAS  C.  BALDWIN. 

Change  of  Venue — Default  of  Plea — Pka  ac- 
cepted— Trial  not  lost. 

MOTION  by  the  defendant  to  change  the 
venue  from  the  City  and  County  of  New 
York,  to  Onondaga. 

In  November  last,  at  which  time  the  plaint- 
iff was  entitled  to  enter  a  default  for  want  of 
a  plea,  notice  of  a  similar  motion  was  given, 
but  from  the  papers  not  having  been  received 
in  season  by  the  agent  of  Baldwin's  attorney, 
the;  application  was  not  then  made.  *Iu  [*45J> 
COL.  AND  CAINES, 


1805 


JAME;  ROOSEVELT  v.  DANIEL,  S.  J»EAII. 


April  a  plea  of  the  general  issue  was  given  and 
received. 

Mr.  Munro,  contra.  The  defendant  is  too 
late. 

KENT,  C.  J.  I  am  of  opinion  the  venue  ought 
to  be  changed  as  there  has  been  no  loss  of  trial, 
and  there  will  be  no  delay.  This,  I  think,  ought 
to  be  the  regulating  principle,  as  these  appli- 
cations are  to  the  discretion  of  the  court. 

LIVINGSTON,  J.  I  am  against  departing  from 
the  practice  by  which  defendants  are  restricted 
from  making  these  motions  after  plea  pleaded. 
Nor  do  I  think  there  is  a  sufficient  reason  for 
not  having  asked  for  this  favor  in  November 
last.  But  what  weighs  greatly  with  me  is  that 
the  application  is  on  the  eve  of  a  circuit,  and 
may  impose  rather  hard  terms  on  the  plaintiff. 

SPENCER,  J.  I  concur  in  the  sentiments  of 
my  brother  Livingston. 

.  THOMPSON,  J.  The  only  difficulty  in  my 
mind,  was  with  regard  to  this  request  being 
after  issue  joined,  subsequent  to  which,  all 
increase  of  expenses  ought,  if  possible,  to  be 
avoided.  But  as  no  delay  will  be  created,  I 
think  we  ought  to  grant  the  rule,  and  had  the 
plaintiff  shown  any  hardship  likely  to  arise 
from  it,  we  might  have  imposed  such  terms  as 
to  prevent  any  injury.  The  laches  I  consider 
to  have  been  entirely  waived  by  accepting  a 
plea. 

46O*]  *TOMPKINS,  J.  That  is  the  opinion 
I  entertain.  When  a  plaintiff  receives  a  plea 
which  he  is  not  obliged  to  take,  he  cures  the 
antecedent  laches.  I  agree  therefore  with  the 
Chief  Justice  and  Mr.  Justice  Thompson. 


JAMES  ROOSEVELT  t>.  DANIEL  S.  DEAN. 

Argument — Preliminary  Objections. 
A  FTER  a  long  and  desultory  argument,  the 
j.\.  counsel  for  the  plaintiff  took  an  exception 
to  the  titling  the  notice  of  motion,  and  affida 
vit  on  which  founded. 

Per  Curiam.  All  objections  of  this  sort 
ought  to  be  submitted  as  preliminary  questions. 
We  are  not  to  sit  here,  have  the  grounds  of 
motion  laboriously  investigated  on  a  long  dis- 
cussion, and  then  have  a  matter  of  mere  form 
pressed  upon  us.  The  entering  into  the  argu- 
ment is  a  waiver  of  all  objections  against  its 
coming  on. 

%*  The  court  in  this  cause  said  that  when 
an  affidavit  does  not  state  that  which  ought  to 
be  alleged  in  support  of  the  motion,  the  pre- 
sumption is  it  could  not  be  asserted,  and  the 
inference  of  the  bench  will  be  against  the  party 
guilty  of  the  omission. 


JACKSON,  ex  dem.  RACHAEL  LEWIS  ET  AL., 
JOHN  VAN  LOON. 

Commission — To  Resident  of  Another  State — 1 

Rev.  Laws,  351,  sec.  11. 

TTTOODWORTH  mpved  for  a  commissiotn  o 
VV    be  directed  to  persons  in  this  State,  to 
COL.  AND  CAINES. 


take  the  examination  of  "witnesses  in  Pennsyl- 
vania. 

*Mr.  Riggs,  against  its  being  allowed,  [*461 
urged  the  direction. 

Per  Curiam.  The  act1  does  not  specify  that 
the  commissioners  should  live  in  the  State  to 
which  the  commission  is  addressed. 

Take  your  motion. 


ANONYMOUS. 

Certiorari — Further  Return  of  Justice — Conduct 
of  Jury. 

THE  application  was  for  a  rule  ordering  a  jus 
tice  to  return  certain  parts  of  the  conduct 
of  the  jury,  which,  it  was  said,  amounted  to 
misbehavior. 

Per  Curiam.  The  justice  is  not  answerable 
for  this,  nor  was  it  a  matter  before  him.  We 
cannot  order  him  to  return  that  over  which  he 
had  no  judicial  control,  and  which  was  never 
submitted  to  him. 


RADCLIFF  AND  DAVIS 

v. 
THE  MARINE  INSURANCE  COMPANY 

1.  Stay  of  Proceedings — Vacatur  by  same  Judge 
in  Term.  2.  Idem — On  Improper  Item  al- 
lowed by  Jury — Relinquishment. 

Citation— Ante,  94. 

HTHESE  points  were  ruled:  1st.  A  judge 
-L  may  grant  and  annul  his  own  order  to 
stay  proceedings  on  a  case  made  as  well  in 
term  as  in  vacation,  and  this,  though  a  rule 
for  judgment  be  entered,  the  decision  in  Shep- 
herd ads.  Case  (ante,  p.  94),  applying  to  judg- 
ments perfected.  2d.  If  a  judge  has  granted 
an  order  to  stay  proceedings  on  a  case  made, 
on  account  of  an  improper  item  allowed  by  a 
jury,  and  he  declare  this  to  have  been  his  only 
reason,  the  court  may,  on  such  item  being  re 
linquished,  vacate  the  order. 


*BIRD,  SAVAGE  &  BIRD    [*462 

v. 
PIERPOINT. 

Case  Made — Application  to  Enter  Judgment. 

A  CASE  having  been  made,  after  a  verdict 
in  this  cause  for  a  very  considerable  sum, 
the  justice  of  the  demand  to  which  was  not  so 
much  questioned  as  whether  it  should  be  paid 
to  the  plaintiffs  or  the  assignee  of  one  of 
them; 

.  Mr.  Radcliff,  on  an  affidavit  showing  tLat  the 
debt  was  actually  due,  moved  for  liberty  to 
enter  up  judgment,  in  order  to  bind  the  lands 
of  the  defendant. 

1.— For  the  amtndmon*  of  fh<>  aw,  1  Rev.  Laws, 
351,  sec.  11 

195 


462 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1805 


Messrs.  Riggs  and  Hoffman,  contra. 

Per  Curiam.  We  are  all  of  opinion  that  you 
can  take  nothing  by  your  motion.  There 
would  be  no  limitation  to  this  kind  of  prac- 
tice. It  would  be  asked  in  every  cause  and'in 
every  stage.  A  verdict  is  no  evidence  of 
right;  in  many  cases  no  more  than  filing  the 
declaration.  To  the  country  at  large  such  a 
principle  would  operate  very  injuriously.  In 
the  English  courts  such  a  measure  has  never 
been  attempted,  though  from  the  practice  of 
directing  in  important  cases,  two  and  even 
three  arguments,  the  delay  must  sometimes  be 
very  great.  It  is  a  mere  matter  of  possibility 
where  the  justice  of  the  case  is.  To  make  a 
rule  here,  we  must  do  so  in  all  cases,  and  the 
result  would  be  that  wherever  there  was  a  cer- 
tificate to  stay  proceedings  it  would  be  followed 
by  a  judgment.  The  plaintiffs  show  no  right 
to  the  debt,  though  it  may  be  due,  and  as  to 
the  sum,  $100  to  some  persons  are  of  as  much 
importance  as  $1,000  to  others. 

We  therefore  deny  the  application  with  costs  for 
resisting. 


463*]          *GILES  v.  CAINES. 

Default — Plea  delivered  but  not  filed — Notice  of 
Trial^Costs—Plea. 

Citation— A  nte,  94. 

A  FTER  noticing  for  trial,  it  was  discovered 
.Q-  that  the  defendant's  attorney  had  not 
filed  the  plea,  a  copy  of  which  he  had  deliv- 
ered; the  plaintiff  therefore  entered  a  default 
as  for  want  of  a  plea.  To  set  aside  this  the 
defendant  noticed  for  the  first  day  of  term, 
but  having  obtained  no  order  to  stay  proceed- 
ings and  not  bringing  on  the  motion  upon 
that  day,  the  plaintiff  duly  executed  a  writ  of 
inquiry.  On  these  facts  and  a  strong  affidavit 
of  a  g'ood  and  substantial  defence  upon  the 
merits. 

Mr.  Caines  moved  to  set  aside  the  default  and 
all  subsequent  proceedings.  There  was  a  dis- 
tinction to  be  taken,  he  said,  between  the  cir- 
cumstances here  and  those  in  Shepherd  ads. 
Case  (ante,  p.  94).  There  the  plaintiff  had 
done  no  act  to  waive  the  default,  and  therefore 
as  it  stood  in  full  force,  his  perfecting  his 
judgment  afterwards  was  regular;  but  in  the 
present  instance  he  had,  by  joining  issue  and 
noticing  for  trial,  waived  the  mere  form  of 
filing  the  plea,  and  had  no  default  on  which 
to  rest.  He  had  himself  knocked  away  the 
foundation  on  which  he  stood.  As  to  the 
want  of  filing  the  plea,  that  was  from  a  mere 
form  and  the  court  would  order  it  to  be  done 
on  the  suggestion  of  the  plaintiff  himself. 
(Cohan  ads.  Kip,  ante,  p.  50.) 

Mr.  Evertson,  contra.  This  is  not  to  be  distin- 
guished from  8hep?wrdadn.  Case.  The  plaintiff 
could  not  waive  that  which  he  did  not  know. 

4-O4*]  *Per  Curiam.  The  omission  of 
filing  the  plea,  not  being  known  when  issue 
was  joined,  or  the  cause  noticed,  cannot  be 
cured  by  those  acts.  The  principle,  therefore, 
of  Shepherd  ads.  Case,  applies.  Though  there  is 
a  strong  affidavit  of  merits,  we  can  relieve 
only  on  terms;  those  must  be  payment  of 
costs  and  filing  the  plea  instanter. 
196 


AUGUST  TERM,  1805. 


DEODATUS  CLARK 

v. 
ISAAC  FROST  ET  ux. 

1.    Default — Merits  contradicted.     2.    Motion — 
Affidavits —  Copies. 

SIMONDS,  on  an  application  to  set  aside  a 
default  and  all  subsequent  proceedings, 
relied  on  an  affidavit  rn^ade  by  the  defendant's 
son,  setting  forth  an  agreement  to  stop  all 
further  measures  in  consequence  of  a  settle- 
ment then  made,  and  showing  as  a  cause  for 
the  deposition  being  by  the  son,  that  his  par- 
ents were  so  old  and  infirm  they  could  not  go 
to  a  commissioner  to  be  sworn,  but  that  he, 
the  deponent,  having  been  employed  to  take 
care  of  their  interests,  was  perfectly  acquaint- 
ed with  the  merits  of  the  cause  and  all  that 
had  taken  place. 

Mr.  Gold,  in  opposition,  read  four  depositions 
flatly  contradicting  the  settlement  and  the  in- 
ability of  the  defendants;  and  also  stating  the 
deponent  on  their  behalf  to  be  a  person  totally 
devoid  of  all  credit.  He  *also  con-  [*4(>5 
tended  that  the  motion  ought  to  be  founded 
on  the  affidavit  of  the  party;  therefore,  that 
by  the  son  ought  not  to  have  been  read. 

Mr.  Sitnonds,  in  reply,  offered  affidavits  to 
support  the  character  of  the  son,  by  showing 
the  settlement  he  mentioned  had  actually  taken 
place. 

Per  Curiam.  We  will  allow  affidavits  or 
other  documents  to  be  adduced  to  establish 
the  general  reputation  of  a  person  whose 
character  has  been  impeached,  but  we  cannot 
hear  anything  supplementary  read  to  substan- 
tiate the  ground  of  motion.  Copies  of  all  that 
is  relied  on  for  such  a  purpose  should  be 
served.  In  the  present  instance  the  incapacity 
of  the  defendants  is  denied;  and  when  a  third 
person  makes  an  affidavit,  a  sufficient  reason 
should  be  shown  why  it  was  not  by  the  de- 
fendant himself.  Besides,  a  commissioner 
ought  to  have  gone  to  their  house;  and  was 
the  affidavit  of  their  son  to  be  received,  it 
would  still  be  insufficient;  for  it  should  have 
set  forth  what  settlement  was  made,  as  it 
might  have  been  conditional. 

Take  nothing  by  your  motion  and  pay  the 
costs  of  resisting. 


ELIJAH  RANNEY  .«.   JOSEPH   CRARY. 

1.  Costs — Joinder  in  Error — Non  pros — Discon- 
tinuance. 

IN  a  former  term,  this  cause  had,  after  join- 
der in  error,  been  brought  up  for  argument, 
but  the  court  observing  that  the  justice  had 
made  no  return  to  the  certiorari  attached  to 
the  papers,  directed  a  rule  ordering  one  by  the 
first  day  of  the  next  term.  Before  a  service 
of  this  could  be  effected,  the  justice*  [*4<H> 
had  quitted  the  State,  and  had  never  returned 
within  it. 

COL.  AND  CAINES. 


1805 


REED  v.  BOGARDUS. 


466 


Mr.  Breese,  for  the  defendant,  now  moved  to 
non  pross  the  writ  and  have  his  costs  allowed. 

Per  Curiam.  Why  did  you  join  in  error? 
Your  costs  are  of  your  own  seeking  and  with- 
out any  fault  in  the  plaintiff.  You  may  sue 
out  execution  on  your  judgment  below,  but 
the  plaintiff  must  have  liberty  to  discontinue 
without  costs. 


REED  v.  BOGARDUS. 

Costs — Trial  delayed  by  Court. 

WHERE  a  judge  cannot  try  a  cause  or  a 
circuit  falls  through,  the  costs  abide  the 
event  of  the  suit. 


JOHN   HOLMES  v.  ELISHA  WILLIAMS. 

Argument — Notice — Sufficiency  of  Affidavit. 

THE  affidavit  of  service  of  notice,  stated  it 
to  have  been  by  leaving  it  at  the  dwelling 
house  of  the  agent  of  the  attorney. 

Per  Curiam.  It  is  not  sufficient.  You  ought 
to  have  stated  that  the  ayent  was  absent  and  to 
whom  delivered. 


GARRITT  BOGERT 

v. 
DAVID  BANCROFT. 

Argument — Notice — Counsel  signing  for  At- 
torney. 

WILLIAMS  moved  in    this    cause,    on    a 
notice  signed  by  himself ,  "  f or  A.  B.," 
the  attorney. 

Mr.  W.  P.  Van  Ness  excepted  to  the  signature 
as  not  being  that  of  the  attorney  himself. 
467*]  *Mr.  Williams,  in  reply.  He  is  in  em- 
barrassed circumstances,  and  could  not  be 
found.  But  independent  of  this,  the  signature 
is  sufficient.  Stipulations  signed  by  counsel 
alone  have  been  held  good  ( Wilcox  v.  Wbodhull); 
so  his  subscription  to  a  case  made  at  a  cir- 
cuit is  sufficient. 

Per  Curiam.  Under  the  circumstances  of 
this  case  we  think  the  signature  sufficient. 
But  we  do  not  by  this  mean  to  say  that  sub- 
joining the  name  of  a  counsel  in  the  cause,  is, 
in  these  incidental  proceedings,  adequate  to 
that  of  the  attorney.  We  rather  think  it  is 
not. 


JACKSON,  ex  dem.  FISHEB,  v.  FERGUSON. 

Nonsuit — Trial  not  had — Time  lo  prepare  Affi- 
davit. 

ON  a  motion  for  judgment,  as  in  case  of  non- 
suit after  due  service,  and  when  the  at- 
torney was  in  court,  the  counsel  for  the  plaint- 
iff asked  till  the  next  non-enumerated  day,  to 
prepare  an  affidavit  in  opposition. 
COL.  AND  CAINES. 


Per  Curiam.  To  entitle  to  such  a  favor, 
some  reason  should  be  offered,  evincing  why 
the  affidavit  could  not  be  prepared;  because 
the  period  of  service  ordered  by  the  rules  of 
the  court,  is,  otherwise,  presumed  sufficient  to 
enable  the  party  to  be  ready.  The  effect  of 
the  motion  cannot,  therefore,  be  delayed. 


THE  PRESIDENT  AND  DIRECTORS  OF 
THE  NEW  WINDSOR  TURNPIKE 
ROAD 

WILSON. 

Change  of  Venue — Local  Prejudice. 

FISK,  in  an  action  for  running  a  road  parallel 
to  that  of  the  corporation,  in  order  to  draw 
off  and  injure  *the  toll,  moved  to  [*468 
change  the  venue  from  Orange  to  New  York, 
on  an  affidavit  stating  that  from  the  prejudices 
of  the  county  against  turnpike  roads,  an  im- 
partial trial  could  not  be  had. 

Per  Curiam.  It  is  impossible  to  conceive 
that  in  so  large  a  county  as  Orange,  twelve 
indifferent  men  cannot  be  obtained  to  try  a 
cause  against  an  individual,  for  his  sole  act. 
In  such  small  counties  as  Richmond,  where 
fishery  rights  are  concerned,  in  which  almost 
the  whole  community  is  interested,  the  gen- 
eral dispositions  of  the  people  may  warrant 
the  application;  but  if  it  be  allowed  in  the 
present  instance,  on  every  turnpike  cause  we 
shall  have  similar  requests.  Why  not  go  into 
Dutchess,  if  it  were  necessary  to  take  the  trial 
to  another  county  ?  The  present  motion  must 
be  denied,  though  the  reason  on  which  it  is 
founded  might  be  a  good  reason  for  asking  a 
struck  jury. 


JACKSON,  ex  dem.  ROOT, 

«. 
STILES,  VANBTJSKERK,  Tenant. 

Affidavits  before  Judge  of  Common  Pleas  and 
Commissioners — Addition  of  Official  Descrip- 
tions. 

IT  was  ruled  in  this  cause  that  the  jurats  of 
affidavits  taken  before  judges  of  the  Com- 
mon Pleas,  or  commissioners,  must  be  signed 
by  them,  with  the  addition  of  their  official 
descriptions;  judges  of  the  Common  Pleas  to 
sytle  themselves  such,  and  commissioners  to 
specify  that  they  are  so. 


BROOKS  v.  HUNT. 

Nonsuit — Trial  not  Tiad — Sufficiency  of  Affidant 
—  Venue. 

HENRY  moved  for  judgment  as  in  case  of 
nonsuit  on  an  affidavit,  merely  stating 
for  "not  bringing  *the  cause  to  trial  [*469 
at  the  last  circuit,  in  and  for  the  County  of 
Montgomery,"  according  to  the  practice  of  the 
court. 

197 


469 


SUPREME  COURT,  STATE  OK  NEW  YORK. 


1805 


Mr.  Pains,  contra,  objected,  that  it  did  not 
specify  where  the  venue1  was  laid. 

Mr.  Henry  insisted  it  appeared  from  irresisti- 
ble implication  to  have  been  in  Montgomery. 

Per  Curiam.  The  affidavit  is  defective. 
Had  this  cause  been  with  a  venueva.  New  York, 
the  same  mode  of  swearing  would  have  en- 
titled you  to  your  judgment.  We  are  not  to 
infer  facts  from  affidavits,  when  the  party  has 
it  in  his  power  to  state  them  positively.  The 
motion  must  be  denied. 


JACKSON,  exdem.  COHLEY, 

v. 
VALENTINE. 

Nonsuit — Trial  not  had — Junior  Issue — Unex- 
pected Opportunity. 

WHERE,  on  the  last  day  but  one  of  a  cir- 
cuit, there  appear  so  many  old  causes  to 
be  tried  that  the  judge  himself  is  of  opinion 
that  a  young  issue  could  not  be  brought  on, 
and,  from  this  conviction,  so  many  of  the 
suitors  go  home,  that  an  unexpected  oppor- 
tunity offers  of  trying  a  cause,  the  plaintiff  in 
which  had,  with  his  witnesses,  left  the  circuit, 
the  court  said,  he  was  not  in  default,  and, 
on  a  motion  for  judgment  as  in  case  of  non- 
suit, not  only  refused  the  application,  but  ex- 
cused from  costs  and  stipulation. 


47O*]        *KIBBE  AND  TITUS 

v. 
STODDARD. 

Calendar — Preference — Demurrer — Simple 
Notice — Frivolous  Demurrer. 

T7MOTT  moved  in  this  cause  for  judgment 
-[j  on  a  frivolous  demurrer,  on  which  ac- 
count he  claimed  a  priority,  upon  a  simple 
notice  of  bringing  on  the  cause  to  argument. 

\Per  Curiam.  Your  notice  should  have  stated 
that  you  meant  to  apply  on  account  of  the 
frivolousness  of  the  demurrer,  otherwise  you 
cannot  gain  any  preferenpe. 


WILLIAMS  v.  GREEN. 

Reference — Order  of  Circuit  Court — Gouts. 

IT  waa  ruled  that  a  circuit  court  cannot  order 
a  cause  to  be  referred  under  the  statute.2 
That  any  award,  therefore,  under  a  rule  for  a 
reference  granted  at  a  circuit,  must  be  set 
aside,  but  without  costs,  as  the  rule,  though  a 
nullity,  is  an  act  of  the  court. 

1-— This  ingredient  is  not  required  by  the  English 
practice.  See  Tidd's  Forms,  1»4 ;  1  Sell.  Prac.,  365,  c. 

2.— Act  for  the  amendment  of  the  law,  1  Rev. 
Laws,  348,  sec.  2. 

198 


COFFIN,  Executor,  v.  TRACY. 


Jurisdiction  — Justice's  Court — Executor — Con- 
fession of  Judgment. 

IN  error  from  a  £10  court,  the  defendant  re- 
lied on  the  now  plaintiff's  having  confessed 
judgment  in  the  inferior  tribunal,  and,  there- 
fore, this  case  was  distinguishable  from  those, 
in  which  the  court  had  determined  an  execu- 
tor could  not  sue  before  a  justice  of  the  peace. 

Per  Curiam.  Consent  will  take  away  error, 
but  neither  that  nor  confession  will  give  juris- 
diction. 

N.  B. — This  cause  was  tried  in  the  court 
below  before  the  act  of  the  last  session. 


*SHADWICK   v.  PHILLIPS.   [*47  1 

Nonsuit — Trial  not  Iwd — Verbal  Agreement  of 
Parties  to  put  off. 

Citation— Ante,  7. 

ON  an  application  for  judgment  as  in  case  of 
nonsuit  for  not  proceeding  to  trial,  the 
affidavit  stated  that  the  plaintiff,  as  he  was 
going  to  subpoena  his  witnesses,  met  the  de- 
fendant, who  said  he  could  not  procure  his  in 
time,  and  begged  him  not  to  bring  on  the  suit. 
This  he  consented  to,  and  the  verbal  agree- 
ment thus  made,  it  was  insisted,  took  the 
case  out  of  the  operation  of  the  twelfth  rule  of 
April,  1796,  which,  it  was  argued,  was  obliga- 
tory only  on  officers  of  the  court. 

THOMPSON,  J.  The  simple  question  is  as  to 
the  validity  of  the  agreement;  whether  the 
court  is  not  bound  to  notice  it,  though  not  re- 
duced to  writing.  Our  rule  (ante,  p.  7)  is, 
"That  no  private  agreement  or  consent  be- 
tween the  parties,  &c.,  shall  be  alleged  or  sug- 
gested by  either  of  them  against  the  other, 
unless  the  same  shall  be  reduced,"  &c.  We 
think  that  it  ought  to  extend  to  parties,  as  well 
as  attorneys  in  the  suit.  Such  must  have 
been  the  intention  of  the  court;  otherwise  it 
would  have  been  restrained  to  such  as  were 
entered  into  between  attorneys.  The  words 
of  the  rule  warrant  our  determination.  It  is 
as  necessary  between  parties  as  their  attorneys, 
and  enforcing  this  construction  will  prevent 
much  altercation.  There  is  no  difficulty  in  re- 
ducing any  agreement  into  writing.  In  the  pres- 
ent instance,  indeed,  the  existence  of  the  en- 
gagement is  not  contradicted,  but  it  is  not  ad- 
mitted; and  if  it  be  of  no  validity,  it  was  unnec- 
essary it  should  be  denied.  There  may*  [*4  7 12 
be  a  hardship  in  this  case,  but  the  court  can- 
not violate  what  they  think  a  proper  and  cor- 
rect rule  to  enforce.  But  even  the  hardship 
will  in  some  degree  disappear  if  we  advert  to 
the  affidavits,  which  state  that  the  parties  in- 
formed their  attorneys  of  the  arrangement. 
It  was,  therefore,,  their  duty  to  go  on,  not- 
withstanding what  passed  between  their 
clients. 

SPENCER,  J.  I  cannot  coincide  in  this 
decision.  It  is  true,  with  the  general  law  of 
the  laud  no  man  is  supposed  to  be  unacquaint- 
ed, and,  therefore,  ignorance  of  it  is  no  ex- 
cuse. But  this  presumptive  knowledge  is  not 
to  be  extended  to  our  private  rules  of  court. 
COL.  AND  CAINEB. 


1805 


FALL  AND  SMITH  v.  JOHN  BELKNAP. 


372 


Our  officers,  indeed,  may  be  supposed  con- 
nusant  of  them,  for  they  are  intended  to  be 
always  present  here  in  person.  In  this  case 
now  before  us,  the  rule  operates  most  un- 
justly. A  plaintiff  on  the  way  to  subpoena  his 
witnesses,  meets  a  defendant,  and  to  oblige 
him,  because  he  could  not  be  ready  with  his, 
consents  not  to  bring  on  the  cause,  and  merely 
on  account  of  this  agreement  not  being  re- 
duced to  writing,  he  is  now  to  be  nonsuited.  I 
think  the  practitioners  in  this  court  were  the 
subject  matter  of  the  rule,  and  it  ought,  to 
affect  them  only. 

TOMPKINS,  J.  I  fully  concur  in  the  opinon 
last  given. 

LIVINGSTON,  J.  I  did  not  intend  to  have 
given  my  reasons  for  coinciding  with  the  de- 
cision pronounced  by  Mr.  Justice  Thompson. 
But  to  me  it  appears  of  more  importance  that 
the  rule  should  apply  to  parties  than  attor- 
neys. The  latter,  if  they  abide  honorably  by 
their  engagements,  know  exactly  the 
473*]  extent*  of  them,  and  to  what  they  ap- 
ply; but  a  suitor  can  hardly  ever  determine 
the  effect  of  his  own  words,  and  we  shall 
have  eternal  disputes  upon  how  far  they 
mean  to  go.  The  construction  now  made  is 
clearly  within  the  letter  of  the  rule,  and  were 
it  to  be  made  anew,  I  should  be  for  its  com- 
porting with  the  present  decision. 


KENT,  C.  J. 
his  motion. 


The  defendant  takes  nothing  by 


FALL  AND  SMITH,  Overseers  of  the  Poor  of 
New  Windsor, 

v. 
JOHN  BELKNAP. 

Argument — No    Opposition — Affidavit   of   Ser- 
vice. 

IF  an  affidavit  of  service  state  that  the  party 
did  serve  his  opponent  with  notice  of 
bringing  on  the  cause  to  argument,  it  is, 
without  setting  forth  or  producing  the  no- 
tice itself,  sufficient  to  entitle  to  judgment, 
if  the  opposite  side  do  not  attend. 


BRANDT,  ex  dem.  PALMKH, 

V. 

BERRIAN. 

Trial — Verbal  Agreement  to  Arbitrate  Admit- 
ted— Costs. 

THIS  was  an  application  for  the  costs  of  the 
last  circuit  at  Westchester,  upon  an  affi- 
davit that  just  as  the  plaintiff  was  ready  for 
trial,  the  defendant  verbally  agreed  to  leave 
the  matter  to  arbitration,  which,  he  had  since 
refused  to  do,  though,  from  a  reliance  on  his 
promise,  the  cause  was  not  brought  on. 

Mr.  Munro  admitted  all  the  facts,  but  said  he 
was  not  authorized  to  consent  to  the  motion. 

474*]  *Per  Curtain.  When  an  agreement, 
though  by  parol,  is  admitted,  and  its  being 
COL.  AND  CAINES. 


merely  verbal  not  urged  against  it,  or  relied 
on,  it  ought  to  have  its  effect.  But  in  this 
case,  the  plaintiff  is  premature  in  his  applica- 
tion. He  must  wait  till  the  costs  of  suit  are 
taxed,  and  then  he  will  be  entitled  to  them. 


JACKSON,  ex  dem.  ROSEKRANS, 

v. 
HOWD. 

Agreement — Notice — Affidavit  of  Service. 

T'HE  affidavit  of  service  was  by  the  attorney 
on  information  from  his  clerk  that  it  had 
been  duly  made,  according  to  an  indorsement 
on  the  notice  produced,  made  by  the  clerk 
who  had  quitted  this  State,  and  gone  into 
Connecticut,  where  he  then  was. 

Per  Cnriam.  The  affidavit  is  sufficient,  and 
as  full  a»  tJie  circumstances  of  the  case  would 
admit. 


STEPHEN  OLNEY 


EBENEZER  BACON. 

Default  —  Misapprehension  —  Accident  —  Terms. 

AN  order  had  been  obtained,  on  behalf  of 
the  plaintiff,  to  stay  the  proceedings,  till 
the  fourth  day  of  last  term,  for  the  purpose 
of  affording  an  opportunity  to  move  for  a 
rule,  directing  the  justice,  in  the  court  below, 
to  amend  his  return,  by  inserting  a  written 
document  adduced  in  testimony  before  him. 
By  some  accident,  the  attorney  intrusted 
with  the  papers  did  not  arrive  in  New  York 
till  after  the  fourth  day,  and  on  the  sixth,  the 
defendant  entered  a  default  against  the  plaintiff 
for  not  assigning  errors  according  to  notice, 
after  which,  the  plaintiff,  on  the  last  day  of 
the  term,  obtained  his  rule  to  amend,  no  one 
appearing  to  oppose. 

*Mr.  Woodworth,  on  these  facts  de-  [*475 
tailed  by  affidavit,  moved  to  set  aside  the  de- 
fault and  subsequent  proceedings. 

Mr.  Foote,  contra,  relied  on  a  stipulation  en- 
tered into  between  the  attorneys  in  the  cause,  by 
which  it  was  agreed  that  the  written  evidence 
referred  to  in  the  return  was  the  order  or 
draft  therein  mentioned.  This,  he  contended, 
was  adequate  to  the  amendment  to  be  moved 
for,  and  superseded  the  necessity  of  applica- 
tion; therefore,  errors  not  being  assigned  at  the 
time  the  order  expired,  the  defendant  was  reg- 
ular in  his  default. 

Mr.  Woodworth,  in  reply.  The  stipulation 
reached  only  to  the  identity  of  the  paper,  the 
mere  production  of  which  was  not  evidence, 
and  the  object  of  the  motion  was  to  procure  a 
return  of  it,  to  show  it  was  no  testimony,  with- 
out being  corroborated  by  witnesses.  Besides, 
when  a  party  does  not  'appear  to  oppose,  he 
waives  all  objections.  (Ekhart  \.  Dearman, 
ante,  p.  422.) 

Per  Cun'am.     The  stipulation  was  defective, 

for  the  object  of  the  plaintiff  could  not  have 

I  been  obtained  by  it;  nor  does  it  state  to  have 

199 


475 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1805 


been  made  with  a  view  of  superseding  the 
necessity  of  an  application  to  the  court.  But 
the  order  to  stay  proceedings,  having  in  fact 
expired  before  the  default  for  not  assigning 
errors  was  entered,  the  defendant  was  regular; 
though,  as  there  has  been  some  misapprehen- 
sion, and  a  delay  from  accident,  it  must  be  set 
aside  on  payment  of  costs  and  assigning  errors 
in  twenty  days. 

476*]  *TEUNIS  QUICK 

BENAJAH  MERRILL. 

Default — No  Notice  of  Retainer — Notice  of  Bail 
— Clerical  Mizprwon. 

IT  did  not  appear  that  notice  of  retainer  of 
attorney  for  the  defendant  had  been  re- 
ceived, but  notice  of  bail  was  admitted,  an  ex- 
ception to  which  was  taken  (on  a  motion  to  set 
aside  a  default,  and  other  proceedings,  ac- 
companied by  an  affidavit  of  merits),  that  it 
was  entitled  "  Benajah  Merrill  ads.  Jeunis 
Quick;"  and  the  want  of  notice  of  retainer  was 
also  urged. 

Per  Curiam.  Notice  of  bail  necessarily 
imports  a  notice  of  retainer  as  attorney.  As 
to  the  title  of  the  notice,  the  ruling  principle 
is,  that  if  the  party  served  be  not  misled,  or  the 
papers  be  not  such  as  evidently  may  mislead,  a 
mere  clerical  misprision  shall  not  prejudice. 
It  does  not  appear  that  there  was  any  other 
cause  depending  against  Merrill.  In  liberal 
practice,  the  notice  ought  to  have  been  re- 
ceived, and  the  objections  must,  therefore,  be 
overruled. 


ABRAHAM  BOYCE 
REUBEN  MORGAN. 

Judgment — Reversal — Premature  Action — Com- 
mencement of  Suit —  Writ  or  Declaration. 

Citation— Ante,  170. 

IN  error  on  certioran,  upon  an  agreement 
entered  into  on  the  28th  of  December,  not 
to  sue  a  third  person,  the  gravamen  was  laid, 
that  he,  since  that  time,  had  sued,  and  the  sum- 
mons was  dated  on  the  day  of  the  agreement. 
On  this,  the  defendant  below  insisted  on  a 
nonsuit;  but  the  plaintiff  refusing  to  submit  to 
it,  a  verdict  was  given  in  his  favor.  It  was 
now  contended  that  the  levying  the  plaint  was 
the  commencement  of  the  suit;  but  the  court, 
on  the  authority  of  Jjtncry  v.  Lawrence  (ante, 
47 7*]  p.  170),  *ruled  that  issuing  the  sum- 
mons, or  warrant,  was  the  beginning  of  the 
action,  and  reversed  the  judgment;  the  suit 
appearing  on  the  face  of  the  record  to  have  been 
instituted  previous  to  any  cause  of  action 
accrued. 


JACKSON,  ex  dem.  NORTON, 

7?. 

STILES,  GROVER,  Tenant. 

Ejectmentr— Default— Plea  of  Court— Cost*. 

RUSSEL  moved  to  set  aside  the  default  and 
all  subsequent  proceedings,   on  an   afti- 
200 


davit  admitting  due  service  of  the  declaration 
and  notice,  but  adding  that  he  thought  the 
Supreme  Court,  at  which  he  was  noticed  to  ap- 
pear, sat  at  Salem,  in  the  county  where  the 
lands  in  question  lie;  nor  did  he  know  to  the 
contrary  till  a  few  days  before  the  Circuit 
Court,  when  he  was  first  informed  that  the 
Supreme  Court  did  not  sit  at  Salem,  and  that 
the  court  held  there  was  only  for  the  trial  of 
issues  joined  in  the  Supreme  Court,  and  that 
he  had  a  good  and  substantial  defence. 

Mr.Shephard,  contra,  insisted  that  the  sittings 
of  the  Supreme  Court,  being  regulated  by  stat- 
ute, were  matter  of  general  notoriety,  and  there- 
fore no  excuse  was  shown  for  the  default. 
Besides,  there  had  been  a  loss  of  a  trial. 

Per  Curiam.  This  is  in  ejectment:  were  we 
not  to  interfere,  the  possession  would  be 
changed. 

Take  your  motion  on  payment  of  costs. 


WILSON  v.  GUTHRIE. 

Default — Mistaking  Court — Costs. 

ON  an  affidavit  by  the  defendant  that  when 
served  with  the  writ  in  this  cause  he  sup- 
posed the  suit  *to  be  in  the  Common  [*478 
Pleas,  and  had  "a  substantial  defence,"  cor- 
roborated by  the  deposition  of  his  attorney, 
that  he  was  retained  to  defend  upon  informa- 
tion by  the  defendant  that  the  suit  was  in  the 
Common  Pleas,  and  he  knew  not  to  the  con- 
trary till  he  gave  notice  of  retainer,  the  court 
set  aside  a  regular  default  and  subsequent  pro- 
ceedings upon  payment  of  costs. 


HINCKLEY  v.  BOARDMAN. 

Taxation  of  Costs — No  Contest —  Waiver. 

EUSSEL,  on  an  affidavit  stating  that  in  the 
present  suit  the  recovery  had  been  less 
than  $250;  that  the  verdict  had  been  set  aside 
on  payment  of  costs,  which  had  been  taxed  at 
those  of  this  court,  and  paid  over,  moved,  on 
the  part  of  the  defendant,  that  the  taxation 
should  be  reviewed,  and  everything  received 
beyond  the  costs  of  the  Common  Pleas  re- 
turned. 

Mr.Snephard,con\r&,  read  an  affidavit,  stating 
that  after  the  rule  to  set  aside  the  verdict  had 
been  obtained,  he,  as  attorney  to  the  plaintiff, 
made  out  the  bill  of  costs,  and  submitted  it  to 
Mr.  Russel,  who  made  objections  to  some 
items,  all  of  which  were  immediately  struck 
out.  That  notice  of  taxation  was  then  duly 
served,  but  no  person  attending  on  behalf  of 
the  defendant,  the  bill  was  taxed  ex-parte,  the 
costs  received,  and  the  allowance  for  the  at- 
tendance of  witnesses  actually  paid  to  the 
plaintiff. 

SPENCER,  J.     When  the  motion  was  made 

for  a  new  trial,  we  were  asked  to  grant  a  favor; 

the  terms  on  which  we  would  accord  it,  were 

in  our  discretion,  *and  had  costs  been  [*47D 

COL.  AND  CAINES, 


1805 


WITMORE  v.  RUSSELL. 


479 


"— ~-i™*" 

mentioned,  we  ought,  in  my  opinion,  to  have 
allowed  those  of  this  court. 

THOMPSON,  J.  I  do  not  think  so.  The  rule 
was  intended  to  be  on  payment  of  legal,  taxa- 
ble costs.  It  is  not  to  be  supposed  that  a 
plaintiff  should,  on  a  defence,  recover  more 
than  on  a  default. 

LIVINGSTON,  J.  When  interlocutory  mat- 
ters are  set  aside,  we  ought  not  to  look  for- 
ward to  what  might  be  recovered,  or  back  on 
that  which  has  been;  Supreme  Court  costs 
appear  to  me  the  most  proper  to  be  awarded. 

TOMPKINS,  J.  I  conceive  when  the  verdict 
was  set  aside,  it  was  on  payment  of  such  costs 
as  were  legally  due.  But  I  consider  the  de- 
fendant, by  not  attending  the  taxation  after 
service  of  a  copy  of  the  bill  of  costs,  to  have 
waived  all  opposition  to  their  amount. 

KENT,  Ch.  J.  He  should  have  appeared  and 
contested  the  taxing.  His  not  doing  so  is  a 
waiver  of  his  right.  Had  it  been  otherwise, 
I  should  think  the  costs  of  the  Common  Pleas 
only  were  recoverable,  though  we  certainly 
might  have  allowed  Supreme  Court  costs  had 
we  pleased  so  to  do. 

As  things  are,  you  can  take  nothing  by  your 
motion,  and  must  pay  the  costs  of  resisting. 


WITMORE  v.  RUSSELL. 

Costs — Nonsuit — Costs  of  Former  Stipulation. 

ON  an  application  for  judgment,  as  in  case 
of  nonsuit,  the  defendant  wished  to  in- 
48O*]  elude,  in  the  costs  *now  ordered  to  be 
paid,  on  stipulating,  those  taxed  on  a  former 
stipulation,  given  without  motion,  but  not 
entered  with  the  clerk. 

Per  Curiam.  You  should  have  filed  your 
stipulation,  entered  a  rule  nisi  for  judgment, 
served  a  certified  copy  of  the  rule,  with  a  taxed 
bill  of  costs,  and  made  a  demand  of  payment. 

You  can  take  nothing  by  your  motion  unless 
you  account  for  the  not  doing  so. 

N.  B. — This  being  done,  the  defendant  ob- 
tained his  costs,  but  the  plaintiff  had  leave  to 
stipulate  again. 


NATHAN  LEONARD 

v. 
GIDEON  SUNDERLIN. 

Amendment  of  Justice's  Return — Sufficiency  of 
Affidavit. 

O  HEPHARD  moved  for  leave  to  permit  a  jus- 
O  tice  to  amend  a  return  on  an  affidavit, 
stating  that  it  was  made  out  by  one  of  the  at- 
torneys in  the  suit,  and  on  examination  he  finds 
it  "  incorrect  in  point  of  fact,  and  defective  as 
it  existed  before  him." 

Per  Curiam.  The  affidavit  is  insufficient. 
It  should  have  specified  the  points  in  which  it 
COL.  AND  CAINES. 


was  intended  to  amend,  that  we  might  see 
whether  the  errors  now  existing  were  material. 


JACKSON,  ex  dem.  METCALFE, 

v. 
WOODWORTH. 

Nonsuit —  I 'rial  not  had — Sufficiency  of  Affidavit. 

THE  affidavit  for  judgment,  as  in  case  of 
nonsuit  in  this  cause,  was  made  by  the 
clerk  of  the  attorney  for  the  defendant,  and 
though  it  stated  a  notice  for  trial,  it  did  not 
allege  that  the  suit  was  not  tried. 

*Mr.  Weston,  for  the  plaintiff,  relied  on  [*48 1 
the  above  circumstances  as  conclusive  against 
the  application. 

Per  Curiam.  For  the  reasons  assigned,  you 
cfin  take  nothing  by  your  motion. 


VAN  RENSSELAER 

v. 
HOPKINS,  Bail  of  SHELDEN. 

Bail — Time  to  Surrender — Distances — Fi.  fa. 
against  goods  of  Principal — Exoneretur. 

T7MOTT  moved  for  time  to  surrender  the 
-1-J  principal  on  an  affidavit  by  the  bail,  stat- 
ing that  the  capias,  returnable  on  the  first  day 
of  this  term,  was  not  served  on  him  till  the  22d 
of  July;  that  Shelden  resided  75  miles  west  of 
him,  and  he  himself  near  300  miles  west  of 
Albany,  to  which  place  it  was  necessary  to 
send  for  a  copy  of  the  bailpiece,  so  that  it 
was  impossible  to  make  the  surrender  in  due 
time.  That  the  plaintiff  had  sued  out  a  f.  fa. 
against  the  goods  of  Shelden,  which  the  depo- 
nent had  been  informed,  and  at  the  time  verily 
believed  to  be  true,  was  a  complete  exonera- 
tion from  his  liability. 

Per  Curiam.     Take  your' motion. 


GARDINIER  v.  CROCKER. 

Default — Defendants   Attorney   Misled —  Costs 
—Plea. 

¥YAN  NESS  moved,  in  an  action  of  as- 
.  sault  and  battery,  to  set  aside  the  de- 
fault and  subsequent  proceedings  on  two 
affidavits:  one  by  the  defendant,  stating  that 
he  thought  the  writ  was  returnable  as  of  this 
term,  and  had  a  good  and  substantial  defence; 
the  other  by  himself,  that  he  had  been  retained 
to  defend,  but  was  informed  the  writ  was  re- 
turnable the  *first  Monday  in  this  Au-  [*482 
gust,  and  had  not,  therefore,  given  notice  of 
retainer. 

Mr.  Van  Vechten,  contra,  stated  the  writ  to 
have  been  returnable  in  May. 

Per  Curiam.     Take,  your  motion,  on  payment 
of  costs  and  pleading  issuably. 

201 


4S2 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1805 


VAN  DRISNER  t>.  CHRISTIE. 


Judgment — Dower — Real  Action* — Motion  in 
Open  Court. 

IN  dower,  and  all  real  actions,  judgment  can- 
not be  entered  without  motion  in  open 
court. 


WILLIAM  MEIKS  «.  NOADIAH  CHILDS. 

Security  for  Costs — Costs  Taxed — Delivery  of 
B»nd  by  Cterk — Application  to  Court. 

fpHE  clerk  cannot  give  up  bonds  filed  for 
I  security  for  costs  in  an  action  where  a 
non-resident  is  plaintiff;  the  application  must 
be  to  the  court,  and  the  affidavit  on  which  it  is 
founded  should  state  the  due  taxation  of  costs, 
the  name  of  the  surety,  and  the  non-residence 
of  the  plaintiff. 


BENJAMIN  M.  MUMFORD 

v. 
PETER  A.  CAMMANN. 

Change  of  Venue — From  Kings  County  to  New 
York  County —  Witnesses. 

THIS  was  an  application  to  change  the  venue 
from  the  County  of  Kings  to  the  City  and 
County  of  New  York,  on  an  affidavit  that  all 
the  witnesses  of  the  defendant  resided  in  the 
city  of  New  York. 

Per  Curiam.  The  rule  we  have  laid  down, 
as  to  allowing  the  defendant  to  bring  back  the 
renuf,  when  his  witnesses  reside  in  the  county 
483*]  to  which  it  is  to  be  *removed,  and  the 
plaintiff  does  not  show  he  has  any  where  it  is 
laid,  cannot  apply  to  a  case  like  the  present. 
The  court-house  of  the  County  of  Kings  is  so 
contiguous  to  the  city  of  New  York,  that  there 
is  no  hardship  in  carrying  witnesses  from  one 
place  to  the  other.  There  is  hardly  a  county 
in  the  State  in  which  the  witnesses  who  attend 
a  trial  do  not  travel  farther  than  they  will  in 
the  present  suit. 

Take  nothing  by  the  motion. 


JACKSON,  ex  dem.  CRAMER, 

v. 
STILES,  WILLIAMS,  Tenant. 

Attachment — Cost— Nonsuit — Lease  Entry  and 
Ouster  not  Confessed. 

ON  motion  for  an  attachment  for  not  paying 
costs,  on  account  of  the  plaintiff's  being 
nonsuited,  for  want  of  confessing  lease  entry 
and  ouster,  the  affidavit  must  state  that  the 
person  demanding  them  of  the  tenant  was 
duly  authorized  by  the  lessor  of  the-  plaintiff, 
according  to  the  English  practice.  (Run. 
Eject.,  415.) 
202 


BRANDT,  EX  DEM.  M'CLELAND, 

v. 
BURROWS. 

1.  Nonsuit — Trial  not  had — Costs — Stipulation. 
2.  Idem —  Waiver — Commission. 

SCOTT  insisted  that  the  notice  of  motion  for 
judgment,   as    in  case  of    nonsuit,   was 
waived  by  giving  subsequent  notice  of  an  ap- 
plication for  a  commission. 

Per  Curiam.  The  defendant  knew  you  were 
entitled  to  stipulate;  he,  therefore,  comes  pre- 
pared, if  you  do  that,  to  make  his  other  mo- 
tion. If  you  elect  to  have  judgment  of  non- 
suit against  you,  it  is  in  your  power.  If  not, 
you  must  stipulate,  and  then  the  motion  for 
the  commission  will  be  granted. 


*JACKSON,  EX  DEM.  LAWYER,  [*484 

v. 
STILES,  PALMITIER,  Tenant. 

Ejectment — Admission  of  Tenant  to  Defend — 
Notice. 

QUACKENBOS  objected  to  the    notice  of 
motion  to  set  aside  proceedings  against 
the  casual  ejector,  and  that  the  tenant  might 
be  admitted  to  defend,  because  it   was  sub- 
scribed "attorney  for  the  tenant." 

Per  Curiam.      There  is  nothing  in  the  objec- 
tion. 


STEPHEN  REYNOLDS 

v. 
DANIEL  BEDFORD. 

DANIEL  HERRICK 

v. 
DANIEL  BEDFORD. 

1.  Justice's   Court — Overruling    Demurrer.     2. 
Idem — Sicearing  Constable  to  attend  Jury. 

Citation-Ante,  381 ;  4  St.  L.,  476,  ch.  XCIII. 

ON  a  certiorari  in  these  causes  to  a  justice's 
court,  the  errors  relied  on  were  that  in  one 
it  appeared  on  the  face  of  the  record,  the  jus- 
tice overruled  a  demurrer  to  evidence,  without 
any  demand  of  judgment  from  the  opposite 
party,  on  his  having  joined  in  it;  till  which 
period,  it  was  contended,  there  was  no  issue  in 
law.  That  in  the  other,  the  constable,  though 
said  to  be  duly  sworn,  appeared  not  to  have 
been  so,  as  the  oath  set  out  was  only  "to  at- 
tend the  said  jury,  and  to  keep  them  together 
in  a  private  place  until  they  had  agreed  on 
their  verdict;"  and  that  in  both  cases  the  wit- 
nesses were  sworn  "to  maintain  the  action," 
instead  of  "to  declare  the  truth." 

Mr.  Cady,  for  the  plaintiff,  on  the  first  point, 
cited  4  Bac.  Abr.,  137  (old  edition),  and  on  the 
last,  Day  v.  Witter  (ante,  p.  381). 

*Per  Curiam.     In  the  first  of  these  [*485 

causes  we  think  there  is  no  error  in  the  point 

relied  on.     The  justice,  in  our  opinion,  was 

COL.  AND  CAINES. 


1805 


GIVEN  v.  DRIGGS. 


485 


correct  in  overruling  the  demurrer.  The  act 
conferring  jurisdiction  to  justices  of  the  peace, 
gives  to  either  party  the  right  of  trial  by  jury; 
and,  when  it  is  considered  generally  that  the 
justices  cannot  be  much  acquainted  with  the 
science  of  the  law,  it  cannot  be  important  to 
the  parties  litigant  to  draw  the  examination  of 
facts  from  the  jury  to  the  court.  An  act  of 
the  last  session  enables  every  party  aggrieved 
to  obtain  a  special  return  of  the  facts  (4  Sta. 
Laws,  476,  ch.  xciii.),  and  this,  we  think,  ought 
to  supersede  demurrers  to  evidence.  They  are 
frequently  interposed  to  entangle  justice  in  the 
nets  of  the  law;  and  we  mean  to  be  understood, 
that  the  inferior  magistrate  rightly  overruled 
it,  on  the  ground  that  it  is  a  proceeding  inap- 
plicable to  suits  under  the  ' '  act  for  the  more 
speedy  recovery  of  debts  to  the  value  of  twenty- 
five  dollars.  The  judgment  in  that  cause  must, 
therefore,  be  affirmed.  In  the  second,  it  must 
be  reversed,  agreeably  to  the  decision  in  Day 
v.  Wilder.  For  the  justice  has  undertaken  to 
set  forth  the  oath  he  did  administer;  and  as  it 
is  materially  variant,  the  word  "duly"  cannot 
be  of  any  avail. 


GIVEN  v.  DRIGGS. 

Inquest — Notice  to  Appoint  New  Attorney — Rule- 

of  Court. 

A  FTER  a  new  trial  had  been  ordered  in  this 
IA.  cause,  the  plaintiff,  on  the  30th  of  June, 
1804,  personally  served  the  defendant  with  a 
written  notice  of  it,  requiring  him  to  appoint 
a  new  attorney,  as  his  former  one  had  been  pro- 
moted to  the  bench,  and  that  in  default  of  so 
486*]  doing,  all  subsequent  notices  would  *be 
served  by  affixing  the  same  in  the  office  of  the 
clerk  of  the  court.  The  defendant  not  having 
nominated  any  new  attorney,  the  plaintiff  gave 
notice  of  trial  in  the  manner  above  mentioned, 
and,  at  the  last  Albany  circuit,  took  an  in- 
quest by  default,  upon  which  judgment  had 
been  entered  and  execution  sued  out. 

Mr.  Williams,  on  the  above  facts,  now  moved 
to  set  them  aside,  contending  that  the  notice  to 
appoint  a  new  attorney  ought  to  have  been  by 
a  rule  of  court  ordering  it  to  be  done. 

Per  Curiam.  In  the  case  of  Bennet  ads.  Vielie, 
July  Term,  1802,  it  was  decided  that  the  party 
must  be  warned  or  he  is  not  bound  to  take 
notice  of  the  proceedings,  and  in  Harvey  ads. 
Ilildrith,  January  Term,  1803,  we  ruled  that 
the  defendant  must  have  personal  notice,  or 
such  as  the  court  would  deem  tantamount. 
Our  statute,  like  that  of  Hen.  IV.,  requires  a 
warning,  and  the  personal  service  here  was  a 
sufficient  one,  without  any  rule  of  court.  The 
defendant  was  grossly  in  default,  as  nine 
months  elapsed  before  the  plaintiff  went  on. 
We  think  thirty  days  a  sufficient  and  reason- 
able notice  in  these  cases. 

You  can,  tlierefore,  take  nothing  by  your  mo- 
tion. 


BEADLE  v.  HOPKINS. 

Covenant — Plea  of  Performance — Notice  of 
Special  Matter. 

IN  covenant,  under  a  plea  of  performance, 
the  defendant  gave  notice  of  special  mat- 
COL.  AND  CAINES. 


ter,  and  the  judge  at  the  trial  permitted  equi- 
table evidence  to  be  given  upon  which  a  verdict 
was  taken  for  the  defendant.  *The  [*487 
application  was  to  set  it  aside  and  grant  a  new 
trial. 

Per  Curiam.  The  motion  must  be  granted 
with  costs,  to  abide  the  event  of  the  suit.  Un- 
der the  plea  in  this  cause,  the  notice  was  inad- 
missible, and  the  evidence,  therefore,  improp- 
erly received.  The  statute  requires  the  general 
issue  to  be  pleaded,  where  special  matter  is 
relied  on  in  evidence,  under  the  notice  our 
law  permits. 


TOWER  v.  WILSON,  Sheriff  of  Washington. 

1.  Amendment —  Variance — Issue  Roll  and  Nm 
Prius  Record.     2.  Idem — Verdict — Venire. 

SHEPHARD  moved  in  arrest  of  judgment 
on  the  following  grounds :  1st.  That 
there  was  a  variance  between  the  issue  roll 
and  nisi  prius  record  ;  the  memorandum  in  the 
first  being  of  January  Term,  1803,  and 
that  of  the  latter  in  1804.  3d.  That  there  was 
no  special  suggestion  that  the  sheriff  of  the 
county  was  interested,  and  no  special  award 
to  the  coroner,  who  appeared  to  have  returned 
the  venire. 
Mr.  Foote,  contra,  was  stopped  by  the  court. 

Pei'  Curiam.  The  issue  roll  is  allowed  to  be 
correct,  and  the  circuit  record  is  always 
amendable  by  it,  on  payment  of  the  costs  of 
the  motion  made.  The  second  error  is  within 
the  spirit  of  the  statute  ofjeofales,  which,  after 
verdict,  cures  the  award  of  a  venire  to  an  im- 
proper officer,  on  an  insufficient  suggestion; 
a  fortiori  if  the  award  be  to  the  right  person. 

Take  nothing  by  your  motion. 


*JACKSON,  ex  dem.  COI,DEN,  [*488 

v. 
BROWNELL. 

Stay  of  Proceedings — Expiration  of  Certificate — 
Notice — Judgment. 

TTTOOD WORTH  moved  to  discharge  a 
VY  judge's  certificate  to  stay  proceedings, 
because  the  plaintiff  had  not  brought  on  the 
cause  to  argument  this  term,  according  to  no- 
tice, though  there  had  been  ample  opportunity. 
He  contended  that  the  certificate  expired  with 
the  term,  if  the  party  obtaining  it  neglected  to 
bring  on  the  argument. 

Per  Curiam.  When  the  cause  is  of  such  a 
nature,  that  either  side  may  notice  for  argu- 
ment, both  are  equally  in  default  if  it  be  not 
brought  on.  The  only  mode  in  such  a  case  to 
get  rfd  of  a  judge's  order,  is  to  give  a  counter 
notice,  and  when  the  cause  is  called  on  the 
calendar,  to  come  forward  and  demand  judg- 
ment. Here  each  party  has  noticed,  and 
neither  one  has  moved  ;  the  application  must, 
therefore,  be  denied.  Had  the  cause  been 
such  that  both  parties  could  not  have  noticed, 
then  the  present  motion  would  have  been  right. 

203 


488 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1805 


ANONYMOUS. 


Stay  of  Proceedings — Expiration  of  Certificate — 
Report  of  Referees. 

A  SIMILAR  application  was  made  to  vacate 
a  judge's  certificate  to  stay  proceedings, 
upon  a  report  of  referees. 

Per  Curiam.     Take  your  motion.     This  case 
comes  exactly  within  the  exception  in  the  last. 


489*] 


•WILLIAM  FINDER 
JOHN  I.  MORRIS. 


Attorney's  Lien — Settlement  between  Parties — 

Notice. 
Citation— Doug .,  238 ;  4  Burn.  &  E.,  123 ;  6  Id.,  361- 

WILLIAMS  moved  to  set  aside  the  judg- 
ment and  execution  in  this  suit,  or  to 
enter  up  satisfaction  on  the  judgment  obtained 
therein  on  a  sealed  note,  upon  production  of  a 
written  discharge  from  the  plaintiff,  contain- 
ing a  complete  release  of  all  demands,  costs, 
&c.,  and  a  receipt  for  the  balance  due,  which 
the  defendant  swore  he  paid  in  full  considera- 
tion of  the  note,  and  without  knowing  that 
any  third  person  had  an  interest  therein. 

Mr.  Tiffany  objected  to  the  application,  be- 
cause the  attorney  had  a  lien  on  the  debt  for  his 
costs,  and  might  by  this  species  of  settlement 
be  cut  out.  He  contended  also  that  the  rule 
would  be  inefficacious,  as  the  judgment  en- 
tered was  against  Morrison,  and  the  order  of 
court  would  be  in  a  suit  where  the  defendant 
was  named  Morris. 

Per  Curiam.  From  the  case  of  Welsh  v.  Hole 
(Doug.,  238),  sanctioned  by  Mikhett  v.  Oldfield 
(4  D.  &  E.,  123),  and  Read  v.  Dupper  (6  D.  & 
E.,  361),  if  the  defendant  pay  to  the  plaintiff 
debt  and  costs,  after  notice  from  the  attorney 
of  the  plaintiff  not  to  do  so,  he  pays  the  costs 
in  his  own  wrong,  and  Lord  Mansfield  said 
the  court  could  not  go  further.  If  the  adverse 
party  applied  to  the  court  to  cancel  the  judg- 
ment by  a  set-off,  then  the  court  would  take 
care  that  the  attorney's  bill  should  be  paid.  In 
the  case  of  Spencer  v.  White,  April  Term,  1799, 
the  court  qualified  the  right  of  the  plaintiff's 
49O*]  attorney,  even  in  the  *case  of  a  set-off. 


NOTE.— Settlement  between  parties. 

The  rule  in  New  York  now  is:  The  attorney 
has  a  lien  which  attaches  at  the  commence- 
ment of  an  action  or  the  service  of  an 
answer  containing-  a  counterclaim  to  the  recov- 
ery in  any  form,  or  in  any  hands;  and  it  will 
not  be  affected  by  any  settlement  between  the 
parties  before  or  after  judgment.  Code  Civ.  Pro., 
sec.  66,  amended  by  Laws  of  1879,  ch.  542.  Prior  to  this 
enactment  there  was  no  lien  without  notice;  8 
Johns.,  S6 ;  3  Cai.,  165 ;  2  Aik.,  162 ;  and  see  15  Johns., 
405;  1  Cow..  172.  When  there  is  no  notice,  see  18  N. 
Y.,  498 ;  52  Id.,  73 ;  12  Abb.  Pr.  N.  S.,  444 ;  11  Hun,  190 ; 
22  Id.,  600.  Discontinuance  to  prevent  attorney  from 
collecting1  his  costs  will  be  vacated;  Warner  v.  Can- 
ovan,  5  Alb.  L.  J.,  381 ;  see  Bryon  v.  Durrie,  6  Abb. 
N.  C.,  135.  Notice  may  be  served  at  any  time  before 
entry  of  discontinuance;  5  Alb.  L.  J.,  381.  Notice 
must  be  given  to  the  party  himself;  Wright  v. 
Wright,  7  Daly,  62.  The  case  must  be  tried  before  a 
judgment  for  costs  can  be  entered,  after  the  settle- 
ment has  been  set  aside;  Pickard  v.  Yencer,  21 
Hun.,  403:  Wilber  v.  Baker,  24  Hun.,  24,  26. 

204 


The  present  motion  must,  therefore,  be  granted, 
as  there  is  no  pretence  of  notice  to  the  defendant, 
or  of  any  collusion  between  him  and  the 
plaintiff,  to  deprive  the  attorney  of  his  costs. 
As  to  the  variance  between  the  names,  this  is 
a  rule  granted  in  the  cause  of  Pinder  v.  Morris, 
and  it  will  never  be  an  authority  for  entering 
satisfaction  on  a  judgment  in  one  against  Mor- 
rison. 


PECK  v.  McALPINE. 

Certiorari — Jurisdiction  of  Justice — Adjourn- 
ment for  more  than  six  days — At  Objector's 
Request — Estoppel. 

ON  certiorari,  the  plaintiff  relied  on  the  jus- 
tice's having  adjourned  for  more  than  six 
days. 

Per  Curiam.  It  appears  to  have  been  so 
done  on  his  own  request;  he  is,  therefore,  es- 
topped from  alleging  it  for  error. 


HUGH  MOORE  v.  ROSWELL  AMES. 

Contempt — Justice's  Fine — Judicial  Act. 

ON  certiorari.  The  suit  before  the  justice, 
was  to  recover  back  a  fine  of  f — — ,  im- 
posed by  the  now  plaintiff  upon  the  present 
defendant,  for  a  contempt  upon  refusing  to 
be  sworn,  or  answer  as  a  witness  in  a  cause 
tried  before  him. 

Per  Curiam.  A  justice  is  not  liable  to  a 
suit  for  a  judicial  act,  and  the  merits  of  the 
imposition  of  the  fine  cannot  be  overhauled 
before  another  justice.  The  magistrate  in  the 
first  suit  had  exclusive  jurisdiction  to  deter- 
mine when  the  witness  was  in  contempt. 


*DANIEL  B.  BRADT 


JOHN  GEORGE  CRAY. 


[*491 


Writ  of  Error — Bill  of  Exceptions  only — Lis 
Pendens. 

A  BILL  for  exceptions  had  been  sealed  by 
the  judges  of  the  Common  Pleas,  and  the 
parties  attempted  to  bring  on  the  argument, 
though  no  writ  of  error  had  been  sued  out. 

Per  Curiam.     Take  back  your  cases.     There 
is  no  lis  pendens. 


I 


NATHAN  LEONARD 

v. 
ELI  FREEMAN. 

Costs — In  Chancery. 

IT  appeared  on  the  return  to  the  certiorari, 
that  the  action  in  the  court  below,  and  in 
COL.  AND  CAINES. 


1805 


COLDEN    V.    DOPKIN. 


491 


which  a  recovery  had  taken  place,  was  insti- 
tuted for  expenses  incurred  in  going  to  Albany 
to  swear  to  an  answer  to  a  bill  tiled  by  the  now 
plaintiff  against  the  present  defendant. 

Per  Curiam.  The  judgment  must  be  re- 
versed. The  Court  of  Chancery  has  the  ex- 
clusive right  to  determine  questions  of  costs  in 
the  suit  before  it;  and  though  the  ground  of 
the  action  might  have  been  a  vexatious  bill, 
the  justice  could  not  have  any  cognizance. 


COLDEN  v.  DOPKIN. 

Certiorari — Jurisdiction  of  Justice — Adjourn- 
ment for  more  than  six  days. 

T7"  ENT,  C.  J.  This  is  a  case  upon  certiorari, 
J\.  brought  to  reverse  a  justice's  judgment, 
and  submitted  without  argument.  Several 
errors  are  alleged  in  the  proceedings  below, 
but  it  will  be  sufficient  to  notice  only  that  the 
492*]  justice  adjourned  the  cause  for  *more 
than  six  days  without  consent.  The  return 
states  that  the  defendant  below  was  sued  by 
summons,  which  was  returnable  on  the  26th 
of  July;  that  the  parties  appeared  on  that  day 
and  pleaded;  that  the  plaintiff  below  prayed 
a  day  to  prove  his  account,  and  the  justice 
thereon  adjourned  the  court  to  the  3d  of 
August,  on  which  day  the  plaintiff  appeared 
in  court,  and  the  defendant  was  present,  but 
said  nothing,  whereupon  the  justice,  after 
hearing  the  proofs  and  allegations  of  the 
plaintiff,  gave  judgment  for  him. 

Upon  this  case  the  justice  had  no  authority 
to  adjourn  for  more  than  six  days  after  the 
day  of  appearance  of  the  parties  on  the  sum- 
mons. The  3d  section  of  the  £10  Act  is 
positive  that  the  justice  shall,  upon  the  re- 
turn of  the  summons,  or  at  some  other  time, 
not  exceeding  six  days  thereafter,  proceed  to 
hear  the  cause,  and  in  the  present  instance, 
the  3d  of  August  was  the  7th  day  thereafter. 
There  are  other  provisions  in  the  act  respect- 
ing adjournments,  but  none  of  them  have  any 
application  to  the  present  case,  and  there  is 
nothing  in  the  return  from  which  we  can  pre- 
sume any  consent  or  acquiescence  on  the  part 
of  the  defendant.  The  return  contains  pretty 
strong  evidence  to  the  contrary.  On  the  day 
of  the  return  of  the  summons,  the  defendant 
pleaded  a  special  plea,  and  the  plaintiff  re- 
fused to  reply,  but  called  upon  the  defendant 
to  plead  the  general  issue;  which  he  refused 
to  do,  and  then  the  adjournment  took  place  at 
the  prayer  of  the  plaintiff;  and  on  the  day  of 
adjournment,  the  defendant  took  no  part  in 
the  proceedings,  but  remained  a  silent  specta- 
tor. On  this  ground,  therefore,  of  an  adjourn- 
ment beyond  the  time  authorized  by  the  act, 
493*]  the  judgment  below  *must  be  reversed; 
for  where  the  act  is  positive  in  its  directions, 
it  must  be  strictly  observed.  The  same  point 
arose  and  was  determined  in  the  case  Palmer 
v.  Green,  in  April  Term,  1799,  and  that  de- 
cision being  in  point,  governs  the  present. 
COL.  AJJD  CAINES. 


BROOME  «.  BEARDSLEY. 


Pleading — Plea  puis  darrein  continuance —  Veri- 
fication. 

Citaiion— Buller's  N.  P.,  310. 

COVENANT  on  a  sealed  note,  with  a  plea 
of  non  infreget  conventianem. 
At  the  trial,  after  the  jury  were  called,  and 
placed  in  the  jury-box,  the  defendant  tendered 
a  plea  duly  verified  by  affidavit  that  he  had 
puis  darrein  continuance,  under  the  act  for 
giving  relief  in  cases  of  insolvency,  obtained 
his  discharge,  an  exemplified  copy  of  which 
he  produced.  This  being  rejected  as  coming 
too  late,  he  then  offered  in  evidence  the  dis- 
charge itself,  as  a  bar  to  the  plaintiff's  right 
of  recovery.  Against  the  reception  of  the 
testimony,  it  was  insisted  that  it  was  not  ad- 
missible under  the  issue  joined,  nor  without 
having  been  specially  pleaded,  or  notice 
given.  The  points  being  reserved,  a  verdict 
was  taken  subject  to  the  opinion  of  the  court, 
whether  it  should  stand  or  a  new  trial  be 
granted. 

Mr.  Woodworth  for  the  plaintiff. 
Mr.  Root  contra. 

Per    Curiam,    delivered    by    SPENCER,    J. 

The  case  of  Paris  v.  Salkeld  is  decisive  that  a 
plea  puis  darrein  continuance  is  matter  of 
right;  and,  if  verified  *by  affidavit,  the  [*494 
judge  at  nisipi'ius  has  no  discretion  to  accept 
it  or  not,  but  is  bound  to  admit  it. 

There  is  no  dictum  to  be  met  with  that  the 
plea  was  too  late.  In  the  case  of  Pearson  v. 
Parkins  (cited  in  Buller's  Nisi  Prius,  310),  it 
was  holden  that  it  might  be  pleaded  after  the 
jury  are  gone  from  the  bar,  but  not  after  they 
have  given  their  verdict.  The  facts  to  war- 
rant this  plea  must  have  happened  since  the 
last,  and  before  the  next  continuance.  The 
last  continuance  is  the  return  day  of  the  venire 
facias,  where  the  proceedings  are  "in  the  ancient 
method;  the  next  continuance  is  the  first  day 
in  bank  thereafter,  or  the  first  day  of  the  suc- 
ceeding term.  Continuances  are  from  term  to 
term.  We  are  all  of  opinion  that  the  plea 
was  well  pleaded  and  ought  to  have  been 
received.  The  verdict  must,  therefore,  be  set 
aside  without  costs,  and  the  plea  tendered  be 
filed  nunc  pro  tune,  and  be  deemed  parcel  of 
the  nisi  prius  record. 


DAVID  TOWER  v.  NATHAN  WILSON. 

Parol  Evidence  of  Notice — Copy  not  Kept. 

THE  only  point  was  whether  a  party  who 
has  served   a  notice,  without  keeping  a 
copy  of  it,  might  give  parol  evidence  of  its 
contents. 

Per  Curiam.  There  was  a  notice  served  on 
the  defendant  to  produce  a  fi.  fa.  on  the  trial, 
or  that  the  plaintiff  would  prove  it  by  parol. 
It  appears  that  no  copy  of  this  notice  was 
kept.  We  think  it  might  be  proved  by  an 
affidavit  of  its  contents.  In  this  instance  there 
is  no  other  way  to  establish  it,  and  the  defend- 
ant has  it  in  his  power,  by  producing  the 

205 


495 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1805 


495*]  *original,  to  correct  mistakes.  In 
Tidd's  forms,  notices  are  proved  by  affidavits 
of  the  substance  of  their  contents. 


HAFF  v.  SPICER  AND  POTTER. 

Affidavit  not  subscribed — Affiant's  name  at  com- 
mencement. 

O  TARR  took  an  exception  to  the  affidavit  on 
IO  which  the  defendant  moved,  because  it 
was  not  subscribed  by  him. 

Per  Curiam.     It  begins  with  his  name,  and 
that  is  sufficient. 


|  one  letter.  The  pronunciation  would  still  be 
the  same  in  French,  as  the  name  seems  to  im- 
port. It  may  also  be  well  inferred  from  the 
return,  that  it  appeared  to  the  justice  that  the 
defendant  was  as  well  known  by  one  name  as 
the  other,  if  they  be  different;  and  such  a 
replication  to  such  a  plea  is  good.  The  second 
objection  has  no  weight.  The  declaration  is 
good  enough.  It  was  "for  damages,  on  ac- 
count of  the  defendant's  not  fulfilling  a  con- 
tract for  a  certain  lot  of  lease  land,  lying  in 
German  Flats." 

We  are  of  opinion  that  the  judgment  be  af- 
firmed. 


SCHERMERHORN 

0. 
SCHERMERHORN. 

Set-off— Judgment  in  Common  Pleas  against 
Supreme  Court  Judgment. 

IN  this  cause  a  judgment  in  the  Common 
Pleas  was  allowed  to  be  set  off  against  one 
recovered  in  this  court. 


HOUGHTALLING  v.  BRONK. 

Writ  of  Rightr—New  Elector. 

VAN  VECHTEN,  on  an  affidavit  in  a  writ 
of  right,  setting  forth   that  one  of  the 
electors  returned  on  the  grand  assize  had  left 
the  State,  moved  to  amend  the  panel  by  add- 
ing another. 


Per  Curiam. 
your  rule. 


As  there  is  no  opposition,  take 


THOMPSON,  J.  I  do  not  see  how  it  is  possi- 
ble for  the  court  to  grant  the  motion.  If  they 
do,  the  elector  will  be  appointed  contrary  to 
the  act,  and  all  proceedings  under  such  a 
panel  consequently  void.  My  opinion  is,  that 
4{)G*1  you  should  have  a  new  elector  *ap- 
pointed  in  the  same  way  as  the  others.  I 
think  we  have  a  power  to  order  the  sheriff  to 
summon  another  panel;  but  I  do  not  think  we 
can  direct  another  elector  to  be  added. 


JOHN  D.  PETRIE 

v. 
JEWIT  WOODWORTH. 

Pleading — Misnomer — Pronunciation  of  Foreign 
Name. 

IN  error  on  certiorari,  the  exceptions  were, 
1st.   That  the  defendant  below  pleaded  an 
abatement,  a  misnomer,  in  being  sued  in  Pet- 
ris,  instead  of  Petrie.  2d.  That  the  declaration 
was  uncertain  and  insufficient. 

Per  Curiam.  It  was  not  a  misnomer.  It 
was  the  same  surname, with  the  misspelling  of 
206 


GABRIEL  MANNY  «.  JAMES  DOBIE. 

Judgment — By  Justice — Refusal  to  plead — 
Venire. 

ON  certiorari.     The  defendant  below  refused 
to  plead,  on  which  the  justice  awarded  a 
venire,  which  was  now  assigned  for  error. 

*Per  Curiam.  The  judgment  must  [*497 
be  reversed.  The  award  of  venire  was  erro- 
neous. It  cannot  be  done  on  a  judgment  by 
default,  or  where  the  defendant  does  not 
plead. 

An  issue  mu#t  be  joined. 


THE  PEOPLE  v.  SMITH. 

Attorney  at  Law — Misconduct — Manner  of  Trial. 
Citation— Say.,  169. 

"DENDLETON,  having  on  a  former  day  ob- 
\-  tained  a  rule  to  show  cause  why  an  attach- 
ment should  not  issue  against  the  defendant, 
for  appropriating  money  collected  for  his  cli- 
ent, who  was  in  prison,  now  moved  to  have  it 
made  absolute,  and  in  support  of  the  applica- 
tion cited  Say.,  51,  169;  4  Burr.,  2060;  Stra., 
621;  and  1  Burr.,  654. 

Mr.  F00<fs,contra,insisted  the  proceedingwas 
unwarranted;  that  the  money  was  retained  for 
costs  and  other  demands,  and  if  such  a  meas- 
ure was  adopted,  it  would  be  placing  an  officer 
of  the  court  in  a  worse  situation  than  any 


NOTE. — Manner  of  trial.  The  court  may  strike  at- 
torney's name  from  the  roll  without  the  interven- 
tion of  a  jury.  1  Yerjr.,  228.  There  is  inherent  power 
in  the  court  to  disbar  a  member  who  is  unfit  to  prac- 
tice before  it ;  1  Cal.,  — ;  1  Mich.,  394 ;  13  Wall.,  335 ; 
19  Id.,  503:  SRawle,  191;  17  P.  F.  Im.,  169;  Strout  v. 
Proctor,  71  Maine—. 

2.  Id.—Riflht  to  be  heard.  A  member  of  the  bar  has 
a  property  in  his  profession  of  which  he  will  not  be 
deprived  without  due  notice  of  complaint  and  an 
opportunity  to  be  heard.    But  on  a  rule  of  court  ho 
can  have  a  full  hearing.     In  Re  Davies  (Penn.),  S» 
Reporter,  764. 

3.  Id.— Id.— Evidence— Commission.     The  hearing 
must  be  on  the  rules  of  the  common  law ;  not  upon 
affidavits.    38  N.  Y.,  651 ;  In  Re  Eldridge,  82  N.  Y., 
164,165;  In  Re  Hahn  N.  Y.  11  Reporter,  344.    Acorn- 
mission  to  take  testimony  will  not  issue  without  the 
consent  of  the  accused.    18  Wend.,  646 ;  4  Hill,  533 ; 
83  N.  Y.,  164.    The  affidavit  of  accusation  cannot  be 
made  on  information  and  belief.     In  Re  Hotchkiss 
(Cal.),  12  Reporter,  393. 

4.  Fefonv— Pardon.    A  pardon  of  a  felony  will  not 
prevent  disbarment.    In  Re  Powers,  86  N.  Y.,  563. 

COL.  AND  CAINES. 


1805 


JAMES  CHEETHAM  v.  ZACHARIAH  LEWIS. 


497 


other  citizen,  as  he  would  thus  lose  the  benefit 
of  a  trial  by  jury. 

Per  Citriam.  There  is  no  doubt  of  the  au- 
thority of  the  court  to  proceed  against  attor- 
neys for  misbehavior,  in  this  summary  way. 
The  case  in  Say.,  169,  is  in  point.  The  defend- 
ant's conduct  has  been  so  very  improper  that 
we  are  bound  to  interfere.  We  accordingly, 
by  a  special  rule,  direct  that  he  exhibit  to  the 
clerk  of  the  court,  in  New  York,  within  ten 
days,  his  counter  demands  for  costs,  and,  if 
any  balance  appear  due  on  liquidation  of  the 
accounts,  that  he  pay  it  in  twenty  days,  or  the 
attachment  issue. 


498*]         *NOVEMBER  TERM,  1805. 


JAMES  CHEETHAM 

v. 
ZACHARIAH  LEWIS. 

Motion  to  set  aside  Declaration — Remedy  by 
Non  pross. 

t^VERTSON  moved  to  set  aside  the  declara- 
j  tion,  and  stay  all  further  proceedings,  be- 
cause, though  the  writ  was  returnable  in  No- 
vember, 1803,  the  plaintiff  had  not  filed  and 
delivered  his  declaration  till  September  last. 
He  contended  that  by  the  rules  of  the  com- 
mon law,  a  plaintiff  was  obliged  to  declare 
within  the  year,  and  if  he  did  not  do  so,  he  was 
ipso  facto  out  of  court.  If  some  limitation  of 
of  this  sort  was  not  in  force,  a  cause  might  be 
hung  up  ad  infinitum.  In  support  of  the  ap- 
plication, he  cited  2  D.  &  E.,  Il2,  and  particu- 
larly the  reasoning  of  Buller,  J. 

Mr.  Van  Wyck,  contra,  argued  that  the  only 
mode  of  putting  a  plaintiff  out  of  court  was 
by  a  rule  to  declare,  or  be  non  prossed. 

Per  Curiam.  There  is  no  such  rule  of 
practice  in  this  court  as  that  insisted  on  by 
the  defendant.  It  is  in  his  power  to  non  pross 
the  plaintiff  if  he  pleases;  if  he  does  not,  the 
plaintiff  may  declare  at  any  time.  The  de- 
cision, however,  in  this  case,  will  not  apply  to 
a  suit  removed  by  habeas  corpus  ;  for  there,  as 
the  defendant  cannot  non  proas,  he  is  not  bound 
to  plead. 


499*]  *LENOX,   MAITLAND  AND  REN- 
WICK 

e. 
ROWLAND,  RUSSEL  ET  AI>. 

Attachment— Supersedeas— Debt— Absent  Debtors. 

rPHE  plaintiffs  had,  under  the  act  authoriz- 
-L  ing  proceedings  against  absent  debtors, 
procured,  on  the  usual  oath,  an  attachment 
against  the  property  of  the  defendants,  who 
resided  in  Massachusetts.  They,  by  affidavit, 
COL.  AND  CAINES. 


set  forth  that  they  never  had  any  dealings 
with  the  plaintiffs,  who,  as  shippers  of  prop- 
erty on  board  the  ship  Ocean,  belonging  to 
the  defendants,  claimed  compensation  for 
damage  the  goods  had  sustained  in  conse- 
quence of  the  vessel's  having  been  run  ashore 
when  going  up  the  harbor  of  Liverpool,  by 
alleged  negligence  or  misbehavior  of  the  cap- 
tain, whereas  the  injury,  if  any,  arose  from 
the  conduct  of  the  pilot. 

Messrs.  ColdenandBiggs,on  these  facts,  moved 
to  supersede  the  attachment,  notice  of  which 
had  been  duly  published.  They  contended  that 
the  debts  contemplated  by  the  act  were  such 
as  might  be  set  off,  the  words  of  the  statute 
being  that  the  demand  must  be  $100  above,  or 
clear  of  discounts.  Torts  and  unliquidated 
damages,  therefore,  not  within  the  purview 
of  the  law,  because  of  them  no  set-off  can  be 
made.  (Bankrupt  Act,  sec.  34;  Coop.,  Bank. 
Law,  160,  224,  244;  Sell.  Prac.,  42;  Brown  v. 
Gumming,  2  N.  Y.  T.  R.,  33.)  But  allowing 
such  a  claim  might  be  set  off,  the  pilot,  they 
said,  was  answerable.  (Malyne,  59;  7  D.  &E., 
160.)  They  referred  also  to  the  decision  of 
this  court,  in  the  matter  of  Fitzgerald,  an  ab- 
sent debtor.  (2  N.  Y.  T.  R.,  318.) 

*  Messrs.  Hoffman  and  Harison,  contra,  [*5OO 
argued  that  the  court  had  no  jurisdiction  in  the 
summary  way,  as  the  act  had  chalked  out  the 
only  mode  of  proceeding  by  which  a  super- 
sedeas  could  be  obtained.  That  as  to  the  mat- 
ter of  the  claim  being  without  the  statute,  the 
21st  section  had  ordered  a  bond  to  be  given,  to 
appear  and  plead  to  any  action,  and  the  terms 
of  the  condition  were  broad  enough  to  include 
all  cases,  excepting  pure  torts  alone,  even  to 
appear  and  answer  to  a  bill  in  equity.  To 
support  the  attachment,  the  oath  of  the  plaint- 
iffs is  all  that  is  required,  and  cannot  be  done 
away  by  a  counter  deposition  from  the  de- 
fendants. It  would  be  to  try  the  cause  by 
affidavit,  and  determine,  preliminarily,  the  fact 
of  debt  or  no  debt.  Whether  the  pilot  or 
master  were  to  blame,  was  not  to  be  now  in- 
vestigated. 

Per  Curium,  delivered  by  SPENCER,  J.: 
We  do  not  think  that  because  the  statute  points 
out  a  particular  mode,  by  which  a  supersedeat* 
may  be  obtained,  we  are  ousted  of  jurisdiction 
in  this  state  of  the  case.  We  conceive  that, 
from  the  general  superintending  power  of  this 
court,  we  have  a  right  to  examine  whether  the 
attachment  has  not  improvidently  issued,  and 
on  this  ground,  review  the  order  of  the  judge 
by  whom  it  was  directed.  On  the  present 
occasion,  the  plaintiffs  have  not  contradicted 
the  affidavit  of  the  defendants,  but,  resting 
their  opposition  on  the  matter  it  details,  have 
reposed  themselves  on  its  contents.  Exercis- 
ing, then,  that  right  of  control  which  we  think 
we  possess,  we  cannot  but  see  that  the  plaint- 
iffs have  failed  in  showing  such  a  debt  as  is 
within  the  purview  of  the  act.  The  statute 
applies  only  to  those  which  are  capable  of  be- 
ing set  off,  not  to  demands  *which  [*5O1 
arise  from  torts,  or  ex  delicto.  As,  therefore, 
the  claim  of  the  plaintiffs  is  stated  to  be  of 
this  nature,  proceeding  from  the  misfeasance 
of  the  captain,  and  this  is  not  denied  by  the 
opposite  party,  the  motion  must  be  granted; 

207 


501 


SUPREME  COUKT,  STATE  OP  NEW  YORK. 


1805 


but  with  permission,  however,  to  the  plaint- 
iffs, to  show  any  day  within  term,  that  they 
have  a  debt  such  as  is  within  the  purview  of 
the  act. 

KENT,  C.  J.  I  am  against  the  motion,  be- 
cause I  think  the  only  remedy  is  under  the 
21st  section  of  the  act,  which,  in  my  opinion, 
is  fully  sufficient.  If  the  bond  there  directed 
be  given,  the  question  whether  debtor  or  not, 
within  the  statute,  can  be  decided;  for  the  in- 
strument can  apply  only  to  debts  within  the 
law.  The  proceedings  below  are  regular,  and 
on  that  score  we  have,  therefore,  no  right  to 
interfere. 

THOMPSON,  J.  I  concur  in  the  opinion  of 
the  Chief  Justice. 


JOHN  M'VICKAR 

v. 
OLIVER  WOOLCOT. 

1.  Commission — Death  of  Witness — Amendment 
to  Insert  name  of  new  Witness.  2.  New  Com- 
mission— Death  of  Witness. 

TTOPKINS,  in  consequence  of  the  death  of 
XI  a  witness  to  be  examined  on  a  commission 
sent  to  England,  and  sued  out  early  in  the  last 
spring,  moved,  on  behalf  of  the  defendant,  to 
amend  by  inserting  the  name  of  a  new  witness 
who  could  prove  the  fact  the  testimony  of  the 
deceased  would  have  gone  to  establish,  or  to 
be  at  liberty  to  issue  a  new  commission. 

Per  Curiam.  Were  we  to  permit  the  amend- 
ment, the  opposite  party  might  lose  the  benefit 
of  cross-examining;  for  the  interrogatories  ex- 
hibited to  one,  might  not  be  proper  to  admiii- 
5O2*]  ister  to  another.from  *whom  it  might  be 
wished  to  extract  new  evidence.  The  first  part  of 
the  motion  must,  therefore,  be  denied;  but  you 
may  take  a  new  commission  at  your  peril, 
without,  however,  any  stay  of  proceedings  on 
the  part  of  the  plaintiff. 


COOK  ET  AL. 

e. 
CAMPBELL  AND  LORAINE. 

Bail — Ca.  Sa. — Irregularity — Eight  days  be- 
tween test  and  return  of  Ca.  Sa. 

IN  debt  on  recognizance  of  bail,  the  defend- 
ants pleaded,  1st.  Nul  tiel  record.  2d.  That 
the  ca.  sa.  against  the  principal  was  not  duly 
issued.  The  plaintiffs  replied,  taking  issue  oh 
both  pleas. 

Uuder  these  circumstance'*,  the  plaintiffs 
gave  notice  of  bringing  on  the  trial  by  rec- 
ord, and  the  defendants  of  setting  aside  the 
whole  proceedings,  for  irregularity  in  the  ca. 
sa. 

Both  motions  came  on  together,  and  the 
record  being  admitted,  judgment  was  demand- 
ed, against  which  the  defendants  relied  on  the 
irregularity,  to  prevent  its  being  allowed. 

Mr.Boyd,  for  the  defendants,  insisted  that  to 
208 


warrant  any  proceedings  against  bail,  there 
must  be  eight  days  between  the  tenteand  return 
of  the  capias  ad  satisfaciendum.  (1  Sell,  prac., 
550;  2  Salk.,  601;  Ball  v.  Manucaptors  of  Bus- 
sett,  2  Ld.  Ray.,  1176,  S.  C.)  This  objection 
appearing  on  the  face  of  the  record,  was,  he 
urged,  a  sufficient  reason  for  refusing  the  ap- 
plication for  judgment;  and  though  the  mat- 
ter ought  not  to  have  been  availed  of  by  plea, 
still  that  informality  would  not  prejudice.  In 
favor  of  bail  the  *court  go  great  [*5O3 
lengths,  and  1  Black.,  74,  would  be  found  a 
stronger  case  than  the  present. 

Mr.  VanWyck,  contra.  There  cannot  be  any 
cause  assigned  for  the  practice  mentioned.  The 
writ  has  lain  four  days  in  the  sheriff's  office, 
and  is  all  which  is  requisite. 

Per  Curiam.  The  plaintiffs  must  have  their 
judgment,  and  the  motion  on  behalf  of  the 
defendants  be  denied.  There  is  no  such  prac- 
tice of  this  court,  as  that  of  requiring  eight 
days  between  the  teste  and  return  of  the  ca.sa., 
nor  is  there  any  reason  why  it  should  be  nec- 
essary. 


VAN  WINKLE  v.  KETCHAM. 
Promissory  Note — Infant — KnmcUdge. 

THE  court  decided  in  this  case  that  the  prom- 
issory note  of  an  infant,  carrying  on  trade 
as  an  adult,  could  not  be  enforced  against  him 
by  the  payee,  who  had  taken  it  in  the  course 
of  business,  without  knowing  the  defendant's 
non-age. 


LENOX,  MAITLAND  AND  RENWICK 

v. 
HOWLAND,  RUSSEL  ET  AL. 

Attachment — Absent  Debtor — Contract — Un- 
liquidated Demand. 

THE  court  having  on  a  former  day  allowed 
the  plaintiffs  to  show  that  they  had  such 
a  demand  against  the  defendants  as  would 
warrant  the  attachment, 

Mr.  Hoffman  now  read  an  affidavit,  by  which 
it  appeared  that  their  claim  was  founded  on  the 
contract  *contained  in  a  bill  of  lading,  [*5O4 
for  the  delivery  of  goods  shipped  on  board  the 
defendant's  vessel. 

Per  Curiam,  delivered  by  LIVINGSTON,  J.: 
We  are  to  determine  not  whether  the  affidavit 
now  read  would  have  been  the  proper  basis  of 
an  attachment,  but  whether  the  demand,  as 
now  disclosed,  is  sufficient  to  support  it. 
Although  by  the  terms  of  the  oath  the  cred- 
itor is  to  swear  that  the  party  is  indebted  to 
him  in  the  sum  of  one  hundred  dollars  or  up- 
wards, it  does  not  follow  that  the  demand  is 
to  be  so  certain  as  to  fall  within  the  technical 
definition  of  a  debt,  or  as  to  be  susceptible  of 
liquidation,  without  the  intervention  of  a  jury. 
The  law  is  remedial  and  should  be  so  con- 
strued as  to  embrace  as  many  cases  as  possible. 
Being  indebted  is  synonymous  with  owing; 
it  is  sufficient,  therefore,  if  the  demand  arise 
on  contract.  The  other  provisions  of  the  act 
COL.  AND  CAINES. 


1805 


LENOX,  MAITLAND  AND  KENWICK  v.  ROWLAND,  RUSSELL  ET  AL. 


504 


plainly  indicate  that  its  relief  was  to  extend 
thus  far  at  least,  and,  if  the  whole  act  be  con- 
strued together,  leave  but  little  or  no  doubt  on 
the  subject.  The  16th  section  declares  that  in 
case  a  controversy  arise  concerning  any  claim, 
debt  or  demand,  respecting  the  estate  of  the 
debtor,  the  trustees  may  have  settled  it  by 
reference,  and  by  the  21st  section  the  attach- 
ment may  be  superseded,  if  the  debtor  will 
give  security  to  appear  and  plead  to  any 
action  to  be  brought  against  him  in  any  court 
of  law  or  equity,  and  to  pay  such  sum  as  shall 
~be  recovered  against  him.  It  is  very  evident 
from  these  sections  that  it  was  not  intended  to 
confine  the  remedies, 'either  in  favor  of  or 
against  such  estate,  to  cases  of  ascertained  and 
liquidated  debts.  Else  why  speak  of  any 
claim  in  the  first  and  why  compel  by  the 
5O5*]  other,  the  party,  in  order  to  get  *rid  of 
this  process,  to  appear  to  any  suit  in  law  or 
equity?  These  terms  are  broad  enough  to  in- 
clude' at  least  all  demands  originating  in  con- 
tract. Nor  can  it  make  any  difference 
whether  the  goods  in  the  present  case  were 
not  delivered  at  all,  or  delivered  in  a  damaged 
condition.  In  either  case  the  demand  arises 
on  the  bill  of  lading;  nor  ought  the  form  of 
declaring  to  vary  the  case.  In  the  first  case 
the  party  might  certainly  declare,  generally, 
that  the  goods  did  not  come  to  hand,  without 
stating  that  this  was  owing  to  the  negligence 
or  carelessness  of  the  master,  and  if  this  gen- 
eral form  of  declaring  caunot  be  pursued  in 
the  latter  case,  it  can  and  ought  to  make  no 
difference.  In  both  cases  the  owners  are  lia- 
ble on  the  contract  of  the  master,  as  much  as 
if  they  had  signed  it  themselves.  Nor  can 
the  difficulty  of  ascertaining  the  precise  dam- 
age make  any  difference.  This  must  always 
COL.  AND  CAINES.  N.  Y.  REP..  BOOK  1. 


be  more  or  less  liable  to  some  uncertainty.  To 
obtain  a  liquidation  a  reference  may  be  resort- 
ed to,  and  if  the  trustees  will  not  submit  to 
one  they  may  be  sued,  and  a  jury  will  settle 
the  quantum  of  the  demand.  If  a  carpenter 
contracts  to  build  a  house  for  a  given  sum  and 
does  it  so  negligently  that  it  falls  the  very  day 
it  is  finished,  and  then  absconds  possessing  a 
large  property,  it  would  be  strange  that  I 
should  have  no  remedy,  because  it  be  neces- 
sary to  declare  against  him  for  a  misfeasance  or 
nonfeasance,  or  because  it  may  require  some 
little  calculation  to  settle  the  damages.  The 
substantial  inquiry,  in  this  stage  of  the  pro- 
ceeding, must  be  to  ascertain  whether  the 
party  has  a  legal  claim  arising  on  contract,  not 
by  what  kind  of  action  it  is  to  be  enforced, 
which  has  *ever  appeared  to  me  a  very  [*5O6 
fallacious  mode  of  testing  questions  of  this 
kind.  From  the  whole  tenor  of  the  act  it  is 
very  evident,  whatever  may  be  phraseology  of 
its  first  clause,  that  its  design  was  to  place  the 
property  of  a  debtor  in  trustees  for  the  pay- 
ment, not  solely  of  debts  within  the  legal  ac- 
ceptation of  that  term,  but  of  every  demand 
contracted  against  his  estate,  as  well  those 
due  to  the  attaching  party,  as  to  others,  and 
in  like  manner  to  give  the  trustees  a  remedy  as 
broad  against  third  persons.  If  we  once 
begin  to  refine  or  make  nice  distinctions  on 
this  subject,  no  one  can  say  where  we  shall 
land.  The  act  will  soon  be  repealed  or  become 
a  dead  letter.  As  this  demand,  then,  is  found- 
ed on  contract,  it  can  be  of  no  importance  in 
what  way  the  injury  arose,  nor  can  we  say 
it  is  of  a  kind  not  to  support  the  attach- 
ment. 

The  superseded*  is,  therefore,  denied. 
14 


REPORTS  OP  CASES  ADJUDGED 


IN   THE 


Supreme  Court  of  Judicature 


OF   THE 


STATE  OF  NEW  YORK, 

i 

From  January  Term  1799,  to  January  Term  1803,  Both  Inclusive, 

TOGETHER   WITH    CASES   DETERMINED   IS  THE 


DURING  THAT   PERIOD. 


BY  WILLIAM  JOHNSON, 

Counselor  at  Law. 


Legum  interpretes,  judices :  legum  denique  idcirco  omnes  servi  sumus,  ut  liberi 

esse  possumus. — CICERO. 


VOLUME     I. 


CONTAINING  THE  OASES  FEOM  JANUARY  TERM  1799,  TO  JULY  TERM  1800 

INCLUSIVE. 


PREFACE. 


THE  following  cases  comprehend  the  de 
cisions  of  the  Supreme  Court  and  the  Court 
for  the  Correction  of  Errors,  from  January 
Term  1799,  to  January  Term  1803,  soon  after 
which  the  first  regular  reports  were  published. 
The  profession,  to  whose  candor  they  are 
submitted,  are  thus  put  in  possession  of  an 
unbroken  series  of  the  adjudications  of  our 
higher  courts,  from  the  year  1799,  inclusive, 
to  the  present  time. 

Should  it  be  asked  why  these  reports  did 
not  commence  at  an  earlier  period,  it  is  an- 
swered, because,  except  in  a  few  cases  to  be 
found  in  the  notes  or  at  the  end  of  the  last 
volume,  sufficient  materials  could  not  be  ob- 
tained for  an  authentic  and  satisfactory  ac- 
count of  the  decisions  prior  to  that  time;  and 
imperfect  or  inaccurate  reports  of  judicial  de- 
terminations are  justly  to  be  reprobated  as  the 
bane  of  legal  science. 

In  the  following  reports,  the  facts  in  each 
cause  are  stated  from  the  cases  and  paper- 
books  delivered  to  the  judges  on  the  argu- 
ment,  and  from  the  affidavits    and  records 
filed  with  the  clerks  of  the  court.     The  opin- 
ions of  the  judges  are  taken  from  their  own 
manuscripts,  and,  in  almost  every  case,  are 
given  exactly  as  they  were  pronounced.  They 
may,  therefore,  be  relied  on  as  faithfully  and  | 
truly  stated,  and  as  possessing  all  the  author- 1 
ity  that  can  be  derived  from  the  sanction  of  | 
those  by  whom  they  were  delivered.     For  ob- 1 
vious  reasons,  the  arguments  of  counsel,  ex- 
cept in  a  very  few  instances,  are  not  inserted. 
No  decision  of  any  importance,  either  on  ac-  j 
count  of  the  principles  it  involved,  or  which  ! 
might  tend  to  elucidate  the  practice1  of  the  \ 


court,  has  been  intentionally  omitted.  Those 
who,  by  long  study  and  experience,  have  be- 
come familiar  with  the  principles  of  law,  and 
the  decisions  of  English  courts,  may  be  in- 
clined to  think  that  too  many,  rather  than  too 
few  cases  are  inserted.  But,  notwithstanding 
the  declaration  in  the  Constitution,  no  lawyer 
can  pronounce,  with  absolute  certainty,  that 
the  principles  he  has  learned  from  English 
jurists,  or  the  opinions  of  English  judges,  how- 
ever accomplished  and  venerable,  are  the  law 
of  this  State,  until  they  have  been  recognized 
and  sanctioned  by  our  own  courts. 

It  is  proper  to  mention,  although  generally 
known,  that  a  gentleman '  who  sat  on  the 
bench  of  the  Supreme  Court  during  the  period 
of  these  reports,  and  had  intimated  his  inten- 
tion of  publishing  its  decisions;  but  the  in- 
creasing duties  of  a  laborious  profession  which 
he  had  resumed,  not  affording  sufficient  leisure 
for  the  completion  of  the  work,  so  soon  as  the 
impatience  of  the  bar  demanded,  he  relin- 
quished the  undertaking,  and  offered  his  as- 
sistance to  the  present  reporter,  who  had  been 
previously  solicited  to  engage  in  its  execution, 
and  who  takes  this  occasion  to  acknowledge 
his  obligations  to  that  gentleman,  not  only  for 
the  free  use  of  his  manuscripts,  but  for  the 
trouble  he  has  taken  in  perusing  many  of  the 
proof  sheets.  To  the  rest  of  the  judges,  also, 
he  has  to  express  his  thanks  for  the  obliging  and 
liberal  communication  of  their  notes  and  writ- 
ten opinions,  and  for  every  information  which 
was  desired  in  the  prosecution  of  the  work. 

1. — Jacob  Radcliff,  Esquire,  who  was  appointed 
one  of  the  judges  of  the  Supreme  Court  in  January, 
1799,  and  resigned  his  seat  in  January,  180i. 


NAMES 

OP  THE 

CHANCELLORS  OF  THE  STATE  OF  NEW  YORK, 

FKOM  1777  TO  1808. 


ROBERT  R.  LIVINGSTON,  Esq.,  appointed  October  17,  1777.  In  consequence  of  his  having 
accepted  and  exercised  the  office  of  Secretary  of  Foreign  Affairs,  under  the  United  States, 
which  he  had  lately  resigned,  doubts  were  entertained  whether  the  office  of  Chancellor, 
held  by  him,  had  not  thereby  become  vacant,  and  he  was  re-appointed  Chancellor,  June 
22,  1783. 
JOHN  LANSING,  Jun.,  Esq.,1  appointed  October  28,  1801. 

1.— In  the  place  of  Chancellor  Livingston,  who  resigned  on  being  appointed  Minister  of  the  United 
States  to  France. 


JUDGES  OF  THE  SUPREME  COURT  OF  JUDICATURE 

OF   THE 

STATE   OF    NEW  YORK, 
FROM  1777  TO  1808. 


JOHN  JAY,  Esq.,  Chief  Justice,  appointed  October  17,   1777. 

jSSSliMi:']*,..  I  **«**-.  October  17,  1777. 
RICARD  MORRIS,  Esq.,1  Chief  Justice,  October  23,  1779. 

ROBERT  YATES,  Esq.,2  Chief  Justice,        'I  a     +   o«  i7on 

JOHN  LANSING,  Jim.,  Purinc  Judge  f  &epL  ^'  ll 

AARON  BURR,  Esq.,3  Puisne  Judge,  October  2,  1792. 

MORGON  LEWIS,  Esq.,  Puisne  Judge,         December  21,  1792. 
EGBERT  BENSON,  Esq.,4  Puisne  Judge,  January  29,  1794. 

JAMES  KENT,  Esq.,  Puisne  Judge,  February    6,  1798. 

JOHN  LANSING,  Jun.,  Esq.,6  Chief  Justice,  February  15,  1798. 
JOHN  COZINE,  Esq.,6  Puisne  Judge,  August  9,  1798. 

JACOB  RADCLIFP,  Esq.,1  Puisne  Judge,        December  27,  1798. 
MORGAN  LEWIS,  Esq.,8  Chief  Justice,  October  28,  1801. 

BROCKHOLST  LIVINGSTON,  Esq.  In,-       T  j        ^ 
SMITH  THOMPSON,  Esq.,          *  \  ******  JMg*.  ^n.  8,  1802. 
AMBROSE  SPENCER,  Esq.,9  Puisne  Judge,     February    3,1804. 
JAMES  KENT,  Esq.,10  Chief  Justice,  \        T  l      o  1«(U 

DANIEL.  D.  ToMPKiNS,Esq.,  Puisne  Judge,  \          uiy    "'  K 
WILLIAM  W.  VAN  NESS,  Esq.,11  Puisne  Judge,     June  9,  1807. 
JOSEPH  C.  YATES,  Esq.,is  Puisne  Judge,         Februarys,  1808. 


ATTORNEYS-GENERAL. 
EGBERT   BENSON,  Esq.,  Attorney-General,  appointed  January  15,  1778. 


RICHARD  VARICK,  Esq., 
AARON  BURR,  Esq., 
MORGAN  LEWIS,  Esq., 
NATHANIEL  LAWRENCE,  Esq., 
JOSIAH  OGDEN  HOFFMAN,  Esq., 
AMBROSE  SPENCER,  Esq., 
JOHN  WOODWORTH,  Esq., 
MATTHIAS  B.  HILDRETH,  Esq., 


May  14,  1789. 
September  29,  1789. 
November    8,  1791. 
December  24,  1792. 
November  30,  1795. 
February.  3,  1802. 
February    3,  1804. 
March  18,  1808. 


1. — In  the  place  of  Mr.  Chief  Justice  Jay,  who  resigned. 

2.— In  the  place  of  Mr.  Chief  Justice  Morris,  who  arrived  at  the  age  of  sixty  years. 

3. — M.  Burr,  did  not  accept  the  appointment. 

4. — Being  the  fifth  judge;  the  court  before  consisted  of  four  judges  only.    He  resigned  his  seat  on  the 
bench,  on  being  appointed  a  judge  of  the  Circuit  Court  of  the  United  States,  in  March,  1801. 

5.— In  the  place  of  Mr.  Chief  Justice  Yatcs,  who  having  arrived  at  the  age  of  sixty  years,  his  seat  became 
vacated  by  the  limitation  expressed  in  the  Constitution  of  the  State.    (Art.  XXIV.) 

6.— He  died  on  the  16th  of  September,  1798,  before  he  had  taken  his  seat  on  the  bench. 

7.— He  resigned  his  seat  in  January,  1804. 

8. — In  the  place  of  Mr.  Chief  Justice  Lansing,  appointed  Chancellor. 

9. — In  the  place  of  Mr.  Justice  Radclitf,  who  resigned. 

10.— In  the  place  of  Mr.  Chief  Justice  Lewis,  elected  Governor  of  the  State. 

11.— In  the  place  of  Mr.  Justice  Livingston,   appointed  a  judge  of  the  Supreme  Court  of  the  United 
States. 
12. — In  the  place  of  Mr.  Justice  Tompkins,  elected  Governor  of  the  State. 

JOHNSON'S  CASES,  1.  217 


CASES   ADJUDGED 


IN   THE 


SUPREME  COURT  OF  JUDICATURE 

OP   THE 

STATE   OF   NEW    YORK, 

IN 
JANUARY    TKRM,    IN"    THK    YEAR    1799. 


1*]  *SETON,  MAITLAND  &  CO.  v.  LOW. 

1.  Ma/rine  Insurance  —  Lawful  Goods  —  Contra- 
band Goods  —  Duty  to  disclose.  2.  Internation- 
al Law  —  Trade  of  Neutral  Nation  —  Rig  fit  of 
BeUigerant  to  Confiscate.  3.  Insurance  —  Dis- 
closure of  Increase  of  Risk. 

In  an  action  on  a  policy  of  insurance,  from  New 
York  to  the  Havana,  on  all  lawful  goods,  laden, 
&c.,  it  was  held  that  articles  contraband  of  war  were 
lawful  goods  within  the  meaning  of  the  policy;  that 
goods  not  prohibited  by  the  positive  law  of  the 
country  to  which  the  vessel  belongs,  are  lawful; 
and  that  the  insured  are  not  bound  to  disclose  to 
the  insurer  that  the  goods  insured  are  contraband 
of  war. 

Citations  —  3  Burr.,  1905  ;  Marshall,  48-55.  Magens, 
p.  9,  sec.  13,  14. 


was  an  action  on  an  open  policy  of  in- 
J-  surance,  dated  the  3d  of  May,  1797,  upon 
all  kinds  of  lawful  goods  and  merchandises, 
on  board  the  brig  Hannah,  from  New  York  to 
the  Havanna.  The  sum  of  $16,000  was  sub- 
scribed by  the  defendant  as  president  of1  the 
United  Insurance  Company,  at  a  premium  of 
eight  per  cent.  The  insurance  was  averred  to 
have  been  made  for  the  benefit  of  Manuel 
Galbore  De  Silva,  and  the  loss  stated  to  have 
been  by  capture  by  His  Britannic  Majesty's 
sloop  of  war  the  Swallow. 

The  action  was  tried  before  Mr.  Justice 
Hobart  at  the  circuit  held  in  the  City  of  New 
York,  when  a  verdict  was  found  for  the  plaint- 
s' iffs  for  the  sum  of  $15,405,  *subject  to 
the  opinion  of  the  court,  on  the  following 


The  plaintiffs,  on  the  2d  day  of  May,  1797, 
wrote  to  the  company,  whereof  the  defendant 
was  president,  the  following  note:  "  The 
company  will  please  to  effect  insurance  on  the 
brig  Hannah,  W.  R.  M'Colley,  master,  from 
New  York  to  the  Havanna,  viz.,  $4,000  on  the 
vessel  out  and  home,  valued  at  the  sum  of 
,  and  $16,000  on  the  cargo,  not  war- 


ranted, but  shipped  by  and  in  the  name  of 
their  obedient  humble  servants,  Seton,  Mait- 
land  &  Co." 

On  receiving  this  order  the  policy  was 
effected  for  the  sum  and  at  the  premium  there- 
in mentioned.  No  disclosure  was  made  to  the 
company,  at  the  time  of  obtaining  the  insur- 
ance, of  the  nature  of  the  cargo  nor  who  was 
the  owner,  nor  were  any  questions  asked  by 
the  insurers  on  those  points.  The  plaintiffs 
and  defendant  resided  in  New  York.  One  of 
the  plaintiffs,  William  M.  Seton,  was  a  mem- 
ber of  the  company.  On  the  17th  of  March, 
1797.  the  Governor  of  the  Havanna,  by  proc- 
lamation, permitted  the  following  articles  to 
be  imported  into  that  place,  in  American  ves- 
sels, of  which  description  was  the  Hannah, 
namely,  all  kinds  of  eatables  (except  codfish 
and  flour),  Britannias,  Creas,  ticklenberghs, 
platillas,  Russia  duck,  checks,  twine,  nails 
and  cordage.  The  plaintiffs,  pursuant  to  the 
above  mentioned  proclamation,  obtained  a 
written  permission  from  the  consul  of  His 
Catholic  Majesty  for  the  State  of  New  York, 
signed  the  5th  of  May,  1797,  for  the  captain  of 
the  said  brig  to  proceed  from  New  York  to 
the  Havanna,  with  her  cargo,  and  the  permit 
enumerated  every  article  of  which  the  cargo 


NOTE.— Marine  insurance,  articles  contraband  of 
war,  concealment. 

In  regard  to  the  doctrine  of  the  above  case  that 
insurance  on  all  lawful  goods  covers  articles  contra- 
band of  war,  see  Skidmore  v.  Desdoity.  2  Johns. 
Cas.,  77;  Juhel  v.  Rhinelander,  2  Johns.  Oas.,  120;  S. 
C.,  affirmed,  2  Johns.  Cas.,  487 ;  Pond  v.  Smith,  4Ct., 
297 ;  Richardson  v.  Ins.  Co.,  6  Mass,,  102 ;  The  San- 
tissima  Trinidad,  7  Wheat.,  283 ;  Barker  v.  Blakes,  9 
East,  283 ;  Hobbs  v.  Henning,  17  C.  B.  N.  S.,  791 ;  71 
Jur.  N.  S.,  223 ;  13  W.  R.,  431 ;  12  L.  T.  N.  S.,  205.  See- 
also  Depeyster  v.  Gardiner,  1  Caine,  492;  3  Kent 
Com.,  267 ;  1  Parsons  on  Mar.  Ins.,  364,  490,  523. 

As  to  vitiation  of  policy  by  concealment,  see  I 
Shirley  v.  Wilkinson,  1  Dougl.  R.,  308  n  ;  Gladstone  i 
v.  King,  1  M.  &  S.,  a5 ;  Foley  v.  Tabor,  2  F.  &  F.,  663 ;  I 
Richards  v.  Murdock,  10  B.  &  C.,  527 ;  Elton  v.  Lar-  , 

JOHNSON'S  CASES,  1. 


kins,  8  Bing.,  198 ;  5  C.  &  P.,  86,  385 ;  Pimm  v.  Lewis 
2  F.  &  F.,  778 ;  Bates  v.  Hewitt,  2  L.  R.  Q.  B.,  595,  3(5 
L.  J.  Q.  B.,  282:  Lynch  v.  Hamilton,  3  Taunt.,  37; 
McLanahan  v.  Universal  Ins.  Co.,  1  Pet.,  170 ;  Gen- 
eral Interest  Ins.  Co.  v.  Ruggles,  12  Wheat.,  408; 
Livingston  v.  Maryland  Ins.  Co.,  6  Cranch,  274,  7 
Cranch,  506;  Buck  v.  Chesapeake  Ins.  Co.,  1  Pet.. 
151 ;  Hazzard  v.  N.  E.  Marine  Ins.  Co.,  8  Pet.,  557 : 
Murray  v.  United  Ins.  Co.,  2  Johns.  Cas.,  168;  Kem- 
ble  v.  Bowne,  1  Caine,  75;  Ely  v.  Hallett,  2  Caine,  57: 
Le  Roy  v.  United  Ins.  Co.,  7  Johns.,  343 ;  Walden  v. 
N.  Y.  Firemen  Ins.  Co.,  12  Johns.,  128,  513;  Stocker 
v.  Merriinack  Ins.  Co.,  0  Mass.,  220 ;  Silloway  v.  Nep- 
tune Ins.  Co.,  13  Gray,  73 ;  Sawj-er  v.  Coasters'  Ins. 
Co.,  6  Gray,  221;  Bryant  v.  Ocean  Ins.  Co.,  22 
Pick.,  200;  Burritt  v.  Saratoga  Ins.  Co.,  5  Hill, 
188. 

219 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


consisted.  The  cargo  of  the  Hannah  be- 
longed to  the  said  Manuel  Galbore  de  Silva,  a 
Spanish  subject,  and  consisted  of  the  follow- 
ing articles,  viz.:  Britannias,  Silesia,  Creas, 
ravens  duck,  ticklenberghs,  platillas,  Russia 
duck,  Russia  sheeting,  cordage,  ratlines, 
checks  and  twine.  The  Hannah  was  captured 
and  carried  into  New  Providence,  where  the 
JJ*]cargo  was  libeled  and  a  decree  *pronounced 
by  the  Court  of  Vice- Admiralty,  "  condemn- 
ing, as  lawful  prize,  the  ravens  duck,  ticklen- 
berghs, Russia  duck,  cordage,  ratlines  and 
twine,  as  being  shipped  by  the  plaintiffs,  citi- 
zens of  the  United  States,  contrary  to  their 
neutrality,  and  the  treaty  of  amity,  commerce 
and  navigation,  between  Great  Britain  and  the 
United  States,  and  as  being  articles  contra- 
band of  war,  and  such  as  may  serve  for  the 
equipment  of  vessels,  and  as  by  the  said 
treaty  are  declared  to  be  just  objects  of  con- 
fiscation, whenever  attempted  to  be  carried  to 
an  enemy."  And  with  respect  to  the  remain- 
ing cargo  on  board,  the  judge  of  the  said 
court  decreed  as  follows:  "  From  the  peculi- 
arity of  the  marks,  the  initial  letters  of  the 
consignee  and  of  Manuel  Galbore  de  Silva,  a 
Spanish  passenger  on  board  the  said  vessel, 
who  was  lost  overboard,  and  more  especially 
from  the  direct  contradiction  in  the  examina- 
tions, on  oath,  of  William  Reynolds,  M'Colley, 
the  master,  and  John  Millhoiland,  the  mate  of 
the  said  brigantine,  the  former  declaring  that, 
to  the  best  of  his  knowledge,  they  belong  to 
Messrs.  Seton  and  Maitland,  merchants  in  New 
York,  and  citizens  of  the  United  States  of 
America;  that  he  believes  the  said  cargo  did, 
at  the  time  of  shipping,  and  will,  if  landed  in 
the  Havanna,  become  their  property,  and  that 
the  said  passenger  had  no  concern  or  property 
whatever  in  the  said  vessel  and  cargo,  and  the 
latter  as  positively  declaring  that  he  imagines 
the  whole  cargo  belonged  to  the  said  Spanish 
passenger,  a  partner  of  the  said  consignee,  as 
he  had  been  informed  by  the  said  master,  and 
which  opinion  is  supported  by  Messrs.  Mait- 
land, Howell  &  Co.,  ship  chandlers,  coming 
on  board  the  said  vessel  to  get  pay  for  some 
outlandish  cordage,  sold  to  the  said  passenger 
by  them,  and  on  which  he,  had  received  the 
drawback,  and  that  he  believes  the  said  goods. 
if  landed  in  the  Havanna,  would  really  be- 
long to  and  become  the  property  of  the  said 
passenger  and  consignee;  wherefore,  I  am 
doubtful  who  are  the  real,  true  and  absolute 
owners  of  the  said  last-mentioned  goods;  I  do 
therefore  further  decree,  that  one  hundred 
4*]  days  from  the  *date  hereof  (which  was 
the  7tii  of  July,  1797),  be  allowed  the  said 
Seton,  Maitland  &  Co.,  to  prove  their  real, 
true  and  absolute  property  in  the  aforesaid 
goods,  last  enumerated,  to  "the  satisfaction  of 
this  court;  and  that  on  the  claimant  giving 
good  and  sufficient  security  for  the  appraised 
value  of  the  said  goods,  and  to  abide  the  final 
decree  of  the  said  court,  respecting  the  said 
goods,  the  same  be  delivered  up  to  the  said 
claimant;  and,  lastly,  I  condemn  the  claimant  in 
the  costs  occasioned  by  the  interposition  of 
his  claim." 

The  plaintiffs,  on  receiving  intelligence  of 
the  capture  and  proceedings  above  mentioned, 
or  shortly  thereafter,  to  wit,  on  the  22d  day  of 
August  last,  abandoned  to  the  company  the 
220 


cargo,  and  delivered  to  them  the  usual  proofs 
of  interest  and  loss.  It  was  admitted  that  the 
articles  which  were  condemned  as  contraband 
of  war,  were  the  cause  of  the  capture  and 
detention.  The  whole  property  on  board,  in- 
cluding commissions  and  premiums  of  insur- 
ance, amounted  to  $15,888.88.  It  was  also 
admitted  that  ticklenberghs  do  not  usually 
serve  for  the  equipment  of  vessels,  although, 
from  necessity,  sails  are  sometimes  made  of 
them. 

The  points,  which  were  stated  in  the  case  by 
the  counsel,  were  as  follows:  1.  Whether  the 
plaintiffs  were  entitled  to  recover  for  a  total 
loss.  If  the  court  should  be  of  that  opinion, 
judgment  should  be  entered  on  the  verdict  as 
it  stood. 

2.  Whether  the  plaintiffs  were  entitled  to 
recover  only  for  the  goods  which  were  not 
condemned  as  contraband  of  war,  and  under 
this    head,    whether  the  ticklenberghs  were 
properly  condemned  as  such.     If  the  court 
should  be  of  opinion  that  the  plaintiffs  were 
entitled  to  recover  for  the  articles  last  men- 
tioned, and  also  for  the  ticklenberghs,  as  not 
being  contraband,  and  being  improperly  con- 
demned as  such,  then  a  verdict  should  be  en- 
tered for  the  sum  of  $8,497,  and  six  cents 
costs,  and  judgment  accordingly.     But  if  the 
court  should  be  of  opinion  that  the  ticklen- 
berghs were  justly  condemned  as  contraband 
of  war,  and  that  the  plaintiffs  *were  en-  [*5 
titled  to  recover  only  for  the  articles  which 
were  not  condemned  as  such,  then  the  verdict 
was  to  be  entered  for  the  sum  of  $6,804,  and 
six  cents  costs,  and  judgment  accordingly. 

3.  If  the  court  should  be  of  opinion  that  the 
plaintiffs  were  not  entitled  to    recover  any 
part  of  the  sum  insured,  that  then  the  judg- 
ment should  be  entered  for  the  defendant. 

KENT,  J.  Two  questions  were  raised  on 
the  argument  in  this  case. 

1.  Whether    the    contraband  goods    were 
lawful,  within  the  meaning  of  the  policy. 

2.  If    lawful,    whether    the  assured    were 
bound  to  disclose  to  the  defendant  the  fact 
that  part  of  the  cargo  was  contraband  of  war. 

On  the  first  point,  I  am  of  opinion  that  the 
contraband  goods  were  lawful  goods,  and  that 
whatever  is  not  prohibited  to  be  exported,  by 
the  positive  law  of  the  country,  is  lawful.  It 
may  be  said  that  the  law  of  nations  is  part  of 
the  municipal  law  of  the  land,  and  that  by 
that  law  (and  which,  so  far  as  it  concerns  the 
present  question,  is  expressly  incorporated 
into  our  treaty  of  commerce  with  Great 
Britain)  contraband  trade  is  prohibited  to 
neutrals,  and,  consequently,  unlawful.  This 
reasoning  is  not  destitute  of  force,  but  the 
fact  is,  that  the  law  of  nations  does  not  de- 
clare the  trade  to  be  unlawful.  It  only 
authorizes  the  seizure  of  the  contriband  arti- 
cles by  the  belligerent  powers;  and  this  it 
does  from  necessity.  A  neutral  nation  has 
nothing  to  do  with  the  war,  and  is  under  no 
moral  obligation  to  abandon  or  abridge  its 
trade;  and  yet  at  the  same  time,  from  the  law 
of  necessity,  as  Vattel  observes,  the  powers  at 
war  have  a  right  to  seize  and  confiscate  the 
contraband  goods,  and  this  they  may  do  from 
the  principle  of  self-defence.  The  right  of 
the  hostile  power  to  seize,  this  same  very 
JOHNSON'S  CASES,  1. 


1799 


SETON,  MAITLAND  &  Co.  v.  Low. 


moral  and  correct  writer  continues  to  observe, 
does  not  destroy  the  right  of  the  neutral  to 
transport.  They  are  rights  which  may,  at 
times,  reciprocally  clash  and  injure  each 
other.  But  this  collision  is  the  effect  of  in- 
evitable necessity,  and  the  neutral  has  no  just 
cause  to  complain.  A  trade  by  a  neutral,  in 
6*]  articles  contraband  of  *war,  is  therefore 
a  lawful  trade,  though  a  trade,  from  necessity, 
subject  to  inconvenience  and  loss. 

With  respect  to  the  second  question,  the 
reason  of  the  rule  requiring  due  disclosure  of 
all  facts,  within  the  knowledge  of  either 
party,  is  to  prevent  fraud  and  encourage  good 
faith.  It  is  a  principle  of  universal  law,  and 
applicable  to  all  contracts,  that  every  material 
ingredient  in  the  contract  must  be  disclosed 
and  made  known  to  both  parties,  otherwise, 
they  make  a  contract  different  from  the  one 
they  intended.  '  There  are,  however,  certain 
circumstances,  appertaining  to  every  contract, 
which  each  party  is  presumed  to  know,  and 
need  not  be  told.  In  nlaking  a  contract  of 
insurance,  it  was  laid  down  by  the  English 
Court  of  K.  B.  in  the  case  of  Carter  v.  Boehm 
(3  Burr.,  1905),  that  the  underwriter  is  bound 
to  know  any  cause  which  may  occasion 
natural  perils,  as  the  season  of  the  year,  the 
peculiar  danger  of  the  voyage,  from  its  course, 
the  prevalent  winds,  and  the  like.  He  is  also 
bound  to  know  what  may  occasion  political 
perils,  as  the  state  of  war  between  States,  and 
the  various  operations  of  war.  If  an  under- 
writer insure  a  private  ship  of  war,  he  need 
not  be  told  of  secret  expeditions,  &c.,  for  he 
is  bound  to  know  that  such  are  the  presumed 
destinations  of  such  vessels.  All  matters  of 
general  notoriety  and  speculation,  every  party 
is  bound  to  know,  at  his  own  peril.  These 
principles  I  have  kept  in  view,  and  brought 
into  application,  in  my  reflections  on  the 
present  case. 

An  American  underwriter,  we  will  suppose, 
subscribes  a  policy  on  a  foreign  voyage,  in  a 
time  of  profound  peace,  and  he  regulates  the 
premium  accordingly.  It  then  happens  that 
a  war  breaks  out  between  the  United  States 
and  Spain,  for  instance,  and  he  is  called  upon 
again  to  underwrite.  The  risk,  undoubtedly, 
is  greatly  enhanced,  because  the  United  States 
are  now  a  party  in  the  war,  but  this  is  a  fact 
of  public  notoriety,  a  political  peril,  which 
the  underwriter  is  presumed  to  know,  and  it 
need  not  be  disclosed  to  him.  We  will  sup- 
pose, however,  that  instead  of  a  war  between 
the  United  States  and  Spain,  a  war  breaks 
7*]  *out  between  Spain  and  some  other  pow- 
er in  Europe.  This  is  a  fact,  also,  of  a  pub- 
lic nature,  which  need  not  be  told.  The 
underwriter  is  presumed  to  know  it  and  its 
consequences,  in  relation  to  the  trade  of  his 
own  country,  as  well  as  to  that  of  all  others. 

The  United  States  are  not  now  a  party  to 
the  war.  A  new  and  different  relation,  or 
character  arises,  the  character  of  a  neutral 
power.  In  the  one  case,  the  trade  of  the 
United  States  is  greatly  exposed  by  the  dep- 
redations of  its  enemy;  in  the  other  case,  its 
trade  is  in  a  much  less,  though  in  some  degree, 
exposed  by  the  interfering  rights  of  the 
belligerent  powers.  But  in  the  one  case  as 
well  as  in  the  other,  the  insurer  is  presumed 
to  know,  and  to  contemplate  the  risk,  be- 
JOHNSON'S  CASES,  1. 


cause  it  is  a  peril  inevitably  arising  from  the 
state  of  war. 

A  war  between  foreign  powers,  as  I  havo 
already  observed,  forms  no  lawful  impedi- 
ment to  the  universality  of  the  neutral  trade. 
The  neutral  may  carry  on  his  customary  trade 
as,  before,  without  discrimination.  The  law 
does  not  infer,  and  the  insurer  has  no  right  to 
infer,  a  diminution,  or  abridgment  of  the 
neutral  trade,  in  consequence  of  a  foreign 
war,  because  the  neutral  is  under  no  moral  or 
legal  obligation  to  abridge  it.  The  presump- 
tion will  be,  that  the  neutral  trades,  as  usual, 
without  any  regard  to  the  accidental  circum- 
stance of  a  war  abroad,  and  without  rejecting 
any  part  of  his  customary  cargo,  though  a 
certain  species  of  it,  under  the  description  of 
articles  contraband  of  war,  is  exposed  to 
seizure,  by  coming  in  collision  with  certain 
rights  of  necessity  created  by  the  war.  Un- 
derwriters are  to  presume  the  trade  to  be  in 
its  unfettered  state,  and  to  take  the  risk  of 
the  interfering  rights  I  have  mentioned.  As 
in  the  former  case  of  a  war,  in  which  the 
United  States  are  a  party,  the  assured  can 
always  diminish  the  premium  consequent  on 
the  extraordinary  risk,  by  a  warranty  that 
the  property  is  neutral;  so,  in  the  latter  case,  . 
of  a  war  abroad,  increasing,  by  necessary  con- 
sequence, the  risk  in  a  smaller  degree,  the 
assured  can  always  diminish  the  premium  at- 
tached to  such  increased  risk,  and  reduce 
*it  to  the  standard  of  a  peace  premium,  [*8 
by  a  warranty  that  the  cargo  is  not  contra- 
band of  war. 

It  is  a  general  and  a  just  principle,  that 
every  fact,  in  the  knowledge  of  the  assured, 
which  enhances  the  ordinary  risk,  and  which 
would,  if  disclosed,  enhance  the  premium, 
ought  to  be  communicated  to  the  underwriters. 
But  the  principle  is  limited  to  circumstances, 
which  the  underwriter  is  not  presumed  to 
know,  nor  bound  to  know;  and  if  my  reason- 
ing be  good,  the  underwriter  is  presumed  to 
know  that  the  neutral  trade  undergoes  no 
abridgment,  or  abandonment,  in  war;  that  it 
is  likely  to  consist  of  the  same  kind  of  articles 
in  war  as  in  peace,  and,  consequently,  that 
the  nature  of  the  cargo  need  not  be  disclosed. 

There  is  an  ingredient  in  the  present  case 
which  oxight  to  be  noticed,  as  deserving  of 
consideration. 

The  cargo  was  shipped  to  the  Havanna,  in 
consequence  of  a  proclamation  of  the  governor 
of  that  place,  enumerating  certain  articles  by 
name  (and  of  which  articles  the  present  cargo 
consisted),  which  might  be  imported  in 
American  bottoms.  This  proclamation  was 
a  public  act,  materially  affecting  the  American 
trade,  and  it  may  be  inferred  that  it  was  pub- 
licly known,  ff  that  be  the  case,  we  can 
hardly  presume  otherwise  than  that  the  de- 
fendants in  this  suit  must  have  known,  and 
need  not  to  have  been  told,  that  the  cargo  of 
the  Hannah  consisted  of  particular  articles 
enumerated  in  the  proclamation. 

My  opinion,  accordingly,  is,  that  judgment 
be  rendered  for  the  plaintiffs  as  for  a  total 
loss;  yet  in  a  question  so  important  to  the 
interest  of  trade,  in  respect  to  which  I  have 
met  with  no  pertinent  decision  in  the  English 
law,  I  regret  that  I  cannot  give  this  opinion 
without  some  hesitation  and  difficulty,  and  I 

221 


8 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


could  have  wished  that  the  usage  and  under- 
standing of  merchants,  on  the  subject  of  this 
kind  of  disclosure,  had  been  found,  and 
thrown  into  the  case. 

LEWIS,  J.  The  grounds  of  opposition  to 
the  claim  of  the  plaintiffs  are: 
9*]  *lst.  That  the  assured  were  engaged  in  a 
commerce  illicit  by  the  treaty  of  amity,  com- 
merce and  navigation,  between  the  United 
States  and  Great  Britain. 

2d.  That  the  circumstance  of  the  goods 
being  contraband,  ought  to  have  been  dis- 
closed to  the  underwriters. 

The  recovery,  if  any,  must,  in  my  opinion, 
be  for  a  total  loss;  for  if  the  plaintiffs  are 
barred  on  either  of  these  grounds,  it  will  go 
to  the  whole  policy;  and  if  they  are  insuffi- 
cient, the  voyage  having  been  totally  defeated, 
and  an  abandonment  made,  the  plaintiffs 
must  recover  the  whole  amount  insured. 

According  to  Grotius  and  Bynkershoek,  in- 
struments of  war  are  alone  considered  as  con- 
traband of  war  by  the  general  maritime  law  of 
nations;  and  when  going  to  a  port  blockaded 
or  a  place  besieged,  are  liable  to  confiscation, 
upon  the  principal  of  its  being  illegal  to  sup- 
ply a  belligerent  power  with  articles  usfulonly 
in  war.  But  by  the  ordinances  of  France  of 
1543  and  1584,  and  by  those  of  several  other 
commercial  countries  of  Europe,  they  are  to 
be  paid  for  when  they  are  the  property  of  a 
neutral.  Great  Britain,  in  the  reign  of  Queen 
Elizabeth,  also  recognized  this  principle. 
Hence  the  idea  of  illegality  has,  in  more  mod- 
ern times,  been  exploded,  and  the  doctrine  of 
the  present  day  appears  to  be,  that  the  only 
effect  of  a  capture  and  condemnation  is,  that 
the  neutral  power,  by  demanding  compensa- 
tion, would  avow  itself  a  party  to  the  war. 
Articles  declared  contraband  by  particular 
convention,  fall,  a  fortiori,  under  the  same 
rule.  The  ordinances  of  different  maritime 
nations,  from  whence  this  law  is  deduced,  are 
founded  in  principles  of  policy  adapted  to  the 
particular  interest  of  each.  America  has  none, 
but  surely  her  courts  of  justice  have  a  right 
to  adopt  such  as  will  operate  most  favourably 
to  her.  The  treaty  with  Great  Britain  is,  un- 
questionably, the  law  of  the  land,  but  it  by  no 
means  follows  from  thence  that  the  exporta- 
tion of  articles  contraband  within  its  letter  is 
illegal,  in  such  a  sense  as  to  render  an  insur- 
ance on  them  void.  Were  we  to  give  it 
1O*]  *that  construction,  similar  treaties  with 
the  different  European  powers  would  annihi- 
late our  commerce;  for  as  it  embraces  all  our 
principal  exports,  the  merchant  would  be  re- 
duced to  the  necessity  of  becoming  his  own 
insurer,  and  no  capitals  in  the  country  would 
be  adequate  to  the  support  of  such  a  mercan- 
tile system.  Nor  do  the  terms  "lawful 
goods,"  introduced  into  the  policy,  in  my 
opinion,  in  any  wise  alter  the  case;  for  I  can- 
not consider  them  as  having  relation  to  the 
acquired  rights  of  any  foreign  country.  If 
they  have  any  particular  reference,  it  must  be 
to  the  local  law  of  this  country.  Much  re- 
liance has  been  placed  on  the  authorities  cited 
from  Valin,  Emerigon,  and  Pothier,  but  they 
do  not  apply  to  the  case. 

They  treat  of  the  validity  of  an  insurance 
on  goods,  the  exportation  and  importation  of 
222 


which  are  forbidden  by  the  laws  of  foreign 
countries,  a  point  settled  both  in  England  and 
France  in  favour  of  its  validity;  Valin  and 
Emerigon.  subscribing  to  such  decision,  while 
Pothier  is  of  a  different  opinion.  1  do  not 
think,  therefore,  that  on  the  ground  of  il- 
legality, the  underwriters  are  discharged.1 

The  next  question  is,  whether  the  assured 
were  bound  to  disclose  the  nature  of  the  cargo; 
and  on  this  point,  1  confess.I  have  had  greater 
doubts  than  on  the  other.  It  was  assumed  as 
a  position  by  the  defendant's  counsel,  that  the 
underwriters  were  not  bound  to  inquire,  but 
that  the  assured  were  bound  to  disclose  every 
circumstance  that  had  a  tendency  to  enhance 
the  risk.  But  I  find  this  principle  nowhere 
adopted,  except  sofar*as  relates  to  extrinsic 
circumstances.  Were  it  to  extend  beyond 
these,  surely  among  the  many  adjudications 
in  the  English  courts  something  of  the  kind 
would  be  met  with,  but  it  is  admitted  that  no 
such  case  is  to  be  found.  It  may  then  be 
fairly  inferred  that  the  principle  does  not 
exist.  Indeed,  it  would  be  highly  injurious 
to  that  nation,  for  it  would  destroy  all  foreign 
insurance,  which  has  become  to  her,  and  prob- 
ably will  be  to  us,  an  important  source  of 
commercial  profit.  When  nations  are  at  war, 
underwriters  contemplate  captures  by  the  bel- 
ligerent powers,  and  take  premiums  adequate 
*to  every  risk.  Where  they  wish  to[*ll 
avoid  the  hazard  of  any  particular  risk,  they 
guard  against  it  in  the  policy.  Thus  we  find 
warranties  introduced  for  their  protection; 
nor  has  the  argument  that,  had  the  insurers 
known  the  nature  of  the  cargo,  they  would, 
probably,  have  demanded  a  higher  premium, 
any  weight  with  me.  We  are  to  suppose  they 
contemplated  every  usual  risk;  though,  prob- 
ably, had  the  nature  of  the  cargo  been  dis- 
closed to  them,  and  been  found  to  consist  of 
articles  not  contraband  by  treaty,  thev  might 
have  demanded  a  less  premium.  It  Is  a  set- 
tled principle  that  the  assured  are  not  bound 
to  disclose  what  the  assurer  waives  to  be  in- 
formed of,  or  ought  to  know.  Here  was  a 
vessel  bound  to  a  port  with  which  we  had  not 
a  free  trade.  The  voyage  was  undertaken  in 
consequence  of  a  permission  granted  by  a  proc- 
lamation of  the  Governor  of  Havanna,  with 
which  all  mercantile  men,  it  must  be  pre- 
sumed, were  acquainted. 

The  cargo  consisted  of  the  very  articles  to 
which  the  permission  extended, certain  species 
of  provisions  excepted;  here,  then,  was  suf- 
ficient to  put  the  insurers  on  their  guard,  and 
if  they  did  not  choose  to  inquire,  it  is  presum- 
able that  they  intended  to  take  the  risk.  If 
the  doctrine  of  disclosure  is  to  be  extended  to 
the  nature  of  the  cargo  of  a  vessel,  where  are 
we  to  stop?  Must  it  not  take  place  in  every 
instance?  The  risks  will  be  as  various  as  the 
commodities  that  are  exported.  Gunpower, 
liquors,  oils,  saltpetre,  money  and  Jewels,  are 
subject  to  greater  risks  than  provisions,  yet  it 
never  has  been  held  that  a  disclosure  of  such 
articles  was  necessary.  It  may  also  be  a  ques- 
tion, in  the  present  instance,  whether  there 
was  an  increased  risk.  The  property  was  re- 
fused to  be  warranted  neutral;  the  inference, 
therefore,  was  that  it  was  enemy's,  and  no  cir- 


1.— See  Marshall,  48-55. 


JOHNSON'S  CASES,  1. 


1799 


SKTON,  MAITLAND  &  Co.  v.  Low. 


11 


cumstance  could  increase  the  risk  of  capture. 
The  flimsy  covering  of  a  shipment  in  the 
name  of  a  neutral,  considering  the  cupidity 
for  capture  that  has  distinguished  all  the  bel- 
ligerent powers,  has  never,  I  suspect,  proved  a 
protection. 

12*]  *My  opinion  therefore  is,  that  the 
law  on  both  points  is  with  the  plaintiffs,  and 
that  they  are  entitled  to  recover  for  a  total 
loss. 

LANSING,  Ch.  J.  I  have  considered  the  ob- 
jections on  the  part  of  the  defendant  to  rest  on 
three  grounds: 

1st.  That  the  concealment  of  the  circum- 
stance that  part  of  the  cargo  was  contraband 
of  war,  enhanced  the  risk  and  vitiated  the 
policy. 

2d.  That  this  was  a  contract  against  the 
policy  of  the  law,  and  therefore  void. 

3d.  That  the  treaty  with  Great  Britain, 
which  was  the  supreme  law  of  the  land,  in- 
hibited the  citizens  of  the  United  States  from 
furnishing  the  enemies  of  that  kingdom  with 
articles  contraband  of  war. 

It  may  be  useful  to  examine,  as  to  the  first 
point,  what  species  of  articles  are  compre- 
hended under  the  general  terms  of  "  all  kinds 
of  lawful  goods  and  merchandises." 

On  the  argument,  no  authorities  were  intro- 
duced which  have  any  intimate  connection 
with  the  subject.  The  reasoning  on  the  ques- 
tion was  from  general  principles  respecting 
the  nature  of  contraband  goods;  but  no  in- 
stances of  the  particular  application  of  those 
cases,  even  remotely  analogous  to  the  present, 
were  given.  Whether  the  articles  alleged  to 
be  contraband  of  war  were  of  a  nature  to  re- 
quire a  particular  specification,  may  be  col- 
lected from  the  idea,  which,  by  common 
usage,is  intended  to  be  conveyed,  by  the  terms 
"  lawful  merchandise." 

In  Magens  (p.  9,  sec.  13),  it  is  laid  down, 
"  that  every  person  making  insurance,  under 
the  generaf  expression  of  'merchandise, 'ought 
not  to  conceal  anything  he  may  know  to  de- 
serve a  greater  premium  than  is  generally 
given;  and  for  any  damage  happening  to 
goods  more  liable  to  it  than  others  insured  at 
a  low  premium,  the  insurer  ought  not  to  be 
answerable  any  further  than  in  common  with 
the  rest  of  the  cargo,  not  subject  to  dam- 
age." 

In  sec.  14  he  observes,  "according  to  the 
laws  of  several  places,  such  things,  as  in  their 
nature  are  soon  corruptible  and  perishable,  or 
13*]  contraband  goods,  which,  in  *time  of 
war,  are  liable  to  confiscation,  are  not  to  be 
understood  under  the  general  expression  of 
merchandises."  He  then  declares  "that  the 
the  ancient  ordinances  of  insurance,  made  at 
Amsterdam  and  Middleburgh,  allow  corn, 
fruits,  and  a  number  of  other  perishable 
articles,  and  ammunition,  to  be  comprehended 
under  that  expression,  but  that  those  of  the 
city  of  Rottei'dam,  in  1721,  of  Amsterdam,  in 
1744,  and  the  French,  Hamburgh,  and  Prus- 
sian ordinances,  require  particular  specifica- 
tions of  certain  articles,  as  not  comprehended 
under  the  general  expression  of  merchandise. 
Among  these,  we  generally  find  ammunition, 
and  other  articles  contraband  of  war. 

These  specifications  appear  to  have  varied 
JOHNSON'S  CASES,  1. 


with  the  motives  which  dictated  them,  so  as 
to  present  them  subject  to  a  more  extended  or 
restricted  rule,  and  forcibly  lead  to  the  opin: 
ion  that,  independent  of  such  particular  regu- 
lations, no  such  exceptions  would  exist. 

The  authorities  which  have  been  cited  in  the 
course  of  the  argument,  to  show  the  effect  of 
a  concealment  of  material  circumstances,  rest- 
ing in  the  knowledge  of  the  assured,  appear  to 
me  not  to  apply  to  the  case.  They  have,  I 
take  it,  no  relation  to  the  quality  of  the  mer- 
chandise; the  term  "merchandise"  comprising 
every  species  of  goods  of  whatever  quality. 
If  this  be  so,  the  assurer,  in  estimating  the  risk 
he  insures  against,  demands  a  premium,  in 
every  instance,  for  the  greater  risk,  leaving  it 
to  the  insured,  by  a  discovery  of  the  precise 
nature  and  quality  of  the  merchandise,  and, 
by  correspondent  stipulations,  to  diminish  the 
risk  and  reduce  the  premium.  The  insurers 
in  this  case  knew  the  destination  of  the  goods, 
and  that  the  vessel,  on  board  of  which  they 
were  embarked,  was  bound  for  the  Havanan,  a 
place  belonging  to  one  of  the  belligerent  powers. 
They  knew  that  the  goods  were  shipped  by, 
and  in  the  name  of  the  plaintiffs,  and  the  note, 
in  consequence  of  which  the  insurance  was 
made,  contained  an  intimation  calculated  to  put 
the  insurers  on  their  guard.  It  mentioned 
that  the  insured  would  not  submit  to  a  war- 
ranty, and  the  insurers,  also,  probably  knew 
that  in  consequence  of  the  *proclamation  [*14 
of  the  Governor  of  the  Havana,  the  articles 
which  were  actually  shipped  were  alone 
permitted  to  be  imported  there.  With  all  this 
knowledge,  no  inquiries  were  made,  but  the 
policy  was  underwritten,  as  it  appears, 
merely  on  the  application  of  the  plaintiffs. 

But  it  has  been  alleged  that  this  insurance  is 
against  the  policy  of  the  law,  and,  also,  that 
it  is  inconsistent  with  our  treaty  with  Great 
Britain.  Without  examining  the  extent  of  this 
principle,  it  will  be  sufficient  to  observe  that 
the  British  treaty  does  not  impose  any  new 
obligation  on  the  citizens  of  the  United  States 
to  refrain  from  exporting  articles  contraband 
of  war.  It  merely  defines  the  objects  which 
shall  be  considered  as  such,  in  cases  implicat- 
ing the  interests  of  the  contracting  parties,  and 
leaves  the  general  law  of  nations  to  its  opera- 
tion in  regard  to  the  interception  of  such  arti- 
cles on  their  way  to  an  enemy's  port. 

By  the  law  of  nations,  articles  contraband 
of  war,  if  the  utmost  extent  of  the  doctrine  be 
applied  to  this  case,  are  liable  to  confiscation 
when  intercepted  by  the  subjects  of  any  of 
the  nations  at  war,  on  the  way  to  the  ports  of 
their  enemies;  but  there  were  no  restraints  on 
the  exportation  of  these  articles  from  the 
United  States,  and  certainly  none  could  exist 
at  the  port  of  destination,  as  the  proclamation 
was  evidently  intended  to  invite  importations, 
and  the  property  insured  appears  to  have 
belonged  to  a  Spanish  subject. 

In  a  nation  like  our  own,  engaged  in  exten- 
sive commercial  enterprises,  in  which  every 
foreigner  may  export,  in  any  vessel  of  the 
United  States,  without  restriction  as  to  the 
objects  of  exportation,  the  mere  circumstance 
of  the  policy  being  intended  to  attach  to  a 
vessel,  sailing  from  a  port  in  those  States,  in 
my  opinion,  could  not  create  a  presumption 
that  the  property  insured  was  American,  or 

223 


14 


SUPREME  COCTRT,  STATE  OF  NEW  YORK. 


1799 


authorise  any  inference  to  that  effect.  The 
policy  might)  for  aught  the  insurers  knew,  or 
could  infer,  from  the  natural  course  of  the 
transaction,  have  applied  wholly  to  goods,  the 
15*]  property  of  the  subjects  of  the  King  *of 
Spain,  as  the  fact  appears  to  have  been  in  the 
present  case.  And  a  circumstance,  to  afford 
some  colour  for  a  presumption  of  that  kind 
was,  that  the  vessel  was  actually  destined  for 
a  Spanish  port.  Upon  the  whole,  as  far  as  I 
have  been  able  to  investigate  the  principles  ap- 
plicable to  this  case,  and  from  my  reflexions 
on  their  tendency,  I  am  of  the  opinion  that 
this  was  a  valid  policy,  as  respected  the  goods, 
contraband  of  war;  that  it  was  not  necessary 
to  inform  the  insurers  of  the  species  of  arti- 
cles intended  to  be  insured;  and  that  the 
proper  mode  of  guarding  against  the  risk  of 
including  articles  of  this  description  in  poli- 
cies of  insurance,  is  to  require  stipulations 
from  the  insured  that  none  such  shall  be  com- 
prised in  the  cargo  to  be  insured.  I  am  there- 
fore of  opinion  that  the  plaintiffs  are  en- 
titled to  recover  for  a  total  loss. 

BENSON,  J.,  dissented,  on  the  ground  that 
the  insured  ought  to  have  disclosed  the  nature 
of  the  goods,  or  that  they  were  contraband. 

RADCLIFF,  J.,  not  having  heard  the  argu- 
ment of  the  cause,  gave  no  opinion. 

Judgment  for  the  plaintiffs. l 

Mr.  B.  Livingston  and  Mr.  Hoffman  for  the 
plaintiffs. 

Mr.  Harrison  and  Mr.  Hamilton  for  the  de- 
fendant. 

Followed— 2  Johns.  Cas.,  121. 

Cited  in  3  Johns.  Cas.,  484 ;  12  Wend.,  466 ;  15  Wend., 
18;  2  Gall.,  357. 


16*]  *LUDLOW  &  LUDLOW  v.  DALE. 

Marine  Insurance  —  Warranted  Property  — 
Prize. 

In  an  action  on  a  policy  of  insurance  on  goods 
warranted  American  property,  it  was  held  that  the 
sentence  of  the  Admiralty  Court  of  a  belligerent, 
condemning1  the  goods  as  good  and  lawful  prize  to 
the  captors,  was  conclusive  evidence  as  to  the  char- 
acter of  the  property,  and  of  a  breach  of  the  war- 
ranty by  the  assured.  (But  see,  contra,  the  case  of 
Vandenheuvel  v.  The  United  Insurance  Co  mpany, 
reversed  in  the  Court  of  Errors,  February,  1802,  2 
Johns.  Cas.,  451.) 

Citation-Morely.  1;  Str.,  733;  1  Rep.,  258,  280;  4 
Term  R.,  185,  192:  2  Ersk.  Inst.,  735;  2  Koine's  Eq., 
376  ;  Doug.,  610,  614,  615,  617  ;  3  Term  R.,  330  ;  2  Raines, 
376  ;  Raym.,  473  ;  2  Show,  242  :  2  Ld.  Raym.,  892,  935  ;  1 
Show,  6  ;  Carth.,  31  ;  Doug.,  575. 


was  an  action  on  a  policy  of  insurance, 
J-     dated  the  5th  day  of  November,   1795, 

1.—  In  consequence  of  the  above  decision  the  fol- 
lowing clause  was  added  to  the  policies  of  insurance 
used  in  New  York:  "  It  is  also  agreed  that  the  prop- 
erty be  warranted  by  the  assured,  free  from  any 
charge,  damage  or  loss,  which  may  arise  in  conse- 
quence of  a  seizure  or  detention  for,  or  on  account 
of  any  illicit  or  prohibited  trade,  or  any  trade  in 
articles  contraband  of  war." 

In  the  case  of  Mayno  v.  Walter  (Park,  196;  Mar- 
sliall,  358),  Lord  Mansfield  and  the  court  decided  that 
the  insured  need  not  disclose  that  the  ship  had  an 
English  supercargo  on  board;  though,  by  a  French 
ordinance,  the  ship  was  condemned  for  that  reason. 
In  Long  v.  Duff  (2  Dos.  &  Pull.,  209),  Lord  Eldon  left 
224 


effected  by  the  plaintiffs  for  M.  Myers,  of 
Norfolk,  in  Virginia,  on  the  cargo  of  the 
schooner  Paragon,  at  and  from  Aux  Cayes,  or 
any  other  port  in  Hispaniola,  to  any  port  in 
the  United  States,  warranted  American  prop- 
erty. The  plaintiff  declared  for  a  total  loss, 
by"  capture,  made  by  the  British  ship  of  war 
called  the  Argonaut. 

The  cause  was  tried  before  Mr.  Justice 
Lewis,  at  the  sittings,  held  in  the  city  of  New 
York,  after  October  Term,  1797,  when  the 
defendant's  subscription  to  the  policy  was  ad- 
mitted, and  also  that  M.  Myers  was  a  citizen 
of  the  United  States,  resident  in  Virginia,  and 
that  the  Paragon  was  registered  agreeable  to 
law  at  Norfolk  on  the  22d  day  of  August, 
1795,  as  the  sole  property  of  the  said  Myers. 

To  prove  the  interest  of  Myers,  the  plaintiffs 
g^ave  in  evidence  an  invoice  of  the  cargo, 
dated  the  23d  day  of  January,  1796,  signed 
Donate  Nathan,  and  also  a  bill  of  lading  at  the 
same  date,  signed  by  the  master,  which  stated 
the  cargo  to  be  shipped  by  the  said  Nathan, 
on  the  account,  and  at  the  risk  of  the  said 
Myers.  From  the  invoice  and  bill  of  lading, 
it  "also  appeared  that  the  cargo  was  equal  in 
value  to  the  several  sums  underwritten  on  the 
policy. 

It  was  further  admitted  that  due  notice  of 
the  loss  had  been  given,  and  an  abandonment 
made  to  the  defendant,  *on  the  31st  of  [*17 
December,  1796.  It  appeared  also  that  the 
Paragon  was  captured  while  prosecuting  the 
voyage  insured,  and  carried  into  Jamaica, 
where  she  was  condemned  by  the  Court  of 
Vice-Admiralty  of  that  island  as  good  and  law- 
ful prize  to  the  captors. 

On  the  part  of  the  defendant,  a  copy  of  the 
sentence  of  condemnation  was  read;  other  evi- 
dence was  also  offered  to  show  that  the  prop- 
erty was  not  American,  but  belligerent,  and 
that  therefore  the  warranty  had  not  been  com- 
plied with.  This  evidence  it  will  not  be  ma- 
terial to  state,  since  the  judgment  of  the  court 
was  founded  on  a  principle  not  connected 
with  it. 

A  verdict  was  taken  for  the  plaintiff  as  for 
a  total  loss,  subject  to  the  opinion  of  the  court 
on  the  whole  case;  and  it  was  agreed  that  if 
the  court  should  be  of  opinion  with  the  de- 
fendant, a  judgment  as  in  case  of  nonsuit 
should  be  entered. 

Mr.  Hoffman  and  B.  Livingston  for  the  plaint- 
iffs. 

Mr.  Harison  and  Mr.  Hamilton  for  the  de- 
fendant. 

KENT,  ./.,  delivered  the  opinion  of  the  court. 
Two  questions  have  arisen  upon  this  case: 
1.  Whether  the  sentence  of  the  Admiralty 

it  to  the  jury  to  decide  whether,  according  to  the 
usage  of  merchants,  it  was  the  duty  of  the  insurer 
to  satisfy  himself  whether  the  vessel  was  foreign 
built,  and  therefore  not  entitled  to  be  registered, 
nor  bound  to  sail  with  convoy.  Though  this  greatly 
increased  the  risk,  yet  the  jury  found  that  it  was 
not  incuml>ent  on  the  insured  to  communicate  the 
fact  to  the  insurer,  and  the  Court  of  Common  Pleas 
decided  that  the  point  was  properly  left  to  the  jury. 
(Mill-shall,  353-aTfi.)  But  Pothier  (Trait,  rtit  Control 
d'A*mir.  196)  is  of  the  opinion  that  the  insured  can- 
not, in  conscience,  be  silent  as  to  a  fact  which  he 
knows,  and  which,  if  known  to  the  insurer,  would 
have  considerably  increased  the  premium. 

JOHNSON'S  CASES,  1. 


1799 


JONES  AND  CRAWFORD  v.  REED. 


17 


Court  precludes  all  further  inquiry  respecting 
the  neutrality  of  the  property. 

2.  If  it  does  not,  then  whether  the  testimony 
offered  appears  to  warrant  the  sentence  of 
condemnation  at  Jamaica. 

I  shall  confine  myself  to  the  consideration 
of  the  first  question,  because,  in  my  opinion, 
it  will  govern  and  determine  the  case. 

It  is  a  clear  and  settled  principle  of  law, 
that  the  sentence  of  a  court  of  competent  juris- 
diction, as  to  the  direct  point  under  decision, 
is  conclusive  upon  all  other  courts  of  the  State 
within  whose  limits  it  is  pronounced. 

Even  foreign  decrees,  whether  sustaining  a 
claim  or  dismissing  it,  are,  from  a  regard  to  util- 
18*]  ity,  and  ex  comitate,  *generally  received 
and  held  binding  by  the  regular  tribunals  of  all 
other  nations,  in  which  the  administration  of 
justice  is  orderly  and  civilized.  (Mosely,  1; 
Str.,  733;  1  Rep.,  258,  260;  4  Term,  185,  192; 
2  Ersk.  Inst.,  735  ;  2  Kaimes's  Eq.,  365,  376.) 

But  the  sentences  of  foreign  courts  of  ad- 
miralty are  especially  received  as  binding,  be- 
cause they  proceed  upon  general  principles  of 
the  law  of  nations,  applicable  to  all  suitors, 
and  of  universal  extent  and  reception.  As 
these  courts  are  all  governed  by  one  and  the 
same  law,  equally  known  to  every  country, 
and  equally  open  to  all  the  world,  all  persons 
are  therefore  concluded  by  their  sentences,  in 
cases  within  their  jurisdiction.  (Doug.,  610, 
614,  615,  617;  3  Term,  330;  2  Kaimes,  376.) 
We  find,  accordingly,  that  the  English  courts, 
as  early  as  the  reign  of  Charles  II.  (Hughes  v. 
Cornelius  et  al,  Raym.,  473;  2  Show.,  242), 
regarded  the  decision  of  the  French  admiralty 
in  a  question  of  prize  as  conclusive  upon  them, 
although,  at  that  time,  England  was  a  neutral, 
and  France  a  belligerent  power;  and  the 
judges  observed  that  sentences  in  courts  of 
admiralty  ought  to  bind  generally,  according 
to  the  jus  gentium. 

Lord  Holt  more  than  once  recognized  this 
law,  and  gave  it  the  sanction  of  his  name.  (2 
Lord  Raym.,  893,  935;  1  Show.,  6;  Garth.,  31.) 

In  modern  times,  when  the  law  of  nations 
and  commercial  law  have  been  better  under- 
stood, and  more  correctly  defined,  the  doctrine 
that  sentences  of  foreign  admiralties  were  con- 
clusive has  been  admitted  in  the  fullest  lati- 
tude, and  the  English  Court  of  K.  B.  has  re- 
peatedly decided  that  condemnation  in  a 
foreign  admiralty,  as  enemy's  property,  of 
property  warranted  neutral,  were  conclusive 
evidence  against  the  insured  of  a  breach  of  his 
warranty.  (Bernadi  v.  Motteaux,  Doug.,  575; 
Barzillay  v.  Lewis,  De  Souza  v.  Ewer,  Saloucci 
v.  Woodmason,  and  Mayne  v.  Walter,  reported 
in  Park.)  These  several  decisions,  whilst  they 
incontrovertibly  establish  the  doctrine  that  if 
no  special  ground  of  condemnation  appears 
19*]  *and  the  property  is  condemned  general- 
ly as  enemy  property,  or  as  good  and  lawful 
prize,  other  courts  are  bound  to  consider  the  de- 
cree as  decisive  evidence  that  the  property  was 
not  neutral;  yet  they  do  at  the  same  time,  admit 
that  if  the  foreign  sentence  be  altogether  am- 
biguous, evidence  will  be  let  in  to  explain.  So 
if  the  sentence  be  unjust  on  the  face  of  it,  and 
reasons  are  given  for  it  which  are  manifestly 
illegal,  and  against  the  law  of  nations,  other 
courts  have  a  right  to  judge  of  those  reasons 


was  the  amount  of  the  decision  of  this  court 
in  the  case  of  Smith  v.  Murray  &  Mumford,  in 
January  Term,  1797. 

The  English  law,  thus  understood  and  ex- 
plained, I  consider  as  no  novel  doctrine,  but  a 
part  of  the  common  law  of  the  land.  It  is,  in- 
deed, the  prevailing  usage  in  most  countries 
whose  jurisprudence  is  enlightened,  and  whose 
administration  is  regular.  It  could  not,  in- 
deed, exist  in  the  civil  law,  because  the  whole 
known  world  was  subject  to  the  Roman  Em- 
pire ;  but  in  countries  where  the  civil  law  has 
been  adopted  and  modified,  the  same  principle 
prevails,  and  a  person  condemned  by  the  sen- 
tence of  a  foreign  court,  confessedly  com- 
petent to  the  case,  can  have  no  redress  but  by 
a  court  which  has  power  to  reverse  the  d"e- 

ree. 

The  sentence  of  the  Admiralty  Court  at 
Jamaica,  cannot  truly  be  said  to  have  been  res 
inter  alias.  The  assured,  in  the  present  case, 
was  a  party  to  the  suit  instituted,  and  to  the 
condemnation  had  there,  and  he  applies  here 
to  have  the  same  question  which  was  agitated 
there,  and  which  was  decided  against  him, 
tried  anew,  namely,  whether  his  property, 
which  he  warranted  to  be  American,  had  the 
requisite  insignia  to  entitle  it  to  the  privilege 
of  neutrality. 

I  am,  accordingly,  of  opinion  that  the  sen- 
tence of  condemnation  being  direct,  so  as  to 
induce  a  necessary  conclusion  that  neutral  or 
enemy  property  was  the  point  in  issue  and  de- 
cided, and  containing  nothing  which  appears 
*to  be  contrary  to  the  law  of  nations,  is  [*2O 
decisive  against  the  plaintiffs,  and  that  judg- 
ment ought  to  be  rendered  for  the  defendant. 

RADCLIFF,  J.,  not  having  heard  the  argu- 
ment in  the  cause,  gave  no  opinion. 

Judgment  for  the  defendant.1 

Followed— 1  Johns.  Gas.,  342 :  2  Johns.  Gas.,  130. 
Overruled — 2  Johns.  Gas.,  451. 
Cited  in  2  Johns.  Gas.,  142, 177, 192. 


JONES  &  CRAWFORD  0.  REED. 

1.  Jurisdiction — Of  Inferior  Courts — Implied 
Power.  2.  Justice's  Court  —  Jurisdiction  — 
Practice.  3.  Judgment — By  Justice — Joint 
Debtors — Process  executed  against  one  only. 

Where  a  warrant  was  issued  by  a  justice,  against 
two  joint  debtors,  and  one  only  was  taken  and 
brought  into  court,  and  the  other  did  not  appear, 
and  the  justice  gave  judgment  against  both,  it  was 
held  that  the  justice  could  not  proceed  to  give  judg- 
ment until  both  of  the  defendants  were  brought  in- 
to court.  (But  see  Rev.  Laws,  vol.  1,  p.  49.) 

Citations— 3  Burr.,  1366;  3  Term  R.,  44;  4  Black. 
Com.,  268;  Stra.,  1256;  2  Ld.  Raym.,  1144.  1  Ld. 
Raym,  80;  Cowp.,  19;  Salk.,  406. 

IN  error  on  certiorari.    The  plaintiffs  in  error 
were  sued  as  joint  debtors,  before  the  jus- 

1. — See  post,  Goix  v.  Low,  decided  in  April  Term, 
1800 ;  and  Vandenheuvel  v.  The  United  Insurance 


and  to  determine  upon  their  validity;  and  this  |  Company,  in  January  Term,  1801. 
JOHNSON'S  CASES,  1.  N.  Y.  REP.,  BOOK  1.  15 


20 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


tice  in  the  court  below.  A  warrant  was  issued 
against  both,  but  one  of  them  only  was  taken, 
and  brought  into  court;  and  the  other  did  not 
appear.  The  plaintiff  below  declared  against 
both  defendants,  and  the  one  taken,  having 
pleaded  alone,  an  issue  was  thereupon  joined, 
and  tried  by  a  jury,  who  found  a  verdict  for 
the  plaintiff,  on  which  the  justice  gave  judg- 
ment against  both  defendants. 

Per  Curiam.  It  is  a  clear  and  salutary  prin- 
ciple, that  inferior  jurisdictions,  not  proceed- 
ing according  to  the  course  of  common  law, 
are  confined  strictly  to  the  authority  given 
them.  They  can  take  nothing  by  implication, 
but  must  show  the  power  expressly  given 
them,  in  every  instance.  (3  Burr.,  1366;  3 
Term,  444;  4  Black.  Com.,  268;  Stra.,  1256; 
2  Ld.  Raym.,  1144;  Salk.,  406.) 

The  sound  rule  of  construction,  in  respect  to 
the  courts  of  justices  of  the  peace,  is,  to  be 
liberal  in  reviewing  their  proceedings,  as  far 
as  respects  regularity  and  form,  and  strict  in 
holding  them  to  the  exact  limits  of  jurisdic- 
tion prescribed  to  them  by  statute.  (1  Ld. 
Raymond,  80;  Cowp.,  19.)  * 

To  apply  these  principles  to  the  present  case. 
The  act  making  joint  debtors  answerable  to 
their  creditors,  separately,  and  giving  a  new 
mode  of  proceeding,  is  posterior  to  the  act  grant- 
ing civil  jurisdiction  to  justices  of  the  peace,  and 
makes  no  mention  of  them.  (Rev.  Laws,  vol. 
21*]  1,  p.  358.)  It  directs  that  *process  shall 
issue  against  the  joint  debtors,  in  the  manner 
then  in  use ;  and  if  either  be  taken  and 
brought  into  court,  he  shall  answer.  This  act 
contemplates,  in  every  instance,  a  compulsory 
process,  on  which  the  defendant  is  taken  and 
brought  into  court ;  and,  until  that  be  done, 
the  court  cannot  proceed  in  the  case  ;  where- 
as, the  Ten-pound  Act,  giving  civil  authority 
to  the  justices,  directs  only  a  summons,  in  the 
first  instance,  against  freeholders  and  inhabit- 
ants having  families;  and  if  the  summons  be 
personally  served,  and  the  defendant  does  not 
appear,  the  justice  cannot  compel  him,  but  is 
to  proceed  and  try  the  cause,  without  his 
either  being  taken  or  brought  into  court.  The 
act  as  to  joint  debtors,  accordingly,  gives  a 


power  and  jurisdiction  different  from,  and  un- 
known to,  the  Ten-pound  Act.  So,  in  respect 
to  execution,  the  act  relating  to  joint  debtors 
directs  that  the  execution  shall  be  against  all 
the  debtors,  but  shall  not,  however,  issue 
against  the  body,  or  sole  property  of  the  one 
not  taken  nor  brought  into  court;  whereas,  by 
the  Ten-pound  Act,  execution  is  directed  to 
issue  against  the  goods  and  chattels  of  all  the 
persons  against  whom  it  is  granted;  and  for 
want  of  sufficient  goods  of  such  persons,  their 
bodies  are  to  be  taken. 

Here  are  new  powers  and  new  modes  of  pro- 
ceeding, applicable  to  the  courts  of  common 
law,  and  contrary  to  the  express  forms  and  di- 
rections given  to  the  justices'  courts,  and  in 
which  no  mention  is  made  of  them.  The 
court  are  therefore  of  opinion  that,  according 
to  the  settled  rules  of  interpretation,  justices 
of  the  peace  have  no  jurisdiction  in  the  case 
of  joint  debtors,  unless  both  are  duly  served 
with  process,  and  that  therefore  the  judgment 
in  this  case  must  be  reversed. 

Judgment  reversed.1 

Approved— 17  Barb.,  508. 

Cited  in— 19  Johns.,  35 ;  3  Wend.,  268 ;  1  Denio,  159 ;  55 
N.  Y.,6;  56  Barb.,  519;  9  How,  Pr.,  250;  22  How,  JPr., 
364 ;  1  Blatchf .,  99. 


*KEATING  t>.  PRICE. 


P22 


Evidence — Parol  Agreement — Performance. 

Evidence  of  a  parol  agreement  to  enlarge  the  time 
of  performance  of  a  written  contract,  previously 
made,  is  admissible. 

THIS  was  an  action  on  the  case  founded  on 
a  special  agreement.     The  plea  was  the 
general  issue,  with  a  notice  from  the  defend- 
ant that  he  would  insist  on  some  special  matters 
in  his  defence,  which,  with  reference  to  the 

1. — By  the  18th  section  of  the  revised  Act,  passed 
the  7th  April,  1801  (LawsN.  Y.  vol.1,  p.  500),  justices 
are  now  empowered  t/>  proceed  against  joint  debtors, 
where  some  of  them  are  not  served  with  process, 
or  brought  into  court,  in  the  same  manner  as  is 
prescribed  in  the  13th  section  of  the  act  for  the 
amendment  of  the  law. 


NOTE.—  Wriit en  contract,  extension  of  time  of  per- 
formance 1>y  parol,  place  of  performance. 

The  time  of  performance  of  a  simple  written  con- 
tract can  be  extended  by  subsequent  parol  agree- 
ment, and  evidence  of  such  extension  is  admissible. 
Jonf*  v.  Alley,  4  Greene  (la.),  181 ;  Cox  v.  Carroll,  6 
la.,  350;  Barker  v.  T.  &  R.  K.  R.  Co.,  27  Vt.,  706; 
Fleming  v.  Gilbert,  3  Johns.,  520  (528);  Blood  v. 
Goodrich,  9  Wend.,  68 ;  Clark  v.  Dales,  20  Barb.,  42 ; 
Solomon  v.  Jones,  3  Brev.  (S.  C.),  54 ;  but  see  Doar 
v.  Gibbes,  1  Bailey  Ch.  (S.  C.),  371. 

The  same  is  true  of  contract  under  seal.  Esmond 
v.  Van  Beoachoten,  12  Johns.,  366,  Flyn  v.  McKeon, 
6  Duer,  203;  Meehan  v.  Williams,  2  Daly,  367;  S.  C., 
36  How.  Pr.,  73;  Stryker  v.  Vanderbilt,  1  Dutcher 
(25  N.  J.  L.),  482. 

See  Haynes  v.  Fuller,  40  Me.,  162 ;  Chapman  v.  Mc- 
Grew.  20  111.,  101. 

New  consideration  for  such  subsequent  parol 
agrr-ement  is  unnecessary.  Cox  v.  Bennet,  1  Green 
(N.  J.  L.).  165;  Clark  v.  Dales,  30  Barb.,  42. 

In  Thrall  v.  Mead  (40  Vt.,  540)  such  agreement, 
made  without  consideration.after  debt  became;  due, 
w:is  hc'ld  to  be  void;  contra  of  agreement  made  be- 
fore debt  became  due. 

Kxtension  of  time  for  performance  does  not  de- 
prive of  right  to  insist  on  liquidated  damages.  Es- 
mond v.  Van  Benschoten,  12  Barb.,  366 ;  Hasbrouek 
v.  Tappen,  15  Johns.,  200. 

Time,  in  a  written  contract,  cannot  be  made  easen- 

220 


tial  by  parol  agreement.  Jones  v.  Alley,  4  Greene 
(la.),  181. 

Time  for  performance  of  written  contract  within 
statute  of  frauds  cannot  be  extended  by  parol. 
Hasbrouck  v.  Tappen,  15  Johns.,  200;  Blood  v. 
Goodrich,  9  Wend.,  68;  and  see  Doar  v.  Gibbes 
above  cited.  Contra,  Cummings  v.  Arnold,  3  Met., 
(Mass.)  486;  Stearna  v.  Hall,  9  Cush..  31. 

Written  contract  for  sale  of  goods,  silent  as  to 
time  from  which  warehouse  rent  should  be  allowed. 
Held,  that  parol  evidence  admissible  as  to  general 
custom,  bvit  not  to  show  parol  agreement  between 
parties.  Fawkes  v.  Lamb.,  8  Jur.  N.  S.,  385 ;  31  L.  J. 
N.  S.  (Q.  B.),  98;  10  W.  R.,  348.  Place  of  perform- 
ance, as  well  as  time,  of  written  contract  may  be 
varied,  or,  if  left  indefinite,  be  fixed,  by  subsequent 
parol  agreement.  Mnsselman  v.  Stoner,  31  Pa.  St., 
265;  Langford  v.  Cummings,  4  Ala.,  40;  Cox  v.  Ben- 
net,  1  Green  (N.  J.  L.),  165;  Franchot  v.  Leach,  5 
Cowen,  506 ;  Esmond  v.  Van  Benschoten,  12  Barb., 
366. 

Contra  Handley  v.  Moorman,  4  Bibb,  Ky.  1. 

Variation  of  written  contract  by  parol  reduces 
the  whole  matter  to  the  level  of  a  parol  contract. 
Boyd  v.  Camp.,  31  Mo.,  163;  Vicary  v.  Moore,  2 
Watts  (Pa.),  451;  Dana  v.  Hancock,  30  Vt.,  616; 
Briggs  v.  Vt.  Central  R.  R.  Co.,  31  Vt.,  211 ;  Barker  v. 
T.  &  R.  R.  R.  Co.,  27  Vt.,  766. 

JOHNSON'S  CASES,  1. 


1799 


COVENHOVEN    V.    SEAMAN   ET   AL. 


22 


point  decided  by  the  court,  it  will  be  unneces- 
sary to  state. 

On  the  trial  before  Lansing,  Chief  Justice,  at 
the  last  Rensselaer  circuit,  the  plaintiff  proved 
a  written  agreement,  as  set  forth  in  the  dec- 
laration, by  which  the  defendant  promised  to 
deliver  to  the  plaintiff,  at  the  city  of  Albany, 
fifty  thousand  pipe  staves,  at  a  stipulated  price, 
on  or  before  the  1st  day  of  May,  1796. 

On  the  part  of  the  defendant,  it  was,  among 
other  things,  proved,  by  one  R.  Wait,  that  in 
the  month  of  January,  1797,  he  had  a  conver- 
sation with  the  plaintiff,  who  informed  him 
that  he,  the  plaintiff,  had  made  the  contract 
with  the  defendant  for  the  delivery  of  the 
staves,  as  above  mentioned,  but  that  he  had 
agreed  to  extend  the  time  for  delivering  them 
until  the  next  spring. 

A  verdict  was  taken  for  the  plaintiff  by  con- 
sent, subject  to  the  opinion  of  this  court  on 
several  points,  and  among  others,  whether  the 
time  for  performing  the  contract  could  be  ex- 
tended, by  a  subsequent  agreement  between 
the  parties,  and  whether  Wait's  testimony  could 
be  received  to  prove  the  declaration  of  the 
plaintiff  to  that  effect.  If  so,  it  was  agreed 
that  a  nonsuit  should  be  entered. 

Mr.  Burr  for  the  plaintiff. 

Mr.  Woodworth  for  the  defendant. 

Per  Curiam.  This  being,  originally,  a  sim- 
ple contract,  we  are  of  opinion  that  it  was 
competent  for  the  parties,  by  parol  agreement, 
to  enlarge  the  time  of  performing  it,  and  that 
Wait's  testimony,  to  prove  the  plaintiff's  dec- 
laration to  that  effect,  was  properly  received. 
An  extension  of  the  time  may  often  be  essential 
23*]  to  the  performance  of  executoiy  *con- 
tracts,  and  there  can  be  no  reason  why  a  subse- 
quent agreement  for  that  purpose  should  not 
be  valid.  Let  a  nonsuit  be  accordingly  entered. 

Judgment  of  nonsuit. 

Cited  in— 3  Johns.,  531 :  8  Johns.,  193 ;  19  Johns.,  242 : 
5  Cow.,  498 ;  7  Cow.,  50 ;  1  Wend.,  318 ;  2  Wend.,  404 ;  6 
Wend.,  292,  296 ;  9  Wend.,  79 :  30  X.  Y.,  307 ;  45  N.  Y., 
59 ;  67  N.  Y.,  481 ;  4  T.  &  C.,  Ill ;  1  Hun.,  553 ;  20  Barb., 
64 :  4  Duer,  292 ;  5  Duer,  206 ;  1  Hall,  361 ;  89  Penn.  St., 
133. 


COVENHOVEN  r.  SEAMAN  ET  AL. 

Recognizance — Prosecuting    Suit — Nonsuit  and 
Surrender. 

Citations— Carth.,  519;  Fitz.  Nat.  Brev.,  68. 

In  an  action  of  debt,  on  a  recognizance,  given  in 
an  action  tit,  homine  replegifindo,  that  the  plaintiff, 
who  sued  out  tlie  writ  of  replevin,  "  should  prove 
his  liberty,  &c.,  and  personally  appear  in  court,  and 
prosecute  his  suit  to  effect,"  and  the  plaintiff  suffer- 
ed a  judgment  of  nonsuit,  and  then  surrendered 
himself  to  the  defendant,  who  accepted  him,  and 
thf  bail  paid  the  costs  of  suit ;  it  was  held  that,  sub- 
mitting to  a  nonsuit  was  not  prosecuting1  the  suit  to 
effect,  and  that  the  recognizance  was  forfeited :  and 
that  the  acceptance  of  the  plaintiff,  by  the  defend- 
ant, in  the  action  of  replevin,  did  not  discharge  the 
right  of  action  on  the  recognizance  against  the  bail. 

THIS  was  an  action  of  debt  on  recognizance, 
by  which  the  defendants  bound  them- 
selves to  the  plaintiff  in  one  hundred  pounds, 
conditioned,  that  a  certain  Jacob  Jones,  whom 
the  plaintiff  claimed  and  detained  as  his  slave, 
and  who  had  sued  out  his  writ  of  homine  re- 
JOHNSON'S  CASES,  1. 


plegwndo,  should  "prove  his  liberty  in  the 
most  proper  and  expedient  way  and  means, 
and  should  personally  appear  in  this  court, 
and  his  suit,  in  that  behalf,  prosecute  with 
effect." 

The  plaintiff,  in  his  declaration,  averred 
that  the  said  Jacob  did  not  prove  his  liberty, 
nor  prosecute  his  suit  in  that  behalf  with  ef- 
fect, but  suffered  judgment  as  in  case  of  non- 
suit to  be  entered  against  him  for  not  proceed- 
ing to  trial. 

The  defendants  pleaded,  that  after  the  said 
judgment  of  nonsuit,  the  said  Jacob  did  appear 
in  this  court,  and  then,  on  the  prayer  of  the 
plaintiff,  surrendered  himself  to  him,  who  ac- 
cordingly accepted  him,  and  that  the  defend- 
ants have  since  paid  to  the  plaintiff  his  costs 
of  suit. 

To  this  plea  there  was  a  general  demurrer 
and  joinder. 

i     Mr.  Riggs  for  the  plaintiff. 
Mr.  Munro  for  the  defendant. 

Per  Curiam.  The  defendants,  by  their  re- 
cognizance, and  which  appears  to  have  been 
|  taken  agreeably  to  precedent,  undertook  for 
three  things  :  1st.  That  Jacob  Jones  should 
prove  his  liberty  in  the  most  proper  and  ex- 
pedient way.  2d.  That  he  should  personally 
appear  in  this  court  ;  and  3d.  That  he  should 
prosecute  his  suit  in  that  behalf  with  effect. 
Instead  of  a  compliance  with  these  stipulations, 
*it  appears  that  Jones  has  not  proved  [*24 
his  liberty,  nor  prosecuted  his  suit  with  effect, 
but  has  suffered  judgment  to  be  entered  against 
him,  as  in  case  of  nonsuit,  and  has,  at  the 
prayer  of  the  plaintiff,  surrendered  himself  to 
him. 

The  condition  of  the  recognizance  has  there- 
fore not  been  performed.  A  party  submitting 
to  a  nonsuit  does  not  prosecute  the  suit  to  ef- 
fect (Carth.,  519),  nor  if  the  writ  be  abated  for 
any  cause,  will  it  save  the  recognizance,  un- 
less another  writ  be  sued  out  with  due  dili- 
gence. The  case  given  in  Fitzherbert  (Nat. 
Brev.,  68),  is  very  analogous  to  the  present. 
"In  a  homine  replegiando,  the  plaintiff  was 
bound  by  recognizance,  in  a  certain  sum  of 
money  to  the  defendant's  use,  that  he  would 
sue  him  cum  effectu.  And  it  was  held  that,  if 
the  writ  abate  for  any  cause,  yet  he  ought  to 
sue  another  writ  for  the  taking,  &c.,  otherwise 
he  shall  forfeit  his  recognizance." 

The  only  question  that  can  be  raised  is, 
whether  the  surrender  to  the  plaintiff,  and  the 
acceptance  by  him,  amounted  to  a  discharge 
of  the  recognizance.  We  think  there  is  no 
ground  for  that  opinion.  There  were  good 
reasons  for  the  stipulations  in  the  recognizance, 
that  the  suit  should  be  prosecuted  to  effect, 
and  the  question  of  the  freedom  or  servitude 
of  Jones  be  judicially  determined.  It  would 
either  silence  the  unjust  pretensions  of  the 
plaintiff,  and  forever  deliver  the  man  from 
bondage,  or  it  would  quiet  him  in  the  lawful 
possession  of  his  property. 

We  are  therefore  of  opinion  that  the  plea  is 
bad,  and  that  judgment  must  be  rendered  for 
the  plaintiff. 

Judgment  for  the  plaintiff. 
Approved— 14  Johns.,  268. 


25 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


25*]        *TUTTLE  v.  MASTON. 

Justice's  Court — Jurisdictional  Limit — Claim. 

In  an  action  before  a  justice,  the  plaintiff's  dec- 
laration may  contain  several  counts,  for  several 
causes  of  action,  for  $35  each,  if  they  do  not  in  the 
whole  amount  to  more  than  the  sum  of  $300,  and 
the  plaintiff  concludes  with  stating  his  damages  at 
$25  only. 

IN  error  on  certwrari.  It  was  specially  as- 
signed and  relied  upon,  as  error  in  this 
case,  that  the  declaration  before  the  justice 
contained  two  counts,  in  which  the  plaintiff 
below  stated  two  several  causes  of  action,  on 
different  days,  and  each  of  them  to  the  value 
of  £10,  and  it  was  contended,  that  as  the  sums 
demanded  in  the  two  counts  exceeded  the 
value  of  £10,  the  justice  had  no  jurisdiction, 
it  being  limited  in  amount  to  that  sum. 

Per  Curiam.  The  plaintiff  below  concluded, 
by  demanding  the  sum  of  £10  only.  In  gen- 
eral, when  the  action  sounds  in  damages,  the 
sums  alleged  in  the  different  counts  of  the  dec- 
laration are  not  material,  and  may  be  arbitra- 
ry. Notwithstanding  the  limitation  in  a  jus- 
tice's court,  there  can  be  no  error,  if  the  dam- 
ages in  the  aggregate,  do  not  exceed  the  sum 
of  £80,  to  which  the  jurisdiction  of  that  court 
extends,  provided  the  balance  claimed  be  £10, 
or  under.  We  are  therefore  of  opinion  that 
the  exception  is  not  well  taken. 

Judgment  affirmed. 
Cited  in— 12  Johns.,  435.    See  Post,  333. 


DOE  v.  ROE. 

Divorce — Adultery — Confession  of  Wife  cor- 
roborated. 

On  a  feigned  issue  to  try  the  fact  of  adultery,  it 
was  held  that  the  confessions  of  the  wife,  connected 
with  other  proofs,  were  admissible  in  evidence. 
Such  confessions,  however,  if  made  by  collusion,  or 
with  a  fraudulent  intent,  are  entitled  to  no  weight. 

THIS  was  a  feigned  issue  from  the  Court  of 
Chancery.  One  P.  S.  filed  his  bill  in 
that  court,  against  Catharine,  his  wife,  to  ob- 
tain a  divorce  for  adultery,  pursuant  to  the 
statute  of  the  30th  of  March,  1797.  The  fact 
being  denied  by  her  answer,  the  Chancellor 
directed  it  to  be  tried  on  this  issue. 


On  the  trial  before  Mr.  Justice  Kent,  at  the 
last  August  sittings  in  New  York,  evidence 
was  given,  among  other  things,  of  the  con- 
fessions of  the  wife,  to  prove  her  guilt,  and  a 
verdict  was  found  for  the  plaintiff. 

*It  was  now  moved  to  set  aside  this  [*26 
verdict,  on  the  ground  that  the  confessions  of 
the  wife  were  incompetent  evidence,  and,  by 
consent  of  parties,  the  question  was  submitted 
to  the  opinion  of  the  court. 

Mr.  Riggs  for  the  plaintiff. 
Mr.  Jones  for  the  defendant. 


RADCMPF,  J.  The  confessions  of  the  wife, 
when  connected  with  other  proof,  were,  in  the 
first  instance,  admissible.  But  if  it  had  ap- 
peared that  such  confessions  were  made  with 
a  fraudulent  design,  or  by  collusion  with  the 
husband,  in  order  to  obtain  a  divorce,  their 
effect  would  be  destroyed.  No  circumstances 
appear  in  this  case  to  induce  that  belief.  I 
therefore  think  that  the  evidence  was  properly 
admitted,  and  that  the  verdict  ought  not  to  be 
disturbed. 

KENT,  J.,  and  BENSON,  J.,  concurred  in  this 
opinion. 

LEWIS,  J.  The  confessions  of  the  wife,  in 
my  opinion,  ought  not  to  have  been  admitted. 
It  was  clearly  contrary  to  the  spirit  of  the 
statute,  which  requires  proof  of  incontinence, 
where  the  party  who  is  defendant  in  equity 
does  not  deny  the  allegations  of  the  complain- 
ant's bill,  or  where,  according  to  the  course  of 
that  court,  the  bill  ought  to  be  taken  pro  con- 
fesso.  This  manifests  an  intention  in  the  Leg- 
islature to  prevent  collusion,  which  cannot  be 
effected,  if  a  jury  be  permitted  to  be  influ- 
enced, as  in  ordinary  cases,  by  the  confessions 
of  the  parties. 

LANSING,  Ch.  J.  I  am  also  of  opinion  that 
the  confessions  of  the  wife  ought  not  to  have 
been  admitted;  and  as  it  does  not  judicially 
appear  who  are  the  real  parties,  we  may  avail 
ourselves  of  the  circumstance  that  we  are  de- 
ciding between  fictitious  parties,  to  exclude 
these  confessions,  by  which  we  shall  prevent 
collusion,  and  thereby  promote  the  object  of 
the  statute. 

Motion  denied. 


Cited  in  1  Johns.  Ch.,  198 ;  12  Barb.,  388 ;  62  Barb., 
142. 


NOTE.— Action  fnr  divorce  on  the  yrmmd  of  a&ui- 
tery,  confession  of  defendant,  admissibility  and 
effect. 

Courts  have  varied  greatly  in  their  treatment  of 
evidence  of  such  confessions.  In  some  cases  it  has 
been  rejected  entirely.  Hansley  v.  Hansley,  10  Ired., 
N.  C.,  506,  and  see  Edwards  v.  Edwards.,  3  Pitts.  (Pa.), 
333,  and  Bette  v.  Betts,  1  Johns.  Ch.,  197. 

The  weight  of  authority,  however,  makes  such 
evidence  admissible,  but  not  alone  sufficient  ground 
for  a  decree.    Baker  v.  Baker.  13  Cal.,  87 ;  McCulloch 
v.  McCulloch,  8  Blackf.  (Ind.),  60;  Holland  v.  Hol- 
land, 2  Mass.,  154;   Baxter  v.  Baxter,  1  Mass.,  146;  j 
Armstrong  v.  Armstrong,  32  Miss.,  279 ;  Washburu  | 
v.  Washburn,  5  N.  H..  l95;Matchin  v.  Matchin,  6 
Pa.  St.,  332;  White  v.  White,  45  N.  H.,  121;  Burgess 

228 


v.  Burgess,  47  N.  H.,  395;  Sheffield  v.  Sheffield,- 3 
Tex.,  79 ;  Lyon  v.  Lyon,  62  Barb.,  138 ;  Betts  v.  Betts, 
1  Johns.  Ch.,  197.  In  a  few  cases,  where  the  circum- 
stances entirely  exclude  the  idea  of  collusion,  clear 
and  satisfactory  evidence  of  confession  of  adultery 
by  the  defendant  has  been  deemed  sufficient  ground 
for  a  decree.  Vance  v.  Vance,  8  Green  1.  (Me.),  132 ; 
Billings  v.  Billings,  11  Pick.,  461;  Lyon  v.  Lyon.  62 
Barb.,  138.  In  general  it  may  be  said  that  the  value 
of  such  confessions  depends  too  much  upon  the  pe- 
culiar circumstances  of  each  case  to  admit  of  laying 
down  any  satisfactory  general  rule.  Many  ot  the 
States  have  statutory  provisions  on  the  subject,  a 
recital  of  which  would  be  impossible  here.  Compare 
also  Abbott's  Trial  Evidence,  page  747  ;  Bishop  on 
Marriage  and  Divorce,  Vol.  2,  Paragraph,  240  etseq. 

JOHNSON'S  CASES,  1. 


1799 


VREDENBERG  v.  HALLETT  AND  BOWNE. 


27*]  *VREDENBERG 

HALLETT  AND  BOWNE. 

Interest — Delay  in  Judgment. 

Where  the  cause  of  action  is  such  as  to  carry  in- 
terest, and  judgment  is  delayed  after  verdict,  the 
plaintiff  is  entitled  to  interest  on  the  amount  of  the 
verdict,  to  the  time  of  the  taxation  of  costs,  after 
judgment;  and  the  interest  is  to  be  taxed  with  the 
costs,  de  incremento. 

rPHE  plaintiff  obtained  a  verdict  some  time 
JL  since,  on  which  judgment  was  not  rendered 
until  this  term.  The  action  was  on  a  policy 
of  insurance,  upon  which  the  plaintiff  was  en- 
titled to  interest  on  the  amount  of  the  loss  sus- 
tained, from  the  time  it  ought  to  have  been 
paid.  The  interest  was  accordingly  included 
in  the  sum  found  by  the  jury,  and  calculated 
by  them,  agreeably  to  the  practice  of  the 
court,  down  to  the  term  subsequent  to  the 
verdict.  After  the  trial,  a  case  was  made  for 
the  opinion  of  the  court,  which  was  delayed 
for  argument,  and  was  not  decided  until  the 
present  term. 

Per  Curiam.  The  plaintiff  must  be  allowed 
the  interest  on  the  amount  of  the  verdict,  un- 
til the  time  of  taxing  the  costs  in  this  action, 
and  the  same  must  be  taxed,  together  with  the 
costs. 

In  all  actions  founded  on  contracts  carrying 
interest,  and  delayed  under  similar  circum- 
stances, the  like  interest  may,  in  like  manner, 
be  taxed.1 

Cited  in— 19  Wend.,  101 ;  3  Hill,  431  (n) ;  2  Denio,  190 ; 
12  Abb.  N.  S.,  384. 


CATHCART  v.  CANNON,  Manucaptor,  &c. 

Exonereter — Principal  in  State  Prison  for  Life. 

Bail  are  entitled  to  an  exoneretur  where  the  prin- 
cipal is  committed  to  prison  on  a  charge  of  felony. 

"DEFORE  the  return  of  the  capias  issued 
.D  against  the  defendant,  as  bail,  application 
was  made  to  a  judge,  after  April  Term,  1798, 
for  a  committitur  of  the  principal,  who  was 
j  confined  in  prison  in  Herkimer  County  on  a 
charge  of  felony,  which  was  refused.  In  Sep- 
tember following,  the  principal  was  convicted 
and  sentenced  to  the  State  prison  for  life. 

A  rule  to  show  cause  why  an  exoneretur 
should  not  be  entered,  was  afterwards  ob- 
tained. 

Per  Curiam.  It  appears  that  the  defendant 
made  a  bona  fide,  attempt  to  surrender  the  prin- 
cipal, before  the  return  of  the  capias,  which 
was  frustrated.  The  principal  was  afterwards 
imprisoned  for  life,  and  had  the  surrender 
been  completed,  it  could  not  have  benefited 
the  plaintiff.  The  rule  must  be  made  abso- 
lute, on  payment  of  costs. 

Rule  granted. 

Cited  (— )  in  6  Cow.,  599 ;  38  N.  J.  Law,  248. 


PALMER,  widow,  &c.,  Demandant, 

v. 
HORTON,    Tenant. 

Dower — Attainder  of  Husband. 

The  wife  of  a  person  attainted,  under  the  Act  of 
the  22d  October,  1779,  is  entitled  to  dower  out  of  the 
estate  of  her  husband  which  has  become  forfeited. 

IN  dower.  Palmer,  the  late  husband  of  the 
demandant,  was  attainted,  in  pursuance  of 
the  Act  of  the  Legislature  of  this  State,  en- 
titled, "An  Act  for  the  forfeiture  and  sale  of 
the  estates  of  persons  who  have  adhered  to  the 
enemies  of  this  State,"  passed  the22d  October, 
1779,  and  his  estate  was  thereby  forfeited  to 
the  people  of  this  State.  The  demandant,  in 
this  case,  claimed  to  be  endowed  of  the 
premises  in  question,  which  are  a  part  of  the 
real  estate  so  forfeited. 

Mr.  Ogden  for  the  demandant. 
Mr.  Hoffman  for  the  tenant. 

The  Court,  without  hearing  an  argument, 
gave  judgment  for  the  demandant,  and  said 
28*]  they  had  frequently  decided  *in  this 
court  that  the  forfeiture  of  the  estate  of  the 
husband,  in  pursuance  of  the  act  above  men- 
tioned, did  not  forfeit  the  wife's  right  of 
dower. 

Judgment  for  demandant. 
Cited  in  8  Johns.,  105 ;  19  Wend.,  101. 
1.  See  People  v.  Gaine,  1  Johnson,  343,  8.  P. 
JOHNSON'S  CASES,  1. 


M'NEALY  v.  MORISON. 

Retainer — Notice  from  two  Attorneys  surprise. 

If  the  plaintiff's  attorney  receives  notice  of  a  re- 
tainer from  two  attorneys,  for  the  defendant,  he 
ought  to  inform  the  second  attorney  of  the  first  no- 
tise,  to  prevent  surprise. 

rpHE  plaintiff's  attorney  received  notice  from 
_L  an  attorney  for  the  defendant,  in  July; 
and  in  September  following,  received  the  like 
notice  from  another  attorney;  the  copy  of  the 
declaration  was  served  on  the  first  attorney, 
but  not  on  the  second,  and  a  default  entered 
for  want  of  a  plea,  which  the  second  attorney 
now  moved  to  set  aside.  . 

Mr.  Sleight  for  plaintiff. 
Mr.  Bowman  for  defendant. 

Per  Curiam.  It  was  incumbent  on  the 
plaintiff's  attorney  to  inform  the  attorney  from 
whom  he  received  the  *second  notice  of  [*2O 
retainer,  that  he  had  already  a  similar  notice 
from  another  attorney,  so  as  to  prevent  a  sur- 
prise. Let  the  default  be  set  aside,  with  costs. 

Rule  granted. 


HAMILTON  v.  HOLCOMB  ET  AL. 

Amendment  of  Record — Suggestion  of  Death  of 
Party. 

On  error  coram  vobis,  amendment  of  the  record 
allowed  by  entering  a  suggestion  of  the  death  of 
one  of  the  defendants,  pending  the  original  action. 

Citation— 5  Term  R.,  577. 

A  FTER  imparlance,  and  before  judgment, 
J\.  S.,  one  of  the  defendants  died;  judgment 

229 


29 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


was  afterwards  entered  up  against  both  de- 
fendants, and  an  execution  issued  against 
the  survivor,  without  any  suggestion  on  the 
roll  of  the  death  of  the  other  defendant. 
After  error,  coram  vobis,  a  rule  was  obtained 
to  show  cause  why  the  record  should  not  be 
amended  by  suggesting  the  death  of  S. 

Mr.  Whiting  showed  cause.and  contended  that 
the  application  was  too  late,  after  the  proceed- 
ings were  no  longer  on  paper.  He  cited  2 
Viner,  Amend.  (H.,  sec.  17,  G.  2.) 

Mr.  Woods,  contra,  cited  Newnham  v.  Law  (5 
Term,  577). 

Per  Curiam.  The  case  of  Newnham  v.  Law, 
which  has  been  cited,  is  in  point.  Courts  of 
late  have  adopted  the  practice  of  granting  all 
amendments  to  which  the  party  would  have 
been  entitled,  as  of  course,  provided  it  be  of  no 
prejudice  to  the  other  party.  The  rule  must 
be  made  absolute  on  payment  of  the  costs 
of  this  motion,  and  of  the  writ  of  error. 

Rule  granted. 


WILD  *.  GILLET. 


Nonsuit — Trial  not  had — Stipulation — Laches*. 

On  motion  for  judgment,  as  in  case  of  nonsuit  for 
not  proceeding  to  trial,  the  rule  will  not  be  granted, 
if  the  plaintiff  stipulate  to  bring  the  cause  to  trial  at 
the  next  circuit.  Such  motion  must  be  made  the 
next  term  after  the  default,  or  the  plaintiff  need  not 
stipulate. 

A  MOTION  was  made  for  judgment,  as  in 
li.  case  of  nonsuit,  on  the  usual  affidavit. 

Per  Curiam.  A  defendant  is  not  entitled  to 
judgment,  as  in  case  of  nonsuit,  for  the  first 
default,  provided  the  plaintiff  will  stipulate 
to  bring  the  cause  to  trial  at  the  next  circuit; 
but  if  the  plaintiff  can  sufficiently  account  for 
the  default,  he  will  not  be  required  to  stipu- 
late. Ip  all  cases,  the  defendant  must  make 
this  motion  the  next  term  after  the  default,  or 
he  will  be  deemed  to  have  waived  his  claim  to 
a  stipulation  on  the  part  of  the  plaintiff. 


CLASON  &  STANLEY  v.  CHURCH. 

Consolidation — Imparlance —  Consent. 

Where  there  are  several  actions  on  one  policy  of 
insurance,  the  court  will  grant  imparlances  in  all 
but  one,  until  the  plaintiffs  consent  to  enter  into 
the  consolidation  rule,  which  is  the  same  as  the 
English  rule. 

rPHERE  were  eighteen  different  suits  on  one 
JL  policy  of  insurance.  In  July  Term  last, 
the  plaintiff  having  refused  to  enter  into  the 
consolidation  rule,  the  court  granted  impar- 
lances in  all  the  causes  but  one,  and  did  the  same 
in  October  Term;  and  Mr.  Boyd,  for  the  defend- 
ant, now  moved  for  further  imparlances. 

Mr.  Riggs,  contra,  produced  an  agreement 
which  had  been  offered  to  the  defendant,  and 
refused  by  him,  which  he  contended  would 
have  the  same  effect  as  a  consolidation  rule. 

3O*]  *Per  Curiam.  The  court  adopt  the 
English  consolidation  rule,  and  will  not  per- 
mit the  plaintiffs  to  prescribe  any  other. 

Rule  granted. 


FITZROY  «.  CARD  ET  AL. 

Special  Motion — Affidavit — Service. 

A  copy  of  the  affidavit  on  which  a  special  motion 
is  founded,  must  be  served  on  the  opposite  party. 

A  MOTION  was  made  for  judgment,  as  in 
IJL  case  of  nonsuit,  for  not  proceeding  to 
trial,  on  the  usual  affidavit;  but  no  copy  had 
been  served  on  the  opposite  party. 

Per  Curiam.  It  is  a  rule  of  practice,  with- 
out exception,  that  whenever  a  special  motion 
is  to  be  made,  founded  on  an  affidavit,  a  copy 
of  such  affidavit  must  be  regularly  served  on 
the  opposite  party. 

Rule  refused. 
280 


BATES  *.  WILLIAMS. 

Imprisoned  Debtor — Service  of  Petition. 

Service  of  notice  of  petition,  under  the  act  for  the 
relief  of  debtors,  &c. 

ON  proceedings  under  the  act  for  the  relief 
of  debtors,  with  respect  to  the  imprison- 
ment of  their  persons. 

The  court  said,  that  where  the  plaintiff,  the 
creditor,  resided  out  of  the  State,  service  of  a 
notice  of  the  petition  on  the  attorney  in  the 
suit  was  sufficient. 


*BIRD,  assignee  of  the  Sheriff  of,  &c.,    [*31 

v. 
MABBETT  ET  AL. 

Equity — Bail-bond — Forfeiture. 

The  court  will  not  exercise  its  equity  power  in 
granting  relief  on  bail  bonds  until  after  the  condi- 
tion is  forfeited. 

THE  original  suit  was  against  five  defend- 
ants, four  of  whom  were  arrested,  and 
the  sheriff  returned,  as  to  the  other,  non  ext 
inventus;  but,  by  mistake,  took  a  bail-bond 
for  the  appearance  of  all  the  defendants.  The 
four  defendants  who  were  taken,  put  in  special 
bail,  to  which  there  was  no  exception.  A  suit 
was  afterwards  brought  on  the  bail-bond 
against  all. 

Mr.  Wood-worth, for  the :  defendant,  now  moved 
to  set  aside  the  proceedings  for  irregularity. 

Mr.  Bird,  contra.  This  is  an  application  to  the 
equity  powers  of  the  court,  which  can  never 
be  exercised  until  after  a  forfeiture  of  the 
condition  of  the  bond.  The  defendants  must 
resort  to  their  plea. 

Per  Curiam.  The  court  will  not  exercise  its 
equitable  power  in  granting  relief  until  after  a 
forfeiture  of  the  condition  of  the  bail-bond. 
The  defendants  must  rely  on  their  plea  of 
comperuit  ad  diem. 

Rule  refused. 

JOHNSON'S  CASES,  1. 


1799 


PHELPS  v.  BALL. 


31 


PHELPS  v.  BALL. 

Amendment — Fi.  fa. 

A  fieri  facias  was  allowed  to  be  amended  after  it 
had  been  returned  satisfied. 

A  MOTION  was  made  to  amend  the  fieri 
JjL  facias  in  this  cause,  after  it  had  been  re- 
turned satisfied,  by  correcting  two  mistakes 
which  appeared  in  the  writ.  Sir  T.  Jones,  41, 
was  cited. 

Per  Curiam.     Take  your  rule. 


HERRING  v.  TYLEE. 

Amendment — Interrogatories — Ambigiiity. 
Practice  on  attachment  against  a  sheriff. 

n^HE  sheriff  being  brought  up  on  an  attach- 
-L  ment,  the  court  said  that  the  plaintiff 
must  file  his  interrogatories  in  four  days;  and 
the  sheriff  was  ordered  to  enter  into  recogni- 
zance of  one  hundred  dollars,  to  appear  de  die 
452*]  in  diem.  *The  clerk  was  directed  to 
take  the  answers  to  the  interrogatories  filed, 
and  report  the  same  to  the  court.  After  the 
sheriff  had  answered,  a  motion  was  made  to 
iimend  the  interrogatories;  and  the  court  said, 
as  the  amendment  did  not  relate  to  any  new 
JOHNSON'S  CASES,  1. 


matter,  but  only  to  explain  an  ambiguity,  and 
obtain  a  more  full  answer  to  the  matters 
already  stated,  the  amendment  might  be  al- 
lowed. 


IN  THE  CASE  OF  T.  BAILEY. 

Costs — Suits  by  and  against  Attorneys. 
Costs  in  suits  by  or  against  attorneys. 

IF  an  attorney  sues  by  attachment  of  privi- 
lege, for  a  debt  less  than  one  hundred 
pounds,  he  can  recover  no  more  costs  than  in 
the  Court  of  Common  Pleas;  but  if  the  attor- 
ney is  sued  in  this  court  for  less  than  one  hun- 
dred pounds,  the  plaintiff  may  recover  full 
costs  against  him. 

Cited  in  1  Johns.,  537. 


COOPER  v.  ASTOR. 

Costs —  Taxation — Appearance. 
Taxation  of  costs. 

rPHE  court  decided  that  if  costs  be  not 
-L  taxed  on  the  day  at  which  the  notice  is 
given  for  that  purpose,  and  the  opposite  party 
does  not  appear,  the  taxation  may  be  made  on 
a  subsequent  day,  without  further  notice. 

231 


CASES   ADJUDGED 


SUPREME  COURT  OF  JUDICATURE 

OF  THE 

STATE   OF   NEW   YORK, 

IN 
APRIL    TKUM,    IN"    THK    YKAR    1799. 


33*]  *  JACK  SON,  ex  dem.  VAN  ALEN, 

v. 
ROGERS. 

1.  Seal  Property— Parol  Gift  of  Land.  2.  Dis- 
seisin— By  Election.  3.  Id. — Donee  by  Parol 
— Ejectment.  4.  Id. — By  Election — Dense. 

A  parol  gift  of  land  creates  only  a  tenancy  at 
will.  If  the  donee  lease  the  land,  and  the  donor 
merely  permits  the  lessee  to  build,  and  enjoy  the 
term,  the  lease  cannot  operate  as  a  disseisin,  nor 
prevent  the  donor  from  devising1  the  land,  so  that 
the  devisee  may  maintain  an  action  of  ejectment, 
without  giving  notice  to  quit. 

Citation— Cowp.,  482;  1  Burn.  &  E.,  94;  7  Burn. 
&  E.,  85;  Cro.  Eliz.,  156;  Co.  Litt.,  57  ft;  2  Leo.,  45; 
1  Burr.,  79;  1  Salk.,  246;  1  Burr.,  110;  Saunders  on 
Uses,  240,  241,252;  Palm.,  205:  Cro.  Jac.,  659;  Cro. 
Car.,  302;  Butler's  Co.  Litt.,  330  b.  (n.),  285;  Harg.  Co. 
Litt.,  57  a  (n)379;  1  Burr.,  112,  113;  1  Cowp.,  693;  1 
Burr.,  Ill ;  1  Burr.,  60.  2  Black.  Rep.,  1173;  2  Black. 
Rep.,  1224;  1  Term  R.,  53,  159;  4  Term  R.,  680.  2 
Leo.,  97 ;  Palm.,  205 ;  Cro.  Eliz.,  238 ;  3  Leo.,  233. 

THIS  was  an  action  of  ejectment,  brought 
to  recover  a  lot  of  land  and  a  storehouse, 
situate  in  the  town  of  Kinderhook,  in  the 
County  of  Columbia.  The  cause  was  tried 
before  Mr.  Justice  Lewis,  at  the  circuit  in  that 
county,  when  a  verdict  was  found  for  the 
plaintiff.  From  the  report  of  the  judge, 
which  contained  all  the  evidence  in  the  cause, 
the  following  may  be  stated,  as  the  most  ma- 
terial facts  in  the  case: 

It  appeared  that  Lowrens  Van  Alen,  under 
whom  the  lessor  claimed,  had  been  in  posses- 


sion of  the  premises  in  question  for  thirty 
years,  and  upwards,  previous  to  his  death; 
that  a  daughter  of  Van  Alen  had  married  one 
John  C.  Holland;  that  Van  Alen  frequently 
declared  that  he  intended  to  leave  the  prem- 
ises to  his  daughter  after  his  death;  that  Hol- 
land often  applied  to  him  for  a  deed  *of  [*34 
the  premises,  which  was  refused,  probably  on 
account  of  Holland's  being  addicted  to  the  in- 
temperate use  of  liquor,  and  he  did  not  choose 
to  put  the  property  in  the  hands  of  Holland. 
At  length,  however,  he  said  to  Holland,  "Well, 
you  may  take  the  kraal  (meaning  the  prem- 
ises) and  I  will  deduct  £60  from  your  wife's 
portion,"  but  no  deed  or  writing  for  the  prem- 
ises was  executed  to  Holland  or  his  wife. 
This  offer  by  Van  Alen  was  made  before  the 
store  on  the  premises  was  built.  Shortly 
thereafter,  in  the  year  1785,  while  Van  Alen 
was  still  in  possession  of  the  premises,  having 
a  crop  growing  thereon,  Holland  made  a  lease 
of  the  premises  to  one  M'Mechan,  for  nine 
years,  in  consideration  of  which,  M'Mechan, 
among  other  things,  covenanted  to  erect  a 
storehouse  on  the  premises,  which  he  accord- 
ingly did.  Van  Alen  was  at  first  dissatisfied, 
when  he  heard  that  Holland  had  made  the 
lease;  but  he  afterwards  declared  himself 
satisfied,  saying  it  would  benefit  Holland's 
children. 

A  witness  on  the  part  of  the  plaintiff  proved 
that  before  the  date  of  the  above  lease, 
M'Mechan  informed  him  that  he  was  going  to 
take  a  lease  of  the  premises  from  Holland, 


NOTE.— Parol  gift  of  land. 

In  consideration  of  love  and  affection  and  of  ser- 
vices, plaintiff,  by  parol,  gave  a  farm  to  his  son. 
The  son  took  possession,  J>aid  taxes  and  occupied 
for  five  years  and  died.  The  plaintiff  had  always 
recognized  his  son  as  owner.  Held,  that  evidence 
of  the  above  facts  should  have  been  admitted  and 
would  have  entitled  the  defendant,  the  son's  widow, 
to  receive  a  conveyance  vesting  in  her  and  her 
child  the  farm,  according  to  their  respective  rights. 
McCray  v.  McCray,  30  Barb.,  633. 

To  constitute  a  valid  gift  of  real  estate  there  must 
be  a  present  intention  to  give,  and  an  actual  parting 
with  the  right  of  ownership.  A  parol  gift  is  not 
consistent  with  subsequent  acts  of  control  by  the 
donor.  Collins  v.  Collins,  2  Grant's  Cas.  (Pa.),  117. 

In  1843  a  son  took  possession  of  land  under  the 
following  writing  from  his  father :  "James,  I  expect 

JOHNSON'S  CASES,  1. 


to  marry  soon,  and  if  you  will  settle  on  the  Grayer 
farm  you  may  have  it.  Thos.  Ford."  James  took 
possession.  In  1857,  after  his  father's  death,  in  an 
action  for  partition,  the  above  was  held  a  valid  gift 
to  be  charged  to  him  as  an  advancement  under  the 
statute.  Ford  v.  Ellingword,  3  Met.  (Ky.),  359. 

Voluntary  conveyance  of  land  to  a  child  by  a 
debtor,  in  compliance  with  a  parol  promise  made 
when  unembarrassed,  held  invalid.  Rucker  v. 
Abell,  8  B.  Mon.  (Ky.),  566.  Every  parol  contract 
for  the  conveyance  of  land  is  within  the  statute  of 
frauds,  except  where  there  has  been  such  part  per- 
formance as  cannot  reasonably  be  compensated  in 
damages,  and  where  it  would  be  unjust  to  rescind 
the  same.  Mooi-e  v.  Small,  19  Pa.  St.,  461.  See  also 
Rhodes  v.  Rhodes,  3  Sand.  Ch.,  279,  and  Malins  v. 
Brown,  4  N.  Y.,  403. 

233 


34 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


and  erect  a  storehouse  upon  them;  upon  which 
the  witness  observed  that  the  land  did  not  be- 
long to  Holland,  but  to  the  old  gentleman 
(meaning  Van  Alen),  who,  he  did  not  believe, 
would  give  a  deed  for  it,  and  M'Mechan  re- 
plied that  it  was  all  in  the  same  family,  and 
that  Holhiud  must  make  good  his  damages  if 
lie  .should  sustain  any. 

After  the  first  lease  expired,  to  wit,  on  the 
25th  August,  1794,  Holland  made  a  second 
lease  of  the  premises  to  M'Mechan,  for  a 
further  term,  to  continue  until  the  1st  June, 
1796,  reserving  an  annual  rent  of  £30.  When 
Van  Alen  heard  of  the  second  lease,  he  was 
much  dissatisfied,  particularly  when  he  found 
that  the  rent  would  be  at  the  disposal  of  Hol- 
land, and  would  not  be  secured  to  his  children, 
and  frequently  talked  of  taking  the  property 
into  his  own  hands.  He  made  his  will  on  the 
19th  June,  1790,  and  thereby  devised  the 
i5o*]  premises  to  his  widow,  the  lessor  *of  the 
plaintiff,  during  her  widowhood,  with  re- 
mainder to  his  two  sons,  in  trust  for  his 
daughter,  the  Avife  of  Holland,  and  her  heirs, 
and  died  in  May,  1795. 

It  also  appeared  that  Holland,  on  the  1st 
October,  1790,  had  made  another  lease  of  part 
of  the  premises  to  one  Ely,  for  999  years,  re- 
serving an  annual  rent  of  $s.;  that  on  the  1st 
November,  1793,  Ely  made  a  sub-lease  of  the 
hay-scales,  parcel  of  the  premises,  to  Ludlow 
&  Spencer;  that  on  the  13th  September,  1794, 
M'Mechan  assigned  the  second  lease  made  to 
him  to  P.  Van  Schaick,  to  secure  the  repay- 
ment of  a  sum  of  money  advanced  by  him  for 
the  use  of  Holland;  that  on  the  15th" October, 

1794,  Holland   gave  a  written   permission  to 
the  defendant  and  C.  Silvester,  to  occupy  a 
barn  on  the  premises, which  had  been  before  oc- 
cupied by  M'Mechan,  until  the  1st  May,  1795, 
reserving  a  rent  of  32s. ;  and  on  the  22d  June, 

1 795,  he  gave  a  like  permission  to  the  defendant, 
to  occupy  a  part  of  the  same  barn,  for  the 
term  of  four  years,  reserving  an  annual  rent 
of  32*.     Holland  died  in  February,  1797,  and 
the  defendant  held  the  premises  under  M'Me- 
ohan.     The  demise  in  the  declaration  was  laid 
on  the  1st  June,  1795,  and  there  was  no  proof 
of  any  notice  to  the  defendant  to  quit. 

On  the  trial,  a  motion  for  a  nonsuit  was 
made  on  the  part  of  the  defendant,  on  two 
grounds:  1st.  That  there  was  not  sufficient 
evidence  of  a  possession  in  Van  Alen  for  twen- 
ty years  to  enable  the  plaintiff  to  recover  on 
the  strength  of  any  title  derived  from  him. 

2d.  That  Holland  and  the  defendant,  who 
claimed  under  him,  were  tenants  from  year  to 
year,  and  as  such,  entitled  to  notice  to  quit;  or 
Holland  was  a  disseisor,  and  the  devise  of  Van 
Alen  to  the  lessor  therefore  void,  and  so  the 
plaintiff  could  not  recover  in  this  action. 

This  motion  was  overruled,  and  the  judge 
submitted  it  to  the  jury  to  determine  whether 
Holland  had  any  interest  in  the  premises,  in- 
structing them  that  if  he  had,  it  could  not  exceed 
a  tenancy  at  will,  and  if  he  was  a  tenant  at 
will,  his  lease  for  years  to  M'Mechan  was  not 
JJ6*J  a  disseisin,  *but  at  the  election  of  Van 
Alen;  for  that  Van  Alen  might  consider  him 
as  his  agent  or  attorney,  or  might  elect  to  con- 
sider it  a  disseisin,  or  dispossession.  He  said 
that  there  was  evidence  of  Van  Alen's  having 
made  any  election  as  to  the  second  lease  to 
234 


M'Mechan,  except  what  might  be  inferred 
rfom  his  acquiescence  under  the  first,  and  his 
i  taking  no  measures  to  defeat  the  second,  and 
I  that,  as  far  as  the  lessor  of  the  plaintiff  was 
i  concerned,  she  had,  by  bringing  her  ejectment, 
elected  to  be  dispossessed;  that  if  they  should 
J  be  of  opinion  that  Holland  had  made  the  sec- 
i  oud  lease,  under  which  the  defendant  held, 
i  without  the  approbation  or  subsequent  ac- 
j  quiescence  of  Van  Alen,  the  plaintiff  ought  to 
j  recover.  The  jury  found  a  verdict  for  the 
:  plaintiff. 

A  motion  for  a  new  trial  was  made,  and 
;  argued  by  Menyrs.  Voslntrgh,  Spencer,  and  Bun-, 
\  for  the  plaintiff;  and  Mexsrs.  Hopkins,  E.  Will- 
\  iamts,  and  Van  Vechten,  for  the  defendant. 

KENT,  J.  On  the  argument  for  a  new  trial 
I  in  this  cause,  on  behalf  of  the  defendant,  it 
!  was  contended  that  the  lessor  of  the  plaintiff 
i  ought  to  recover.  1st.  Because  the  lease  from 
i  Holland  to  M'Mechan  amounted  to  a  disseisin 
'  of  Lawrens  I.  Van  Alen,  and  destroyed  his 
capacity  to  devise. 

2d.  That  the  second  lease  from  Holland  to 
•  M'Mechan  was  still  subsisting  at  the  com- 
I  meucement  of  the  suit,  and  was  a  legal  impedi- 
j  ment  to  the  recovery. 

3d.  That  the  defendant,  at  all  events,  was 
i  to  be  deemed  a  tenant  from  year  to  year,  and 
{  so  entitled  to  six  months'  notice  to  quit. 

To  constitute  an  actual  disseisin  or  one  in 
i  fact,  there  must  be  a  tortious  entry  and  an  ex- 
i  pulsion.  No  such  fact  appears,  or  was  pre- 
;  tended,  in  the  present  case,  nor  was  here  a  dis- 
I  seisin  admitted  by  election.  The  distinction 
I  between  a  disseisin  by  election,  as  contradis- 
!  tinguished  from  a  disseisin  in  fact,  was  taken 
!  for  the  benefit  of  the  owner  of  the  land,  and 
j  to  extend  to  him  the  easy  and  desirable  remedy 
by  assize,  instead  of  the  more  tedious  remedy 
;  by  a  writ  of  entry.  Whenever  an  act  is  done 
i  which  of  itself  works  an  actual  disseisin,  it  is 
i  still  taken  to  be  an  actual  *disseisin,  as  [*37 
if  a  tenant  for  years,  or  at  will,  should  eu- 
!  feoff  in  fee.  On  the  other  hand,  those  acts 
;  which  are  susceptible  of  being  made  disseisins 
:  by  election  are  no  disseisins  till  the  election  of 
j  the  party  makes  them  so,  as  if  a  tenant  at  will, 
i  instead  of  making  a  feoffment  in  fee,  should 
i  only  make  a  lease  for  years. 

No  such  election  was  made  in  the  present 
case,  and,  consequently,  there  was  no  disseisin. 
Making  a  devise  has  been  deemed  an  intima- 
tion of  an  election,  not  to  be  disseised  (Pouasly 
v.  Blfifkman,  Palm.,  205;  Cro.  Jac.,  659);  and 
if  Holland  was  tenant  at  will  (and  no  greater 
interest  can  be  allowed  to  have  been  in  him, 
because  no  greater  interest  can  be  created  by 
parol),  a  lease  for  years  by  him  is  no  disseisin 
unless  the  true  owner  elect  to  make  it  so,  nor 
does  it  destroy  his  capacity  to  devise.  (Blundeii 
v.  Eaugh,  Cro.  Car.,  302.) 

These  distinctions  between  a  disseisin  in 
fact  and  a  disseisin  by  election,  were  brought 
into  view,  and  enforced  in  the  very  distin- 
guished case  of  Atkym  v.  Horde  (1  Burr.,  60); 
and  they  have  been  historically  and  in- 
geniously illustrated  by  Mr.  Butler,  in  a  note 
to  his  edition  of  Coke  Litt.  (Butler's  Co.  Litt., 
330,  b,  No.  285.)  There  is  clearly  no  reason 
to  consider  Van  Alen  as  disseised,  in  the  pres- 
ent case,  and  incapable  to  devise;  I  shall  there- 
JOHNSON'S  CASES,  1. 


1799 


JACKSON,  EX  DEM.  VAN  ALEN,  v.  ROGERS. 


37 


fore  pass  this  point  without  further  remark,  j 
notwithstanding  the  counsel  for  the  defendant  i 
appeared  to  consider  it  as  strong  ground  in 
the  cause. 

In  respect  to  the  existence  and  force  of  the 
second  lease  from  Holland  to  M'Mechan,  I 
would  observe,  that  notwithstanding  the  gift 
of  the  premises  by  Lowrens  Van  Alen  to  Hol- 
land, the  latter  never  had  any  greater  interest 
in  them  than  an  estate  at  will,  because  Low- 
rens Van  Alen  made  no  alienation  by  writing, 
nor  did  he  make  any  parol  demise  of  them, 
' '  for  a  term  not  exceeding  three  years,  and 
reserving  a  rent  thereon."  Holland  was  con- 
sequently but  a  tenant  at  will  when  he  made 
the  leases  to  M'Mechan,  and  he  had  no  au- 
thority to  make  either  lease,  because  such  au- 
thority resides  not  in  a  tenant  at  will,  nor  can 
38*]  *a  parol  gift  of  land  in  fee  operate  as  an 
authority  to  make  leases,  since  the  statute  of 
frauds  declares  what  shall  be  the  effect  of 
such  a  parol  grant:  "It  shall  have  the  force 
and  effect  of  leases  or  estates  at  will  only,  and 
shall  not  have  any  other  or  greater  effect." 
Xor  do  I  regard  any  imitation  that  may  be 
given  by  the  case,  of  the  subsequent  assent  of 
Lowrens  Van  Alen,  to  either  of  the  leases,  be- 
cause it  is  a  settled  point  that  no  subsequent 
assent  will  make  valid  a  void  lease,  although 
subsequent  acts  may  operate  as  a  new  grant. 
(Cowp.,  482;  Doug.,  50.)  Both  the  leases  to 
M'Mechan  were  void,  because  made  by  a 
tenant  at  will,  who  has  no  capacity  to  grant, 
and  the  attempt  was  a  determination  of  the 
tenancy  at  will. 

3.  The  last  point  is,  whether  the  defendant 
was  entitled  to  notice  to  quit. 

Where  the  holding  is  not  for  a  determinate 
period,  but  from  the  reservation  of  an  annual 
rent,  or  from  other  circumstances,  it  can  be 
construed  into  a  holding  from  year  to  year, 
the  courts  have  adopted  the  rule  that  neither 
party  shall  determine  the  tenancy  without  pre- 
vious notice.  (2  Black.  Rep.,  1173.)  In  the 
present  case,  the  defendant  entered  under  a 
void  lease,  and  became  a  trespasser,  at  the 
election  of  Van  Alen.  No  subsequent  agree- 
ment was  made,  no  actual  rent  was  stipulated 
for,  between  him  and  Lowrens  Van  Alen; 
none  was  demanded  or  paid.  Lowrens  Van 
Alen  did  nothing  that  could  recognize  him  as 
a  tenant,  or  to  create  between  them  the  rela- 
tion of  landlord  and  tenant,  and,  consequent- 
ly, no  notice  to  quit  was  requisite. 

I  am  therefore  of  opinion  that  the  defend- 
ant take  nothing  by  his  motion. 

BENSON,  J.  From  the  report  of  the  judge 
on  the  trial,  I  deduce  the  following,  as  the 
facts  in  the  cause,  viz. :  That  Van  Alen,  be- 
ing seised  in  fee  of  a  lot  or  piece  of  land  at 
Kinderhook,  aliened  it  in  fee  to  his  son-in-law, 
Holland,  sometime  in  the  year  1785,  but  did 
not  at  any  time  execute  to  him  a  deed  or  writ- 
ing; for  it,  so  that  the  alienation  was  by  parol 
39*]  only;  that  Holland  thereupon  *made  a 
lease  of  that  parcel  of  it  which  constitutes  the  ! 
premises  in  question  in  the  present  suit,  to  | 
M'Mechan,  for  nine  years,  and  one  of  the  con- 
siderations in  the  lease  was,  that  he  was  to 
build  a  store  on  the  premises,  which,  at  the 
expiration  of  the  term,  was  to  be  for  the  bene- 
fit of  Holland  and  his  heirs.  That  M'Mechan  i 
JOHNSON'S  CASES,  1. 


entered,  accordingly,  and  became  possessed, 
and  built  the  store;  "that  on  the  25th  August, 
1794,  Holland  renewed  the  lease  to  M'Mechan 
to  the  1st  June,  1799,  on  an  annual  rent  of 
thirty  pounds;  that  the  premises,  from  the 
time  M'Mechan  entered,  in  1785,  have  been 
possessed  by  him,  and  the  defendant,  his 
assignee,  as  under  the  leases  made  by  Holland; 
that  Van  Alen,  by  his  will  of  the  19th  June, 
1790,  devised  his  real  estate  to  his  widow, 
lessor  of  the  plaintiff,  during  her  widowhood, 
remainder  to  trustees,  in  trust,  for  the  daughter, 
the  wife  of  Holland,  and  died  in  May,  1795, 
and  that  Holland  died  in  January,  1797.  The 
demise  is  laid  in  the  declaration  on  the  1st 
June,  1795. 

It  may  not  be  amiss  for  me  to  explain  how 
I  am  to  be  understood,  when  I  state  it  as  a 
fact  that  Van  Alen  aliened  in  fee  to  Holland. 
It  is  obviously  to  be  collected  from  the  proofs, 
that  Van  Alen  had  made  known  his  intention 
to  grive  the  lot  for  the  benefit  of  Holland's 
family;  it  is  most  probable,  however,  that  he 
at  first  intended  the  gift  shou-ld  be  by  will, 
and,  consequently,  to  wait  until  his  own  death, 
and  that  the  property  was  to  be  secured  in 
some  manner,  so  that  it  should  not  be  in  the 
power  of  Holland  to  dispose  of  it,  but,  finally, 
he  consented  that  the  gift  should  take  place 
instantly,  and  to  trust  it  to  Holland  himself; 
his  declaration,  or  parols,  to  Holland  'being, 
"Well,  you  may  take  the  lot,  and  I  will  de- 
duct sixty  pounds  from  your  wife's  portion." 
This  was  a  gift,  still  possibly  to  be  viewed  as 
partaking  of  the  nature  of  a  sale;  for  although 
the  lot  was  given,  yet  it  was  given  at  a  certain 
price  or  value,  at  which  it  was  to  have  been 
charged,  as  an  advancement  to  Holland's  wife. 
I  do  not,  however,  conceive  it  to  be  material 
to  any  question  in  the  present  suit,  whether  it 
is  *to  be  considered  as  a  gift  or  a  sale;  [*4O 
and  I  use  the  general  term  "alienation,"  as 
comprehending  both,  and  equally  applicable 
to  either;  the  parols,  therefore,  appear  to  me 
sufficient  to  import  an  alienation,  and  they  be- 
ing without  limitation,  the  alienation  is  to  be 
in  fee,  and  an  alienation  in  preaenti,  as  distin- 
guishable from  a  contract-or  promise  to  alien, 
infuturo.  It  was  not  a  matter  resting  in  con- 
tract, or  promise,  except  the  implied  promise 
of  Van  Alen  to  execute,  within  a  convenient 
time,  a  deed  in  writing,  the  formal,  but  at  the 
same  time  indispensable,  act  of  consummation. 

The  questions  between  the  parties  are, 

1.  Whether  in  a  case  of  a  parol  alienation 
of  land  in  fee,  and  an  actual  entry  and  con- 
sequent possession    by    the    alienee,    or    his 
tenants  thereupon,   the  alienor,  although  he 
may  not  have  executed  a  deed  in  writing, 
shall  not,  nevertheless,  be  deemed  to  be  so 
out  of  possession  as  to  be  incapable  to  devise 
it.     Supposing  the  opinion  of  the  court  to  be 
with  the  plaintiff  on  this  question,  then, 

2.  Whether  the  defendant  may  not  affirm 
M'Mechan,  his  assignor,  to  have  been  a  tenant 
for  three  years  to  Van  Alen  himself,  from  the 
25th   August,    1794,   when  the  lease  was  re- 
newed by  Holland  to  M'Mechan. 

My  reasoning  on  these  questions  will  be 
concise,  for  it  appears  to  me  the  merits  of 
them  lie  within  a  very  narrow  compass.  It 
will  be  remarked,  that  I  assume  it,  that  until 
a  deed  in  writing,  whatever  may  have  been 

235 


40 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


the  parol  declarations  of  the  alienor,  the 
technical  estate  at  law  still  remained  in  him, 
and  on  his  dying  intestate,  it  would  descend 
to  his  heir,  and  that,  consequently,  it  never 
passed  to  the  alienee;  the  question,  therefore, 
is  more  precisely  this,  can  he  also  devise  or 
otherwise  dispose  of  it  ?  Whether  an  estate 
in  fee  could  not  have  passed,  by  the  common 
law,  by  parol  only,  need  no  longer  be  inquired 
into,  since  the  statute  for  the  prevention  of 
frauds  is  express,  that  it  cannot  now  pass  un- 
less by  writing.  No  other  estate  can  pass  to 
an  alienee  by  parol,  except  the  constructive 
estate  at  will,  under  the  statute,  and  conse- 
41*]  quently,  such  alienee  cannot  pass  *an 
estate  or  title  to  another,  as  derivative  from 
an  estate  or  title  in  himself;  the  title  under 
which  the  person  to  whom  Holland  made 
leases  took  possession,  was  the  title  as  then 
subsisting  in  Van  Alen,  but  which  he  was 
bound,  by  his  promise,  to  pass  to  Holland,  by 
executing  a  deed  in  writing  to  him  for  that 
purpose.  Van  Aleu  always  had  it  in  his 
option  either  to  fulfil  or  recall  his  promise; 
and  in  the  latter  case,  to  have  left  Holland  to 
seek  a  reparation  in  damages  against  him;  so 
that  Van  Alen,  as  to  his  capacity  to  dispose, 
still  continued  seized,  and  consequently  the 
premises  all  passed  by  his  will  to  the  lessor  of 
the  plaintiff. 

As  to  the  second  question,  I  have  stated 
that  the  parol  gift  of  Van  Alen  was  an  alien- 
ation in  fee,  and  in  present,  as  distinguish- 
able from  a  promise  to  alien  infutttro;  I  have, 
however,  admitted  that  it  was  not  effectual  to 
pass  an  estate  to  Holland,  except  a  construct- 
ive estate  at  will,  and  that  Van  Alen  might  at 
any  time  have  recalled  his  promise,  and  there- 
by have  determined  his  will;  I  think,  not- 
withstanding, that  it  was  sufficient  to  give 
Holland  a  right,  or  authority  to  enter,  and  to 
make  leases,  equally  effectual  as  if  made  im- 
mediately by  Van  Alen  himself;  but  the  au- 
thority from  Van  Alen  to  Holland  being  by 
parol,  the  acts  of  Holland  under  that  au- 
thority, although  in  writing,  cannot,  as  against 
Van  Alen,  have  more  validity  than  they  could 
have  if  they  were  by  parol  only.  The  right, 
therefore,  of  Van  Alen  to  avoid  the  alienation 
of  Holland,  and  the  consequent  acts  of  Hol- 
land, are  to  be  subject  to  a  right  in  the  lessees 
of  Holland,  if  they  choose  to  avail  themselves 
of  it,  to  affirm  themselves  to  be  tenants  to 
Van  Alen  for  three  years,  as  to  every  lease 
which  might  have  been  made  by  Holland  for 
that  term,  or  exceeding  it;  so  that  if  at  any 
time,  during  the  three  first  years  of  either  of 
the  leases,  Van  Alen  had  questioned  the  right 
of  M'Mechan  to  enter  and  occupy,  M'Mechan 
might  have  pleaded  a  lease  from  Van  Alen  by 
parol,  for  three  years,  and  have  given  the 
parol  gift  of  Van  Alen  in  evidence,  in  main- 
tenance of  his  plea,  or,  in  other  words,  as  an 
42*]  act  granting  an  authority  *or  power  to 
Holland  to  make  parol  leases  as  durable,  and 
in  every  respect  as  effectual  against  Van  Alen 
as  if  they  had  been  made  immediately  by 
himself;  in  short,  that  the  lessee  shall  have 
the  same  means  to  defend  his  possession 
against  Van  Alen  which  he  would  have  had 
to  defend  it  against  Holland,  with  this  differ- 
ence, that,  as  against  the  former,  he  can  allege 
his  agreements  to-  be  by  parol  only.  The  con- 
236 


elusion  from  the  whole  is,  that  the  defendant 
may  affirm  M'Mechan,  and  for  the  residue  of 
the  term  unexpired,  at  the  time  of  the  assign- 
ment of  the  lease,  may  affirm  himself  to  have 
been  a  tenant  for  three  years,  and  to  the  lessor 
of  the  plaintiff,  his  devisee,  successively,  from 
the  date  of  the  renewed  lease,  and  from  the 
expiration  of  that  term,  as  tenant  at  will,  from 
year  to  year;  and  consequently,  that  the  de- 
fendant hath  shown  both  that  there  was  a 
term  subsisting  against  the  lessor  of  the 
plaintiff,  at  the  time  of  the  demise  laid  in  the 
declaration,  and  also  that  he  is  entitled  to  the 
usual  notice  to  quit;  and  my  opinion,  accord- 
ingly, is,  that  the  verdict  must  be  set  aside, 
and  that  the  posted,  be  delivered  to  the  defend- 
ant to  enter  judgment  of  nonsuit. 

LEWIS,  J.  The  grounds  on  which  the 
present  application  is  made,  are,  1.  That 
Lowrens  Van  Alen,  under  whose  will  the 
lessor  of  the  plaintiff  derives  her  title,  was 
disseized  previous  to  the  time  of  making  the 
devise,  and  so  continued  to  the  time  of  his 
death,  and  that  his  interest  being  thereby  re- 
duced to  a  right,  nothing  passed  by  the 
devise. 

2d.  That  if  there  was  no  disseisin,  then  Hol- 
land or  M'Mechan  was  tenant  from  year  to 
year,  and  entitled  to  notice  to  quit,  or 
M'Mechan  was  tenant  to  Van  Alen,  under  a 
subsisting  lease,  and,  therefore,  the  plaintiff 
not  entitled  to  recover. 

3d.  That  the  conduct  of  Van  Alen  savour- 
ed of  fraud,  in  hanging  out  deceptive  lights 
to  purchasers. 

4th.  That  the  demise  being  laid  previous  to 
the  election  of  the  lessor  of  the  plaintiff  to  be 
dispossessed,  and  not  disseized,  is  erroneous, 
and  that  therefore  the  plaintiff  ought  not  to  re- 
cover. 

*5th.  That  the  judge  who  tried  the  [*43 
cause  misdirected  the  jury. 

To  simplify  the  facts,  I  shall  consider 
M'Mechau,  who  is  the  defendant's  principal, 
as  the  real  defendant. 

On  the  first  point,  the  supposed  disseisin 
was  contended  for,  first  on  the  ground  of 
Holland's  being  a  tenant  at  will,  and  making 
a  lease  for  years,  for  which  the  case  of  Blun- 
den  v.  Baugh  (Cro.  Car.,  302)  was  relied  on; 
secondly,  because  M'Mechan  held  adversely 
to  Van  Alen.  It  will  be  necessary  to  consider 
each  ground. 

It  is  unquestionable  law  that  a  disseizee  be- 
fore re-entry,  cannot  convey,  even  by  devise; 
for  by  the  disseisin,  the  fee  is  out  of  him.  It 
is  therefore  necessary  to  examine  whether 
Van  Alen  was  disseized  in  either  of  the  modes 
insisted  on,  or  in  any  other.  That  he  was 
not  so  by  election  is  certain,  for  that  being 
for  his  benefit,  and  for  the  sake  of  the  remedy 
merely,  is  effected  only  by  bringing  an  assize. 
The  disseisin,  then,  if  any,  must  have  been 
an  actual  or  compulsory  one,  that  is,  in  spite  of 
him,  or  as  it  is  termed,  nokm  vokns;  such 
as  would  have  made  the  disseizor  a  good 
tenant  to  every  prcecipe  without  taking 
away  the  right  owner's  entry.  To  attempt 
an  accurate  definition  of  this  species  of 
disseisin  with  all  its  effects  and  consequences, 
would  be  vain,  since  we  have  the  authority  of 
Lord  Mansfield,  in  the  celebrated  case  of 
JOHNSON'S  CASES,  1. 


JACKSON,  EX  DEM.  VAN  ALEN,  v.  ROGERS. 


43 


Taylor,  ex  dem.  Atkyns,  v.  Horde,  for  saying, 
that  since  the  abolition  of  military  tenures, 
little  of  it  is  left  us  but  the  name,  and  that  the 
more  we  read,  unless  we  are  careful  to  distin- 
guish, the  more  we  shall  be  confounded.  Thus 
much,  however,  may  be  collected  from  the 
ancient  writers  on  the  subject,  that  disseisin 
always  implied  a  wrong,  a  personal  trespass, 
and  tortious  ouster;  but  that  all  these  might 
combine,  without  necessarily  producing  a 
disseisin.  For  according  to  Bracton,  a  free- 
holder by  disseisin  differed  from  a  possessor 
by  wrong,  whom  he  calls  an  intruder,  and 
describes  as  acquiring  a  naked  possession, 
without  any  seisin;  and  in  the  language  of 
Lord  Mansfield,  in  the  case  above  cited,  "this 
44*]  species  of  disseisin  must  *mean  turning 
the  tenant  out  of  his  tenure,  and  usurping  his 
place  and  feudal  relation,  and  at  the  present 
day,  can  exist  only  in  the  case  of  fines  with 
proclamation." 

The  case  of  Blunden  v.  Baugh  was  certainly 
not  understood  by  the  counsel  who  adduced  it, 
for  a  principle  directly  and  unequivocally  the 
reverse  of  that  contended  for  is  there  established 
by  the  opinion  of  three  judges  against  one; 
the  four  judges  of  the  Common  Pleas  assenting. 
The  case  was  this.:  Charles,  Lord  Nottingham, 
was  seized  of  the  land  in  question;  William, 
Lord  Effingham,  his  eldest  son  and  heir  ap- 
parent, being  tenant  at  will  to  his  father  of 
the  lands,  leased  them  to  Humphreys  for 
twenty-one  years.  During  the  existence  of 
this  lease,  they  united  in  levying  a  fine,  and 
the  questions  were,  whether  there  was  not  a 
disseisin,  partibus  insitis;  and  if  so,  whether 
William  or  Humphreys  was  the  disseizor;  and 
it  was  held  as  above  stated,  that  Charles  was 
disseized, at  his  election  only;  that  he  was  ten- 
ant of  the  freehold,  the  lease  notwithstanding, 
and  that  therefore  the  fine  was  well  levied; 
and  that,  had  it  been  a  disseisin,  William,  and 
not  Humphreys,  would  have  been  the  dis- 
seizor. 

Of  the  several  modes  of  passing  the  estates, 
by  the  act  of  parties,  that  by  devise  is  most 
favored,  because  it  is  considered  as  being 
made  in  extremis,  and  oftentimes  in  articulo 
mortis.  Thus  we  find,  in  the  case  of  Poussly 
v.  Blackman  (Cro.  Jac.  ,659),  that  on  a  bargain 
and  sale  of  lands  conditioned  to  be  void,  on 
the  payment  of  a  sum  of  money,  and  that  the 
bargainee  should  not  enter  until  failure  of  the 
condition,  and  the  bargainer  failed  to  make 
payment,  and  the  bargainee  did  not  enter,  but 
devised  the  lands,  and  died,  this  was  held  a 
good  devise,  on  which  the  devisee  could  main- 
tain ejectment.  In  Taylor,  ex  dem.  Atkyns,  v. 
Horde,  this  case  is  cited  by  Lord  Mansfield, 
who  observed,  that  from  the  manuscript  re- 
port it  appeared  that  the  point  of  the  decision 
was  that  the  owner,  by  making  a  devise, 
showed  his  election  not  to  be  disseized.  So  in 
the  present  case,  Van  Alen,  by  devising  the 
premises,  elected  not  to  be  disseized. 
45*]  *From  these  authorities,  it  necessarily 
results  that  Van  Alen  was  not  disseized  by 
Holland's  lease  to  M'Mechan.  In  the  course 
•of  the  examination  of  the  second  point,  I  shall 
show  that  after  the  expiration  of  the  lease  for 
nine  years  M'Mechan  became  tenant  at  suffer- 
ance, and  so  not  a  disseizor,  and  that  there- 
fore the  premises  well  passed  by  the  devise. 
JOHNSON'S  CASES.  1. 


2.  The  second  point  is  whether  the  plaintiff 
is  debarred  from  recovering  by  the  want  of 
notice,  or  by  the  subsisting  lease  for  five 
years.  In  the  concluding  argument  of  the  de- 
fendant's counsel,  the  idea  of  Holland's  being 
a  tenant  at  will  was  abandoned,  and  it  was 
contended  that  M'Mechan  was  tenant  from 
year  to  year,  and,  as  such,  entitled  to  a  notice 
to  quit.  The  only  authority  cited  which  in 
any  manner  applies  to  this  part  of  the  case,  is 
that  of  Dagget  v.  Snowden  (2  Black.  Rep., 
1224).  The  reports  of  Sir  William  Blackstone, 
though  the  production  of  an  able  judge,  are 
not  of  the  highest  authority.  They  are  post- 
humous works,  edited  by  his  executor  who 
does  not  appear  to  have  been  a  lawyer,  and 
who  has  given  them  to  the  world  without  their 
having  undergone  the  last  revisal  intended  by 
the  author.  The  case,  however,  goes  no 
further  than  to  say  that  certain  tenancies  at 
will  are  construed  into  tenancies  from  year  to 
year,  and  that  in  such  cases,  a  six  months' 
notice  to  quit  is  required,  unless  where  a 
special  agreement,  or  a  particular  custom  in- 
tervenes. But  it  was  not  shown  that  the  ten- 
ancy in  question  was  of  this  description;  that 
it  is  not  will  appear  from  an  examination  of 
the  latest  authorities  on  the  subject.  The  rule 
applies  to  those  tenancies  at  will  only,  which 
are  susceptible  of  a  construction  that  will 
place  them  on  a  footing  with  tenancies  from 
year  to  year;  such  as  where  an  annual  rent  is 
reserved,  and  a  holding  over,  by  consent  of 
the  landlord.  But  when  the  lease  is  determin- 
able  on  a  certain  event,  or  at  a  'particular 
period, no  notice  to  quit  is  necessary;  as  was  de- 
termined in  the  cases  of  Messenger  V.Armstrong 
and  Right  v.  Derby  &  Bristoio  (1  Term  Rep. , 
53,  159).  *Neither  is  it  necessary,  where  [*4€> 
the  tenant  has  done  an  act,  disclaiming  to  hold 
as  tenant  to  the  landlord. 

To  apply  this  doctrine  we  must  advert  to 
the  facts  in  the  case  before  us.  It  is  conceded 
that  Holland  never  had  an  interest  in  the 
premises,  and  that  the  only  evidence  which 
looks  like  his  having  had  'an  authority  over 
them,  was  Van  Alen's  saying  to  him  on  one 
occasion,  "John,  you  may  take  the  kraal,  and 
I  will  deduct  £60  from  your  wife's  portion." 
There  is  no  evidence  of  his  having  ever  made 
such  deduction,  nor  can  these  words  vest  any 
species  of  interest,  unless,  perhaps,  there  had 
been  an  actual  entry  by  Holland  consequent 
thereon,  when  he  might  have  been  tenant  at 
will.  To  what  purpose  he  was  to  take  it, 
then,  was  a  question  of  fact  for  the  jury  to 
decide.  From  their  verdict  it  appears  that 
they  did  not  consider  it  as  intended  as  a  gen- 
eral authority  to  make  leases;  and  they  were 
well  warranted  in  such  a  conclusion  by  the  in- 
variable, determination  manifested  by  Van 
Alen,  to  appropriate  that  property  to  the 
benefit  of  his  daughter  and  her  children.  Hol- 
land first  made  a  lease  for  nine  years,  but  no 
rent  was  reserved.  The  buildings  to  be 
erected  by  M'Mechan  were  the  only  consider- 
ation. Van  Alen  was  at  first  dissatisfied  with 
it,  but  upon  reflecting  that  it  would  enhance 
the  value  of  the  premises  to  those  for  whom 
he  intended  them,  he  assented  to  the  lease.and 
thereby  ratified  that  particular  act.  M'Mechan 
thus  became  his  tenant  for  nine  years,  a 
period  certain,  or  at  will  by  force  of  the  stat- 

237 


46 


SUPKEME  COUUT,  STATE  OF  NEW  YORK. 


1799 


ute  of  frauds;  and  no  annual  rent  being  re- 
served, there  is  no  construction  on  which  he 
can  be  considered  a  tenant  from  year  to  year; 
but  he  must  either  be  tenant  at  will,  by  force 
of  the  statute,  or  for  a  period  certain,  by  Van 
Alen's  assent  to  the  lease;  and,  of  course,  ac- 
cording to  the  authorities  cited,  was  not  en- 
titled to  notice. 

The  jury  have  also  properly  determined  that 
the  second  lease  to  M'Mechan,  to  wit,  that  for 
five  years,  was  an  unauthorized  act  on  the 
part  of  Holland  which  Van  Alen  never  had 
assented  to  or  sanctioned.  When,  or  from 
whom  he  received  the  information  of  it,  does 
not  appear;  it  was  not,  however,  from  Hol- 
47*]  land,  but  *from  strangers;  and,  finding 
the  rent  was  reserved  to  Holland,  who  was 
addicted  to  liquor,  and,  of  course,  that  it 
would  not  benefit  his  children,  he  declared  his 
disapprobation,  and  his  intention  to  taking  the 
property  into  his  own  hands.  His  death, 
which  happened  about  nine  months  after  the 
execution  of  the  lease,  most  probably  prevent- 
ed the  effect  of  this  intent.  This  lease,  then, 
is  certainly  no  bar  to  a  recovery. 

I  shall  now  proceed  to  show,  as  was  inti- 
mated when  the  first  point  was  under  con- 
sideration, that,  on  the  expiration  of  the  first 
lease,  M'Mechan,  if  not  a  tenant  at  will,  stood 
in  the  relation  of  tenant  at  sufferance  to  Van 
Alen,  and  as  such  was  not  a  disseizor.nor  had 
he  such  a  possession  as  would  prevent  the 
transmission  of  the  inheritance.  (1  Roll.  Abr., 
659,  pi.  15.)  "If  lessee  for  jrears  holds  over 
his  term,  yet  he  is  no  disseizor,  for  this,  that 
he  comes  in  by  an  act  of  the  party;  but  he  is 
tenant  at  sufferance."  In  Co.  Litt.,  57  b.,  and 
the  case  of  Rous  v.  Artoix  (2  Leo.,  45), the  same 
law  will  be  found. 

That  the  possession  of  such  a  tenant  is  no 
impediment  to  the  passing  of  the  landlord's 
interest  is  established  by  the  case  of  Poundy  v. 
Bhwkman,  before  cited;  as  well  as  by  the  case 
of  Willis  v.  Jermine  (2  Leo.,  97).  A  lease  was 
there  made  to  Jermine,  rendering  rent,  and 
for  default  of  payment  to  be  void.  The  rent 
was  afterwards  demanded,  but  not  paid,  and 
the  lessor,  without  entry,  leased  the  lands  to 
Willis,  Jermine  being  in  the  actual  possession, 
and  it  was  held  good,  for  that  he  was  but  ten- 
ant at  sufferance;  and  Harris,  the  counsel  for 
the  defendant,  agreed  that  if  Jermine  was  but 
a  tenant  at  sufferance,  the  second  lease  was 
good.  The  interest  of  a  tenant  at  sufferance 
is  of  so  little  consideration  in  law,  especially 
when  set  up  against  the  rights  of  his  landlord, 
that  his  descent  will  not  toll  an  entry.  (Allen 
v.  Hill,  Cro.  Eliz.,  238.)  His  possession  and 
pernancy  of  the  profits,  is  insufficient,  where 
he  sells  the  inheritance,  to  protect  himself 
against  a  prosecution  of  maintenance.  (Pike 
v.  Hfixmn,  3  Leo.,  233.) 

4H*]  *3.  The  arguments  on  the  third  point 
proceed  rather  on  the  ground  of  inconvenience 
than  of  law.  The  supposed  imposition  on 
purchasers,  arising  from  Van  Alen's  permit- 
ting certain  lessees  under  Holland  to  enjoy 
their  tenancy  during  his  life,  would  not  be  a 
sufficient  reason  for  granting  the  effect  of  the 
present  motion,  were  the  facts  as  the  defend- 
ant's counsel  have  stated  them.  It  is  incum- 
bent on  every  purchaser  to  look  to  the  title  of 
the  property  he  acquires.  In  the  present  in- 
238 


stance,  it  could  have  been  done  without  diffi- 
culty. Van  Alen  was  in  the  neighborhood 
and  from  him  the  extent  of  Holland's  powers 
might  easily  have  been  ascertained.  But 
there  was,  in  fact,  no  deception.  M'Mechau, 
before  he  accepted  the  first  lease,  was  in- 
formed that  Holland  had  no  title,  and  that  Van 
Alen,  most  probably,  would  give  him  none; 
he  replied  that  it  was  all  in  the  same  family, 
and  that  Holland  must  make  good  his  dam- 
ages, if  he  sustained  any.  Ely,  previous  to 
his  acceptance  of  the  lease  for  999  years,  ap- 
plied to  Van  Alen  to  execute  it,  who  refused; 
but  told  him  he  might  take  it  from  Holland, 
and  that  he  would  never  himself  disturb  him. 
Where,  then,  is  the  deception?  The  plain  and 
obvious  meaning  was  this:  Holland's  acts 
which  I  now  sanction,  must  terminate  with 
my  life.  Of  the  sublease  from  Ely  to  Spencer 
&  Ludlow,  for  the  hay -scales,  and  the  several 
permissions  to  occupy  the  barn  and  barn- 
yard, Van  Alen,  for  aught  that  appears,  was 
ignorant.  Had  it  been  otherwise,  it  would 
not  alter  the  case. 

4.  The  fourth  ground  of  the  application  is, 
that  the  plaintiff  has  laid  his  demise  two  years 
previous  to  the  commencement  of  the  suit, 
which  determined  his  lessor's  election:  hence 
it  is  inferred,  if  I  understand  the  scope  of  the 
argument,  that  the  demise  is  laid  before  the 
title    accrued.      Were  this  inference  just  it 
would  be  decisive  against  the  plaintiff  in  this 
action,  and  the  case  relied  on,  of  Goodtitle  v. 
Herbert  (4  Term  Rep.,  680),  would  be  in  point. 
If  I  am  accurate,  as  to  the  train  of  reasoning, 
the  effect  of  an  election  has  certainly  been 
misunderstood.     It  has  no  relation  to  the  title, 
but  to  the  remedy  alone.     "  When  *the  [*41> 
easy    specific   remedy    was  by  assize,"  says 
Lord  Mansfield,  in  the  case  of  'Taylor,  ex  dem. 
Atkyns,  v.  Horde,  "  where  the  entry  was  not 
taken  away,  the  injured  owner  might,  for  his 
benefit,  elect  to  consider  the  wrong  as  a  dis- 
seisin.    So,  since  an  ejectment  has  become  the 
easy  specific  remedy,  he  may  elect  to  call  the 
wrong  a  dispossession."    And  again,  he  ob- 
serves, "  where  an  ejectment  is  brought  there 
can  be  no  disseisin;  because  the  plaintiff  may 
lay  his  demise  when  his  title  accrued,  and  re- 
cover the  profits  from  the  time  of  the  demise." 
This  is  precisely  the  case  before  us. 

5.  The  objections  to  the  charge  of  the  judge 
remain  to  be  considered.     And  here  it  will  be 
observed,   by  recurring  to  the  motion  for  a 
nonsuit,  made  at  the  trial,  that  the  defendant's 
counsel    then    contended    that   Holland   was 
either  tenant  from  year  to  year,  or  a  disseisor; 
and  it  was  not  until  the  concluding  argument 
on  the  present  motion  that  they  abandoned 
this  ground,   disclaiming    to    derive    a    title 
throxigh  him,  and  asserting  that  he  never  was 
possessed.     The  assumption  of  this  new  posi- 
tion has  induced  an  observation  from  one  of 
the  counsel,  that  the  charge  respecting  Hol- 
land's interest  was  immaterial;  from  another, 
that  it  was  improper,  as  it  was  a  question  of 
law;  and  from  a  third,  that  it  should  have 
been  peremptory  on  the  point  of  Van  Alen's 
acquiescence  and  consequent  disseisin;    and 
that  the  motion  for  a  nonsuit  should,  on  this 
ground,  have  been  successful. 

I  have  already  shown  from  various  authori- 
ties, that  Van  Alen  was  neither  disseized  act- 
JOHN  SON'S  CASES,   1. 


1799 


JOHNSON  v.  BLOODGOOD. 


49 


nally,  nor  by  election.  To  have  granted  a 
nonsuit,  therefore,  on  that  ground,  or  to  have 
charged  the  jury  with  a  fact  that  did  not 
exist,  would  have  been  erroneous  in  the  ex- 
treme. The  reference  of  Holland's  interest  to 
the  jury  was  right  upon  every  principle. 
Whether  he  was  or  was  not  a  disseizor,  is  not, 
as  has  been  mistakenly  supposed,  a  question 
of  law,  but  of  fact.  Disseisin,  says  Lord 
Mansfield,  in  the  case  last  cited,  is  a  fact  to  be 
5O*]  found  by  a  jury.  The  idea  of  *Holland's 
being  a  mere  agent  or  attorney  for  his  father- 
in-law,  was  first  suggested  by  me  in  overrul- 
ing the  motion  for  a  nonsuit;  and,  in  the 
course  of  the  trial,  was  substantiated  by  an 
authority  produced  by  the  plaintiff's  counsel. 
It  was  controverted  by  the  defendant,  who  in- 
sisted that  Holland,  if  not  a  disseizor,  had  an 
interest  which  entitled  him  to  notice;  and  that 
M'Mechan  stood  in  his  place  by  virtue  of  the 
lease  for  five  years,  which  was  produced  in 
evidence.  In  this  view  his  interest  became 
a  material  object  of  the  charge;  and  when  it  is 
remembered  that  it  was  derived,  if  it  existed 
at  all,  from  a  parol  agreement,  the  terms  of 
which  were  to  be  collected  from  the  testimony 
of  the  witnesses,  it  was  most  indisputably  a 
fact  on  which  the  jury  alone  were  competent 
to  decide.  It  was  also  proper  to  be  submitted 
to  them  for  another  reason.  If  he  had  no  in- 
terest his  lease  could  not  make  him  a  disseizor 
(a  point  strongly  contended  for  on  the  part  of 
the  defendant),  and  he  would  not  stand  in  the 
relation  of  a  tenant;  if  he  had  an  interest  and 
it  was  at  will  only,  his  lease  did  not  make  him 
a  disseizor,  but  at  the  election  of  Van  Alen. 
Fearing  that  the  jury  might  be  misled  by  the 
perplexity  and  embarrassment  which  so  intri- 
cate a  subject  could  not  fail  to  produce,  I 
placed  it  before  them  in  the  simplest  form  in 
my  power. 

It  was  also  insisted  that  I  ought  to  have 
charged  the  jury  that  there  was  sufficient  evi- 
dence of  Van  Alen's  having  authorised  or  ap- 
proved of  the  second  lease  to  M'Mechan.  This 
objection  is  a  little  singular,  since  the  ground 
of  any  authority  was  not  relied  on  at  the  trial; 
it  may,  nevertheless,  be  open  to  investigation. 
I  dt)  not  know  that  it  is  the  duty  of  a  judge 
peremptorily  to  decide  on  the  weight  of  testi- 
mony where  there  is  room  to  doubt;  this  is 
peculiarly  the  province  of  a  jury.  The  judge 
may,  and  perhaps  ought,  to  lay  down  to  them 
the  rules  of  investigation;  but  the  cases  which 
will  justify  his  directing  their  determination 
are  extremely  rare  in  controverted  causes. 
This  was  not  a  case  of  that  description ;  on  the 
51*]  contrary,  *the  acquiescence,  if  any,  was 
a  matter  of  inference,  and  for  their  exclusive 
inquiry  and  decision. 

Under  whatever  aspect  I  view  this  cause — 
and  I  have  endeavoured  to  examine  it  in  every 
light  of  which  it  is  susceptible,  on  account  of 
the  important  principles  it  involves — I  am 
•satisfied  with  the  verdict,  and  that  the  de- 
fendant ought  to  take  nothing  by  his  mo- 
tion. 

LANSING,  Ch.  J.,  declared  himself  to  be  of 
the  same  opinion. 

RADCLIFP,  J.,  having  been  concerned  as 
JOHNSON'S  CASES,  1. 


counsel  for  the  plaintiff,  declined  giving  any 
opinion. 

Rule  refused. 

Cited  in  2  Johns.,  76;  13  Johns.,  121;  7  Cow.,  248;  2 
Wend.,  204 ;  49  X.  Y.,  32. 
See  2  Caine's  Cas.,  314. 


JOHNSON  v.  BLOODGOOD. 

1.  Negotiable  Instruments — Indorsement  after 
maturity — Equities.  2.  Id. — Id. — Fraud.  3. 
Id. — Matured  Note — Equities.  4.  Set-off— As- 
signment— Purchase  of  Note.  5.  Id. — Id. — 
Notice. 

J.,  being:  insolvent,  assigned  his  property  to  trus- 
tees, on  the  16th  January,  1793,  for  the  benefit  of  his 
creditors;  a  debt  due  from  B.  was  included  in  the 
assignment,  and  in  an  action  brought  by  the  assign- 
ees against  B.,  he  offered  as  a  set-off,  a  note  of  J,, 
which  he  stated  to  have  been  purchased  in  the  year 
1793,  after  it  was  due;  and  it  was  held  that  the  note 
was  to  be  presumed  to  have  been  purchased  after 
the  assignment,  and  could  not  be  set  off  against  the 
debt  due  to  the  insolvent.  Every  presumption  is  to 
be  made  against  the  purchaser  of  a  note  after  it  is 
due. 

Citations— 3  Tei-m  R.,  80 ;  3  TernTR.,  83.  2  Black. 
Rep.,  1269;  1  Term  R.,  69;  3  Term  It.,  82,  83;  4  Term 
R.,  341 ;  7  Term  R.,  670 ;  1  Atk.,  490 ;  2  Fonb.,  156 :  6 
Term  R.,  59 ;  22  Geo.  III.;  25  Geo.  III.;  1  H.  Black.,  89 
?i ;  3  Term  R.,  80 ;  14  Geo.  III.;  10  Mod.,  37. 

THIS  was  an  action  for  goods  sold  and  de- 
livered. The  defendant  pleaded  non  as- 
(fumpsit,  and  payment.  Under  the  second 
plea,  the  defendant  gave  notice  that  he  would 
set  off  a  negotiable  note,  made  on  the  1st 
August,  1792,  by  the  plaintiff  to  one  Sullivan, 
for  $3,106,  and  indorsed  to  the  defendant, 
payable  in  four  months  after  date.  On  the 
trial  before  Mr.  Justice  Kent,  it  appeared  in 
evidence  that  the  plaintiff  being  insolvent,  on 
the  16th  January,  1793,  made  an  assignment 
of  all  debts  due  to  him,  to  R.  Knox  and 
others,  as  trustees  for  the  benefit  of  all  his 
creditors;  that  the  plaintiff's  account  was 
presented  to  the  defendant  in  April,  1797, 
stated  in  the  names  of  the  assignees,  and  pay- 
ment demanded,  to  which  he  replied  that  there 
was  no  objection  to  the  account,  but  he 
wanted  time  to  pay  it,  and  mentioned  also  that 
he  had  a  note  to  set  off  against  it. 


NOTE.— Holders  of  negotiabU  paper  transferred 
after  maturity. 

No  one  can  become  a  bona  fld-e  holder  of  negotia- 
ble paper  so  as  to  shut  out  a  valid  defense  by  the 
maker  when  such  holder  takes  the  note  after  it  is 
overdue.  Newell  v.  Gregg,  51  Barb.,  263;  Lansing 
v.  Gaine,  2  Johns.,  300;  Sylvester  v.  Crapo,  15  Pick., 
92;  Fowler  v.  Brantley,  14  Pet.,  319;  Andrews  v. 
Pond,  13  Pet.,  65;  Marsh  v.  Marshall,  53  Pa.  St.,  396; 
Bowen  v.  Thrall,  28  Vt.,  382;  Bank  v.  Hann,  18  N.  J. 
L.  (3  Harr.),  222 ;  Lord  v.  Favorite,  29  111.,  149 ;  Good- 
son  v.  Johnson,  35  Tex.,  622. 

A  note  assigned  on  the  day  of  payment,  is  assigned 
before  it  has  become  due.  Walter  v.  Kirk,  14 
111.,  55. 

A  promissory  note  is  not  overdue  until  the  days 
of  grace  have  expired.  G  ood paster  v.  Voris,  8  la., 
334. 

A  note  indorsed  on  the  last  day  of  grace  is  dis- 
honored. Pine  v.  Smith,  11  Gray,  38. 

Contra.  Crosby  y.  Grant,  38  N."  H.,  273.  The  New 
Hampshire  decision  is  deemed  the  better  law.  1 
Daniels  on  Negotiable  Instruments,  593 ;  1  Parsons 
on  Notes  and  Bills,  263. 

A  note  payable  in  Installments  is  overdue  when 
the  first  installment  is  overdue  and  unpaid.  Vinton 
y.  King,  4  Allen,  562.  So  when  by  express  terms 
interest  is  overdue  and  unpaid.  Newell  v.  Gregg, 
51  Barb.,  263;  Hart  v.  Sticknoy,  41  Wis.,  630. 

A  note  payable  to  order  wiis  transferred  verbally 

239 


51 


SUPREME  COUKT,  STATE  OF  NEW  YORK. 


1799 


In  an  answer  to  a  bill  filed  against  the  de- 1 
fendant  in  chancery,  he  stated  that  he  pur- [ 
52*]  chased  the  note  in  question,  *sometime  j 
in  the  year  1793  (the  month  unknown),  at  the  j 
rate  of  twelve  shillings  in  the  pound,  and  for  ' 
the  purpose  of  setting  it  off  against  the  pres- 
ent demand.  The  defendant,  however,  denied 
in  his  answer  that  he  had  any  actual  notice  of 
the  assignment  made  by  the  plaintiff  to  the 
trustees  above  mentioned,   at  or  before  the 
time  of  making  the  purchase. 

Under  the  circumstances  of  the  case,  the 
judge,  at  the  trial,  was  of  opinion  that  the 
set-off  ought  not  to  be  admitted,  and  it  was 
accordingly  disallowed. 

The  defendant  applied  for  a  new  trial  on  the 
ground  of  the  misdirection  of  the  judge  on 
this  point. 

Mr.  Riggs  for  the  plaintiff. 
Mr.  Henry  for  the  defendant. 

RADCLIFF,  J.  From  the  state  of  the  case  I 
think  it  a  fair  presumption  that  the  note  was 
purchased  by  the  defendant  after  the  assign- 
ment by  the  plaintiff  to  the  trustees.  The  as- 
signment was  made  on  the  16th  of  January, 
1793.  The  defendant,  in  his  answer  to  the 
bill  in  chancery,  states  generally  that  he  pur- 
chased the  note  in  the  year  1793,  without 
pointing  to  any  particular  period  of  that  year, 
but  saying  "  the  month  was  unknown."  It  is 
more  than  probable,  if  the  purchase  had  pre- 
ceded the  assignment,  or  if  the  defendant  had 
any  real  doubt  of  that  fact,  that  he  would  have 
stated  particularly  his  knowledge  or  doubt  re- 
specting it.  His  answer  to  this  point  was 
evasive,  and  connected  with  the  other  circum- 
stances, justifies  a  presumption  against  him. 

I  consider  it  as  a  principle  settled  both  in 
England  and  by  our  own  practice,  that  in 
cases  like  the  present  a  court  of  law  (2  Bl. 
Rep.  1269;  1  Term  Rep.  619;  3  Term  Rep.  82; 
4  Term,  341 ;  7  Term,  670)  will  regard  the  as- 
signment of  a  chose  in  action,  and  protect  the 
interest  of  a  cent  in  que  trust  against  every  per- 
son having  notice  of  the  trust,  or  Who  is 
bound  to  take  notice  of  it.  If,  therefore,  the 
defendant,  at  the  time  of  obtaining  the  note, 


had  notice,  or  was  bound  to  take  notice  of  the 
trust  created  by  the  assignment,  he  ought  not 
to  be  permitted  to  avail  himself  of  the  set-off. 

*The  notice  by  which  parties  are  [*53 
affected,  is  either  express  or  implied;  under 
the  head  of  implied  notice,  it  has  long  been 
held  in  a  court  of  equity  (1  Atk.  490;  2  Fonbl. 
156)  "  that  whatever  is  sufficient  to  put  a  party 
upon  inquiry,  is  good  notice."  This  is  a  just 
and  salutary  rule,  calculated  to  preserve  good 
faith,  and  to  protect  the  rights  of  individuals, 
and  whenever  the  question  of  notice  occurs, 
must  be  equally  applicable  to  courts  of  law  as 
to  courts  of  equity.  It  has  in  fact  been 
adopted  by  courts  of  law,  and  in  cases  similar 
to  the  present.  The  defence  here  rests  on  a 
note  purchased  after  it  had  become  due.  This 
circumstance  alone  is  a  ground  of  suspicion, 
and  has  been  held  sufficient  to  make  it  incum- 
bent on  the  party  receiving  the  note  to  inquire 
and  satisfy  himself  that  it  is  good.  If  he  does 
not,  he  takes  it  at  his  peril,  subject  to  every 
equitable  defence  in  favour  of  the  antecedent 
parties  against  whom  he  may  attempt  to  en- 
force it,  The  present  case  is  still  stronger; 
the  defendant  not  only  purchased  the  note, 
when  overdue,  but  at*  a  great  discount,  and 
avowedly  for  the  purpose  of  setting  it  off 
against  the  present  demand. 

The  consideration  of  the  purchase  and  the 
object  in  view,  strongly  characterize  this  trans- 
action. The  defendant  knew  the  note  was 
dishonored;  and  the  circumstance  of  obtain- 
ing it,  at  so  great  an  undervalue,  shows  that 
he  also  knew  that  Johnson  was  incompetent  to 
pay.  He  must  have  considered  him  a  bank- 
rupt, and  he  ought  also  to  have  considered 
that  his  creditors  had  an  interest  in  his  debts 
and  property.  He  had  even  reason  to  presume 
that  the  property  of  this  bankrupt  was,  in 
some  way  or  other,  disposed  of  for  the  benefit 
of  bis  creditors ;  at  least  the  circumstances 
which  appeared  were  sufficient  to  put  him  on 
his  guard,  and  to  require  him  to  forbear  from 
a  speculation  questionable  in  itself,  and  which, 
if  successful,  might  prove  injurious  to  the 
creditors  of  Johnson.  I  therefore  think  that 
in  construction  of  law,  there  was  sufficient 
notice  to  protect  the  claims  of  bona,  fde  credi- 


and  delivered  before  dishonor,  for  a  valuable  con- 
sideration, but  was  not  indorsed  until  after  dis- 
honor. Held,  that  the  maker  could  not  set  off  a 
debt  due  him  from  the  payee.  Ranger  v.  Gary,  1 
Met.  (Mass.).  369.  But  see  Bank  v.  Taylor,  100 
Mass.,  18 ;  Whistler  v.  Forster,  14  C.  B.  N.  S.,  248 ; 
Clark  v.  Whitaker,  50  N.  H.,  474. 

The  burden  of  proof  is  on  the  maker  to  show  that 
the  note  was  negotiated  after  it  was  due.  Ranker 
v.  Carv  above  cited ;  Balch  v.  Onion,  4  Gush.,  559; 
Noxon  v.  De  Wolf,  10  Gray,  343 ;  Pinkerton  v.  Bailey, 
8  Wend.,  600 ;  Washbum  v.  Ramsdell,  17  Vt.,  299 ;  , 
Shirts  v.  Overjohn,  60  Mo.,  305. 

The  burden  is  also  on  the  maker  to  show  that  pay- 
ments   relied    upon    were   made   before   transfer.  ! 
Webster  v.  Lee,  o  Mass.,  334 ;  Wilbour  v.  Turner,  5 
Pick.,  526.    See  also  Baxter  v.  Little,  6  Met.  (Mass.),  7. 

Where  a  note  is  transferred  after  maturity,  it  is 
taken  subject  only  to  the  defenses  existing  against 
it  in  the  hands  of  the  holder  when  it  matured.  Brit- 
ton  v.  Hall,  1  Hilt.  (N.  Y.),  528;  citing  Williams  v. 
Matthews,  3  Cowen,  260;  Driggs  v.  Rockwell,  11 
Wend.,  505 ;  Andrews  v.  Pond,  13  Pet.,  79. 

The  maker  and  indoreer  of  a  note  made  payable 
to  his  own  order,  is  entitled  to  the  same  defense  I 
as^ainst  a  holder  who  receives  it  after  it  is  overdue, 
that  he  would  be  allowed  to  make  if  the  note  had 
been  made  payable  to  a  third  person.  Potter  v. 
Tyler,  2  Met.  (Mass.),  58. 

In  an  action  on  a  hote  indorsed  after  dishonor,  : 

240 


hona  fide  for  valuable  consideration,  the  maker 
cannot  net  off  a  claim  against  the  indorser.  Chandler 
v.  Drew,  6  N.  H.,  469;  McDuffle  v.  Dame,  11  N.  H., 
244;  Ordiorne  v.  Woodman,  39  N.  H.,  541.  The  bur- 
den of  proof  is  on  the  indorsee  to  show  that  he  took 
the  note  bona  fide  for  valuable  consideration. 
Cases  last  cited.  The  above  cases  seem  to  turn  on 
the  distinction  between  "set  off"  and  "defense." 
See  Hill  v.  Huntress,  43  N.  H.,  483.  To  substantially 
the  same  effect,  see  Wilkinson  v.  Jeffers,  30  Ga.,  153. 

The  following,  both  in  principle  and  authority  is 
deemed  the  best  general  rule  on  this  subject.  An 
indorsee  of  an  overdue  bill  or  note  takes  it  sub- 
ject to  all  the  equities  arising  out  of  the  bill  or 
note  transaction  itself,  but  not  subject  to  any  col- 
lateral claim  existing  between  the  earlier  parties  to 
it.  Whitehead  v.  Walker,  10  M.  &  W..  696,  7  Jur.  330 ; 
Burrough  v.  Moss.,  10  B.  &  C.,  558 ;  5  M.  &  R.,  296; 
Swan  ex  porte,  6  L.  R.  Eq.,  343 ;  16  W.  R.,  560, 18  L. 
T.  N.  S.,  230 ;  Quids  v.  Harrison,  10  Exch.,  572.  Bank 
v.  Hann,  3  Harr.  (N.  J.  L.),  222.  Hughes  v.  Large,  2 
Pa.  St.,  103;  Lang  v.  Rhaum,  75  Pa.  St.,  128;  Young 
v.  Shriner,  80  Pa.  St.,  463;  Steward  v.  Tizzard,  3 
Phila.,  362 :  Richards  v.  Daly,  34  la.,  427.  See  also 
Britton  v.  Bishop,  11  Vt.,  70;  Pecker  v.  Sawyer,  24 
Vt.,  459;  Paddock  v.  Jones,  40  Vt.,  474. 

The  above  doctrine  is  not,  however,  supported  by 
all  American  authorities.  Bissell  v.  Curran,  69  111., 
20 ;  Bond  v.  Fitzpatriek,  4  Gray,  89.  See  Driggs  v. 
Rockwell,  11  Wend.,  504. 

JOHNSON'S  CASES,  1. 


1799 


JOHNSON  v.  BI.OODGOOD. 


53 


tors.  The  object  of  the  defendant  was  clearly 
a,  speculation  at  the  expense  of  some  one;  an 
54*]  experiment  to  get  rid  of  an  *honest 
debt  by  means  of  bad  paper,  without  paying 
an  equivalent;  such  an  attempt  ought  not  to  be 
encouraged,  to  the  injury  of  third  persons. 
The  decision  of  this  case  will  not  affect  the 
negotiability  of  promissory  notes  for  all  the 
purposes  contemplated  by  the  statute,  made  in 
their  favor.  The  intent  of  that  statute  was 
not  to  give  currency  to  notes  already  dishon- 
oured, nor  to  open  a  door  for  speculations  of 
this  sort,  but  io  promote  the  convenience  of 
trade,  by  a  free  circulation  of  creditable 
paper,  as  a  substitute  for  money,  and  by  pro- 
viding a  remedy  for  the  holder  of  such  paper 
in  his  own  name.  It  does  not  follow  that  a 
note  when  overdue  is  deprived  of  its  nego- 
tiable quality.  I  think  it  may  still  be  nego- 
tiated, and  prosecuted  in  the  name  of  the 
holder,  but  subject  to  every  equitable  defence 
by  the  antecedent  parties,  and  all  other  per- 
sons who  may  be  affected  by  it. 

/  am  of  the  opinion,  therefore,  that  the  note  in 
qmstion  was  properly  excluded. 

KENT,  J.  This  appears  from  the  judge's 
report  to  be  a  suit  brought  for  the  benefit  of 
the  creditors  of  the  plaintiff.  His  name  is 
used  merely  to  satisfy  the  form  of  law.  The 
suit  is  substantially  between  the  creditors  of 
Johnson  and  the  defendant,  and  it  is  now  well 
understood  that  courts  of  law  will  take  notice 
of  assignments  and  trusts,  and  consider  who 
are  beneficially  interested,  and  will  protect  the 
tt&tui  que  trust. 

In  giving  my  opinion,  I  mean  to  question 
the  law,  that  a  bill  or  note  may  be  negotiated 
after  it  is  due,  and  be  declared  upon  as  such. 
(1  Ld.  Raym,  175.)  But  I  approve  of  the  doc- 
trine, and  adopt  it  as  salutary  and  calculated 
to  prevent  fraud,  as  laid  down  in  the  cases  of 
Brown  &  Daris  (3  Term,  80)  and  Taylor  & 
Mather  (3  Term,  83),  that  if  a  bill  or  note  be 
indorsed  after  it  becomes  due,  it  throws  a  sus- 
picion on  the  transaction,  and  the  indorsee 
must  take  it,  subject  to  all  the  equity  that  ex- 
isted in  favor  of  the  maker  of  the  note  before 
it  was  indorsed;  and  that  if  there  be  any 
.attendant  circumstances  of  fraud,  the  indorsee 
shall  have  every  presumption  turned  against 
him.  So,  in  the  present  case,  the  defendant 
stating  generally  that  he  purchased  the  note 
55*]  in  the  year  1793,  it  *shall  be  presumed 
that  he  purchased  it  after  the  16th  of  January, 
1793,  the  date  of  the  assignment  of  the  insol- 
vent's estate. 

When  a  note  is  offered  for  sale  after  it  be- 
comes due,  and  at  a  discount,  what  is  the 
necessary  inference?  Most  certainly  that  the 
maker  is  insolvent,  and  if  so,  his  effects  and 
credits  ought  immediately  to  enure  to  the 
benefit  of  his  creditors,  and  be  regarded  only 
as  their  trustee.  The  presumption  will  be,  for 
so  indeed  justice  would  dictate,  that  the  in- 
solvent makes,  forwith,  a  full  and  frank  dis- 
•closure  and  assignment  of  all  his  property  for 
the  payment  of  his  debts.  And  if  the  insol- 
vent do,  in  fact,  make  such  an  assignment, 
the  purchaser  of  the  note  in  such  a  case,  after 
the  assignment  at  a  depreciated  rate  for  the 
purpose  of  a  set  off,  though  he  may  not  in 
fact  know  of  the  assignment,  yet  he  is  properly 


chargeable  with  having  acted  under  an  im- 
plied notice  of  the  assignment.  The  law  in- 
fers the  notice,  being  what  is  termed  construc- 
tive notice  (2  Fonb.  155);  he  accordingly  com- 
mits a  fraud  upon  his  creditors;  he  does  an  act 
mala  fide;  and  as  Lord  Kenyon  observed  in  a 
case  not  very  unlike  the  present,  "It  would 
be  very  unjust  indeed  if  one  person,  who  hap- 
pens to  be  indebted  to  another  at  the  time  of 
the  bankruptcy  of  the  latter,  were  permitted, 
by  any  intrigue  between  himself  and  a  third 
person,  so  to  change  his  situation  as  to 
diminish,  or  totally  to  destroy  the  debt  due  to 
the  bankrupt  by  an  act  ex  post  facto."  (6 
Term,  59.) 

I  accordingly  continue  in  the  opinion  that 
was  given  at  the  trial,  that  the  note  purchased 
by  the  defendant  was  inadmissible  evidence 
under  the  plea  of  payment,  and  that  the  de- 
fendant must  take  nothing  by  his  motion. 

BENSON,  J. ,  declared  himself  to  be  of  the 
the  same  opinion. 

LEWIS,  J.  That  choses  in  action  are  not 
assignable,  is  a  very  ancient  rule  of  the  com- 
mon law. 

The  many  inconveniences  resulting  from  a 
rigid  adherence  to  this  rule,  which  must  have 
been  sensibly  felt  previous  to  the  introduction 
of  the  equity  jurisdiction  of  the  Court  of 
Chancery,  induced  the  common  law  courts,  at 
an  *early  period,  to  give  effect  to  such  [*56 
transfers,  by  considering  them  in  the  nature  of 
declarations  of  trust;  the  sanctity  of  legal  forms 
not  being  thereby  violated  as  the  assignee  prose- 
cuted in  the  name  of  the  assignor,  by  virtue  of 
a  power  contained  in  the  instrument  of  assign- 
ment. This  remedy  proved,  however,  in  many 
cases,  a  very  inadequate  one  ;  the  equitable  or 
beneficial  rights  of  the  cestui  que  trust  not  be- 
ing noticed,  were  ever  liable  to  be  defeated  by 
the  act  of  the  trustee,  or  impaired  by  his  debts. 
When  the  equity  jurisdiction  of  the  chancery 
became,  by  the  invention  of  uses,  completely 
established,  it  soon  assumed  the  almost  ex- 
clusive cognizance  of  frauds,  accidents  and 
trusts.  To  make  this  remedy  complete,  the 
party  was,  therefore,  in  such  cases,  obliged  to 
resort  to  that  court;  the  delay  and  expense  of 
which  induced  the  common  law  courts  to  ex- 
tend the  remedy,  by  further  relaxations,  until 
finally  they  left  the  exclusive  jurisdiction  of  a 
court  of  equity  little  more  than  mere  technical 
trusts.  The  reform,  however,  has  been  gradual 
and  cautious,  and  extended  not  beyond  a  re- 
fusal to  support  a  payment  made  to  the  as- 
signor, after  notice  to  the  debtor  of  the  assign- 
ment of  the  debt,  until  the  19th  of  Geo.  III. ,  a 
period  at  which  the  obligatory  force  of  English 
adjudications  had  ceased  to  operate  in  this 
country.  Satisfied,  however,  with  the  princi- 
ples of  subsequent  cases,  I  am  content  to  go  as 
far  as  they  have  gone,  but  am  not  prepared  to 
go  one  step  beyond  them.  It  becomes,  then, 
of  importance  to  inquire  how  far  the  English 
courts  have  gone  in  noticing  equities  and  trusts, 
and  whether  they  have  done  it  in  any  instance 
to  the  prejudice  of  a  perfect  right  vested  in  a 
third  person. 

I  shall  consider,  in  the  order  of  time,  such 
cases  as  I  have  met  with,  beginning  with  that 
of  Fenner  and  Meares  (2  Black,  1269),  which, 


JOHNSON'S  CASES,  1. 


N.  Y.  REP.,  BOOK  1. 


16 


241 


SOPRKME  COURT,  STATE  OP  NEW  YORK. 


179S> 


though  not  precisely  in  point,  since  it  was 
there  determined  that  the  legal  right  as  well  as 
the  beneficial  interest  was  in  the  plaintiff,  still 
looks  towards  it.  Meares  had  borrowed  money 
of  Cox,  on  respondents,  and  by  indorsement 
on  the  bond,  declared  it  was  not  subject  to  set- 
off,  and  that  he  would  pay  the  principal  and 
57*]  interest  without  *deduction  or  abate- 
ment, to  whomsoever  it  should  be  assigned  by 
the  obligee.  An  assignment  was  made  for 
valuable  consideration  to  the  plaintiff,  who 
brought  assumpsit  for  money  had  and  received; 
and  the  court  determined  that  it  was  main- 
tainable by  force  of  the  indorsement;  though 
it  was  admitted,  that  had  the  suit  been  brought 
in  the  name  of  Cox,  the  defendant  might  have 
pleaded  a  set-off. 

The  next  case  is  that  of  Bottomly  v.  Brooke, 
(22  Geo.  III.),  the  decision  in  which  was,  that 
where  A  gave  a  bond  to  B  in  trust  for  C,  and 
at  C's  request,  A  might,  to  an  action  of  debt 
brought  on  this  bond  in  the  name  of  B,  plead 
the  special  matter,  and  set  off  a  demand 
against  C. 

The  case  of  Rudge  v.  Birch  (25  Geo.  III.) 
was  precisely  similar  to  the  preceding. 

In  Webster  v.  Scales  the  only  point  decided 
was,  that  what  a  bankrupt  holds  as  a  trustee, 
is  not  assignable  by  the  commissioners,  the 
statute  empowering  them  to  assign  those  things 
only  which  are  for  the  benefit  of  the  bank- 
rupt. 

The  three  cases  last  mentioned  are  cited  in 
Winch  &  Keeley  (1  Term,  619),  in  which  the 
only  question  was,  whether  the  defendant 
should  pay  a  balance  of  an  account  to  the 
plaintiff  for  the  use  of  his  assignee,  or  to  his 
assignees  under  a  subsequent  commission  of 
bankruptcy.  The  court  determined  it  was  not 
assignable  under  the  commission,  within  the 
terms  of  the  statute  of  James,  and  that  the 
plaintiff  of  course  should  recover. 

Of  all  these  cases,  not  one  goes  so  far  as  to 
notice  the  beneficial  interest  of  a  cestui  que 
trunt  to  the  prejudice  of  a  perfect  right  vested 
in  a  third  person,  a  consequence  unavoidable 
in  the  present  case,  if  the  decision  at  nisi  prius 
be  supported.  Their  utmost  extent  is  that  in 
an  action  by  a  trustee  against  a  creditor  of  a 
cestui  que  trust,  the  defendant  may  plead  the 
special  matter,  and  set  off  the  demand  against 
the  person  having  the  beneficial  interest  in  the 
suit.  (See  4  Term.)  But  no  case,  I  am  per- 
suaded, can  be  adduced,  in  which  it  has  been 
58*]  permitted  to  a  trustee  plaintiff  to  *pre- 
clude  a  defendant  from  a  set-off,  by  alleging 
that  he  prosecutes  for  the  benefit  of  another, 
when  such  defendant  was  ignorant  of  the 
trust  at  the  time  of  giving  the  credit;  for  his 
debt  to  the  trustee  may  have  been  the  sole  in- 
ducement to  the  credit,  and  have  led  him  to 
purchase  his  paper,  when  perhaps  no  other 
person  would. 

Legal  decisions,  on  commercial  questions 
particularly,  should  ever  be  founded  on  the 
broad  basis  of  general  principle,  and  there  is 
no  better  test  of  the  soundness  of  such  princi- 
ple than  its  applicability  to  every  similar  case. 
The  decision  at  nin  pritis  will  be  found  to  be, 
that  a  defendant  shall  in  no  case  set  off  where 
the  plaintiff  prosecutes  for  the  benefit  of  cred- 
itors; for  the  particular  circumstances  of  this 
case,  when  examined,  can  have  no  influence. 
242 


To  purchase  a  note  in  the  market  for  less  than 
its  nominal  value,  is  neither  usurious  nor 
fraudulent;  for  its  nominal  may  not  be  its  real 
value.  To  purchase  it  either  for  the  purpose 
of  compelling  payment  from  the  maker,  or  of 
paying  him  a  debt  with  it  by  way  of  set-off,  is 
a  perfectly  fair  negotiation,  and  not  against 
any  law  of  civil  or  moral  obligation.  Stripped 
of  these  two  circumstances,  it  stands  barely  on 
the  principle  above  stated.  Now,  if  this  prin- 
ciple be  a  sound  one,  it  will  apply  with  equal 
force  to  the  payee  as  to  the  indorsee  of  a  note, 
nor  can  it  vary  the  case  whichever  of  the  debts 
be  first  contracted.  If  Johnson,  then,  had 
given  Sullivan  his  note,  and  before  it  became 
due  Sullivan  had  sold  property  to  Johnson, 
who  afterwards  assigned  his  debts  for  the  ben- 
efit of  his  creditors,  Sullivan  could  not  set  off 
such  note  in  a  suit  brought  against  him  by 
Johnson  for  their  benefit,  even  though  the 
possession  of  the  note  had  been  the  sole  in- 
ducement of  the  sale.  This  is  a  doctrine  which 
neither  law  nor  equity  will  be  found  to  war- 
rant. It  will  apply  as  well  to  the  case  of  an 
assignment  for  the  benefit  of  a  particular  credit- 
or, as  to  an  assignment  to  one  for  the  benefit 
of  all  the  creditors,  and  thus  put  it  in  the 
power  of  a  debtor  to  compel  one  creditor  to 
pay  the  other,  or  a  number  of  creditors  to  con- 
tribute to  the  payment  of  one  whom  he  may 
choose  to  prefer.  Executors  and  *ad-  [*5& 
ministrators,  also,  will  be  embraced  by  the 
rule,  for  they  represent  their  principals,  and 
are  trustees  for  their  creditors.  Nor  will  the 
generality  of  the  assignment,  it  being  for  the 
benefit  of  all  the  creditors  of  the  plaintiff,  vary 
the  case,  unless  it  can  be  shown  that  a  court 
of  common  law  has  the  power  to  declare  that 
on  every  such  voluntary  assignment  creditors 
shall  be  compelled  to  waive  all  advantages, 
and  to  receive  their  dividends  paripassu. 

A  circumstance  of  no  little  weight  on  the 
present  occasion  is,  that  the  set-off  was  not  in- 
consistent with  the  nature  of,  the  trust.  The 
assignment  was  for  the  benefit  of  the  credit- 
ors, and  the  defendant  was  a  creditor,  and 
having  a  lien,  too,  or  security  which  could  not 
be  taken  from  him.  On  the  whole,  if  the  note 
in  question  was  the  note  of  Johnson  which  had 
not  been  discharged,  his  liability  to  pay  it  would 
exist,  notwithstanding  the  assignment  of  his 
property,  and  if  a  suit  would  lie  on  it,  I  can- 
not see  why  it  might  not  be  pleaded  as  pay- 
ment, and  being  a  negotiable  paper,  why  the 
indorser  should  not  be  entiled  to  all  the  ad- 
vantages of  the  original  payee.  But  it  was  in- 
sisted that  its  negotiability  was  at  an  end,  as 
it  had  been  purchased  when  it  was  overdue, 
and  the  case  of  Beckv.  Robley(\  II.  Black,  89,  n), 
and  Brawn  v.  Daris  (3  Term  Kep. ,  80)  were  re- 
lied on.  The  first  of  these  cases,  which  is  sub- 
joined in  a  note  to  the  case  of  Bacon  v.  Searlest, 
has  so  many  suspicious  circumstances  about 
it,  and  is  so  subversive  of  principle,  that  I  do 
not  think  it  much  to  be  relied  on.  It  is  cited 
as  of  Trinity  Term,  14  Geo.  III.,  and  is  di- 
rectly the  reverse  of  the  decision  in  Lmiviere  v. 
iMubray  (10  Mod.,  37),  nor  is  it  to  be  found  in 
any  reporter  of  that  time.  The  last  circum- 
stance is  the  more  extraordinary,  as,  if  truly 
cited,  it  is  an  important  and  leading  case.  The 
amount  of  it  is,  that  if  a  bill  after  acceptance 
and  nonpayment  comes  back  to  the  hands  of 
JOHNSON'S  CASES,  1. 


1799 


JOHNSON  v.  BLOODGOOD. 


59 


the  drawer,  it  ceases  to  be  a  bill,  so  that  an  ac- 
tion cannot  be  sustained  on  it  against  the  ac- 
ceptor. If  this  be  true,  then  the  resemblance 
between  the  acceptor  of  a  bill  and  the  maker 
of  a  note,  and  the  drawer  of  a  bill  and  the  in- 
CJO*]  dorser  of  a  note  is  destroyed,  *where 
the  similarity  of  feature  is  supposed  to  be 
strongest;  for  the  maker  of  the  note  is  the  per- 
son responsible  in  the  last  resort,  and  the  ac- 
ceptor of  the  bill  will  not  be  so.  The  indorser  of 
a  note  who  takes  it  up,  can  maintain  an  action 
against  the  maker,  but  the  drawer  of  a  bill 
under  like  circumstances,  will  not  be  able  to 
sustain  an  action  against  the  acceptor.  The 
well  established  maxim,  also,  that  an  accept- 
ance by  a  drawer  of  is  prima  facie  evidence  of 
his  holding  property  of  the  drawer's  to  the 
amount  of  the  bill,  will  be  shaken.  But  give 
the  authority  its  greatest  latitude,  it  cannot 
reach  the  present  case,  for  though  the  note 
may  have  lost  its  negotiability,  it  certainly  is 
still  a  note,  for  which  the  maker  is  liable,  un- 
less it  shall  appear  to  have  been  discharged. 

The  case  of  Brown  v.  Davis  is  not  more  ap- 
plicable than  that  of  Beck  v.  Robley.  The  ex- 
tent of  it  is,  that  the  indorsee  of  a  note  over- 
due shall  stand  in  the  place  of  the  original 
payee,  and  be  subject  to  all  the  disadvantages 
of  his  situation;  such  as  the  defendant  being 
permitted  to  show  that  the  note  was  paid, 
which  was  the  ground  of  defence  in  that  case, 
or  that  it  was  made  on  an  illegal  consideration, 
as  in  the  case  of  Banks  v.  Colwell  there  cited. 
In  the  principal  case,  Mr.  Justice  Buller, 
speaking  of  a  note  overdue,  makes  this  em- 
phatic observation,  "I  do  not  say,  that  by  law 
it  is  not  negotiable."  And  again,  in  the  case 
of  Taylor  v.  Matlier  (3  Term  Rep.,  83,  n.),  in 
a  note  subjoined,  he  says,  that  "it  has  never 
been  determined  that  a  bill  or  note  is  not  ne- 
gotiable after  it  becomes  due." 

A  further  remark,  which  has  great  weight 
with  me,  is  that  all  the  decisions  on  this  sub- ' 
ject  are  in  favor  of  defendants,  and  none  in  i 
favor    of   trustee  plaintiffs ;    and    with   good  ; 
reason,  because,  in  the  former  case,  the  strict  j 
rules  of  law  are  made  to  yield  to  substantial 
justice,   without  fraud  or  collusion;  for  the 
plaintiff  may  put  the  fact  of  a  trust  in  issue,  j 
and  the  defendant,  if  he  cannot  substantiate  j 
his  plea,  must  fail.     But  in  the  latter  case,  j 
fraudulent  and  collusive  assignments  may  be 
set  up,  whenever  a  man  wishes  to  avoid  the 
C>  1*]  payment  of  his  ju^t  *debts,  and  a  defend- 
ant be  thereby  precluded  from  a  set-off,  how- 
ever righteous  may  be  his  demand. 

Some  observations  were  made,  in  the  course 
of  the  argument,  against  granting  the  effect  of 
the  present  motion,  on  the  suspicious  appear- 
ance of  the  indorsement  on  the  note,  which 
were,  in  my  opinion,  irrelevant,  as  the  note 
was  not  in  evidence.  For,  notwithstanding 
their  force,  and  the  effect  they  would  probably 
have  produced  on  the  mind  of  the  jury,  they 
were  questions  exclusively  for  their  decision. 
The  consequence  of  a  right  decision  on  this 
question  having  appeared  to  me  important,  I 
have  examined  it  with  more  attention,  and 
have  not  a  doubt  that  a  new  trial  ought  to  be 
awarded. 

LANSING,  Ch.  J.  To  determine  whether  the 
note  ought  to  have  been  received,  it  is  requisite 
JOHNSON'S  CASES,  1. 


to  examine.  1st.  The  effect  of  the  indorsement 
of  the  note  after  it  became  due; 

2d.  Whether  the  assignment  made  by  the  note 
plaintiff  varried  the  relative  situation  which 
existed  between  the  plaintiff  and  the  defend- 
ant. 

It  seems  to  be  settled  in  the  English  courts, 
that  the  indorsement  of  a  note  after  it  becomes 
due  shall  not  exempt  the  holder  from  any  dis- 
ability which  the  payee  as  intermediate  in- 
dorser would  be  exposed  to,  if  it  had  remained 
in  the  hands  of  either.  The  indorsee  after  it 
is  overdue  takes  it  at  his  own  risk,  and  relies 
not  solely  but  principally  on  the  credit  of  the 
indorser  from  whom  he  receives  it;  for  the  in- 
dorser retains  a  right  of  resorting  to  the  maker 
or  prior  indorsers  with  the  like  effect,  as  he 
might  have  done  before  the  note  became  due, 
as  long  as  they  cannot  avail  themselves  of 
some  legal  ground  of  discharge,  arising  from 
the  transactions  between  the  parties  prior  to 
the  last  indorsement  This  I  take  to  be  the 
extent  of  the  doctrine  assumed  by  the  English 
courts,  and  it  is  such  as  appears  to  me  to  be 
well  warranted  by  the  soundest  legal  princi- 
ples, applied  to  the  nature  of  negotiable  paper. 

*Judge  Buller,  who  laid  down  the  [*62 
broadest  principles  of  any  of  the  judges  who 
gave  an  opinion  in  the  case  of  Brmon  v.  Dams, 
observes,  "that  if  a  note  is  overdue,  though 
he  does  not  say  it  is  not  negotiable,  yet  it  is 
out  of  the  common  course  of  dealing,  and  does 
give  rise  to  suspicion.  Still  stronger  ought 
that  suspicion  to  be  when  it  appears  from  the 
face  of  the  note  to  have  been  noted  for  non- 
payment." Upon  this  ground  it  was  that  in 
another  case  tried  before  him  he  said,  "that 
the  defendant,  who  was  the  maker,  was  en- 
titled to  set  up  the  same  defence  that  he  might 
have  done  against  the  original  payee.  A  fair 
indorser  can  never  be  injured  by  this  rule,  for 
if  the  transaction  be  a  fair  one,  he  will  still  be 
entitled  to  recover." 

In  the  case  of  Taylor  v.  Mather  (3  Term,  83), 
the  note  was  indorsed  after  it  was  due,  and 
there  were  many  circumstances  which  led  the 
court  and  jury  to  conclude  that  it  was  fraud- 
ulently obtained:  whereupon  a  verdict  was 
found  for  the  defendant.  •  Upon  a  motion  for 
a  new  trial,  it  was  refused  on  the  merits,  and 
Mr.  Justice  Buller  said,  "it  never  has  been  de- 
termined that  a  bill  or  note  is  not  negotiable 
after  it  becomes  due;  but  if  there  are  any  cir- 
cumstances of  fraud  in  the  transaction,  and  it 
comes  to  the  hands  of  a  plaintiff  by  indorse- 
ment after  it  is  due,  I  have  always  left  it  to 
the  jury,  upon  the  slightest  circumstances,  to 
presume  the  indorsee  was  acquainted  with  the 
fraud." 

I  know  of  no  cases  which  have  shaken  these 
principles,  and  they  appear  to  me  fully  to 
make  out  that  the  negotiable  quality  of  the 
note  is  preserved,  though  it  is  overdue;  but 
with  less  advantage  to  the  holder  than  it  would 
have  possessed  had  he  acquired  it  before  it 
became  due. 

The  consideration  of  the  second  point  would 
be  of  consequence,  if  it  necessarily  led  the 
court  into  the  inquiry  whether  they  could,  on 
sound  legal  reasoning,  adopt  the  latitude  of 
construction  assumed  by  the  English  courts, 
after  our  revolution,  against  the  common  law 
principle,  that  a  chose  in  action  is  not  assign- 

243 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


able.  This,  however,  seems  to  beone  of  those 
63*]  cases  which,  if  tested  by  the  *whole 
course  of  the  English  adjudications,  would 
not  be  materially  affected  by  them. 

The  case  of  Winch  v.  Keely  (1  Term,  619), 
has  been  cited,  as  somewhat  analogous  to  the 
present  case;  but  that  was  determined  on  the 
construction  of  the  bankrupt  laws;  it  was  de- 
cided on  the  ground  that  the  debt  assigned  by 
the  bankrupt,  prior  to  the  bankruptcy,  was 
held  by  him  as  trustee,  and  so  did  not  pass 
under  the  commission ;  and  Mr.  Justice  Ash- 
hurst  remarks,  that  it  would  be  productive  of 
great  expense  to  send  the  parties  to  the  other 
end  of  the  hall;  and  whenever  the  court  have 
seen  that  the  justice  of  the  case  is  clearly  with 
the  plaintiff,  they  have  not  turned  him  round. 
The  justice  of  this  case  does  not  appear  to  me 
to  be  clearly  with  the  plaintiff.  Set-offs  are 
productive  *of  the  most  beneficial  and  equita- 
ble effects.  They  tend  to  prevent  a  multi- 
plicity of  suits;  they  adjust  the  adverse  claims 
of  the  contending  parties,  and  yield  the  bal- 
ance to  the  prevailing  one ;  thus  affording 
substantial  justice  to  both,  without  permitting 
the  forms  of  law  to  prevent  it.  It  is  a  matter 
of  no  moment  here  how  the  right  of  set-off 
was  acquired,  if  it  was  bonafide. 

By  suffering  the  doctrine  of  beneficial  trusts 
to  be  introduced  to  the  extent  contended  for; 
and  particularly  by  applying  it  to  the  cases  of 
mutual  dealings,  it  appears  to  me  that  great 
inconveniences  would  result,  and  new  rules 
ought  perhaps  to  be  devised  to  prevent  them; 
for,  if  a  plaintiff  can,  by  the  assignment  of  a 
chose  in  action,  acquire  a  beneficial  interest, 
capable  of  being  enforced  in  a  court  of  com- 
mon law,  the  defendant  must  possess  a  similar 
power.  If,  then,  a  plaintiff  brings  a  suit  on 
a  demand  for  which  he  is  entitled  to  recover, 
and  the  defendant,  instead  of  depending  upon 
a  set-off  originating  from  mutual  dealings  be- 
tween them,  may  resort  to  a  creditor  of  the 
plaintiff,  obtain  an  assignment  from  him,  and 
plead  it  by  way  of  set-off,  the  court,  instead 
of  settling  the  actual  dealings  subsisting  be- 
tween the  parties  to  the  suit,  may  be  involved 
in  all  the  intricacies  of  controversies  between 
others  not  appearing  as  parties.  This  is  now 
<>4*]  the  *case,  in  a  limited  degree,  as  far  as 
respects  negotiable  paper;  but  from  the  prin- 
ciples which  govern  cases  of  that  kind,  many 
objects  of  controversy  are  avoided  which  must 
inevitably  be  connected  with  other  transac- 
tions. This  is  one  of  the  inconveniences  that 
occurs  to  me  on  the  occasion ;  others,  I  am 
apprehensive,  would  be  presented  in  practice. 
I  am  inclined  to  think  that  there  are  no  cases 
prior  to  our  revolution  which  carry  the  doc- 
trine of  trusts  farther,  as  cognizable  in  courts 
of  law,  than  to  the  cases  where  the  trust  was 
coeval  with  the  debt. 

That  the  note  was,  in  this  instance,  indorsed 
when  it  was  overdue ;  that  it  was  purchased  at 
an  undervalue,  are  circumstances  which  can- 
not, in  any  event,  legally  affect  the  defendant's 
right,  as  it  is  not  ascertained  whether  he  ob- 
tained the  note  before  or  after  the  assignment 
by  the  plaintiff  to  his  creditors.  The  purchase 
is  stated  to  have  been  made  sometime  in  the 
year  1793,  and  the  assignment  on  the  16th  Jan- 
dary  in  the  same  year. 

If  the  defendant  acquired  the  note  previous 
244 


to  the  assignment,  I  suppose  no  doubt  can  ex- 
ist that  he  ought  to  have  the  benefit  of  it  as  a 
set-off.  If  he  acquired  it  afterwards,  I  have 
given  my  reasons  why  I  doubt  the  right  of  the 
plaintiff  to  preclude  him  from  it. 

Upon  the  whole,  I  am  of  opinion  that  the 
note  ought  to  have  been  given  in  evidence  to 
the  jury,  and  that,  on  that  ground,  a  new  trial 
ought  to  be  awarded. 

Rule  refused. 

Distinguished— 14  Abb.,  117 ;  1  Daly,  294. 

Cited  in  —5  Johns.,  194;  12  Johns.,  945;  13  Johns., 
22 ;  19  Johns.,  52,  97 ;  1  Cow.,  398 ;  5  Wend.,  601 ;  6  Hill, 
239 ;  3  How.  Pr.,  388 ;  2  Duer,  643 ;  2  Code  Rep.,  5. 

See  2  Caines'  Cos.,  303. 


*BETTS  v.  TURNER. 


[*65 


1.   Covenant — Performance.  2.  To  pay  Another's 
Debt  after  Legal  Proceedings  taken. 

T.  sold  to  B.  a  promissory  note,  made  by  C.  pay- 
able to  H.  or  order,  to  be  collected  by  B.  at  his  own 
risk,  and  costs,  as  it  respected  the  ability  of  the 
maker  and  payee,  and  T.  covenanted  "to  pay  to  B. 
$2,000,  when  required,  in  case  B.  should  take  all  and 
every  legal  step  to  prosecute  to  effect  the  maker 
and  payee,  to  wit:  if  B.  nor  no  one  in  his  name,  nor 
in  the  name  of  the  payee,  could  not  recover  judg- 
ment legally  against  the  maker,  on  the  said  note,  or 
against  the  payee,  in  case  he  had  discharged  the 
note  at  the  tune  of  making  the  said  covenant,  pre- 
vious to  the  bringing  of  a  suit  against  the  maker." 
The  maker  resided  in  the  State  of  Massachusetts, 
and  B.  brought  a  suit  in  the  Court  of  Common 
Pleas,  in  that  State,  in  the  name  of  the  payee,  ac- 
cording to  the  law  of  that  State,  where  notes  were 
not  negotiable,  and  the  payee  appeared  in  court, 
and  disavowed  any  authority  from  him  to  bring  the 
suit,  in  consequence  of  which  the  suit  was  dismissed. 
The  note  was  .not  indorsed  by  the  payee.  In  an 
action  of  covenant  brought  by  B.  against  T.,  it  was 
held  that  the  parties,  having  in  view  the  law  of  Mas- 
sachusetts, where  the  note  was  made,  B.  had  used 
every  legal  endeavor  to  recover  the  money,  within 
the  meaning  of  the  covenant,  and  having  railed  to 
recover  the  amount,  T.  was  liable  to  pay  to  him  the 
82,000,  according  to  his  covenant,  without  B.'s  hav- 
ing first  attempted  by  suit  to  recover  the  amount  of 
the  note  from  the  payee. 

Citations  in  Dissenting  Opinion— 2  Stra.,  763;  5 
Co..  22  b. ;  Cro.  Eliz.,  7,  916 ;  T.  Raym.,  464 ;  1  Sid., 
48,151;  5  Co..  22  b. 

THIS  was  an  action  of  covenant.  The 
plaintiff  declared  that  by  a  certain  deed, 
bearing  date  the  15th  June,  1797,  it  was  re- 
cited that  one  John  Baker,  on  the  17th  Octo- 
ber, 1795,  made  a  promissory  note  for  the  sum 
of  $833.33,  payable  the  1st  April,  1797,  to 
William  Hooker,  or  order;  that  the  defendant 
was  possessed  of  the  said  note,  and  had  sold 
the  same  to  the  plaintiff,  to  be  collected  by 
him,  "  at  his  own  risk,  and  costs,  as  it  respect- 
ed the  ability  of  the  said  Baker  and  Hooker." 
The  defendant  thereby  covenanted  "  to  pay  to 
the  plaintiff  $2,000,  when  thereto  afterwards 
required,  in  case  the  plaintiff  should  take  all 
and  every  legal  step  to  prosecute  to  effect  the 
said  Baker  and  Hooker,  to  wit:  if  the  plaintiff, 
or  any  other  person  in  his  name,  or  in  the  name 
of  Hooker,  could  not  legally  recover  judgment 
against  the  said  Baker  on  the  said  note,  or 
against  the  said  Hooker,  in  case  the  said 
Hooker  had,  at  the  time  of  making  the  said 
covenant,  discharged  the  said  note,  or  should 
discharge  the  same,  previous  to  the  bringing  a 
suit  against  the  said  Baker."  The  declaration 
JOHNSON'S  CASES,  1. 


1799 


BETTS  v.  TURNER 


65 


further  stated  that  Baker,  at  the  time  of  mak- 
ing the  covenant,  and  ever  since,  resided  in  the 
County  of  Hampshire,  in  the  State  of  Massa- 
chusetts; that  on  the  21st  July,  1797,  the 
plaintiff  instituted  a  suit  on  the  note,  in  the 
name  of  Hooker,  against  Baker,  in  the  Court 
of  Common  Pleas,  in  the  said  County  of 
Hampshire,  according  to  the  legal  mode  of 
proceeding  in  that  State  ;  that  the  process  was 
returned  duly  served,  but  that  at  the  return 
thereof  Hooker  appeared  in  the  said  court,  and 
disavowed  any  authority  from  him  to  bring 
66*]  the  suit,"upon  which  disavowal  *the  suit 
was  dismissed  by  the  court.  The  plaintiff 
then  averred  that  he  had  taken  every  legal 
step  to  prosecute  Baker  to  effect  on  the  note, 
and  that  he  had  no  legal  remedy  to  sue  and 
prosecute  upon  the  note  in  his  own  name, 
either  against  Baker  or  Hooker,  and  that  the 
note  was  never  indorsed  or  assigned  by  Hook- 
er, the  payee,  to  any  person,  so  as  to  enable 
any  other  person  than  Hooker  to  maintain  a 
suit  in  his  own  name  against  Baker;  and  the 
plaintiff  further  averred  that  Hooker  had  not, 
at  the  time  of  making  the  covenant,  nor  before 
the  commencement  of  the  suit  in  Massachu- 
setts, discharged  the  note.  He  then  alleged 
notice  of  the  premises  to  the  defendant,  and  a 
demand  of  the  $2,000,  covenanted  to  be  paid, 
and  that  the  defendant  refused,  &c. 

The  defendant  pleaded  two  pleas;  the  first, 
having  been  relinquished  on  the.  argument, 
need  not  be  stated.  The  second  was  to  the 
following  effect :  that  Baker  and  Hooker  lived 
in  the  State  of  Massachusetts  at  the  time  of 
making  the  note  ;  that  the  note,  for  valuable 
considerations,  had  been  sold  and  delivered  by 
Hooker  to  one  Cole,  and  by  him  to  one  Booth, 
and  by  Booth  to  the  defendant,  and  by  him  to 
the  plaintiff,  and  that  it  never  was  sold  to  any 
other  person;  that  by  the  law  of  Massachu- 
setts, such  a  note  was  not  negotiable,  but  a 
bona  fide  holder  might  commence  a  suit  upon 
it  in  the  name  of  the  payee  against  the  maker, 
and  if  the  payee  should  release  the  suit,  or  j 
discharge  the  note,  he  would  be  liable  to  pay  I 
the  holder  of  the  note.  He  then  averred  that 
the  plaintiff  had  not  prosecuted  Hooker,  nor 
attempted  to  recover  the  amount  of  the  note 
against  him,  and  that  he  might  have  done  this  j 
by  the  law  of  Massachusetts,  and  which,  he 
insisted,  was  a  previous  condition  of  the  cov- 
enant, in  order  to  entitle  him  to  an  action 
against  the  defendant. 

There  was  a  general  demurrer  to  both  pleas, 
and  a  joinder  in  demurrer. 

Mr.  Spencer  for  the  plaintiff. 
Mr.  Frafser  for  the  defendant. 

67*]  *RADCI,IFF,  J.  The  covenant  on 
which  this  action  is  founded,  is  expressed  in 
terms  so  obscure  that  without  an  attentive  ex- 
amination it  may  be  difficult  to  discover  the 
real  intent  of  the  parties.  This  embarrassment 
is  increased  by  the  circumstance  that  the  cov- 
enant relates  to  a  contract  made  in  Massachu- 
setts, and  subject  to  the  laws  of  that  State. 
By  the  recital  in  the  deed  containing  the  cov- 
enant, it  appears  that  the  plaintiff  purchased 
the  note  from  the  defendant  for  a  valuable 
consideration,  and  if  we  were  to  collect  the 
terms  of  the  purchase  from  the  recital  only,  it 
JOHNSON'S  CASES,  1. 


would  seem  that  the  plaintiff  took  the  note 
wholly  at  his  own  risk,  as  it  respected  the 
ability  of  Baker  and  Hooker.  In  this  limited 
view  of  the  contract,  I  admit,  it  would  be  in- 
cumbent on  the  plaintiff  to  show  that  he  had 
attempted  to  recover  against  both  and  had 
failed.  Such  attempts  against  both  would  be 
conditions  precedent  to  his  right  of  recovery 
in  this  action,  and  ought  to  be  strictly  per- 
formed. But  though  the  recital  might  justify 
this  construction,  and  though  it  be  also  true 
that  agreements  thus  recited  in  themselves 
often  amount  to  distinct  covenants,  and  are 
considered  as  such;  yet,  when  they  are  merely 
introductory  to  subsequent  stipulations  in  the 
same  deed,  and  relative  to  the  same  matter, 
they  are  dependent  on,  and  may  be  enlarged, 
qualified,  or  restrained  by  the  subsequent  stipu- 
lations. I  think  that  the  subsequent  cove- 
nants between  the  parties  in  the  present  case 
have  this  effect.  They  explain  and  modify 
the  risk  undertaken  by  the  plaintiff,  and  show 
it  to  be  different  in  its  operation  from  the  un- 
qualified sense  in  which  it  is  expressed  in  the 
recital. 

The  covenant  on  the  part  of  the  defendant 
is  that  he  will  pay  to  the  plaintiff  $2,000, 
when,  &c.,  in  case  the  plaintiff  shall  take 
every  legal  step  to  prosecute  to  effect  the  said 
Baker  and  Hooker;  and  the  covenant  states 
the  manner  in  which  he  is  to  prosecute,  and 
the  events  upon  which  the  defendant  was  to 
be  liable,  that  is  to  say,  "if  the  plaintiff,  nor 
no  one  in  his  name,  or  in  the  name  of  Hooker, 
could  recover  judgment  against  Baker  on  the 
note,  or  against  Hooker,  in  case  the  said 
Hooker  had,  at  *the  time  of  the  cove-  [*68 
nant,  discharged  the  said  note,  or  should  dis- 
charge the  same  previous  to  the  bringing  a  suit 
against  Baker."  The  parties  contemplated  a 
suit  against  Baker  only  in  case  the  note  re- 
mained due  and  undischarged,  for  this  is  not 
only  the  sense  of  the  covenant,  but  it  is  ad- 
mitted by  the  pleadings  that  in  such  case  no 
suit  could  be  maintained  against  Hooker,  he 
not  having  indorsed  the  note,  nor  being  liable 
but  in  consequence  of  a  discharge  by  him.  It 
cannot,  therefore,  be  supposed  that  the  plaint- 
iff in  that  case  was  bound  to  sue  both  Hooker 
and  Baker,  before  he  could  resort  to  the  de- 
fendant. So,  also,  if  the  note  had  been  dis- 
charged by  Hooker  at  the  time  of  the  cove- 
nant, or  at  any  time  before  a  suit  was  brought 
against  Baker,  it  cannot  be  imagined  that 
either  the  plaintiff  or  defendant  contemplated 
that  in  such  case  an  experiment  to  recover  a 
judgment  against  Baker  was  still  to  be  made. 
It  would  not  be  requisite  by  the  terms  of  the 
covenant,  and  would  in  itself  be  nugatory. 
The  true  construction  of  the  covenant,  there- 
fore, appears  to  be,  that  if  the  note  was  not 
discharged,  a  suit  was  to  be  brought,  and  a 
judgment  endeavoured  to  be  recovered  against 
Baker;  and  if  before  such  suit  the  note  was 
discharged  by  Hooker,  an  attempt  should  then 
be  made  to  recover  a  judgment  against  Hook- 
er, and  in  either  case,  if  a  judgment  was  re- 
covered, the  plaintiff  took  upon  himself  the 
risk  of  the  solvency  of  Hooker  and  Baker; 
but  if  in  the  one  case  no  judgment  could  be 
recovered  against  Baker,  or  in  the  other 
against  Hooker,  the  defendant  was  then  to 
pay  the  money  stipulated  by  his  covenant.  In 

245 


68 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1799 


this  manner,  I  apprehend,  and  in  no  other,  did 
the  plaintiff  take  upon  himself  the  risk  as  to 
the  ability  of  Baker  and  Hooker  respectively. 
It  appears  the  note  was  not  discharged  by 
Hooker,  and  the  plaintiff,  therefore,  com- 
menced his  suit  against  Baker,  and  it  is  not 
denied  that  he  has  taken  every  legal  step  to 
recover  a  judgment  against  him;  but  it  is  in- 
sisted, that  after  the  dismissal  of  the  suit 
against  Baker,  in  consequence  of  the  act  of 
Hooker,  the  plaintiff  ought  to  have  instituted 
69*]  another  suit  against  *Hooker,  and  at- 
tempted to  recover  against  him,  which,  as  is 
alleged  in  the  defendant's  plea,  and  is  admitted 
by  the  demurrer,  he  might  have  done  by  the 
law  of  Massachusetts.  But  by  the  terms  of 
the  covenant,  a  suit  against  Hooker  was  not 
necessary,  for  it  requires  the  plaintiff  to  prose- 
cute Hooker  only  in  case  he  had  discharged 
the  note  before  the  date  of  the  covenant,  or 
before  the  commencement  of  a  suit  against 
Baker,  and  not  after. 

It  has  been  said,  that  this  would  be  a  literal 
construction,  and  against  the  spirit  of  the  con- 
tract. All  contracts  are,  no  doubt,  entitled  to 
a  fair  and  liberal  interpretation,  in  order  to 
effectuate  their  intent;  but  that  intent  ought 
to  be  sufficiently  certain  and  obvious  to  jus- 
tify a  departure  from  terms  which  are  express 
and  unequivocal. 

In  the  present  case,  the  parties  had  in  view 
the  law  of  Massachusetts;  the  plaintiff  under- 
took to  prosecute  at  his  own  expense  either 
Baker  or  Hooker  in  that  State,  as  the  case 
might  require,  and  he  was  content  with  the 
liability  of  either,  but  he  did  not  undertake  to 
prosecute  them  successively,  and  expose  him- 
self to  the  costs  and  delay  of  two  suits.  This 
expense  and  delay  may  have  induced  the 
precise  stipulation  in  question,  which  appears 
to  be  the  effect  of  deliberate  caution  and  not 
of  accident.  Other  reasons  for  this  stipula- 
tion may  also  have  existed,  arising  from  the 
law  of  Massachusetts,  or  from  circumstances 
not  officially  known  to  the  court,  and  I  think 
it  would  be  more  hazardous  than  liberal  to 
say,  that  no  sufficient  reasons  existed  to  sup- 
port the  precise  terms  of  the  contract.  We 
must  consider  them  as  understood  by  the  par- 
ties, and  deliberately  made.  As  to  the  point 
under  consideration,  it  seems  to  be  expressed 
with  care  and  precision,  and  we  cannot  with 
safety  apply  to  it  a  meaning  wholly  different 
from  what  the  terms  import.  If  the  intent 
were  doubtful,  the  rule  of  construction  would 
operate  against  the  covenantor;  but  the  sense 
of  the  parties  in  this  instance  is  unequivocally 
expressed,  and  express  covenants  require  a 
strict  and  absolute  performance.  (2  Str.,763.) 
If  they  impose  a  hardship,  it  is  to  be  ascribed 
7O*]  to  the  indiscretion  *of  the  party.  The 
court  cannot  alter  or  amend  the  contract. 

In  the  case  of  -a  bond  conditioned  to  do  a 
thing  which  is  impossible  at  the  time  of  exe- 
cuting it,  the  court  cannot  release  the  obligor. 
The  bond  is  deemed  to  be  single  and  valid, 
and  the  obligor  is  bound  to  pay  the  money.  (5 
Co.,  22,  b.  Laughter's  case.)  It  requires  a 
much  less  rigorous  construction  to  charge  the 
defendant  on  this  covenant.  The  plaintiff 
has  also  averred, in  his  declaration, that  he  had 
no  legal  remedy  to  sue  upon  the  note  in  his 
own  name  either  against  Baker  or  Hooker. 
246 


This  averment  so  far  as  relates  to  another 
prosecution  against  Hooker,  for  the  reasons 
already  given,  I  consider  as  mere  surplusage. 
After  the  suit  against  Baker  it  was  unnecessary 
for  the  plaintiff  to  say  that  he  could  not 
recover  against  Hooker. 

Upon  the  whole,  I  am  of  opinion,  that  the 
objection  to  the  declaration  is  not  well  taken, 
and  that  the  second  plea,  as  well  as  the  first.is 
insufficient,  and  that  judgment  ought  to  be 
rendered  for  the  plaintiff. 

BENSON,  J.,  and  LEWIS,  J.,  were  of  the  same 
opinion. 

KENT,  J.  By  the  covenant  it  appears  that 
the  plaintiff  was  to  do  a  previous  act  to  entitle 
him  to  maintain  a  suit  on  the  covenant;  and 
this  previous  act,  like  all  other  stipulations  in 
covenants,  must  be  done  fairly  and  faithfully, 
according  to  the  spirit  and  intention  of  the 
agreement. 

It  may  be  proper  to  observe  as  a  rule  in  the 
construction  of  covenants,  that  they  are  to  be 
performed  according  to  their  spirit,  rather 
than  their  letter,  "ut  res  magis  valeat  quam 
pereat."  The  beneficial  end  which  the  parties 
had  in  view,  is  to  be  primarily  regarded  and 
enforced.  Thus  where  an  obligee  engaged  to 
deliver  up  his  obligation  to  the  obligor  by 
such  a  day,  and  he  in  the  meantime  puts  it  in 
suit,  and  recovered  upon  it,  and  then  deliv- 
ered it,  this,  although  a  compliance  with  the 
words  of  the  agreement,  was  held  no 
performance  of  the  intent.  (Cro.  Eliz.,  7.) 
So  where  A  covenanted  with  B  that  he  should 
enjoy  a  term  for  six  years,  discharged  from 
tithes,  and  a  suit  was  *brought  after  the  [*7 1 
expiration  of  the  term,  for  the  intermediate 
tithes,  it  was  held  that  B  was  as  much  prej- 
udiced by  a  suit  after  the  term,  as  he  would 
have  been  before,  and  that  the  intent  of  the 
covenant  was,  that  he  should  be  freed  from 
suit  and  payment,  and  that  the  covenant  was 
broken.  (Cro.  Eliz.,  916.)  By  the  same  just 
and  liberal  rule  of  interpretation  it  is  declared 
that  if  one  covenant  to  deliver  the  grains 
made  in  a  brew-house,  and  in  the  meantime 
he  mix  them  with  hops  so  as  to  render  them 
unpalatable  to  cattle;  or  engage  to  deliver  so 
many  yards  of  cloth,  and  he  cuts  it  in  pieces, 
and  then  delivers  it  (T.  Raym.,  464);  or  if  he 
covenants  to  leave  the  timber  on  the  land,  at 
the  expiration  of  a  lease,  and  he  cuts  it  down 
and  so  leaves  it,  these  and  numerous  other  in- 
stances of  the  like  kind  to  be  met  with  in  the 
books,1  are  all  adjudged  to  be  breaches  of  the 
covenant,  because  the  law  regards  not  a  literal, 
but  a  real  and  faithful  performance  of  con- 
tracts, according  to  the  intent  of  the  parties. 
These  principles  ought  to  be  kept  steadily 
in  view,  as  having  an  application  to  the  pres- 
ent case. 

It  is  pretty  obvious,  that  the  defendant  did 
not  intend  to  pay  the  $2,000  until  the  plaintiff 
had  faithfully  tried,  and  tried  in  vain,  to  re- 
cover the  amount  of  the  note  from  Baker  and 
from  Hooker.  The  note  was  sold  to  the 
plaintiff  to  be  collected  at  his  own  risk,  so  far 
as  respected  the  ability  of  Baker  and  Hooker; 
and  it  was  a  condition  precedent  to  the  pay- 


1.— See  1  Sid.,  43, 151. 


JOHNSON'S  CASES,  1. 


1799 


FUOST  v.  CABTER. 


71 


merit  of  the  money  by  the  defendant,  that  the 
plaintiff  should  take  all  and  every  legal  step 
as  the  law  directed,  to  prosecute  to  effect 
Baker  and  Hooker.  He  did  take  those  steps 
to  prosecute  Baker,  but  not  against  Flooker, 
although  the  latter  became  liable  to  him  for 
releasing  the  suit  he  had  instituted  in  his 
name  against  Baker.  Here  then  appears  a 
palpable  failure  on  the  part  of  the  plaintiff  to 
do  an  act  which  was  necessary  to  be  done  to 
entitle  him  to  his  action  against  the  defendant. 
I  mean  the  failure  to  take  the  steps  by  law 
directed  to  prosecute  to  effect  Hooker  as  well 
as  Baker.  It  may,  however,  be  observed,  that 
the  case  in  which  Hooker  is  to  be  prosecuted 
is  afterwards  particularly  stated  in  the  cove- 
72*]  nant,  *and  that  Hooker  was  only  to  be 
prosecuted  if  he  had,  at  the  date  of  the  cove- 
nant, or  should  previous  to  the  suit  against 
Baker,  discharge  the  note;  and  that  never  hav- 
ing discharged  the  note,  the  plaintiff  was  under 
no  obligation,  by  his  covenant,  to  prosecute 
him.  To  this  I  answer,  that  although  this  be 
be  the  letter,  it  cannot  be  the  intent  of  the 
agreement.  The  agreement,in  the  first  instance, 
provides  generally,  that  the  plaintiff  shall 
prosecute  to  effect  both  Hooker  and  Baker,  and 
it  then  proceeds  to  specify  the  instance  in 
which  Hooker  is  to  be  prosecuted,  to  wit:  if 
he  had  then  already,  or  should,  previous  to  a 
.suit  against  Baker,  discharge  the  note.  But 
the  rational  meaning  of  the  covenant,  deficient 
as  it  may  be  in  perspicuity  and  precision,  can- 
not be  otherwise  than  this,  that  the  plaintiff 
should  first  prosecute  Baker,  and  if  Hooker 
should  prevent  him  from  recovering  against 
Baker,  that  he  should  then  prosecute  Hooker. 

The  defendant  seems  to  have  contemplated 
but  a  single  case  in  which  Hooker  could  pre- 
vent a  recovery,  and  that  case  he  has  specified, 
which  was  the  discharge  of  the  note:  Whereas 
an  interference  by  Hooker  in  discharging  or 
releasing  the  suit,  was  an  equal  impediment 
to  a  recovery,  and  equally  exposed  Hooker  to 
a  prosecution.  The  plaintiff  was  to  take  every 
legal  step  to  obtain  a  recovery  both  against 
Baker  and  Hooker,  but  he  omitted  to  take 
any  step  against  Hooker,  and  now  alleges  as 
a  sufficient  excuse,  that  Hooker  did  not  pre- 
vent a  recovery  against  Baker,  in  the  mannei 
mentioned  and  expressly  provided  for  in  the 
•covenant;  that  it  is  true  he  prevented  a  re- 
covery by  discharging  the  suit,  but  he  did  not 
prevent  a  recovery  by  discharging  the  note, 
and  that  he  must  prevent  the  recovery  in  the 
latter  mode,  and  not  in  the  former,  otherwise 
he  was  not  to  be  prosecuted. 

I  cannot  approve  of  this  subtle  distinction 
calculated,  as  it  appears  to  me,  to  elude 
the  end  and  design  of  the  covenant;  for  I  can- 
not preceive  any  possible  inducement,  on  the 
part  of  the  defendant  to  stipulate  that  the 
plaintiff  should  previously  prosecute  Hooker, 
if  he  prevented  a  recovery  against  Baker  by 
discharging  the  note,  which  would  not 
73*]  *equally  be  felt,  and  equally  operate,  if 
Hooker  prevented  a  recovery  against  Baker 
by  discharging  the  suit.  And  for  the  plaintiff 
to  pretend  that  he  was  bound  to  prosecute 
Hooker  in  the  one  case,  because  it  was  ex- 
pressly mentioned  in  the  covenant,  and  that 
lie  was  not  bound  in  the  other  case,  because  it 
happened  to  be  omitted,  although  precisely 
JOHNSON'S  CASES,  1. 


within  the  same  reason,  is  for  him  to  construe 
the  article  by  its  letter,  and  to  disregard  its 
spirit.  It  is  the  same,  according  to  the  cases 
mentioned,  as  to  deliver  up  the  obligation  by 
the  day,  but  in  the  meantime  to  prosecute  and 
recover  on  it;  or  to  deliver  the  cloth,  but  after 
it  is  cut  to  pieces;  or  to  leave  the  timber  on 
the  land,  but  to  leave  it  prostrate.  I  am  ac- 
cordingly of  opinion,  that  the  plaintiff  has  not 
shown,  in  his  declaration,  the  requisite  previ- 
ous performance  on  his  part,  and  that  judg- 
ment ought  to  be  rendered  for  the  defendant. 

LANSING,  Ch.  J.,  declared   himself  of  the 
same  opinion. 

Judgment  for  tlie  plaintiff. 
See  2  Caine's  Cos.,  305. 


FROST  v.  CARTER. 

1.  Insolvent  Debtor — What  Debts  discharged — 
Statute  of  March  21,  1788.  2.  Id.— Provable 
Debts — Bar.  8.  Id. — Indorser's  Claim. 

If  an  indorsor  of  a  promissory  note  pay  it,  after 
the  maker  has  been  discharged  under  the  insolvent 
act,  he  may  recover  the  amount  from  the  maker, 
whose  discharge  will  be  no  bar  to  the  action. 

Citations— 3  Wils.,  14,  269,  271,  347.  580;  6  Term 
K.,  489 ;  1  H.  Black,  640 ;  Cowp.,  525 ;  1  Saund.,  241,note 
5.  2  Win.  Black.,  794;  3  Wils.,  347;  Cowp.,  526;  1 
Term  K.,  599. 

THE  defendant,  on  the  3d  of  January,  1792 
gave  the  plaintiff  a  promissory  note  for 
$9,209.44,  payable  in  90  days.  The  plaintiff 
indorsed  the  note,  and  it  was  further  negotia- 
ted. It  was  not  paid  when  it  became  due,  and 
the  defendant  was  afterwards  discharged 
under  the  insolvent  act.  At  the  time  of  his 
discharge,  the  note  belonged  to  one  Mercer. 
Subsequently  to  the  discharge,  to  wit,  on  the 
1st  of  July,  1794,  the  plaintiff  paid  $3,000  and 
took  up  the  note,  and  then  brought  this  suit  to 
recover  that  money  back  from  the  defendant. 

Mr.  S.  Jones,  Jim.,  for  the  plaintiff. 
Mr.  Hoffman,  for  the  defendant. 

*KENT,  /..delivered  the  opinion  of  the  [*74 
court;  The  Insolvent  Act  of  the  21st  of  March, 
1788,  in  pursuance  of  which  the  defendant 
obtained  the  discharge  which  he  now  sets  up 
in  bar  of  the  plaintiff's  right  of  action,  extends 
the  discharge  to  such  debts,  and  to  such  debts 
only,  as  are  due  at  the  time  of  the  assignment 
of  the  insolvent's  estate,  and  to  debts  contracted 
before  that  time,  though  payable  after- 
wards. Such  debts  must  be  specific  and  cer- 
tain sums  of  money,  to  which  the  creditor  can 
make  oath  as  being  justly  due,  or  to  become 
due  at  some  specified  time ;  and  unless  the 
creditor  at  the  time  of  the  assignment,  be  able 
to  produce  and  verify  such  a  debt,  he  will  not 
be  entitled  to  receive  from  the  assignees  his 
dividend  of  the  insolvent's  effects,  nor  will  he 
be  barred  from  his  future  action  against  the 
insolvent.  So  that,  although  the  plaintiff  in 
the  present  suit  was,  as  I  take  for  granted,  on 
non-payment  of  the  note  by  the  defendant, 
duly  fixed  as  indorsor,  prior  to  the  defendant's 
discharge,  yet  until  he  had  actually  paid  the 
holder  of  the  note  and  taken  it  up,  he  could 

24? 


74 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799- 


not  be  said  to  have  a  certain  and  ascertained 
debt  due  to  him  from  the  defendant.  His  de- 
mand upon  the  defendant  depended  upon  the 
defendant's  final  non-payment  of  the  note,  and 
his  payment  of  it  for  him.  He  stood,  in  re- 
spect to  the  defendant,  in  the  relation  of  a 
surety  only,  and  what  portion  of  the  note  if 
any,  short  of  the  whole  sum,  the  defendant 
himself  might  be  able  to  pay  to  the  holder, 
was  a  matter  altogether  uncertain.  The  plaint- 
iff, therefore,  until  he  paid  the  $3,000  and 
took  up  the  note,  had  not  any  specific  and 
certain  debt  due  to  him  from  the  defendant  ; 
and  as  this  debt  which  is  now  demanded  ac- 
crued subsequent  to  the  defendant's  discharge, 
and  in  consequence  of  an  actual  payment  by 
the  plaintiff,  the  plaintiff  was  not  entitled  to 
claim  his  debt  from  the  assignees  of  the  de- 
fendant, and  consequently,  the  discharge  of 
the  defendant  cannot  be  a  bar  to  a  recovery 
in  the  present  suit. 

75*]  *This  construction  of  the  operation 
of  our  insolvent  act,  is  the  same  with  that  of 
the  English  bankrupt  laws,  in  like  cases.  The 
statute  of  4  and  5  Anne,  c.  17,  which  was  con- 
tinued by  the  statute  5  Geo.  II.,  c.  30.  ».  7, 
extends  the  discharge  of  the  bankrupt  to  all 
debts  by  him  due  and  owing,  at  the  time  he 
became  a  bankrupt ;  and  the  statute  of  7  Geo. 
I.,  c.  31,  extends  it  to  debts  contracted  before 
the  bankruptcy,  though  payable  after.  These 
statutes,  in  this  respect,  are  to  the  same  effect, 
and  almost  precisely  in  the  same  words  with 
our  act  of  insolvency,  when  it  declares  the 
force  and  extent  of  the  insolvent's  discharge. 
By  the  English  decisions  upon  these  statutes, 
it  has  been  frequently  determined,  and  seems 
to  be  a  rule  permanently  settled,  that  if  the 
creditor,  at  the  time  of  the  bankruptcy,  had 
not  a  certain  debt  due  to  which  he  could 
attest  by  oath,  and  which  he  could  bring  in 
under  the  commission  of  bankruptcy,  he  is 
not  bound  by  the  bankrupt's  discharge.  (3 
Wils.  14,  269,  271,  347,  530  ;  6  Term,  489  ;  1 
H.  Black.,  640.)  And  in  like  manner,  that  a 
surety,  although  he  be  liable  before,  yet  if  he 
does  not  actually  pay  the  debt  until  after  the 
act  of  bankruptcy  committed,  he  cannot  then 
prove  it  under  the  commission,  but  must  re- 
sort to  the  bankrupt.  (2  Win.  Black.  794  ;  3 
Wils,  347  ;  Cowp.  526  ;  1  Term,  599.) 

It  has  been  objected,  and  with  some  plausi- 
bility, to  this  doctrine,  that  if  a  debt  be  due 
at  the  time  of  the  assignment  to  any  one  who 
might  have  proved  it,  it  must  be  clone  away 
by  the  discharge,  for  that  the  insolvent  is  dis- 
charged from  all  his  then  debts,  to  whomso- 
ever they  may  belong,  and  that  if  when  dis- 
charged from  the  action  of  one  creditor,  he 
were  to  remain  liable  at  the  suit  of  another  for 
the*-ame  debt,  it  would  be  no  discharge  at  all. 
These  objections  were  raised  and  overruled  in 
the  cases  of  Taylor  v.  Mitt*  &  Magnett  (Cowp. 
525),  and  of  Brook*  v.  Rogers  (i  H.  Black. 
650.  See  also  1  Saund.  241,  note  5),  and  this 
answer  appears  to  me  to  be  plain  and  sufficient, 
that  where  a  plaintiff  cannot  prove  a  debt 
until  he  has  actually  paid  the  money,  and  the 
payment  be  of  the  proper  debt  of  the  insol- 
vent, and  after  the  assignment  of  his  estate, 
the  cause  of  action  in  such  cases  arises  after 
the  insolvency,  although  upon  a  pre-existent 
76*1  ground  ;  and  *as  he  cannot  exhibit  his 
248 


debt  to  the  assigness,  because  there  was  no- 
sum  due,  and  to  which  he  could  attest  when 
the  assignment  was  made,  it  is  highly,  nay 
indispensably  just,  that  he  should  resort  to  the 
insolvent  himself. 

The  court  are,  therefore,  of  opinion,  that 
judgment  must  be  rendered  for  the  plaintiff. 

Judgment  for  the  plaintiff .l 

Followed— 9  Wend.,  313. 

Approved— 9  Johns.,  128 ;  15  Johns.,  468. 

Distinguished— 17  Johns.,  45. 

Cited  in— 6  Johns.,  126 :  20  Johns.,  162 ;  8  Cow.,437 ;  & 
Johns.  Ch.,  66,  286;  87  N.  Y.,  462;  27  How.  Pr.,  191;  1» 
Abb.,  23 ;  2  Abb.  N.  S.,  263.  See  2  Johns.  Cas.,  281. 

See  2  Caines'  Cos..  311. 


M.  SLEGHT,  Administratrix  of  SLEGHT, 
KANE. 

Limitation  —  Statute  of—  Out  of  State  —  Statute  of 
March  21,  1783. 

Under  the  act  of  the  21st  of  March,  1783,  suspend- 
ing1 the  statute  of  limitations  during1  the  war  ;  and 
the  act  of  the  26th  of  February.  1788,  saving1  the 
plaintiff's  right  of  action,  where  the  defendant  is 
out  of  the  State  ;  in  an  action  on  a  promissory 
note,  dated  the  17th  December,  1777,  it  was  held,  that 
the  maker,  being1  within  the  British  lines  during1  the 
war,  and  departing  with  the  British  at  the  close  of 
the  war,  was  to  be  deemed  as  out  of  the  State  dur- 
ing that  time,  and  the  cause  of  action  being  con- 
sidered as  accruing  on  the  21st  of  March,  1783,  the 
plaintiff  having  brought  an  action  within  six  years 
after  the  return  of  the  maker  to  the  state,  the  latter 
could  not  avail  himself  of  the  statute  of  limitations. 


was  an  action  on  a  promissory  note, 
1  made  by  the  defendant  to  the  intestate, 
for  100  pounds,  dated  the  17th  of  December, 
1777,  and  payable  on  demand. 

The  defendant  pleaded  non  ansumptnt  infra 
sex  annos.  The  plaintiff  replied,  as  follows  : 
that  before  the  date  of  the  note,  "  to  wit,  on 
the  loth  of  September,  1776,  there  was  open 
war  between  the  King  of  Great  Britain  and  hi* 
subjects,  and  the  United  States  of  America 
and  their  citizens,  in  all  parts  of  the  world,  to 
wit  :  at  the  city  of  New  York,  at  the  first  ward 
of  the  said  city,  in  the  said  County  of  New 
York,  and  there  being  so  open  war  between 
the  said  king  and  his  subjects,  and  the  said 
United  States,  the  army  of  the  said  king  on 
the  said  loth  day  of  September,  in  the  said 
year  of  our  Lord  1776,  conquered,  subdued  and 
took  possession  of  part  of  the  southern  district 
of  the  State  of  New  York,  that  is  to  sav,  of 
the  counties  of  Suffolk,  Queens,  Kings,  ftich- 
mond,  and  the  said  city  and  County  of  New 
York,  and  in  the  firm  possession  thereof  con- 
tinued by  virtue  of  the  said  conquest,  from 
the  said  15th  day  of  September,  in  the  year  of 
our  Lord  1776,  until  the  25th  day  of  November, 
in  the  year  of  our  Lord  1783,  to  wit,  at  the 
said  city  of  New  York,  at  the  first  ward  of  the 
said  city,  in  the  said  County  of  New  York. 
And  the  said  plaintiff  *further  says,  that  [*77 
on  the  said  17th  day  of  December,  in  the  said 
year  of  our  Lord  1777,  and  before  that  day,  the 
said  defendant  was  an  inhabitant  of  the  County 
of  Dutchess,  in  the  said  State  of  New  York, 

1.—  See  4  Term,  714,  Howls  v.  Wiggins  ;  Cullen's  B. 
L.  98,  note  (36.)  Co.  B.  L.  164,  Ex-mine  Brymer  ;  Cow- 
ley  v.  Dunlop,  7  Term,  865,  and  the  opinion  of  Lord 
Ken  yon  in  that  case. 

JOHNSON'S  CASES,  1. 


1799 


M.  SI-EGIIT  v.  KANE. 


77 


and  that  the  place  of  abode  of  the  said  defend- 
ant was  at  Fredericksburgh,  within  said  County 
of  Dutchess,  to  wit,  at  the  said  city  of  New 
York,  at  the  first  ward  of  the  said  city,  in  the 
said  County  of  New  York,  and  that,  after  the 
making  of  the  several  promises,  in  the  decla- 
ration aforesaid  alleged  to  have  been  made  by 
him  the  said  defendant,  to  wit,  on  the  said 
17th  day  of  December,  in  the  said  year  of  our 
Lord  1777,  the  said  defendant  left  his  said  place 
of  abode  in  the  said  County  of  Dutchess,  and 
joined  the  said  army  of  the  said  king,  so  as 
aforesaid  in  possession  of  the  said  southern 
districts  of  the  said  State  of  New  York,  to  wit, 
at  the  said  city  of  New  York,  at  the  first  ward 
of  the  said  city,  in  said  County  of  New  York  ; 
and  that  the  said  defendant  after  so  joining 
the  said  army,  remained  under  the  power  and 
protection  of  the  said  army,  so  as  aforesaid  in 
possession  of  the  said  part  of  the  said  southern 
district  of  the  said  State  of  New  York,  from 
the  said  17th  day  of  December,  in  the  said 
year  of  our  Lord  1777,  until  the  24th  day  of 
November,  in  the  year  of  our  Lord  1783,  to 
wit,  at  the  said  city  of  New  York,  at  the  first 
ward  of  the  said  city,  in  the  said  County  of 
New  York.  And  the  said  plaintiff  further 
saith,  that  the  said  defendant  departed  from 
the  said  State  of  New  York,  before  the  1st  day 
of  January,  in  the  year  of  our  Lord  1784,  to 
wit,  on  the  24th  day  of  November,  in  the  said 
year  of  our  Lord  1783.  And  the  said  plaintiff 
further  saith,  that  the  said  John  H.  Sleght  de- 
parted this  life  on  the  1st  day  of  January,  in 
the  year  of  our  Lord  1790,  to  wit,  at  the  said 
city  of  New  York,  at  the  first  ward  of  the  said 
city,  in  the  said  County  of  New  York,  and 
that  between  the  16th  day  of  December,  in  the 
said  year  of  our  Lord  1777,  and  the  said  1st 
day  of  January,  in  the  said  year  of  our  Lord 
1784,  there  was  no  sheriff,  or  any  other  officer, 
deriving  his  authority  from  the  people  of  the 
said  State  of  New  York,  appointed  either  for 
the  said  County  of  Suffolk,  or  *for  the  said 
78*]  County  of  Queens,  or  for  the  said 
County  of  Kings,  or  for  the  said  County  of 
Richmond,  or  for  the  said  city  and  County  of 
New  York,  to  whom  any  writ  of  capifis  ad 
respondendum,  or  any  other  process,  issued  in 
the  name  and  by  the  authority  of  the  said 
people,  at  the  suit  of  the  said  John  H.  Sleght, 
against  the  said  defendant,  for  the  recovery 
of  the  damages  of  the  said  John  H.  Sleght,  by 
reason  of  the  nonperformance  of  the  several 
promises  in  the  declaration  aforesaid  alleged 
to  have  been  made  by  the  said  defendant, 
could  be  directed  and  delivered  for  the  taking 
and  arresting  of  the  said  defendant.  And  the 
said  plaintiff  further  says,  that  the  said  bill  of 
the  said  plaintiff  against  the  said  defendant 
was  exhibited  within  six  years  after  the  return 
of  the  said  defendant  to  the  said  State  of  New 
York,  to  wit,  at  the  city  of  New  York,  at  the 
first  ward  of  the  said  city,  in  the  said  County 
of  New  York,  and  this  the  said  plaintiff,  ad- 
ministratrix, as  aforesaid,  is  ready  to  verify," 
•fee. 

The  defendant  rejoined;  "protesting,  that 
the  said  John  H.  Sleght  departed  this  life  before 
the  1st  day  of  January,  in  the  year  of  our 
Lord  1790,  and  also  protesting  that  the  said 
bill  of  the  said  plaintiff,  against  him  the  said 
defendant  was  not  exhibited  within  six  years 
JOHNSON'S  CASES,  1. 


after  the  return  of  him  the  said  defendant  to 
the  said  State,  as  by  the  said  plaintiff  is  above 
in  her  first  plea  so  pleaded  in  reply  alleged; 
for  joinder  in  this  behalf  the  said  defendant 
saith,  that  he  the  said  defendant  did  not  leave 
his  said  place  of  abode  in  the  said  County  of 
Dutchess  and  join  the  said  army  of  the  said 
king,  in  the  possession  of  the  said  part  of  the  said 
southern  District  on  the  17th  day  of  December 
in  the  said  year  1777;  as  the  said  plaintiff,  ad- 
ministratrix as  aforesaid,  hath  in  her  said  first 
plea  so  pleaded  in  reply  alleged;  but  was  and 
continued  to  be  an  inhabitant  of  the  said  County 
of  Dutchess,  at  Fred  triscksburg  aforesaid,  in 
the  said  County  of  Dutchess,  on  that  day,  and 
for  a  long  time  thereafter,  that  is  to  say,  until 
the  10th  day  of  July,  in  the  year  of  our  Lord 
1779.  And  the  said  defendant  further  saith, 
that  the  cause  or  action  of  the  said  plaintiff 
*iu  the  declaration  aforesaid  mentioned,  [*7J> 
was  given,  accrued,  fallen  and  come  to  the 
said  John  H.  Sleght  in  his  lifetime,  before 
the  said  defendant  departed  from  the  said 
State  of  New  York,  to  wit,  on  the  9th  day  of 
July,  in  the  year  of  our  Lord  1779,  to  wit,  at 
the  city  and  ward  aforesaid,  and  this  he  is 
readjr  to  verify,"  &c. 

To  this  rejoinder  the  plaintiff  demurred, 
and  the  defendant  joined  in  demurrer. 

The  general  question  was,  whether  upon 
the  facts  disclosed  by  the  pleadings,  the  action 
was  barred  by  the  statute  of  limitations. 

BENSON,  J.  By  the  Act  of  the  8th  March, 
1773,  being  the  law  on  the  subject,  as  it  stood 
before  the  Act  of  the  21st  March,  1788,  "  the 
action  on  a  promissory  note  was  to  be  com- 
menced within  six  years  after  the  cause  of 
action  arose,  provided,  that  if  the  person  en- 
titled to  such  action  should  be  beyond  sea,  he 
should  be  at  liberty  to  bring  the  action  within 
the  time  before  limited  after  he  should  return 
from  beyond  sea."  By  the  Act  of  the  21st 
March,  1783,  "no  part  of  the  time  from  the 
14th  October,  1775,  to  the  day  of  the  passing 
of  the  act  was  to  be  deemed  a  part  of  the 
period  above  limited."  By  the  Act  of  the 
26th  February,  1788,  "all  actions  on  the  case, 
other  than  for  slander,  are  to  be  brought  with- 
in six  years  after  the  cause  of  action  arose; 
but  if  a  person,  against  whom  there  then  was 
or  should  be  a  cause  of  such  action,  then  was 
or  should  be  out  of  the  State  at  the  time  any 
such  cause  of  action  accrued,  in  every  such 
case,  the  person  who  was  or  should  be  entitled 
to  such  action,  should  be  at  liberty  to  bring 
the  action  against  such  person  after  his  return 
to  this  State,  so  as  he  (the  person  entitled  to 
the  action)  took  the  same  after  such  return, 
within  the  time  before  limited." 

The  note  in  question  was  certainly  not  bar- 
red on  the  21st  March,  1783;  but  it  having 
been  given  during  the  period  of  the  suspen- 
sion of  the  limitation,  it  had  to  run  to  the  21st 
March,  1789,  and  was  as  to  the  limitation  pre- 
cisely *the  same  as  if  it  had  been  given  [*8O 
on  the  21st  March,  1783,  or  in  other  words,  as 
if  the  cause  of  action  had  accrued  on  that  day. 
If  the  Act  of  the  26th  February,  1788,  had 
never  passed,  and  if  the  note  had  not  been  put 
in  suit  until  after  the  21st  March,  1789.  the 
defendant  might  have  pleaded  the  limitation, 
!  as  under  the  Act  of  the  8th  March,  1773,  and 

249 


80 


SUPREME   COURT,  STATE  OF  NEW  YORK. 


1808 


the  plaintiff  could  not  have  replied  that  the 
defendant  was  out  of  the  State.      But  the  Aqt 
of  the  26th  February,  1788,  giving  the  plaint- 
iff a  right  to  reply  such  matter,  the  inquiry  is, 
whether  she  had   sufficiently   alleged  in  her 
replication,  that  the  defendant  was  out  of  the  \ 
State  on   the  21st  March,  1783,  when,  as  I ; 
have  already  stated,  the  cause  of  action  is  to  ! 
be  deemed  to  have  accrued,   and  that    she 
brought  her  action  within  six  years  after  the 
return  of  the  defendant  to  the  State  ?    The 
replication  alleges,  that  the  defendant  left  his 
place  of  abode  in  Dutchess  County  on  the  17th 
<lay  of  September,  1777,  and  the  rejoinder  ad- 
mits that  he  left  it  on  the  10th  day  of  July, 
1779;  and    the    replication    further    alleges,  i 
"that  the  defendant  then  joined  the  army  of 
the  King  of  Great  Britain,  and  remained  un- 
der the"  protection  of  the  said  army,  then  in 
possession  of  a  portion  of  the  southern  district 
of  this  State  (which  the  said  army  had  con- 
quered, and  had  possession  of  by  virtue  of 
that  conquest,  there  being  then  open  war  be- 
tween the  said  King  and  the  United  States) 
until  the  24th  November,  1783,  and  that  he  | 
then  departed  out  of  this  State,  and  that  the  I 
bill  was  exhibited  within  six  years  after  his  , 
return  to  the  State."    The  inquiry,  therefore,  i 
is  reduced  to  this  single  point,  whether  the 
defendant,  although  he  was  in  fact  on  the  21st 
March,  1783,  at  some  place  within  the  south- 
ern district,   ought  not  in  law,  as  it  respects 
the  right  of  the  plaintiff  intended  to  be  secured 
by  the  Act  of  the  26th  February,  1788,  to  be 
adjudged  to  have  been  out  of  the  State.     I 
think  he  ought  to  be  so  adjudged,  and  for  the 
reasons  which  the  replication  itself  naturally 
and  obviously  suggests;  because  he  was  out  of  j 
81*]  the  jurisdiction  of  *the  State;  he  was  I 
quasi  out  of  the  realm;  he  was  where  the  au-  j 
thority  which  was  exercised,  was  not  derived  [ 
from  "the  State,  but  from  the  King  of  Great ! 
Britain  by  the  right  of  conquest.     No  writ  of 
the  State  could  run  there;  consequently,  "no| 
suit  could  be  brought  against  him  "  there.  My 
opinion,  therefore,  is,  that  the  plaintiff  is  en- 
titled to  recover. 

LEWIS,  ,7.,and  LANSING,  Ch.  <7.,were  of  the 
same  opinion. 

KENT,  ,/.,  having  been  formerly  concerned  i 
as  counsel  in  the  cause,  gave  no  opinion. 

RADCMFF,   J.,  not  having  heard  the  argu- 
ment in  the  cause,  gave  no  opinion. 

Judgment  for  tfie  plaintiff. 


relation,  from  the  time  of  the  making'  of  the  con- 
tract, so  as  to  render  valid  every  intermediate  sale 
or  disposition  by  the  grantee. 

Citations—  Cro.  Car.,  110;  Co.  Litt.,  45  a.,  47  J>.; 
£52  a.  b.:  4  Co.,  53  a.;  2  Mod.,  115;  6  Mod.,  258;  1  Salk.. 
27fi  :  2  Ld.  Raym.,  1551  ;  P.  Wins.  373  ;  Co.  Litt.,  247 
)>,  265  b,  339  a  ;  Litt.,  8637;  Co.,  53  7<:  3  P.  WmS.,  215; 
2  Ves.,  70  ;  Litt.,169  ;  6  Kep.,  18  ;  2  Ves.,  78. 


JACKSON,  ex  dem.  the  New  Loan  Officers  of 
the  County  of  Rensselaer  and  JOHN  CRABB 

BULL. 

1.  Ejectment — Lewor  of  Grantor.  2.  Deed — 
Relation  to  Contract.  3.  Id. — From  ls>an 
Officer— Grantor.  4.  Id.— Id.— Date  of  Title. 

A  deed  executed  in  pursuance  of  a  previous  con- 
tract, for  the  sale  of  the  same  premises  is  good,  by 


was  an  action  of  ejectment  for  lands 
-  in  the  County  of  Rensselaer.  On  the  trial 
of  the  cause  at  the  last  Rensselaer  Circuit,  it 
was  admitted  on  the  part  of  the  defendant, 
that  A.  Francisco  was  seized  of  the  premises 
in  question,  consisting  of  a  tract  of  160  acres 
of  laud,  and  that  on  the  25th  July,  1792,  he 
executed  a  mortgage  of  them  to  the  new  loan 
officers  of  that  county,  who  are  lessors  of  the 
plaintiffs;  that  Francisco,  on  the  1st  day  of 
November,  1792,  conveyed  the  same  to  Elijah 
Rawson  in  fee;  that  Elijah  Rawson,  by  will 
bearing  date  the  23d  day  of  October,  1793,  de- 
vised the  same  to  his  son  Edward  Rawson  in 
fee,  who  conveyed  the  same  to  the  defendant. 
The  plaintiff  then  proved  that  in  May,  1795, 
there  was  a  default  in  the  payment  of  the 
interest  due  on  the  mortgage,  in  consequence 
of  which,  the  loan  officers  advertised  the 
premises  for  sale,  according  to  the  "act  for 
loaning  monies  belonging  to  this  State;"  (loth 
Sess.,  ch.  25,  Rev.  Laws,  2  vol.,  285)  and  on 
the  3d  Tuesday  of  September,  1795,  sold  the 
same  to  Crabb,  *the  other  lessor;  and  [*82 
on  the  5th  day  of  January  thereafter  executed 
a  deed  to  him  for  the  same. 

The  defendant  offered  in  evidence  a  deed 
from  Crabb,  bearing  date  the  31st  day  of  Oc- 
tober, 1795,  conveying  an  undivided  moiety  of 
140  acres.set  off  by  metes  and  bounds.and  parcel 
of  the  said  160  acres,  to  Levin  us  Lansing,  and 
also  a  deed  from  the  said  Crabb  and  Levinu.s 
Lansing,  bearing  date  the  4th  day  of  Novem- 
ber, 1795,  conveying  the  said  140  acres  to  the 
said  Francisco. 

The  plaintiff  then  produced  another  deed 
from  Edward  Rawson,  bearing  date  the  9th 
day  of  February,  1795,  conveying  all  his  right 
and  title  in  the  said  160  acres  to  the  said  Lan- 
sing and  Crabb.  and  also  a  bond  from  the  de- 
fendant to  Edward  Rawson,  dated  the  8th  day 
of  August,  1795,  conditioned  that  the  defend- 
ant should  pay  off  and  discharge  all  incum- 
brances  on  the  said  tract  of  160  acres. 

On  this  evidence  a  general  verdict  was 
taken  for  the  plaintiff  by  consent,  subject  to 
the  opinion  of  the  court,  whether  the  plaintiff 
was  entitled  to  recover  the  whole  160  acres, 
and  if  not,  that  he  should  be  restrained  on  the 
writ  of  hob.  fac.  pox*,  from  taking  possession 
of  more  than  the  20  acres,  which  were  not  in- 
cluded in  the  conveyance  from  Crabb  and 
Lansing  to  Francisco. 

This  case  was  argued  at  the  last  January 
Term,  on  the  following  points:  1st.  Whether 
by  means  of  the  forfeiture  of  the  mortgage, 
and  the  sale  by  the  loan  officers  to  Crabb,  on 
the  3d  Tuesday  of  September,  1795,  anv  title 
was  transmitted  to  Crabb,  so  as  to  enable  him 


NOTE.— Relation. 

Where  divers  acts  concur  to  make  a  conveyance, 
the  original  uct  is  to  be  preferred  and  the  others  re- 
late back  to  that ;  not,  however,  if  the  rights  of  in- 
nocent third  parties  will  thereby  be  prejudiced. 
250 


Case  v.  De  Goes,  3  Calnes,  261 ;  Jackson  v.  Bird,  4 
Johns.,  230;  Heath  v.  Ross,  12  Johns.,  140;  Jackson 
v.  Davenport.  20  Johns..  537;  Pratt  v.  Potter,  21 
Barb.,  589;  Pierce  v.  Hall,  41  Barb.,  142;  State  v. 
Tool,  4  O.  St.,  553 :  Pettibone  v.  Burton,  20  Vt.,  302. 

JOHNSON'S  CASES,  1. 


1799 


JACKSON,  EX  DEM.,  ETC.,  v.  BULL. 


to  convey  to  Lansing,  and  to  enable  Crabb 
and  Lansing  to  convey  to  Francisco  previous 
to  the  execution  of  the  deed  from  the  loan 
officers  to  Crabb. 

2d.  If  not,  whether  Crabb  is  not  estopped 
or  concluded  by  the  deed  executed  by  him 
and  Lansing  to  Francisco,  from  claiming  the 
140  acres  conveyed  by  that  deed. 

Mr.  Bird  for  plaintiff. 

Mr.  Lush  for  the  defendant. 

83*]  *LEWIS,  J.  The  loan  officers  are 
trustees  for  the  people  of  the  State,  and 
although  their  authority  to  sell  be  coupled 
with  an  interest,  yet,  as  it  is  not  a  beneficial 
one,  a  purchaser  does  not  take  under  them, 
but  under  the  power  created  by  the  statute  and 
the  mortgage  deed.  He  will  not,  perhaps, 
take  by  relation  from  the  creation  of  the 
power,  but  certainly  from  the  time  of  execut- 
ing the  power.  What,  in  the  present  case, 
was  the  act  executing  the  power?  Was  it  the 
sale  by  the  loan  officers,  or  their  execution  of 
the  deed  of  conveyance?  I  am  of  opinion 
that  it  was  the  former,  and  that  whatever  in- 
terest the  mortgagor  had  at  the  time  of  exe- 
cuting the  mortgage,  was  immediately  upon 
the  sale  and  payment  of  the  purchase  money, 
transferred  to,  and  vested  in  the  purchaser, 
and  that  his  title  would  have  been  complete, 
though  no  deed  had  ever  been  executed  by  the 
loan  officers.  This  opinion  is  founded  on  the 
following  principles:  1st.  That  where  a  pur- 
chaser takes  by  the  execution  of  a  power,  he 
is  in,  and  holds  under  the  authority  creating 
such  power.  3d.  That  where  an  authority  is 
coupled  with  an  interest,  it  shall  be  construed 
liberally,  and  an  execution  in  substance,  shall 
be  sufficient.  Thus  a  sale  by  executors  under 
a  power  contained  in  the  will  of  their  testator, 
is  a  good  execution  without  deed;  (Litt.,  169) 
and  if  a  power  be  coupled  with  an  interest, 
though  it  be  joint,  it  might,  before  the  statute 
of  wills,  be  executed  by  a  survivor.  So,  also, 
in  a  feoffment  to  uses  to  be  declared  by  will, 
the  cestui  que  use  is  in  by  the  feoffment  and 
not  by  the  devise.1  So,  also,  a  purchaser  at  a 
sheriff's  sale  is  in  under  the  judgment  and 
execution. 

These  principles  are  not  opposed  to  any- 
thing contained  in  the  act  from  which  the  loan 
•officers  derive  their  authority;  on  the  contrary, 
they  appear  to  me  in  perfect  coincidence  with 
it.  The  16th  section  declares  that  the  pur- 
chaser shall  hold  the  lands  for  such  estate  as 
was  conveyed  to  the  loan  officers  by  the  mort- 
gage. The  injunction  on  them  to  execute  a 
conveyance,  is  merely  directory;  and  though 

1.— See  the  case  of  Sir  Edward  Clere,  6  Rep.,  18; 
Bagley  v.  Warburton.  2  Com.,  and  Duke  of  Marlbor- 
ougii  v.  Lord  Godolphin,  2  Ves.,  78. 


it  may  serve  as  an  additional  evidence  of  the 
sale,  it  is  not,  in  my  opinion,  essential  to  the 
purchase;  nor  does  their  erection  into  a  body 
corporate,  in  any  wise  alter  the  case,  this 
*being  evidently  intended  to  give  a  facility  [*84 
to  the  discharge  of  their  various  duties,  and 
perhaps  to  prevent  doubts  and  embarrassments 
that  might  arise  from  death  or  other  circum- 
stances. The  deed  also  is  not  directed  to  be 
given  in  the  usual  form  of  a  corporate  act 
merely,  for  though  made  under  their  seal, 
they  must  respectively  subscribe  their  names. 
But  should  the  deed  be  .considered  as  essen- 
!  tial  to  the  execution  of  the  power,  I  do  not 
j  see  that  it  would  alter  the  case;  the  act  con- 
templates the  conveyance  to  be  made  imme- 
diately upon  the  sale;  the  words  are,  "and 
upon  such  sale  shall  convey,"  &c.  Now,  the 
maxims  of  equity  (Lechmere  v.  Earl  of  Carlisle, 
3  W.  P.,  215),  that  what  ought  to  be  done, 
shall  be  considered  as  done,  and  that  trustees 
shall  not  affect  the  rights  of  other  persons  by 
not  doing,  or  by  delaying  to  do  their  duty, 
will  forcibly  apply;  and  we  may,  accordingly, 
so  construe  the  words  of  the  act  as  to  make 
the  conveyance  relate  to  the  time  of  sale,  or  it 
may  be  done  by  analogy  to  the  case  of  the 
Duke  of  Marlb&rough  (2  Vesey,  70),  where  it 
was  determined,  that  although  by  bargain  and 
sale  nothing  passed  without  enrollment,  yet  if 
j  the  deed  be  acknowledged  and  enrolled  with- 
i  in  the  six  months,  though  the  bargainee  be 
dead,  the  whole  should  relate  to  the  time  of 
execution.  The  reason  is  that  the  enrollment 
is  a  collateral  act  required  by  the  statute  and 
does  not  arise  from  the  nature  of  the  convey- 
ance; so  here,  the  execution  of  the  deed  was  a 
collateral  act  required  by  the  statute  and  did 
not  arise  from  the  nature  of  the  transfer, 
which,  as  has  been  shown,  would  have  been 
sufficient  in  an  ordinary  case  without  deed. 

My  opinion  therefore  is,  without  consider- 
ing the  second  point,  that  the  conveyances 
from  Crabb  to  Lansing,  and  from  them  to 
Francisco,  legally  transferred  the  title  to  the 
140  acres,  and  of  course  that  the  plaintiff 
ought  to  recover  the  remaining  20  acres  only. 

KENT,  J.  I  incline  to  the  opinion  that  no 
legal  estate  except  a  mere  tenancy  at  will, 
vested  in  Crabb  until  the  loan  officers  had 
executed  the  deed.  The  statute  of  frauds 
*prevents  a  greater  estate  from  vesting  [*85 
without  writing;  it  is,  besides,  a  general  rule  of 
law  that  a  corporation  cannot  sell  land  with- 
out deed,  and  the  loan  officers,  in  the  present 
instance,  are  ordered  by  the  act  to  convey  the 
land  which  they  should  sell  at  auction,  by 
deed  under  the  loan-office  seal. 

But  I  adopt  as  a  just  rule  of  construction, 
and  applicable  to  the  present  case,  the  princi- 
ple laid  down  by  this  court,  in  the  cause  of 


Where  a  deed  is  to  be  delivered  to  the  grantee  on 
the  death  of  the  grantor,  the  title  by  relation  passes 
at  the  time  the  deed  was  left  for  delivery.  Hatha- 
way v.  Payne,  34  N.  Y.,  32. 

Deed  of  feme  covert  acknowledged  after  hus- 
band's death,  the  first  execution  not  having1  been 
within  the  statute,  held  not  to  relate  back  to  the 
time  of  the  original  execution.  Doe  v.  Rowland,  8 
Cow.,  277. 

Land  patent  dated  Dec.  4,  which  did  not  pass  the 
great  seal  until  Dec.  28,  held  to  relate  back  to  Dec. 
4.  Heath  v.  Ross,  12  Johns.,  140. 

JOHNSON'S  CASES,  1. 


Acknowledgment  of  sheriff 's  deed  after  his  term 
had  expired,  held  to  relate  back.  Doe  v.  Dugan,  8 
O.,  107. 

The  ratification  of  a  deed  executed  during-  insanity 
will  not  make  it  effectual  as  against  the  grantor's 
prior  deed,  executed  while  he  was  sane  and  recorded 
after  the  execution,  but  before  the  ratification  of 
the  second  deed.  Bond  v.  Bond,  7  Allen,  1. 

See,  further,  Cheney  v.  Woodraff,  45  N.  Y.,  100; 
Johnson  v.  Stag)?,  2  Johns.,  510 ;  Jackson  v.  Dicken- 
son  15  Johns.,  309 ;  Jackson  v.  Ramsay,  3  Cow.,  75 ; 
Demarest  v.  Ray,  29  Barb.,  563;  19  How.  Pr.,  574. 

251 


85 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


Jackson,  ex  dem.  June,\.  Raymond,1  "that 
86*]  "whenever  it  is  intended  to  be  shown 
that  nothing  passed  by  a  grant,  by  reason  that 
at  the  time  there  was  a  possession  in  another 
adverse  to  the  grantor,  then  the  time  to  which 
87*]  the  *grant  is  to  relate,  is  the  time  when 
the  bargain  for  the  sale  was  finally  concluded 


between  the  parties,  and  that,  consequently, 
any  intermediate  adverse  possession  before  the 
*execution  of  the  conveyance  (which  is  [*88 
only  the  technical  consummation  or  evidence 
of  the  grant),  can  never  affect  it."  In  the 
present  case,  therefore,  the  deed  to  Crabb  of 
the  *5th  January,  1796,  shall  have  rela-  [*8J> 


1.— JACKSON,  ex  dem.  JUNE,  v.  RAYMOND. 
JANUARY  TERM,  1798. 

H.,  on  the  34th  March,  1792,  made  a  lease  of  certain 
premises  for  two  years  to  R.,  and  after  the  expira- 
tion of  the  lease,  on  the  25th  of  December,  1794,  sold 
and  conveyed  the  premises  in  fee  to  J.,  pursuant  to 
a  previous  contract,  for  the  sale  on  the  oth  August, 
1794.  R.  refused  to  quit  the  possession,  and  in  an 
action  of  ejectment  brought  by  J.,  it  was  held  that 
R.  was  a  mere  tenant  at  will,  and  that  there  was  no 
actual  disseisin,  or  by  election  of  H.  so  as  to  render 
a  previous  entry  necessary  to  enable  him  to  pass  his 
interest  by  the  conveyance,  which  has  relation  back 
to  the  time  the  contract  of  sale  to  J.  was  made. 

THIS  was  an  action  of  ejectment  for  a  house  and 
lot  of  land  in  the  town  of  Newburgh,  in  Ulster 
County.  On  the  trial  the  plaintiff  proved  that  one 
Hustice,.  on  the  24th  day  of  March,  1792,  made  a 
lease  of  the  premises  to  the  defendant,  for  the  term 
of  two  years,  and  that  after  the  expiration  of  the 
said  lease,  to  wit,  on  the  25th  day  of  December,  1794, 
Hustice  conveyed  the  same  in  fee  to  the  lessor. 
The  defendant  proved  that  he  was  in  the1  actual 
possession  of  the  premises  at  the  time  of  executing1 
the  said  conveyance,  and  that  on  the  5th  day  of 
August,  1794,  he  received  from  the  said  Hustice,  a 
written  notice  to  quit  the  premises  in  the  words 
following: 

"  WESTCHESTER,  August  5th,  1794. 

"Sin:— On  account  of  your  neglect,  I  have  this 
day  bargained  with  Mr.  June  for  my  place  which 
you  live  on.  This  is  to  inform  you,  that  you  must, 
upon  sight,  leave  the  place  to  the  care  of  the  said 
June.  "  DAVID  HUSTICE. 

"  To  Francis  Raymond." 

The  defendant  refused  to  quit  the  premises,  upon 
which  Hustice  commenced  an  action  of  ejectment 
against  him  in  this  court,  which  was  pending  at  the 
trial  of  this  action. 

A  verdict  was  taken  for  the  plaintiff,  subject  to 
the  opinion  of  the  court,  whether  Hustice,  by  giv- 
ing the  notice  to  quit,  and  bringing  his  action  of 
ejectment,  had  not  elected  to  consider  himself  dis- 
seised, and  if  so,  whether  he  could,  without  an 
actual  entry,  convey  the  premises  to  the  lessor  of 
the  plaintiff. 

In  January  Term,  1798,  after  two  arguments,  the 
court  delivered  their  unanimous  opinion  in  favour 
of  the  plaintiff's  right  to  recover. 

BENSON,  J.  The  objection  to  the  validity  of  the 
conveyance  from  Hustice,  to  the  lessor  of  the 
plaintiff,  is  founded  on  the  idea  of  an  adverse  pos- 
session in  the  defendant  at  the  time  of  executing 
the  conveyance.  It,  however,  appears  from  the  con- 
tents of  the  written  notice  to  the  defendant  to  quit, 
which  was  produced  in  evidence  by  him,  that 
Hustice  had  contracted  for  the  sale  of  the  premises 
to  the  lessor  at  the  date  of  the  notice.  This,  in  ray 
opinion,  renders  it  unnecessary  to  decide  whether 
the  possession  ought  to  be  considered  as  adverse  at 
the  time  of  executing  the  conveyance.  The  con- 
veyance must  be  deemed  to  relate  "to  the  time  when 
the  contract  for  the  sale  of  the  premises  was  made; 
and  I  adopt  it  as  a  general  principle  that  whenever 
it  is  intended  to  l>e  shown  that  nothing  passed  by  a 
grant  by  reason  that  at  the  time  there  was  a  posses- 
sion in  another  adverse  to  the  grantor,  the  time  to 
which  the  grant  is  to  relate  is  the  time  when  the 
bargain  or  contract  for  the  sale  and  purchase  of  the 
land  was  finally  concluded  between  the  grantor  and 
grantee,  and  consequently,  any  intermediate  ad- 
verse possession  before  the  execution  of  the  con- 
veyance, which  is  the  technical  consummation  of 
evidence  of  the  grant,  can  never  affect  it.  I  am 
therefore  of  opinion  that  the  conveyance  to  the 
lessor  was  valid,  and  that  the  plaintiff  is  entitled  to 
recover. 

LEWIS,  J.    Two  questions  arise  in  this  cause. 

252 


1.  Was  there  an  actual  disseisin  of  Hustice? 

2.  Was  he  so  dispossessed.by  election  or  otherwise, 
as  to  make  an  actual  entry  necessary  to  enable  him 
to  pass  his  interest? 

I  do  not  find,  among  any  of  the  authorities  I  have 
met  with,  those  adduced  by  the  defendant's  counsel 
not  excepted,  that  the  holding  over  of  a  tenant  for 
years  was  ever  considered  as  an  actual  disseisin.  To 
satisfy  ourselves  that  the  contrary  is  the  fact,  we 
need  only  resort  to  the  ancient  definitions.  In  Litt., 
sec.  279,  disseisin  is  said  to  be  where  a  man  enters 
into  lands  or  tenements  (where  his  entry  is  not  con- 
geable),  and  ousteth  him  who  hath  the  freehold. 
And  in  the  Commentary  it  is  subjoined,  "  Every 
entry  is  not  a  disseisin,  but  there  must  be  an  actual 
ouster  of  the  freehold."  A  tenant  for  years  or  at 
sufferance  enters  by  title;  of  course  his  entry  is 
lawful,  and  there  is  no  disseisin.  Whether  he  may 
be  a  disseisor  at  election  is  not  now  the  question. 

The  cases  and  authorities  principally  relied  on  by 
the  defendant's  counsel,  on  the  argument  of  this 
cause,  were,  first,  that  of  Blunden  &  Baugh  (Cro. 
Car.,  302),  which,  if  applicable  at  all  to  the  case  be- 
fore us,  certainly  is  not  in  his  favor.  The  qiu-s- 
tion  there  was,  whether  a  lease  for  years  by  a  tenant 
at  will  was  an  actual  disseisin  of  the  freehold  and 
inheritance,  and  three  judges  against  one  held  it 
was  not. 

The  next  is  from  1  Roll.,  559,  pi.  15,  which  is  decis- 
ively against  him.  The  words  are,  "If  lessee  for 
years  holds  over  his  term,  yet  is  he  no  disseisor.  for 
this,  that  he  comes  in  by  act  of  the  party,  but  he  is 
called  tenant  at  sufferance."  And  in  1  Inst.,  57  />, 
the  same  definition  of  a  tenant  at  sufferance  will  .be 
found. 

The  case  of  Hous  and  Artois  (2  Leo.,  45),  is  in  the 
same  predicament.  The  reasoning  of  counsel  ap- 
pears here  to  have  been  mistaken  for  the  decision  of 
the  court,  which  is  directly  against  it.  The  princi- 
pal question  was,  whether  copyholds  granted  by  a 
tenant  pur  autre  vie,  after  the  death  of  the  certui 
que  vie  were  valid.  All  the  justices  held  that  they 
were  not;  "for  that  he  who  granted  was  but  tenant 
at  sufferance,  and  not  a  disseisor,  nor  had  gained  a 
fee,  because  he  came  in  first  of  right." 

In  the  case  of  The  Mayor  and  Commonalty  of  Nor- 
wich v.  Johnson  (3  Mod.,  91,  92),  the  reasoning  of 
counsel  is  again  relied  on,  which,  however,  as  far  as 
it  is  applicable  to  this  case,  merely  tends  to  show 
that  by  disseisin  a  fee  is  acquired,  which  will  not  be 
denied. 

The  case  of  Jackson,  ex  dem.  Fisher  and  Taylor, 
v.  Prosser  (Cowp.,  217),  was  adduced  to  show  that  a 
man  may  come  in  by  a  rightful  possession,  and  yet 
hold  over  adversely  without  a  title.  And  Lord 
Mansfield  held  that  he  may,  under  circumstances. 
The  question  simply  was,  whether  a  tenant  in  com- 
mon, holding  the  whole,  independent  of  his  co- 
tenant,  for  40  years,  was  not  a  sufficient  circum- 
stance to  be  left  to  a  jury  to  infer  an  actual  ouster, 
to  let  in  the  statute  of  limitations  as  a  bar  to  the 
action.  The  court  determined  that  it  was,  and  the 
jury  found  accordingly. 

In  the  case  of  Doyle  v.  Walke  (Carth.,  2),  the  rea- 
soning of  counsel  is  again  relied  on.  It  is  true  the 
court  accord  with  him  in  opinion  on  the  point 
raised,  but  surely  not  for  the  reasons  he  assigns, 
and  the  point  then  in  question  has  no  kind  of  rela- 
tion to  the  present  case.  It  was  simply  this,  that  on 
a  scire  facing  to  an  executor,  on  a  judgment  had 
against  his  testator,  it  was  necessary  to  state  him 
in  the  writ  not  merely  an  executor,  but  as  terre-ten- 
ant  of  the  lands  recovered.  (See,  also,  Salk.,  600, 
Proctor  v.  Johnso.n) 

In  the  case  of  Taylor,  et  dem.  Atkyns,  v.  Horde  (1 
Burr.,  Ill),  this  question  is  decided  by  Lord  Mans- 
field, who  says,  where  an  ejectment  is  brought, 
there  can  be  no  disseisin,  because  the  plaintiff  may 
lay  his  demise  when  his  title  accrued,  and  recover 
the  profits  from  the  time  of  the  demise.  The  entry 
confessed  is  previous  to  making  the  lease:  but  there 
is  no  real  or  supposed  re-entry  after  the  ejectment 
complained  of.  If  it  was  considered  as  a  disseisin, 
no  mean  profits  could  be  recovered  without  an 
actual  re-entry." 

JOHNSON'S  CASES,  1. 


1799 


JACKSON,  EX  DEM.  ETC.,  v.  BULL. 


89 


tion  back  to  the  3d  Tuesday  of  September, 
1795,  being  the  time  of  the  final  conclusion  of 
the  bargain  by  the  sale  and  purchase  at  pub- 
OO*]  lie  *auction,  so  as  to  render  valid  any 
intermediate  sale  or  disposition  of  the  land  by 
Crabb. 

Even  supposing  the  deed  of  the  5th  Janu- 
ary, 1796,  could  not  have  this  retrospective 
force  by  relation  to  the  time  of  the  conclusion 
of  the  sale  and  purchase  at  the  vendue,  still 
Crabb  can  never  be  permitted  to  claim  in 


opposition  to  his  deeds  of  the  31st  October 
and  4th  November,  1795,  by  alleging  that  he 
had  then  no  estate  in  the  premises.  For  if  a 
man  makes  a  lease  of  and  by  indenture  which 
is  not  his,  or  levy  a  fine  of  an  estate  not 
vested,  and  he  afterwards  purchases  the  land, 
he  shall,  notwithstanding,  be  bound  by  his 
deed,  and  not  be  permitted  to  aver  he 
*had  nothing,  and  the  stranger  to  whom  [*91 
he  sells  will  eauallv  be  estopped.  (Cro.  Car. . 
110;  Co.  Litt.,  45  a,  47  *;  352  a,  b;  4  Co.,  53 


The  second  question  I  consider  as  the  more  nice 
and  doubtful  of  the  two.  It  will  be  proper  to 
divide  it,  and  to  consider,  first,  whether  a  reversion- 
er, after  the  termination  of  a  term  for  years,  can 
alienate  his  interest  without  an  actual  entry,  his  les- 
see holding:  over :  second,  .whether  he  can  so 
alienate,  pending1  an  ejectment  brought  by  him  for 
the  recovery  of  the  premises. 

There  are  many  cases  in  which  an  actual  entry  is 
necessary,  either  to  vest  a  new  interest  or  to  reduce 
an  existing1  one.  There  are  also  some  in  which  it  is 
not  necessary  (at  least  to  certain  purposes),  being 
either  supplied  by  operation  of  law,  or  on  account 
of  the  little  estimation  in  which  the  law  holds  the 
particular  interest.  Thus  an  heir-at-law  may  make 
leases  before  entry,  although  he  cannot  maintain 
trespass,  until  by  entry  he  acquires  possession  in 
fact.  (Plowd.,  142.) 

Thus,  also,  no  entry  is  necessary  to  avoid  an  estate 
which  ends  by  limitation,  the  law  casting  it  on  the 
party  to  whom  it  is  limited,  without  entry  or  claim, 
and  vesting  it  in  him  until  he  disagrees  to  it.  (2 
Mod.,  7.) 

Thus,  also,  it  will  be  found  that  conditions  have 
been  construed  into  limitations  to  support  convey- 
ances of  estates.  In  the  case  of  Poussly  v.  Blackman 
(Cro.  Jac.,  659),  on  a  bargain  and  sale  of  lands,  con- 
ditioned to  be  void  on  payment  of  a  sum  of  money, 
and  that  the  bargainee  should  not  enter  until  fail- 
ure of  the  condition,  the  bargainor  failed  to  make 
payment,  the  bargainee  never  entered,  but  devised 
the  lands  and  died,  and  it  was  held  a  good  devise  on 
which  the  devisee  could  maintain  an  ejectment. 

The  smallness  of  the  particular  estate  also,  as 
where  it  is  but  a  chattel  interest,  will,  in  some  cases, 
render  a  re-entry  unnecessary.  If  a  lease  be  for 
life  upon  condition,  the  reversioner  shall  not  take 
advantage  of  a  failure  of  the  condition  without 
entry;  but  if  the  lease  had  been  for  years,  it  would 
be  otherwise,  because  the  lease  for  years  is  ipsn 
facto  void,  by  breach  of  the  condition,  without 
entry;  for  a  lease  for  years  may  begin  without  cere- 
mony, and  end  without  ceremony,  but  an  estate  of 
freehold  cannot  begin  or  end  without  ceremony: 
and  of  a  void  thing  a  stranger  may  take  benefit,  but 
not  of  an  estate  voidable  by  entry.  (Co.  Lit.,  214  ft  ; 
Jenk.,  121,  case  43.) 

In  the  case  of  a  tenant  at  sufferance,  no  re-entry 
is  necessary  to  enable  the  reversioner  to  pass  his  in- 
terest. In  Willis  v.  Jermine  (2  Leon.,  97),  in  eject- 
ment, a  lease  was  made  to  Jermine  rendering  rent, 
and  for  default  of  payment,  to  be  void.  The  rent 
was  afterwards  demanded  and  not  paid,  and  the 
lessor,  without  entry,  leased  the  lands  to  Willis, 
Jermine  being  in  the  actual  possession,  and  it  was 
held  good,  for  that  Jermine  was  but  a  tenant  at  suf- 
ferance and  the  counsel  for  the  defendant  agreed 
that  if  he  was  but  tenant  at  sufferance,  the  second 
lease  was  good. 

There  are  few  cases  in  which  the  possession  of  a 
tenant  at  sufferance  is  regarded  in  law.  His  descent 
will  not  toll  an  entry.  (Cro.  Eliz.,  238;  Allen  v.  Hill.) 
Of  course,  he  cannot  be  a  disseisor.  His  possession 
and  taking  of  the  profits  is  not  sufficient,  in  case  of 
conveying  away  the  property,  to  protect  him 
against  a  prosecution  for  maintenance ;  for  by  Wray, 
Ch.  J.,  in  the  case  of  Pike  v.  Hassan  (3  Leon.,  233),  he 
is  but  a  tortf easor. 

From  these  authorities  it  results  that  a  lessor, 
after  the  expiration  of  the  term  of  the  lessee  for 
years,  may  convey  without  actual  entry,  notwith- 
standing the  holding  over  of  the  lessee. 

The  only  remaining  question  is  whether  Hustice, 
by  bringing  his  ejectment,  so  far  altered  his  situa- 
tion as  to  make  an  entry  necessary.  The  case  of 
Smartel  v.  Williams  (Salk.,  246)  furnishes  the  answer, 
and  will  be  found  to  meet  precisely  every  point  that 
has  arisen  in  this  cause.  A  mortgage  of  a  term  as- 
signed without  the  mortgagor's  joining;  the  as- 
signee brought  an  ejectment,  and  pending  the  suit, 

JOHNSON'S  CASES,  1. 


assigned  over.  The  questions  were,  as  in  the  case 
before  us,  was  this  a  disseisin;  was  not  the  term 
devested  and  turned  to  a  right,  by  the  first  assignee 
having  elected  to  consider  himself  dispossessed; 
could  he  therefore  assign  without  entry;  and  could 
the  second  assignee  maintain  this  action  as  lessor  of 
the  plaintiff  ?  It  was  held  by  Holt  that  the  mort- 
gagor, by  the  covenant  to  enjoy  until  default  of 
payment,  is  tenant  at  will;  the  assignment  made 
him  tenant  at  sufferance,  but  his  continuance  in 
possession  could  never  make  a  disseisin,  nor  devest- 
mg  of  the  term.  Otherwise,  had  the  mortgagor  died 
and  his  heir  entered  ;  for  the  heir  was  never  tenant 
at  will,  and  his  first  entry  was  tortious.  And  as  to 
the  bringing  of  an  ejectment,  that  could  not  admit 
an  actual  devesting,  so  as  to  turn  the  term  into  a 
right,  for  that  was  not  brought  to  recover  the  mort- 
gaged term,  but  the  actual  possession  only,  nor  does 
the  assignee  appear  a  party  to  the  record,  but  only 
lessor  of  the  plaintiff,  so  that  this  record*  can  be  no 
evidence  or  estoppel  against  him ;  and  the  court 
will  take  notice,  that  an  ejectment  is  only  a  fictitious 
proceeding  for  recovering  the  possession,  which 
cannot  well  be  otherwise  obtained  and  that  the 
entry  confessed  is  not  a  real  entry,  for  it  will 
neither  avoid  a  fine  nor  support  trespass  for  niesne 
profits. 

Thei-e  still  remain  a  few  authorities,  which  were 
cited  and  relied  on  at  the  last  hearing,  that  merit 
notice. 

A  landlord  cannot  bring  trespass  without  entry, 
against  a  tenant  who  holds  over.  (2  Black.  Com., 
150;  Mod.,  384.)  This  is  unquestionable  law,  and 
results  from  the  circumstance  of  his  first  entry 
having  been  rightful  and  not  tortious  and  also 
from  that  rule  of  law,  that  none  but  the  person 
who  has  the  possession  in  fact  can  sustain  this 
action.  Two  consequences,  however,  result  from 
those  authorities,  in  confirmation  of  the  doctrine 
laid  down  in  Smartel  v.  Williams,  to  wit,  that  a 
plaintiff  in  ejectment  admits  himself  dispossessed, 
for  the  sake  of  his  remedy  merely,  and  to  no  other 
intent,  for  after  a  recovery  he  may  maintain  tres- 
pass for  mesne  profits,  without  an  actual  entry;  and 
that  such  tenant  cannot  be  a  disseisor,  for  a  dis- 
seisee may  have  trespass  for  the  first  entry,  without 
redress,  though  not  of  the  continuance  of  the  tres- 
pass after  the  entry.  (Bro.,  tit.  Trespass,  pi.  227,  and 
Co.  Litt.,  257.) 

A  case  was  also  cited  from  2  Black.  Com.,  144,  to 
this  effect,  that  a  tenant  for  years  possesses  only  his 
term;  the  possession  and  seisin  of  the  land  being  in 
the  freeholder. 

The  inference  from  this  is  certainly  favourable  to 
the  plaintiff,  for  he  surely  might  accept  a  grant  of 
the  freehold  from  one  possessed  of  it.  This  authori- 
ty also  furnishes  an  answer  to  the  objection  on  the 
ground  of  maintenance. 

From  these  various  authorities,  I  am  of  opinion 
that  a  tenant  at  sufferance  has  no  such  interest  or 
possession  as  will  prevent  him  who  has  the  freehold 
from  passing  his  estate,  and  that  his  grantee  may 
maintain  this  action :  That  an  ejectment  brought 
by  the  grantor,  though  pending  at  the  time  of  the 
grant,  will  not  affect  the  grantee's  right;  and  that 
he  may  elect  to  be  dispossessed  for  the  sake  of  his 
remedy  only,  without  being  considered  so  to  any 
other  intent.t  I  therefore  think  that  the  verdict 
ought  to  be  entered  for  the  plaintiff. 

LANSING,  Ch.  J.,  declared  himself  to  be  of  the 
same  opinion.* 

Judgment  for  the  plaintiff. 

*  The  first  which  was  produced  in  evidence. 

t  See  the  case  of  Jackson,  ex  dem.  Van  Alen,  v. 
Rogers,  ante,  33. 

$  Only  three  judges  were  present  during  this 
term. 

25S 


SUPREME  COUKT,  STATE  OF  NEW  YORK. 


1799 


a;  2  Mod.,  115;  6  Mod.,  258;  1  Salk.,  276;  2 
Ld.  Raym.,  1551;  3  P.  Wms.,  373.)  Whether 
a  person  can,  in  such  a  case,  be  said,  technic- 
ally, to  be  estopped  because  it  is  of  the  nat 
ure  of  an  estoppel  to  bind  privies  as  well  as 
parties  (Co.  Litt,,  247  b,  265ft,  339  a;  Litt,, 
sec.  637),  and  whether  a  deed  can  operate  at 
all  by  way  of  estoppel,  if  any  interest  passes 
by  it  (Co.  Litt.,  45  a,  47  b;  8 Co.,  53  b;  3  P. 
Wms.,  373  n),  are  points  on  which  I  forbear 
to  give  an  opinion,  as  they  are  not  necessary 
to  be  discussed  in  the  present  case,  since  there 
can  be  no  doubt  that  Crabb  himself  can  never 
claim  against  his  own  deed.  I  am  according- 
ly of  opinion  that  judgment  must  be  rendered 
for  the  plaintiff  for  the  20  acres  only. 

RADCLIFF,  J.,  BENSON,  J.,  and  LANSING, 
Ch.  J.,  were  of  the  same  opinion. 

Judgment  for  the  plaintiff. 

Distinguished— 4  Johns.,  234;  5  Johns.,  501. 

Limited— 13  Wend.,  213. 

Cited  in  Col.  and  Cal.,  389 ;  2  Johns.,  520 ;  7  Johns., 
31 ;  12  Johns.,  141,  204 ;  13  Johns.,  414 ;  16  Johns.,  115 ;  2 
Cow.,  230,  312 ;  3  Cow.,  80;  5  Wend.,  525;  11  Wend., 
119;  4  Hill,  174;  H.  &  D.,  311;  1  Johns.  Ch.,  298;  3 
Johns.  Ch.,  146;  2  Paige,  265;  18  N.  Y.,  583;  47  N.  Y., 
14 ;  57  N.  Y.,  99 ;  62  N.  Y.,  270 ;  87  N.  Y.,  462 ;  3  T.  &  C., 
268 ;  4  Barb.,  187 ;  21  Barb.,  592 ;  30  Barb.,  623 ;  33  Barb., 
497 ;  66  Barb.,  220. 

See  2  Caines'  Cas.,  301. 


JACKSON,  ex  dem.  TROWBRIDGE  ET  ux., 

DUNSBAGH  AND  DUNSBAGH. 

1.  Estates  in  future  —  Use  —  Warranty.  2.  Deeds 
—  Construction  —  Interest.  3.  Id.  —  Id.  —  Set-> 
eral  Deeds.  4.  Id.  —  Covenant  to  stand  seised. 
5.  Id.  —  Id.  —  Consideration.  6.  Id.  —  Id.  — 
English  rule. 

Several  instruments  or  deeds  of  the  same  date, 
between  the  same  parties,  and  relating  to  the  same 
subject,  may  be  construed  as  parts  of  one  assurance. 
A  deed  from  a  father  to  his  son,  in  consideration  of 

10  shillings,  was  held  to  be  a  covenant  to  stand 
seised  to  the  use  of  the  grantee. 

Citations—  1  Burr.,  69  ;  7  Rep..  40  ;  8  Rep.,  93  ft  ; 

11  Rep.,  24  b  ;  1  Rep.,  176  a.     Sanders,  133  ;  Bacon  on 
Uses,  63.    Sanders,  430-440. 


fPHIS  was  an  action  of  ejectment  for  lands  in 
I  Germantown,  in  the  County  of  Columbia. 
The  cause  was  tried  before  Mr.  Chief  Justice 
Yates,  at  the  Columbia  Circuit,  in  October, 
1795.  A  special  verdict  was  found,  which  con- 
tained the  following  facts: 

1.  That  Jost  Hendrick  Dunsbagh,  by  in- 
denture made  the  the  27th  of  May,  1754,  be- 
tween him  and  Philip  Dunsbagh,  for  the  con- 
sideration of  10  shillings,  granted,  bargained 
and  sold,  &c.,  to  Philip  Dunsbagh  the  prem- 
ises in  question,  after  the  decease  of  the  said 


Jost;  to  have  and  to  hold  the  premises  to  the 
said  Philip,  his  heirs  and  assigns  forever,  after 
the  decease  of  the  said  Jost.  This  identure 
contained  covenants  that  the  grantor  was  the 
owner  of  the  premises,  and  was  rightfully 
seised  of  a  good  estate  in  the  same,  and  that 
the  grantor  had  full  power  to  grant,  bargain, 
&c.,  the  premises,  to  the  said  Philip,  his  heirs 
and  assigns  forever,  after  the  decease  of  the 
said  Jost,  and  also  that  Philip,  his  heirs  and 
assigns,  *should  at  all  times  thereafter  [*92 
peaceably  and  quietly  have,  hold,  &c.,  the 
premises ;  and  a  covenant  for  further  assurance. 

2.  On  the  said  27th  of  May,  1754,  certain 
articles  of  agreement  in  writing  were  made 
and  executed  between  the  said  Jost  and  the 
said  Philip,  wherein. Philip  is  named  as  his  son, 
and  whereby  the  said  Jost,  "for  divers  good 
causes  and  considerations  him  thereunto  mov- 
ing, did  give  and  grant  unto  his  son  Philip, 
and  to  his  heirs  and  assigns  forever,  the  one  full 
half  part  of  his  mill,  and  also  the  full  half  part 
of  all  the  yearly  income  of  the  said  mill,  dur- 
ing the  natural  life  of  the  said  Jost,  to  the 
only  proper  use  and  behoof  of  the  said  Philip, 
his  heirs  and  assigns  forever,  as  might  more 
fully  appear  by  a  pair  of  identures,  bearing 
even  date.     And  it  was  further  agreed  by  the 
same  instrument  sealed,  that  if  the  said  Philip 
should  come  to  marry,  then  and  in  such  case, 
the  said  Philip  should  have  the  half  of  all  the 
growing  produce  of  the  said  Jost's  farm,  which 
should  be  equally  divided  between  the  parties, 
yearly  and  every  year,  during  the  life  of  the 
said  Jost,  and  after  his  decease,  the  said  lands 
and  farm  (which  were  the  premises  in  ques- 
tion) should  be  and  remain  in  full,  with  all  the 
yearly  incomes,  unto  the  said  Philip,  and  to 
his  heirs  and  assigns  forever,  as  might  more 
fully  appear  by  a  pair  of  indentures  thereof, 
bearing  even  date.       But  in    case    the  said 
Philip  should  not  marry,  then  he  should  have 
no  more  than  the  third  part  of  tlie  yearly  in- 
comes of  the  said  land,  or  farm,  during  the 
life  of  the  said  Jost,  and  after  his  decease,  the 
said  lands  or  farm  (the  premises  in  question) 
should  be  and  remain  in  full  unto  the  said 
Philip,  his  heirs  and  assigns  forever;"  for  the 
performance  of  which,  each  bound  himself  to 
the  other  in  the  sum  of  200  pounds. 

3.  That  the  said  Philip  was,  at  the  time  of 
the  execution  of  the  several  instruments  afore- 
said, the  only  son  of  the  said  Jost. 

4.  That  the  said  Philip,  on  the  19th  day  of 
September,  1754,  made  his  last  will  and  testa- 
ment, in  due  form  of  *law,  and  thereby  [*$>3 
gave  unto  his  sister,  Catharine  Dunsbagh,  and 
her  heirs  and  assigns  forever,  "  all  his  lands 
that  he  had  lying  in  the  camp,  within  a  cer- 
tain patent  of  6,000  acres,  as  might  more  fully 


NOTE.  —  Two  or  more  instruments,  when  construed 


Two  instruments  executed  at  the  same  time  be- 
tween the  same  parties  relative  to  the  same  subject 
matter,  are  to  be  taken  in  connection  as  one  agree- 
ment. Stow  v.  Tifft,  15  Johns.,  458  ;  Clap  v.  Draper, 
4  Mass.,  267;  King  v.  King,  1  Mass.,  499;  Perry  v. 
Holden,  22  Pick.,  277  ;  Cloyes  v.  Sweetser,  4  Cush., 
403;  Jackson  v.  Me  Kenny,  3  Wend.,  233;  Con- 
nell  v.  Todd,  2  Denio.,  130;  Doe  v.  Bernard,  7 
Smede  &  M.  (15  Miss.),  319;  Pepper  v.  Haight,  20 
Barb.,  429. 

There  must  be  identity  of  parties  and  date.  Craig 
v.  Wells,  11  N.  Y.,  315.  The  papers  must  appear 
on  their  face  to  refer  to  the  same  transaction.  Cor- 

254 


nell  v.  Todd,  above  cited.    But  see   Gammon  v. 
Freeman,  31  Me.,  243. 

Bond  executed  subsequent  to  the  recording  of  a 
deed,  upon  the  refusal  of  the  grantee  to  accept  the 
deed,  construed  with  the  deed.    Flagg  v.  Munger, 
N.  Y.,  483. 

Declaration  of  object  in  a  separate  instrument  not 
under  seal  may  operate  to  alter  the  character  of  a 
deed.  Ford  v.  Belmont,  7  Robt.,  97. 

Where  a  husband  received  conveyance  of  land, 
and  at  same  time  mortgaged  it  to  third  party  and 
the  mortgage  was  foreclosed,  the  two  instruments 
may  be  construed  together  so  as  to  defeat  the  wid- 
ow s  right  of  dower.  Clark  v.  Munroe,  14  Mass., 
351 ;  Gammon  v.  Freeman,  31  Maine,  243. 

JOHNSON'S  CASES,  1. 


JACKSON  v.  DUNSBAGH  AND  DUNSBAGH. 


93 


appear  by  a  certain  deed  thereof,  dated  the 
27th  of  May,  1754"  (and  which  were  the 
premises  in  question). 

5.  That  Philip  departed  this  life  on  the  10th 
day  of  October,  1754,  without  issue. 

6.  That  Catharine  Dunsbagh,  named  in  the 
said  last  will  and  testament,  intermarried  with 
Hendrick  Botts,  and  by  him  had  issue  Mar- 
garet, one  of  the  lessors  of  the  plaintiff,  and 
who  was  her  only  child. 

7.  That  Hendrick  Botts  and  Catharine  his 
wife,  departed  this  life  in  the  month  of  Octo- 
ber, 1755. 

8.  That  the  said  Margaret,  one  of  the  lessors, 
was  at  the  time  of  bringing  this  action,  and 
before,    intermarried    with  Trowbridge,   the 
other  lessor  of  the  plaintiff. 

9.  That  Philip,  in  his  lifetime,  after  the  exe- 
cution of  the  said  first-mentioned  deed,  and 
until  the  day  of  his  death,  lived  on  the  said 
premises  in  the  said  deed  mentioned,  in  the 
family  of    the    said    Jost,    and  during    the 
said  period,    attended  to  the  said  grist-mill 
upon  the  premises  aforesaid,  and  cultivated 
the  said  lands  in  the  said  deed  mentioned,  to- 
gether with  the  said  Jost. 

10.  That  the  said  Jost  remained  in  posses- 
sion of  the  said  premises,  from  the  time  of  the 
execution  of  the  first-mentioned  deed  until  the 
time  of  his  death,  which  was  in  1788. 

11.  That  on  the  13th  of  November,   1765, 
certain  indentures  were  made  and  executed  by 
and  between  the  said  Jost  and  Jacob  Blatner, 
whereby  for  securing  the  payment  of  a  sum  of 
money,  the  aforesaid  premises  were  mortgaged 
to  the  said  Blatner. 

12.  That  on  the  7th  day  of  March,  1785, 
Jost  made  his  last  will  and  testament,  in  due 
form  of  law,  and  thereby  devised  the  prem- 
ises aforesaid  to  John  Dunsbagh  and  Philip 
Dunsbagh,  the  above  defendants. 

O4*]  *But  whether,  upon  the  whole  matter, 
the  defendants  were  guilty,  the  jurors  were 
ignorant,  and  prayed  the  advice  of  the  court, 
&c. 

Mr.  Spencer  for  the  plaintiff. 
Mr.  Gilbert  for  the  defendant. 

LEWIS,  /.  The  questions  arising  on  this 
special  verdict  are, 

1.  Did   Philip,   the   son  of  Jost  Hendrick 
Dunsbagh,  under  whom    the   lessors  of  the 
plaintiff  claim,  derive  any  title  to  the  premises 
in  question,  under  the  conveyance  of  the  27th 
of  May,  1754.     If  not, 

2.  Did  he  derive  any  title  under  the  article 
of  agreement  of   the  same  date,  taken  either 
separately,  or  in  consideration  with  the  said 
conveyance,  as  constituting  separate  parts  of 
one  agreement? 

The  consideration  in  what  I  shall  call  the 
first  deed  (as  the  other  refers  to  it)  is  pecuniary, 
in  that  of  the  second  it  is  general,  and  Philip 
is  called  in  the  deed  the  son  of  Jost. 

For  the  plaintiff,  it  is  contended,  that  the 
two  instruments  must  be  taken  in  connection, 
and  the  consideration  be  thus  by  implication, 
as  well  consanguineous,  as  pecuniary,  and  that 
so  a  use  will  arise  to  Philip,  to  be  served  out 
of  the  seisin  of  Jost,  by  way  of  a  covenant  to 
stand  seised. 

Whether  Philip  derived  any  interest  from 
the  first  deed,  considered  independently  of  the 
JOHNSON'S  CASES,  1. 


second,  and  operating  as  a  bargain  and  sale, 
or  from  the  second  deed  independent  of  the 
first,  or  whether  a  covenant  to  stand  seised  can 
be  supported  by  a  pecuniary  consideration, 
were  points  not  raised  for  our  decision. 

For  the  defendant,  it  was  insisted,  that  the 
first  deed  created  a  freehold  to  commence  in 
futuro,  and  was,  therefore,  inoperative;  that 
the  two  instruments  ought  not  to  be  taken  in 
connection,  the  first  being  complete  without 
the  aid  of  the  second ;  that  should  they  be  so 
taken,  there  being  an  express  consideration, 
no  other  can  be  raised  by  implication;  and 
that  should  they  be  construed  as  constituting 
a  covenant  to  stand  seised,  still  the  use  to 
Philip  was  *never  executed,  the  seisin  [*95 
out  of  which  it  was  to  arise  having  been  de- 
stroyed by  the  mortgage  to  Blatner. 

It  is  undoubtedly  a  rule  of  law  that  an  es- 
tate of  freehold  cannot  be  made  to  commence 
in  futuro.  But  this  rule  is  only  applicable  to 
those  common  law  assurances  which  operate 
by  transmutation  of  possession.  It  does  not 
embrace  such  as  are  effectuated  by  transmuta- 
tion of  a  use.  unless  with  warranty. 
It  is  also  a  rule  that  in  the  construc- 
tion of  deeds,  the  intent  of  the  parties  shall,  if 
possible,  be  carried  into  effect;  the  meaning  of 
which  is,  that  where  it  shall  appear  to  be  the 
intent  of  the  parties  that  the  lands  shall  pass, 
the  mode  or  form  of  conveyance  is  not  ma- 
terial, but  the  intent  shall  be  affectuated  by 
every  legal  means.  In  the  present  instance, 
the  intent  of  the  parties  evidently  was  that 
Philip  should  have  one  half  of  the  will  and 
of  its  product,  with  one  third  of  the  farm  (or 
the  premises  in  question),  to  be  increased 
to  one  half  (in  the  event  of  his  mar- 
riage) during  the  life  of  his  father, 
with  a  remainder  in  fee  in  the  premises,  ex- 
pectant on  his  death.  If,  then,  by  any  legal 
construction  of  these  instruments,  this"  intent 
can  be  carried  into  effect,  it  ought  to  be  done. 
On  the  authority  of  the  case  of  Taylor,  ex  dem. 
Atkyns,  v.  Horde  (1  Burr.,  60),  I  think  the  two 
instruments  may  be  taken  in  connection,  as 
forming  together  the  several  parts  of  one  agree- 
ment. They  bear  the  same  date,  are  consistent, 
and  between  the  same  parties,  relate  to  the  same 
property,  and  are  manifestly  parts  of  one 
agreement  executed  by  different  instruments. 
But  where  is  the  advantage  to  the  plaintiff 
from  such  connection?  The  implied  consid- 
eration cannot  be  substituted  for  the  express 
one,  or  be  united  with  it.  The  maxium  is  ex- 
pressum  facit  cessare  taciturn.  (Bedttt'x  case, 
7  Rep.,  40;  Fox's  case,  8  Rep.,  93  b-  Harper's 
case,  11  Rep.  24  b\  Mildmay's  case,  1  Rep., 
176  a.)  The  extent  of  the  rule  is  to  admit  of 
an  implied  or  averred  consideration,  only 
where  the  consideration  is  general  or  alto- 
gether omitted.  I  shall  consider  these  instru- 
ments separate,  and  am  of  opinion  that 
under  either  of  them  the  lessors  of  the  plaintiff 
derive  a  good  title. 

*Construing  the  first  deed  as  a  bargain  [*96 
and  sale,  of  which  it  certainly  contains  all  the 
requisites,  I  am  inclined  to  think  it  effective 
of  the  intent  of  the  parties.  The  operation  of 
this  species  of  conveyance  is  that  the  bargainer 
on  the  execution  of  the  deed,  stands  seised  to 
the  use  of  the  bargainee;  and  though  the  stat- 
ute transfers  the  possession  to  the  use,  still  the 

255 


96 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


bargainee  is  seised  and  possessed  in  such  like 
estate  as  lie  bad  in  the  use.  A  consequence  of 
this  operation  is  that  a  conveyance  by  bargain 
and  sale  to  the  use  of  third  persons  is  not  good, 
because  there  the  use  is  to  be  served  out  of  the 
seisin  of  the  bargainee,  and  thus  a  use  would 
be  raised  upon  a  use  against  the  rules  of  law 
which  reqviire  it  to  be  served  out  of  a  seisin 
at  common  law.  But  where  the  use  arises 
and  is  served  out  of  the  seisin  of  the  bargainer, 
the  effect  is  different.  To  apply  this  distinc- 
tion to  the  case  under  consideration :  here  is  a 
conveyance  to  the  bargainee  to  take  effect  at 
the  decease  of  the  bargainor,  which  creates  a 
resulting  use  to  the  latter  during  life,  with  a 
vested  use  in  remainder  to  the  bargainee  in 
fee,  both  uses  being  served  in  succession  out 
of  the  seisin  of  the  bargainor.  An  authority 
to  this  effect  will  be  found  in  Sanders  on  uses 
and  trusts,1  where  it  is  said  that  if  a  man  bar- 
gains and  sells  his  land  after  seven  years,  the 
grant  is  good,  and  until  it  takes  place  the  use 
results. 

'  The  next  point  to  be  examined  is,  whether 
the  pecuniary  consideration  in  the  first  deed 
is  sufficient  to  raise  a  use  by  way  of  covenant 
to  stand  seised.  It  has  been  a  general  opinion 
that  no  considerations  but  those  of  blood  and 
marriage  are  sufficient  for  that  purpose;  this 
appears  to  me  to  be  an  error.  It  is  true  that 
such  is  the  case  in  England;  but  it  has  been 
so  since  the  statute  of  enrollments  only,  before 
which  time,  covenants  to  stand  seised  could  be 
raised  on  pecuniary  considerations.  The  in- 
tent of  this  statute  being  to  restore  the  notori- 
ety of  conveyances,  the  courts  of  justice,  to 
forward  the  views  of  the  Legislature,  and  to 
prevent  evasions  of  the  law,  determined  that 
where  the  consideration  of  a  deed  was  pecun- 
97*]  iary,  which  was  of  *a  private  or  secret 
nature,  it  should  not  take  effect  as  a  covenant 
to  stand  seised,  which  did  not  require  enroll- 
ment, but  as  a  bargain  and  sale,  which  did. 
Consideration  of  blood  and  of  marriage  being 
of  a  public  nature,  and  always  having  suffi- 
cient notoriety  attached  to  them,  did  not  fall 
within  the  same  reason,  and,  therefore,  were 
held  competent  to  support  a  covenant  to  stand 
seised.  (See  Sanders,  434-440.) 

The  statute  of  enrollments  was  never  consid- 
ered as  extending  to  this  country,  but  has  al- 
ways been  deemed  local,  on  account  of  its  ref- 
erence to  the  courts  of  Westminster,  and  to 
certain  officers  unknown  to  us.  The  law, 
therefore,  must  continue  to  be  here,  as  it  was 
in  England  previous  to  that  statute,  when 
these  distinctions  did  not  exist;  and  thus  the 
first  deed  will  operate  as  a  covenant  to  stand 
seised. 

The  second  deed  is  free  from  the  objection 
against  the  first.  The  consideration  in  it  be- 
ing general,  and  it  appearing  on  the  face  of 
the  instrument  that  the  grantee  is  the  son  of  the 
grantor,  the  consideration  of  blood  is  raised 
by  implication,  according  to  the  authorities 
above  cited,  and  the  terms  "give"  and  "grant" 
being  sufficiently  operative,  this  instrument 
may  well  enure  as  a  covenant  to  stand  seised. 

The  objection  that  the  seisin  out  of  which 
the  use  to  Philip  was  to  be  served  was  de- 
stroyed by  the  mortgage  to  Blatner,  I  consider 

1.— Sanders,  133.    See,  also,  Dacon  on  Usc-s,  63. 
250 


as  invalid.  It  is  founded  on  the  supposition 
of  its  being  a  future,  contingent  or  executory 
use,  and  the  authority  cited  from  Sanders, 
137,  relates  to  such  only.  But  in  the  present 
instance,  Philip  had  a  use  in  esse,  a  vested  in- 
terest in  remainder  which  could  not  be  de- 
feated, and  his  father  had  nothing  more  than 
a  seisin  or  possession  according  to  his  use, 
which  was  an  interest  for  life  only;  and  he 
could  part  with  no  greater  estate  in  the  prem- 
ises than  he  held.  But  had  the  use  to  Philip 
been  a  future,  springing  or  executory  use,  it 
would  still  be  doubtful  whether  the  mortgage 
to  Blatner  destroyed  the  seisin  out  of 
*which  it  was  to  be  served.  What  [*98 
species  of  mortgage  deed  it  was  does  not  ap- 
pear, nor  whether  it  was  in  existence  and  un- 
satisfied at  the  death  of  Jost.  For  if  it  was 
not  such  a  deed  as  operated  by  transmutation 
of  possession,  or  by  transmutation  of  a  use 
with  warranty,  it  would  not  work  a  discon- 
tinuance, and:,  a  fortiori,  would  not  destroy  a 
seisin  at  common  law;  and  if  it  was  dis- 
charged, Jost  would  have  been  re-seised  ac- 
cording to  the  old  use. 

My  opinion  therefore  is  that  the  posted  be 
delivered  to  the  plaintiff. 

BENSON,  J.,  concurred. 

LANSING,  Ch.  J.  I  concur  in  the  opinion 
given  by  my  brother  Lewis.  The  original 
transaction  between  the  parties  presents  them 
in  the  relation  of  father  and  son,  disposed  to 
make  a  settlement  of  the  father's  estate,  to 
answer  the  exigencies  and  views  of  both.  On 
the  same  day,  and  in  pursuance  of  the  same 
intent,  the  parties  executed  three  distinct  in- 
struments, relative  to  the  same  subject  matter. 
The  business  was  inartificially  conducted ;  but 
the  intent  is  sufficiently  evident.  If  these  in- 
struments be  taken  collectively,  the  distinction 
between  a  valuable  and  pecuniary  considera- 
tion fails  in  its  application.  In  this  view  of 
the  subject,  I  have  no  doubt  that  the  plaintiff 
is  entitled  to  recover. 

KENT,  J. ,  and  RADCMFF,  J. ,  not  having  heard 
the  argument  in  the  cause,  gave  no  opinion. 

Judgment  for  the  plaintiff. 

Approved— 11  Johns.,  351 ;  15  Johns.,  463 ;  3  Paige, 
256 

Cited  in  3  Wend.,  235 ;  9  Wend.,  629 ;  22  Wend.,  144 ; 
2  Denio,  133;  H.  &  D.,  311;  Sand.  Ch.,  264;  1  Paige, 
459;  2  Paige,  265;  57  N.  Y.,  65;  8  Hun.,  423;  11  Barb., 
21 ;  13  Barb.,  182 ;  17  Barb.,  393 ;  1  Rob.,  274 ;  1  Abb.  N. 
S.,  297. 

See  4  Mass.,  ia5  ;  12  Mass.,  93. 


*LEFFINGWELL  AND  PIERPOINT  [*99 

v. 
WHITE. 

1.  Negotinhle-  Instruments — Time  computed.  2. 
Id. — Demand — Protest — Admission  of  Lia- 
bility. 3.  Id. — Indorsement — Demand. 

In  cases  of  bills  of  exchange  and  promissory 
notes,  time  is  computed  by  calendar,  and  not  by 
lunar  months.  Where  the  indorsor  of  a  note  before 
it  became  due,  informed  the  holder  that  the  maker 
had  absconded,  and  that  being  secured  for  his  re- 
sponsibility, he  would  give  a  new  note,  and  re- 
quested time  to  pay,  and  in  the  meantime  the  noto 
fell  due;  it  was  held  that  the  holder  was  not  bound 

JOHNSON'S  CASES,  1 . 


JACKSON,  EX  DEM.  MOORE,  v.  VAN  BERGEN. 


1799 

to  make  a  demand  on  the  maker,  or  to  give  notice 
to  the  indorsor.  Where  the  declaration  alleged  a 
demand  of  payment  in  general  terms,  'although 
•often  requested,'  &c.  it  was  held  good,  especially 
after  verdict. 

THIS  was  an  action  of  assumpsit,  brought 
against  the  defendant,  as  indorsor  of  a 
promissory,  note  dated  the  5th  September,  1797, 
made  by  Miner  &  Servat  to  the  defendant,  and 
payable  to  him  or  order,  six  months  after  date, 
and  indorsed  by  him  to  the  plaintiffs. 

On  the  trial  before  Mr.  Justice  Benson,  at 
the  last  Albany  circuit,  the  note  and  indorse- 
ment were  proved,  and  it  appeared  in  evidence 
that  in  February,  1798,  before  the  note  be- 
•  came  due,  the  plaintiffs'  attorney,  to  whom  it 
had  been  sent  for  collection,  called  on  the  de- 
fendant and  informed  him  of  the  purpose  for 
which  he  had  received  the  note,  and  requested 
to  have  it  secured,  to  which  the  defendant  an- 
swered, that  he  would  see  Servat,  one  of  the 
makers,  and  endeavour  to  make  some  arrange- 
ment with  him  to  secure  or  satisfy  the  de- 
mand; that  Miner,  the  other  maker  of  the  note, 
had  left  this  State  in  the  autumn  of  1797,  and 
had  not  since  returned.  On  the  1st  day  of 
March,  1798,  the  defendant  came  to  the  plaint- 
iffs' attorney,  and  informed  him  that  Servat 
had  absconded;  but  that  he,  the  defendant, 
was  secured  or  indemnified  for  his  responsi- 
bility, and  requested  time  to  pay  the  note;  the 
•defendant  then  offered  to  give  a  new  note  with 
an  indorsor  for  the  one  in  question,  to  which 
the  plaintiffs'  attorney  assented,  and  pending 
the  negotiation  between  them  for  that  purpose, 
the  time  of  payment  of  the  present  note  ex- 
pired, without  any  attempt  to  demand  pay- 
ment of  the  makers,  after  which  the  defendant 
refused  to  pay  the  note. 

A  verdict  was  taken  for  the  plaintiffs,  sub- 
ject to  the  opinion  of  the  court  on  the  ques- 
tion, whether,  under  the  circumstances  of  the 
the  case,  an  actual  demand  of  payment  from 
the  makers,  and  notiee  to  the  indorsor  were 
necessary. 

On  the  argument,  two  points  were  made:  1. 
Whether  the  six  months  were  to  be  computed 
1OO*]  as  lunar  or  calendar  *months.  If  lunar, 
it  was  insisted  that  the  time  for  the  demand  of 
payment,  and  notice  to  the  defendant,  had 
•  elapsed  previous  to  the  commencement  of  any 
negotiation  between  him  and  the  plaintiffs' 
.attorney,  and  that  the  defendant,  therefore, 
was  discharged. 

3d.  If  such  time  had  elapsed,  whether  the 
.acts  of  the  defendant  amounts  to  a  waiver  of 
the  necessity  of  a  demand  and  notice. 

Mr.  Beers,  for  the  plaintiff. 
Mr.  Bird,  for  the  defendant. 

Per  Curiam.  In  general,  the  period  of  a 
month  is  construed  to  mean  a  lunar  month, 
unless  it  is  otherwise  expressed;  but  in  the 
case  of  bills  of  exchange,  the  mode  of  comput- 
ing time  is  by  calendar,  and  not  lunar  month. 
The  same  reason  applies  to  promissory  notes, 
which  in  many  respects  stand  on  the  footing 
•  of  bills,  and  are  generally  governed  by  the 
same  rules. 

On  the  second  point,  we  are  of  opinion  that 
the  pending  negotiation  between  the  parties 
superseded  the  necessity  of  a  demand  of  pay- 
., JOHNSON'S  CAPES,  1.  N.  Y  REP.,  BOOK  1. 


99 


ment  and  of  notice.  The  defendant  was  fully 
apprised  of  his  situation  before,  and  at  the 
time  the  note  fell  due.  One  of  the  makers 
was  absent  from  the  State,  and  the  other  had 
absconded.  A  formal  demand  and  notice 
under  such  circumstances,  could  answer  no 
valuable  purpose.  The  defendant,  sensible  of 
this,  by  his  own  acts  admitted  his  responsibil- 
ity, treated  the  note  as  his  own,  and  negoti- 
ated for  a  further  time  of  payment.  By  this 
conduct  he  waived  the  necessity  of  any  de- 
mand or  notice. 

Note.  The  defendant  afterwards  moved  in 
arrest  of  judgment,  on  the  ground  that  the 
first  count  in  the  declaration  alleged  a  demand 
of  payment  in  general  terms,  to  wit:  although 
often  requested,  &c.,  and  did  not  aver  a  de- 
mand of  payment  from  the  makers  on  the 
last  day  of  grace;  and  that  the  verdict  being 
general  on  the  several  counts,  must  be  arrested 
for  the  defect  in  the  first  count.  Sed  Per 
Curiam:  There  are  precedents  without  the 
special  averment  of  demand,  and  they  are 
sufficient  to  warrant  this  form  of  declaring. 
Even  if  *the  objection  were  good  on  [*1O1 
demurrer,  it  is  now  too  late.  The  fault  in  the 
first  count  of  the  declaration  is  no  more  than 
the  defectively  setting  out  of  a  title  which  is 
always  cured  by  a  verdict.  The  motion  must ' 
be  denied. 

Judgment  for  the  plaintiffs. 

Cited  in- 15  Johns.,  120;  4  Wend.,  513;  7  Wend.,  168 
10  Wend.,  509 ;  11  Wend.,  404 ;  5  Hill,  407 ;  3  Denio,  21 ; 
13  Barb.,  167 ;  20  Barb.,  66 ;  32  Barb.,  284 ;  53  Barb.,  27  ; 
12  Wheat.,  188 ;  1  McLean,  310. 


JACKSON,  ex  dem.  MOORE, 

v. 
VAN  BERGEN. 

Ejectment — Proof — Moiety — Possession. 

In  an  action  of  ejectment,  the  plaintiff  gave  evi- 
dence of  a  title  to  an  undivided  moiety  of  the  prem- 
ises only,  but  a  general  verdict  was  taken;  a  motion 
for  a  new  trial  was  refused,  but  the  court  ordered 
that  the  plaintiff,  on  the  hnl>.  fac.  possess,  should 
take  possession  of  the  moiety  only. 

THIS  was  an  action  of  ejectment,  tried  at 
the  last  sittings  in  Albany,  before  Mr.  Jus- 
tice Benson.  A  general  verdict  was  taken  for 
the  plaintiff,  and  it  appeared  that  the  plaintiff 
gave'evidence  of  title  to  an  undivided  moiety 
of  the  premises  in  question  only.  On  this 
ground  a  motion  was  made  for  a  new  trial. 

Messrs.  Emott  and  Van  Vechten,  for  the  plaint- 
iff. 
Mr.  Spencer,  for  the  defendant. 

Per  Curiam.  The  motion  is  denied,  but 
it  is  ordered  that  the  plaintiff,  on  the  hab.  fac. 
possess. ,  take  possession  of  an  undivided  moiety 
of.  the  premises  only. 


Rule  refused. 

Cited  in— 8  Cow.,  437. 
17 


25  T 


101 


SUPREME  COURT,  STATK  OP  NEW  YORK. 


1799 


PALMER  v.  GREEN. 

1.  Justice's  Court — Limitation  of  Adjournment. 
2.  Pleading — In  Abatement  after  Plea  in 
chief. 

A  justice  has  not  power  to  adjourn  a  cause  for  a 
longer  time  than  six  days,  without  the  consent  of 
the  parties.  A  plea  in  abatement  after  a  plea  in 
chief,  is  a  nullity. 

IN  error  on  certiorari  to  a  justice's  court.  In 
this  case  several  causes  were  assigned  for 
error,  but  the  following  were  principally  re- 
lied upon,  and  no  other  was  noticed  by  the 
court. 

1.  That  the  plaintiff  in  error,  who  was  de- 
fendant below,  pleaded  two  pleas  in  the  ac- 
tion before  the  justice,  to  one  of  which  the 
plainitff  below  did  not  reply,  and  no  issue  was 
taken  upon  it. 

2.  That  the  justice  adjourned  the  trial  of 
the  cause  before  him  for  more  than  six  days, 
without  consent  of  the  parties. 

1O2*]  *Per  Curiam.  With  respect  to  the  first 
objection,  it  appears  that  the  first  plea  of  the 
defendant  below  was  a  plea  in  chief  to  the 
merits  of  the  action,  and  the  second  a  plea  in 
abatement  which  was  not  answered.  The 
plea  in  abatement  after  a  plea  in  chief  was  a 
nullity,  and  not  necessary  to  be  answered. 
But  the  second  objection  is  fatal.  A  justice 
has  no  authority,  by  the  ten  pound  act,  to  ad- 
journ the  trial  beyond  six  days,  without  the 
consent  of  the  parties.  The  defendant  below 
did  not  consent,  nor  did  he  appear  at  the  trial. 

Judgment  reversed. 

Followed— 3  Caines,  172. 

Cited  in-Col.  &  Cai.,  493 ;  2  Cow.,  472 ;  15  Hun.,  43 ;  6 
How.  Pr.,  449;  3  E.  D.  Smith,  128. 


FLEMING,  Executor  v.  TYLER. 

Executor — Nonsuit —  Variance — Costs. 

An  executor  plaintiff,  who  was  nonsuited  for  a 
variance  between  the  declaration  and  the  writing 
declared  upon,  was  held  not  liable  for  the  costs. 

THE  plaintiff  was  nonsuited  on  the  trial  of 
the  cause,  and  on  showing  cause  why  he 
should  not  pay  costs,  it  appeared  that  the 
date  of  the  writing  on  which  the  suit  was 
brought  was,  through  mistake, wrongly  copied 
in  the  declaration,  and  the  nonsuit,  was  granted 
on  account  of  the  variance;  and  the  court  re- 
fused to  make  the  rule  absolute. 


SPENCE  v.  WHITE. 

Set-off — Costs — Judgment  less  than  $50. 

Where  the  plaintiff  recovered  less  than  $50,  the 
defendant  was  allowed  to  set  off  his  costs  against 
the  amount  recovered. 

THE  plaintiff  having  recovered    less  than 
fifty  dollars,  the  defendant  now  moved  to 
set  off  the  costs  against   the  sum  recovered. 
The  attorney  for  the  plaintiff  objected,  because 

258 


the  whole  of  his  costs  were  due,    and  the 
plaintiff  had  become  insolvent. 

Per   Curiam.      The  objection  is  not  well 
founded,  and  the  rule  must  be  granted. 

Mule  granted. 


Cited  in— 8  Johns.,  357 ;  9  How.  Pr.,  21 ;  8  Daly,  184 ;  1 
B.  D.,  603. 


*HEYER  0.  DENNING.      [*1O3 

Attorney  as  Agent  only. 

It  is  improper  practice  in  an  attorney  to  appear  - 
and  act  for  a  party  in  a  suit,  as  agent  merely,  and 
not  as  attorney. 

rPHE  plaintiff  in  this  catise  had  proceeded  to 
J-  outlawry.  One  of  the  attorneys  of  this 
court  gave  notice  of  a  retainer  to  the  plaintiff, 
which  notice  was  signed  for,  or  on  behalf  of 
the  defendant,  and  he  declared  verbally  that 
he  did  not  mean  to  appear  as  attorney.  At  the 
last  term,  however,  he  obtained  a  rule  to  set 
aside  all  the  proceedings. 

Mr.  Jones,  for  the  plaintiff,  now  moved  to- 
vacate  the  rule  for  irregularity. 

Per  Curiam.  The  attorney  on  such  a  notice 
of  appearance  must  be  considered  as  a  mere 
stranger,  and  could  take  no  rule  in  the  case- 
It  is  improper  practice  in  any  attorney  to  at. 
tempt  to  appear  as  agent,  but  not  as  attorney. 
As  the  defendant  has  not  appeared  or  put  in 
bail,  we  grant  the  motion  with  costs,  to  be 
paid  by  the  attorney  who  acted  for  the  defend- 
ant. 


CONCKLIN  v.  HART. 

Commission — Aged  and  Infirm  Witness. 

A  commission  may  be  issued  to  examine  witnesses 
who  are  aged  and  infirm,  before  a  commissioner, 
and  the  rule  may  be  obtained  at  any  time  after  the 
commencement  of  the  suit. 

A  PPLICATION  was  made  to  take  the  de- 
ll- positions  of  certain  witnesses  before  one  of 
the  commissioners  for  taking  affidavits,  on  the 
ground  that  they  were  so  aged  and  infirm  that 
they  could  not  personally  attend  court  on  the 
trial  of  the  cause. 

It  was  objected  that  the  cause  was  not  at 
issue,  and  that  the  practice  was  unpreced- 
ented. 

Per  Curiam.  There  appears  to  be  a  reason- 
able ground  for  granting  a  commission  in  such 
a  case,  and  the  application  may  be  made  at. 
any  time  after  the  commencement  of  the  suit. 

Rule  granted. 

Cited  in-30  How.  Pr.,  214;  7  Rob.,  459. 

JOHNSON'S  CASES,  1.. 


1799 


THE  PEOPLE  v.  TOWNSEND. 


104 


1O4*]    *THE  PEOPLE  r.  TOWN  SEND. 

1.  Oyer  and  Termimr — New  Trial.  2.  Id. — 
Cause  removed  not  returnable.  3.  Trial  of 
Removed  Cause. 

A  court  of  oyer  and  terminer  may  award  a  new 
trial-  Proceedings  removed  from  the  oyer  and  ter- 
miner, and  filed  here,  cannot  be  sent  back  to  that 
court.  The  trial  in  such  case,  may  be  either  at  bars 
or  at  the  oyer  and  terminer,  except  in  capital  cases. 

AT  the  last  Court  of  Oyer  and  Terminer  in 
Dutchess  County,  the  defendant  was  con- 
victed of  perjury.  Before  judgment  he  ab- 
sconded, and  afterwards  voluntarily  surrend- 
ered himself, but  no  judgment  was  pronounced. 
The  judge  before  whom  the  prisoner  was  tried 
reported  to  this  court  that  the  verdict  was 
given  against  evidence. 

Per  Curium.  There  must  be  a  new  trial; 
and  the  judge  who  is  to  preside  at  the  next 
Oyer  and  Terminer  in  Dutchess  County  will 
communicate  this  opinion  to  the  justices  of 
that  court;  in  the  meantime  the  prisoner  must 
give  bail  for  his  appearance. 

The  proceedings  which  have  been  brought 
up  here  by  certiorari,  not  having  been  actually 
received,  may  be  returned.  If  they  had  been 
filed  in  this  court  they  could  not  have  been 
sent  back,  but  must  have  remained  here.  No 
form  of  process  for  returning  them  is  to  be 
found  in  the  books.  The  court  must  have 
proceeded  to  try  the  defendant  at  bar,  by  a 
jury  returned  from  Dutchess,  or  have  sent  the 
cause  down  to  the  next  circuit,  to  be  held  in 
that  county.  We  are  inclined  to  think,  how- 
ever, that  in  a  capital  case  it  would  be  other- 
wise, and  that  it  could  not  be  sent  down  for 
trial.1 

Cited  in— 5  Wend.,  42 ;  1  Denio,  678 ;  20  N.  Y.,  548, 554 ' 
2  Barb.,  288 ;  1  Park.,  370,  629 ;  5  Park.,  645 ;  1  Wheel.  C. 
P    497 
"See  2  Barb.,  282. 


LE  CONTE  v.  PENDLETON. 

Pleading  —  Nul  tiel  record  —  Nil  bebit  —  Validity. 

In  action  of  debt  on  a  judgment  obtained  in  the 
State  of  Georgia,  the  defendant  pleaded  nul  tiel 
record  and  nil  debet  ;  and  the  court  ordered  one  of 
the  pleas  to  be  struck  out. 


I^HIS  was  an  action  of  debt  on  a  judgment 
rendered  in  the  State  of  Georgia.  The  de- 
claration contained  but  one  count.  The  de- 
fendant pleaded,  1.  Nul  tiel  record,  and  2. 
Ml  debet.  with  notice  of  special  matter  to  be 
given  in  evidence. 

Mr.  Hanson,  in  behalf  of  the  plaintiff,  moved 
that  one  of  the  pleas  should  be  struck  out. 
(He  cited  Doug.,  6;  2  Dallas,  302;  1  Cromp. 
Prac.,  173.) 

1O5*]  Mr.Pendleton,contra,relied  on  the  *case 
of  Walker  v.  Witter  (Doug.,  1). 

Per  Curiam.  Take  your  rule,  that  one  only 
of  the  two  pleas  be  allowed,  and  that  the  de- 
fendant, within  four  days  after  notice  of  the 

1.—  See  The  People  v.  Ludlow  (Col.  Cases,  34). 
When  a  record  is  removed  into  the  court  of  K.  B. 
in  England,  it  always  remains  there.  (2  Saund.,  27, 
and  n.  2.) 

JOHNSON'S  CASES,  1. 


rule,  elect,  or  in  his  default  the  plaintiff  may 
elect,  which  of  the  two  pleas  shall  stand,  and 
that  the  other  be  struck  out.  (See  Col.  Cases, 
35,  73.) 

Rule  granted. 


MURRAY  v.  SMITH. 

Costs — Removed  Gauge  returned. 

Where  a  cause  was  removed  from  an  inferior  court 
by  habeas  corpus,  and  the  plaintiff  filed  his  declara- 
tion, and  entered  a  rule  to  plead,  and  a .procedendo 
was  issued  for  want  of  bail,  the  plaintiff  is  not  en- 
titled to  the  costs  of  this  court. 

THIS  cause  had  been  removed  into  this  court 
from  the  Common  Pleas  by  a  habeas  corpus, 
and  the  plaintiff  filed  a  declaration  and  enter- 
ed a  rule  to  plead.  But  no  bail  having  been 
put  in  by  the  defendant  in  this  court,  a  proce- 
dendo issued,  and  the  plaintiff  obtained  a  judg- 
ment in  the  Common  Pleas.  It  was  submitted 
to  the  court,  whether  the  plaintiff  was  entitled 
to  the  costs  in  this  court. 

Per  Curiam.  The  plaintiff  is  not  entitled  to 
have  the  costs  of  the  declaration  and  rule  to 
plead,  taxed  against  the  defendant,  as  those 
proceedings  were  unnecessary,  until  the  de- 
fendant had  put  in  bail  on  the  return  of  the 
habeas  corpus. 


BILLINGS,  Assignee,  &c.,  v.  SKUTT. 

Insolvent  Debtor — Discharge — Entry   of  Judg- 
ment by  Confession. 

Where  a  person  had  given  a  bond,  with  a  warrant 
of  attorney,  and  afterwards  obtained  his  discharge 
under  the  insolvent  act,  and  the  person  to  whom 
the  bond  and  warrant  were  given  entered  up  judg- 
ment, the  court,  on  motion,  ordered  the  judgment 
to  be  set  aside. 

A  JUDGMENT  by  confession  was  entered 
A.  against  the  defendant  on  a  bond,  executed 
by  him  to  Ter  Bush,  by  virtue  of  a  warrant 
accompanying  the  bond,  and  directed  to  any 
attorney  to  confess  judgment  thereon. 

It  was  moved  to  set  aside  the  judgment  on 
the  ground  that  the  defendant  after  giving  the 
bond,  and  before  the  judgment  was  entered  up, 
became  insolvent,  and  obtained  a  discharge 
under  the  Act  for  the  Relief  of  Insolvent 
Debtors,  passed  the  13th  April,  1786. 

Per  Curiam.  It  appearing  that  the  defend- 
ant obtained  such  discharge,  the  plaintiff,  if 
he  meant  to  contest  its  validity,  ought  to  have 
brought  a  suit  in  the  ordinary  course, 
*on  the  bond.  The  judgment  is  a  sur-  [*lO(i 
prise  on  the  defendant,  and  must,  therefore, 
be  set  aside. 

Rule  granted. 

Cited  in— 1  Barb.  Ch.,  350;  3  Barb.  Ch.,  383. 


106 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


JACKSON,  ex  dem.  VROOMAN, 


SMITH. 


Ejectment — Default  Against   Casual    Ejector — 
Appearance.        , 

A  judgment  by  default  against  the  casual  ejector, 
in  ejectment,  without  previously  entering  the  de- 
fault for  not  appearing,  is  irregular. 

IN  this  case  the  plaintiff  entered  a  judgment 
by  default  at   the  last  term,  against  the 
casual  ejector,  without  having  previously  en- 
tered a  default  for  the  tenant's  not  appearing. 
It  was  moved  on  this  ground  to  set  aside  the 
judgment  as  for  irregularity. 


DAVIS  v.  OSTRANDER. 

Stamps — Arbitration  Bond — Power  of  At- 
torney. 

Arbitration  bonds,  and  powers  of  attorney,  in  suite 
depending  in  this  court,  need  not  be  stamped.  N. 
B.  The  act  relative  to  stamp  duties,  has  been  since 
repealed. 

T1HIS  was  an  action  of  debt  on  an  arbitration 
JL  bond,  and  the  only  question  was  whether 
the  bond  was  necessary  to  be  stamped. 

Per  Curiam.  It  is  not  a  bond  for  the  pay- 
ment of  money,  and  not  within  the  act  of  Con- 
gress on  this  subject,  and  therefore  need  not 
be  stamped. 

Judgment  for  the  plaintiff. 


Per  Curiam. 


NOTE.  On  the  application  of  the  clerk  for 
The  judgment  was  irregular    the  direction  of  the  court  on  the  question 


for  not  previously  entering  the  default  of  the 
tenant.  Our  rule  is  express  on  this  subject, 
and  the  tenant  coming  in  time  it  cannot  be  dis- 
pensed with. 

Rvle  granted  with  costs. 
200 


whether  powers  of  attorney  in  suits  depending 
in  this  court  ought  to  be  received  without  be- 
ing stamped. 

The  court  said  that  such  powers  need  not  be 
stamped,  and  that  the  above  mentioned  act 
applies  to  general  letters  of  attorney  only. 

JOHNSON'S  CASES,  1. 


[END  OF  APRIL  TERM.] 


CASES   ADJUDGED 


IN   THK 


SUPREME  COURT  OF  JUDICATURE 


JULY  XKRM:,  IN   THE  YEAR  1799. 


1O7*]  *KENWORTHY  v.  HOPKINS. 

1.  Bill  of  Exchange — Action  on  Second 'or  Third 
after  Protest.  2.  Id. — Action  against  Indorser 
— Acceptor  in  Bankruptcy.  3.  Id. — To  pay 
Debt — Damages. 

Where  one  of  a  set  of  three  bills  of  exchange  on 
London,  was  protested  for  nonpayment ;  it  was  held, 
that  an  action  might  be  maintained  here  against  the 
indorsor,  on  one  of  the  set  not  protested,  with  the 
protest  of  the  other ;  that  a  proceeding  against  the 
acceptor  under  a  commission  of  bankruptcy  in  Lon- 
don, did  not  discharge  the  right  of  action  against 
the  indorsor ;  that  where  a  bill,  remitted  to  pay  an 
antecedent  debt,  is  returned  protested,  no  damages 
are  recoverable. 

Citations— 1.  Lex.  Mer.,  460 ;  Kyd.,  87 ;  Lex.  Mer., 
481. 

THIS  was  an  action  on  a  bill  of  exchange  by 
the  indorsee  against  the  indorsor.  On  the 
trial,  the  case  appeared  to  be  as  follows:  The 
bill  was  drawn  by  Eobert  Murray  &  Co.  on 
James  V.  Murray  on  London,  in  favour  of  the 
defendant.  It  was  accepted  by  the  drawee, 
and  fell  due  on  the  23d  May,  1796,  and  was 
protested  for  non-payment  on  that  day.  The 
bill  declared  on  and  produced  in  evidence,  was 
the  second  of  a  set  of  three  bills.  The  hand- 
writing of  the  drawers  and  of  the  acceptor  and 
indorsor  were  proved  or  admitted.  Buckley 
was  called  as  a  witness  to  prove  notice  to  the 
indorsor,  and  testified,  that  on  the  20th  August, 
1796,  he  received  from  the  plaintiff's  agent  the 
first  of  the  said  set  of  bills  (which  had  not  been 
accepted  or  protested)  with  the  protest  of  the 
second  of  the  set,  in  a  letter  dated  1st  June, 
1796,  which  bill  and  protest  he  presented  to 
the  defendant,  on  the  day  he  received  them, 
1O8*]  and  requested  payment  of  him;  that  *the 
defendant  refused  to  pay,  and  assigned  as  a 
reason  that  the  bill  which  had  been  accepted 
and  protested,  ought  to  have  been  returned. 
The  witness,  therefore,  wrote  to  the  plaintiff's 
agent  for  the  protested  bill,  and  on  the  3d  day 
JOHNSON'S  CASES,  1. 


of  February,  1797,  received  it,  and  presented 
it  to  the  defendant  for  payment,  who  refused 
to  pay  it,  alleging  that  it  had  been  kept  too  long. 

It  also  appeared,  that  the  bill  had  been  re- 
mitted by  the  defendant  for  the  payment  of 
goods  which  he  had  purchased  from  the  plaint- 
iff, and  that  the  bill  had  been  proved  by  the 
plaintiff,  under  a  commission  of  bankruptcy 
against  the  acceptor  in  England. 

On  the  part  of  the  defendant  it  was  proved, 
that  the  drawers  of  the  bill  had  become  in- 
solvent before  the  3d  February,  1797,  and  evi- 
dence was  also  given  tending  to  show,  that  if 
the  protested  bill  had  in  the  first  instance  been 
returned,  the  defendant  after  paying  it  would 
probably  have  been  able  to  recover  the  amount 
from  the  drawers,  which  on  account  of  their 
insolvency  he  was  afterwards  unable  to  do. 

A  verdict  was  found  for.  the  plaintiff  for  the 
amount  of  the  bill,  with  twenty  per  cent,  dam- 
ages, subject  to  the  opinion  of  the  court, 
whether  the  plaintiff  was  entitled  to  recover, 
and  if  so,  whether  he  was  entitled  to  the 
twenty  per  cent,  damages.  It  was  agreed  that 
judgment  for  the  plaintiff,  or  a  nonsuit  against 
against  him,  should  be  entered,  or  the  verdict 
should  be  reduced  as  the  court  might  direct. 

Mr.  Hanson,  for  the  plaintiff,  contended  that 
the  notice  to  the  defendant  was  sufficient.  He 
said  that  it  was  not  necessary  to  return  the 
protested  bill,  which  it  may  be  essential  to  the 
holder  to  keep,  in  order  to  pursue  his  remedy 
against  the  acceptor.  His  proceeding  against 
the  acceptor  under  the  commission  of  bank- 
ruptcy, was  also  for  the  benefit  of  all  the  pre- 
vious parties  to  the  bill,  and  could  not  operate 
to  his  prejudice,  or  make  the  bill  his  own,  any 
more  than  a  suit  against  the  acceptor  would 
have  done.  On  the  point  of  damages,  he  sub- 
mitted to  the  court,  whether  this  was  a  case  to 
be  excepted  out  of  the  general  rule. 

*Mr.Riggs,  for  the  defendant,  contend-  [*1O9 
ed  that  the  plaintiff  ought  not  to  recover;  1.  Be- 
cause he  had  been  guilty  of  neglect  in  not  re- 

201 


109 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


turning  the  protested  bill  within  a  reasonable 
time;  and  the  defendant  was  not  bound  to 
pay  on  the  return  of  the  unaccepted  bill  and 
protest  as  above  mentioned. 

3d.  Because  the  plaintiff  had  made  the  bill 
bin  own,  by  proving  it  under  a  commission  of 
bankruptcy  against  the  acceptor  after  it  had 
been  dishonoured;  and 

3d.  He  insisted  that  if  the  plaintiff  could  re- 
cover, he  was  not  entitled  to  the  twenty  per 
cent,  damages,  on  a  bill  remitted  by  the  de- 
fendant, to  pay  an  antecedent  debt  due  to  the 
plaintiff. 

Per  Curiam.  We  think  the  protest  and  no- 
tice of  nonpayment  to  the  defendant,  were  suf- 
ficient. It  was  not  incumbent  on  the  plaintiff 
to  transmit  the  bill  itself  which  was  protested. 
He  had  a  right  to  proceed  against  the  acceptor 
in  England,  as  well  as  against  the  drawer  and 
indorsor  here,  and  it  might  be  essential  to  re- 
tain the  bill  for  that  purpose.  If  a  different 
rule  were  to  prevail,  the  security  of  such  paper 
would  be  greatly  impaired;  for  the  holder  of  a 
bill  in  every  case,  where  several  parties  living 
at  a  remote  distance  from  each  other  should 
be  liable  upon  it,  would  be  driven  to  the  ne- 
cessity of  electing  to  send  it  to  one  only,  and 
of  relinquishing  his  demand  against  the  others. 
The  passage  in  Beawes  (Lex.  Mer.,  460  ;  Kyd, 
87),  which  was  cited  on  the  argument,  relates 
to  the  transmission  of  a  bill  by  an  agent  or 
correspondent  to  his  principal,  the  holder,  and 
it  is  also  qualified  with  the  remark,  "  unless 
he  (the  agent)  shall  be  ordered  by  him  (the 
holder)  to  retain  the  bill,  with  a  prospect  of 
obtaining  a  discharge  from  the  acceptor." 
In  the  other  passage  cited  from  the  same 
book  (Beawes'  Lex.  Mer.;  461),  it  is  said 
that  "  no  drawer  or  indorsor  is  bound  to  make 
restitution  on  sight  of  the  protest  alone, 
nor  where  one  of  the  set  has  been  accept- 
ed, on  sight  of  the  protest  and  unaccepted 
bill ;  but  he  must  give  satisfactory  security  to 
the  remitter,  on  his  producing  the  protest  only 
to  make  payment,  when  that  and  the  accepted 
bill  shall  be  presented."  The  security  here 
HO*]  *required  shows  the  immediate  re- 
sponsibility of  the  drawer  and  indorsor,  and 
implies  that  the  production  of  the  accepted 
bill  is  necessary  only  when  actual  payment  is 
demanded. 

The  proceeding  under  the  commission 
against  the  acceptor,  could  not  discharge  the 
responsibility  of  the  antecedent  parties.  It 
was  an  act  for  the  benefit  of  all  concerned, 
and  the  pursuit  of  a  remedy  to  which  the 
plaintiff  was  entitled.  Whether  the  money 
was  sought  to  be  recovered  in  that  or  in  any 
other  way,  the  effect  must  be  the  same,  and 
cannot  vary  the  rights  of  the  parties. 

But  the  plaintiff  ought  not  to  be  allowed  the 
twenty  per  cent,  damages  :  the  practice  on  this 
point  we  believe  to  be  settled.  The  reason 
for  that  allowance  does  not  apply  where  a  bill 
is  remitted  to  pay  an  antecedent  debt. 

JncLymentfor  tfie  plaintiff. 


TOWLE  AND  JACKSON  «.  STEVENSON. 

1.  Agency — Ratification — Liability  of  Agent.   2. 
Evidence — Letters  of  Party. 

An  agent  to  whom  a  bill  of  exchange  was  remitted 
to  be  collected,  though  liable  for  his  misconduct,  in 
the  first  instance,  was  held  to  be  discharged  from 
his  responsibility,  by  the  principal's  adopting  his 
acts.  Letters  written  by  a  party  are  not  admissible 
evidence  in  his  favor,  thougn  they  may  be  evidence 
against  him. 

THIS  was  an  action  on  the  case,  brought  to 
recover  from  the  defendant  the  amount 
of  a  bill  of  exchange,  of  which  the  plaintiffs 
(who  were  merchants  residing  in  London)  were 
the  holders,  and  which  was  remitted  by  them 
to  the  defendant,  who  resided  in  New  York, 
to  be  collected  on  their  account.  The  bill  was 
drawn  by  Archibald  Ponton,  also  residing  in 
New  York,  on  Alexander  Ponton,  of  Edin- 
burgh, in  favor  of  one  M'Gregor,  of  New 
York,  for  2151.  sterling,  dated  in  September, 
1794,  payable  60  days  after  sight,  and  was  in- 
dorsed by  M'Gregor. 

On  the  trial,  before  Mr.  Justice  Benson,  at  a  cir- 
cuit, held  in  the  City  of  New  York,  it  appeared 
that  the  bill  had  been  regularly  protested  for 
nonacceptance  and  nonpayment;  and  it  was  ad- 
mitted to  have  been  received  by  the  defendant, 
for  the  purpose  above  mentioned,  on  or  before 
the  19th  May,  1795;  on  that  day  the  defendant 
wrote  to  the  plaintiffs,  acknowledging  the 
receipt  of  the  bill,  and  informing  them  that  he 
immediately  presented  *it  to  M'Gregor,  [*1 1 1 
the  indorsor,  for  payment,  and  that  Ponton, 
the  drawer,  had  conveyed  to  M'Gregor  a  house 
in  New  York,  as  security  for  his  indorsement, 
and  that  the  house  had  been  advertised  and 
sold  at  a  credit  of  sixty  days  for  the  purchase 
money,  at  the  end  of  which  time,  he  would 
receive  and  transmit  the  amount  of  the*  bill  to 
the  plaintiff.  It  also  appeared,  that  the  de- 
fendant, as  the  friend  of  M'Gregor,  and  in 
order  to  enable  him  to  sell  the  house  according 
to  the  terms  of  the  trust .  upon  which  it  was 
conveyed,  had  delivered  up  the  said  bill  to 
him,  which  was  taken  up  by  Ponton,  the 
drawer,  as  being  paid  by  the  proceeds  of  the 
sale  of  the  house.  It  was  also  admitted,  that 
the  bill  was  so  delivered  up  without  the  con- 
sent of  the  plaintiffs,  and  that  M'Gregor  was 
solvent,  and  continued  in  good  credit  till  the 
year  1798. 

On  the  part  of  the  defendant  it  was  proved 
or  admitted,  that  in  the  summer  of  1796,  he 
went  to  England  and  returned  in  the  autumn 
of  the  same  year;  that  when  in  England,  to 
wit,  on  the  12th  September,  1796,  he  delivered 
to  the  plaintiffs  a  letter  addressed  to  M'Gregor, 
requesting  him  to  pay  the  amount  of  the  bill 
to  the  plaintiffs,  it  being  their  property;  that 
the  plaintiffs  inclosed  the  same  in  another  let- 
ter of  the  same  date,  written  by  them  to 
M'Gregor,  in  which  they  urged  him  to  remit 
the  amount  without  delay,  and  informed  him 
that  they  had  adopted  the  friendly  mode  of 
writing  to  him  for  an  immediate  remittance  in 
preference  to  applying  to  any  other  of  their 


Approved— 4  Johns.,  30. 
Discussed— 15  Wend.,  529. 


Cited  in— 4  How.  (U.  S.),  282 ;  1  McLean,  94 ;  3  Mc- 
Lean, 578. 

262 


NOTE.— Principal  and  agent.  Acts  of  agents  adapted 
bj/  acquiescence  of  principal. 

See  note  to  Cairnes  v.  Bleecker,   12  Johns,    (this 
edition),  300. 

JOHNSON'S  CASES,  1. 


1799 


JACKSON,  EX  DEM,  McCREA,  v.  DUNLAP. 


Ill 


friends.  After  the  defendant's  return  to 
America,  to  wit,  on  the  8th  June,  1797,  the 
plaintiffs  again  wrote  to  the  defendant,  inform- 
ing him  that  they  had  not  yet  received  the 
amount  of  the  bill  from  M'Gregor,  and  ear- 
nestly requesting  him  to  obtain  payment  from 
M'Gregor,  and  if  it  was  not  paid,  to  take 
every  legal  step  to  recover  the  money,  at  the 
same  time  complaining  of  ill  treatment  from 
M'Gregor,  and  expressing  their  reliance  on 
the  defendant's  attention  to  their  interest;  but 
no  answer  had  been  given  to  these  letters  of 
the  plaintiffs  either  by  M'Gregor  or  the  de- 
fendant. 

The  plaintiffs  had  given  notice  to  the  de- 
fendant, that  he  would  be  required  to  produce 
112*]  in  evidence  certain  other  Blotters  re- 
ceived by  him  from  the  plaintiffs,  and  on  the 
trial  called  upon  the  defendant  to  produce 
them,  which  he  refused  to  do.  The  plaintiffs 
then  offered  to  prove  the  contents  of  such  let- 
ters by  other  testimony,  which  was  objected 
to,  and  overruled. 

On  this  evidence,  the  judge  at  the  trial  was 
of  opinion,  that  although  the  defendant  had 
in  the  first  instance  made  himself  liable  to  the 
plaintiff,  by  delivering  up  the  bill  to  M'Gregor, 
still  the  plaintiffs  by  their  subsequent  conduct 
had  ratified  his  acts,  and  thereby  discharged 
him  from  his  responsibility,  and' directed  the 
jury  accordingly.  A  verdict  was  found  for 
the  defendant. 

On  the  part  of  the  plaintiffs  a  motion  was 
made  for  a  new  trial  on  the  following  grounds: 

1.  That  proof  of  the  contents  of  the  plaint- 
iffs' letters  to  the  defendant,  which  he  had  no- 
tice to  produce,  ought  to  have  been  admitted 
in  connection  with  the  other  letters  read  by 
him. 

2.  That  the  defendant  continued  liable,  not- 
withstanding the  subsequent  acts  of  the  plaint- 
iffs; and  that  the  judge  misdirected  the  jury. 

Mr.  D.  A.  Offden  for  the  plaintiff. 
Mr.  Trovp  for  the  defendant. 

LANSING,  Ch.  J.,  delivered  the  opinion  of 
the  court: 

It  is  clear  that  the  acts  of  a  party  cannot  be 
evidence  in  his  favor  when  offered  by  himself. 
The  letters  of  the  plaintiffs  called  for  by  them- 
selves, were,  therefore,  properly  excluded. 

On  the  second  point,  we  concur  in  the  opin- 
ion delivered  at  the  trial.  Although  the  con- 
duct of  the  defendant  in  the  first  instance,  by 
giving  credit  tto  M'Gregor,  and  delivering  to 
him  the  bill  without  authority  would  have 
made  him  liable  to  the  plaintiffs,  they  after- 
wards waived  his  responsibility  by  ratifying 
his  acts.  There  does  not  appear  to  have  been 
any  concealment  on  the  part  of  the  defendant. 
After  his  arrival  in  England,  it  is  to  be  pre- 
sumed that  the  plaintiffs  were  made  acquaint- 
ed with  the  situation  in  which  the  business 
stood.  They  certainly  knew  the  delay  which 
had  taken  place.  Instead  of  censuring  the 
defendant,  or  informing  him  that  they  sup- 
1 13*]  posed  he  had  neglected  *their  interest, 
they  undertook  by  a  direct  correspondence 
with  M'Gregor,  to  obtain  satisfaction  from 
him,  and  informed  him  that  they  had  adopted 
the  friendly  mode  of  writing  for  an  immme- 
diate  remittance,  in  preference  to  applying  to 
JOHNSON'S  CASES,  1. 


any  other  of  their  friends  on  the  occasion; 
thereby  tacitly  approving  of  the  confidence 
the  defendant  had  placed  in  him,  though  in 
sfrong  terms  complaining  of  M'Gregor's  neg- 
lect. 

This  was  in  June,  1796,  and  M'Gregor  re- 
mained solvent  till  the  beginning  of  1798. 
After  the  defendant's  return  to  New  York,  in 
June,  1797,  the  plaintiffs  again  wrote  to  the  de- 
fendant, requesting  him  to  obtain  payment 
from  M'Gregor,  and  that  if  he  did  not  pay,  to 
take  every  legal  step  to  recover  the  money,  at 
the  same  time  complaining  of  ill  treatment 
from  M'Gregor,  but  expressing  the  reliance  on 
the  defendant's  attention  to  their  interest. 
This  letter  also  plainly  implies  that  they  ap- 
proved of  the  defendand's  previous  conduct, 
and  considered  M'Gregor  only  as  responsible. 
The  defendant  did  not  answer  this  letter,  but 
the  plaintiffs  having  taken  the  business  into 
their  own  hands,  and  thereby  discharged  him 
from  his  agency,  he  was  not  under  a  legal  ob- 
ligation to  answer  it.  If  the  plaintiffs  had  in 
the  first  instance,  on  being  informed  of  the 
situation  of  the  debt,  given  notice  to  the  de- 
fendant that  they  intended  to  hold  him  re- 
sponsible all  the  time  from  the  12th  Septem- 
ber, 1796,  to  the  period  of  M'Gregor's  insolv- 
ency, would  have  been  allowed  him  to  prose- 
cute the  payment,  and  seek  his  indemnity. 
Instead  of  doing  this,  they  made  feeble  at- 
tempts to  obtain  satisfaction  from  M'Gregor, 
and  these  having  failed,  they  now  wish  to  re- 
sort to  the  defendant.  After  their  long  and 
repeated  acquiescence  in  his  conduct,  we  are 
of  opinion  that  this  ought  not  to  be  permitted, 
and  that,  therefore,  the  direction  of  the  judge 
at  the  trial,  and  the  verdict  upon  the  evidence, 
were  right. 

Rule  refused. 

Cited  in— 1  Calnes,  510 ;  12  Johns.,  305. 


*  JACKSON,  ex  dem.  M'CREA,  [*114 
DUNLAP. 

Deed — As  Security — Delivery. 

Where  a  deed  was  duly  executed  and  acknowl- 
edged by  the  grantor,  but  retained  by  him,  with  the 
consent  of  the  grantee,  by  way  of  security,  until 
the  consideration  money  was  paid,  and  before  the 
money  was  paid  the  grantor  died,  having'  devised 
the  premises  by  his  last  will ;  and  the  deed  was 
found  among1  his  papers,  it  was  held  that  there 
was  no  actual  delivery  to,  or  acceptance  of  the  deed 
by  the  srrantee ;  therefore,  nothing-  passed  to  him  by 
it. 


THIS  was  an  action  of  ejectment  for  the  re- 
covery of  certain  premises  situate  in  the 
seventh  ward  of  the  city  of  New  York. 


NOTE.— Deed,  delivery,  acceptance. 

Retention  b.y  grantor;  test  in  such  case  is,  can  the 
grantee  get  possession  or  enforce  against  grantor's 
will.  Roosevelt  v.  Hubbard,  6  Barb.,  190:  Brevard 
v.  Neely,  2  Sneed  (Tenn.),  164;  Cook  v.  Brown,  at  N. 
H.,  460;  Stilwell  v.  Hubbard,  20  Wend.,  44. 

Deed  containing  covenants  in  favor  of  grantor,  but 
apparently  consumated  unconditionally,  held  valid. 
notwithstanding1  retention  by  grantor.  4  Kent,  445 ; 
Scrughan  v.  Wood,  15  Wend.,  545 ;  McLean  v.  Brit- 
ton,  19  Barb.,  450;  Blakeman  v.  Byrnside,  7  Ark.  (2 
English),  505. 

268 


114 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


On  the  trial,  before  Mr.  Justice  Radcliff,  at 
the  New  York  Circuit,  in  March,  1799,  both 
parties  deduced  their  title  from  Stephen 
M'Crea,  late  of  the  said  city,  deceased ;  and  it  was 
proved  that  he  died  in  possession  of  the  prem- 
ises some  time  before  the  commencement  of 
the  action. 

The  plaintiff  produced  in  evidence  the  will 
of  M'Crea,  which  was  proved  to  have  been 
duly  executed,  and  by  which  he  devised  the 
premises  in  question  to  the  lessors. 

The  defendant  then  called  on  the  plaintiff 
to  produce  in  evidence  a  deed  from  the  testa- 
tor to  one  Wareham,  granting  the  premises  to 
the  latter  in  fee,  in  order  to  show  a  title  out  of 
the  lessors.  The  deed  was  produced  and  was 
dated  the  6th  August,  1795,  and  appeared  to 
be  a  conveyance  of  two  lots  of  ground  includ- 
ing the  premises,  in  the  usual  form,  from  the 
testator  and  his  wife  to  Wareham,  in  fee.  By 
an  indorsement  upon  the  deed  it  also  appeared 
to  have  been  acknowledged  at  the  time  of  its 
execution,  by  the  grantors,  in  the  usual  form, 
before  a  Master  in. Chancery,  who  was  like- 
wise a  subscribing  witness  thereto. 

The  plaintiff  then  examined  James  M'Crea, 
who  was  the  other  subscribing  witness  to  the 
deed.  He  testified  that  he  lived  in  the  family 
of  the  testator,  and  acted  as  his  clerk,  before 
and  at  the  time  of  the  date  of  the  said  deed, 
and  until  his  death,  and  continued  to  live  in 
the  family  subsequent  to  his  death;  that  the 
testator  agreed  with  Wareham  to  sell  him  the 
premises,  described  in  the  deed,  together  with 
some  other  grounds  not  comprehended  in  it, 
and  gave  him  a  title  for  the  same  when  the 
consideration  money  should  be  paid;  that  in 
pursuance  of  this  agreement  the  deed  was  pre- 
115*]  pared  by  the  witness,  and  executed  *at 
the  testator's  house  in  the  presence  of  the  wit- 
ness, and  the  Master  in  Chancery  who  had 
certified  the  acknowledgment,  with  the  usual 
formalities;  but  it  was  at  the  same  time  agreed, 
between  the  testator  and  Wareham,  that  the 
testator  should  retain  the  deed  until  the  con- 
sideration money  was  paid,  and  Wareham 
said  that  he  would  not  take  the  deed  until  the 
» money  was  paid;  he  further  testified  that  the 
deed  remained  in  the  hands  of  the  testator 
during  his  life,  and  was  found  after  his  death, 
among  his  papers  in  the  hands  of  his  widow; 
that  there  was  some  money  paid  by  Wareham 
to  the  testator  on  account  of  the  grounds 
agreed  to  be  sold  as  above  mentioned;  but  a 
great  part  of  the  consideration  money  remain- 
ed unpaid,  and  part  of  the  ground  not  com- 
prehended in  the  deed,  had  been  conveyed  to 
Wareham  by  the  testator  pursuant  to  the 
agreement. 

A  verdict  was  taken  for  the  plaintiff,  sub- 
ject to  the  opinion  of  the  court,  whether  under 
the  circumstances  of  this  case,  the  deed  in 


question  passed  the  estate  of  the  testator  in  the 
premises  to  Wareham.  If  it  did,  then  a  non- 
suit was  to  be  entered. 

Mr.  Biggs  for  the  plaintiff. 

Mr.  Hamilton  for  the  defendant. 

LANSING,  Ch.  J.  In  determining  this  case,  it 
is  necessary  to  consider  the  intent  of  the  par- 
ties as  to  the  deed  in  question.  From  the 
whole  transaction,  it  was  evidently  their  in- 
tent that  Wrareham,  the  purchaser,  should  not 
have  the  land  until  the  consideration  money 
was  paid.  All  the  acts  of  the  parties  were 
directed  to  this  object,  and  if  it  can  be  main- 
tained consistently  with  established  principles, 
every  reasonable  construction  in  its  favor 
ought  to  be  admitted. 

It  is  not  necessary,  in  my  opinion,  to  enter 
into  the  doctrine  of  equitable  mortgages.     It 
is  true  the  deed  was  executed,  attested,  and 
acknowledged,  and  every  step  preparatory  to 
the  consummation  of  the  title  had  been  regu- 
larly taken;  but  in  every  stage  the  deed  re- 
mained in  the  power  of  the  grantor,  and  after 
all  the  formalities  had  *been  complied  [*116 
with,  it  was  agreed  that  the  grantor  should 
retain  it  in  his  hands  until  the  consideration 
money  should  be  paid,  and  Wareham  declared 
he  would  not  accept  it  until  that  was   done. 
Although  formally  executed,  the  deed  was, 
therefore,  in  fact  not  delivered.     It  was  in 
substance  a  conditional   execution,   and  not 
otherwise  claimed  or  accepted  by  the  grantee. 
It  is  also  essential  to  the  legal  operation  of  a 
deed,  that  the  grantee  assents  to  receive  it.    It 
cannot  be  imposed  on  him,  and  there  can  be 
!  no  delivery  without  an  acceptance.     On  this 
I  ground,  for  the  want  of  a  delivery  in  fact,  I  am 
I  of  opinion  that  the  execution  of  the  deed  on 
j  strict  principles  was  inoperative,  and  did  not 
pass  the  estate  to  the  grantee. 

RADCLIFF,  BENSON,  and  LEWIS,  JJ.,  con- 
curred. 

KENT,  J.  Here  was  a  delivery  in  due  form, 
and  duly  acknowledged  before  an  officer  at- 
tending for  the  piirpose.  The  intent  of  the 
parties  was,  that  the  deed  should  be  comple- 
ted, and  should  then  be  retained  by  the  grantor 
by  way  of  security  till  payment.  This  was 
the  creation  of  an  equitable  lien  in  the  grantor; 
but  such  a  lien  or  equitable  mortgage  cannot 
be  set  up  at  law,  as  a  legal  estate. 

I  am,  therefore,  of  opinion  that  the  plaintiff 
ought  to  recover. 

Jucfgment  for  the  plaintiff. 

Cited  in— 12  Johns.,  422 ;  20  Johns.,  188 :  6  Cow.,  620 ; 
4  Wend.,  376;  15  Wend.,  660;  1  Johns.  Ch.,  255;  21  N. 
Y.,  584 ;  54  N.  Y.,  626 ;  19  Barb.,  247 ;  46  Barb.,  161 ;  50 
How.  Pr.,  396 ;  44  N.  Y.  Sup.,  219 ;  42  N.  J.  Law,  282 ; 
38  Mich.,  525. 


Actual  delivery  unnecessary,  if  it  is  the  under- 
standing of  the  parties  that  the  delivery  is  made.  4 
Kent,  45o ;  Scrug-ham  v.  Wood,  above  cited ;  Jaques 
v.  M.  E.  Church,  17  Johns.,  548:  Goodrich  v.  Walker, 
post,  250 ;  Doe  v.  Knight,  5  B.  &  C.,  671,  D.  &  R.,  348 ; 
Hall  v.  Palmer,  8  Jur.,  459 ;  13  Law  J.  Chy.,  353 ;  3 
Hare,  532;  Thompson  v.  Hammond,  1  Edw.  Ch.,  497 ; 
Hammell  v.  Hammell.  19  Ohio,  17 ;  Farrar  v.  Bridges, 
5  Humph.  (Tenn.),  411 ;  Rivard  v.  Walker,  39  111., 
413 ;  Warren  v.  Sweet,  31  N.  H.,  332 ;  Dayton  v.  New- 
man, 19  Pa.  St.,  194. 

Acceptance  presumed  from  the  fact  of  delivery  or 

264 


the  beneficial  nature  of  the  grant,  unless  there  are 
facts  to  rebut  such  presumption.  Jackson  v. 
Bodle,  30  Johns.,  184 ;  Spencer  v.  Carr,  45  N.  Y.,  406 ; 
Church  v.  Oilman,  15  Wend.,  656 ;  Tibbals  v.  Jacobs, 
31  Conn.,  428;  Hedge  v.  Drew,  12  Pick.,  141.  Com- 
pare, also,  Howe  v.  Dewing1,  2  Gray,  476,  where  deed 
was  delivered  on  agreement  to  return  or  pay  con- 
sideration on  demand. 

As  to  delivery  of  deeds  after  death  of  grantor,  see 
note  to  Stilwell  v.  Hubbard,  20  Wend.,  44,  in  this 
edition. 

JOHNSON'S  CASES,  1. 


1799 


M.  JOHNSON  v.  CAULKINS. 


116 


M.    JOHNSON  v.  CAULKINS. 

1.  Evidence — Breach  of  Promise  to  Marry — Li- 
centious conduct  of  Plaintiff.  2,  Id. — Id. — 
Offer  to  Marry. 

In  an  action  for  a  breach  of  a  promise  of  mar- 
riage, the  defendant  was  allowed  to  give  in  evi- 
dence in  mitigation  of  damages,  the  licentious  con- 
duct of  the  plaintiff,  without  any  limitation  as  to 
the  time  he  made  the  promise  to  her,  or  to  the 
period  of  the  proposed  marriage.  In  such  a  case,  it 
is  not  necessary  for  the  (female)  plaintiff  to  prove  a 
previous  offer  to  marry  the  defendant. 

THIS  was  an  action  on  a  promise  of  mar- 
riage. Plea  the  general  issue.  The  cause 
was  tried  before  Mr.  Chief  Justice  Lansing,  at 
the  last  sittings  in  Albany.  The  promise  and 
breach  were  fully  proved;  and  it  appeared 
that  after  the  promise,  to  wit,  on  the  9th  July, 
1797  the  defendant  left  the  town  of  Troy, 
117*]  where  both  parties  resided,  and  *went 
to  the  West  Indies;  that  shortly  after  his  de- 
parture, the  plaintiff  was  discovered  to  be  in  a 
state  of  pregnancy,  and  was  delivered  of  a 
child  on  the  4th  April,  1798;  that  the  defend- 
ant returned  to  Troy,  in  the  month  of  June, 
1798,  when  he  acknowledged  the  child  to  be 
his;  that  he  again  left  Troy  in  July  of  the 
same  year,  and  went  to  New  London,  for  five 
or  six  weeks,  having  previously  agreed  to  be 
married  to  the  plaintiff  on  his  return. 

The  defendant  offered  testimony  to  prove 
licentious  conduct  in  the  plaintiff,  with  other 
persons,  and  her  general  reputation  subse- 
quent to  July,  1798,  which  was  objected  to 
by  the  plaintiff,  and  overruled  by  the  judge. 
The  defendant  was,  however,  permitted  to 
give  evidence  of  her  conduct  and  reputation 
previous  to  the  expiration  of  the  six  weeks 
after  he  left  Troy,  in  July,  1798,  when  it  was 
agreed  that  the  marriage  should  take  place; 
but  no  proof  applicable  to  her  subsequent 
character  or  conduct  was  admitted.  The  de- 
fendant then  gave  evidence  to  show  that  the 
plaintiff's  character  as  to  sobriety  and  virtue 
before  that  period  was  not  good,  which  was 
opposed  by  proof  on  the  part  of  the  plaintiff, 
and  the  weight  of  evidence  in  this  respect  was 
in  favor  of  the  plaintiff. 

A  verdict  was  found  for  the  plaintiff  for 
$1,000  damages.  The  defendant  applied  for 
a  new  trial,  on  the  ground  that  he  ought  to 
have  been  permitted  to  prove  other  acts  of 
licentiousness  in  the  plaintiff,  and  her  general 
character,  without  being  restrained  to  the 
period  above  mentioned. 

Mr.  Bliss  for  the  plaintiff. 

Mr.  Woodworth  for  the  defendant. 

BENSON,  J.  I  am  of  opinion  that,  with  a 
view  to  the  question  of  damages,  the  defend- 
ant ought  to  have  been  permitted  to  show 
licentious  conduct  in  the  plaintiff,  and  her 
general  character  as  to  sobriety  and  virtue, 
without  any  limitation  of  time.  The  object 
of  this  action  is  not  merely  a  compensation 
for  the  immediate  injury  sustained,  but  dam- 
ages for  the  loss  of  reputation.  This  must 
necessarily  depend  on  the  general  conduct  of 
118*]  the  party  subsequent  *to,  as  well  as 
previous  to  the  injury  complained  of,  and  the 
damages  to  be  recovered,  as  in  actions  for 
defamation,  ought  to  be  regulated  by  all  the 
JOHNSON'S  CASES,  1. 


circumstances  of  the  case.  The  proof  of 
reputation  cannot  depend  on  time;  it  is  a 
question  which  is  general  in  its  nature,  and 
the  inquiry  respecting  it,  when  material,  must 
be  general. 

RADCLIFF,  KENT,  and  LEWIS.,  JJ,  con- 
curred. 

LANSING,  Ch.  J.,  dissented.  The  substance 
of  his  opinion  was  as  follows:  It  is  not  de- 
nied that  an  inquiry  into  the  general  conduct 
and  character  of  the  plaintiff  was  proper. 
My  impression  was,  that  the  instant  the  de- 
fendant had  decidedly  abandoned  the  plaint- 
iff, which  was  to  be  collected  from  his  ab- 
senting himself  contrary  to  his  agreement,  he 
precluded  himself  from  any  interest  in  her 
character  or  conduct;  and  that  the  inquiries 
ought,  therefore,  to  be  restricted  to  that 
period.  If  proof  had  not  been  given  that  the 
plaintiff  had  declared  that  she  expected  the 
defendant's  return  in  five  or  six  weeks,  I 
should,  on  this  principle,  have  restricted  the 
defendant  to  the  time  he  left  Troy,  unless  he 
could  have  shown  that  he  left  it  animo  reter- 
tendi. 

The  damages  are,  in  every  instance  of  vin- 
dictive actions,  presumed  to  be  regulated  by 
the  nature  of  the  injury  received,  and  that 
complained  of  by  the  plaintiff  is  one  of  the 
deepest  dye. 

The  defendant  ought  not  to  be  p«rmitted  to 
avail  himself  of  subsequent  circumstances, 
which  his  own  abandoned  conduct  might  have 
produced. 

With  respect  to  the  particular  case  now 
under  consideration,  there  are  some  reasons  to 
question  the  respectability  of  the  plaintiff's 
character,  and  some  that  operate  very  forcibly 
in  her  favor. 

[Here  the  Chief  Justice  recapitulated  the 
facts  as  proved  at  the  trial.] 

Under  this  view,  if  the  principles  to  govern 
this  case  were  now  to  be  fixed,  without  being 
influenced  by  authority,  I  should  doubt 
whether  the  defendant  ought  to  be  permitted 
*to  question  the  plaintiff's  general  [*119» 
reputation  at  all,  and  whether  he  ought  not  to 
have  been  strictly  limited  to  such  particular 
instances  of  intemperance,  incontinence,  or  im- 
prudence, not  the  objects  of  general  observa- 
tion, as  would  excuse  his  gross  violation  of  a 
deliberate  contract  entered  into  under  circum- 
stances which  irresistibly  imposed  upon  him  a 
knowledge  of  her  general  conduct  and  char- 
acter. 

Something  was  said  respecting  the  damages, 
which  were  alleged  to  be  excessive.  The 
jury  are  the  proper  judges  of  the  damages, 
and  though  I  am  not  prepared  to  say  that 
there  is  no  case,  however  outrageous  in  actions 
of  this  kind,  in  which  the  court  will  not  inter- 
pose to  correct  a  verdict  on  that  ground,  I 
think  it  ought  certainly  never  to  be  done,  unless 
the  inequality  between  the  injury  and  com- 
pensation is  extreme.  I  am  not  perfectly 
satisfied  with  the  verdict;  I  think  less  damages 
would  have  been  nearer  the  line  of  just  retri- 
bution; but  considering  all  the  circumstances, 
I  do  not  think  them  extravagant. 

Upon  the  whole,  on  this  point,  I  am  against 
a  new  trial. 

265 


119 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


Another  point  has  been  raised.  It  has  been 
said  that  the  plaintiff  did  not  show  an  offer  of 
marriage  on  her  part.  We  are  all  of  opinion 
that  there  is  no  ground  for  this  objection,  the 
defendant  having  put  it  out  of  the  plaintiff's 
power  to  make  the  offer,  by  absconding.  It 
cannot,  therefore,  be  necessary  to  inquire 
whether  it  is  imposed  on  the  plaintiff  in  cases 
of  this  kind,  generally  to  prove  such  an  offer. 

BENSON,  J.,  added  on  the  last  point,  in 
which  the  rest  of  the  court  concurred,  that  a 
tender  of  marriage  was  unnecessary. 

New  trial  granted. 

Cited  in-8  Cow.,  815;  7  Cow.,  23;  24  N.  Y.,  258;  38 
Barb.,  418 ;  62  Barb.,  489 ;  71  Penn.  St.,  245. 


ISO*]   *GAHN  AND  MUMFORD 

v. 
BROOME. 

Marine  Insurance — Total  Loss — Drawback. 

In  an  action  on  an  open  policy  of  Insurance  on 
goods  at  and  from  Baltimore  to  the  Havanna,  the 
insured  recovered  for  a  total  loss,  and  it  was  held 
that  the  plaintiffs  were  entitled  to  recover  the  in- 
voice price  of  the  goods,  without  any  deduction 
for  the  drawback  allowed  on  exportation. 

THIS  was  an  action  on  a  policy  of  insurance 
upon  the  cargo  of  the  American  ship 
M'Gilva,  Driscoll,  master,  at  and  from  Balti- 
more to  the  Havanna,  warranted  American 
property.  It  was  an  open  policy,  and  sub- 
scribed by  the  defendant,  for  $7,000,  at  a 
premium  of  10  per  cent.  The  plaintiffs  de- 
clared for  a  total  loss  by  the  perils  of  the  sea. 

On  the  trial  before  Mr.  Justice  Kent,  at  the 
last  March  Circuit  in  the  city  of  New  York, 
the  policy  was  admitted,  and  it  was  also  ad- 
mitted that  the  ship  sailed  on  the  voyage  in- 
sured, laden  with  11,214  bushels  of  salt,  the 
property  of  the  master,  Driscoll,  who  was  an 
American,  and  for  whose  benefit  the  in- 
surance was  effected;  that  at  the  time  of 
effecting  the  insurance,  the  plaintiffs  delivered 
to  the  defendant  an  account  of  the  salt,  stating 
the  price  at  which  it  had  been  purchased, 
with  the  charges  thereon,  and  the  premium 
of  insurance  proposed  to  be  given,  making  in 
the  aggregate  the  sum  of  $6,908.18,  as  the 
interest  intended  to  be  insured,  and  which 
was  thereupon  insured  as  being  worth  $7,000; 
that  the  salt  was  wholly  lost,  as  stated  in  the 
declaration ;  that  notice  of  the  loss  was  given  on 
the  27th  June,  1798,  and  proof  thereof,  and 
of  the  interest  of  the  assured,  and  an  aban- 
donment were  at  the  same  time  duly  made  to 
the  defendant. 

It  was  further  admitted,  that  the  owner  of 
the  salt  was  entitled  to  a  drawback  of  $3,183, 
on  exportation,  for  which  a  debenture  was 
given  by  the  collector  of  the  port  of  Balti- 
more, but  at  the  time  of  receiving  the  deben- 
ture, Driscoll,  the  owner,  was  obliged  to  give 
a  bond  with  sufficient  sureties  to  the  collector, 
in  double  the  amount  of  the  drawback,  con- 
ditioned to  produce  to  the  collector  certain 
proofs  of  the  delivery  6f  the  said  salt  at  some 
place  without  the  United  States,  as  by  law  re- 


quired;  that  *these  proofs  were  neces-  [*121 
sary  to  be  made  within  one  year  from  the  date 
of  the  bond;  but  that  in  case  of  loss  by  the 
dangers  of  the  sea,  or  by  capture,  other  proofs 
were  allowed  to  be  substituted,  to  procure  a 
discharge  of  the  bond;  that  such  proofs  had 
been  supplied,  and  the  bond  was  cancelled; 
and  that  Driscoll  had  received  the  amount 
of  the  debenture. 

A  verdict  was  taken  for  a  total  loss,  on  the 
sum  insured,  subject  to  the  opinion  of  the 
court,  whether  the  plaintiffs  were  entitled  to 
recover  the  full  price  of  the  goods  without  de- 
ducting the  amount  of  the  debenture,  and  if 
not,  that  the  verdict  should  be  reduced  ac- 
cordingly. 

Mr.  8.  Jones,  Jun.,  for  theplaintiff,  insisted 
that  they  were  entitled  to  recover  the  full  price  of 
the  goods  at  the  place  of  exportation,  which 
was  the  sum  subscribed  by  the  defendant. 
The  drawback  did  not  constitute  a  part  of  the 
prize  in  the  market  here,  but  was  intended  as 
a  bounty  to  the  merchant,  and,  therefore, 
ought  not  to  operate  in  favor  of  the  insurer, 
to  diminish  his  responsibility. 

Mr.  B.  Livingston,  for  the  defendant.  On  an 
open  policy  the  prime  cost  of  the  goods  is  the 
sum  to  be  recovered.  The  amount  of  the  de- 
benture was  a  certain  deduction,  which  the 
owner  was  at  all  events  entitled  to  receive 
from  the  government,  and  so  far  diminish  the 
value  to  the  insurer.  The  owner,therefore,  had 
no  interest  to  be  insured  equal  to  the  sum  in  the 
policy.  The  real  prize  or  value  was  that  sum, 
deducting  the  debenture.  If  more  were  al- 
lowed, the  assured,  instead  of  obtaining  an  in- 
demnity merely,  which  is  the  sole  object  of 
the  contract,  would  gain  by  the  event,  which 
would  afford  a  strong  temptation  to  fraud. 

LANSING,  Ch.. T., delivered  the  opinion  of  the 
court: 

The  general  rule  is  settled  and  admitted, 
that  in  an  open  policy,  the  invoice  price  is  the 
value  which,  upon  a  total  loss,  the  insured  is 
entitled  to  recover.  The  defendant  contends, 
that  ou  account  of  the  drawback,  this  case 
oucht  to  form  an  objection  to  the  rule. 

*The  drawback  is  intended  as  a  [*122 
benefit  to  the  merchant,  on  the  exportation  of 
certain  goods,  and  not  for  the  advantage  of 
the  assurer;  and  although  it  may  enter  into 
the  estimate  of  the  value  of  goods,  with  a 
view  to  exportation,  it  is  no  part  of  their  act- 
ual price  in  the  market  here. 

The  invoice  price  has  been  adopted,  as  af- 
fording not  only  an  equitable  but  a  certain 
rule,  not  influenced  by  the  fluctuations  of 
value,  which  consequent  circumstances  may 
produce.  If  the  drawback  were  also  certain, 
and  in  every  event  payable  to  the  shipper,  the 
exception  in  this  case  would  seem  to  be  rea- 
sonable; but  that  is  not  the  fact.  To  entitle 
the  goods  to  drawback,  they  cannot  be  re- 
landed  within  the  United  States,  and  the  ship- 
per is  obliged  to  give  security  that  they  shall 
not  be  relanded.  The  drawback  is,  therefore, 
contingent,  and  in  the  case  of  relanding  by 
barratry,  the  assured  would  not  only  lose  the 
amount  of  the  drawback,  but  be  exposed  to 
inconvenience  and  additional  loss  on  account 
of  the  security.  Against  the  risk  of  barratry 
he  would  surely  be  unprotected;  and  yet,  that 
JOHNSON'S  ('APES,  1. 


1799 


WILDE  v.  CANTILLON. 


122 


is  a  risk  within  the  express  terms  of  the  policy 
.and  for  which  the  assurer  has  received  his 
premium. 

To  permit  the  drawback  to  reduce  the  value 
to  be  recovered  would,  therefore,  confer  a 
benefit  on  the  insurer,  and  impose  on  the  in- 
sured a  burden  and  a  risk  without  an  indem- 
nity, a  burden  by  giving  the  security,  and  a 
risk  in  the  case  of  barratry,  as  has  been  men- 
tioned. 

The  plaintiffs  may  be  gainers  by  the  event, 
and  temptations  to  fraud  may  in  some  cases 
exist;  but  we  cannot  depart  from  the  sense  of 
the  contract,  and  the  rule  which  has  been 
long  established. 

Judgment  for  the  plaintiff. 

Cited  in— 7  Johns.,  354;  10  Johns.,  78;  38  N.  Y. 
Super.,  348. 


123*]    *WILDE  t>.  CANTILLON. 

Irespass — Tenant  by  Sufferance. 

A  tenant  at  sufferance  cannot  maintain  an  action 
of  trespass  against  his  landlord. 

Citation-5  Bac.,  163. 

THIS  was  an  action  of  trespass  quare  clau- 
wmfregit,  &c.,  turning  the  plaintiff  out  of 
possession,  and  reaping  and  carrying;  away  a 
crop  of  wheat,  and  other  injuries.  Plea,  the 
general  issue. 

The  cause  was  tried  before  Mr.  Justice  Lewis 
at  the  last  September  circuit, in  the  County  of 
Ulster.  It  appeared  in  evidence  -that  on  the 
18th  May,  1797,  eight  persons  entered  the 
house  occupied  by  the  plaintiff,  in  the  town 
of  New  Paltz,  in  said  county,  who  tore  down 
a  part  of  it,  turned  him  out  of  possession,  and 
carried  his  effects  into  the  public  highway, 
and  put  one  Samuel  Buchanan  into  possession 
of  the  house,  and  of  a  farm  which  the  plaint- 
iff had  occupied  with  it,  whereby  the  plaintiff 
lost  his  crop,  as  stated  in  the  declaration, 
which  was  gathered  by  Buchanan;  that  Bu- 
chanan afterwards  held  the  premises  as  a  ten- 
ant under  the  defendant,  and  that  the  defend- 
ant, in  a  conversation  with  others,  claimed 
the  house  and  farm  to  be  his  property,  and 
said  that  he  had  obtained  the  possession  and 
would  keep  it. 

On  the  part  of  the  defendant  it  appeared 
that  the  plaintiff  had  possessed  the  house  and 
farm  as  a  tenant  to  the  defendant,  under  a 
parol  demise  for  three  years;  that  the  term  had 
expired  previous  to  the  injury  complained  of, 
and  that  the  plaintiff  had  held  over,  and  at- 
torned to  a  stranger;  that  the  defendant  told 
the  plaintiff,  in  the  winter  preceding,  that  he 
had  let  the  farm  to  another  person,  and  that 
the  plaintiff  could  not  have  it  again. 

It  also  appeared  that  the  plaintiff,  in  a  conver- 
sation with  Buchanan,  inquired  of  him  if  he 
had  taken  the  farm  from  the  defendant,  and 
that  he  answered  he  had  thought  of  it, 
and  asked  the  plaintiff  whether  he  would  give 
up  the  possession,  to  which  the  plaintiff  re- 
plied that  he  would  deliver  it  up  at  any  time, 
but  wished  to  be  permitted  to  remain  until  he 
had  gathered  his  crop,  and  finished  the  fence 
which  he  had  contracted  with  the  defendant 
to  erect.  To  this  Buchanan  consented,  observ- 
JOHNSON'S  CASES,  1. 


ing  that  he  *was  a  single  man,  and  [*124 
could  in  the  meantime  live  with  the  plaintiff. 

The  counsel  for  the  defendant  moved  for  a 
nonsuit,  on  the  ground  that  the  defendant 
was  justifiable  in  putting  the  plaintiff  out  of 
possession,  and  that  the  plaintiff  could  not 
maintain  this  action ;  but  the  motion  was  over- 
ruled by  the  judge,  and  the  cause  submitted 
to  the  jury,  with  a  direction  as  to  the  crop  of 
wheat,  that  the  plaintiff  was  not  entitled  to 
recover,  unless  from  the  evidence  they  were 
satisfied  that  he  had  a  right  to  remain  on  the 
premises,  and  to  cut  and  take  away  the  crop, 
in  consequence  of  his  agreement  with  Buchan- 
an, as  the  tenant  of  the  defendant. 

The  jury  found  a  verdict  for  the  plaintiff 
for  $81  damages.  At  the  last  term  a  motion 
was  made  on  the  part  of  the  defendant  for  a 
new  trial,  on  two  grounds: 

1st.  That  the  plaintiff,  after  the  expiration 
of  the  parol  lease,  was  tenant  at  sufferance  to 
the  defendant,  and  as  such,  could  not  main- 
tain an  action  of  trespass  against  his  landlord. 

2d.  That  in  relation  to  the  crop,  nothing  had 
appeared  in  evidence  to  authorize  a  recovery 
against  the  defendant. 

Mr.  8.  Smith  for  the  plaintiff. 
Mr.  Emott  for  the  defendant. 

LANSING,  Ch.J., delivered  the  opinion  of  the 
court: 

The  first  objection,  in  our  opinion,  is  de- 
cisive. After  the  expiration  of  the  term,  the 
plaintiff  became  a  tenant  at  sufferance  to  the 
defendant,  and  his  attornment  to  a  stranger 
was  void  by  the  statute.  The  manner  in 
which  he  was  dispossessed  was  violent  and 
ought  not  to  be  countenanced;  but  he  can- 
not have  a  remedy  in  this  action.  A  mere 
tenant  at  sufferance  cannot  maintain  trespass 
against  his  landlord  (5  Bac.,  162),  as  against 
him  he  has  no  legal  right  of  possession  on 
which  to  found  this  action.  The  plaintiff's 
title  to  recover  is,  therefore,  radically  defect- 
ive; and  on  this  ground  we  think  the  verdict 
ought  to  be  set  aside. 

RADCLJFF,  J.,  having  •  formerly  been  con- 
cerned as  counsel  in  the  cause,  gave  no  opin- 


Rule  granted. 

Cited  in^l  Johns.,  157 ;  13  Johns.,  236 ;  11  Wend., 
619;  14  N.  Y.,  66. 


*JACKSON,  ex  dem.  BRONCK,    [*125 

v. 
CRYSLER. 

1.  Ejectment — Entry.     2.  Deed — Condition — 
Waiver. 

In  an  action  of  ejectment,  it  was  held  that  an  act- 
ual entry  was  not  necessary  in  any  case,  except  to 
avoid  a  fine.  Xo  parol  assent,  or  silent  acquiescence, 
will  destroy  the  effect  of  a  condition  contained  in  a 
deed,  or  amount  to  a  waiver  of  the  forfeiture. 

Citation— 1.  2Ld.  Raym.,750;  lSalk.,250;  1  Vent., 
248 ;  2  Vent,,  332 ;  3  Burr.,  1897 ;  Doug.,  486.  Shep- 
pard's  Touchstone,  117. 

npHIS  was  an  action  of  ejectment,   brought 
-L     to  recover  certain  premises  in  the  posses- 

207 


125 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


sion  of  the  defendant,  situate  in  the  town  of 
Bethlehem,  in  the  County  of  Albany. 

The  cause  was  tried  before  Mr.  Justice  Ben- 
son, at  the  last  sittings  in  Albany.  It  appear- 
ed that  the  lessor  of  the  plaintiff  by  a  deed, 
bearing  date  the  3d  May,  1795,  granted  a  tract 
of  land,  including  the  premises,  to  Hendrick 
Bronck  in  fee,  "upon  condition,  nevertheless, 
that  the  said  Hendrick  Bronck,  his  heirs  and 
assigns,  should  maintain  the  lessor  of  the 
plaintiff  and  his  wife  in  a  suitable  manner, 
during  their  natural  lives,  and  should  also  pay 
the  debts  of  the  lessor,  and  in  default  of  which 
it  should  be  lawful  for  the  lessor  to  re-enter," 
&c.  H.  Bronck  afterwards  conveyed  the 
premises  to  the  defendant ;  and  this  action 
was  brought  upon  a  forfeiture  of  the  condition 
above  mentioned. 

It  further  appeared  that  the  sale  to  the  de- 
fendant was  made  by  H.  Bronck,  for  the  pur- 
pose of  enabling  him  to  discharge  the  debts  of 
the  lessor  of  the  plaintiff,  who  agreed  with 
him  as  to  the  propriety  of  a  sale  of  part  of  the 
tract  for  that  purpose,  but  objected  to  the  sale 
of  the  particular  quantity  or  parcel  actually 
conveyed  to  the  defendant.  The  agreement 
between  H.  Bronck  and  the  defendant  for  the 
sale  of  the  premises  was,  however,  completed, 
and  carried  into  effect ;  and  the  lessor  being 
apprised  of  it  before  the  execution  of  the  deed 
to  the  defendant,  did  not  express  any  objection 
to  it ;  but  continued  with  his  family  to  reside 
on  the  residue  of  the  tract. 

The  weight  of  evidence  as  to  the  perform- 
ance of  that  part  of  the  condition  which  re- 
lated to  the  maintenance  of  the  lessor  of  the 
plaintiff  and  his  wife  was  conceded  to  be 
against  the  defendant ;  but  no  actual  entry 
into  the  premises  for  the  forfeiture  was  shown 
on  the  part  of  the  lessor  of  the  plaintiff.  A 
verdict  was  taken  for  the  plaintiff,  subject  to 
the  opinion  of  the  court  on  the  whole  case. 
126*]  *Qn  the  argument  two  questions  were 
made:  1.  Whether  an  actual  entry  was  neces- 
sary to  be  shown  in  order  to  entitle  the  plaint- 
iff to  recover. 

2.  If  not,  whether  the  lessor,  having  pre- 
viously assented  to  and  acquiesced  in  the  sale 
made  to  the  defendant  (which  was  contended 
to  be  the  result  of  the  evidence),  was  not  there- 
by precluded  from  a  recovery. 

Mr.  Emott  for  the  plaintiff. 
Mr.  Spencer  for  the  defendant. 

Per  Curiam.  As  to  the  first  point,  there 
was  formerly  much  contrarieUr  in  the  cases  on 
this  subject ;  but  it  seems  to  ue  settled  by  re- 
peated decisions  (2  Ld.  Raym.,  750;  1  Salk., 
250;  S.  C.,  1  Vent.  248  ;  2  Vent.  332  ;  3  Burr., 
1897 ;  Doug. ,  486),  for  near  a  century,  at 
the  confession  of  lease,  entry,  and  ouster,  is 
sufficient  to  maintain  an  ejectment  for  a  con- 
dition broken,  and  that  an  actual  entry  is  not 
necessary  to  be  shown  in  any  case,  except  to 
avoid  a  fine. 

As  to  the  second  point,  it  does  not  appear 
that  any  fraud  or  concealment  was  practised 
by  the  lessor  of  the  plaintiff  to  entrap  the  de- 
fendant. The  rule  of  caveat  emptor,  therefore, 
applies.  It  was  incumbent  on  the  defendant 
to  examine  the  title.  The  consent  of  the  lessor, 
if  proved,  was  ineffectual,  unless  he  actually 
relinquished  his  right.  No  parol  assent  or 
268 


silent  acquiescence  can  destroy  the  effect  of  an 
express  condition  contained  in  a  deed.  (Shep. 
Touch.,  117.)  The  condition,  therefore,  ac- 
companied the  lands  in  the  hands  of  the  de- 
fendant and  subjected  him  to  the  forfeiture. 

In  some  cases,  particular  acts  may  waive  a 
forfeiture  by  affirming  the  continuance  of  an 
estate,  after  a  condition  broken  ;  but  these  are 
acts  done  by  the  grantor  or  lessor,  after  a  for- 
feiture accrued,  and  for  his  benefit.  No  parol 
assent  will  amount  to  such  a  waiver. 

Judgment  far  the  plaintiff. 

Cited  in— 53  Barb.,  396 ;  45  Ind.,  567. 


*CONROE  K.  BIRDSALL.      [*  1 2  7 

1.  Infancy — Deeds — Void  and  Voidable.     2.  Id. 
— Bond — False  age  given. 

All  deeds  of  an  infant  which  do  not  take  effect  by 
delivery  of  his  hand  are  merely  void,  and  all  such 
as  do  take  effect  by  delivery  of  his  hand  are  voidable. 

Though  an  infant  at  the  time  of  making-  a  bond, 
fraudulently  alleges  that  he  was  of  full  age,  yet  the 
bond  was,  nevertheless,  held  to  be  void  at  law. 

Citation— Perk.,  12 ;  3  Burr.,  1804.  2  Eq.  Cas.  Abr.. 
489 ;  9  Mot.,  38 ;  9  Viner  Abr.,  415. 

THIS  was  an  action  of  debt  on  a  bond.  The 
defendant  pleaded  infancy  at  the  time  of 
executing  the  bond,  to  which  the  plaintiff  re- 
plied, and  issue  was  taken  on  that  fact.  The 
cause  was  tried  before  Mr.  Justice  Lewis,  at 
the  last  Dutchess  circuit,  when  the  defendant 
supported  his  plea  by  proving  that  at  the  time 
of  giving  the  bond  he  was  no  more  than  20 


NOTE.— Acts  of  an  infant,  virid  or  voidable.  Alle- 
gation by  an  infant  that  he  is  of  full  age— contracts 
made  upon  such  representations— respomihttitu. 

Much  confusion  exists  as  to  what  deeds  and  con- 
tracts of  an  infant  are  void  and  what  voidable.  In 
Robinson  v.  Weeks  (56  Me.,  106),  it  is  said  contracts 
of  infants  are  of  three  classes.  1.  Binding1 ;  if  for 
necessaries  at  fair  and  just  rates.  2.  Void;  if  mani- 
festly and  necessarily  prejudicial  as  of  suretyship, 
gift,  naked  release,  appointment  of  agents,  confes- 
sion of  judgment  or  the  like.  3.  Voidable;  when 
beneficial  but  not  for  necessaries.  To  substantially 
the  same  effect,  see  Wheaton  v.  East,  5  Yerg.  (Tenn.), 
41 ;  Oliver  v.  Hondlet,  13  Mass.,  339 ;  Philpot  v.  Bing- 
ham,  55  Ala.,  4*5 ;  Bool  v.  Mix,  17  Wend.,  119. 

See,  also,  Adams  v.  Ross,  30  N.  J.  L.,  505;  Swasey 
v.  Vanderheyden,  10  Johns.,  33 :  Goodsell  v.  Myers, 
3  Wend.,  481. 

In  1  Parsons  on  Contracts,  p.  328,  Williams  v. 
Moore,  (11  M.  &  W.,  256)  is  quoted  with  approval. 
The  langnage  of  that  case  is  the  promise  of  an  in- 
fant is  not  void  in  any  case  unless  the  infant  chooses 
to  plead  his  infancy."  (See  note  b.,  1  Parsons  on 
Contracts,  329,  and  cases  cited.)  Upon  the  whole,  it 
is  thought  the  distinction  of  void  or  voidable  as  ap- 
plied to  the  contracts  of  infants  and  their  ratifica- 
tion is  of  little  value.  The  current  of  authority  also 
seems  to  be  in  that  direction.  To  say,  as  do  some 
cases,  that  a  contract  is  void  or  voidable  at  the  elec- 
tion of  the  infant,  or  that  if  it  is  beneficial  it  is  void- 
able merely,  while  if  the  contrary,  it  is  void,  has  little 
meaning.  See  Parsons  on  Contracts,  above  cited ; 
Srain  v.  Wright,  7  Ga.,  571 ;  Bryan  v.  Walton,  14  Ga., 
205:  Bazenan  v.  Browning,  31  Ark.,  373,  4;  Slocum 
v.  Hooker,  13  Barb.,  536 ;  Tucker  v.  Moreland,  10 
Pet.,  58.  See  Philpot  v.  Binghum,  above  cited :  1 
Am.  Lead.  Cas.,  256. 

It  is  impossible  to  reconcile  all  the  authorities 
upon  the  question  of  the  effect  of  fraudulent  repre- 
sentations by  an  infant  as  to  his  age.  There  is  per- 
haps no  better  statement  of  the  general  doctrine  as 
to  infants'  liability  than  the  following :  "An  infant 
is  liable  in  an  action  ex  delicto  for  an  actual  and 
willful  fraud  only  in  cases  in  which  the  form  of  ac- 
tion does  not  suppose  that  a  contract  has  existed, 
but  that  where  the  gravamen  of  the  fraud  consists 

JOHNSON'S  CASES,  1. 


1799 


DOLE  v.  MOULTON  AND  ANOTHER. 


121 


years  and  some  months  old.  The  plaintiff 
then  offered  to  prove  that  at  the  time  of  giving 
the  bond  and  before  its  execution,  and  in  order 
to  avoid  any  doubt  on  this  point,  the  defend- 
ant was  asked  by  the  plaintiff's  agent  who 
took  the  bond,  whether  he  was  of  age,  and  he 
alleged  that  he  was  of  full  age  ;  and  that 
thereupon  the  bond  was  taken.  This  evidence 
was  objected  to,  but  admitted.  A  verdict  was 
found  for  the  plaintiff,  subject  to  the  opinion 
of  the  court  on  the  question  whether  the  evi- 
dence was  admissible. 

The  ground  on  which  the  evidence  was  con- 
tended to  be  proper  was,  that  the  act  of  the  in- 
fant in  giving  the  bond  was  not  absolutely 
void,  but  voidable  only,  at  his  election  ;  and 
that  he  was  guilty  of  deception  and  fraud  in 
representing  himself  to  be  of  age,  and  ought 
not  to  be  permitted  to  avail  himself  of  such 
fraud. 

Mr.  8.  Smith  for  the  plaintiff. 
Mr.  Spencer  for  the  defendant. 

LANSING,  Ch.  J. ,  delivered  the  opinion  of  the 
court : 

There  seems  to  be  some  obscurity  on 
the  subject  of  the  different  acts  of  an  infant, 
which  of  them  shall  be  void  or  voidable  .only, 
and  perhaps  the  best  rule  is  to  be  found  in 
Perkins  (Perk.,  12),  which  was  adopted  by 
the  Court  of  King's  Bench  in  Zouch  v.  Par- 
sons (3  Burr.,  1804),  which  is,  that  all  deeds 
of  an  infant  which  do  not  take  effect  by  de- 
livery of  his  hand  are  merely  void,  and  all 
such  as  do  take  effect  by  delivery  of  his  hand 
are  voidable.  The  bond  in  this  instance  is  of 
the  latter  description,  and  is  voidable  only  at 
his  election.  The  remaining  question  to  be 
1  28*]  decided  is  whether,  under  *the  circum- 
stances of  the  case,  he  ought  to  be  precluded 
from  exercising  that  election. 

We  have  no  doubt  of  the  principle  adopted 
by  the  judge  at  the  trial,  that  the  disabilities 
of  infants  are  intended  to  protect  them  from 
injury  and  imposition,  and  not  to  aid  them  in 
practices  of  fraud  or  collusion  ;  but  on  con- 
sideration, we  are  of  opinion  that  its  appli- 
cation to  the  conduct  of  the  defendant  in  the 
case  before  us,  so  as  to  charge  him  with  this 
debt,  would  tend  to  endanger  all  the  rights  of 
infants,  and  ought  not  to  be  admitted.  The 
bond  in  this  case  must  be  supported  in  toto,  or 
not  at  all,  and  no  decision  can  be  found  which 
carries  the  doctrine  of  fraud  or  its  effects,  in 
relation  to  infants  at  common  law,  to  this  ex- 


tent. The  cases  cited  (2  Eq.  Ca.,  Ab.,  489; 
9  Mod.,  38  ;  9  Viner  Abr.,  415)  by  the  plaint 
iff  are  of  a  different  description,  and  arose  in 
a  court  of  equity  which,  under  the  particular 
circumstances,  was  enabled  to  relieve  against 
the  fraud  complained  of  without  prejudice  to 
the  other  rights  of  the  infants,  and  without 
invading  the  general  rules  of  law  established 
in  their  favour. 

Attempts  to  shake  principles  which  have 
been  sanctioned  by  the  practice  of  ages  ought 
to  be  well  considered  before  they  receive  the 
countenance  of  a  court  of  justice.  If  an  allega- 
tion like  the  present  were  ever  permitted  to 
destroy  an  infant's  right  of  avoiding  contracts, 
not  one  in  a  hundred  of  his  contracts  would 
be  placed  in  his  power  to  avoid,  for  nothing 
would  be  easier  than  to  prevail  upon  the  in- 
fant to  make  a  declaration  which  might  be 
shown  as  evidence  of  deliberate  imposition  on 
his  part,  though  prompted  solely  by  the  per- 
son intended  to  be  benefited  by  it. 

When  a  question  of  infancy  arises,  and  the 
infant  is  alleged  to  be  still  in  his  minority,  it 
may  be  determined  by  inspection  ;  and  if  his 
appearance  exhibits  a  sufficient  legal  criterion 
to  decide  the'  question,  it  ought  also  to  be  con- 
sidered as  sufficient  to  put  a  party  who  may 
be  affected  by  it  upon  inquiry  from  a  differ- 
ent and  competent  source,  and  if  he  disregard 
so  obvious  a  precaution,  he  must  submit  to 
the  legal  consequences  of  his  unguarded  con- 
duct. 

*Upon  the  whole,  we  are  of  opinion  [*  1 29 
that  the  evidence  was  improper,  and  that  a 
new  trial  ought  to  be  awarded. 

New  trial  granted. 

Cited  in— 7  Cow.,  180;  15  Wend.,  71,  635;  17  Wend.. 
131 ;  13  Barb.,  538 ;  10  Pet.,  70,  77. 


DOLE  v.  MOULTON  ET  AL. 

Bonds — Of  Prisoner. 

A  warrant  to  confess  judgment  on  a  bond  given 
by  a  prisoner  and  another  to  the  sheriff,  for  the 
liberties  of  the  prison,  was  held  to  be  void. 

THE  plaintiff  was  sheriff  of  the  County  of 
Rensselaer,   and  one  of  the  defendants, 
his  prisoner,  in  execution  in  the  gaol  of  that 
county.     The  prisoner,  in  order  to  gain  the 
liberties  of  the  gaol,  together  with  the  other 


a  con- 
Gilson 


in  a  transaction  which  really  originated  in 
tract,  the  plea  of  infancy  is  a  good  defense." 
v.  Spear,  3S  Vt.,  315. 

The  weight  of  authority  is  perhaps  slightly  in  favor 
of  the  proposition  that  an  infant  is  not  answerable 
for  fraudulently  representing  himself  of  full  age. 
though  such  representations  are  the  inducement  or 
a  contract,  or  where  they  are  the  inducement  to  a 
person  to  sell  him  goods  on  credit.  Gilson  v.  Spear, 
above  cited ;  1  Am.  Lead.  Cas.,  267  (note  to  Tucker 
v.  Moreland  and  Vasse  v.  Smith);  Merriam  v.  Cun- 
ningham, 11  Gush..  40 ;  Liverpool  Adelphi  Loan  As- 
sociation v.  Fairhurst,  9  Excn.,  430. 

There  is,  however,  good  authority  as  well  as  rea- 
son upon  the  other  side  see  Fitz  v.  Hall  (9  N.  H., 
441),  for  an  able  statement  of  this  side  of  the  question. 
See,  further,  Eckstein  v.  Frank.  1  Daly,  334 ;  1  Par- 
sons on  Contracts,  317,  note  x ;  Wallace  v.  Morss,  5 
Hill.,  391. 

However  this  may  be,  there  is  no  question  but 
that  Infancy  is  a  good  plea  to  an  action  on  contract 
notwithstanding  such  false  representations.  Burley 

JOHNSON'S  CASES,  1. 


v.  Russell,  10  N.  H.,  184 ;  Merrfam  v.  Cunningham, 
and  Fitz  v.  Hall,  above  cited ;  Studwell  v.  Shapter, 
54  N.  Y.,  249;  Heath  v.  Mahoney,  7  Hun.  (14  N.  T. 
Slop.),  100. 

In  Wright  v.  Snowe,  2  De  G.  &  Sm.,  321,  it  is  held  an 
infant  cannot  in  equity  take  advantage  of  such 
misrepresentation.  Approved,  Hannah  v.  Hodgson, 
30  Beavan,  30. 

For  particular  instances  of  contracts,  etc.,  of  in- 
fants held  voidable,  not  void,  see  Baxter  v.  Bush,  29 
Vt.,  465  (lease);  State  v.  Plaisled,  43  X.  H.,  413,  and 
Palmer  v.  Miller,  25  Barb.,  399  (mortgage);  Griffith 
v.  Schwenderman,  27  Mo.,  412  (lease);  Reed  v.  Batch- 
elder,  1  Met.  (Mass.),  559,  and  Earl  v.  Reed.  10  Id.. 
387  (negotiable  note);  Dunton  v.  Brown,  31  Mich., 
182  (partnership);  Kendall  v.  Laurence,  22  Pick., 
543;  Gilletv.  Stanley,  1  Hill,  121;  Bool  v.  Mix,  17 
Wend.,  119  (deeds). 

As  to  infants'  responsibility  for  torts  in  general 
and  what  constitutes  a  tort  within  the  rule,  see 
Campbell  v.  Stokes,  2  Wend.,  137,  and  note  in  this 
edition . 

269 


129 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


defendant,  as  his  surety,  entered  into  a  bond 
to  the  plaintiff,  conditioned  that  he  should  re- 
main a  faithful  prisoner,  &c.,  pursuant  to  the 
statute  regulating  the  liberties  of  gaols. 
(Laws  of  N.  Y.,  21,  Sess.  c.,  91.)  The 
sheriff  at  the  same  time  took  a  warrant  from 
the  defendants  directed  to  any  attorney  to  con- 
fess judgment  on  the  bond,  by  virtue  of  which 
a  judgment  was  entered  and  an  execution  is- 
sued thereon. 

It  was  moved  to  set  aside  the  judgment  and 
execution  on  the  ground  that  the  sheriff  had 
no  authority  to  take  sucli  warrant. 

Mr.  Woodworth  for  the  plaintiff. 
Mr.  Troup  for  the  defendant. 

Per  Curiam.  The  statute  does  not  author- 
ise the  sheriff  to  take  such  a  warrant,  which 
is  therefore  void.  If  permitted,  it  might  be 
employed  to  oppressive  purposes. 

Let  the  judgment  and  execution  be  set  aside  with 
cost*. 


OAKLEY  v.  FARRINGTON. 

Slander  —  Actionable  Words. 

In  an  action  of  slander,  for  the  following1  words, 
"Squire  Oakley  is  a  damned  rogue,"  it  was  held 
that  they  were  not  actionable,  it  not  appearing  that 
they  were  spoken  of  him  in  his  official  capacity. 


was  an  action  of  slander.  The  plaint- 
JL  iff  in  the  declaration  was  stated  to  be  a 
justice  of  the  peace,  and  the  slanderous  words 
were  charged  to  have  been  spoken  of  him 
13O*]  *in  relation  to  his  office.  Amon^ 
others  the  following  words  were  charged,  and 
on  the  trial  before  Mr.  Justice  Benson,  at  the  last 
Westchester  circuit,  were  proved  to  have  been 
spoken  by  the  defendant:  "  Squire  Oakley 
(meaning  the  plaintiff)  is  a  damned  rogue."  It 
did  not  appear  from  any  circumstance  that 
these  words  were  spoken  of  the  plaintiff  in  his 
official  capacity.  The  appellation  of  "squire" 
was  intended  to  designate  him  merely,  and 
was  that  by  which  he  was  usually  dis- 
tinguished from  others  of  the  same  surname  in 
the  part  of  the  country  where  the  parties  re- 
sided. The  defendant'on  the  trial  moved  for 
a  nonsuit,  on  the  ground  that  the  words  so 
spoken  were  not  actionable;  which  motion  was 
overruled  for  the  purpose  of  taking  a  verdict 
and  referring  the  question.  A  verdict  was  ac- 
cordingly taken  for  the  plaintiff,  subject  to  the 
opinion  of  the  court;  and  it  was  agreed  if  that 
opinion  should  be  against  the  plaintiff,  that  a 
nonsuit  should  be  entered. 

Mr.  Coleman,  for  the  plaintiff,  cited  the  case 
of  Astonv.  Blagrate(\  Str.,618),  to  show  that  the 
like  words  spoken  of  a  magistrate  are  action- 
able. 
Mr.  Woods,  contra. 

Per  Curiam.  These  words  spoken  of  a 
common  person  are  held  not  to  be  actionable. 
Although  in  this  case  they  were  spoken  of  a 
magistrate,  they  had  no  relation  to  his  official 
character  or  conduct.  They  are  therefore  not 
more  actionable  than  if  he  was  not  in  office, 
or  if  they  were  spoken  of  any  other  individual. 

Judgment  of  nonxuit. 


MAIN  T.  PROSSER. 

Malicious  Prosecution — Jurisdiction  of  Justice. 

A  justice  of  the  peace  has  no  jurisdiction  of  an 
action  for  a  malicious  prosecution. 

Citation— Doug.,  263. 

IN  error  on  certiorari  to  a  justice's  court. 
The  principal  error  assigned  was  that  the 
suit  before  the  justice  was  an  action  on  the 
case  for  a  malicious  prosecution. 


*Mr.  Woodworth  for  the  plaintiff. 
Mr.  Riggs  for  the  defendant. 


[*131 


Per  Curiam.  We  are  of  opinion  that 
the  justice  had  no  jurisdiction.  The  princi- 
ples of  the  action  for  a  malicious  prosecution, 
involve  delicate  and  important  questions, 
affecting  the  administration  of  public  justice, 
as  well  as  the  rights  of  individuals.  The 
action  must  frequently  relate  to  proceedings 
in  another  court,  and  would  require  the  jus- 
tice incidentally  to  review  the  conduct  of 
superior  tribunals.  The  exercise  of  such  a 
power  would  be  inconvenient,  and  could  not 
have  been  intended  by  the  general  terms  of 
the  act  from  which  he  derives  his  authority; 
and,  therefore,  according  to  the  case  of  Alway 
v.  Burrows  (Doug. ,  263),  an  exception  to  his 
jurisdiction  may  well  be  implied  from  the 
nature  and  reason  of  the  thing.  The  Legisla- 
ture seem  to  have  had  this  exception  in  view, 
when,  by  the  4th  sec.  of  the  act  concerning 
costs,  they  permitted  the  plaintiff,  in  an  action 
for  a  malicious  prosecution  brought  in  another 
court  to  recover  costs,  a  provision  not  gen- 
erally applicable  to  cases  which  are  subject  to 
the  jurisdiction  of  justices.  We  are  of  the 
opinion,  therefore,  that  the  judgment  must  be 
reversed. 

Judgment  reversed. 
Followed— 13  Johns.,  466.    See  3  Denio,  84. 


C.  JAMES  c.  BADGER  AND  BADGER. 

Negotiable  Instruments — Protest  for  unpftid 
Balance. 

Where  the  holder  of  a  note,  on  the  day  it  was  pay- 
able received  a  part  from  the  maker,  and  gave 
notice  of  nonpayment  generally  to  the  indorsor,  it 
was  held  sufficient  to  charge  the  indorsor  with  the 
payment  of  the  residue. 

THIS  was  an  action  on  a  promissory  note  by 
the  plaintiff,  as  indorsee  against  the  de- 
fendants who  were  the  indorsors. 


Cited  in 
270 


-1  Denio,  252:  3  N.  Y.,  178. 


NOTE.— Notice  of  nonpayment  of  promissory  note. 

Error  in  statement  of  the  amount  of  the  note  held 
immaterial,  any  misdescription  which  would  not 
mislead  an  ordinarily  prudent  man  is  immaterial. 
Reedy  v.  Soixas,  2  Johns.  Cas.,  337 ;  Bank  v.  Swann. 
9  Pet.,  33:  Snow  v.  Perkins.  2  Mich.,  238;  Bank  v. 
Gould,  9  Wend.,  279 ;  Bank  v.  Warden,  1  N.  Y..  413, 
6  N.  Y.,  19. 

See  Fitchburg  Ins.  Co.  v.  Davis,  121  Mass.,  121 ; 
Downer  v.  Remer,  23  Wend.,  620 ;  25  Wend.,  277. 

The  fact  of  the  existence  of  two  or  more  notes  of 
similar  description  may  affect  the  question  of  suf- 
ficiency of  notice.  Cook  v.  Litchfield,  9  N.  Y.,  279. 
But  see  2  Daniels  Neg.  Inst.,  p.  32,  sec.  977 :  Hodges 
v.  Shuler,  22.N.  Y.,  115. 

JOHNSON'S  CASES,  1. 


1799 


BANK  OF  THE  UNITED  STATES  v.  HABKINS. 


131 


On  the  trial  it  appeared  that  the  note  was 
protested  for  nonpayment  on  the  17th  June, 
1797,  on  which  day  it  fell  due;  that  afterwards, 
on  the  same  day,  the  maker  called  on  the 
plaintiff  and  paid  him  $300  in  part  satisfac- 
tion of  the  note.  The  residue  being  unpaid, 
due  notice  of  nonpayment  generally  was  given 
to  the  defendant,  on  Monday,  the  19th  of  June 
following,  but  unaccompanied  with  any  infor- 
mation that  part  of  the  note  had  been  paid  by 
the  maker. 

132*]  *A  verdict  was  found  for  the  plaintiff 
for  the  balance  due  on  the  note  with  the 
interest. 

The  defendants  moved  for  a  new  trial,  on 
the  ground  that  the  receipt  of  part  from  the 
maker  after  his  default,  and  before  notice  to 
the  indorsers,  was  a  waiver  of  the  default,  and 
discharged  the  defendants;  and  if  it  did  not 
discharge  them  the  notice  was  improper,  in 
not  stating  that  a  part  had  been  paid  by  the 
maker. 

Mr.  C.  I.  Bogert  for  the  plaintiff. 
Mr.  Hamilton  for  the  defendants. 

Per  Curiam.  An  acceptance  of  a  part  from 
the  maker  does  not  discharge  the  indorser, 
provided  the  holder  gives  notice  in  time,  that 
he  looks  to  him  for  the  residue.  Here  notice 
was  given,  but  it  was  general,  and  in  the  usual 
form  without  specifying  that  any  part  had 
been  paid.  Although  this  was  not  strictly  cor- 
rect, according  to  the  fact,  yet  we  think  it  was 
sufficient  for  every  beneficial  purpose  of  notice 
to  the  indorsers. 

Judgment  for  the  plaintiff. 

Cited  in— 2  Abb.  App.  Dec.,  322 ;  4  Trans.  App.,  4S8 ; 
4  Abb.  N.  S.,  428 ;  6  How.  (IT.  S.),  282 ;  1  McLean,  312. 


THE  PRESIDENT,  DIRECTORS  AND 
COMPANY  OF  THE  BANK  OF  THE 
UNITED  STATES 

HASKINS. 

Pleading — Incorporation  of  U.  8.  Bench — Act 
of  Congress. 

Whether  the  act  of  Congress  incorporating  the 
bank  of  the  United  States,  be  a  public  or  private 
act,  it  is  not  necessary  to  set  it  forth  in  an  action 
brought  by  the  president,  directors  and  company 
of  that  bank. 

THE  plaintiffs  declared  in  this  action  by  the 
name  and  style  of  the  "President,  Direct- 
ors and  Company  of  the  Bank  of  the  United 
States."  The  defendant  pleaded  in  abatement 
that  the  plaintiffs  had  exhibited  their  bill,  &c., 
and  had  not  set  forth  any  act  incorporating 
the  bank,  or  shown  the  name  of  the  president, 
directors  and  company,  &c. 

The  plaintiffs  demurred  to  this  plea,  and  the 
defendant  joined  in  demurer. 

Mr.  Burr,  in  support  of  the  demurer,  insisted 
that  the  act  incorporating  the  company  was  a 
private  act,  and  ought  to  have  been  set  forth, 
together  with  the  names  of  the  individuals 
composing  the  company. 

Mr.  Hoffman,  contra,  contended  that  the  act 
was  a  public  act,  if  not  so  in  terms,  at  least  from 
JOHNSON'S  CASES,  1. 


its  nature,  and  had  *been  frequently  [*133 
recognized  by  subsequent  acts  of  Congress, 
which  were  public,  and  was,  therefore,  to  be 
regarded  as  such. 

Per  Curiam.  On  examining  precedents,  we 
are  satisfied  that  whether  the  act  of  Congress 
incorporating  the  Bank  of  the  United  States  be 
viewed  either  as  a  public  or  private  act,  it  was 
not  necessary  to  set  forth  the  act  itself,  nor  the 
names  of  the  individuals  composing  the  com- 
pany. 

Judgment  for  the  plaintiffs. 

Cited  in— 14  Johns.,  246 ;  5  Wend.,  482 ;  4  Johns.  Ch., 
372;  12  Barb.,  575;  28  Barb.,  63;  13  How.  Pr.,  272;  !> 
Bos.,  716;  1  Duer,  708;  12  Leg.  Obs.,  86. 


VALKENBURGH  t».  DEDERICK. 

Insolvent  Debtor — In  Custody — Discharge  not 
pleaded. 

Where  the  def  entant  obtained  his  discharge  under 
the  Insolvent  Act,  pendente  lite,  in  time  to  plead  it  or 
give  it  in  evidence,  but  neglected  to  do  so,  the 
court,  after  a  judgment  by  default  against  him,  and 
a  surrender  by  his  bail,  refused  to  discharge  him 
from  custody. 

THIS  cause  was  at  issue  in  July  vacation, 
1798,  and  an  inquest  by  default  was  reg- 
ularly taken  against  the  defendant  early  in 
July,  1799,  on  which  a  rule  for  judgment  had 
been  entered  at  this  term.  The  defendant  ob- 
tained a  discharge  under  the  act  for  giving 
relief  in  cases  of  insolvency,  on  the  9th  Feb- 
ruary last,  and  being  surrendered  by  his  bail, 
moved  to  be  discharged  from  custody,  and 
that  the  proceedings  against  him  subsequent 
to  his  discharge  might  be  set  aside. 

Per  Curiam.  The  defendant  has  shown  no 
reason  why  he  did  not  give  his  discharge  in 
evidence,  or  plead  it  puisdar.  cont.:  and  having 
neglected  to  make  his  proper  defence,  we  will 
not  interfere  to  help  him. 

In  an  ordinary  case,  and  with  a  more  meri- 
torious defence,  the  court  would  not  relieve 
after  so  great  a  laches. 

Rule  refused. 
Cited  in— 46  N.  Y.,  203;  50  N.  Y.,  595. 


*IN  THE  MATTER  OF  P.  GEPHARD.  [*134 

Mandamus — To  restore  Attorney  at  Law — Affi- 
davit. 

A  rule  to  show  cause  why  a  mandamus  should  not 
issue  to  a  court  of  common  pleas,  to  restore  an  at- 
torney, was  refused,  bocause  the  affidavit  did  not 
state  that  the  court  had  improperly  removed  him. 

TTOPKINS  moved,  on  an  affidavit,  stating 
-TL  that  Gephard  had  been  removed  by  the 
Court  of  Common  Pleas  of  the  County  of 
Delaware,  from  the  office  of  an  attorney  of 
that  court,  for  a  rule  that  the  judges  of  that 
court  show  cause,  by  the  first  day  of  the  next 
term,  why  a  mandamus  should  not  issue  com- 
manding them  to  restore  him  to  his  office. 

271 


184 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


Per  Curiam.  The  affidavit  is  insufficient. 
It  is  not  shown  that  the  court  below  acted  im- 
properly, or  that  the  fact  charged  against 
Gephard,  on  which  he  was  removed,  was 
founded  in  error  or  mistake. 

The  m(  tion  must  be  denied. 

N.  B.— The  affidavit  was  afterwards  amend- 
ed, on  which  the  court  granted  the  rule. 

Cited  in-64  Ind.,  495. 


BURNS  v.  BAKER. 

Insolvent  Debtor— Application  for  Discliurge — 
Stamped  Inventory. 

On  application  of  a  prisoner  to  be  discharged  un- 
der the  act  "for  the  relief  of  debtors  with  respect 
to  the  imprisonment  of  their  persons,"  it  was  held 
that  the  inventory  exhibited  by  the  debtor  must  be 
stamped. 

THE  defendant  being  brought  up  to  be  dis- 
charged under  the  "Act  for  the  relief  of 
debtors,  with  respect  to  the  imprisonment  of 
their  persons,"  it  was  objected,  1.  That  in  the 
schedule  annexed  to  his  inventory,  his  arms 
were  not  specified. 

2.  That  the  inventory  did  not  specify  when 
the  prisoner  owned  the  articles  mentioned  in  it. 

3.  That  the  prisoner  was  in  custody  in  a 
suit  for  a  breach   of  promise  of  marriage, 
which  was  a  tort. 

4.  That  the  inventory  was  not  stamped. 

Mr.  Lee  for  the  petitioner. 
Mr.  Munro  contra. 

Per  Curiam.  The  inventory  ought  to  have 

been  stamped.  Though  the  other  grounds  of 

opposition   are  untenable,    that   objection  is 
fatal. 

Rule  refused. 


135*]  *GRISWOLD  v.  HASKINS. 

Pleading  over  after  Frivolous  Demurrer. 

If  the  defendant  put  in  a  frivolous  demurrer,  he 
cannot  afterwards  withdraw  it,  to  plead  the  general 
issue,  though  he  has  merits. 

BURR,  for  the  defendant,  moved  for  leave  to 
withdraw  a  demurrer,  and  plead  issuably 
on  an  affidavit  of  merits,  which    he  did  not 
know  of  at  the  time  the  demurrer  was  filed. 

Mr.  Riggs,  contra,  objected,thatthe  demurrer 
was  frivolous  and  put  in  merely  for  delay. 

Per  Curiam.  The  demurrer  on  the  face  of 
it  is  frivolous,  and  appears  to  have  been  put 
in  merely  for  delay.  The  defendant  now  ap- 
plies for  a  favor,  when  his  conduct  entitles 
him  to  no  more  than  the  summum  jus.  The 
motion  must  be  denied. 

Rule  refused. 
272 


LE  CONTE  v.  PENDLETON. 

Inquest — Notice  of  Commission. 

Where  the  plaintiff  took  an  inquest  by  default, 
after  regular  notice  of  an  intended  application  to 
move  at  the  next  term  for  a  commission,  it  was  set 
aside. 

B  LIVINGSTON,  for  the  defendant,  moved 
.  to  set  aside  the  inquest  taken  in  this 
cause  for  irregularity.  Issue  was  joined  on 
the  9th  June  last,  and  on  the  19th  June,  the 
defendant  gave  notice  to  the  plaintiff,  that  he 
intended  to  apply  at  this  term  for  a  commis- 
sion to  take  the  examination  of  witnesses  in 
Georgia.  But  the  plaintiff  afterwards  gave 
notice  of  trial  for  the  July  circuit,  and  took 
an  inquest  by  default, 
Mr.  Harison  contra. 

Per  Curiam.  An  issue  was  not  joined  in  the 
cause  until  after  the  election  made  as  to  the 
plea,  in  the  last1  vacation;  the  defendant  was 
in  time  to  apply  for  a  commission,  according 
to  the  9th  rule  of  April  Term,  1796.  The  pro- 
priety of  the  plea  elected  by  the  defendant  is 
not  to  be  examined  on  this  motion.  The  in- 
quest must  be  set  aside,  and  a  commission 
issue. 

Rule  granted. 


*THE  CASE  OF  HUSTED,  a  Soldier.  [*  136 

Habeas  Corpus — Enlisted  Soldier — Conclusive 
Facts. 

A  habeas  corpus  to  bring  up  a  person  stated  to  be 
a  soldier  enlisted  in  the  army  of  the  United  States 
was  refused. 

AN  application  was  made  for  a  habeas  corpus, 
to  bring  up  one  Husted,  detained  in  cus- 
tody by  a  captain  in  the  Army  of  the  United 
States,  who  claimed  him  as  a  soldier  enlisted 
under  the  authority  of  the  United  States. 

RADCLIFF,  and  KENT,  JJ.,  were  of  opinion 
that  the  application  ought  to  be  refused,  on 
the  ground  that  if  the  facts  stated  were  re- 
turned on  the  habeas  corpus,  it  would  be  con- 
clusive against  his  discharge. 

BENSON,  J.,  said  the  motion  ought  to  be  de- 
nied, because  this  court  had  no  jurisdiction  in 
the  case. 

LEWIS,  J.,  and  LANSING,  Ch.  J.,  were  for 
granting  the  habeas  corpus. 

Motion  denied. 

Distinguished— 6  Park.,  281,  284. 
Cited  in— 9  Johns.,  239 ;  40  Barb.,  48 ;  107  Mass.,  161 : 
1  Abb.  (U.  S.),  145;  Hemp.,  309. 


GELSTON,  Assignee  of  the  Sheriff, 

v. 
SWARTWOUT,  Manucaptor. 

Notice — Service  on  Attorney. 

A  service  of  notice  must  be  on  some  person  in  the 
office  or  house  where  the  attorney  of  the  opposite 
party  resides :  and  it  must  be  shown  that  everything 
has  been  done  to  bring  it  home  to  the  party. 

JOHNSON'S  CARES,  1. 


1799 


THE  PEOPLE  v.  WATERS. 


136 


"1TTORTMAN,  for  the  defendant,  moved  to 
VV  stay  proceedings  on  the  bail-bond.  It 
.appeared  that  the  attorney  for  the  defendant 
in  the  original  suit,  had  given  notice  of  re- 
tainer and  special  bail  at  the  same  time,  by 
leaving  it  at  the  office  of  the  plaintiff's  attor- 
ney in  his  dwelling-house,  when  no  person 
was  present.  Two  terms  had  elapsed  before 
the  present  suit  was  commenced. 
Mr.  Coleman,  contra. 

Per  Curiam.  The  notice  was  not  duly 
served.  It  should  have  been  given  to  some 
person  in  the  house.  To  make  the  service  of 
.a  notice  good,  it  must  be  shown  that  every- 
thing has  been  done  to  bring  it  home  to  the 
party.  The  service  must  be  on  some  person 
in  the  office,  and  belonging  there.  If  no  per- 
son is  there,  it  must  be  on  some  one  in  the 
house  where  the  attorney  resides,  or  where 
his  office  is  kept;  and  if  there  is  no  person 
there,  it  may  be  left  in  the  office.  But  as  there 
137*]  has  been  a  negligence  on  *the  part  of 
the  plaintiff  in  not  putting  the  bail  bond  in 
suit  at  the  subsequent  term,  the  bail  ought  not 
now  to  be  fixed  from  the  irregularity  of  the 
notice,  which  the  prevalence  of  the  yellow 
fever  in  the  city  at  that  time  may,  in  some 
measure, excuse.  Let  the  proceedings  be  stayed, 
on  the  payment  of  costs,  and  the  justification 
of  bail  if  required. 

Rule  granted. 


THE  PEOPLE  «.  WATERS,  Sheriff,  &c. 

.Sheriff—  Contempt — Attachment — Process   given 
to  Deputy. 

A  sheriff  is  not  liable  to  an  attachment  for  a  con- 
tempt in  not  acting1  upon  process  which  does  not 
•come  to  his  personal  knowledge,  or  is  not  lodged  in 
his  office,  but  is  delivered  to  a  deputy. 

rpHE  sheriff  of  Orange  was  brought  up  on  an 
J-  attachment  for  a  contempt,  in  not  return- 
ing a.  fieri  facias  directed  to  him.  The  plaint- 
iff in  the  original  suit,  having  filed  interroga- 
tories, and  the  sheriff  having  made  answer 
thereto.  The  court  said  a  sheriff  is  not  to  be 
•considered  as  in  contempt  for  not  acting  on  an 
execution  which  never  came  to  his  personal 
knowledge,  nor  was  lodged  in  his  office.  In 
the  present  case,  it  appears  that  the./?,  fa.  was 
delivered  to  a  deputy;  and  we  need  not  decide 
whether  such  a  delivery  be  good,  so  as  to  charge 
the  sheriff  himself,  because,  in  this  case,  the 
sheriff  has  affirmed  the  receipt  of  the  execution 
by  acting  upon  it.  He  has  not  returned  it 
within  40  days,  and  his  answers  afford  no 
JOHNSON'S  CASES,  1.  N.  Y.  REP.,  BOOK  1. 


satisfactory  excuse.  We  order  that  he  pay  a 
fine  of  $20  for  the  contempt,  and  also  the  costs 
of  the  rule  and  attachment,  and  that  he  stand 
committed  until  the  fine  and  costs  are  paid. 

Denied — 6  Cowen,  42. 
Cited  in— 37  Ind.,  462. 


IN  THE  MATTER  OP  M'KINLEY  ET  AL.,  Absent 
Debtors. 

Surety — Right  to  Existing  Attachment. 

Where  an  attachment  had  been  obtained  by  the 
indorsee  of  a  bill  of  exchange,  against  the  drawers, 
as  absent  debtors,  and  the  indorser  afterwards  paid 
the  amount,  this  court  reversed  the  order  of  a  juds*e 
for  a  suversedeas,  and  allowed  the  attachment  to 
proceed  for  the  benefit  of  the  indorsor  or  surety 
who  paid  the  money. 

Statute  continued.    Statute  of  April  14, 1786,  §23. 

MR.  MUNRO,  indorsee  of  a  bill  of  exchange 
drawn  by  M'Kinley  &  Co.,  sued  out  an 
attachment  against  them  as  absent  debtors, 
*under  the  "Act  giving  relief  against  [*138 
absent  and  absconding  debtors,"  passed  the 
4th  April,  1786,  and  a  vessel  belonging  to 
them  was  seized  under  the  attachment.  The 
indorsor  of  the  bill  afterwards  paid  the 
amount  to  the  indorsee,  but  it  was  agreed  be- 
tween them,  that  the  proceedings  should  con- 
tinue on  the  attachment  for  the  benefit  of  the 
indorsor,  for  whom  the  indorsee,  at  whose  in- 
stance the  attachment  issued,  should  be  a 
trustee.  M'Kinley  &  Co.  afterwards  applied 
to  the  recorder  of  the  city  of  New  York,  for  a 
mpersedeas,  by  whom  it  was  allowed.  An 
appeal  was  made  from  that  order  to  this  court. 

Per  Curiam.  Although  a  payment  may  be 
equivalent  to  giving  the  security  required  by 
the  23d  section  of  the  act,  in  order  to  obtain  a 
mpersedeas,  as  was  insisted  on  in  the  argu- 
ment; yet  it  must  be  a  payment  by  the  prin- 
cipal himself,  and  not  by  his  surety,  or  one 
collaterally  responsible  to  the  creditor.  The 
23d  section  expressly  provides  that  the  security 
shall  be  given  for  the  benefit  of  all  the  creditors. 
As  the  indorsor,  therefore,  who  paid  the 
money,  must  be  considered  as  a  creditor,  he 
has  a  right  to  avail  himself  of  this  attachment, 
and  Munro  may  be  considered  as  a  trustee  for 
his  benefit.  Besides,  if  the  person  who  has 
sued  out  the  attachment  has  been  paid  his  debt, 
and  the  absent  debtors  wish  to  avail  themselves 
of  this  payment,  they  must  resort  to  their  plea 
in  a  regular  suit. 

Let  the  order  be  reversed. 

Cited  in-16  Johns.,  14, 164 ;  ION.  Y., 67 ;  3  Barb.,  13. 
18  273 


IN   THE 


SUPREME  COURT  OF  JUDICATURE 


STATE   OF   NEW   YORK, 


OCTOBKR    TKRM,    IN    THE    YTCAR.    1799. 


139*]        *LODGE  v.  PHELPS. 

1.    Contracts — Lex  Loci — Remedy. 

The  indorsee  of  a  promissory  note  given  in  Con- 
necticut,  where  promissory  notes  are  not  negotia-  , 
ble,  may  maintain  an  action  in  his  own  name  in  i 
this  State,  against  the  maker.    The  lex  loci  contrac-  \ 
tus  is  not  to  govern  as  to  the  mode  of  enforcing- the 
contract. 


Harg.  Co.  Litt.  lib.  2,  n  44., 

THIS  was  an  action  of  assumjmt,  brought  by  j 
the  plaintiff  as  indorsee  of  a  promissory  j 
note,  made  by  the  defendant  to  one  Lloyd,  and  i 
payable  to  him  or  order,  dated  at  Suffield  in 
the  State  of  Connecticut.     The  plea  was  the 
general  issue. 

On  the  trial,  before  Mr.  Justice  Kent,  at  the 
sittings  in  New  York,  after  July  Term,  1798, 
the  plaintiff  proved  the  handwriting  of  the 
maker  and  indorser,  and  there  rested  his 
cause. 

The  defendant  then  prc/ved  that  by  the  laws 
of  Connecticut,  where  the  note  was  made, 
promissory  notes  (except  bank  notes)  were  not 
negotiable,  so  as  to  entitle  the  assignee  to 
bring  a  suit  in  his  own  name,  and  that  they 
remained  on  the  same  footing  as  choses  in  ac- 
tion at  the  common  law ;  he  insisted  that  the 
law  of  Connecticut  ought  in  this  respect  to 


govern,  and  that  the  plaintiff,  therefore,  was 
not  entitled  to  recover  in  this  action.  It  was 
admitted,  that  *the  payee  of  the  note  [*14O 
at  the  time  of  its  date,  and  the  plaintiff  at  the 
time  of  the  indorsement,  resided  in  the  city  of 
New  York. 

Upon  this  evidence  a  verdict  was  taken  by 
consent  for  the  plaintiff,  subject  to  the  opin- 
ion of  the  court,  reserving  also  the  question  as 
to  the  admissibility  of  the  evidence  on  the 
part  of  the  defendant  under  the  present  issue. 

Three  points  were  made  on  the  argument: 
1.  By  what  law  the  contract  was  to  be  gov- 
erned. 

2.  If  by  the  law  of  Connecticut,  whether  it 
should  affect  the  form  of  action. 

3.  If  the  court  should  be  of  opinion  with 
the  defendant  on  the  preceding  points, whether 
the  evidence  on  his  part  could  be  admitted 
under  the  general  issue. 

Mr.  B.  Livingston,  for  the  plaintiff. 
Mr.  Harison,  for  the  defendant. 

Per  Curiam :  That  personal  contracts  just 
in  themselves  and  lawful  in  the  place  where 
they  are  made,  are  to  be  fully  enforced  ac- 
cording to  the  law  of  that  place,  and  the  in- 
tent of  the  parties,  is  a  principle  which  ought 
to  be  universally  received  and  supported.  But 
this  admission  of  the  lex  loci  can  have  refer- 
ence only  to  the  nature  and  constmction  of 


NOTE. — Negotiable  paper,  law  of  place. 

In  general  rights  of  original  parties  to  a  note  are 
governed  by  the  lex  contracts,  but  if  payment  is 
stipulated  in  another  place,  then  by  the  law  of  that 
place  ;  each  indorsement  will  be  regarded  as  a  new 
contract,  and  will  follow  the  same  rule.  Rase  v. 
Bank,  20  Ind.,  94 ;  Collins  v.  Burkam,  10  Mich.,  283; 
Warren  v.  Lynch,  5  Johns.,  239 ;  Ballard  v.  Webster, 
9  Abb.  Pr.,  404 ;  Wilson  v.  Lazier,  11  Gratt.  (Va.)  477 ; 
Kuenzie  v.  Elvers,  14  La.  Ann.,  391;  Coffman  v. 
Bank,  41  Miss.,  212 ;  Williams  v.  Wade.l  Mete.  (Mass.), 
82 ;  Aymar  v.  Shelden,  12  Wend.,  439 ;  Roe  v.  Jerome, 
18  Conn.,  138 ;  Musson  v.  Lake,  4  How.  (U.  S.),  62 ; 
Bank  v.  Brady,  3  McLean,  288 ;  Gaylord  v.  Johnson, 
5  McLean,  448;  Brabston  v.  Gibson.  9  How.  TJ.  S., 
263;  Evans  v.  Anderson,  78  111.,  558 ;  Everett  v.  Ven- 
dryes,  19  N.  Y.,  436 ;  Artizans  Bank  v.  Park  Bank, 

JOHNSON'S  CASES,  1. 


|  41  Barb.,  599.    See  Lee  v.  Selleck,  32  Barb.,  522,  33  N. 
Y.,  615. 

The  mode  of  enforcing  payment  will  lie  governed 
by  the  Icxfori.  Bacon  v.  Dahlgren,  7  La.  Ann.,  6(10; 
Collins  v.  Burkam,  above  cited ;  Bank  v.  Donnelly, 
8  Pet.,  361,  R.  R.  Co.  v.  Barron,  83  111.,  365. 

By  Illinois  law  a  note  payable  to  A  or  bearer,  can- 
not be  transferred  by  delivery  so  as  to  give  bearer 
legal  title,  and  even  if  the  transfer  were  made  in 
State  where  delivery  passes  the  title,  the  same  rule 
will  apply.  Roosa  v.  Crist,  17  111.,  450. 

A  note  may  be  enforced  in  the  courts  of  New 
York,  although  not  stamped  according  to  the  law 
of  the  place  where  it  was  made.  Lud'ow  v.  Van 

!  Rensselaer,  1  Johns.,   94.    See   Fant   v.  Miller,  17 

j  Gratt  (Va.),  47. 


140 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


the  contract  arid  its  legal  effect,  and  not  to  the 
mode  of  enforcing  it;  for  every  country  must 
and  will  have  modes  of  redress  and  judicial 
proceedings  peculiar  to  its  own  jurisprudence, 
and  is  entitled  to  administer  justice  under  the 
solemnity  of  its  own  forms.  (2  Ersk.  Inst., 
473,  474,  475;  1  Bro.  P.  C.,  41;  1  Black.  Rep., 
237,  238,  258;  7  Term,  243;  1  Bos.  &  Pull., 
142;  1  Emerigon,  122;  Huberus,  lib.  1  tit.,  31; 
Harg.  Co.  Litt.,  lib.  2  n.  44.) 

It  is  not  material,  therefore,  to  decide 
whether  the  law  of  Connecticut,  where  the 
contract  was  made,  or  the  law  of  New  York, 
where  it  was  to  be  paid  and  performed,  as  has 
been  contended,  ought  to  govern.  There 
can  be  no  good  reason  why  the  plaintiff  in 
either  case  should  not  be  permitted  in  our 
own  courts  to  avail  himself  of  a  remedy  pre- 
scribed by  our  laws,  and  sue  directly  in  his 
own  name,  instead  of  being  compelled  to  use 
the  name  of  the  original  payee.  If  the  de- 

endant  had  any  defense  entitled  to  be  made 
here,  as  being  authorized  by  the  law  of  Con- 
necticut, and  the  contract  were  to  be  governed 
141*]  by  that  law,  he  *would  still  be  per- 
mitted to  make  it,  and  would  be  heard  in  one 
form  of  action  as  well  as  the  other.  There  is, 
therefore,  no  reason  to  turn  the  plaintiff  round 
to  another  suit;  The  precedent  would  lead  to 

nnovation,  and  to  the  introduction  of  a  prac- 
tice wholly  unknown  in  our  courts,  and  not 
approved  by  our  law. 

It  follows  that  it  is  unnecessary  to  determine 
whether  under  the  general  issue,  the  defend- 
ant could  avail  himself  of  a  defense  arising 
from  the  law  of  Connecticut.  His  objection 
to  the  plaintiff's  recovery  is  founded  on  the 
mode  of  redress  only,  and  not  on  the  merits  of 
a  just  defense. 

Judgment  for  the  plaintiff.1 

Approved— 2  Johns.  Cas.,  369. 
Cited  in— 1  Caines,  412;  14  Johns.,  340;  12  Barb.,  645; 
4  Uerr.,  201. 


GARDNER  ET  AL.  e.  SMITH. 

1.  Marine  Insurance — Illicit  Trade — Foreign 
and  Domestic  Trade.  2.  Id. — Policy  until 
floods  are  landed.  3.  Id. — Abandonment — 
Agency.  4.  Id. — Id. — Total  loss. 

A  policy  of  insurance  against  the  risk  from  illicit 
trade  in  a  foreign  country,  is  valid,  though  it  would 
be  void  if  intended  to  protect  a  trade  against  our 
own  laws.  A  policy  on  goods  until  twenty-four  hours 
after  they  are  landed,  continues  until  twenty-four 
hours  after  all  the  goods  are  landed.  After  an 
abandonment,  the  consignee  of  the  goods  insured 
becomes  the  agent  of  the  insurer,  and  his  acts,  if 
done  in  good  faith,  are  at  the  risk,  and  for  the  bene- 
fit of  the  insurer.  Where  the  goods  saved  do  not 
amount  to  half  the  value  of  the  goods  insured,  the 
insured  may  abandon  as  for  a  total  loss. 

THIS  was  an  action  on  a  policy  of  insurance 
on  goods,  "at  and  from  New   York  to 

1.— See  Nash.  v.  Tupper,  1  Caines,  412;  Hitchcock 
&  Fitch  v.  Aicken,  1  Caines,  460;  Post  &  La  Rue  v. 
Neafle,  3  Caines,  12 ;  Van  Raugh  v.  Van  Arsdale,  3 
Caines,  154 ;  Jackson  v.  Jackson,  1  Johnson,  424 :  and 
the  authorities  there  cited.  Smith  v.  Spinolla,  2 
Johnson,  198. 

NOTE.— A  policy  of  insurance  against  the  rink  from 
trade,  forbidden  by  the  laics  of  a  foreign  country,  fo 
vattd. 

3  Kent  Com.,  263  et  seq.,  and  cases  ciU-d. 
27(5 


any  port  or  ports  in  Jamaica,  and  twenty-four 
hours  after  the  goods,  as  named  in  the  margin, 
are  landed  in  Jamaica."  The  policy  was 
against  the  usual  risks,  and  also  against  the 
risk  of  contraband  and  illicit  trade. 

The  plaintiff  declared  for  a  total  loss  by 
seizure  for  illicit  trade.  On  the  trial  before 
Mr  Justice  Radcliff,  at  the  last  March  Circuit 
in  the  city  of  New  York,  it  appeared  that  the 
goods,  as  mentioned  in  the  margin  of  the  policy, 
were  duly  shipped  on  the  voyage  insured; 
that  they  consisted  partly  of  dry  goods  which 
were  illicit  by  the  laws  of  Jamaica,  and  partly 
of  lumber  and  provisions  which  were  not 
illicit;  that  the  vessel  and  goods  arrived  at 
Kingston  in  Jamaica,  on  the  12th  October; 
that  the  vessel  was  duly  entered,  and  on  the 
14th  of  October  began  to  discharge  her  cargo. 
On  that  day  she  put  on  shore  her  deck  lading, 
and  *on  the  day  following  she  dis-  [*142 
charged  part  of  the  cargo  from  the  hold;  the 
next  day  being  Sunday  nothing  was  done,  but 
early  in" the  succeeding  day,  to  wit:  the  17th 
of  October,  while  proceeding  in  the  further 
discharge  of  the  cargo,  the  vessel  and  the  re- 
maining goods  on  board,  the  quantity  of 
which  was  unknown,  were  seized  by  the  cus- 
tom-house officers  of  the  port;  the  greater 
part  of  the  dry  goods  had  been  landed,  and 
some  of  them  which  had  been  so  landed  were 
put  into  a  store,  and  were  also  seized,  but  part 
of  them  had  been  on  shore  for  twenty-four 
hours.  Of  the  above  mentioned  goods,  there 
were  afterwards  libelled  in  the  court  of  ad- 
miralty at  Jamaica,  as  having  become  for- 
feited, 5,000  pieces  of  nankeen,  55  pieces  of 
linen,  and  74  pieces  of  painted  cloth,  and  upon 
computation  it  appeared  that  the  value  of  the 
articles  saved  was  less  than  half  the  amount 
insured.  The  libel  was  also  given  in  evidence, 
but  no  sentence  of  condemnation  was  pro 
duced. 

The  plaintiff,  on  receiving  notice  of  the  loss, 
which  was  accompanied  with  information  of 
the  articles  saved,  consisting  of  lumber,  pro- 
visions and  some  of  the  dry  goods,  abandon- 
ed to  the  underwriters,  and  offered  the  usual 
proof  of  loss  and  interest.  The  consignee  of 
the  goods  sold  those  which  were  reported  to 
be  saved,  and  rendered  to  the  plaintiff  an  ac- 
count of  sales,  which,  however,  did  not  comprise 
as  many  goods  as  would  be  equal  to  the  differ- 
ence between  those  shipped  and  the  articles 
specified  in  the  libel.  The  consignee  after- 
wards sent  to  New  York  a  quantity  of  rum 
and  sugar  towards  the  payment  of  the  balance 
of  his  account,  which  was  partly  composed 
of  the  proceeds  of  the  articles  saved.  On  the 
arrival  of  the  rum  and  sugar,  the  plaintiff 
offered  to  the  underwriters,  rum  at  the  first 
cost  and  charges,  equal  to  the  amount  of  the 
proceeds  of  the  goods  saved,  which  they  re- 
fused to  accept,  and  the  rum  was  afterwards 
sold  by  the  plaintiff  and  sustained  a  loss. 

The  judge  directed  the  jury,  that  by  the 
true  construction  of  the  policy,  the  risk  contin- 
ued upon  all  the  goods  insured  until  twenty- 
four  hours  after  they  were  all  landed;  and  in- 
formed *them  that  in  his  opinion  the  [*  1 43 
plaintiffs  were  entitled  to  recover  as  for  a 
total  loss. 

The  jury  found  accordingly  for  the  plaint- 
iffs for  a  total  loss,  crediting  the  underwriters 
JOHNSON'S  CASES,  1. 


1799 


ENSIGN  v.  WEBSTER  AND  WEBSTER,. 


143 


for  the  proceeds  of  the  articles  saved  accord- 
ing to  the  account  of  sales,  and  debiting  them 
for  the  loss  on  the  rum.  It  was  agreed  by 
the  parties,  that  if  the  court  should  be  of  opin- 
ion that  the  adjustment  for  a  total  loss  was 
right,  and  the  debit  for  the  loss  of  the  rum 
was  wrong,  then  the  debit  should  be  deduct- 
ed proportionably  from  the  amount  of  the 
verdict. 

On  the  part  of  the  defendant  three  points 
were  made. 

1.  Whether  the  policy    ought  to  be  con- 
strued to  protect  all  the  goods  until  all  of  them 
were  landed. 

2.  Whether  the  plaintiffs  were  entitled  to 
recover  for  a  total  or  a  partial  loss. 

3.  Whether  the  loss  on  the  remittance  of 
the  rum  and  sugar  was  chargeable  to  the  de- 
fendants. 

Mr.  Harison,  for  the  plaintiffs. 

Mr.  B.  Livingston,  for  the  defendant. 

LANSING,  Ch.  J.  This  was  a  voyage  un- 
dertaken expressly  for  the  purpose  of  illicit 
trade  in  a  foreign  country.  A  policy  on  such 
a  voyage  against  our  own  laws  would  be  void, 
but  we  are  not  bound  to  declare  it  void  when 
merely  contravening  the  positive  regulations 
of  another  state.  On  account  of  the  nature 
of  the  voyage,  the  insurance  in  point  of  time 
was  extended  to  twenty-four  hours  after  the 
goods  should  be  landed.  A  protection  against 
the  risk  of  seizure  until  they  should  be  so 
landed,  was  a  direct  and  important  stipulation 
iti  the  contract,  and  the  insurance  being  en- 
tire, we  are  of  opinion  that  the  risk  continued 
on  the  entire  goods  until  twenty-four  hours 
after  all  of  them  were  landed.  This  is  the 
correct  sense  of  the  terms  of  the  policy,  and  it 
would  be  inconvenient  to  admit  a  different 
construction.  The  risk  cannot  reasonably  be 
divided  and  applied  to  separate  parcels.  It 
would  be  difficult  if  not  impossible,  under  the 
usual  circumstances  of  such  a  voyage,  to  de- 
scend to  the  minute  details  which  would  be  req- 
1 44*]  uisite,  *and  to  distinguish  the  precise 
time  of  landing  eaeh  article. 

As  to  the  second  question,  it  is  admitted 
that,  by  a  computation,  the  accuracy  of 
which  is  not  denied,  the  value  of  the  goods 
saved  did  not  amount  to  half  the  value  insured. 
The  loss  was  therefore  total,  according  to  the 
rule  which  has  been  established  where  a  moiety 
is  lost.  The  plaintiffs  having  abandoned,  are 
therefore  entitled  to  recover  for  a  total  loss. 

The  last  point  respects  the  conduct  of  the 
consignee.  After  the  abandonment  he  became 
the  agent  of  the  assurer,  and  the  disposition 
of  the  goods  saved  as  made  by  him,  while  he 
acted  bo na  fide,  ought  to  be  at  the  risk  and  for 
the  benefit  of  the  assurer.  The  loss  on  the 
sugar  and  rum,  in  which  the  proceeds  of  the 
property  saved  were  invested,  ought,  there- 
fore, to  be  charged  to  the  defendant.  The 
plaintiffs,  on  the  arrival  of  these  articles, 
tendered  to  the  defendant  the  rum  only,  but 
it  appears  that  the  rum  and  sugar  were  part  of  a 
mixed  cargo,  which  was  the  product  of  differ- 
ent funds,  and  difficult  to  be  distinguished; 
that  the  sugar  was  not  withheld  from  an  im- 
proper motive,  but  omitted  to  lie  tendered 
through  mistake,  and  that  the  assurer  wholly 
JOHNSON'S  CASES,  1. 


declined  having  anything  to  do  with  the  ship- 
ment. Under  such  circumstances  attending  a 
commercial  transaction,  and  considering  that 
the  defendant  refused  to  accept  any  part  of 
the  shipment,  I  think  the  strictness  of  a  com- 
plete tender  may  well  be  dispensed  with,  and 
that  the  plaintiff  is  entitled  to  judgment  on  the 
verdict  generally. 

The  other  judges  concurred,  except  on  the 
last  point,  as  to  which  they  were  of  opinion  that 
the  defendant  was  entitled  to  a  deduction  for  a 
proportional  part  of  the  rum  and  sugar,  by  a 
calculation  to  be  made  on  the  product  of  the 
whole  cargo. 

Judgment  for  the  plaintiffs  accordingly. 

Cited  in— 2  Johns.  Cos.,  150,  266;  2CaineCas.,  221 ;  8 
Cranch,  47 ;  3  Mason,  18,  69. 


*ENSIGN 

c. 
WEBSTER  AND  WEBSTER. 

Evidence — Receipt. 

A  receipt  in  full  for  money,  is  not  conclusive  evi- 
dence, and  parol  proof  of  a  mistake  may  be  given. 

Cases  cited— 2  Term  R.,  366;  5  Ves.,  Jr.,  87. 

THIS  was  an  action  of  asmmpnit  for  goods 
sold  and  delivered.     The  declaration  con- 
tained also  a  count  upon  an  insimul  compulas- 
sent. 

The  defendant  pleaded  non  assurnpnt  and 
payment,  with  notice  of  a  set-off.  The 
cause  was  tried  before  Mr.  Chief  Justice  Lan- 
sing, at  the  last  July  circuit  in  Albany,  when 
plaintiff  proved  that  he  and  the  defendants 
had  been  jointly  interested  in  a  manufactory 
of  paper  and  a  paper-mill;  that  on  the  20th 
October,  1795,  a  settlement  took  place,  when 
a  balance  of  126?.  Is.  Qd.  was  found  due 
from  the  defendants  to  the  plaintiff;  that  the 
defendants  were  also  partners  in  other  con- 
cerns generally,  and  one  of  them  gave  the  plaint- 
iff a  writing  in  the  following  words:  "Due 
Pere  Ensign  126?.  Is.  9d."and  desired  him  to 
keep  it,  and  promised  that  he  and  the  other 
defendant  would  give  him  their  note  for  that 
sum. 

The  plaintiff  also  read  a  letter  addressed  to 
him  by  the  defendants,  dated  6th  June,  1798, 
in  which  they  spoke  of  the  settlement  in  1795, 
and  acknowledged  to  have  seen  a  memoradum 
of  that  settlement  in  a  book  of  the  plaintiff,  but 
expressed  a  doubt  as  to  the  time  when  the 
memorandum  was  made,  and  referred  to  one 
Grant  for  information,  by  which  they  said 
they  would  be  governed. 

On  the  part  "of  the  defendants  a  receipt 
signed  by  the  plaintiff  was  offered  in  evidence 
in  the  words  following:  "Received  from  the 
30th  day  of  May  last  to  this  day,  121?.  8s.  Wd. 
in  full  for  journeymen's  wages,  and  my  part, 
of  the  profits  of  the  paper-mill  from  that  day, 
and  also  in  full  of  all  other  demands  to  this 
day,  the  journeymen's  wages,  boys'  board,  and 
in  fact,  of  all  demands  I  or  they  may  have  on 
the  said  mill  or  the  proprietors  thereof  to  this 
dav.  Witness  my  hand  the  14th  dav  of  July, 
1798. 

277 


146 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


146*]      *The  plaintiff  then  offered  to  prove 
that  there  was  a  mistake  in  the  general  terms 
of  this  receipt,  and  that  it  was  given  for  monies 
which  had  become  due  for  his  profits,  and  ! 
the  expenditures  attending  the  said  mill,  from  ' 
the  30th  May,  1798,  until  the  date  of  the  re-  j 
ceipt  only,  and  that  the  sum  of  126Z.  1*.  Qd.  [ 
due  to  him  on  the  settlement  of  1795  had  | 
never  been  paid.     This  evidence  was  over- 
ruled, and  a  verdict  was  thereupon  taken  for 
the  defendants. 

The  plaintiff  moved  for  a  new  trial,  on  the 
ground  that  the  evidence  last  mentioned 
ought  to  have  been  admitted. 

This  was  opposed  by  the  defendants,  who 
insisted  that  the  plaintiff  was  concluded  by  the 
express  terms  of  his  receipt,  and  ought  not  to 
be  allowed  to  contradict  it. 

Mr.  Spender,  for  the  plaintiff. 

Mr.  Van  Vechten,  for  the  defendants. 

LANSING,  Ch.  J.,  delivered  the  opinion  of 
the  court: 

On  the  trial  I  overruled  this  evidence  on 
the  principle  that  the  plaintiff  having  delib- 
erately acknowledged  in  writing,  on  the  14th 
July,  1798,  that  all  the  accounts  respecting 
the  paper  manufactory,  subsisting  between 
him  and  the  defendants,  had  been  fully  sat- 
isfied and  paid,  he  ought  not  to  be  permitted 
to  destroy  the  effect  of  that  acknowledgment 
by  parol  proof. 

My  reflections  on  the  subject  since,  have  con- 
vinced me  that  I  was  not  correct  in  that  opin- 
ion. A  mere  receipt  for  money  is  not  within 
the  rule  which  prohibits  a  party  from  giving 
evidence  by  parol,  or  essentially  to  vary  a 
written  agreement.  The  application  of  the 
rule  to  this  extent  would  prevent  the  correc- 
tion of  any  mistake,  however  apparent,  and 
in  many  cases  operate  unjustly. 

We  are,  therefore,  of  opinion  that  the 
evidence  ought  to  have  been  admitted,  and 
that  a  new  trial  be  awarded. 

Rule  granted.1 

Cited  in— 5  Johns.,  72 ;  12  Johns.,  531 ;  14  Wend.,  118 ; 
8  N.  Y.,  408 ;  37  N.  Y.,  314 ;  4  Trans.  App.,  247 ;  1  T.  & 
C.,  234 ;  8  Barb.,  69 ;  64  Barb.,  601 ;  *5  How.  Pr.,  449 ; 
4  Abb.  X.  S.,  246;  1  Ware,  183;  3  McLean,  267. 


147*]     *MUMFORD  P.  CHURCH. 

1.  Deposition  de  bene — Special  circumstances — 
Notice.  2.  Marine  Insurance — Abandonment 
Capture — Release  and  Arrival. 

A  deposition  taken  de  bene  esse  in  a  cause,  after 
the  writ  was  returned,  but  before  the  declaration 
was  tiled,  and  on  the  same  day  that  an  order  of  a 
judge  had  been  obtained  for  that  purpose,  was  al- 
lowed to  be  read,  the  witness  being  unexpectedly 
about  to  depart  from  the  State,  on  a  distant  voyage, 
under  circumstances  which  did  not  admit  of  delay, 

1— See  2  Term,  366;  5  Vezey,  Jun.,  87. 


NOTE.— The  doctrine  nf  the  above  coxe  as  to  aban- 
donment hat  been  xubxtantiallu  overruled.  The,  law 
is  that  the  state  of  fact*  at  the  time  the  offer  of  aban- 
donment is  made-,  and  not  the  information  of  the  in- 
sur&l,  determine*  the  right  to  abandon. 

See  Hallett  v.  Peyton,  1  Caine  Cas.,  38;  Dickey  v. 
Am.  Ins.  Co.,  3  Wend.,  658 ;  Marshall  v.  Del.  Ins.  'Co., 
4  Crunch,  202;  Rhinelander  v.  Penn.  Ins.  Co.,  4 
Cranch,  29;  Snow  v.  Union  Ins.  Co.,  119  Mass.,  592. 

27H 


and  notice  having  been  given  to  the  opposite  party 
to  attend  his  examination.  The  insured  may  aban- 
don on  receiving  information  of  the  capture  of  the 
vessel,  and  though  it  afterwards  appear  that  the 
vessel  was  restored  at  the  time  of  the  abandonment, 
but  unknown  to  the  insured,  the  abandonment  will 
be  valid ;  and  when  once  rightfully  made,  it  is  defini- 
tive, though  the  vessel  was  afterwards  released 
and  arrived  at  her  destined  port  in  safety.  But  see 
1  Caiues'  Cases  in  Error.  21-43. 

T'HIS  was  an  action  on  a  policy  of  insurance 
I  on  the  brig  Betsey,  B.  Richards  master,  at 
and  from  New  York  to  Petit  Goave,  a  French 
port  in  the  island  of  Hispaniola,  subscribed  by 
the  defendant  on  the  25th  May,  1793,  for  $1*- 
000.  The  plaintiff  declared  for  a  total  loss  by 
capture. 

On  the  trial  before  Mr.  Justice  Kent,  at  the 
New  York  circuit  in  March  last,  the  defend- 
ant's subscription  to  the  policy,  the  interest  of 
the  plaintiff,  notice  of  the  loss,  and  proof  of 
loss  and  of  interest,  and  an  abandonment  on 
the  12th  June,  1797,  were  proved  or  admitted. 
A  witness  who  had  been  called  to  prove  the 
abandonment,  in  answer  to  an  inquiry  made 
by  the  defendant's  counsel,  relative  to  the  in- 
formation which  the  plaintiff  said  he  possessed 
concerning  the  brig,  testified  that  the  plaintiff 
told  him  that  he  had  intelligence  of  her  having 
been  captured  and  carried  into  Mole  St.  Nich- 
olas for  trial.  The  plaintiff  proved  by  the  tes- 
timony of  the  mate  that  the  brig  sailed  on  the 
voyage  insured  on  the  12th  May,  1798,  and  on 
the  16th  of  the  same  month  was  captured  by 
the  British  cutter  Genet,  and  carried  into  Mole 
St.  Nicholas,  where  she  was  detained  three 
weeks,  and  restored  to  the  captain  on  paying 
charges;  that  after  her  release  she  remained  at 
that  port  three  weeks  longer,  and  that  a  part 
of  the  cargo,  consisting  of  flour,  was  sold 
there. 

A  decree  of  the  Court  of  Vice- Admiralty  at 
Mole  St.  Nicholas,  pronounced  on  the  19th  of 
June,  restoring  the  brig  on  the  payment  of 
charges,  was  also  read  in  evidence,  and  it  was 
admitted  that  this  decree,  and  the  captain's 
protest  against  it. were  delivered  to  the  defend- 
ant on  or  about  the  1st  of  July,  1798,  when 
they  were  received  by  the  plaintiff. 

*It  was  also  admitted  that  the  brig  [*148 
returned  to  the  port  of  New  York  in  Septem- 
ber following;  that  she  was  there  libelled  in 
the  District  Court  of  the  United  States  for  sea- 
men's wages,  and  after  the  usual  proceedings 
in  such  cases,  ordered  to  be  sold ;  that  she  was 
accordingly  sold  for  the  sum  of  $2,250,  and 
after  paying  the  seamen's  wages  and  other  in- 
cidental charges,  the  sum  of  |931.56  remained 
in  the  hands  of  the  proper  officer  of  that  court, 
for  the  benefit  of  whom  it  might  concern. 

The  plaintiff  then  offered  in  evidence  the  de- 
position of  B.  Richards,  the  master,  which  had 
been  taken  de  bene  esse,  before  the  recorder  of 
the  city  of  New  York,  acting  as  commissioner 
of  this  court,  under  the  following  circum- 
stances: On  the  arrival  of  the  master  in  the 
city  of  New  York  in  September,  1798,  he  found 
the  business  of  the  city  interrupted  by  the  pes- 
tilence which  then  prevailed,  and  he  immedi- 
ately left  it  for  his  place  of  residence  at  New 
London  in  Connecticut:  that  he  continued 
there  until  a  few  days  before  the  time  of  tak- 
ing his  deposition,  when  he  set  out  for  Balti- 
more to  take  the  command  of  a  ship  on  a  voy- 
JOHNSON'S  CASKS,  1. 


1799 


MUMFORD  v.  CHURCH. 


148 


age  to  the  East  Indies,  and  which  then  lay  in 
readiness  and  waiting  his  arrival.  On  his  way 
to  that  place,  he  called  on  the  plaintiff  in  New 
York,  on  the  morning  of  the  20th  of  Decem- 
ber last,  and  informed  him  of  his  intention  to 
proceed  to  Baltimore  the  next  morning  by  the 
•earliest  stage.  The  plaintiff  solicited  him  to 
postpone  his  journey  until  he  should  be  able 
to  have  his  deposition  regularly  taken  in  this 
cause,  which  he  absolutely  refused,  alleging 
that  he  had  reason  to  apprehend  that  he  should 
lose  the  command  of  the  ship  by  such  delay. 
Upon  this  an  application  was  made  to  the  de- 
fendant's attorney  to  consent  that  his  deposi- 
tion should  be  immediately  taken,  which  be- 
ing refused,  the  plaintiff  applied  to  the  re- 
corder for  an  order  to  examine  the  witness  at 
eight  o'clock  in  the  evening  of  the  same  day, 
which  was  immediately  served  on  the  defend- 
ant's atttorney,  and  the  deposition  was  accord- 
ingly taken,  de  bene  e-sse,  the  defendant's  attor- 
ney refusing  to  attend  the  examination.  At 
149*]  the  time  of  his  examination,  the  *dec- 
larution  in  this  cause  was  not  filed,  but  the 
writ  had  been  returned  served,  at  the  October 
terra  preceding.  The  defendant  objected  to 
the  reading  of  this  deposition,  which  objection 
was  overruled ;  the  deposition  being  read,  con- 
firmed the  testimony  of  the  mate,  and  further 
stated  that  the  brig  arrived  at  Mole  St.  Nich- 
olas on  the  28th  day  of  May;  that  she  was  li- 
belled by  the  captors  in  the  Court  of  Vice- Ad- 
miralty there;  that  he  (the  master)  put  in  a 
•claim  to  the  brig  in  behalf  of  the  persons  in- 
terested in  her;  that  he  was  examined  in  the 
said  court  on  the  standing  interrogatories  on 
the  7th  of  June;  that  on  the  9th  of  June  the 
brig  was  decreed  to  be  restored  on  paying  all 
the  costs  as  above  mentioned;  that  he  payed 
those  costs,  conceiving  it  to  be  for  the  interest 
of  all  concerned,  but  was  compelled  to  dispose 
of  his  flour  there  by  order  of  the  government, 
and  prohibited  from  proceeding  to  his  port  of 
destination,  and  could  obtain  permission  to  go 
to  an  English  port  only ;  that  he  therefore  cleared 
out  for  Jamaica,  and  returned  to  New  York; 
that  on  his  arrival  at  New  York,  he  applied  to 
the  defendant,  among  others,  by  the  direction 
of  the  plaintiff's  attorney,  for  instructions  how 
to  act,  and  requested  him  to  receive  the  said 
brig,  which  he  declined  to  do;  and  that  the 
plaintiff  had  not  in  any  manner,  to  his  knowl- 
edge, interfered  after  the  capture,  either  with 
the  brig,  her  freight  or  cargo. 

On  this  evidence  a  verdict  for  the  plaintiff 
was  taken  by  consent,  for  a  total  loss,  subject 
to  the  opinion  of  the  court  on  the  whole  case. 

Mr.  S.  Jones,  Jun.,  for  the  plaintiff. 

Mr.  Hamilton,  for  the  defendant. 

For  the  defendant  three  points  were  made. 

1.  Whether  the  deposition  of  the  captain 
ought  to  have  been  read. 

2.  Whether  the  plaintiff  had  a  right  to  aban- 
don, when  the  vessel  was  in  fact  restored,  be- 
fore the  time  of  making  the  abandonment. 
15O*]      *3.  Whether  the  vessel,  having  re- 
turned to  the  port  of  New  York  in  safety,  the 
plaintiff  was  not  bound  to  receive  her,  notwith- 
standing the  abandonment. 

LANSING,  Oh.  J.,  delivered  the  opinion  of  the 
court:  Under  the  circumstances  of  the  case, 
the  deposition  of  the  captain  was  properly  re- 
JOHNSON'S  CASES,  1. 


ceived.  The  examination  of  witnesses  who 
are  about  to  depart  from  this  State,  de  beneesse, 
on  a  proper  notice,  has  already  received  the 
sanction,  and  is  established  by  the  practice  of 
this  court.  If  the  rule  were  now  to  be  intro- 
duced, I  should  be  inclined  to  exclude  such  an 
examination,  but  the  court  think  it  not  ma- 
terial, whether  an  examination  be  taken  before 
or  after  issue  joined  or  the  declaration  filed. 
The  necessity  of  this  mode  of  taking  testimony 
may  as  often  occur  before  as  after  any  plead- 
ings in  the  cause.  It  is  always  more  disad- 
vantageous to  the  party  who  is  obliged  to  have 
recourse  to  this  expedient,  and  thereby  expose 
the  grounds  of  his  claim  or  defence,  than  to 
his  adversary,  who  has  to  cross-examine  mere- 
ly, and  it  may  often  be  essential  to  the  discov- 
ery of  truth  and  the  ends  of  justice.  The  no- 
tice of  the  examination  in  this  case  must  also 
be  deemed  sufficient.  The  plaintiff  gave  all 
the  time  in  his  power;  the  defendant  had  an 
opportunity  to  attend,  and  being  apprized  of 
the  necessity  of  so  short  a  notice,  he  ought  to 
have  attended,  or  submit  to  the  examination 
which  was  taken. 

The  two  remaining  points  may  be  considered 
in  one  view. 

The  condition  of  the  vessel  after  the  capture 
no  doubt  entitled  the  plaintiff  to  abandon,  and 
claim  a  total  loss.  He  did  abandon  on  the  first 
intelligence  of  her  situation,  but  the  vessel, 
without  the  knowledge  of  either  party,  was 
then  decreed  to  be  restored,  which,  it  is  con- 
tended, changed  the  total  into  a  partial  loss, 
and  deprived  the  plaintiff  of  the  right  to  aban- 
don. The  decree  was  on  the  9th,  and  the 
abandonment  on  the  12th  of  June.  Without 
deciding  how  far  the  subsequent  prohibition 
by  the  British  government  against  the  vessel's 
proceeding  to  her  port  of  destination  would 
entitle  the  assured  on  the  ship  to  abandon  and 
*claim  a  total  loss,  we  think  that  the  [*151 
abandonment  ought  to  be  supported,  as  re- 
ferring to  the  condition  of  the  vessel  previous 
to  the  decree  by  which  she  was  released.  The 
assured  in  every  case  must  act  according  to  the 
information  he  possesses.  For  the  correctness 
of  that  information  he  is  answerable,  but  he 
cannot  be  answerable  that  the  state  of  things 
which  existed  at  the  period  of  its  date,  shall 
continue.  The  plaintiff,  therefore,  had  a  right 
to  proceed,  and  make  the  abandonment  upon 
the  information  he  then  possessed;  and  the 
abandonment  being  rightfully  made,  must  be 
definitive.1  The  contrary  idea  is  inconsistent 
with  a  perfect  right  to  abandon,  and  would 
render  it  precarious  and  uncertain,  by  being 
subject  to  the  contingency  of  intermediate 
events,  and  liable  to  be  defeated.  To  preserve 
consistency  in  the  law  on  this  subject,  and  to 
establish  certainty  in  its  rules,  it  is  necessary 
to  maintain  the  conclusiveness  of  an  abandon- 
ment when  properly  made,  and  to  allow  the 
plaintiff  to  recover  for  a  total  loss. 

Judgment  for  the  plaintiff. 

Cited  in— Uohns.  Cas.,  153 ;  2  Johns.  Cas.,  363;  3 
Johns.  Cas.,  294 ;  1  Caine  Cas.,  38 ;  7  Cow.,  63,  70 ;  3 
Hill,  295 ;  7  Rob.,  459. 

1. — See  contra,  the  cases  of  Church  v.  Bedient  et  al., 
and  Peyton  v.  Hallett,  decided  in  the  Court  of 
Errors,  in  1804.  Caines's  Cases  in  Error,  vol.  1,  p. 
21-43.  But  see  Marshall,  525 ;  Pothier,  Cont.  d'Inmir., 
«.  138;  2  Emerij?.,  195,  197. 

279 


151 


SUPREME  COURT,  STATE  OK  NEW  YORK. 


179»> 


SLOCUM  AND  BURLING 

v. 
THE  UNITED  INSURANCE  COMPANY. 

Marine  Insurance — Abandonment —  Capture — 
Release  and  Arrival. 

The  Insured  may  abandon,  on  receiving  informa- 
tion of  the  capture  of  the  vessel  insured,  and  may 
recover  for  a  total  loss,  though  the  vessel  be  after- 
wards liberated  and  arrives  in  safety  at  her  port  of 
destination.  An  abandonment  when  once  properly 
made  is  definitive,  and  fixes  the  rights  of  the  parties. 

Citation— 1  Johns.  Cases,  147. 

THIS  was  an  action  on  a  policy  of  insurance 
dated  the  26th  January,  1799,  on  the  car- 
go of  the  schooner  Goliah.  from  New  York  to 
New  Orleans. 

The  cause  was  tried  before  Mr.  Justice  Kent, 
at  the  last  circuit  in  the  City  of  New  York, 
when  it  appeared  in  evidence  that  the  vessel, 
on  the  14th  February,  1799,  while  proceed- 
ing on  her  voyage,  was  taken  by  a  British  pri- 
vateer and  carried  into  New  Providence.  As 
soon  as  the  intelligence  of  her  capture  was  re- 
ceived by  the  plaintiffs,  to  wit,  on  the  16th 
March  following,  he  abandoned  his  interest  to 
the  defendants,  offering  the  usual  proofs  of 
interest  and  of  loss.  The  vessel  was  liberated 
on  the  12th  day  of  March,  which  could  not 
have  been  known  to  either  party  at  the  time 
of  the  abandonment,  and  she  afterwards 
152*]  *proceeded  on  her  voyage  with  her 
cargo,  and  arrived  in  safety  at  New  Orleans. 

Mr.  Boyd,  for  the  plaintiffs. 
Mr.  Troup,  for  the  defendants. 

The  question  submitted  to  the  court  was 
whether  the  plaintiffs  were  entitled  to  recover 
for  a  total,  or  a  partial  loss  only. 

LANSING,  Ch.  J.,  delivered  the  opinion  of 
the  court: 

We  have  already  decided  this  point  in  the 
case  of  Mumford  v.  Church,  in  the  present 
term.  The  plaintiffs  could  only  be  governed 
by  the  information  they  possessed.  On  re- 
ceiving the  intelligence  of  the  capture,  they 
were  entitled  to  abandon,  and  an  abandon- 
ment once  properly  made  is  definitive,  and 
fixes  the  rights  of  the  parties.  It  may  be  re- 
voked by  mutual  consent,  or  waived;  but 
otherwise  it  is  conclusive.1 

The  plaintiffs  are,  therefore,  entitled  to  re- 
cover as  for  a  total  loss. 

Judgment  for  the  plaintiffs. 


THAYER  v.  ROGERS. 

Pleading — Payment. 

Where  the  defendant  pleaded  two  pleas  of  pay- 
ment to  an  action  on  a  bond,  one  before  the  day  and 
the  other  at  the  day,  the  court,  on  motion,  ordered 
the  first  plea  to  be  struck  out. 

rPHE  plaintiff  declared  in  debt  on  bond,  and 
-L     the  defendant,  among  other  things,  plead- 

1. — But  see  contra,  Church  v.  Bedient  et  al.,  in  the 
Court  of  Errors,  Caines'  Cases  in  Error,  v.  1,  p. 
21-28. 

NOTE. — Abandonment,  what  determines  right  of. 
See  note  to  preceding  case,  Mumford  v.  Church. 


ed  two  pleas  of  payment,  one  before  the  day,, 
the  other,  payment  at  the  day. 

Mr.Riggs,for  the  plaintiff,  moved  to  strike  out 
one  of  those  pleas,  on  the  ground  that  it  was 
competent  for  the  defendant,  under  the  last- 
mentioned  plea,  to  give  in  evidence  payment 
before,  as  well  as  at  the  day. 

Mr.  Harison,  for  the  defendant,  replied  that 
both  pleas  were  consistent,  and  each  depended 
on  a  different  ground  of  defence,  and  were,, 
therefore,  properly  pleaded. 

Per  Curiam.  Every  matter  of  defense  that 
can  be  admitted  under  the  first  plea,  may  be- 
given  in  evidence  under  the  second.  The 
first  is,  therefore,  useless,  and  is  ordered  to  be- 
struck  out. 

NOTE.  The  defendant  also  pleaded  four 
other  pleas,  some  of  which  the  plaintiff  also- 
moved  to  strike  out;  but  *the  defense  [*153 
|  appearing  to  be  complicated,  and  the  propriety 
of  the  pleas  demanding  a  close  examination, 
the  court  did  not  think  it  a  case  sufficiently 
clear  to  discriminate  between  them,  and  inter- 
fere in  this  peremptory  manner. 

Rule  granted. 


JACKSON,  ex  dem.  KANE  and  KANE, 

v. 
STERNBERGH. 

1.  Judicial  Sales — Surplusage  in  Fi.fa. — Sher- 
iff's Return.  2.  Adverse  Possession — Tenant 
at  Will.  3.  Resulting  Trust— Sheriff's  Salf— 
Parol  Evidence. 

The  words  in  an  alias  fieri  facias,  "as  before,"  &c., 
may  be  rejected  as  surplusage,  no  previous  fi.  fa. 
having  in  fact  issued.  An  incorrect  return  by  a 
sheriff  of  the  fi.  fa.  will  not  defeat  the  sale,  or  aftect 
the  purchaser's  title.  After  a  sale  of  land  £>y  the 
sheriff  under  a  fi.  fa.  the  defendant  becomes  quasi  a 
tenant  at  will  to  the  purchaser,  and  his  possession 
is  not  deemed  adverse.  Where  a  purchase  was 
made  at  a  sheriff's  sale  by  a  person  as  agent  for  the 
plaintiff,  and  the  land  was  conveyed  to  the  agent, 
it  was  held  that  the  deed  created  a  resulting  trust 
for  the  plaintiff,  which  might  be  proved  by  petrol 
evidence. 

THIS  was  an  action  of  ejectment.  The  cause- 
was  tried  before  Mr.  Justice  Lewis  at  the 
last  Montgomery  circuit. 

The  plaintiff  offered  in  evidence  exemplified 
copies  of  a  judgment  obtained  in  this  court,  in 
favour  of  the  lessors  of  the  plaintiff  against 
the  defendant,  and  one  A.  Sternbergh,  and  of 
&n  alias  fi.  fa.  issued  thereon,  and  directed  to 
the  sheriff  of  Montgomery,  with  a  return  of 
the  sheriff  indorsed  in  the  words  following: 
"By  virtue  of  the  within  writ,  I  have  caused 
to  be  made  of  the  goods  and  chattels,  land* 
and  tenements  of  the  within  named  Peter  and 
Adam  Sternbergh,  $2,062,  parcel  of  the  debt 
and  damages  within  named,  which  said 
monies  I  have  ready,  &c.,  in  part  satisfaction 
of  the  said  debt  and  damages,  and  I  do  fur-, 
ther  certify,  that  the  said  Peter  and  Adam 
have  no  more  goods  or  chattels,  lands  or  tene- 
ments, in  my  bailiwick,  whereof  I  can  cause 
to  be  made  the  residue  of  the  said  debt  and 
damages,  or  any  part  thereof."  The  plaintiff 
then  produced  a  deed  from  the  sheriff,  con- 
veying the  premises  in  question  to  one  Cox,  he 
JOHNSON'S  CASES,  1. 


1799 


VREDENBEKGH  v.  WHITE  AND  STOUT. 


153: 


being  the  purchaser  at  the  sheriff's  sale  under 
the  execution,  and  also  a  deed  from  Cox  to 
the  lessors  of  the  plaintiff  for  the  same  prem- 
ises, executed  on  the  same  day. 

It  further  appeared  by  parol  proof,  that  Cox 
was  the  agent  or  trustee  merely  of  the  lessors 
154*]  of  the  plaintiff,  in  *making  the  pur- 
chase, and  that  the  defendant  was,  at  the  time 
of  the  sale,  in  the  actual  possession  of  the 
premises,  and  continued  in  possession  until 
the  time  of  the  trial. 

A  verdict  was  taken  for  the  plaintiff,  sub- 
ject to  the  opinion  of  the  court,  whether  he 
was  entitled  to  recover. 

On  the  argument  the  following  points  were 
made: 

1.  Whether  the  alias  fi.  fa.  was  regular,  and 
ought  to  have  been  admitted    in    evidence, 
without  showing  that  a  fi.  fa.  had  previously 
issued. 

2.  Whether  the  sheriff's  return  was  suffi- 
cient, as  it  did  not  state  that  he  had  sold  the 
lands  and  tenements  of  the  defendant  for  want 
of  goods  and  chattels ;    and  if    insufficient, 
whether  the  return  was  essential  to  the  title  of 
the  purchaser. 

3.  Whether  parol  proof  of  the  trust  in  Cox 
could  be  admitted,  and  whether  the  possession 
of  the  defendant  must  not  be  deemed  to  have 
been  adverse,  and  the  conveyance  by  Cox  to 
the  lessors  of  the  plaintiff,  therefore,  void. 

Mr.  Van  Vechten  for  the  plaintiff. 

Messrs.  Metcalf  and  Burr  for  the  defendant. 

LANSING,  Ch.  J.  The  objection  to  the  writ 
as  an  alias  fi.  fa.  is  merely  formal.  It  is  not 
pretended  that  any  previous  execution  had 
issued  against  the  defendant,  or  that  the  judg- 
ment was  in  any  manner  satisfied.  The  cir- 
cumstance of  its  being  expressed  to  be  an  alias 
could  not,  therefore,  prejudice  any  right  of  the 
defendant,  nor  could  it  vary  the  legal  effect 
of  the  writ.  I  think  that  the  clause  constitut- 
ing it  an  alifts  may  well  be  rejected  as  surplus- 
age, and  ought  not  to  be  allowed  to  defeat  a 
title  that  was  otherwise  fairly  acquired. 

If  a  former  execution  had  issued  and  a  levy 
had  been  attempted  under  the  alias,  the  court 
would  in  a  summary  way  have  redressed  the 
defendant  by  setting  it  aside  for  irregularity. 

As  to  the  return  of  the  sheriff,  it  in  effect 
shows  that  there  were  no  goods  or  chattels  be- 
longing to  the  defendant;  for  after  stating  the 
sum  which  had  been  made  of  the  goods  and 
chattels,  lands  and  tenements  generally,  it 
155*]  *certifies  that  the  defendant  had  no 
other  goods  or  chattels;  and  the  whole  sum 
levied  was  not  sufficient  to  satisfy  the  exe- 
cution. 

But  the  sheriff's  return,  in  my  opinion,  was 
not  essential  to  the  title  of  the  purchaser. 
That  title  was  not  created  by,  nor  dependent 
on  the  return,  but  was  derived  from  the  pre- 
vious sale  made  by  the  sheriff  by  virtue  of  his 
writ.  It  was  sufficient  for  the  purchaser  that 
the  sheriff  had  competent  authority,  and  sold 
and  executed  a  deed  to  him. 

The  proceedings  in  the  case  of  an  extent 
upon  an  degil  do  not  apply  to  the  writ  of  fieri 
facias.  On  the  writ  of  elegit  no  sale  can  be 
had,  but  the  sheriff  takes  an  inquisition  by  a 
jury  who  set  off  the  moiety  by  metes  and 
JOHNSON'S  CASES,  1. 


bounds.  The  inquisition  is  there  necessary  to 
be  returned,  and,  together  with  the  return, 
constitutes  the  title.  Here  the  sale  and  the 
sheriff's  deed  are  sufficient  evidence  of  the 
title,  and  if  the  purchaser  can  show  that  the 
sheriff  has  authority  to  sell  it  is  enough,  and 
he  need  not  look  farther. 

With  regard  to  the  intermediate  conveyance 
to  Cox,  it  appears  that  he  acted  as  the  agent 
of  the  lessors  of  the  plaintiff  merely,  and  re- 
ceived it  as  their  trustee.  The  consideration 
money  was  not  paid  by  him,  but  by  the  les- 
sors of  the  plaintiff,  and  a  trust  of  course  re- 
sulted for  their  benefit.  The  statute  of  frauds 
does  not,  therefore,  apply;  for  a  resulting 
trust  or  trust  by  the  act  or  operation  of  law,  is 
expressly  excepted  by  that  statute,  and  remains, 
as  at  common  law,  susceptible  of  proif  by 
parol.  If  this  were  not  the  case,  the  trust  in  this 
instance  was  executed  and  extinguished  by  the 
conveyance  of  Cox  to  the  lessors  of  the  plaint- 
iff, and  Cox  could  not  afterwards  defeat  it. 

Considering  Cox  as  a  mere  trustee,  his  pos- 
session was  in  fact  the  possession  of  the  les- 
sors of  the  plaintiff.  This  alone  is  an  answer 
to  the  argument  founded  on  the  idea  of  ad- 
verse possession.  Besides,  the  possession  of 
the  defendant  at  the  time  of  the  conveyance 
by  *Cox  to  the  lessors  of  the  plaintiff,  [*156 
can  in  no  sense  be  deemed  to  be  adverse. 
Cox  held  under  the  title  of  the  defendant,  and 
not  in  hostility  to  it;  and  the  latter  after  the 
deed  to  Cox,  became  quasi  his  tenant  at  will, 
and  would  be  deemed  to  continue  in  that 
character  until  an  actual  disseisin  or  disclaim- 
er on  his  part.  This  was  not  attempted,  and 
Cox  immediately  conveyed  to  the  lessors  of 
the  plaintiff,  who  then  became  lawfully  seized. 

On  every  ground,  therefore,  I  am  of  opinion 
that  the  plaintiff  is  entitled  to  judgment. 

RADCLIFF,  J.,  KENT,  J.,  and  BENHON,  «/., 
were  of  the  same  opinion. 

LEWIS,  J.  I  concur  in  the  opinion  which 
has  been  delivered,  and  the  reasoning  on 
which  it  is  founded,  except  as  to  the  last  point. 
I  do  not  consider  the  title  of  the  lessors  of  the 
plaintiff  as  derived  from,  'but  paramount  to 
that  of  the  defendant.  The  plaintiff's  right  to 
recover  cannot,  however,  be  affected  by  that 
circumstance,  as  Cox  was  a  mere  agent  acting 
for  the  lessors  of  the  plaintiff,  and  it  is  im- 
material whether  the  sheriff's  conveyance  was 
made  to  him,  or  immediately  to  his  principals. 

Judgment  for  the,  plaintiff. 

Cited  in— 3  Johns.,  221 ;  11  Johns.,  95,  97 ;  18  Johns., 
464 ;  4  Wend.,  481 ;  8  Wend.,  681 ;  H.  &  IX,  142 ;  1 
Johns.  Ch.,  590;  2  Paige,  238;  2  Barb.,  207;  5  Barb.. 
568 ;  11  Barb.,  407 ;  59  Barb.,  615 ;  5  Lans.,  162. 


VREDENBERGH  v.  WHITE  AND  STOUT. 

Assignment  for  Benefit  of  Creditors — Possession 
of  Debtor. 

The  possession  of  an  insolvent,  after  a  bona  Me 
assignment  of  all  his  estate,  for  the  benefit  of  all 
his  creditors,  is  not  fraudulent  when  continued  at 
the  request  and  for  the  benefit  of  his  assignees,  who 
had  used  reasonable  diligence  to  get  the  possession. 


156 


SUPREME  COURT,  STATE  OK  NEW  YORK. 


1799 


A  JUDGMENT  was  obtained  by  the  plaint- 
iff against  the  defendants,  which  was 
docketed,  and  the  roll  tiled  on  the  22d  March, 
1799. 

The  defendant  White,  on  the  12th  of  the 
same  month  had  become  insolvent,  and  on  the 
23d  he  assigned  and  conveyed  all  his  estate, 
real  and  personal,  to  Waddington  and  others, 
in  trust  for  the  benefit  of  all  his  creditors. 
The  conveyance  was  stated  in  the  case  as  in- 
tended to  be  bona  fide,  and  was  executed  at 
the  dwelling-house  of  White,  and  a  silver  cup 
was  delivered  by  him  to  the  trustees  in  the 
name  of  all  the  property.  The  trustees  did 
not  remove  any  of  the  goods  so  assigned  to 
1*>7*J  them,  but  advertised  them  for  *sale  at 
auction  on  the  30th  April  following,  at  the 
hous%  occupied  by  White.  On  the  same  day, 
to  wit:  on  the  30th  April,  &fi.  fa.  in  this  cause 
was  delivered  to  the  sheriff,  and  before  the 
hour  of  sale  was  levied  on  part  of  the  goods. 
Upon  this,  the  trustees  paid  to  the  sheriff  a 
certain  sum  of  money,  and  the  /.  fa.  was 
withdrawn,  and  they  proceeded  to  sell,  sub- 
ject to  an  agreement  that  the  money  in  the 
hands  of  the  sheriff  should  be  paid  to  the 
plaintiff,  or  returned  to  the  trustees,  as  the 
court  should  direct. 

Mr.  Pendleton,  for  the  plaintiff,  contended, 
that  the  assignment  to  the  trustees,  in  contem- 
plation of  law,  was  fraudulent  and  void;  that 
the  possession  of  the  goods  remaining  in 
White  was  a  decisive  badge  of  fraud,  and  it 
was  not  in  his  power  to  dispose  of  his  prop- 
erty to  the  prejudice  of  any  individual  creditor, 
who  had  been  more  vigilant  than  the  others. 

J/r.  Harixon,  for  the  trustees,  insisted,  that 
under  the  circumstances  of  this  case,  the  pos- 
session remaining  in  White  was  no  evidence 
of  fraud.  It  was  a  conveyance  for  the  benefit 
of  all  the  creditors,  and  no  actual  fraud  is 
pretended. 

LANSING,  Ch.  J.,  delivered  the  opinion  of 
the  court: 

The  possession  of  the  goods  did  not  con- 
tinue in  White  for  his  own  use  or  benefit. 
They  were  left  with  him  for  the  accommoda- 
tion of  the  trustees,  who,  as  representing  all 
the  creditors,  could  have  no  personal  interest 
in  removing  them.  No  false  credit  was  cre- 
ated, and  the  sale,  which  was  within  a  reason- 
able time,  does  not  appear  to  have  been  ac- 
celerated by  the  claim  of  the  plaintiff.  The 
possession  of  White  was  therefore  not  material, 
and  was  consistent  with  the  real  intent  of  the 
assignment.  It  is  admitted  that  there  was  no 
intention  of  fraud,  and  the  assignment  being 
for  the  benefit  of  all  the  creditors,  ought  to  be 
considered  as  valid. 

Let  the  money  in  the  hand*  of  the  sheriff  be 
repaid  to  the  trustees. 


1  :>8*]     *DENN,  ex  dem.  WILKINSON, 

v. 
DODDS. 

Usury — Deals  upon  Trusts. 

An  absolute  deed  of  conveyance  of  reul  estate 
upon  trusts,  was  not  allowed  to  be  act  aside  on  the 
ground  of  usury. 

2S2 


THIS  was  an  action  of  ejectment,  for  a  lot 
of  land  in  the  city  of  New  York. 

The  cause  was  tried  before  Mr.  Justice 
Kent,  at  the  New  York  Circuit,  in  March 
last.  The  plaintiff  proved  that  his  lessor  was 
in  possession  of  the  premises  for  one  year  and 
upwards,  before  the  defendant  came  into  pos- 
session, and  that  the  defendant  claimed  to 
hold  under  or  through  the  lessor.  Upon  this 
evidence  the  plaintiff  rested  his  cause;  and  the 
defendant  moved  for  a  nonsuit,  insisting  that 
he  ought  not  to  be  put  on  his  defense;  which 
motion  was  overruled. 

The  defendant  then  produced  and  proved  a 
certain  indenture,  bearing  date  the  7th  day  of 
February,  1797,  made  between  the  lessor  of 
the  plaintiff,  and  Elizabeth,  his  wife,  on  the 
one  part,  and  William  Fosbrook  on  the  other 
part,  purporting  to  be  a  deed  of  trust,  and  re- 
citing three  several  mortgages,  one  bearing 
date  the  5th  January.  1796,  made  by  the  lessor 
of  the  plaintiff  to  the  defendant,  of  the  prem- 
ises, for  securing  the  payment  of  £400  and 
interest,  on  the  15th  day  of  May  next,  one 
other  mortgage  bearing  date  the  14th  June, 
1796,  of  the  premises,  for  securing  the  pay- 
ment of  the  further  sum  of  £600  and  interest, 
on  the  4th  of  December  then  next,  and  another 
indenture  of  mortgage  bearing  date  the  18th 
day  of  August,  1796,  for  securing  to  the  de- 
fendant the  further  sum  of  £300  with  the 
interest,  on  the  4th  day  of  December  next,  as 
well  of  the  premises  as  of  twenty-five  feet 
square,  adjoining  the  rear  end  thereof,  as  also 
of  the  equity  of  redemption  of  another  lot  of 
land,  which  was  subject  to  the  payment  of 
£500  by  a  prior  mortgage  to  William  Alex- 
ander. *  "In  consideration  of  which  said  seve- 
ral mortgages,  and  of  the  sum  of  10*.  by  the  said 
William  Fosbrook  to  the  said  lessor  of  the 
plaintiff  paid,  «fec.,  the  said  lessor  of  the 
plaintiff  did,  by  the  said  first  mentioned  in- 
denture, grant, "release,  and  convey  to  the  said 
William  *Fosbrook,  forever  (subject,  [*15O 
nevertheless,  to  the  mortgage  aforesaid  to  the 
said  William  Alexander),  all  and  singular  the 
premises,  &c.,  in  the  said  several  mortgages 
described,  upon  trust;  and  that  Fosbrook,  his 
heirs  and  assigns,  should  permit  and  suffer 
the  lessor  of  the  plaintiff  (by  and  with  the  ap- 
probation and  consent  of  the  defendant,  his 
heirs  and  assigns,  in  writing,  but  not  other- 
wise) at  any  time  before  the  1st  day  of  May 
then  next,  to  contract  and  agree  with  any  per- 
son or  persons  whomsoever,  either  publicly  or 
privately,  for  the  sale  in  fee-simple  (subject  to 
the  said  mortgage  debt  of  £500  and  interest, 
so  due  to  the  said  William  Alexander  as  afore- 
said), of  all  the  premises  aforesaid,  or  any 
part  thereof,  for  cash;  and  that  the  said  Fos- 
brook, his  heirs  and  assigns,  should  and 
would  ratify  and  confirm  such  contract  and 
agreement,  on  receipt  of  the  purchase  money. 
And  in  case  the  lessor  of  the  plaintiff  should 
not  make  and  conclude  any  such  contract  for 
the  sale  of  the  whole  of  the  said  premises  be- 
fore the  said  1st  day  of  May  then  next ;  then  upon 
trust  that  the  said  William  Fosbrook,  his  heirs 
and  assigns,  at  any  time  thereafter,  and  on  or 
before  the  20th  dav  of  May  then  next,  should 
sell  and  dispose  of  the  said  premises,  or  such 
part  thereof  as  should  not  be  contracted  for 
as  aforesaid,  subject  to  the  said  mortgage 
JOHNSON'S  CASK*,  1. 


1799 


SPALIJERG  v.  WALROD. 


159 


debt  of  £500  and  interest  so  due  to  the  said 
William  Alexander,  at  public  vendue,  for  the 
best  price  or  prices  that  could  be  had  for  the 
same,  and  the  moneys  arising  from  the  sale  of 
the  premises  aforesaid,  either  by  the  contract 
of  the  lessor  of  the  plaintiff  or  otherwise, 
after  satisfying  tthe  costs  of  the  same  indent- 
ure, and  of  such  sales,  he,  the  said  William 
Fosbrook,  his  heirs  and  assigns,  should  and 
would  apply  in  the  first  place  to  the  payment 
of  the  three  several  mortgage  debts  first  men- 
tioned, and  the  interest  thereon,  unto  the  de- 
fendant, his  executors,  administrators  and 
assigns,  and  in  the  next  place  to  the  payment 
of  the  sum  of  £206  15s.  due  to  the  defendant  on 
a,  judgment,  and  of  a  sum  of  £25  due  to  John 
Sleght  &  Co.  for  shingles;  and  after  payment 
of  the  said  several  sums  respectively,  the  sur- 
16O*]  plus  money,  if  *any,  arising  from  such 
sales,  should  be  paid  to  the  lessor  of  the 
plaintiff,  his  executors,  administrators,  or 
assigns."  It  was  again  moved  by  the  counsel 
on  the  part  of  the  defendant,  that  the  plaintiff 
should  be  called  to  produce  further  evidence, 
or  be  nonsuited. 

The  plaintiff  then  called  on  the  defendant  to 
produce  the  three  several  mortgages  made  by 
the  lessor  of  the  plaintiff  and  recited  in  the 
aforesaid  deed  of  trust,'  and  the  defendant 
having  refused  to  produce  the  same,  the 
plaintiff  offered  William  Alexander  as  a  wit- 
ness, to  prove  that  the  mortgages,  which  were 
part  of  the  considerations  of  the  said  trust 
deed,  were  usurious,  and  made  to  secure  the 
payment  of  money  lent  to  the  lessor  of  the 
plaintiff  at  usurious  interest;  and  also  to  prove 
that  the  trust  to  pay  John  Sleght  &  Co.  £25 
for  shingles  (which  it  was  admitted  was  not  a 
usurious  debt),  was  fulfilled  by  the  trustee. 
The  plaintiff  also  offered  to  prove  that  all  the 
premises  mentioned  in  the  trust  deed  had 
been  sold  and  conveyed  by  the  trustee,  in  pur- 
suance of  the  trust  to  Quinten  Millen,  who 
had  become  a  nominal  purchaser,  but  in  fact 
had  purchased  for  the  benefit  of  the  defend- 
ant and  had  accordingly  conveyed  the  premises 
to  the  defendant;  to  produce  which  conveyance 
the  plaintiff  had  given  the  defendant  notice. 

Upon  this  the  judge  at  the  trial  ruled  that 
admitting  the  proofs  offered  by  the  plaintiff, 
the  considerations  expressed  in  the  deed  of 
trust  were  sufficient  to  sustain  it,  and  showed 
a  title  out  of  the  lessor  of  the  plaintiff,  and, 
therefore,  ordered  the  plaintiff  to  be  called, 
and  a  nonsuit  to  be  entered. 

Mr.  Evertson,  for  the  plaintiff,  moved  to  set 
aside  the  nonsuit,  on  the  ground  that  the 
considerations  of  the  conveyance  to  Fosbrook, 
except  as  to  the  debts  due  to  Sleght  &  Co., 
were  usurious,  and  the  conveyance  therefore 
void,  and  that  the  debt  to  Sleght  &  Co.  had 
been  paid,  and  the  trust  being  so  far  executed, 
no  legal  consideration  remained  to  uphold  the 
conveyance. 

161*]  *Mr.f}t/rr,for  thedefendant, contend- 
ed that  the  conveyance  was  valid  and  not  within 
the  statute  against  usury.but  that  if  it  were  with- 
in that  statute, the  consideration, so  far  as  it  was 
founded  on  the  debt  due  to  Sleght  &  Co.,  was 
not  usurious,  and  being  good  in  part,  it  was 
sufficient  to  support  the  conveyance,  which 
could  not  be  avoided  by  a  partial  and  subse- 
quent execution  of  the  trust. 
JOHNSON'S  CASES,  1. 


Per  Curiam.  We  are  of  opinion  that  the 
consideration  of  the  deed  of  trust  was  suffi- 
cient, and  that  it  was  not  a  conveyance  within 
the  statute  against  usury.  That  statute  ap- 
plies to  contracts  and  assurances  by  way  of 
security  for  existing  debts  only.  This  was 
not  a  security,  but  an  absolute  conveyance 
upon  trusts,  and  operated  as  a  payment  or 
satisfaction  of  the  debts  mentioned  in  it, which 
debts,  upon  the  performance  of  the  trusts, 
would  be  discharged  and  extinguished.  It  was 
an  act  done  in  execution  of  the  previous  con- 
tracts by  which  the  usurious  debts  were  cre- 
ated, and  nothing  but  the  trusts  remained  for 
the  benefit  of  the  grantor.  An  act  of  this  nat- 
ure cannot  be  rescinded  on  the  ground  of 
usury.  If  that  were  permitted  in  the  case  of 
an  absolute  conveyance,  or  a  conveyance  upon 
trusts,  the  consequences  would  be  extensively 
injurious.  No  man  could  be  safe  in  his  title 
to  real  property,  if  the  question  of  usury 
might  at  any  time  be  opened  to  impeach  the 
consideration  and  validity  of  the  deeds  under 
which  he  claimed. 

It  is  obvious  that  the  doctrine  to  this  extent 
could  not  be  tolerated. 

Motion  denied. 

Cited  in-2  Hill,  524;  6  N.  Y.,  113;  89  N.Y.,  276;  5 
Barb.,  302;  11  Barb.,  88. 


*SPALBERGH  o.  WALROD.  [*1O2 

Costs — Trespass — Verdict  far  ten  dollars. 

In  an  action  of  trespass  quare  domum  fregit,  and 
for  assault  and  battery,  &c.,  and  a  general  verdict 
for  the  plaintiff  for  $10  damages,  the  plaintiff  was 
allowed  to  recover  costs. 

THE  plaintiff  declared  in  trespass  quare  d*>- 
murnfrefftt,and  for  an  assault  and  battery  on 
his  daughter  and  debauching  her,  per  quod 
servitium  ammt,  &c. 

On  the  trial  the  plaintiff  obtained  a  verdict 
with  $10  damages. 

Mr.  Gold,  for  the  defendant,  moved  for  costs 
against  the  plaintiff,  on  the  ground  that  this 
was,  essentially,  an  action  on  the  case,  and  not 
within  the  spirit  or  intent  of  the  act  allowing 
costs  in  actions  of  trespass  quare  dausumfrcgit, 
or  in  assault  and  battery,  where  the  recovery 
exceeds  forty  shillings.  (10  Sess.,  c.  14.) 

Mr.  VanVechten,  for  the  plaintiff,  contended 
that  this  was  properly  an  action  of  trespass 
for  entering  the  plaintiffs  house,  and  this 
alone,  without  regarding  the  other  charges 
laid  in  the  declaration,  was  sufficient  to  entitle 
the  plaintiff  to  costs. 

LANSING,  Ch.  J., delivered  the  opinion  of  the 
court: 

The  application  respects  the  costs  only;  we 
are,  therefore,  not  now  to  consider  whether 
the  declaration  contains  separate  counts  or 
blends  in  the  same  count  different  causes  of 
action  which  cannot  be  joined.  One  of  tilt- 
injuries  complained  of  is  the  breaking  the 
plaintiff's  house,  and  of  this  the  defendant  is 
found  guilty  by  the  verdict,  which  is  general, 
and  applies  to  all  the  matters  charged  in  the 

283 


162 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


declaration.  The  plaintiff  is  therefore  en- 
titled to  costs,  instead  of  being  liable  for  costs 
to  the  defendant. 

Rule  refused. 
Cited  in  -18  Wend.,  618 ;  10  How.  Pr.,  408. 


163*]*  JACKSON,  ex  dem.  COODER  ET  AL. 

0. 
WOODS. 

Witts — Husband  or  Wife  as  Witness — Letters 
on  Beneficiary. 

If  either  husband  or  wife  be  a  witness  to  a  will 
containing'  a  devise  or  legacy  to  either,  such  devise 
is  void  by  the  statute  concerning-  wills ;  and  the  de- 
visee or  lagatee  thereby  becomes  a  competent  wit- 
ness to  the  will. 

Citations— Ld.  Raym.,  505;  Carth.,  514;  2  Stra., 
1253 ;  and  see  1  Burr.,  414 ;  note  to  Day  Cas.  in  Error 
(Conn.),  41-48. 

THIS  was  an  action  of  ejectment.  The  jury 
found  a  special  verdict  which  in  substance 
stated  that  S.  Ellis  died  seized  of  the  premises 
in  question;  that  the  lessors  are  his  heirs;  that 
the  said  Ellis,  in  the  year  1794,  made  his  will 
and  devised  the  premises  to  a  person  under 
whom  the  defendant  claims ;  that  he  also  thereby 
devised  tooneRiley  a  lot  of  land,  not  part  of  the 
premises,  for  life,  and  bequeathed  to  him  a 
legacy  of  £100,  and  devised  another  part  of  his 
estate  to  the  lessors  of  the  plaintiff, and  shortly 
thereafter  died;  that  the  said  Riley  also  died 
soon  after  the  testator;  that  the  will  was  exe- 
cutec  in  the  presence  of  three  witnesses, one  of 
whom  was  the  wife  of  Riley;  that  the  will  was 
proved  on  the  trial  by  one  of  the  other  sub- 
scribing witnesses,  and  they  found  a  verdict 
for  the  plaintiff ,if  the  court  should  be  of  opin- 
ion that  the  will  was  not  duly  executed,  other- 
wise for  the  defendant. 

Mr.  Troup,iov  the  plaintiff, contended  that  the 
wife  of  Riley  was  not  a  competent  witness  to 
establish  the  will,  which  contained  a  devi.se 
and  bequest  to  her  husband,  and  that  without 
her  the  will  did  not  appear  to  be  duly  exe- 
cuted in  the  presence  of  three  witnesses,  as  is 
required  by  the  statute. 

Mr.  C.  I.  Rogert, contra, insisted  that  thedevise 
and  bequest  to  the  husband  were  void  within 
the  6th  section  of  the  statute  concerning  wills 
(Stat.  3d  March,  1787,  which  in  this  respect  is 
the  same  as  the  Stat.  25  Geo.  II.,  c.  6),  and 
that  the  wife  was  therefore  a  competent  wit- 
ness. 

LANHENO,  Ch.  J.  The  decision  of  this  cause 
depends  on  the  single  point  whether  the  wife 
of  Riley  is  a  credible  witness,  within  the  in- 
tent of  the  statute  concerning  wills.  On  the 
question  whether  a  credible  witness  means  a 
competent  witness,  since  the  statute,  and 
whether  his  credibility  or  competency  shall 
relate  to  the  time  of  attestation,  or  to  the  time 
lO4*]of  his  examination, much  *learningand 
ingenuity  have  been  formerly  displayed.  The 
arguments  of  Lord  Mansfield  and  Lord  Cam- 
den,  both  deservedly  celebrated  for  their  legal 
discernment,  have  so  fully  developed  the 
2*4 


principles  which  bear  upon  this  point,  as  to- 
leave  only  the  alternative  of  adopting  one  or 
the  other  of  their  opinions  on  their  own  rea- 
soning, if  the  question  cannot  be  determined 
on  authority. 

The  6th,  7th,  and  8th  sections  of  our  statutes 
are  transcripts  from  the  25  Geo.  II.,  chap.  6, 
sec.  1,  2,  3,  4,  5  and  6. 

The  6th  section  provides,  "  that  if  any  per- 
son hath  attested  the  execution  of  any  will  or 
codicil,  after  the  1st  day  of  March,  1753  or 
shall  attest  the  examination  of  any  will  or 
codicil  thereafter  to  be  made,  to  whom  any 
beneficial  devise,  legacy,  estate,  interest,  gift 
or  appointment  of,  or  affecting  any  real  or 
personal  estate  (other  than  for  payment  of 
debts),  shall  be  thereby  given,  such  devise, 
legacy,  estate,  interest,  gift  or  appointment, 
shall,  so  far  only  as  concerns  such  person  at- 
testing the  execution  of  such  will,  or  any  per- 
son claiming  under  him,  be  utterly  null  and 
void,  and  such  person  shall  be  admitted  as  a 
witness  to  the  execution  of  such  will  or  codi- 
i  cil." 

The  7th  section  directs  that  creditors  may 
I  be  witnesses  in  cases  where  real  estate  is 
charged  by  the  will  with  the  payment  of  debts, 
and  that  any  person  having  attested  the  exe- 
cution of  a  will  or  codicil,  on  or  before  the  1st 
day  of  March,  1753,  to  whom  any  legacy  or 
bequest  is  thereby  given,  whether  charged 
upon  lands,  tenements,  or  hereditaments  or 
not,  who  has  been  paid,  accepted  or  released, 
or  refused  to  accept  such  legacy  or  bequest 
upou  tender,  shall  be  admitted  as  a  witness  to 
prove  the  execution  of  such  will  or  codicil, 
and  if  he  died  in  the  testator's  lifetime,  or  be- 
fore he  received,  released,  or  refused  on  ten- 
der, he  shall  be  a  legal  witness. 

In  reviewing  these  different  provisions,  it  is 
obvious  that  the  English  statute  which  we 
have  literally  adopted  in  our  revised  laws,  did 
not  originally  lay  down  an  uniform  rule  by 
which  to  test  the  cases  which  had*aris-[*l<55 
en  before  and  subsequent  to  the  period  men- 
tioned in  the  statute.  This  variance  was  evi- 
dently dictated  by  motives  of  expediency.  It 
evinced  a  disposition  in  the  Legislature  by  posi- 
tive provision,  to  remove  doubts  which  exist- 
ed as  to  the  true  construction  of  the  statute 
of  29  Car.  II.,  c.  3,  but  to  adapt  these  pro- 
visions as  nearly  as  possible  to  the  situation  in 
which  the  subject  had  been  placed  by  the 
collision  of  judicial  opinions. 

This  is  to  be  traced  from  the  different  and 
discordant  remedies ;  for  in  all  cases  which 
occurred  before  the  1st  of  March,  1753,  an  ex- 
tinguishment of  the  legacy  constituted  the 
legatee  a  credible  witness,  but  in  cases  which 
occurred  after  that  day,  the  absolute  and  un- 
conditional avoidance  of  the  devise  or  legacy 
placed  him  in  the  same  situation  as  to  credi- 
bility ;  thus  in  the  one  case  permitting  the 
legatee  to  avail  himself  of  the  bequest,  and 
imposing  it  on  the  party  who  was  interested 
to  procure  his  testimony,  to  provide  for  ite 
!  satisfaction  ;  in  the  other,  creating  an  insur- 
|  mountable  obstacle  to  its  enuring  to  his  bene- 
i  fit,  by  completely  disqualifying  him  from 
taking  under  it. 

From  these  provisions  no  satisfactory  infer- 

i  onoe  can  be  drawn  of  the  sense  of  the  British 

'.  Parliament,  as  to  what  was  the  law  before  the 

JOHNSON'S  CASES,  1. 


1799 


JACKSON,  EX  DEM.  COODER  ET  AL.,  v.  WOODS. 


165 


passing  of  the  statute.  This  may,  in  some 
measure,  be  accounted  for  from  the  nature  of 
the  subject.  The  requiring  of  witnesses  with 
•certain  qualifications,  was  novel  in  the  Eng- 
lish law.  To  guard  effectually  against  fraud, 
by  removing  the  semblance  of  temptation  to 
commit  it,  was  a  desirable  object.  The  doc- 
trine of  the  common  law,  that  the  credibility 
of  the  witness  must  be  determined  at  the  time 
of  his  production,  from  his  then  actual  situ- 
ation, might  expose  him  to  be  practiced  upon. 
These  considerations  dictated  the  expediency 
of  applying  a  radical  cure  to  the  evil.  But 
the  remedy  has  as  little  analogy  to  the  one  as  to 
the  other  opinion,  which  seems  to  have  ob- 
tained before  the  statute,  the  one  holding  that 
a  release,  &c.,  would  make  the  witness  com- 
petent, and  restore  his  credibility  if  he  was  a 
devisee  ;  the  other  merely  including  the  lega- 
166*]  tee  as  a  witness,  *and  leaving  him  to 
seek  satisfaction  from  the  personal  assets  of 
the  testator,  by  the  aid  of  the  testimony  of 
other  witnesses,  which  his  own  incompetency 
would  preclude  him  from  effecting.  The 
statute,  however,  avoided  both  devise  and 
legacy. 

In  "the  case  of  Billiard  v.  Jennings  (Ld. 
Raym.,  505 ;  Garth.,  514),  it  was  held  that  a 
devisee  was  not  a  credible  witness  within  the 
purview  of  the  statute. 

In  the  case  of  Holdfast,  ex  dern.  Anstey,  v. 
Dowsing  (2  Stra. ,  1253),  John  Hailes  was  one 
of  the  witnesses  to  the  will  of  James  Thomp- 
son, by  which  an  annuity  of  £20  per  annum, 
charged  on  the  real  and  personal  estate  of  the 
testator,  was  given  to  Elizabeth,  the  wife  of 
John  Hailes,  for  her  life,  and  to  her  separate 
use  ;  and  to  Hailes  and  his  wife,  each  a  lega- 
cy of  £101.  Twenty  pounds  was  tendered  to 
Hailes,  for  the  legacies  to  him  and  his  wife, 
which  he  refused  to  accept.  Chief  Justice  Lee, 
and  the  other  judges  of  the  K.  B.,  ruled  that 
Hailes  was  not  a  credible  witness  within  the 
intent  of  the  statute  of  frauds. 

From  the  case  of  Brinee  v.  Lloyd  (1  Vesey, 
503),  it  appears  that  the  case  of  Anstey  v.  Dorr- 
xitig  was  brought  into  the  Exchequer  Cham- 
ber, where  there  was  a  difference  of  opinion 
among  the  judges,  but  the  parties  having  com- 
promised, it  was  not  determined. 

After  the  stat.  of  25  Geo.  II.  was  passed, 
the  first  case  found  in  the  books  was  deter- 
mined in  the  Court  of  K.  B.,  (28  Geo.  II).  It 
was  the  case  of  Wyndluimv.  Chetwynd  (IBurr., 
414),  on  the  will  of  Walter  Chetwynd,  dated 
the  14th  day  of  May,  1750,  and  consequently 
prior  to  the  statute  of  25  Geo.  II.  This  will 
contained  a  devise  subjecting  the  testator's 
real  estate  to  the  payment  of  his  debts,  and 
three  of  his  creditors  were  witnesses  to  its  exe- 
cution. 

The  clause  in  that  statute  respecting  credit- 
ors who  were  witnesses,  has  fully  established 
their  credit ;  for  the  statute,  as  far  as  it  re- 
lates to  creditors,  has  a  retrospective  effect, 
and  was  evidently  intended  as  declaratory. 
This  renders  the  ground  the  Court  of  C.  B., 
took  on  that  occasion,  an  unaccountable  cir- 
167*]  *cumstance  ;  for  instead  of  deciding 
the  case  on  the  positive  provisions  of  the  stat- 
ute, Lord  Mansfield  resorts  to  a  train  of  reason- 
ing, as  if  that  statute  did  not  exist,  and  dis- 
cusses the  doctrine  of  the  competency  and 
JOANSON'S  CASES,  1. 


credibility  of  the  witnessess  in  a  very  clear 
and  elaborate  argument.  His  argument,  how- 
ever, throughout  is  intended  as  a  vindication 
of  the  point  that  an  interested  witness  at  the 
time  of  attestation  may,  by  being  devested  of 
his  interest  at  the  time  of  his  examination,  be- 
come credible. 

The  case  of  Doe,  ex  dem.  Kindson,  v.  Ker- 
sey,1 arose  on  a  will  of  John  Knott,  which  took 
effect  before  the  statute  of  Geo.  II.  By  the 
will  an  estate  was  devised  to  trustees  for  the 
use  of  the  poor  of  the  town  of  Maulsmeaburn. 
Two  of  the  witnesses  were  trustees,  and  all 
were  seized  of  land  in  fee-simple  in  the  town- 
ship. The  two  trustees  had,  before  the  trial, 
released  all  their  interest  under  the  will  to 
their  co-trustees,  and  had  devested  themselves 
of  their  estates.  It  was  held  by  Clive,  /. , 
Bathurst,  J.,  and  Gould,  J.,  against  Pratt,  Oh. 
J.,  that  the  release  and  devesting  themselves 
of  their  interest  had  made  them  competent 
witnesses. 

From  this  it  appears  that  both  in  the  K.  B. 
and  C.  P.,  in  England,  the  same  doctrine  has 
been  supported  by  the  last  adjudications  on 
the  point,  to  wit,  that  the  credibility  of  the 
witness  is  to  be  tested  from  his  situation  at  the 
time  of  examination,  and  not  at  the  time  of 
his  attestation.  These  opinions  have  been 
acquiesced  in;  they  govern  as  authority;  they 
had  the  force  of  authority  before  our  rev- 
olution, and  I  think  as  far  as  they  apply  to 
the  present  case,  they  ought  to  be  conclusive. 

In  the  present  case  the  evidence  of  the 
interest  of  the  witness,  which  is  only  conse- 
quential, cannot  operate  to  affect  the  interest 
of  the  devisee,  her  husband.  It  is,  therefore, 
not  a  case  within  the  statute,  and  she  has  not 
even  an  interest  of  any  kind  at  present.  Her 
husband's  estate,  which  he  took  as  devisee,  ex- 
pired with  his  life;  and  it  does  not  *ap-  [*168 
pear  that  he  has  any  interest  in  the  pecu- 
niary legacy.  She  is,  therefore,  in  my  opinion, 
a  credible  witness  within  the  intent  of  the 
statute. 

I  cannot  discover  that  the  unity  of  person, 
in  legal  construction,  attributed  to  the  husband 
and  wife,  brings  this  case  within  the  purview 
of  that  part  of  the  statute  which  avoids  the 
legacy;  for  I  think  that  the  statute,  which  is 
intended  to  derogate  from  a  common  right,  is 
not  to  be  extended  by  construction  beyond  the 
precise  object  described  in  it.  The  husband 
and  wife,  with  respect  to  legacies,  are  consid- 
ered as  distinct,  each  possessing  the  power  of 
acquiring  property  in  that  mode;  and  if  she  is 
a  legatee,  and  her  husband  does  not  obtain 
satisfaction  of  the  legacy  in  his  lifetime,  it 
survives  to  her.  Several  other  cases  might  be 
put  to  show  that  the  legal  existence  of  the 
wife  is  not  so  completely  merged  in  that  of 
her  husband  as  the  generality  of  the  doctrine 
respecting  it  seems  to  import.  Upon  the 
whole,  I  am  of  opinion  that  judgment  should 
be  rendered  for  the  defendant. 

LEWIS,  J.,  concurred. 

BENSON,  J.  I  agree  to  the  result  of  the 
opinion  delivered  by  the  Chief  Justice,  but  for 

1. — Decided  in  Easter  Term,  1765,  and  published 
separately  in  1766,  in  4to.  It  is  printed  in  a  note,  in 
Day's  Cases  in  Error.  (Connecticut),  p.  41-S8.) 


168 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


different  reasons.  My  opinion  is  founded 
solely  on  the  ground  that  the  unity  of  husband 
and  wife,  in  legal  contemplation,  is  such,  that 
if  either  be  a  witness  to  a  will  containing  a 
devise  or  legacy  to  the  other,  such  devise  or 
legacy  is  void  within  the  intent  of  the  statute. 
This  is  a  simple  rule  dictated  by  common 
sense.  The  reason  of  the  provision  contained 
in  the  statute,  applies  equally  to  the  present 
case,  and  I  think  it  ought  to  receive  a  liberal 
construction  in  support  of  a  will.  I  consider, 
therefore,  both  the  devise  and  legacy  to  Riley 
as  void;  that  his  wife  is  thus  a  competent  wit- 
ness, and  that  the  will,  as  to  the  other  dispo- 
sitions in  it,  was  duly  executed.  « 

KENT,  J.,  and  RADCLIFF,  J.,  were  of  the 
same  opinion. 

Judgment  for  the  defendant. 
Cited  in— 2  Johns.  Cas.,  315. 


169*]    *SHELDON  v.  M'EVERS. 

Practice — Rule  to  join  in  error — Sri.  fa.  ad.  and 
convey. 

In  error  from  a  court  of  common  pleas,  the 
plaintiff  may  proceed  by  a  rule  on  the  defendant  to 
join  in  error,  or  by  a  sctre  facias  ad  audiendum 
errorea. 

IN  error  from  the  Court  of  Common  Pleas, 
of  the  County  of  Albany. 
Mr.    Yates,  for  the  plaintiff  in  error,  pro- 
duced an  affidavit  of  the  due  service  of  a  rule 
requiring  the  defendant  to  join  in  error,  or 
that  the  defendant  be  heard  ex-parte,  and  he 
moved  to  be  heard  accordingly. 

The  only  question  was,  whether  this  pro- 
ceeding by  rule  was  regular. 

Per  Curiam.  The  plaintiff  may  proceed  by 
rule  to  join  in  error  only,  or  by  set.  fa.  ad.  and. 
errores,  and  as  the  defendant  does  not  appear, 
let  the  judgment  be  reversed  of  course. 

Judgment  reversed. 


PRIOR  v.  JACOCKS. 

Set-off — Plea — Payments  to  Payee — Action  by 
Indorsee. 

In  an  action  on  a  promissory  note  by  the  indorsee 
against  the  maker,  the  defendant  pleaded  non  as- 
sumpxit,  and  payment  as  to  all,  except  40  cents,  and 
payment  of  the  40  cents  to  the  payee  of  the  note  be- 
fore it  was  indorsed,  and  gave  notice  of  a  set-off  of 
large  sums  of  money  paid  to  the  payee,  and  other 
sums  due  to  him  from  the  payee  for  goods  sold  and 
delivered,  it  was  held  that  the  defendant  cannot  set 
off  more  than  the  sum  pleaded ;  and  that  payments 
made  to  the  payee  of  a  note  cannot  be  set  up  against 
t  tic  indorsee  in  an  action  against  the  maker. 

THIS  was  an  action  brought  by  the  plaintiff 
as  indorsee  of  a  promissory  note  made  by 
the  defendant  to  one  Clark,  dated  5th  Decem- 
ber, 1796,  and  payable  to  him  or  order,  in 
three  months. 

The  declaration  was  in  the  usual  form,  and 
the  defendant  pleaded:  1st.  Non  assumptdt 
generally;  2d.  Non  assumpsit,  as  to  all  the 
sum  contained  in  the  note,  except  40  cents, 
286 


and  payment  of  the  40  cents  to  Clark  before 
the  indorsement  to  the  plaintiff,  with  a  notice 
subjoined  to  the  last  plea,  that  he  would  give 
in  evidence,  and  set  off  several  large  sums  of 
money  paid  to  Clark,  and  other  sums  for 
which  Clark  was  indebted  to  him  for  goods 
sold  and  delivered,  &c. 

The  plaintiff  replied  that  the  defendant  had 
not  paid  the  said  40  cents,  &c.,  and,  there- 
upon issue  was  joined. 

*On  the  trial  the  plaintiff  proved  the  [*1 7O 
note  and  indorsement,  and  admitted  the  pay- 
ment of  the  40  cents. 

The  defendant  then  offered  to  prove  further 
payments  to  Clark,  which  evidence  was  ob- 
jected to  by  the  plaintiff  and  overruled  by  the 
judge.  A  verdict  was  found  for  the  plaintiff, 
for  the  amount  of  the  note,  deducting  the  40 
cents. 

The  defendant  applied  for  a  new  trial,  on 
the  ground  that  evidence  of  further  payments 
to  Clark  ought  to  have  been  admitted. 

Mr.  Henry  for  the  plaintiff. 
Mr.  Spencer  for  the  defendant. 

BENSON,  J.,  delivered  the  opinion  of  the 
court: 

Admitting  the  payment  of  the  40  cents 
to  Clark  to  have  been  properly  pleaded, 
the  defendant  could  not,  under  this  notice, 
prove  a  payment  beyond  that  sum.  If  the 
action  had  been  in  debt,  the  plaintiff  as  to  that 
plea  might  have  entered  a  notte  prosequi  as  to 
the  40  cents,  and  prayed  final  judgment  for 
the  residue.  In  the  present  case,  he  might 
have  made  the  like  entry,  and  then  prayed  in- 
terlocutory judgment,  and  he  would  have 
been  equally  entitled  to  the  residue  on  an 
assessment  of  damages. 

Besides,  the  defendant  could  not,  under  this 
notice,  set  off  any  demand  founded  on  mutual 
dealings  between  him  and  the  payee  of  the 
note,  who  is  not  a  party  to  the  suit.  The  act 
allowing  a  set-off  in  such  cases,  applies  only 
to  the  parties  themselves. 

Independent  of  the  pleadings,  the  indorsee 
of  a  negotiable  note  cannot  be  affected  by  any 
dealings  between  the  original  parties.  This 
rule  is  essential  to  the  credit  of  such  paper. 
There  are  exceptions  to  the  rule,  where  a  note 
has  been  unfairly  obtained,  or  dishonoured, 
or  indorsed  when  overdue.  In  such  cases, 
the  holder  stands  in  the  place  of  the  antece- 
dent parties,  and  is  liable  to  meet  every  de- 
fence which  might  equitably  be  made  against 
him.  But  in  general,  he  is  not  liable  to  such 
defence. 

Judgment  for  the  plaintiff. 

Cited  in— 5  Wend.,  350;  7  Wend.,  224. 


*ENSIGN  v.  WANDS.       [*171 

Partnership — Limitation  by  Liability — Creditors. 

Where  there  is  a  special  and  limited  partnership, 
and  persons  deal  with  it  knowingly  as  such,  they 
are  bound  by  the  terms  of  such  copartnership,  and 
cannot  hold  the  parties  beyond  them. 


NOTE.— Agreements  between  partners,  when  third 
parties  bound  thereby. 

See  Hastings  v.  Hopkinson,  28  Vt.,  108 ;  Gallway  v. 
Matthew,  10  East.,  264. 

JOHNSON'S  CASES,  1. 


1799 


WlrtTE   V.    DE  VILLIERS  AND   WILLIAMS. 


171 


THIS  was  an  action  of  assumpsit  for  goods 
sold  and  delivered.  The  defendant 
pleaded  in  abatement  that  the  plaintiff  and  C. 
R.  Webster,  and  G.  Webster,  were  partners  in 
trade  at  the  time  of  making  the  supposed  con- 
tract, and  that  the  promises  charged  in  the 
declaration  were  made  by  the  defendant  to  the 
said  partners  jointly,  and  not  to  the  plaintiff 
severally.  On  this  plea  issue  was  joined,  and 
the  cause  was  tried  before  Mr.  Chief  Justice 
Lansing,  at  the  Albany  circuit,  in  July  last. 

It  appeared  in  evidence  that  the  goods  for 
which  this  action  was  brought  consisted  of 
several  quantities  of  paper  which  were  sold  to 
the  defendant,  by  the  plaintiff,  at  a  paper-mill 
owned  by  the  plaintiff  and  the  Websters  joint- 
ly, who  were  concerned  together  in  the  man- 
ufacture of  paper  at  the  mill;  that  the  Web- 
sters were  in  the  habit  of  taking  paper  from  it 
and  selling  it  on  their  separate  account,  and 
the  plaintiff  did  the  like  on  his  account;  that 
this  was  understood  between  them  to  be  the 
right  of  each  owner,  and  the  course  of  the 
business;  and  no  paper  was  sold  on  their  joint 
account;  that  at  different  times  they  accounted 
to  each  other  for  the  value  of  the  sales  so 
made,  without  any  reference  to  the  purchasers 
or  to  outstanding  debts,  which  were  not  con- 
sidered to  be  due  to  them  jointly,  but  for 
which  they  were  separately  held  accountable 
to  each  other  according  to  their  sales,  and  that 
the  plaintiff  had  accounted  to  and  satisfied  the 
Websters  for  all  the  paper  sold  by  him,  in- 
cluding the  parcel  sold  to  the  defendant. 

It  further  appeared,  that  after  a  considera- 
ble part,  and  before  the  whole  of  the  paper  for 
which  this  action  was  brought  had  been  de- 
livered to  the  defendant,  he  informed  the 
plaintiff  that  he  wished  to  consider  the  sale  as 
made  by  the  plaintiff  solely,  and  independent- 
172*]  ly  of  the  other  *owners,  to  which  the 
plaintiff  replied  that  he  considered  it  as  made 
in  that  manner. 

On  this  evidence,  the  Chief  Justice  was  of 
opinion  that  the  plaintiff  was  entitled  to  re- 
cover, and  a  verdict  was  found  accordingly. 

Mr.  Bird,  for  the  defendants,  moved  for  a 
new  trial,  on  the  ground  that  this  was  strictly 
a  partnership  debt,  and  could  not,  from  its 
nature,  be  severed  by  the  acts  of  the  parties, 
so  as  to  entitle  one  of  them  to  maintain  this 
action. 

Mr.  Van  Vechten,  contra,  insisted  that  the 
partnership  was  special,  and  the  course  of  its 
dealings  was  understood  by  the  defendant, 
and  in  this  instance  particularly  assented  to  by 
him.  He  was  therefore  precluded  from  making 
his  objection. 

Per  Curiam.  The  partnership  between  the 
plaintiff  and  the  Websters  was  special.  As 
between  themselves  it  was  certainly  competent 
to  make  it  so.  The  moment  a  sale  was  made 
by  one  of  them  he  immediately  became  charge- 
able with  the  amount,  and  the  profits  accrued 
with  certainty  to  the  others,  who  were  no  longer 
subject  to  the  general  risk  of  loss.  The  de- 
fendant understood  this  to  be  the  course  of 
their  dealings,  or  at  least  requested  that  the 
sales  to  him  might  be  considered  as  made  with 
the  plaintiff  solely,  to  which  the  latter  as- 
sented. It  was,  therefore,  not  a  sale  as  from 
joint  partners,  either  in  respect  to  the  plaint- 
JOHNSON'S  CASES,  1. 


iff's  situation  with  the  Websters,  or  to  the  con- 
tract as  made  with  the  defendant,  and  we 
think  that  the  plaintiff  may  well  maintain  thia 
action. 

Judgment  for  the  plaintiff. 
Cited  in— 9  Johns.,  485. 


*WHITE 

0. 
DE  VILLIERS  AND  WILLIAMS. 

Indemnity — Against  Mortgage — Bond. 

On  a  sale  of  lands,  a  bond  was  given  by  the 
grantee  to  save  the  grantor  harmless  against  a  cer- 
tain mortgage,  which  was  an  incumbrance  on  the 
land;  it  was  held  that  by  the  fair  construction  of  the 
condition,  the  grantor  was  to  be  indemnified  against 
the  bond  accompanying  the  mortgage,  and  for 
which  the  mortgage  was  given  merely  as  collateral 
security. 

THIS  was  an  action  of  debt  on  a  bond,  con- 
ditioned as  follows:  "  Whereas  the  above 
named  James  White  did,  on  the  19th  day  of 
September,  in  the  year  of  our  Lord  1792,  pur- 
chase of  Michael  Gratz,  of  the  city  of  Phila- 
delphia, a  certain  tract  of  land  situated  in  the 
County  of  Otsego,  for  the  sum  of  1,162£.  Ite. 
lawful"  money  of  the  State  of  New  York,  and 
for  securing  the  payment  thereof,  mortgage 
the  said  premises  to  the  said  Michael  Gratz. 
And  whereas  the  said  James  White  hath  this 
day  conveyed  the  said  land  to  the  said  Lewis 
De  Villiers  and  Rensselaer  Williams,  Jun. 
Now,  the  condition  of  this  obligation  is  such 
that  if  the  above  bound  Lewis  De  Villiers  and 
Rensselaer  Williams,  Jun. ,  their  heirs,  execu- 
tors and  administrators,  shall  and  do  save  and 
keep  harmless,  and  indemnified  the  said  James 
White  and  his  assigns,  of  and  from  all  suits, 
costs,  damages,  and  expenses  whatsoever, 
which  shall  and  may  happen  or  come  to  him 
or  them,  for  or  by  reason  of  the  said  mortgage, 
then  the  above  obligation  to  be  void,  or  else  to 
remain  in  full  force  and  virtue." 

The  defendants,  after  craving  oyer  of  the 
bond  and  condition,  pleaded  non  damnificatus. 

The  plaintiff  replied  that  he  was  damnified, 
&c.,  in  being  obliged  to  pay  a  large  sum  of 
money,  by  reason  of  the  said  mortgage,  &c. 

The  defendant  rejoined,  traversing  that  fact, 
and  issue  was  taken  thereon. 

The  cause  was  tried  before  Mr.  Justice 
Lewis,  at  the  last  circuit  in  Otsego  County. 
The  plaintiff  proved  that  he  had  been  com- 
pelled to  pay  the  amount  due  on  the  bond  ac- 
companying the  mortgage  above  mentioned, 
which  bond  was  referred  to  in  the  mortgage, 
and  for  the  payment  of  which  the  mortgage 
was  given  as  a  collateral  security.  The  judge 
at  the  trial  ruled  that  the  plaintiff  was  en- 
titled to  recover  the  amount  he  had  so  paid  on 
the  bond. 

*A  verdict  was  thereupon  taken  by  [*174 
consent  for  the  plaintiff  for  the  amount  so 
paid,  subject  to  the  opinion  of  the  court,  and 
if  the  court  should  be  of  opinion  in  favour  of 
the  defendant,  it  was  agreed  that  a  nonsuit 
should  be  entered. 

Mr.  Burr,  for  the  plaintiff,  contended  that  the 

287 


174 


SUPREME  COTTHT,  STATE  OF  NEW  YORK 


1799 


condition  of  the  bond  on  which  this  action  was 
brought,  could  rationally  admit  of  no  other 
interpretation  than  that  it  was  intended  to  in- 
demif y  the  plaintiff  against  the  debt  which  the 
mortgage  was  given  to  secure,  and  of  course 
equally  to  indemnify  him  against  the  bond 
which  accompanied  it. 

Mr.  Van  Vechten,  for  the  defendant,  argued 
that  the  bond  was  not  within  the  tenor  of  the 
condition,  which  was  expressly  confined  to  the 
mortgage,  and  that  the  court  could  not  by  con- 
struction extend  the  sense  of  the  contract. 

Per  Curiam.  The  land  mentioned  in  the 
•condition  was  sold  by  the  plaintiff  subject  to 
the  incumbrance  of  the  mortgage,  and  under 
«n  agreement  to  be  indemnified  against  it. 
The  amount  due  on  the  mortgage  must  there- 
fore have  entered  into  the  price,  and  according 
to  the  spirit  of  the  contract,  was  to  be  paid  by 
the  defendant. 

The  bond  and  mortgage  could  not  have  been 
considered  as  separate  debts.  They  were  con- 
current securities  for  the  same  demand,  and 
the  idemnity  against  one  includes  an  idemnity 
against  both. 

We  are  therefore  of  opinion  that  the 
plaintiff  is  entitled  to  recover  according  to  the 
verdict. 

4  Judgment  for  the  plaintiff. 
-Cited  in— 63  N.  Y.,  615. 


LAWLER,  Administratrix  of  LAWLER, 

v. 
KEAQUICK. 

Negligence  —  Consignment  —  No  Sale  —  Storage  of 
Goods. 

Goods  were  shipped  on  board  of  a  vessel  and  con- 
signed to  the  master,  to  be  sold  at  Bourdeaux.  The 
master  not  being  able  to  find  a  purchaser,  left  the 
goods  at  Bourdeaux,  and  returned  to  New  York.  It 
was  held  that  having  acted  bona  fide,  he  was  not 
liable  to  the  owner. 


was  a  special  action  on  the  case  in 
J_     which  the  plaintiff  declared  as  follows: 

"1.  For  that  whereas  on  the  3d  of  July,  in 
the  year  of  our  Lord  1795,  at  the  city  of  New 
175*]  York,  and  in  the  fifth  *ward  of  the 
said  city,  and  within  the  County  of  New 
York,  in  consideration  that  W.  L.  in  his  life- 
time, at  the  special  instance  and  request  of  the 
said  defendant  had  caused  to  be  delivered  to 
the  said  defendant,  divers  goods,  wares  and, 
merchandises  of  him,  the  said  W.  L.,  to  be 
transported,  carried,  and  conveyed  by  the  said 
defendant,  in  a  certain  ship  or  vessel,  whereof 
the  said  defendant  was  then  master  and  com- 
mander, from  the  port  of  New  York  to 
Bourdeaux,  in  the  republic  of  France,  and 
there,  to  wit,  at  the  port  of  Bourdeaux  afore- 
said, to  be  sold  by  the  said  defendant  for  the 
said  W.  L.  (the  perils  and  dangers  of  the  seas 
only  excepted),  for  a  certain  price  or  reward 
therefor,  to  be  paid  by  the  said  W.  L.  to  the 
said  defendant,  he,  the  said  defendant,  then 
and  there  undertook  and  faithfully  promised 
the  said  W.  L.  in  his  lifetime,  safely  and 
288 


surely  to  transport,  carry  and  convey  the  said 
goods,  wares  and  merchandises,  from  the  said 
port  of  New  York  to  Bourdeaux,  in  the  repub- 
lic of  France,  and  there,  to  wit,  at  the  port  of 
Bourdeaux,  in  the  republic  of  France,  to  sell 
and  dispose  of  the  said  goods,  wares  and  mer- 
chandises, to  and  for  the  use  of  the  said  W. 
L. ;  and  although  the  said  defendant  after- 
wards, to  wit,  on  the  same  day  and  year  afore- 
said, at  New  York,  at  the  city,  ward  and 
county  aforesaid,  had  and  received  the  said 
goods,  wares  and  merchandises;  and  although 
the  said  defendant  did  afterwards,  to  wit,  on 
the  1st  day  of  October,  1795,  arrive  with  the 
said  goods,  wares  and  merchandises,  on  board 
the  said  ship,  whereof  the  said  defendant  was 
then  master,  at  Bourdeaux,  in  the  republic  of 
France;  yet  the  said  defendant,  not  regarding 
his  said  promise  and  imdertaking,  did  not  sell 
or  dispose  of  the  said  goods,  wares  and  mer- 
chandises, for  the  said  W.  L.  in  his  lifetime, 
though  often  requested  so  to  do  by  the 
said  W.  L.  in  his  lifetime,  and  by 
the  plaintiff  since  his  death,  afterwards, 
to  wit,  on  the  1st  day  of  May,  1797,  at 
the  city,  ward  and  county  aforesaid;  but  the 
defendant  always  refused  and  still  refuses  so 
to  do. 

"2.  And  whereas,  the  said  W.  L.  in  his 
lifetime,  to  wit,  on  the  3d  day  of  July,  1795, 
at  the  city,  ward  and  county  *af oresaid,  [*1 76 
at  the  special  instance  and  request  of  the  said 
defendant,  shipped  in  good  order,  and  well 
conditioned,  in  and  upon  the  good  ship  called 
the  Iris,  whereof  the  said  defendant  was  then 
master,  then  riding  at  anchor  in  the  harbor 
of  New  York,  the  goods  and  merchandises 
following,  to  wit,  sixty  boxes  of  turpentine 
soap,  of  the  value  of  *1,000  dollars,  current 
money  of  New  York,  from  thence  to  be  trans- 
ported in  like  good  order  and  condition,  by 
the  said  defendant,  to  the  port  of  Bourdeaux, 
in  the  republic  of  France  (the  dangers  of  the 
seas  only  excepted),  he,  the  said  W.  L.,  paying 
therefor  at  the  rate  of  six  pounds  sterling 
(which  is  equal  to  26  dollars  and  66  cents,  cur- 
rent money  of  New  York),  by  the  ton,  with 
primage  and  average  accustomed;  and  there 
to  be  sold  by  the  said  defendant  for  the  said 
W.  L.,the  said  defendant  receiving  for  his 
trouble  the  usual  commissions  in  such  case; 
the  said  defendant,  in  consideration  of  the 
premises,  afterwards,  to  wit,  on  the  same  day 
and  year  aforesaid,  at  the  city,  ward,  and 
within  the  county  aforesaid,  assumed  upon 
himself  arid  to  the  said  W.  L.  in  his  lifetime, 
then  and  there  faithfully  promised  that  he,  the 
said  defendant,  the  said  goods  and  merchan- 
dises last  mentioned,  from  thence,  would 
transport  in  like  good  order,  and  well  condi- 
tioned (the  dangers  of  the  seas  only  excepted), 
and  on  his,  the  defendant's  arrival  at 
Bourdeaux,  in  the  republic  of  France,  would 
sell  and  dispose  of  the  said  goods  and  mer- 
chandises last  mentioned,  and  account  with 
the  said  W.  L.  for  the  same:  and  although  the 
ship  aforesaid,  with  the  goods  and  merchan- 
dises aforesaid  therein  loaded,  afterwards,  to 
wit,  on  the  first  day  of  October,  1795, 
at  Bourdeaux,  in  the  republic  of  France,  to 
wit  at  the  city,  ward,  and  within  the  county 
aforesaid,  safely  arrived,  and  although  the 
dangers  of  the  seas  did  not  hinder;  and 
JOHNSON'S  CASES,  1. 


1799 


THE  PEOPLE  v.  THE  JUSTICES,  ETC. 


176 


although  the  said  W.  L.  in  his  lifetime,  and 
the  plaintiff,  always  since  his  death  hitherto, 
were  ready  to  pay  the  said  defendant,  accord- 
ing to  the  rate  aforesaid,  and  his  said  commis- 
sions, with  primage  and  average  for  the  trans- 
portation and  selling  of  the  goods  and  mer- 
chandises. Nevertheless  the  said  defendant 
contriving  and  intending  the  said  W.  L.  in  his 
lifetime,  and  the  plaintiff,  after  the  death  of 
177*]  the  said  W.  L.,  to  deceive  *and  de- 
fraud, the  goods  and  merchandises  aforesaid 
did  not  sell  or  dispose  of,  nor  did  he  account 
to  the  said  W.  L.  in  his  lifetime  for  the  same, 
or  to  the  plaintiff  after  the  death  of  the  said 
W.  L.,  although  the  said  defendant  was  often 
requested  by  the  said  W.  L.  in  his  lifetime, 
and  by  the  plaintiff  since  his  death,  to  wit,  on 
the  first  day  of  May,  1797,  but  to  account  for 
the  same  the  said  defendant  hath  hitherto 
.altogether  refused,  and  still  doth  refuse,"  &c. 

The  third  count  varied  from  the  second  only 
in  stating  that  the  defendant  undertook  to  in- 
vest the  proceeds  in  the  article  of  brandy,  and 
to  remit  the  same  to  the  plaintiff. 

To  these  the  common  money  counts  were 
added.  Plea,  the  general  issue. 

The  action  was  tried  before  Mr.  Justice  Ho- 
bart,  at  a  circuit  court  held  in  the  city  of  New 
York  in  December,  1797. 

On  the  trial  the  plaintiff  gave  in  evidence  a 
bill  of  lading  signed  by  the  defendant,  in  the 
words  following: 

"Shipped  in  good  order  and  well  condition- 
ed, by  Wm.  Lawler,  in  and  upon  the  good  ship 
called  the  Iris,  whereof  is  master,  for  the  pres- 
ent voyage,  John  Keaquick,  now  riding  at 
anchor  in  the  harbour  of  New  York,  and  bound 
for  Bourdeaux,  to  say,  sixty  boxes  turpentine 
soap,  No.  1  to  No.  60,  being  marked  and  num- 
bered as  in  the  margin,  and  are  to  be  delivered 
in  like  good  order  and  well  conditioned  at  the 
aforesaid  port  of  Bourdeaux  (the  danger  of  the 
seas  only  excepted),  unto  the  said  John  Kea- 
quick, or  to  his  assigns,  he  or  they  paying 
freight  for  the  said  sixty  boxes  soap  at  the  rate 
of  .six  pounds  sterling  per  ton,  with  primage 
and  average  accustomed.  In  witness  whereof, 
the  master  or  purser  of  the  ship  hath  affirmed 
to  three  bills  of  lading,  all  of  this  tenor  and 
date,  the  one  of  which  bills  being  accomplish- 
ed, the  others  to  stand  void.  Dated  in  New 
York  the  3d  day  of  July,  1795. 

"Signed  JOHN  KEAQUICK." 

The  plaintiff  then  produced  a  witness  who 
testified  that  the  defendant  had  told  him  that 
178*]  he  arrived  in  safety,  *with  the  soap 
mentioned  in  the  bill  of  lading,  at  Bourdeaux, 
but  could  not  sell  it  there,  and  therefore  left  it 
for  sale  with  a  Mr.  Jones,  a  merchant  at  that 
place. 

The  plaintiff  then  offered  to  prove  the  price 
of  soap  of  the  like  quality  at  the  city  of  New 
York  at  the  time  of  the  shipment,  as  the  meas- 
ure of  damages  which  he  was  entitled  to  re- 
cover; which  evidence  was  objected  to  on  the 
part  of  the  defendant,  but  was  admitted  by  the 
judge,  and  the  value  in  the  market  at  New 
York  was  accordingly  proved. 

The  defendant  moved  for  a  nonsuit  on  the 
general  ground  that  the  evidence  did  not  sup- 
port any  of  the  counts  contained  in  the  declara- 
tion, which  motion  was  overruled;  and  the 
JOHNSON'S  CASES,  1.  N.  Y  RKP.,  BOOK  1. 


judge  charged  the  jury  that  the  defendant, 
having  accepted  the  office  of  factor  generally, 
was  guilty  of  a  default  in  not  disposing  of  the 
goods  at  Bourdeaux  or  returning  them  to  the 
plaintiff;  that  he  was  properly  chargeable  in 
this  form  of  action,  and  that  the  price  of  the 
article  at  the  port  of  New  York  was  the  just 
criterion  of  damages. 

The  jury  found  accordingly  for  the  plaintiff, 
with  damages  equal  to  the  value  of  the  article 
in  the  market  at  New  York,  without  any  de- 
duction. 

On  a  motion  for  a  new  trial,  the  following 
points  were  argued: 

1st.  Whether  the  defendant  had  incurred 
any  default  so  as  to  render  him  at  all  liable  to 
the  plaintiff. 

3d.  Whether  the  value  of  the  goods  at  New 
York  or  Bourdeaux  ought  to  constitute  the 
rule  of  damages. 

3d.  If  the  value  at  Bordeaux  be  the  proper 
rule,  whether  primage,  average  and  freight, 
ought  not  to  be  deducted. 

Mr.  Troup  for  the  plaintiff. 
Mr.  Hoffman  for  the  defendant. 

Per  Curiam.  We  are  of  opinion,  on  the  first 
point,  that  the  plaintiff  is  not  entitled  to  re- 
cover. The  defendant,  in  his  capacity  of  master, 
has  clearly  performed  his  duty.  In  his  char- 
acter of  bailee  or  consignee  of  the  goods, 
*nothingrnore,  under  the  circumstances  [*  1 79 
in  which  he  was  placed  at  Bourdeaux,  could 
be  reasonably  required  than  what  appears  to 
have  been  done.  He  could  not  sell  without  a 
purchaser,  and  considering  his  double  capacity 
of  ma-iter  and  consignee,  of  which  the  plaintiff 
was  fully  apprised,  he  was  not  obliged  to  wait 
an  indefinite  period  to  effect  a  sale.  He  would 
no  doubt  have  been  liable  for  fraud,  or  gross 
neglect,  crastta  neglige /ilia,,  but  acting  with  good 
faith,  he  was  bound  to  exercise  ordinary  at- 
tention and  diligence  only,  which  he  appears 
to  have  done. 

The  parties  submitting  to  this  opinion,  a 
judgment  of  nonsuit  was  directed  to  be  en- 
tered. 

Cited  in— 1  Cow.,  659 ;  6  Cow.,  134 ;  83  N.  Y.,  608. 


THE  PEOPLE 

v. 

THE  JUSTICES  OF  THE   SESSIONS  OF 
THE  COUNTY  OF  CHENANGO. 

New  Trial — By  Court  of  Sessions — Judgment — 
Mandamus. 

The  Court  of  Sessions  being  a  court  of  inferior  ju- 
risdiction, has  no  power  to  grant  a  new  trial,  after 
a  verdict  on  the  merits ;  and  a  mandamus  was  award- 
ed, to  compel  them  to  enter  judgment. 

HOFFMAN,  Attorney-General,  at  a  former 
term  obtained  a  rule  that  the  justices  of 
the  General  Sessions  of  the  Peace  of  the  County 
of  Chenango,  show  cause  why  a  mandamus 
should  not  issue,  commanding  them  to  pro- 
ceed to  judgment  against  one  Noah  Taylor, 
who  had  been  convicted  before  them  of  a 
felony. 

19  28» 


179 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


The  justices  showed  for  cause  that  they  had 
awarded  a  new  trial  on  the  merits,  the  convic- 
tion, in  their  opinion,  being  against  evidence. 

Upon  this  the  court  directed  an  argument  on 
the  following  points: 

1st.  Whether  the  sessions  have  power  to 
grant  a  new  trial  in  any  case,  except  for  ir- 
regularity. 

3d.  If  they  have  such  power,  whether  it  ex- 
tends to  a  case  of  felony. 

These  questions  were  argued  by  the  Attor- 
ney-General for  the  people,  and  Mr.  Riggs  on 
the  part  of  the  sessions. 

Per  Curiam.  We  are  clearly  of  opinion  that 
the  General  Sessions  of  the  Peace  is  in  every 
18O*]  respect  to  be  considered  *as  a  court  of 
inferior  jurisdiction.  In  its  original  organiza- 
tion it  was  created  an  inferior  court,  subordi- 
nate to  this  court,  and  subject  to  its  controul. 
In  the  colonial  system  it  had  no  other  preten- 
sion, and  nothing  in  our  constitution  or  laws 
has  given  it  a  different  character.  New  powers 
have  been  granted  to  it;  but  they  were  express- 
ly granted  by  statute,  and  do  not  change  the 
essential  nature  and  constitution  of  the  court. 
It  is  still  limited  in  its  jurisdiction  both  as  to 
local  extent  and  the  nature  of  the  offenses  it  is 
empowered  to  try.  Its  very  constitution  shows 
that  it  was  designed  and  ought  to  be  regarded 
as  an  inferior  court.  It  is  generally  composed 
of  justices  who,  from  the  manner  of  their  ap- 
pointment and  the  tenure  of  their  offices,  can- 
not be  expected  to  devote  themselves  to  the 
science  of  the  law,  and  do  not  feel  that  high 
responsibility  which  is  attached  to  courts  of 
general  jurisdiction. 

It  has  always  been  considered  and  treated  as 
an  inferior  court,  subject  to  the  general  super- 
intendence of  this  court.  Writs  of  error,  certio- 
rari,  msindamu8,&nd  attachment,  issue  to  it  from 
this  court.  These  writs  conclusively  show  it  to 
be  subordinate,  and  prove  the  authority  which 
has  always  been  exercised  over  it. 

It  is  fit  and  proper  that  the  courts  of  general 
sessions  of  the  peace  in  the  different  counties 
should  be  under  the  control  of  a  superintend- 
ing jurisdiction.  These  courts  are  wholly  in- 
dependent of  each  other,  and  if  their  proceed- 
ings were  not  subject  to  be  here  reviewed,  we 
might  find  different  rules  of  law  and  of  justice 
in  almost  every  county.  This  would  introduce 
disorder  and  "confusion,  and  be  inconsistent 
with  a  regular  and  uniform  administration  of 
justice. 

The  power  of  granting  new  trials  can  only 
be  applied  in  a  manner  which  precludes  the 
possibility  of  its  exercise  being  reviewed  in  this 
or  any  other  court.  It  is  a  power  of  a  very 
delicate  nature,  exercised  on  the  motion  of  the 
party  only.  Its  exercise  in  practice  does  not, 
and  frequently  from  its  nature  and  difficulty 
181*]  could  not,  be  made  *to  appear  on  the 
record.  If  this  power,  therefore,  did  exist  in 
an  inferior  court,  it  would  exist  without  regu- 
lation or  control,  and  the  idea  of  an  uncon- 
trolled power  residing  in  an  inferior  jurisdic- 
tion is  absurd.  The  jurisprudence  of  every 
country  requires  a  regular  gradation  of  courts 
and  a  common  centre  of  judicial  power.  This 
is  essential  to  its  existence,  and  to  preserve 
consistency  and  harmony  in  the  administration 
of  justice. 

290 


The  general  sessions  in  this  State  are  more 
analogous  to  the  sessions  in  England  than  to 
any  other  courts.  These  are  considered  as  in- 
ferior courts,  and  denied  the  power  of  grant- 
ing new  trials.  Indeed,  no  inferior  jurisdic- 
tion can  possess  this  power  without  an  express 
authority.  It  can  derive  nothing  by  inference 
or  implication. 

Besides,  this  is  a  case  of  felony  in  which 
considerations  of  policy  and  expediency  would 
prevent  this  court  from  granting  a  new  trial. 
In  such  cases,  the  usual  course  is  to  recom- 
mend the  convict  for  pardon.  It  is,  therefore, 
an  instance  to  show  that  the  power  of  grant- 
ing new  trials,  if  vested  in  an  inferior  court, 
would  probably  be  often  very  indiscreetly  ex- 
ercised. 

We  are  therefore  of  opinion  that  a  manda- 
mus ought  to  be  awarded. 

Rule  made  absolute. 

S.  C.,  2  Caines*  Cas.,  319. 

Approved— 18  Wend.,  ft5. 

Limited— 5  Wend.,  39 ;  12  Wend.,  272.. 

Cited  in— 3  Johns.  Cas.,  287 ;  17  Wend.,  494 ;  20  N.  Y.. 
549 ;  2  Barb.,  288  ;  16  Abb.  N.  S.,  447 ;  1  Park.,  370, 829 ; 
1  Wheel.,  497. 


THE  PEOPLE 

v.    • 

THE    JUSTICES   OF   THE    DELAWARE 
COMMON  PLEAS. 

Mandamus — To  Common  Pleas — To  restore 
Attorney. 

The  courts  of  common  pleas  in  the  several  coun- 
ties are  courts  of  inferior  jurisdiction,  and  a  manda- 
mus lies  to  such  a  court  to  restore  an  attorney  who- 
had  been  removed  from  his  office. 

TTOPKINS,  at  the  last  term,  obtained  a  rule 
11  on  the  judges  and  assistant  justices  of  the 
Court  of  Common  Pleas  of  the  County  of  Del- 
aware, to  show  cause  why  a  mandamus  should 
not  issue,  commanding  them  to  restore  Philip 
Gephard  to  the  office  of  an  attorney  of  that 
court,  from  which  he  had  been  removed  by 
them. 

The  judges  and  assistant  justices  at  this 
term  showed  for  cause  certain  charges  of  mal- 
conduct  against  Mr.  Gephard  in  his  official 
situation, and  the  proofs  by  which  *they  [*  1 82 
were  supported.  These  proofs  they  had 
deemed  sufficient,  and  thereupon  had  pro- 
ceeded to  remove  him  from  his  office. 

Two  questions  were  made:  1.  Whether  the 
charges  exhibited  against  Mr.  Gephard  were 
supported  by  the  proofs. 

2.  Whether  the  Court  of  Common  Pleas 
possessed  the  exchisive  power  of  determining 
on  the  conduct  of  its  own  officers,  or  whether 
this  court  could  interfere. 

On  the  first  point  many  affidavits  were  read, 
the  contents  of  which,  relating  to  matters  of 
fact  only,  it  will  be  unnecessary  to  state. 

Per  Curiam.  We  are  of  opinion  that  the 
affidavits  do  not  sufficiently  support  the  charge 
of  malconduct,  but  are  rather  to  be  considered 
as  evidence  of  mistake  than  of  intentional 
error.  At  least,  the  ground  of  removal  was- 
too  slight  for  a  punishment  so  severe. 

JOHNSON'S  CASES,  1. 


1799 


SILVA  v.  Low. 


182 


As  to  the  second  point.  Before  the  revolu- 
tion, the  power  of  appointing  attorneys  was 
exercised  by  the  governor  of  the  colony, 
whether  justifiably  or  not  it  is  immaterial  to 
inquire.  His  power  was  recognized  by  the 
courts,  and  the  attorneys  admitted  to  practice. 
By  the  constitution  of  this  State,  the  power  of 
appointing  attorneys  was  transferred  to  the 
respective  courts.  The  constitution  did, 
however,  no  more  than  to  transfer  or  vest  in 
the  courts  the  power  of  appointment.  The 
expression  that  they  shall  be  governed  by  the 
rules  and  orders  of  the  court,  gives  no  addi- 
tional authority  over  them,  and  they  would 
have  been  equally  subject  to  those  rules  and 
orders  if  the  constitution  had  been  silent  in 
this  respect.  In  like  manner,  the  power  of 
this  court  is  not  affected  by  the  terms  used  in 
the  constitution. 

The  constitutional  objection  being  removed, 
the  general  question  remains,  whether  this 
court  possesses  the  power  of  superintending 
and  correcting  all  the  judgments  and  proceed- 
ings of  the  courts  of  common  pleas  in  the  re- 
spective counties.  If  so,  it  must  have  the 
power  of  correcting  any  abuse  or  injustice 
183*]  towards  their  officers.  Most  *of  the 
reasoning  on  the  subject  of  the  powers  of  the 
courts  of  general  sessions  of  the  peace  in  the 
case  already  decided  from  Chenango,  will 
apply  to  the  courts  of  common  pleas,  and 
equally  shows  that  they  are  properly  inferior 
courts,  and  subject  to  the  controul  of  this 
court. 

The  origin  of  the  courts  of  common  pleas 
and  the  history  of  their  powers  show  that  they 
come  within  the  same  description.  They 
were  originally  constituted  by  the  style  and 
title  of  "inferior  courts,"  and  were  in  all  re- 
spects considered  as  such.  The  amount  of 
their  jurisdiction  was  limited  to  £20.  In  local 
extent,  their  jurisdiction  was  limited,  as  they 
could  try  no  action  arising  out  of  the  county. 
It  is  true  that  these  powers  have  since  been 
enlarged,  but  this  has  been  done  by  express 
statutes,  which  do  not  alter  the  essential  char- 
acter of  those  courts :  all  their  proceedings  are 
still  equally  liable  to  be  revised  and  corrected 
by  this  court.  A  writ  of  habeas  carpus  to  re- 
move actions  before  them,  a  writ  of  error,  and 
of  certiorari  in  some  cases,  a  mandamus,  pro- 
hibition and  attachment  may  still  issue  from 
this  court,  which  they  are  bound  to  obey.  In 
short,  they  still  retain  almost  every  character- 
istic of  an  inferior  court. 

On  the  argument  they  were  compared  to  the 
common  pleas  in  England,  but  the  resemblance 
is  in  name  only,  and  were  they  considered  in 
the  same  light,  all  the  difficulties  and  incon- 
sistencies with  regard  to  our  jurisprudence, 
and  the  administration  of  justice  which  were 
mentioned  in  the  case  of  the  sessions,  would 
equally  apply  to  them.  In  the  present  case, 
a  striking  instance  of  such  inconsistency  would 
appear.  By  the  act  of  the  Legislature  of  this 
State,  if  a  court  of  common  pleas  remove  an 
attorney  from  office,  he  cannot  be  admitted  to 
practice  here,  although  he  should  also  be  an 
attorney  of  this  court.  If,  therefore,  we  could 
not  revise  the  proceedings  of  the  courts  of 
common  pleas  in  this  respect,  they  might  dis- 
qualify any  attorney  of  this  court,  and  how- 
ever unjust  it  might  be,  it  would  not  be  in  our 
JOHNSON'S  CASES,  1. 


power  to  afford  relief.  *This  would  [*184 
indirectly  give  them  the  power  of  superin- 
tending and  controlling  the  officers  of  this 
court. 

We  are  therefore  of  opinion  that  we  have 
the  power  to  interfere,  and  considering  it  a 
proper  case  for  the  interference  of  this  court, 
it  is  ordered  that  a  mandamus  do  issue. 

Rule  made  at/solute. l 

Questioned— 18  Wend.,  95. 

Cited  in  17  Wend.,  484 ;  22  N.  Y.,  90 ;  20  How.  Pr., 
12;  11  Abb.,  332;  7  Wall.,  379. 


SILVA  v.  LOW. 

1.  Marine  Insurant*, — Warranty — Seaworthi- 
ness—  Competent  Crew.  2.  Witness —  Credi- 
bility—  Deliberate  Contradiction.  3.  Errors 
and  Appeals — Verdict — Weight  of  Evidence. 
4.  Shipping — Deviation. 

Goods  were  insured  on  board  a  vessel,  "on  a  voy- 
age from  Wilmington,  in  North  Carolina,  to  Fal- 
mouth,  and  at  and  from  thence  to  a  port  of  dis- 
charge in  Great  Britain."  The  vessel  sailed  from 
Wilmington,  with  a  crew  consisting  of  ten  persons, 
and  with  the  avowed  intention  of  touching  at  the 
Hook,  off  the  port  of  New  York,  to  procure  seamen; 
she  foundered,  however,  in  a  gale  of  wind,  and  be- 
fore she  arrived  at  the  dividing  point  between  a 
direct  course  to  Falmouth,  and  the  course  to  New 
York.  It  was  held  that  a  vessel  must  not  only  be 
seaworthy,  but  be  duly  equipped  and  manned  with 
a  competent  crew,  engaged  for  the  voyage  insured; 
and  that  in  case  the  intention  to  stop  at  New  York 
for  seamen  was  sufficient  evidence,  either  that  the 
crew  was  not  competent,  or  that  they  were  not  en- 
gaged for  the  voyage  insured.  Whether  the  voyage 
on  which  the  vessel  actually  sailed  in  this  case,  was 
distinct  or  different  from  the  voyage  insured, 
qitwre. 

A  witness  who  deliberately  contradicts  himself 
with  respect  to  any  fact,  ought  not  to  be  credited, 
unless  supported  by  other  proof,  to  establish  that 
fact  in  any  way  whatever. 

It  is  not  a  sufficient  reason  for  setting  aside  a 
verdict,  that  the  weight  of  evidence,  in  the  opinion 
of  the  court,  was  on  the  opposite  side. 

Cases  cited-  7  Term  R.,  160.  3.  Doug.,  £52 ; 
Cowp.,  601.  Marshall,  407;  2  Str.,  1249;  Cowp.,  601; 
Doug.,  344 ;  Doug.,  16 ;  2  Term,  30 ;  2  H.  Black.,  343 ;  7 
Term  R.,  162. 

THIS  was  an  action  on  a  policy  of  insurance 
on  goods,  on  board  the  vessel  called  the 
Hull  Packet,  on  a  voyage  from  Wilmington, 
in  North  Carolina,  to  Falmouth,  and  at  and 

1.— In  the  case  of  The  People,  ex  rel.  Strong,  v. 
The  Justices  of  the  Common  Pleas  of  Otsego,  the 
same  questions  arose,  and  were  decided  in  the  same 
manner. 


NOTE. — Manna  Insurance,  seaworlhiness,warranty 
of,  implied  in  contracts  of  insurance. 

Barnewall  v.  Church,  1  Caine,  217;  Talcot  v.  Com. 
Ins.  Co.,  2  Johns.,  124 ;  Draper  v.  Com.  Ins.  Co.,  21 
N.  Y.,  378;  Patrick  v.  Hallett,  3  Johns.  Cas.,  76; 
Hazzard  v.  New  England  Marine  Ins.  Co.,  8  Pot., 
581 ;  Starbuck  v.  New  England  Marine  Ins.  Co.,  19 
Pick.,  198. 

Seaworthiness  includes  competent  crew  of  sufficient 
numbers  (Dow  v.  Smith,!  Caine,  32;  Treadwell  v. 
Union  Ins.  Co.,  6  Cow.,  270;  U.  S.  v.  Hunt,  2  Story 
C.  C.,  120;  The  Gentleman,  Olc.  Adm.,110),  properly 
officered.  Draper  v.  Com.  Ins.  Co.,  above  cited. 
See,nowever,  as  to  some  particular  questions,  Tread- 
well  v.  Union  Ins.  Co.,  above  cited ;  Keeler  v. 
Firemen's  Ins.  Co.,  3  Hill,  250,  and  Copeland  v.  New 
England  Ins.  Co.,  2  Mete.  (Mass.),  432. 

As  to  time  policies,  see,  further,  Jones  v.  Ins.  Co.,  2 
Wall..  Jr.,  C.  C.,  278;  Am.  Ins.  Co.  v.  Ogden,  20 
Wend.,  287 ;  Hoxie  v.  Pacific  Ins.  Co.,  7  Allen,  211. 

As  to  Imrden  of  proof,  see,  in  addition  to  above 
cases,  Tidmarsh  v.  Wash.  F.  &  M.  Ins.  Co.,  4  Mason, 
439;  Paddock  v.  Franklin  Ins.  Co.,  11  Pick.,  227; 
Capen  v.  Wash.  Ins.  Co.,  12  Cush.,  517. 

291 


184 


SUPREME  COURT,  STATE  OF  Naw  YORK. 


1799 


from  thei.oe  to  a  port  of  discharge  in  Great 
Britain.  The  sum  insured  was  $5,500,  and 
the  U>ss  was  averred  to  have  happened  by  the 
perils  of  the  sea. 

The  cause  was  tried  before  Mr.  Justice  Kent, 
at  the  sittings  in  August,  1798,  in  the  city  of 
New  York. 

The  policy  and  the  interest  of  the  plaintiff 
were  admitted;  and  it  was  proved  on  the  part 
of  the  plaintiff,  by  a  deposition  of  the  mate  of 
the  ship,  that  she  foundered  at  sea  in  a  hard 
gale  of  wind,  the  7th  of  September,  1797,  on 
her  direct  voyage  to  England;  that  the  vessel 
was  well  manned  and  found,  and  had  ten 
hands  on  board;  that  he  saw  one  of  the  mari- 
ners sign  the  shipping  articles,  which  were  to 
go  to  Falmouth,  and  that  the  orders  were  to 
185*]  keep  *a  due  east  course;  that  the  crew 
who  signed  the  articles  left  the  vessel  at  Wil- 
mington, and  that  the  captain  and  seven  of 
the  men  on  board  were  drowned. 

On  the  part  of  the  defendant,  a  certificate  of 
the  officer  of  the  customs  at  Wilmington  was 
produced,  dated  the  3d  day  of  January,  1798. 
stating  that  the  vessel  cleared  for  New  York, 
and  also  a  protest  made  by  the  mate  of  the 
vessel,  and  "  one  or  more  seamen"  at  Charles- 
ton, on  the  26th  of  September,  1797,  in  which 
the}'  swore  that  the  vessel  sailed  from  Wil- 
mington, on  the  6th  of  the  same  month,  bound 
for  New  York,  and  that  she  foundered  the 
next  day,  and  that  they  escaped  on  the  wreck. 
The  defendant  also  produced  in  evidence  a 
letter  from  the  agent  of  the  plaintiff  to  the  de- 
fendant, dated  the  28th  of  August,  1797,  stat- 
ing that  the  captain  said  he  feared  he  should 
be  obliged  to  touch  at  the  Hook  for  seamen, 
and  another  from  the  same  to  the  same,  dated 
the  day  following,  stating  the  captain's  reso- 
lution to  touch  at  New  York  for  seamen,  and 
another  from  the  same  to  the  same,  stating 
that  the  captain  said  that  he  had  cleared  for 
New  York.  It  was  further  proved  that  the 
vessel  was  about  13  years  old,  and  was  built  in 
Connecticut.  No  objection  was  made  to  any 
part  of  this  testimony. 

The  plaintiff  then  produced  his  instructions 
to  the  captain,  dated  the  14th  of  July,  1797, 
directing  him  to  sail  from  North  Carolina  to 
Falmouth,  and  also  the  invoices  and  bills  of 
lading,  signed  by  the  captain,  and  dated  the 
20th  of  August  following,  stating  that  he  was 
bound  for  Falmouth;  and  also  a  letter  from  a 
Mr.  Ross,  the  consignee  of  the  cargo  at  Fal- 
mouth, in  which  he  acknowledged  his  advice 
from  North  Carolina  of  the  destination  to  Fal- 
mouth. 

It  was  further  proved,  on  the  part  of  the 
plaintiff,  that  the  ten  hands  on  board  were 
equal  in  number  to  the  usual  complement  for 
the  vessel;  that  the  course  from  Cape  Fear,  in 
North  Carolina,  to  England,  was  usually  east, 
until  they  passed  the  gulph  stream,  and  the 
186*]  course  to  New  York  northeast,  *after 
passing  Cape  Hatteras;  that  no  vessel  passed 
the  gulf  stream  in  coming  to  New  York; 
that  the  loss  happended  in  lat.  33  51  long.  74, 
and  that  if  the  wind  had  been  favorable,  a 
more  northerly  course  would  have  been  steered 
for  London;  and  it  was  also  proved  that  the 
vessel  had  been  well  repaired  for  the  voyage. 

The  judge  submitted  two  questions  to  the 
jury.  1.  Whether  the  vessel  was  sea  worth}'; 
25)2 


and  he  expressed  his  opinion  that  the  weight  of 
evidence  was  in  favor  of  her  seaworthiness. 
2.  Whether  the  voyage  on  which  she  sailed  was 
different  from  the  one  described  in  the  policy, 
with  directions  that  if  the  vessel  was  unsea- 
worthy,  or  the  voyage  was  different  from  that 
described  in  the  policy,  they  should  find  for 
the  defendant;  otherwise,  their  verdict  should 
be  for  the  plaintiff. 

The  jury  found  for  the  plaintiff,  with  dam- 
ages as  for  a  total  loss. 

In  January  Term  last,  a  motion  was  made 
for  a  new  trial,  on  the  general  ground  that  the 
verdict  was  against  evidence. 

The  motion  was  argued  by  Mr.  B.  Living- 
ston and  Mr.  Burr  for  the  plaintiff,  and  by  Mr. 
Riggs  and  Mr.  Lush  for  the  defendant. 

In  April  Term,  the  court  ordered  a  further 
argument  on  the  following  questions,  which 
were  argued  in  July  Term,  by  Mr.  B.  Living- 
ston and  Mr.  Burr  for  the  plaintiff,  and  by 
Mr.  Troup,  Mr.  Harrison,  and  Mr.  Hamilton 
for  the  defendant. 

1.  Admitting  the  voyage  on  which  the  vessel 
sailed    was    ultimately    for    Falmouth,    but 
circuitous  by  the  way  of  New  York,  was  it  for 
that  reason  to  be  considered  a  distinct  voyage 
from  the  one  described  in  the  policy? 

2.  If  not,  and  the  only  object  in  going  to 
New  York  was  to  procure  seamen  for  the  re- 
mainder of  the  voyage  to  Falmouth,  and  the 
vessel  was  lost  before  she  came  to  the  point  of 
departure  from  a  direct  voyage  to  Falmouth, 
would  these  circumstances  affect  the  plaintiff's 
right  to  recover? 

*The  court  now  delivered  their  opin-  [*187 
ions  as  follows: 

RADCLIFF,  J.  By  the  case,  it  appears  that 
E.  Seits,  the  mate  of  the  vessel,  was  the  only 
witness  whose  testimony,  as  delivered  at  the 
trial,  went  to  prove  that  the  loss  happened  on 
a  direct  voyage  from  Wilmington  to  Falmouth. 
In  support  of  the  opinion  which  I  shall  give, 
it  will  be  material  to  show  that  no  other  evi- 
dence sufficient  to  establish  the  fact,  that  the 
loss  happened  on  a  direct  voyage  to  Falmouth, 
was  offered  by  the  plaintiff,  and  that  the  dep- 
osition of  their  witness,  contrasted  with  the 
other  evidence  in  the  cause,  ought  not  to  gov- 
ern its  decision. 

The  other  evidence  to  prove  the  loss,  and 
the  circumstances  attending  it,  is  in  these 
words:  "  That  the  course  from  Cape  Fear,  in 
North  Carolina,  to  England,  was  usually  east 
till  they  passed  the  gulph  stream,  and  to  New 
York  was  northeast  after  passing  Cape  Hat- 
teras; that  no  vessel  passed  the  gulph  stream 
in  coming  to  New  York;  that  the  loss  hap- 
pened in  lat.  33  51,  and  long.  74,  and  if  the 
wind  had  been  favourable,  a  more  northerly 
course  would  have  been  steered  for  London." 

It  does  not  appear  from  any  part  of  the 
testimony  that  the  vessel  had  entered  or  passed 
the  gulf  stream,  nor  at  what  particular  place 
the  loss  happened.  The  latitude  and  longi- 
tude, as  given,  can  furnish  no  satisfactory 
fuide.  The  best  calculations  of  longitude  are 
nown  to  be  uncertain,  and  were  they  capable 
of  certainty,  it  cannot  be  supposed,  under  the 
circumstances  of  this  loss,  occasioned  by  a 
tempest,  that  an  accurate  calculation  could 
have  been  made.  The  vessel  was  the  sport  of 
JOHNSON'S  CASES,  1. 


1799 


SILVA  v.  Low. 


187 


the  winds,  the  captain  and  seven  out  of  ten 
of  the  crew  were  drowned,  and  every  consid- 
eration but  that  of  personal  safety  must  have 
been  lost  in  the  common  danger.  From  the 
course,  under  such  circumstances,  or  the  place 
to  which  the  vessel  was  driven,  if  these  were 
known,  it  cannot  be  ascertained  whether  she 
sailed  from  Wilmington  directly  to  Falmouth, 
or  for  New  York. 

The  proof  of  her  actually  sailing  on  a  direct 
voyage  to.  Falmouth  (for  I  do  not  now  speak 
188*]  of  the  previous  intent),  *is  therefore 
confined  to  the  mate.  But  on  this  point  his 
testimony,  at  different  periods,  is  in  direct 
hostility  to  itself.  In  his  deposition  read  by 
the  plaintiff,  he  swears  that  the  vessel  was  on 
a  direct  voyage  to  Falmouth.  In  the  protest 
produced  on  the  part  of  the  defendant,  he 
swears  that  she  sailed  from  Wilmington,  bound 
for  New  York.-  The  meaning  or  force  of 
terms,  so  opposite  and  contradictory,  cannot 
be  mistaken.  According  to  common  acceptance 
and  their  obvious  import,  I  think  this  witness 
stands  self-convicted  of  a  falsehood,  contained 
either  in  his  deposition  or  protest,  and  I  adopt 
the  principle  that  a  witness  who  deliberately 
contradicts  himself,  with  respect  to  any  fact, 
ought  not  to  be  credited,  unless  supported  by 
other  proof  to  establish  that  fact,  in  any  way 
whatever.  Testimony  derived  from  so  impure 
a  source,  and  standing  alone,  cannot  be  ad- 1 
matted, 

If  we  could  suppose,  as  has  been  suggested,  j 
that  this  witness  was  not  aware  of  the  force  of 
the  terms  used  in  his  deposition,  and  that  he 
did  not  intend  to  testify  to  a  direct  but  a 
circuitous  voyage  to  Falmouth,  by  the  way  of 
New  York,  his  testimony  might  be  reconciled. 
But  rejecting  this  hypothesis,  his  deposition 
that  the  vessel  was  on  her  direct  voyage  to  Eu- 
gland,is  not  only  contradicted  by  himself , but  by 
•'one  or  more  seamen,"  who  in  the  protest 
unite  with  him  in  swearing  that  she  sailed 
from  Wilmington,  bound  for  New  York. 
These  seamen  stand  unimpeached,  and  are 
strongly  supported  by  the  presumption  arising 
from  the  three  letters  written  by  the  plaintiff's 
agent  to  the  defendant,  shortly  before  the 
vessel  sailed,  which  successively  state,  the  first 
that  the  captain  said  he  feared  he  should  be 
obliged  to  touch  at  the  Hook  for  seamen;  the 
second,  that  the  captain  had  resolved  to  touch 
at  New  York  for  seamen,  and  the  third,  that 
the  captain  said  he  had  cleared  for  New  York. 

In  opposition  to  this,  the  plaintiff  produced 
his  instructions  to  the  captain,  directing  him 
to  Falmouth,  the  bills  of  lading  signed  by 
him,  stating  him  bound  for  Falmouth, 
180*]  *and  a  letter  from  the  consignee  at  Fal- 
rnouth,  acknowledging  advice  of  the  destina- 
tion to  that  place.  These  documents  show  the 
original  intent  of  a  voyage  to  Falmouth,  of 
which  I  have  no  doubt,  but  they  do  not  show 
the  performance  of  that  intent,  nor  that  the 
voyage  was  actually  undertaken  for  Falmouth. 
They  relate  to  a  period  anterior  to  the  com- 
mencement of  the  voyage,  and,  therefore,  can- 
not impeach  the  positive  testimony  of  the  sea- 
men, as  to  the  subsequent  destination.  Nor 
are  they  at  all  inconsistent  with  the  letters 
written  by  the  plaintiff's  agent,  the  first  of 
which  was  nearly  two  months  subsequent  in  \ 
date  to  the  instructions,  and  eight  days  subse- ! 
JOHNSON'S  CASES,  1. 


quent  to  the  bills  of  lading.  The  captain,  be- 
tween those  dates,  might  from  necessity,  or 
for  sufficient  reasons,  have  changed  his  reso- 
lution, and  sailed,  as  he  said  he  had  cleared, 
for  New  York. 

From  the  whole  of  this  evidence,  therefore 
(excluding  that  of  the  mate),  I  think  it  de- 
cisively appears  that  the  vessel  actually  sailed 
from  Wilmington  for  New  York,  and  that 
there  was  no  testimony  sufficient  to  warrant  a 
verdict  on  the  supposition  that  she  sailed 
immediately  for  Falmouth.  At  least  the  evi- 
dence, if  there  be  any  to  this  effect  that  ought 
to  be  received,  is  so  dubious  and  suspicious, 
that  in  a  case  of  so  much  value,  I  think  it 
ought  to  be  reconsidered,  and  the  fact  more- 
fully  ascertained.  The  jury  may  have  been 
incautiously  governed  by  the  deposition  of  the 
mate,  without  adverting  to  its  inconsistency, 
and  without  giving  effect  to  the  other  proofs 
in  the  cause. 

From  this  examination  of  the  evidence,  I 
shall  assume  the  fact  to  be,  that  the  vessel 
sailed  from  Wilmington  for  New  York,  but 
no  doubt  with  an  intent  subsequently  to  pro- 
ceed to  Falmouth. 

With  a  view  to  the  second  question  stated 
by  the  court  (which  I  shall  first  dispose  of),  it 
becomes,  then,  important  to  consider  for  what 
purpose  she  sailed  for  New  York.  The 
avowed  and  only  probable  purpose  was  for 
seamen.  The  captain  declared  in  two  of  his 
letters  *that  this  was  the  object.  It  is,  [*1OO 
therefore,  necessarily  to  be  inferred,  that  he  had 
not  a  sufficient  number  of  seamen  engaged  for 
the  voyage  to  Falmouth,  or  that  they  had  de- 
serted, or  were  not  qualified  for  such  a  voy- 
age. In'either  case,  the  policy  was  discharged ; 
for  every  contract  of  insurance  implies  a  war- 
ranty not  only  that  the  vessel  is  seaworthy,  but 
that  she  shall  be  duly  equipped,  and  manned 
with  a  sufficient  number  of  seamen  of  com- 
petent skill  and  ability  to  perform  the  voyage 
insured.  This  point  does  not  appear  to  have 
been  attended  to  at  the  trial,  nor  submitted  to 
the  jury,  and  on  this  ground  alone  I  think  the 
present  motion  might  be  disposed  of,  and  a 
new  trial  awarded. 

But  the  more  important-question,  and  which, 
probably,  is  necessary  to  be  decided,  in  order 
to  a  final  determination  of  the  cause,  is,  whether 
the  voyage  to  Falmouth,  by  the  way  of  New 
York,  ought  to  be  considered  as  a  distinct 
voyage  from  the  one  described  in  the  policy. 
If  in  determining  this  question  we  are  free 
from  the  control  of  authority,  it  becomes  in- 
teresting to  establish  a  just  and  rational  rule, 
consistent  with  itself,  and  which  may  not  lead 
to  future  embarrassment.  If  authority  alone 
is  to  govern,  and  some  of  the  late  decisions  in 
England  are  deemed  to  apply  and  to  prescribe 
the  rule,  there  can  be  no  use  in  further  discus- 
sion. We  must  then  pursue  the  beaten  path, 
however  crooked  it  may  be.  I  entertain  a  high 
respect  for  the  decisions  of  the  English  courts, 
but  I  do  not  feel  myself,  in  this  instance, 
shackeled  by  their  authority.  All  the  decisions 
in  England  which  are  supposed  to  touch  the 
question,  have  been  made  subsequent  to  our 
revolution,  except  the  two  cases  briefly  report- 
ed in  Strange.  Besides,  this  being  a  question 
of  commercial  concern,  the  determination  of 
which  can  have  no  retrospective  influence,  nor 

298 


190 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


affect  pre-existing  rights,  I  consider  myself 
less  restrained  by  the  authority  of  existing 
cases.  Should  we  implicitly  follow  precedents, 
on  occasions  like  the  present,  we  must  hope 
for  little  improvement  in  our  commercial  code. 
191*]  A.  single  decision,  *though  founded  on 
mistake,  would  become  of  binding  force,  and 
by  repetition,  error  might  be  continued,  or 
heaped  on  error,  until  the  common  sense  of 
mankind,  and  the  necessity  of  the  case,  oblige 
us  to  return  to  first  principles,  and  abandon 
precedents.  These  considerations,  I  think, 
are  sufficient  to  authorize  a  freedom  of  opinion. 

In  the  first  place,  to  consider  the  question 
independent  of  authority. 

The  insurance  was  from  Wilmington  to  Fal- 
mouth.  The  vessel,  as  I  conceive  the  evidence 
to  be,  sailed  from  Wilmington,  bound  for  New 
York,  in  order  to  procure  seamen  for  the  voy- 
age to  Falmouth.  She  was  lost  before  she 
came  to  the  point  of  departure  for  New  York. 
It  has  been  argued  that  there  was  only  an  in- 
tention to  deviate,  which  not  being  carried  into 
effect,  the  insurers  remain  liable.  I  admit 
that  a  mere  intention  to  deviate  will  not  vitiate 
a  policy,  but  I  cannot  perceive  how  the  just 
sense  of  this  rule  can  apply  to  the  present  case. 
Deviation  is  a  relative  term.  To  constitute  an 
actual  deviation,  the  real  voyage  insured  must 
have  commenced,  and  there  must  be  a  subse- 
quent departure  from  that  voyage.  There  can 
be  no  deviation  from  what  does  not  exist.  Did 
the  voyage  described  in  this  policy,  or  any  part 
of  it,  ever  exist  ?  The  voyage  insured  was  from 
Wilmington  direct  to  Falmouth.  This  direct 
voyage  was  never  undertaken;  it  never  com- 
menced; it  had  no  existence;  and  of  necessity 
there  could  be  no  deviation  from  it.  If  the 
course  in  this  instance,  from  Wilmington  to 
New  York,  had  varied  from  the  very  port  or 
wharf  from  which  the  vessel  sailed,  could  she 
with  any  propriety  be  said  to  have  commenced 
her  voyage  to  Falmouth,  or  to  have  deviated 
from  it  ?  There  could,  then,  clearly  have  been 
no  inception  of  the  voyage  to  Falmouth,  and 
of  course  no  deviation.  If  so,  can  the  acci- 
dental circumstance  of  the  iter  being  the  same 
for  a  short  distance,  alter  this  case  in  princi- 
ple, or  essentially  change  the  character  of  the 
voyage?  I  think  not.  It  was  still  a  separate 
and  equally  distinct  voyage.  If  the  voyage, 
192*]  then,  *was  distinct,  and  there  could  be 
no  deviation  from  it,  there  also  could  be  no  in- 
tention to  deviate.  An  intention  to  deviate 
from  a  voyage  on  which  there  was  no  intention 
to  sail,  is  a  contradiction  in  terms. 

The  rule,  therefore,  that  a  mere  intention  to 
deviate  shall  not  vitiate  a  policy,  can  have  no 
application  to  the  case.  Wherever  that  rule 
applies,  whether  the  intention  to  deviate  be 
conceived  before  or  after  the  commencement 
of  the  voyage,  the  real  voyage  insured  has  al- 
ways been  entered  upon,  and  at  least  partially 
performed.  In  the  present  case  it  was  not 
performed;  the  voyage  had  no  inception;  it  did 
not  exist.  The  risk,  therefore,  never  com- 
menced, and  the  policy  never  attached. 

"This  reasoning  to  me  is  satisfactory,  and 
there  is  no  authority  of  decisive  force  and  ap- 
plication to  the  question,  to  induce  me  to  adopt 
a  different  opinion.  The  first  case  which  has 
been  considered  as  maintaining  a  contrary  po- 
sition, is  that  of  Carter  v.  The  Royal  Exthange 
294 


Insurance  Company  (Marshall,  407;  2  Str., 
1249),  and  seems  to  have  been  the  foundation 
of  some  of  the  late  determinations  on  this  sub- 
ject. "The  insurance  was  from  Honduras  to 
London,  and  a  consignment  to  Amsterdam;  a 
loss  happened  before  the  vessel  came  to  the  di- 
viding point  of  the  two  voyages,  which  the  in- 
surer was  held  to  pay  for." 

This  is  the  whole  report  of  the  case,  and 
from  the  naked  facts  we  are  left  in  a  great  de- 
gree to  conjecture  the  ground  of  its  decision. 
It  is  implied  that  the  vessel  had  actually  sailed 
on  the  voyage  insured.  There  was  a  consign- 
ment to  Amsterdam,  but  whether  of  the  whole 
cargo,  whether  the  rest  of  the  ship's  papers 
were  for  Amsterdam  or  London;  whether  there 
was  any  other  evidence  of  an  intention  to 
deviate;  whether  the  captain1  had  determined 
first  to  sail  for  the  one  place  or  for  the  other, 
does  not  certainly  appear.  Yet  this  seems  till 
lately  to  have  been  cited  as  the  principal  author- 
ity on  the  subject,  in  the  English  courts.  It 
was  determined  at  an  early  period,  and  I  think 
is  too  loose  and  uncertain  to  control  our  decision. 

*The  next  case  is  that  of  Foster  v.  [*193 
Wilmer  (2  Str.,  1249;  13  Geo.  II.,  1746),  which 
is  connected  in  the  same  report  with  the  last. 

"The  insurance  in  that  case  was  from  Caro- 
lina to  Lisbon,  and  at  and  from  thence  to 
Bristol.  It  appeared  that  the  captain  had 
taken  in  salt,  which  he  was  to  deliver  at  Fal- 
mouth before  he  went  to  Bristol,  but  the  ship 
was  taken  in  the  direct  road  to  both  places, 
and  before  she  came  to  the  point  where  she 
would  turn  off  to  Falmouth.  And  it  was  held 
that  the  insurer  was  liable,  for  it  is  but  an  in- 
tention to  deviate,  and  that  was  held  not  suf- 
ficient to  discharge  the  underwriter." 

In  this  case  the  real  voyage  had  actually 
commenced  and  had  been  partly  performed 
from  Carolina  to  Lisbon,  and  the  captain  in- 
tended to  deviate  on  his  way  to  Bristol. 

He  must  have  taken  in  the  salt  at  Lisbon, 
and  there,,  probably,  first  formed  his  intention 
to  deviate.  In  the  case  before  us,  the  voyage 
insured  had  not  commenced,  and  there  could 
be  no  deviation,  or  intention  to  deviate. 

The  next  case  is  that  of  Bond  v.  Nutt  (Cowp. , 
601;  Doug.,  344;  S.  C.,  1777),  in  which  the 
argument  of  the  court,  in  my  opinion,  sup- 
ports the  doctrine  I  have  advanced.  That  was 
an  insurance  at  and  from  Jamaica  to  London. 
The  ship  being  completely  laden  for  her  voy- 
age to  London,  sailed  from  St.  Ann's,  in 
Jamaica,  to  Bluefields,  for  a  convoy  which  lay 
ready  there.  The  greater  part  of  the  way  was 
a  different  course  from  that  to  England.  *  The 
court  held  that  the  going  to  Bluefields  was 
neither  a  deviation  nor  a  distinct  voyage,  but 
a  proper  precaution  in  a  state  of  war,  fdr  the 
interest  of  all  concerned,  and  was  therefore  to 
be  considered  as  part  of  the  voyage  from  St. 
Ann's  to  England.  But  they  at  the  same  time 
declared  that  if  she  had  gone  to  Bluefields  for 
any  purpose  independent  of  her  voyage  to 
England,  as  for  water  or  letters,  or  to  wait  in 
hopes  of  convoy,  none  being  ready,  that  would 
have  given  it  the  condition  of  one  voyage  to 
Bluefields,  and  another  from  thence  to  En- 
gland. 

This  reasoning  is  decidedly  in  favor  of  the 

defendant  in  the  case  before  us,  and  shows 

that  the  voyage  from  Wilmington  *to  [*194 

JOHNSON'S  CASES,  1. 


1799 


SII/VA  v.  Low. 


194 


New  York,  for  the  purpose  of  obtaining  sea- 
men, cannot  be  considered  as  part  of  the  voy- 
age to  Falmouth.  The  object  of  procuring 
seamen  at  New  York  was  as  independent  of 
the  voyage  to  Falmouth  as  the  going  for 
water,  or  letters,  or  to  wait  in  hopes  of  convoy, 
would  have  been  at  Bluefields,  and  gives  it  as 
much  the  character  of  a  distinct  voyage. 

The  case  of  Woolbndge  v.  Boydell  (Doug. , 
16,  1778),  as  far  as  it  bears  upon  the  question, 
I  also  consider  in  favor  of  the  defendant. 
There  the  insurance  was  from  Maryland  to 
Cadiz.  The  vessel  was  captured  in  the  Chesa- 
peake, on  her  way  to  Europe,  but  it  appeared 
that  she  never  intended  to  go  to  Cadiz.  On 
the  argument  the  two  cases  from  Strange, 
above  mentioned,  were  cited,  and  it  was  con- 
tended that  there  was  a  mere  intention  to  de- 
viate. But  the  court  unanimously  determined 
in  favor  of  the  underwriters,  on  the  ground 
that  although  the  vessel  was  taken  before  she 
arrived  at  the  dividing  point,  "it  was  not  the 
voyage  intended,  and  not  what  they  meant  to 
insure." 

The  principle  of  the  decision  thus  stated, 
instead  of  denying,  rather  supports  the  posi- 
tion I  maintain.  It  is  true,  Lord  Mansfield 
says,  that  in  all  the  cases  where  a  mere  inten- 
tion to  deviate  will  not  vitiate  the  policy,  the 
terminus  a  quo  and  ad  quern  were  certain  and 
the  same.  There  the  terminus  ad  quern  was 
not  the  same.  The  vessel  had  no  intention  to 
go  to  Cadiz.  But  it  does  not  follow  that  where 
the  termini  are  the  same,  the  voyage  is  always 
the  same,  and  cannot  be  distinct.  In  the  case 
of  Way  v.  Modigliani  (2  Term,  30,  1787),  the 
termini  were  the  same,  and  yet  an  intermedi- 
ate voyage  to  the  Banks  of  Newfoundland  was 
held  to  be  distinct. 

The  whole  extent  of  the  rule,  as  stated  by 
his  lordship,  and  which  .appears  to  have  led 
to  some  difficulty  on  the  subject,  is  confined 
to  this,  that  where  the  intention  to  deviate 
will  not  vitiate,  the  termini  must  be  the  same. 
The  criterion  thus  far  was  proper,  and,  ap- 
plied to  the  case  before  him,  was  sufficient  to 
decide  it,  but  it  does  not  serve  to  designate 
every  case  of  a  separate  or  distinct  voyage, 
195*]  *and  I  apprehend  the  correct  ground 
of  the  decision  still  was,  as  is  expressed  in 
the  case,  that  "it  was  not  the  voyage  intended, 
and  not  what  the  underwriters  meant  to  in- 
sure." 

In  the  case  of  Way  v.  Modigliani,  it  will  be 
sufficient  further  to  state  that  the  same  general 
position  was  confirmed.  A  part  of  the  iter 
was  the  same,  but  the  court,  nevertheless,  de- 
termined that  the  voyage  was  distinct,  and 
that  the  policy  never  attached ;  and  Mr.  Justice 
Buller  observed,  in  order  that  the  policy  may 
attach,  "the  vessel  must  have  sailed  on  the 
voyage  insured,  and  not  on  any  other." 

On  the  part  of  the  plaintiff,  the  case  of 
Kewley  v.  Ryan  (2  H.  Bl.,  343,  1794)  has  been 
principally  relied  upon.  In  that  case  the 
termini  of  the  voyage  seem  to  have  been  the 
ground  of  decision.  It  was  an  insurance  from 
Grenada  to  Liverpool.  The  ship  sailed  from 
Grenada,  bound  for  Liverpool,  but  with  a  de- 
sign formed  before  the  commencement  of 
the  voyage  to  touch  at  Cork,  and  she  was  lost 
before  she  came  to  the  dividing  point.  The 
court,  in  delivering  their  opinion,  said,  that 
JOHNSON'S  CASES,  1 


where  the  termini  were  really  the  same,  it  was 
to  be  considered  as  the  same  voyage,  and  a 
design  to  deviate  not  effected,  would  not 
vitiate  the  policy. 

If  the  voyage  insured  in  the  present  case 
had  really  commenced  when  the  vessel  left 
Wilmington,  and  the  purpose  for  which  she 
sailed  to  New  York  did  not  give  it  the  char- 
acter of  a  different  voyage,  I  admit  that  this 
would  be  an  authority  on  the  side  of  the 
plaintiff.  But  if  I  am  right  in  considering  the 
voyage  as  not  being  commenced,  then  the 
terminus  a  quo  did  not  exist ;  then  the  vessel 
can  never  be  considered  as  having  entered  on 
the  voyage  described  in  the  policy.  It  is  ob- 
servable, that  in  the  case  just  mentioned,  the 
counsel  for  the  defendant  stated  another  which 
had  been  tried  before  Lord  Kenyon  at  Guild- 
hall, in  Hilary  Term,  1794,  in  which  his  lord- 
ship nonsuited  the  plaintiff  in  an  action  on  a 
policy  on  the  same  ship,  being  of  opinion  that 
the  case  fell  within  the  decisions  of  Woold- 
ridge  v.  Boydell,  and  Way  v.  Modigliani,  above 
cited ;  and  that  there  was  no  inception  of  the 
voyage.  Nothing  more  is  to  be  found  of  the, 
case,  nor  of  the  opinion  of  Lord  *Ken-  [*1O6 
yon,  except  what  appears  in  Middlewood  v. 
Blakes  (7  Term,  162,  1797),  in  which  all  the 
authorities  on  the  subject  were  adduced,  and 
admitted  to  be  law;  but  the  cause  was  decided 
on  a  ground  wholly  different,  and  his  lordship 
intimated,  that  were  this  question  res  integra, 
he  might  be  of  a  different  opinion. 

If  this  view  of  the  cases  on  the  subject  be 
correct,  I  do  not  consider  myself  as  opposing 
the  whole  current  of  the  English  decisions. 
Some  of  them,  I  think  I  have  shown,  plainly 
support  the  doctrine  I  maintain,  and  if  others 
oppose  it,  they  are  of  a  recent  date,  and  seem 
already  to  be  regretted  in  their  courts.  With 
us  it  is  fairly  vexata  questio,  and  the  reason  and 
principle  of  the  case  carry  to  my  mind  the 
fullest  conviction  that  the  voyage  from  Wil- 
mington to  New  York,  notwithstanding  the 
final  destination  to  Falmouth,  ought  to  be 
deemed  a  distinct  voyage  from  the  one  de- 
scribed in  the  policy.  Indeed,  it  appears  to 
me  repugnant  to  common  sense,  and  scarcely 
possible  to  suppose  that  either  party  ever  im- 
agined the  voyage  to  Falmouth  could  be  con- 
strued to  embrace  the  one  to  New  York. 

On  this  ground  I  am  also  of  opinion  that  a 
new  trial  ought  to  be  granted. 

KENT,  J.     The  two  material  points  are, 

1st.  Was  the  voyage  insured  altered,  and 
was  a  new  voyage  to  New  York  pursuing  at 
the  time  of  the  loss? 

2d.  Was  the  vessel,  when  she  sailed  from 
Wilmington,  competently  equipped  for  the 
voyage  to  Falmouth? 

Upon  the  first  point  it  appears  to  me  evident 
from  the  case,  that  the  vessel,  when  she  sailed, 
took  her  departure  for  Falmouth,  as  the  ulti- 
mate place  of  destination,  and  that  the 
port  of  New  York  was  intended  only 
to  be  touched  at  in  the  course,  of  the 
voyage.  The  voyage  originally  in  contempla- 
tion was  for  Falmouth,  and  the  subsequent 
determination  of  the  captain  to  touch  at  New 
York,  did  not  arise  from  any  new  commercial 
speculation.  It  was  not  to  take  in  new  or  ad- 
ditional cargo  at  New  York,  nor  to  sell,  ex- 


196 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


change,  or  divert  the  destination  of  the  cargo 
197*]  already  *received  and  consigned  to 
Falmouth.  It  was  simply  to  touch  at  the 
Hook  or  at  New  York  for  seamen.  This  was 
the  only  motive  avowed,  and  the  original  in- 
tention of  going  to  Falmouth  with  the  same 
cargo,  by  the  same  party,  and  under  the  same 
consignment,  appears  not  to  have  been  altered 
or  abandoned. 

This  resolution  of  the  captain  to  touch  at 
New  York  for  the  purpose  declared,  was  not 
the  substitution  of  a  new  voyage.  It  was  the 
substitution  only  of  an  indirect  instead  of  the 
direct  iter  or  route  to  the  ultimate  place  of 
destination. 

The  courts  have  gone  a  considerable  length 
towards  giving  us  a  precise  and  definite  crite- 
rion by  which  we  can  test  the  identity  of  a 
voyage.  Where  the  terminu*  a  quo,  or  com- 
mencement of  the  intended  voyage,  and  the  ter- 
minus ad  quern,  or  conclusion  of  it,  be  tne 
same  with  the  termini  of  the  voyage  described 
in  the  policy,  the  voyage  intended,  and  the 
voyage  insured  are  the  same,  notwithstanding 
any  proposed  deviation,  or  the  touching  at  any 
intermediate  port  out  of  the  usual  and  direct 
course  of  the  voyage.  The  cases  of  Carter  v. 
The  Royal  Exchange  Insurance  Company  (Str., 
1349),  of  Tliettuson  v.  Ferguson  (Doug. ,  346),  Of 
Kewley  v.  Ryan  (2  H.  Black.,  344),  and  of  Mid- 
dleicood  v.  Blake*  (7  Term,  162),  have  fully  es- 
tablished these  principles,  and  have  put  the 
the  question  at  rest  in  their  courts. 
••  It  is  not  unusual,  before  the  commencement 
of  a  voyage,  to  contemplate  deviations  from 
the  direct  course  for  the  sake  of  convenience, 
or  for  the  attainment  of  objects  incidental  to 
the  voyage.  But  to  guard  against  the  conse- 
quences of  an  actual  deviation,  it  is  customary 
to  mention  in  the  policy  the  places  out  of  the 
course  at  which  it  is  intended  that  the  vessel 
shall  have  liberty  to  touch.  In  the  present 
case  there  was  no  such  liberty  inserted  in  the 
policy,  and  had  an  actual  deviation  without 
necessity  taken  place,  from  the  usual  and  di- 
rect course  from  Wilmington  to  Falmouth, 
the  defendant  would  have  been  discharged. 
No  such  actual  deviation  is  pretended  here. 
198*]  *The  vessel  foundered  in  a  gale  of  wind 
the  day  after  she  left  port;  and  if  the  testimony 
upon  this  point  is  to  be  credited,  she  was  in 
the  direct  course  to  England.  Considering, 
however,  the  distress  and  sudden  loss,  I  in- 
cline to  think  that  no  permanent  course,  either 
to  the  one  port  or  to  the  other,  had  been  taken. 

I  am  accordingly  of  opinion  with  the  ver- 
dict upon  the  first  point,  because  there  was  no 
alteration  of  the  voyage  insured,  and  the  de- 
termination of  the  captain  to  touch  at  New 
York  was  only  an  intended  deviation. 

The  second  point  in  the  case  is,  whether  the 
vessel  was  competently  equipped  for  the  voy- 
age insured.  This  competency  must  consist 
not  only  in  a  sound  vessel,  but  in  everything 
requisite  for  the  voyage,  in  a  master  of  due 
skill,  and  in  a  sufficient  crew.  (7  Term,  160.) 
The  intention  of  going  to  New  York  for  sea- 
men is  proof  in  the  present  case  that  the  ves- 
sel had  not  a  sufficient  crew.  And  if  we  should 
give  credit  to  the  testimony  of  Seitz,  the  mate 
(which  is,  however,  so  contradictory  as  to  ren- 
der it  of  little  weight),  and  admit  that  the 
usual  complement  of  seamen  was  on  board,  we 
296 


must  take  it  for  granted  that  they  were  engaged 
only  for  New  York,  and  that  the  captain  could 
not,  in  that  case,  without  a  breach  of  faith, 
carry  the  vessel  directly  to  England.  He  was 
under  a  moral  inability  to  go  to  Falmouth  for 
want  of  seamen,  and  this  was  equivalent,  in 
force  and  effect,  to  a  physical  incompetency  to 
perform  the  vovage.  (Middleton  v.  Blakets,  1 
Term,  160.) 

On  this  second  point,  therefore,  I  am  or 
opinion  that  the  verdict  is  against  the  weight 
of  evidence;  and  when  we  take  into  considera- 
tion the  amount  of  the  sum  in  controversy, 
and  that  this  was  not  made  a  direct  point  upon 
the  trial,  I  think  that  there  ought  to  be  a  new 
trial. 

BENSON,  J.,  was  of  opinion  that  a  new  trial 
ought  to  be  granted  on  both  points,  in  which 
he  concurred  with  Mr.  Justice  Radcliff. 

*LEWIS,  J.  In  the  exercise  of  the  [*199 
power  of  granting  new  trials,  courts  of  justice, 
in  my  opinion,  ought  studiously  to  avoid  the 
least  infringement  of  the  legal  and  constitu- 
tional rights  of  juries.  To  examine  facts,  and 
to  determine  the  preponderance  of  testimony, 
belongs  exclusively  to  them,  and  it  is  not  a 
sufficient  reason  for  setting  aside  a  verdict, 
that  the  weight  of  evidence,  in  the  opinion  of 
the  court,  was  on  the  opposite  side.  There  is- 
a  clear  distinction  in  the  books  between  ver- 
dicts against  evidence,  and  such  as  are  against 
the  weight  of  evidence  only,  where  there  has 
been  a  contrariety  of  testimony.  Not  one  in- 
stance, I  believe,  is  to  be  met  with,  where  the 
English  courts  have  granted  a  new  trial  in  a 
case  of  the  latter  description,  unless  where 
some  additional  strong  ingredient  has  entered 
into  the  consideration  of  it,  such  as  suspected 
fraud,  perjury,  or  fqrgery,  which  there  was 
good  ground  to  believe  might  upon  a  second 
trial  be  brought  to  light;  or  where  the  verdict 
has  been  in  consequence  of  the  misconception 
and  misdirection  of  a  judge,  as  was  the  case  in 
Bond  v.  Nutt(Doug.,  352;  Cowp.,  601).  If  the 
case  under  consideration  shall,  on  examination, 
be  found  to  fall  within  the  above  rule,  uncon- 
nected with  any  such  additional  circumstances, 
and  we  are  to  be  governed  by  authority,  no- 
new  trial  ought  to  be  granted. 

To  ascertain  the  fact,  it  will  be  necessary  to- 
examine  the  evidence  as  stated  in  the  case. 
That  on  the  part  of  the  plaintiff  was:  1.  The 
deposition  of  the  mate  "that  the  vessel  found- 
ered at  sea  in  a  gale  of  wind  on  the  7th  Sep- 
tember, 1797,  on  her  direct  voyage  to  England; 
that  she  was  well  manned  and  found,  having 
ten  hands  on  board;  and  the  orders  were  to- 
keep  a  due  east  course;  that  the  captain  and 
seven  hands  were  drowned." 

2.  The  captain's  instructions  from  his  owner, 
dated  14th  July,  1797,  directing  him  to  go  from 
North  Carolina  to  Falmouth,  in  England. 

3.  Invoices  and  bills  of  lading,  dated  26th 
August,  1797,  signed  by  the  captain,  for  Fal- 
mouth, in  England. 

*4.  Letter  of  John  Ross,  consignee  [*2OO 
of  the  cargo  at  Falmouth,  acknowledging  the 
receipt  of  advice  from  North  Carolina,  of  the 
consignment  to  him. 

5.  That  the  ship's  complement  was  ten  hands. 

6.  That  the  course  from  Cape  Fear,  in  North 

JOHNSON'S  CASES,  1.' 


1799 


SILVA  v.  Low. 


200 


Carolina,  to  England,  was  nearly  east  till  they 
passed  the  gulf  stream,  and  to  New  York, 
northeast,  after  passing  Cape  Hatteras. 

7.  That  the  loss  happened  in  lat.  33,  51, 
long.  74,  and  that  had  the  wind  been  favora- 
ble, a  more  northerly  course  would  have  been 
steered  for  England ;  that  no  vessel  crosses  the 
gulf  stream  coming  to  New  York,  and  that 
the  vessel  was  well  repaired. 

The  testimony  on  the  part  of  the  defendant 
was:  1.  A  certificate  from  the  officer  of  the 
customs  at  Wilmington,  dated  3d  January, 
1798,  that  the  vessel  cleared  for  the  port  of 
New  York. 

2.  A  protest  of  the  mate  and  one  or  more 
seamen,  made  at  Charleston,  28th  September, 
1797,  stating  the  vessel  to  have  sailed  from 
Wilmington  the  6th  of  the  same  month,  bound 
for  New  York,  and   that  she  foundered  the 
next  day. 

3.  A  letter  to  the  plaintiff  of  the  28th  August, 
1797,  from  his  agent,  stating  that  he  feared 
lest  he  should  have  to  touch  at  the  Hook  for 
seamen. 

4.  A  letter  from  the  same  to  the  same,  dated 
the  day  following,  stating  the  captain's  resolu- 
tion to  touch  at  New  York  for  seamen. 

5.  A  letter  from  the  same  to  the  defendant, 
dated  3d  January,  1798,  stating  that  the  cap- 
tain said  he  had  cleared  for  New  York. 

6.  That  the  vessel  was  built  13  years  ago. 
On  this  state  of  the  evidence,  two  questions 

of  fact  arose,  which  the  judge  reports  were 
given  in  charge  to  the  jury. 

1.  Was  the  vessel  seaworthy? 

2.  Was  she  on  a  different  voyage,  when  lost, 
from  that  stated  in  the  policy? 

And  the  judge  directed  the  jury,  that  if  they 
20 1*]  were  of  *opinion,  either  that  she  was 
not  seaworthy,  or  was  not  sailing  on  the  voy- 
age insured,  when  lost,  their  verdict  must  be 
for  the  defendant. 

The  seaworthiness  of  the  vessel  has  not  been 
contested.  The  second  question  alone  fur- 
nishes the  ground  for  the  present  application. 

On  the  first  argument  it  was  contended  in 
support  of  the  motion,  that  the  plaintiff  ought 
to  have  shown  with  certainty  that  the  vessel 
sailed  on  the  voyage  insured,  and  if  so,  that 
she  made  no  material  deviation. 

On  the  opposite  side  it  was  insisted  that,  ad- 
mitting the  captain's  intention  of  going  to 
New  York,  it  was  only  for  an  incidental  ac- 
commodation, beneficial  to  all  parties;  that  at 
the  least,  Falmouth  was  the  place  of  her  ulti- 
mate destination,  and  having  been  lost  previous 
to  her  arriving  at  the  dividing  point,  it  could 
amount  to  an  intended  deviation  only, 
which  did  not  vitiate  the  policy. 

On  the  second  argument,  a  new  position  was 
assumed  by  the  defendant's  counsel,  that  in 
every  contract  of  insurance,  there  is  an  im- 
plied engagement  on  the  part  of  the  assured, 
that  his  vessel  is  in  every  respect  competent 
to  the  voyage;  that  from  the  clearance,  the 
protest,  and  the  captain's  declaration  of  his  in- 
tention to  go  to  New  York  for  seamen,  it  was 
evident  such  was  not  her  situation,  and  that, 
therefore,  there  was  a  deceit  or  concealment 
of  a  fact  enhancing  the  risk,  and  a  manifest 
breach  of  contract  on  the  part  of  the  assured; 
that  there  was  a  moral  necessity  for  her  going 
to  New  York,  and  that,  therefore,  it  was  a  fair 
JOHNSON'S  CASES,  1. 


inference  that  she  was  bound  on  a  voyage 
different  from  one  insured  at  the  time  of  the 
loss. 

To  this  it  was  replied  that  had  the  vessel 
gone  to  New  York,  and  then  to  Falmouth,  it 
would  have  been  at  most  a  deviation';  that 
being  lost  before  she  came  to  the  dividing 
point,  it  could  be  only  an  intended  deviation, 
and  the  case  of  Foster  v.  Wiimer  was  relied 
on;  that  there  was,  however,  no  evidence  of 
an  actual  intention  to  go  to  *New  [*2O2 
York.  The  ostensible  motive  was  to  procure 
seamen.  This  was  removed  by  the  captain's 
having  been  able  to  procure  the  necessary 
complement  of  men ;  and  that  the  jury  must 
have  been  of  that  opinion. 

From  this  view  of  the  case,  it  appears  that 
there  was  evidence  on  both  sides;  that  it  rested 
altogether  on  matters  of  fact,  which  were  ex- 
plicitly submitted  to  the  jury  ,who  have  de- 
cided on  them,  and  their  decision,  under  the 
circumstances  of  the  case  (there  having  been 
no  misdirection  of  the  judge),  by  the  estab- 
lished rule  of  law,  ought  to  be  final.  , 

But  admitting  the  discretion  of  the  court  to 
extend  to  a  case  circumstanced  like  the 
present,  the  question  then  results,  is  there 
sufficient  evidence  to  warrant  such  a  verdict? 
There  is  great  force  in  the  observation,  "  that 
as  the  only  motive  for  the  captain's  intention 
of  going  to  New  York  was  for  seamen,  and  as 
he  actually  had  his  complement  of  men  when 
he  sailed,  the  inducement  ceased,  and  it  is  a 
fair  presumption  that  the  intention  was  laid 
aside.  It  is  worthy  of  remark,  that  nine  days 
intervened  from  the  28th  August  to  the  6th 
September,  between  the  captain's  declaration 
of  his  intention,  and  of  his  actual  sailing. 
When  the  clearance  was  taken  out  we  do  not 
know;  the  jury,  who  probably  saw  the  docu- 
ments, must  have  been  better  informed  on  this 
point  than  we  are.  It  is  probable,  however, 
that  it  was  taken  out  on,  or,  perhaps,  before 
the  28th  August,  in  which  case  he  would  have 
had  nine  days  at  least  to  have  completed  his 
complement  of  men.  The  mate  has  declared 
that  he  had  such  complement;  that  seven  of 
them  were  drowned,  and  the  jury  have 
believed  him.  But  it  is  said  they  ought  not 
to  have  believed  him,  on  account  of  the  sup- 
posed contradiction  between  his  affidavit  and 
protest.  They  appear,  however,  to  have  found 
no  great  difficulty  on  this  subject,  nor  do  I 
perceive  any.  It  is  a  rule  of  law,  that  appar- 
ent contradictions  in  testimony  are  to  be 
reconciled  if  possible,  for  perjury  is  not  to  be 
persumed.  If  we  attend  to  the  objects  of  the 
two  documents,  the  task  of  reconciling  will 
be  *easy.  That  of  the  protest  is  [*2O3 
merely  in  exculpation  of  the  master  and 
mariners,  by  showing  the  time,  place,  and 
manner  of  the  loss.  It  is  like  protests  in 
many  other  cases,  to  exclude  unfavorable 
conclusions.  The  voyage  to  this  effect  being 
immaterial,  the  protest  is  made  correspondent 
to  the  clearance;  but  when  the  real  destination 
of  the  vessel  becomes  the  object  of  inquiry, 
and  the  mate  is  examined  as  a  witness  to  that 
point,  he  declares  according  to  the  truth  of 
the  fact;  that  although  she  cleared  for  New 
York,  she  was  in  reality  bound  for  Falmouth, 
and  on  her  direct  voyage  thither.  It  is  diffi- 
cult to  believe  a  perjury,  without  showing  an 

297 


303 


SUPREME  COUKT,  STATE  OF  NEW  YORK. 


1799 


inducement.  Where  is  the  inducement  in  the 
present  instance?  It  does  not  appear  that  this 
man  continued,  after  the  loss  of  the  vessel,  in 
the  employ  of  the  plaintiff,  and  if  we  look  for 
the  means  of  dependence  they  will  be  found 
much  greater  in  the  hands  of  the  body  of  mer- 
chants, composing  the  insurance  company, 
than  in  those  of  a  solitary  individual.  Besides, 
the  plaintiff's  conduct  precludes  the  idea  of 
subornation,  for  the  most  important  docu- 
ments of  the  defendant,  viz. :  the  letters  of  the 
plaintiff  from  his  agent,  must  have  been  fur- 
nished by  himself.  Hence,  it  appears  to  me, 
there  was  sufficient  ground  for  the  jury  to 
believe  that  the  intention  of  going  to  New 
York  was  wholly  abandoned. 

But  admitting  the  mate  intended  to  convey, 
.and  that  the  jury  actually  conceived  the  idea 
that  the  vessel  was  on  her  direct  voyage  to 
England,  though  with  the  intention  of  touch- 
ing at  New  York,  it  was  for  them  to  decide 
whether  she  wassailing  on  the  voyage  insured 
or  on  a  different  voyage. 

What  constitutes  a  distinct  voyage  is  always 
a  question  of  fact,  resting  on  the  particular 
circumstances  of  the  case,  and  is  of  course  for 
the  decision  of  the  jury,  and  so  was  the  de- 
termination in  Bond  v.  Nutt.  To  fix  a  crite- 
rion that  shall  determine,  in  all  cases,  between 
&  contemplated  deviation  and  a  distinct  voyage 
is  difficult,  if  not  impossible.  This  was  at- 
tempted by  one  of  the  counsel  on  the 
2O4*]  *last  argument,  but  there  appeared  to 
me  much  more  of  fancy  and  ingenuity  in  his 
physical  and  moral  necessities,  than  of  real 
solidity.  His  moral  necessities  fail  when 
tested  by  the  case  of  Foster  v.  Wilmer;  and  his 
physical,  in  every  exemplification  of  them, 
amount  to  deviations  exjusta  causa,  which  are 
always  excusable.  Intended  deviation  finds 
no  place  under  this  distinction.  In  Foster  v. 
Wilmer,  the  insurance  was  from  Carolina  to 
Lisbon,  and  at  and  from  thence  to  Bristol.  At 
Lisbon  the  captain  took  in  salt  for  Falmouth; 
the  ship  was  taken  before  she  reached  the 
dividing  point,  and  it  was  held  an  intentional 
deviation  only.  So  in  the  case  of  Carter  v. 
TJie  Royal  Exchange  Insurance  Company,  the 
insurance  was  from  Honduras  to  London,  and 
a  consignment  for  Amsterdam,  a  loss  happened 
as  above,  and  the  decision  was  the  same. 

In  both  these  cases,  the  deviation  was  in- 
tended previous  to  the  ship's  leaving  port. 
The  moral  necessity  of  touching  at  the  inter- 
mediate ports  existed  in  each,  yet  the  court 
were  of  opinion  that  it  was  the  same  voyage. 
If  there  is  any  general  distinction,  the  only 
one  which  occurs  to  me  is,  where  the  vessel 
has  an  object  in  going  to  a  different  port  dis- 
tinct from,  and  independent  of  the  voyage  in- 
sured. In  the  present  instance,  if  she  was 
going  to  New  York,  it  was  not  for  a  purpose 
distinct  from  the  voyage  to  England,  it  was  for 
the  purpose  of  procuring  seamen  for  that  voy- 
age. Falmouth  was  her  place  of  ultimate 
destination,  it  was  the  terminus  ad  quern,  and 
her  going  to  New  York  could  have  been  but  a 
deviation. 

In  Pond  v.  Nutt,  the  insurance  was  at  and 
from  Jamaica  to  London,  warranted  to  sail  on 
or  before  the  first  day  of  August.  The  vessel 
sailed  from  St.  Ann's,  in  Jamaica,  on  the  26th 
day  of  July,  for  Bluefields,  in  the  same  island, 
298 


to  join  a  convoy.  She  arrived  there  on  the 
28th,  and  was  detained  by  an  embargo  till  after 
the  1st  August.  One  question  was,  did  the 
policy  ever  attach,  which  depended  on  the 
fact  whether  her  departure  for  London  was  her 
sailing  from  St.  Ann's  or  from  Bluefields. 
The  other  was,  whether,  if  the  voyage  com- 
menced on  her  sailing  *from  St.  Ann's,  [*2OS 
her  deviation  wasexjuxta  causa,  and  excusable, 
or  such  as  vacated  the  policy.  The  court  de- 
cided that  the  voyage  commenced  on  the 
vessel's  leaving  St.  Ann's,  and  of  course  that 
the  policy  attached;  and  the  reason  assigned 
is,  that  she  left  St.  Ann's  with  her  cargo, 
papers,  master,  &c.,  on  board,  and  did  not  go 
to  Bluefields  for  any  purpose  independent  of 
the  voyage.  So  in  the  present  case,  if  there 
was  really  an  intention  of  going  to  New  York, 
it  was  not  for  a  purpose  independent  of  the 
voyage  to  Falmouth;  but,  on  the  contrary,  it 
was  for  a  purpose  connected  with  that  voyage; 
she  also  had  her  cargo  on  board ;  all  her  docu- 
ments (the  clearance  excepted),  invoices,  bills  of 
lading,  and  consignment  were  for  Falmouth. 
This,  then,  was  the  place  of  her  ultimate  des- 
tination, and  the  intention  of  touching  at  New 
York  was  at  most  a  contemplated  deviation. 
Thus,  in  every  view  in  which  this  question  is 
susceptible  of  being  placed,  I  think  the  ver- 
dict right,  and  that  it  ought  to  stand.  But  it 
is  principally  on  the  ground  that  it  was  a 
question  exclusively  for  the  jury,  and  that  it 
was  fully  and  properly  submitted  to  them  by 
the  judge  who  tried  the  cause,  that  I  found 
my  opinion  that  the  defendant  ought  to  take 
nothing  by  his  motion. 

LANSING,   Ch.  J.,  declared  himself  to  be  of 
the  same  opinion. 

New  trial  granted. 

See  Post,  336. 

Cited  in-83  Caine's,  277 ;  4  Johns.,449 ;  11  Johns.,261 ; 
3  Rob.,  476 ;  8  Daly,  393 ;  Olcott,  115 ;  3  Wood  &  M.,  447. 


NEILSON  v.  BLIGHT. 

1.  Trust — Knowledge  of  Cestui  que  trust.  2. 
Debtor  and  Creditor — Creditor  First  in  Pos- 
session. 

Where  an  agent  received  goods  upon  condition  to 
pay  B.  a  certain  sum  out  of  the  first  proceeds  there- 
of, which  acceptance  so  made  was  afterwards  ap- 
proved by  the  principal,  the  agent  was  held  bound 
to  pay  B.  the  sum  stipulated,  notwithstanding1  the 
goods  had  been  previously  assigned  by  the  princi- 
pal to  C.,  but  without  the  knowledge  of  the  agent. 
Where  a  trust  is  created  for  the  benefit  of  a  person, 
though  without  his  knowledge  at  the  time,  he  may 
affirm  the  trust  and  enforce  its  execution. 

Citations— Pothier  Oblig.,  n  73;  2  T.  B.,  63. 

THIS  was  an  action  of  assumpsit  for  money 
had  and  received  by  the  defendant  to  the 
use  of  the  plaintiff.     Plea  non  assumpsit. 

*The  cause  was  tried  at  the  last  [*2OO 
March  Circuit  in  the  city  of  New  York,  before 
Mr.  Justice  Kent,  when  a  verdict  was  taken 
for  the  plaintiff,  subject  to  the  opinion  of  the 
court,  on  the  following  case,  with  liberty  for 
either  party  to  turn  the  case  into  a  special 
verdict. 

JOHNSON'S  CASES,  1. 


1799 


NETLSON  v.  BLIGHT. 


200 


Dixon,  Williams  &  Co.,  merchants,  of  Exe- 
ter, in  England,  purchased  goods  of  the  plaint- 
iff to  a  considerable  amount,  with  orders  to 
have  them  shipped  from  New  York  to  Madei- 
ra; and  they  appointed  one  Green  as  their 
agent  to  receive  the  goods,  and  see  them 
shipped.  Green,  in  March,  1791,  went  from 
New  York  to  Madeira,  and  soon  after  his 
arrival  there,  disposed  of  two  cargoes,  on 
account  of  Dixon,  Williams  &  Co. ,  which  were 
shipped  by  the  plaintiff,  and  delivered  to  him 
(Green)  as  the  agent  of  Dixon,  Williams  & 
Co. 

Dixon,  Williams  &  Co.,  being  largely  in- 
debted to  Barings,  Short  &  Collyns,  bankers 
in  Exeter,  on  the  4th  June,  1791,  made  an  as- 
signment of  all  their  wines,  goods,  wares  and 
merchandizes  in  Madeira,  and  the  proceeds 
thereof  to  C.  Baring,  towards  payment  of  the 
debt  due  to  Barings,  Short  &  Collyns.  In 
consequence  of  this  assingment,  C.  Baring 
fitted  out  a  vessel,  called  the  Minerva,  and 
appointed  one  William  Raddon  master,  with 
orders  to  go  to  Madeira,  and  receive  the  wines 
so  assigned,  and  carry  them  to  Jamaica  or  to 
Philadelphia,  for  the  account  of  C.  Baring. 

Raddon,  before  he  sailed  from  England,  re- 
ceived a  power  of  attorney  from  Dixon,  Will- 
iams &  Co. ,  to  act  for  them  according  to  cir- 
cumstances, as  he  should  think  fit.  Raddon 
arrived  at  Madeira,  received  the  wines  from 
Green,  and  shipped  them  on  board  of  the 
Minerva  for  Jamaica.  Previous  to  the  delivery 
of  the  wines  to  Raddon,  it  was  agreed  and 
stipulated  between  him  and  Green,  that  the 
wines  should  not  be  delivered  by  Raddon, 
unless  upon  condition  that  the  sum  of  £1,500 
sterling  should  be  paid  to  the  plaintiff  out  of 
the  first  proceeds  of  the  wines,  and  thereupon 
Raddon  executed  a  bond  or  instrument  in 
writing,  dated  the  llth  July,  1791,  by  which, 
2O  7*]  after  reciting  *that  he  acted  in  behalf 
of  Dixon,  Williams  &  Co.  of  Exeter,  being  by 
them  fully  empowered  and  authorised  by  letter 
of  attorney  to  do  and  act  as  to  him  might  ap- 
pear necessary  for  their  interest,  and  setting 
forth  the  particular  inducement  to  execute  the 
bond,  he  promised  and  covenanted,  in  behalf 
of  Dixon,  Williams  &  Co.,  not  to  deliver  the 
wines  under  his  care,  until  the  payment  of 
£1,500  sterling  to  the  plaintiff  or  his  order,  was 
first  satisfied  or  directed  out  of  the  first  pro- 
ceeds of  the  wines,  either  at  Jamaica  or  Phil- 
adelphia. 

Raddon  proceeded  with  the  wines  to  Jamai- 
ca, where  he  delivered  them  to  the  defendant, 
who  was  also  the  agent  of  Dixon,  Williams  & 
Co.,  to  whom  Raddon  showed  a  copy  of  the 
instrument  or  paper  he  had  executed.  Sixty 
pipes  of  the  wines  were  landed  at  Jamaica,  and 
the  residue  sent  to  the  brother  of  the  defend- 
ant at  Philadelphia,  who,  the  defendant  in  a 
letter  to  the  plaintiff,  dated  the  22d  October, 
1791,  said  was  by  the  nature  of  the  bond,  to 
pay  the  plaintiff  out  of  the  first  proceeds,  if 
his  whole  demand  was  not  satisfied  in  England; 
and  the  defendant  in  his  letter,  added,  "that 
he  had  promised  Raddon  to  hold  the  wines 
until  accounts  were  received  from  England; 
that  Raddon's  conduct  in  signing  the  paper 
was  approved,  which  accounts  he  had  received 
a  few  days  since."  The  defendant,  afterwards, 
acknowledged  the  receipt  of  an  order  from  Rad- 
JOHNSON'S  CASES,  1. 


don,  in  favor  of  the  plaintiff,  but  said  that  he 
had  orders  from  Dixon,  Williams  &  Co.  to 
hold  the  wines  subject  to  the  order  of  Charles 
Baring,  and  that  he  understood  that  his  brother 
in  Philadelphia  had  settled  the  demands  of  the 
plaintiff,  and  that  by  the  orders  of  Baring  he 
had  already  sent  him  a  great  part  of  the  pro- 
ceeds of  the  wines,  and  that  he  should  pay 
them  to  no  other  person.  The  brother  of  the 
defendant  at  Philadelphia  wrote  to  the  plaint- 
iff on  the  21st  October,  1792,  that  he  (the 
plaintiff)  need  not  fear  eventually  getting  his 
£1,500  sterling,  and  that  he  might  depend  that 
he,  and  his  brother  (the  defendant),  would 
detain  so  much  that  the  plaintiff  should  be  no 
loser. 

* 'Messrs.  Harison,  Hamilton,  and.Z?«7T,[*2O8 
for  the  plaintiff. 

Messrs.  Troup  and  B.  Livingston  for  the 
defendant. 

RADCLIFF,  J.  Here  was  no  lien  on  the  part 
of  the  plaintiff;  the  delivery  was  complete  to 
Green,  the  agent  of  Dixon,  Williams  &  Co., 
and  the  property  was  thereby  fully  changed. 
A  part  of  it  was  converted  into  wine,  the  sub- 
ject over  which  the  lien  contended  for  could 
only  be  exercised,  and  the  residue  was  other- 
wise disposed  of. 

Green,  as  the  friend  of  the  plaintiff,  stipu- 
lated with  Raddon,  that  he  should  not  part 
with  the  wine,  till  the  sum  of  £1,500  was  first 
paid  or  secured  to  the  plaintiff.  For  that  pur- 
pose Raddon  executed  a  bond  or  covenant  to 
the  plaintiff.  Raddon  was  at  this  time  the 
agent  of  Dixon,  Williams  &  Co. ,  and  the  per- 
son to  whom  C.  Baring  also  had  entrusted  the 
care  of  his  interests.  Whether  Raddon  had 
authority  from  his  principals  to  make  the  stip- 
ulation above  mentioned  or  not,  is  perhaps  im- 
material. That  was  a  question  between  him 
and  them  only,  and  could  not  affect  the  plaint- 
iff. By  making  the  stipulation,  and  receiving 
the  wines  as  he  did,  a  trust  was  created  for 
the  benefit  of  the  plaintiff,  which  the  plaintiff 
had  a  right  to  affirm,  and  avail  himself  of. 
This  trust  was  transferred  to  the  defendant, 
who  became  equally  responsible  with  Raddon, 
by  receiving  the  wines  on  the  same  terms. 
That  he  so  considered  himself  is  evident,  since 
he  wrote  to  the  plaintiff  to  that  effect,  and  in- 
formed him  that  his  brother,  by  the  tenor  of 
the  bond,  was  to  see  him  paid,  and  afterwards, 
that  he  always  sxipposed  his  brother  had  paid 
him.  The  brother  acted  only  by  authority 
from  the  defendant,  and  as  his  sub-agent.  The 
first  of  those  letters  imports  a  promise,  and  if 
it  did  not,  there  was  an  implied  assumpsit  in 
law,  the  fund  being  in  the  defendant's  hands, 
and  received  by  him,  for  the  benefit  of  the 
plaintiff,  as  to  £1,500  of  the  first  proceeds. 
The  plaintiff  affirmed  the  trust,  relied  upon 
this  source  of  payment,  and  was  thereby  lulled 
into  security,  and  probably  prevented  from 
taking  a  different  remedy.  It  appears,  too, 
that  the  defendant  received  the  approbation  of 
Dixon,  Williams  &  Co.  for  the  *payment  [*2O9 
of  this  sum  to  the  plaintiff,  and  I  think  he  was 
completely  authorised  so  to  do.  From  the 
facts  in  the  case,  it  may  also  be  inferred,  that 
the  assignment  to  Baring  was  secret  and  fraud- 
ulent, but  it  is  unnecessary  to  resort  to  that 

29» 


209 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


Around,  for  I  adopt  it  as  a  maxim,  that  when 
a  trust  is  created  in  any  manner,  even  without 
the  knowledge  of  the  cextui  que  truM,  he  may 
affirm  it  and  enforce  the  trust. 

I  am  therefore  of  opinion  that  the  plaintiff 
is  entitled  to  judgment. 

KENT,  J.  The  leading  facts  on  which  I 
form  my  opinion  are  these:  The  plaintiff  sold 
goods  to  Dixon,  Williams  &  Co.,  to  the  amount 
of  his  present  demand  and  more.  Green  & 
Raddon,  as  agents  of  Dixon,  Williams  &  Co., 
agreed  and  took  measures  together,  to  secure 
the  plaintiff  his  demand  out  of  the  proceeds  of 
wine  in  their  possession,  as  agents,  and  Rad- 
don, in  pursuance  of  their  mutual  agreement, 
delivered  the  same  to  the  defendant,  who  was 
also  an  agent  of  Dixou,  Williams  &  Co.,  on 
condition  that  the  plaintiff  should  be  paid  out 
of  the  first  proceeds. 

The  defendant,  it  is  to  be  inferred  from  the 
case,  accepted  of  the  wines  so  delivered,  upon 
the  condition  annexed,  and  the  acceptance 
upon  that  condition,  received  the  approbation 
of  Dixon,  Williams  &  Co.  The  defendant 
having  thus  received  the  wines  upon  that  con- 
dition, and  with  the  sanction  of  his  principal, 
became  bound  in  good  faith  to  perform  that 
condition,  and  to  pay  the  plaintiff  out  of  the 
proceeds.  And  what  does  he  accordingly  do? 
fie  writes  to  the  plaintiff  and  acknowledges 
the  receipt  of  the  wines,  and  that  the  condi- 
tion on  which  Raddon  had  undertaken  to  de- 
liver the  wines  to  him  had  received  the  appro- 
bation of  his  principal  in  England,  and  says, 
that  his  brother  in  Philadelphia  was  to  pay  the 
plaintiff  out  of  the  first  proceeds.  The  de- 
fendant's brother  in  Philadelphia,  to  whom 
the  plaintiff  was  referred  by  the  letter  of  the 
defendant,  afterwards  writes  to  the  plaintiff 
that  he  need  not  fear,  for  that  he  and  his 
brother  would  detain  the  money  for  him. 
21O*]  *From  these  facts,  the  law  will  infer 
a  promise  by  the  defendant  to  pay  the  money, 
because  in  justice  and  good  faith  he  was  bound 
to  do  so,  and  gave  the  plaintiff  reason  to  ex- 
pect it.  On  the  receipt  of  the  proceeds,  he 
ought  instantly  to  have  charged  his  principal 
with  the  payment  of  the  money  to  his  order, 
and  to  have  credited  the  plaintiff  with  it. 

All  that  was  done,  for  aught  that  appears  to 
the  contrary,  was  without  anv  knowledge  of 
the  claim  of  Baring,  and  being  done  by  the 
defendant  with  the  funds  in  liis  hands,  and 
without  notice  of  such  claim,  that  of  the 
plaintiff  became  the  paramount  claim. 

But  Raddon  was  the  agent  of  Baring  also, 
and  if  he  really  acted  with  candor  and  good 
faith,  then  all  'this  was  done  with  the  concur- 
rence of  Baring,  and  the  approbation  that  Rad- 
don sought  for  and  received  in  England,  must 
have  proceeded  from  Baring.  If  the  assign- 
ment to  Baring  was  in  construction  of  law  to 
be  adjudged  fraudulent,  and  many  circum- 
stances in  the  case  will  lead  to  such  a  conclu- 
sion, then  his  claim  is  wholly  without  founda- 
tion, in  reference  to  the  other  creditors  of 
Dixon,  Williams  &  Co.  If  the  assignment  be 
admitted  as  valid,  yet  as  the  property  specified 
in  it  did  not  pass  by  actual  delivery,  then,  of 
two  innocent  creditors  who  are  struggling  de 
dnmno  ecitando,  he  who  obtains  the  first  pos- 
session, or  what  is  equivalent  to  it,  the  first 
300 


promise  from  the  part}'  having  possession  of 
the  subject,  ought,  perhaps,  to  be  preferred.1 

I  am,  therefore,  of  opinion  that  the  plainttff 
ought  to  have  judgment. 

LANSING,  Ch.  J.,  was  of  the  same  opinion. 

LEWIS,  J.  It  was  contended  for  the  plaint- 
iff that  the  delivery  of  the  goods  by  him  to 
Green,  on  account  of  Dixon,  Williams  &  Co., 
was  qualified  with  a  condition  that  his  debts 
should  be  first  paid  out  of  the  proceeds  at 
Madeira;  that  his  right  to  stop  the  goods  in 
transitu  gave  him  the  right  to  require  such  a 
stipulation;  that  Green  was,  therefore,  his 
agent  as  well  as  the  agent  of  Dixon,  Williams 
&  *Co.,  that  Green's  stipulation  with  [*211 
Raddon,  therefore,  gave  the  plaintiff  a  lien  on 
the  wines  shipped  to  the  defendant,  and  that 
the  disclosure  of  the  fact  to  him  made  it  obli- 
gatory upon  him  to  secure  payment  to  the 
plaintiff. 

If  this  were  really  the  language  of  the  trans- 
action. I  should  have  little  doubt  of  the  plaint- 
iff's right  to  recover.  But  it  appears  to  me  to 
be  very  different.  The  case  states,  that  the 
contract  for  the  goods  was  made  between  the 
plaintiff  and  Dixon  (in  behalf  of  Dixon,  Will- 
iams &  Co.),  and  that  the  latter  being  obliged 
to  leave  New  York,  Green  was  left  by  him  as 
his  agent,  to  receive  and  ship  the  goods  for 
Madeira.  Green,  in  his  affidavit,  does  not  state 
any  condition  annexed  to  the  delivery  of  the 
goods  by  the  plaintiff;  but  merely  a  request  of 
the  plaintiff  (though  when  it  was  made  does 
not  appear),  that  he  would  secure  to  him  part, 
of  a  debt  due  to  him  from  Dixon,  Williams  & 
Co.,  and  that  in  consequence  of  such  request, 
and  to  secure  to  him  part  of  the  debt,  he  took 
from  Raddon  the  instrument  mentioned.  The 
contract,  then,  between  the  plaintiff  and  Dixon, 
Williams  &  Co.,  was  completely  executed  by 
the  unqualified  delivery  of  the  goods  to  Green. 
This  vested  the  property  in  the  vendees;  they 
became  actually  possessed  of  them ;  they  were 
not  ambulatory,  and  of  course,  a  right  to  stop 
in  transits  did  not  exist.  Such  is  flic  doctrine 
laid  down  in  the  case  of  Lickbai-roic  v.  Mason 
(2  T.  R.,  63). 

Green  further  states,  that  he  sailed  with  the 
goods  some  time  in  March,  1791,  to  the  island 
of  Madeira,  where  they  were  sold,  and  the  pro- 
ceeds invested  in  wines,  which,  together  with 
other  wines  he,  as  agent  for  Dixon,  Williams 
&  Co.,  shipped  in  a  vessel  commanded  by  Rad- 
don, to  the  defendant  in  the  island  of  Jamaica. 
On  the  fourth  June,  1791,  Dixon,  Williams  & 
Co.,  assigned  to  Barings  &  Co.,  all  their  wines, 
goods,  wares  and  merchandises  in  the  island  of 
Madeira,  and  the  proceeds  thereof.  Barings 
&  Co.,  sent  Raddon  out,  with  instructions  to 
receive  the  wines,  and  to  transport  them  to 
Jamaica  or  Philadelphia,  for  the  account  of 
Charles  Baring.  Raddon  was  also  appointed 
an  agent  for  Dixon,  Williams  &  Co.,  but  it 
does  not  *appear  to  have  been  with  the  [*2 1 2 
knowledge  of  Barings  &  Co.  He  arrived  at 
Madeira,  and  there  received  the  wines  under 
the  stipulations  contained  in  the  instrument 
already  mentioned,  and  proceeded  with  them 
to  Jamaica,  where  he  delivered  60  pipes  to  the 

1.— See  Pothler,  Oblijra.  n.  73. 

JOHNSON'S  CAHKS,  1 . 


1799 


JACKSON,  EX  DEM.  RENSSELAER  AND  RENSSELAER,  v.  WHITLOCK. 


212 


defendant,  showing  him  a  copy  of  the  paper, 
and  contenting  himself  with  a  promise  from 
the  defendant  that  he  would  hold  the  wines 
until  accounts  were  received  from  England, 
that  Raddon's  conduct  in  signing  the  said  paper 
was  approved  of;  which  accounts  he  received 
in  October.  Raddon  proceeded  with  the  resi- 
due of  the  wines,  amounting  to  137  3-4  pipes, 
to  Philadelphia,  where  he  delivered  them  to 
Peter  Blight,  the  brother  of  the  defendant. 

It  was  observed  by  one  of  the  counsel  for  the 
plaintiff,  that  the  outward  cargo  was  in  the 
hands  of  Green  till  the  llth  July;  that  the 
wines  were  purchased  out  of  the  proceeds,  at  a 
period  subsequent  to  the  assignment  to  Bar- 
ings &  Co. ,  and,  therefore,  not  affected  by  it. 
But  the  assignment  is  not  confined  to  the 
wines;  its  terms  are  sufficiently  general  to  em- 
brace every  species  of  merchandise  which  the 
assignors  had  at  the  time  in  the  island  of 
Madeira.  And  with  respect  to  the  outward 
cargo  being  there  at  the  time  of  the  assignment, 
the  court  must,  like  jurors,  be  determined  by 
the  probability. 

From  March  until  June,  then,  there  was 
time  amply  sufficient  for  a  voyage  from  New 
York  to  Madeira.  But  were  the  fact  other- 
wise, I  should  doubt  whether  the  plaintiff's 
right  to  recover,  in  this  form  of  action,  was 
strengthened  by  weakening  the  title  of  Bar- 
ings &  Co. 

The  conduct  of  both  Green  and  Raddon  ap- 
pears to  me  censurable,  because  it  is  calculated 
to  defraud  Barings  &  Co.  How  far  Raddon 
may  have  been  liable  on  his  stipulation  is  im- 
material. He  certainly  broke  his  engagement, 
inasmuch  as  he  exacted  no  promise  from  the 
defendant  to  pay  the  plaintiff  out  of  the  pro- 
•ceeds  of  the  wine.  The  promise  to  retain 
them  until  Raddon's  conduct  should  he  ap- 
proved of  in  England,  does  not  amount  to  an 
assumption  to  pay.  Nor  is  the  approbation  he 
213*]  acknowledges  to  have  received,  *in 
my  opinion,  to  be  intended  an  approbation 
from  Barings  &  Co.,  for  in  all  probability, 
from  the  conduct  of  Raddon,  the  defendant 
was'  ignorant  of  their  interest  in  the  wines. 
Being  an  agent  for  Dixon,  Williams  &  Co.,  he 
wanted  their  approbation  of  the  preference 
which  would  be  thereby  given  to  this  appropria- 
tion. Had  he  received  that  of  Barings  &  Co., 
he  could  not  have  hesitated  in  making  the 
stipulated  payment.  But  on  the  contrary, 
previous,  perhaps,  to  a  sale  of  the  wines,  he 
received  orders  from  his  principals,  to  hold 
them  subject  to  the  orders  of  Charles  Baring. 

From  all  the  facts  disclosed  by  the  case,  I 
can  discover  no  principle  on  which  the  plaint- 
iff can  be  entitled  to  recover.  He  had  no  lien 
on  the  property,  nor  is  there  any  assumption 
on  the  part  of  the  defendent,  on  which  this  ac- 
tion can  be  supported. 

My  opinion,  therefore,  is,  that  the  postea 
ought  to  be  delivered  to  the  defendant. 

BENSON,  J.,  having  formerly  been  con- 
cerned as  counsel  in  the  cause,  gave  no  opinion. 

Judgment  for  the  plaintiff. 

Cited  in— 12  Johns.,  281 ;  10  Wend.,  345 ;  24  Wend., 
263;  5  Hill,  615;  1  Johns.  Ch.,  129;  3  Johns.  Ch.,  261 ; 
46  N.  Y.,  317 ;  25  Barb.,  393 ;  3  Bos.,  515 ;  3  Bradf .,  390 ; 
1  Hilt.,  464. 

JOHNSON'S  CASES,  1. 


I  JACKSON,     ex     dem.     RENSSEI,AEB,     AND 
RENSSELAER 

T. 

WHITLOCK. 

Infancy — Ditxeixin — Limitation. 

Whether  an  infant  can  be  disseised,  and  Is  then 
bound  to  bring  his  action  within  10  years  after  com- 
ing of  aare. 

THIS  was  an  action  of  ejectment  for  lands 
lying  in    the    County  of    Columbia,    in 
which,  by  consent  of  parties,  a  verdict  was 
taken  for  the  plaintiff,  subject  to  the  opinion 
of  the  court  on  the  whole  of  the  evidence. 

The  case  briefly  stated  is,  that  a  certain 
farm,  of  which  the  premises  in  question  are 
parcel,  was  in  the  seisin  and  possession  of  one 
Richard  Moore,  upwards  of  60  years  before  the 
trial;  that  he  died  seised  and  possessed,  and  on 
his  death  the  farm  descended  to  and  vested  in 
John  Moore,  his  eldest  son  and  heir  at  law, 
who  entered,  &c.,  and  was  also  seised  and  pos- 
sessed thereof,  upwards  of  60  years  before  the 
trial,  and  so  remained  and  continued  until  the 
year  1743,  when  he  died,  leaving  *issue  [*214 
Richard,  his  son,  an  infant  two  years  old,  and 
two  daughters,  one  of  them  three,  and  the 
other  four  years  old.  That  Eytie  Moore,  the 
widow  of  John  Moore,  and  mother  of  his  in- 
fant children,  remained  with  his  children  on 
said  farm,  and  improved  and  manured  it. 
That  Richard  Moore  died  under  age,  and  un- 
married. That  some  time  in  the  year  1750,  or 
1751,  Eytie  Moore  was  in  possession  of  the 
premises,  and  some  dispute  having  arisen  be- 
tween her  and  John  Van  Rensselaer  about  the 
same,  it  was  referred  to  the  decision  of  Judge 
De  Lancey;  and  after  his  determination,  Mrs. 
Moore  agreed  with  Van  Rensselaer  to  hold  the 
premises  as  his  tenant,  at  a  rent  of  31.  per 
annum,  with  a  right  of  common  in  the  com- 
mon lands  of  his  manor  of  Rensselaer.  That 
she  never  would  accept  a  lease  from  him,  but 
had  a  paper  under  his  signature  promising  her 
the  premises  during  her  life;  and  that  she  had 
actually,  in  consequence,  paid  him  rent.  That 
one  of  the  daughters  became  of  age,  on  the 
28th  day  of  August,  1760,  and  married  one 
Kittle  on  the  12tii  of  December  following,  and 
that  the  other  became  of  age  on  the  8th  of 
December,  1761,  and  married  one  Miller  on 
the  17th  of  December,  1763.  That  Miller  and 
his  wife  lived  on  the  farm  with  the  widow, 
and  worked  on  shares,  until  the  year  1774, 
I  when  they  moved  away,  and  the  widow  re- 
!  mained  solely  possessed  until  the  time  of  her 
death.  After  her  death,  in  the  year  1785, 
Kittle  and  Miller,  and  their  wives,  entered  and 
conveyed  to  the  defendant.  John  Van 
Rensselaer  died  in  February,  1783,  and  by  his 
last  will  devised  certain  lands,  comprehending 
the  premises  in  question,  to  John  I.  Van 
Rensselaer,  one  of  the  lessors  of  the  plaintiff. 

KENT,  J.  The  material  facts  on  which  I 
found  my  opinion  in  this  case,  are  the  follow- 
ing: 

About  the  year  1750,  Eytie  Moore  was  in 
possession  of  the  premises,  and  there  arose  a 
dispute  respecting  the  same,  between  her  and 
the  ancestor  of  the  lessor  of  the  plaintiff.  It 
was  settled  by  reference,  and  Judge  De  Lancey 
was  the  referee.  In  consequence  of  this 

301 


215 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1799 


215*]  reference,  *Mrs.  Moore  surrendered  the 
premises  to  the  ancestor  of  the  lessor  of  the 
plaintiff,  and  acknowledged  him  as  her  land- 
lord. 

This  I  do  not  regard  as  a  fraudulent  pro- 
ceeding on  her  part,  but  as  a  prudent  act,  and 
for  the  best  interest  of  her  daughters,  who 
who  were  infants  and  heirs  at  law,  and  of  whom 
she  was  the  natural  guardian.  It  was  a  fair 
and  amicable  settlement  of  a  question  respect- 
ing the  premises,  and  preferable,  perhaps,  to 
taking  other  steps  which  would  involve  her 
and  her  children  in  an  expensive  lawsuit. 
None  of  her  acts,  however,  could  destroy  or 
weaken  the  rights  of  her  children,  but  I  con- 
sider them  as  dispossessing  the  infants  of  the 
premises,  and  transferring  that  possession  to 
the  ancestor  of  the  lessor  of  the  plaintiff,  and 
who  afterward  devised  the  premises  to  one  of 
the  lessors.  These  daughters  had  their  elec- 
tion on  coming  of  age,  to  disaffirm  all  these 
proceedings,  to  recover  the  possession  back, 
and  call  on  Van  Rensselaer  to  account  to  them 
for  the  rents  and  profits.1  They  came  of  age 
about  10  years  after  the  reference,  and  conse- 
quent acts  of  their  mother,  to  wit:  in  1760  and 
1761,  and  they  married  shortly  after  they 
respectively  came  of  age.  No  act  was  done  by 
them  after  they  came  of  age,  nor  by  their  hus- 
bands after  their  marriage,  that  showed  a  dis- 
sent from  what  their  mother  had  done;  on  the 
contrary,  it  appears  that  their  respective  hus- 
bands offered  to  purchase  of  Van  Rensselaer. 
Miller  and  his  wife  worked  on  the  premises  for 
the  widow,  on  shares,  and  then  moved  away 
in  the  year  1774,  and  left  her  in  sole  occupa- 
tion. She  continued,  from  time  to  time,  to 
acknowledge  herself  tenant,  and  to  pay  rent  to 
the  ancestor  of  the  plaintiff.  This  acknowl- 
edgment she  made  in  1773,  and  paid  rent  as 
late  as  the  year  1783.  Here  was,  I  consider,  a 
possession  of  the  premises  by  the  ancestor  of 
the  lessors  for  upwards  of  30  years,  and  which 
continued  for  more  than  10  years  after  the 
daughters  came  of  age,  and  with  the  knowledge 
and  assent  of  them  and  of  their  husbands. 
They  were,  therefore,  barred  of  their  right  of 
entry  by  not  bringing  their  suit,  according  to 
the  directions  of  the  statute  of  limitations, 
within  10  years  next  after  their  respectively 
216*]  *coming  of  age.  I  am,  therefore,  of 
opinion,  that  their  subsequent  entry  in  1785, 
was  tortious  ;  that  the  ancestor  of  the  lessor 
had  acquired  a  right  of  possession,  which  he 
devised  to  one  of  the  lessors  before  his  ouster, 
and  consequently,  that  the  plaintiff  is  entitled 
to  recover. 

BENSON,  J.,  was  of  the  same  opinion. 

RADCLIFF,  J. ,  not  having  heard  the  argument 
in  the  cause,  gave  no  opinion. 

LEWIS,  J.  The  question  is  whether  John  I. 
Van  Rensselaer,  or  the  ancestor  under  whom 
he  claims,  ever  had  such  a  possession  of  the 
premises  as  will  entitle  him  to  recover  in  this 
action.  It  was  admitted  by  his  counsel,  that 
Mrs.  Moore  could  do  nothing  to  prejudice  the 

1.— See  3  Wils.,  523,  524,  527.  If  a  person  jointly  in- 
terested with  an  infant,  renew  a  lease  to  himself,  the 
infant,  if  the  lease  prove  beneficial,  may  hold  him 
to  have  acted  as  trustee.  1  Bos.  &  Puller,  376. 

302 


inheritance,  but  it  was  insisted  that  her  daugh- 
ters ought  to  have  entered  within  the  ten  years, 
after  they  came  of  age,  being  the  time  allowed 
by  the  statute,  and  that  having  neglected  so  to 
do,  they  are  barred  of  their  remedy,  and  that 
John  Van  Rensselaer,  deceased,  thereby  ac- 
quired such  a  right  of  possession  as  will  be 
sufficient  for  his  representative,  John  I.  Van 
Rensselaer,  to  recover  in  the  present  action. 
These  conclusions  appear  to  be  deduced  from 
false  premises.  They  are  founded  on  the  sup- 
position that  Mrs.  Moore  had  an  independent 
possession  of  the  premises,  at  the  time  of  her 
agreement  with  John  Van  Rensselaer.  But 
the  fact  is  not  so.  If  she  had  a  possession,  it 
must  have  been  as  tenant  to  her  sort,  and  her 
attornment  to  a  stranger  was  void  by  the  stat- 
ute; for  it  was  not  in  consequence  of  a  judg- 
ment at  law,  or  a  decree  of  a  court  of  equity, 
nor  by  consent  of  her  landlord,  who  was 
an  infant.  Nor  could  the  mere  receipt 
of  rent  by  Van  Rensselaer,  independent  of  the 
statute,  have  given  him  a  possession,  so  as  to 
take  it  out  of  the  person  in  whom  the  right 
was,  without  an  actual  entry.  (Bui.  N.  P., 
102.)  And  according  to  1  Rol.  Ab.,  659,  pi. 
12,  he  must  actually  put  the  tenant  out  of 
possession.  The  fact,  however  is,  that  Mrs. 
Moore  was  neither  a  tenant,  nor  had  any  trans- 
ferable possession  of  the  premises  during  the 
infancy  of  her  children,  and  therefore  John 
Van  Rensselaer  could  acquire  none  from  her. 
Whether  she  acquired  a  possession  *sub-  [*2 1 7 
sequently  to  the  year  1760,  the  period  at  which 
her  eldest  daughter  arrived  at  age,  is  not  ma- 
terial to  inquire;  because,  between  that  period 
and  the  year  1785,  when  her  daughters  came 
again  into  possession,  there  was  not,  deducting 
the  period  of  the  war,  a  possession  of  20  years 
in  the  widow.  In  strictness,  she  acquired  no 
possession  until  Miller  and  his  wife  quitted  her 
in  1774.  To  establish  this  position  we  must 
examine  the  relation  in  which  Mrs.  Moore 
stood,  at  the  death  of  her  husband,  to  his 
children,  and  the  estate  that  descended  from 
him  to  them.  She  was  at  first  guardian  in 
socage  to  her  infant  son,  and  at  his  demise 
became  so  to  her  daughters,  who  were  his 
heirs.  She  was  the  person  on  whom,  by  law, 
this  species  of  guardianship  devolved;  and  had 
she  even  been  a  stranger  to  them,  so  careful  is 
the  law  to  protect  the  rights  of  infants,  that  it 
is  in  their  election,  at  any  time,  to  consider  her 
such  or  not.  "If  a  stranger  entereth  into  the 
lands  of  an  infant  within  the  age  of  fourteen 
and  taketh  the  profits  of  the  same,  the  infant 
may  charge  him  as  guardian  in  socage,  and 
after  the  age  of  fourteen  years  he  shall  be 
charged  as  bailiff  at  any  time  before  or  after 
his  age  of  twenty-one  years."  (Co.  Lit.,  89  b. 
and  90  a.  See  also,  Cro.  Car.,  229,  Cro.  Jac., 
219,  and  Fitzh.,  118  ft.)  The  same  rule,  in 
effect,  obtains  in  equity.  "If  a  stranger  enters 
and  receives  the  profits  of  an  infant's  estate,  he 
shall,  in  the  consideration  of  the  court,  be 
looked  upon  as  a  trustee  for  the  infant."  It 
was  so  ruled  by  Ld.  Chan.  Jefferies,  in  the 
case  of  Lord  Falkland.  (2  Vern.,  342.)  In  the 
case  of  Dormer  v.  Fortescue  (3  Atk.,  130), 
Lord  Hardwicke  establishes  the  rule  agreeably 
to  the  authority  of  Lord  Coke.  "Every  person 
(says  he)  who  enters  on  the  estate  of  an  infant, 
enters  as  a  guardian  or  bailiff  for  the  infant." 
JOHNSON'S  CASES,  1. 


1799 


HEERMANCE  v.  DELAMATER. 


217 


As  far  as  respects  the  case  before  the  court, 
the  difference  between  a  guardian  and  a  bailiff 
is  in  name  only.  Each  is  liable  to  account, 
and  neither  can  do  any  act  to  prejudice  the  in- 
fant. As  to  .  the  guardian's  interest  in  the 
estate  of  the  ward,  there  is  some  diversity  of 
sentiment,  which  will  be  found,  however,  not 
218*]  to  affect  this  *case.  He  can  make 
leases  and  grant  copies;  hence  some  have  held 
that  he  had  an  interest;  but  the  better,  and 
more  general  opinion  will  be  found  to  be,  that 
the  demise  is,  in  the  one  case,  to  be  considered 
as  the  act  of  the  infant  by  his  guardian.and  much 
that  the  copyholder  in  the  other  is  in  by  the 
custom.  The  advocates  of  the  former  opinion, 
however,  admit  that  his  interest  is  not  f  orf  eita- 
ble  or  transferable. 

In  the  case  of  Shoplane  v.  Boydle  (Cro.  Jac., 
98),  three  of  the  judges,  against  Walmsley, 
insisted  that  a  guardian  in  socage  had  an  in- 
terest; and  they  inferred  it  from  his  having 
power  to  make  leases,  and  to  make  avowry 
in  his  own  name  and  right,  and  they  referred 
to  the  case  of  Osborn  v.  Garden  &  Joy  (Plowd, 
293),  in  which  case  the  estate  and  interest  of 
the  guardian  is  spoken  of  as  enuring  to  the  use 
of  the  infant;  and  it  is  expressly  adjudged, 
that  the  use  shall  be  required  by  the  infant  of 
every  one  who  has  the  land,  and  that  the  guar- 
dian shall  oust  every  one  that  holds  the  land  to 
another  purpose;  and  in  respect  to  leases,  they 
are  said  to  be,  in  effect,  the  acts  of  the  infant 
by  his  guardian.  The  estate  and  interest  here 
spoken  of  clearly  mean  not  a  beneficial  or 
transferable  interest. 

In  Witti*  v.  Whitewoods  (1  Leo.,  312),  it  is  ad- 
judged by  Anderson,/.,  and  Windham,  J. ,  that 
a  guardian  has  no  interest  whereby  he  can  ac- 
cept a  surrender,  but  has  only  power  by  law 
to  take  the  profits  to  the  use  of  the  heir,  and 
if  he  enter  for  a  condition  broken,  it  must  be 
in  the  name  and  right  of  the  heir.  In  Fitz- 
herbert,  118  h.,  it  is  said  that  a  guardian  in 
socage  hath  no  right  unto  the  land  but  as  bail- 
iff. In  equity,  guardianship  in  socage  is  a 
trust,  and  not  a  profit.  (1  P.  Wms.,  704,  721.) 
But  whether  he  has  or  has  not  an  interest,  is 
not  material  in  the  present  case,  since  his  in- 
terest is  not  transferable,  and  he  can  do  no  act 
but  such  as  is  for  the  infant's  benefit.  In  Har- 
grave's  13th  note  on  Coke's  Commentary  on  the 
123d  sec.  of  Lit. ,  it  is  said  to  be  settled,  that  a 
guardianship  in  socage  is  wholly  for  the  in- 
fant's benefit,  and  is  not  a  subject  of  alienation, 
forfeiture  or  succession;  and  in  the  Commen- 
tary, the  reason  assigned  why  such  guardian 
219*]  shall  not  present  toa*benefice,  in  right 
of  the  heir,  is,  because  he  cannot  account  there- 
for, as  he  can  make  no  benefit  thereof,  the  law 
abhorring  simony;  thus  clearly  establishing 
what  was  before  observed,  that  his  powers  ex- 
tend to  such  acts  only  as  shall  benefit  the  es- 
tate, and  for  which  he  can  account. 

From  these  several  authorities  and  the  state 
of  the  evidence,  the  following  conclusions  ap- 
pear to  me  satisfactorily  to  result: 

1.  That  the  possession  of  a  guardian,  if  any 
he  has,  is  of  a  special  and  qualified  nature, 
recognized  only  where  it  is  to  benefit  the  estate 
of  the  heir,  but  in  no  instance  where  it  may 
injure  it. 

2.  That  it  appears  to  be  the  better  opinion, 
that  the  possession  of  the  estate  is,  in  law,  in 
JOHNSON'S  CASES,  1. 


the  infant;  and  that  the  guardian  has  only  an 
authority  over  it  in  regard  to  the  rents  and 
profits. 

3.  That,  in  the  present  case,  the  infants  were  in 
the  actual  possession;  for  if  their  guardian  could 
transfer  an  interest  to  John  Van  Rensselaer,  it 
must  have  been  one  held  adversely  to  the  in- 
fants; and  as  they  were  living  on  the  farm, 
they  would  be  adjudged  in  possession,  accord- 
ing to  the  rule,  that  "where  two  are  in  pos- 
session, the  possession  is  to  be  judged  in  him 
that  hath  the  right."    (Hob.,  322.) 

4.  That  the  mere  receipt  of  rent  by  John 
Van  Rensselaer,  without  an  actual  entry,  did 
not  give  him  a  possession,  so  as  to  take  it  out 
of  those  in  whom  the  right  existed. 

5.  That  if  John  Van  Rensselaer  had  been 
actually  in  possession,  as  between  him  and  the 
grantors  of  the  defendant,  he  would  have  been 
a  mere  trustee,  and  accountable  to  them  as. 
guardian  or  bailiff,  until  they  arrived  at  age, 
when  they  defeated  the  trust  by  taking  the 
management  into  their  own  hands,  and  so  in- 
capable of  maintaining  this  action  against  their 
representative. 

My  opinion,  therefore,  is,  that  the  verdict 
ought  to  be  entered  for  the  defendant. 

LANSING,  Ch.  J.,  was  of  the  same  opinion. 

[As  RADCLIPF,  J.,  gave  no  opinion,  and  the 
other  judges  were  equally  divided,  no  judg- 
ment was  rendered.] 


*HEERMANCE  [*22O 


DELAMATER. 

Amendment. 

Jurata  and  digtringas  may  be  amended  after  ver- 
dict, without  costs. 

MR.  BURR  moved  to  amend  thejurata  and 
distringas,  in  several  particulars,  so  as  to 
correspond  with  the  actual  proceedings  in  the 
cause. 
Mr.  Metcalf,  contra. 

Per  Curiam.  It  being  after  verdict,  the 
amendment  may  be  allowed  of  course,  and 
without  costs. 

Rule  granted. 


CATHCART  ».  CANNON,  Manucaptor,  &c. 

Bail — Exonereter —  Costs — Demand. 

Where  bail  are  relieved,  on  payment  of  costs,  this 
is  a  condition  which  they  must  offer  to  perform, 
without  waiting  for  a  demand  from  the  plaintiff,  or 
a  tender  of  a  bill  of  costs. 

AT  the  last  January  Term,  the  defendant  was 
exonerated  as  special  bail,  on  payment  of 
costs,  which  not  having  been  paid,  the  plaint- 
iff proceeded. 

Mr.  Burr  now  moved  to  have  the  proceedings 
stayed,  on  the  ground,  that  as  the  costs  had 
never  been  demanded,  nor  any  bill  exhibited. 

808 


230 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


179* 


there  was  no  neglect  on  the  part  of  the  defend- 
ant. 

Per  Curiam.  The  rule  for  the  relief  of  the 
bail,  in  January  Term,  was  conditional,  and  it 
was  the  duty  of  the  defendant  to  have  sought 
the  plaintiff,  and  paid  the  costs  to  him,  with- 
out waiting  for  a  demand,  or  tender  of  a  bill. 
He  can  only  be  relieved  now,  on  paying  instnnter 
the  costs,  ordered  at  the  last  January  Term, 
and  also  the  costs  of  the  subsequent  proceed- 
ings, and  of  resisting  this  application. 


221*]  *SALTONSTALL  v.  WHITE. 

Ejectment — Vacant  Possession — English  Rules. 

The  rules  as  to  proceedings  in  ejectment,  as  for  a 
vacant  possession  in  England,  do  not  apply  to  the 
new  or  unsettled  lands  of  this  country. 

THIS  was  an  action  of  ejectment  for  lands 
belonging  to  "The  Holland  Company,"  in 
the  County  of  Ontario.  The  proceedings  were 
as  for  a  vacant  possession.  It  appeared  that 
the  company  had  surveyed  the  lands,  and  erected 
buildings  on  some  part  of  the  tract. 

Mr.  D.  A.  Ogden  (Mr.  Troup  and  Mr.  B.  Liv- 
ingston on  the  same  side)  moved  that  William 
Willinck  and  three  others,  commonly  called 
"The  Holland  Company,"  be  put  in  the  place 
of  the  present  defendant. 

Mr.  E.  Livingston,  contra.  ( 

Pei-  Curiam.  The  strict  principles  applica- 
ble to  proceedings  in  ejectment  as  for  a  vacant 
304 


possession  in  England,  cannot,  without  mani- 
fest hardship  and  inconvenience,  be  applied  to 
the  unsettled  lands  of  this  country.  Besides, 
the  tract  has  been  surveyed,  and  buildings  have 
been  erected  on  some  part. 

Rule  granted. 


TOWERS  v.  VIELIE. 

Costs — Trespass — Certificate  given  after  Circuit. 

In  actions  of  trespass  and  assault  and  battery,  a 
certificate  of  the  judge  before  whom  the  cause  was 
tried,  to  entitle  the  plaintiff  to  full  costs,  may  be 
given  after  the  Circuit. 

THIS  was  an  action  of  assault  and  battery, 
in  which  a  verdict  was  found  for  the 
plaintiff,  at  the  Circuit,  for  six  cents  damages 
and  six  cents  costs.  A  certificate  was  given 
by  the  judge  before  whom  the  cause  was  tried, 
to  entitle  the  plaintiff  to  full  costs,  but  it  was 
not  given  at  the  trial. 

Mr.  Woodivorth  moved  to  vacate  the  certifi- 
cate, contending  that  it  ought  to  have  been 
given  according  to  the  act,  by  the  judge  of  the 
trial,  sedente  curia. 

Per  Curiam.  The  5th  section  of  the  Act  of 
February  12,  1787,  if  reasonably  interpreted, 
means  only  that  the  certificate  should  be  given 
by  the  judge  who  presided  at  the  trial,  not 
that  the  act  of  making  out  the  certificate  should 
be  performed  at  the  time. 


Rule  refused. 


JOHNSON'S  CASES,  1 . 


[END  OP  OCTOBER  TERM.] 


CASES   ARGUED   AND    DETERMINED 


SUPREME  COURT  OF  JUDICATURE 


STATE   OF   NEW   YORK, 


TKRIVI.  iisr  THE  YKA.R  isoo. 


223*]  *VREDENBERGII 

v. 
MORRIS,  Sheriff,  &c. 


Lien — Judgment — Leasehold. 

A  judgment  is  no  lien  on  the  estate  of  a  lessee  for 
years. 

Citations— 8  Co.,  171;  2  Roll.,  157;  3  Atk.,  739. 

THE  plaintiff  obtained  a  judgment  against 
White  &  Stout,  which  was  docketed,  and 
the  roll  filed,  on  the  22d  March,  1799.  On  the 
12th  of  the  same  month,  White  became  insol- 
vent; on  the  23d,  he  assigned  and  conveyed  in 
due  form  of  law,  and  bona  fide,  all  his  estate, 
real  and  personal,  to  trustees,  for  the  benefit 
of  all  his  creditors.  At  the  time  of  docketing 
the  judgment,  White  had  a  leasehold  estate 
for  the  term  of  14  years,  in  the  city  of  New 
York,  into  which  the  trustees  entered  by 
virtue  of  the  assignment  to  them,  and  which, 
224*]  on  the  15th  April  *they  sold,  in  execu- 
tion of  their  trust,  to  one  Seton  for  $1,900. 

On  the  13th  May,  1799,  a  fi.  fa.  issued 
on  the  judgment  above  mentioned,  which  was 
delivered  to  the  defendant,  as  Sheriff  of  New 
York,  with  directions  to  seize  and  sell  the 
leasehold  estate  of  White.  The  defendant  re- 
turned on  the  execution  nulla  bona,  conceiving 
that  he  had  no  power  to  sell  the  leasehold  es- 
tate, and  there  was  no  other  property. 

Mr.  Pendleton  for  the  plaintiff,  and  Mr. 
Mtinro,  for  the  defendant,  submitted  the  ques- 
tion, whether  the  leasehold  estate  was  bound 
by  the  plaintiff's  judgment,  and  liable  to  be 
sold  on  the  execution,  and  if  so,  it  was  agreed 
that  the  defendant  should  immediately  pay  the 
debt  due  to  the  plaintiff. 

LANSING,  Ch.  J.,  delivered  the  opinion  of 
the  court: 

The  determination  of  this  question  depends 
upon  the  construction  of  the  statute  of  this 
State,  passed  the  19th  March,  1787.  The 
second  section  provides  that  no  judgment  shall 
affect  any  lands  or  tenements,  as  to  purchasers 
or  mortgagees,  but  from  the  time  of  filing  the 
JOHNSON'S  CASES,  1.  N.  Y.  REP.,  1 


roll;  and  the  third  section  extends  the  provis- 
ion to  the  time  of  docketing.  These  sections 
are  transcripts  of  the  statutes  of  29  Car.  II.  ch. 
13,  14,  and  4  and  5  Wm.  and  Mary,  ch.  20. ;  but 
the  section  which  precedes  them,  subjecting  all 
lands,  tenements,  and  real  estate  of  debtors,  to 
be  sold  for  the  satisfaction  of  their  debts,  or 
execution,  is  a  departure  from  the  English 
law. 

When  this  question  was  first  presented,  I 
had  doubts  whether  the  docketing  of  the  judg- 
ment did  not  bind  the  interest  of  the  tenant 
for  years,  as  comprised  within  the  terms, 
lands,  tenements,  or  hereditaments.  If  it  did, 
the  delivery  of  the  fi.  fa.  in  this  instance  could 
only  operate  upon  White's  remaining  property, 
the  mere  personal  chattels.  The  word  tene- 
ment in  legal  signification,  is  appropriate  to 
real  estate  and  imports  everything  that  may  be 
*holden,  if  it  be  of  a  permanent  nat-  [*225 
ure;  hence  it  is  construed  to  be  a  term  more 
comprehensive  than  land.  This,  however,  is 
merely  a  restraining  statute.  It  creates  no 
positive  rule  on  the  subject.  It  purports  to  re- 
strain the  operation  of  the  law  already  in  ex 
istence;  and  to  enable  us  to  give  it  a  proper  inter- 
pretation, it  is  necessary  to  examine  what  was 
held  to  be  the  law,  before  the  passing  of  the 
statute  of  29  Car.  II.  This  appears  from 
Fleetwood's  case,  8  Co.,  171,  in  which  it  is 
laid  down,  that  a  bona  fides&le  of  a  term  for 
years,  after  a  judgment,  is  good;  but  not  after 
execution  awarded,  and  for  this  is  cited  2  Roll. , 
157,  and  several  cases  from  the  Year  Books. 
(2  Hen.  IV.,  14;  11  Hen.  IV.,  7;  9  Hen.  VI., 
58.)  This  shows  how  the  law  stood  before  the 
statute. 

In  the  case  of  Burden  \.  Kennedy  (3  Atk., 
739),  Lord  Chancellor  Hardwicke  held  that  a 
leasehold  estate  was  affected  by  a  fieri  facia* 
lodged  in  the  sheriff's  office.  This  was  a  long- 
time after  the  English  statutes  first  above  men- 
tioned were  passed,  and  it  shows  that  the  same 
doctrine  as  to  this  point,  had  prevailed  both 
before  and  after  the  passing  of  those  statutes. 

We  are,  therefore,  of  opinion  that  the 
docketing  of  the  judgment  does  not  bind  a 

20  305 


225 


SUPREME  COURT,  STATE  OK  NEW  YORK. 


1800 


term  for  years,   and  that  the  plaintiff  take  j 
nothing  by  his  motion. 

i 
Rule  refused. 

Cited  in— 19  Johns.,  75 ;  2  Cow.,  498;  7  Wend.,  466; 
17  Wend.,  675;  20  Wend.,  420. 


226*]  *LE  ROY,  BAYARD  AND  M'EVERS 

c. 
GOUVERNEUR. 

Marine  Insurance — "Free  from  average,  unless 
general " — Actual  Total  Loss. 

On  a  policy  of  insurance  containing  the  usual 
warranty  "  that  corn,  &c.,  shall  be  free  from  aver- 
age under  seven  per  cent,  unless  general,"  the  in- 
sured can  only  recover  for  general  average,  or  for 
an  actual  as  distinguished  from  a  technical  total 
loss. 

Citations— 3  Burr.,  1550;  Park,  114,  116;  Millar, 
359;  Marsh.,  138-155. 

THIS  was  an  action  on  a  policy  of  insurance 
on  goods  shipped  on  board  the  Anne  and 
Mary,  at  and  from  New  York  to  Maderia. 
The  plaintiffs  declared  for  a  total  loss,  by  the 
perils  of  the  sea. 

On  the  trial  before  Mr.  Justice  Kent,  at  the 
last  March  circuit,  in  the  city  of  New  York,  a 
special  verdict  was  found,  which,  as  far  as  the 
facts  are  material  to  be  noticed,  stated  that  the 
policy  was  subscribed  by  the  defendant,  on 
the  10th  September,  1798;  that  it  was  accom- 
panied with  the  usual  memorandum  in  car^o 
policies,  by  which,  among  other  things,  gram 
of  all  kinds  was  warranted  by  the  assured, 
"  free  from  average  under  7  per  cent,  unless 
general;"  that  the  ship  was  laden  with  corn 
and  staves,  to  wit:  5,514  bushels  of  Indian 
corn,  of  the  value  of  $2,983,  and  staves  to  the 
value  of  near  $300;  that  she  proceeded  on  her 
voyage  on  the  16th  September,  1798,  and  was 
overtaken  by  a  storm  on  the  21st  of  the  same 
month,  and  on  the  27th  became  so  much  in- 
jured that  she  was  obliged  to  seek  a  port,  and 
on  the  17th  October  arrived  at  New  Castle,  on 
I  he  Delaware,  where  she  could  get  no  repairs, 
and  could  find  no  stores  in  which  to  put  her 
rargo;  that  the  yellow  fever  raged  violently  at 
Philadelphia  at  that  time,  and  she  remained  at 
New  Castle  until  it  abated;  that  on  the  30th 
October  she  proceeded  to  Philadelphia,  and 
on  unlading  her  cargo  there,  all  the  corn  was 
found  to  be  so  much  damaged  as  to  be  un- 
merchantable, and  unlit  to  be  re-shipped;  that 
a  considerable  quantity  of  the  lumber  had 
been  thrown  overboard  during  the  storm,  for 
the  preservation  of  the  ship  and  the  residue  of 
the  cargo;  that  the  plaintiffs  received  intelli- 
gence of  the  loss  on  the  24th  November,  and 
on  the  same  day  gave  notice  thereof  and  made 
227*]  due  proof  *of  the  loss  and  their  interest 
and  abandoned  to  the  defendant  and  the  other 
insurers. 

The  question  which  arose  on  the  special 
verdict  was,  whether  the  plaintiffs  were  en- 
titled to  recover  for  a  total  loss,  or  for  a 
general  average  only. 

Mr.  D.  A.  Of/den  and  Mr.  Harison  for  the 
plaintiffs. 

806 


Mr.  Trovp  and  B.  Livingston  for  the  de- 
fendant. 

Per  Caria-m.  There  is  no  doubt  that  the 
plaintiffs  are  entitled  to  recover  a  proportion 
of  the  general  average  occasioned  by  the  jetti- 
son. The  ship,  freight  and  cargo  must  con- 
tribute to  this  loss.  The  claim  for  a  total  loss 
depends  on  the  construction  to  be  given  to  the 
exception  in  the  memorandum,  "  free  from 
average  unless  general."  The  French  writers 
Valin,  Emerigon  and  Pothier,  consider  it  as 
protecting  the  underwriter  from  every  partial, 
but  not  against  any  total  loss. 

The  English  construction  is,  that  the  pro- 
tection extends  to  all  losses  except  an  actual, 
as  distinguished  from  a  technical  total  loss. 
(3 Burr.,  1550:  Park,  114, 116;  Millar,  359,  S.  C.) 
The  clause  appears  to  have  been  introduced  in 
the  year  1749,  and  the  English  decisions  upon 
it  recognize  a  usage  comformable  to  this  con- 
struction, coeval  with  the  introduction  of  the 
clause. 

We  are,  therefore,  of  opinion  that  the  rule 
must  be  the  same  with  us,  and  of  course,  that 
the  plaintiffs  can  recover  for  the  general 
average  only.  (Marshal,  138-155.) 

Judgment  accordingly. 

Approved— 1  Caine,  211-13. 

Distinguished— 3  Rob.,  543. 

Cited  in— 2  Johns.  Cas.,  247 ;  14  Johns.,  145 ;  4  Wend., 
43;  19  N.  Y.,  277;  44  N.  V.,  19;  9  Hun.,  386;  17  Barb., 
307;  1  Rob.,  499;  12  Leg.  Obs.,  76:  7  How.  <U.  S.),(WC. 


*WELLS  [*228 

V. 

NEWKIRK,  Executor  of  PIERSOX. 

Justices  of  the  peace  have  no  jurisdiction  in  ac- 
tions by  or  against  executors  or  administrators. 

TN  error  on  certwrari  to  a  justice's  court. 

The  principal  error  assigned  was,  that  the 
defendant,  who  was  plaintiff  below,  sued  in 
the  capacity  of  an  executor,  and  that  a  justice 
has  no  jurisdiction  in  any  case  in  which  an 
executor  is  a  party. 

Mr.  Bogardits  for  the  plaintiff. 
Mr.  Champlin  for  the  defendant. 

Per  Curium.  We  think  that  the  exception 
to  the  jurisdiction  of  the  justice  is  well  taken. 
The  statute  from  which  he  derives  his  authori- 
ty applies  only  to  cases  in  which  the  partie< 
act  in  their  own  right,  and  not  to  cases  in 
which  they  appear  in  autre  drmt.  This  is  to 
be  collected  from  the  general  tenor  of  tin- 
statute,  and  the  provisions  contained  in  it. 
All  its  process  and  the  judgments  to  be  given 
under  it,  are  founded  on  the  idea  of  personal 
responsibility.  Thus  the  defendant  may  be 
arrested  by  warrant,  without  any  exception  as 
to  the  character  or  capacity  in  which  he  may 
be  sued;  the  judgment  to  be  given  operates 
against  him  in  his  own  right;  the  execution  is 
to  be  issued  against  his  person,  or  his  individ- 
ual property,  ami  every  proceeding  contem- 
plates the  subject  of  the  suit  as  a  demand 
JOJINSOX'S  CASES,  1. 


1800 


MOTT  v.  DOUGHTY,  ADMINISTRATOR,  &c. 


228 


against  him  in  his  private  capacity.  The  jus- 
tice cannot  try  the  plea  of  plene  administrant, 
without  entering  into  the  whole  of  the  execu- 
tor's administration,  and  of  course  deciding  on 
questions  of  property  to  a  much  greater  amount 
than  could  be  intended  to  be  submitted  to 
him.  The  executor  cannot  plead  outstanding 
debts,  without  being  exposed  to  equal  difficul- 
ties. No  judgment  can  be  rendered  for  assets 
infuturo,  nor  against  the  property  of  his  tes- 
tator. In  short,  all  the  rights  of  an  executor 
at  common  law  would  be  invaded,  if  subject 
to  the  proceedings  under  this  statute. 

Similar  objections  and  difficulties  occur  in 
the  case  of  an  executor-plaintiff.  When  a 
229*]  non-resident,  he  is  not  *entitled  to  the 
benefit  of  a  warrant,  without  giving  security 
as  other  persons,  to  pay  the  debt  or  damages, 
and  costs,  in  case  judgment  be  given  against 
him.  The  defendant  may  have  demands 
against  his  testator,  which  he  would  be  bound 
to  set  off  in  the  action,  and  a  balance  might 
thus  be  found  against  the  executor,  and  he 
would  be  liable  to  judgment  and  execution 
against  him  in  his  private  capacity,  in  the 
same  manner  as  if  he  was  defendant.  By  the 
statute,  each  party  is  obliged  to  plead  and  set 
off  any  demand  he  may  have  against  the  other, 
and  the  proceedings  before  the  justices  are, 
in  this  respect,  in  the  nature  of  cross  actions. 
An  executor,  therefore,  when  a  plaintiff,  is 
liable  to  the  same  difficulties,  and  although  in 
the  progress  of  a  suit  they  may  not  occur  fre- 
quently, it  is  no  answer  to  the  argument 
against  the  authority  of  the  justice.  If  a 
court  has  not  power  to  do  complete  justice  be- 
tween parties,  in  every  shape  in  which  their 
rights  may  be  presented,  it  ought  not  to  inter- 
fere. 

It  is  true,  that  executors  and  administrators 
are  incidentally  named  in  the  statute,  for  the 
purpose  of  exempting  them,  when  plaintiffs, 
from  the  payment  of  costs,  from  which  it  has 
been  inferred,  that  the  Legislature  intended 
that  they  should  be  subject  to  the  jurisdiction 
of  justices.  But  no  such  power  is  directly 
given,  and  no  inferior  court  can  assume  juris- 
diction by  inference  or  implication. 

On  the  whole,  we  are  of  opinion,  that  the 
justice  had  no  jurisdiction,  and  that  the  judg- 
ment, for  this  reason,  ought  to  be  reversed. 

Judgment  reversed. 

Cited  in— 12  Johns.,  467 ;  3  Wend.,  268 ;  24  Wend., 
240;  4  Park.  Cr.,  230. 


23O*]  *MOTT 

v. 
DOUGHTY,  Administrator,  &c. 

Evidence  —  Subscribing  Witness  Dead. 

Where  the  subscribing:  witness  to  a  bond  is  dead, 
proof  of  his  handwriting  is  sufficient. 

Citations-12  Mod.,  607;  12  Vin.,224;  Comb.,  248; 
Skin.,  269;  1  Ld.  Raym.,  734;  Peake  N.  P.,  100;  Esp. 
Cas.,  2  ;  see  7  Term  R.,  266,  nnte. 


at  the  last  August  sittings  in  the  city  of  New 
York. 

The  plaintiff  proved  the  hand-writing  of 
the  subscribing  witness  to  the  bond,  and  that 
both  he  and  the  obligor  were  dead. 

On  this  evidence  a  verdict  was  taken  for  the 
plaintiff/subject  to  the  opinion  of  the  court, 
whether  it  was  sufficient  to  authorize  the  ver- 
dict. 

Mr.  Hanson,  for  the  plaintiff,  insisted,  that 
the  evidence  was  prima  facie  sufficient,  and 
ought  to  prevail  when  not  opposed  by  other 
testimony  on  the  part  of  the  defendant. 

Mr.  Hoffman,  for  the  defendant,  contended, 
that  the  plaintiff  ought  at  least  to  have  proved 
the  hand-writing  of  the  obligor,  which  would 
have  been  higher  and  more  direct  evidence  of 
the  ftcecution  of  the  bond  by  him,  than  any 
proof  of  the  signature  of  a  witness,  in  support 
of  which  he  cited  Coghlan  \.  Williamson, 
(Doug.,  93),  and  the  opinion  of  Lord  Kenyon 
in  Wallis  v.  Delancey  (7  Term.  Rep.,  266,  in 
notes.) 

Per  Curiam.  We  are  of  opinion,  that  the 
evidence  was  prima  facie  sufficient.  When 
parties  appeal  to  witnesses  to  attest  their  acts, 
they  must  intend  to  abide  by  the  testimony 
arising  from  that  mode  of  proof;  and,  regu- 
larly, it  is  incumbent  on  them  to  produce  the 
witnesses  themselves,  or  one  of  them,  if  in 
their  power.  If  the  witnesses  be  dead,  their 
hand-writing  is  the  next  regular  proof,  and 
that  must  be  considered  as  competent.  The 
proof  of  their  hand-writing  appears  to  have 
been  the  ancient  practice;  and  the  opinion  of 
Lord  Kenyon  at  Nisi  Prius,  in  the  case  of 
Wallis  v.  Delancey,  cited  on  the  part  of  the 
defendant,  is  the  only  authority  in  opposition 
*to  it.  The  cases  in  support  of  the  [*231 
rule  are  numerous.  (12  Mod.,  607;  12  Vin. , 
224;  Comb.,  248;  Skin.,  269;  1  Ld.  Raym., 
734;  Peake  N.  P.,  100;  Esp.  Cas.,  2,  and  see 
7  Term,  266,  in  note.)  Some  of  them  relate  to 
absent  witnesses,  but  the  principle  in  all  is  the 
same,  as  to  the  point  now  under  considera- 
tion. 

The  hand-writing  of  one  witness  only  was 
proved  in  the  case  before  "us,  and  it  does  not 
appear  that  there  was  any  other. 

Judgment  for  tJie  plaintiff. 

Followed— 4  Johns.,  267. 

Cited  in— 19  Wend.,  443;  25  Wend.,  265. 

See  2  Johnson,  451. 


was  an  action  of    debt  on  a  bond. 
J-     Plea,  the  general  issue. 

The  cause  was  tried  before  Mr.  Justice  Kent, 
JOHNSON'S  CASES,  1, 


NOTE. — Handwriting  of  subscribing  witness,  when 
evidence  of,  admirable. 

Where  wit  nexs  i.s  dead.  Kimball  v.  Davis,  19  Wend., 
437 ;  S.  C.  reversed,  25  Wend.,  259 ;  People  v.  McHenry, 
19  Wend.,  482 ;  Waldo  v.  Russell,  5  Mo.,  387 ;  Borst  v. 
Einpie,  5  N.  Y.,  33;  Murdock  v.  Hunter,  1  Brock., 
135;  Howard  v.  Snelling,  32  Ga.,  195;  Armstrong  v. 
Den,  3  Green  (N.  J.  L.),  186. 

Where  intness  resides  bei/ond  jurisdiction.  Foote 
v.  Cobb,  18  Ala.,  585 ;  Tatum  v.  Mohr,  21  Ark.,  349 ; 
Jackson  v.  Feather  River  etc.  Co.,  14  Cal.,  18 ;  Valen- 
tine v.  Piper,  22  Pick.,  85;  Clardy  v.  Richardson,  24 
Mo.,  295 ;  Gould  v.  Kelley,  16  N.  H.,  551 ;  Teall  v.  Van 
Wyck,  10  Barb.,  376 ;  Gordon  v.  Miller,  1  Ind.,  531 ; 
Van  Dyne  v.  Thayre,  19  Wend.,  162 ;  Clark  v.  Boyd, 
2  Ohio,  56;  Sheby  v.  Champlin,  4  Johns.,  461 ;  Gelott 
v.  Goodspeed,  8  Cush.,  411 ;  Truby  v.  Byers,  6  Pa.  St.. 
347. 

Temporary  absence  insufficient.  Creighton  v.  John- 
son, Litt.  (Fty.)  Sol.  Cas.,  240;  McCord  v.  Johnson,  4 
Bibb  (Ky.),  531 ;  Mills  v.  Twist,  8  Johns.,  94 ;  Gordon  v. 

307 


231 


SUPREME  COURT,  STATE  OK  NEW  YORK. 


1800 


JACKSON,  ex  dem.,  C.  FITZROY,  otherwise 
called  LORD  SOUTHAMPTON,  AND  ANNE, 
His  WIKK,  ET  AI,., 

SAMPLE. 

• 

1.   Ejectment  by  Coparcener.     2.  Id. — Notux — 
Possession  of  Bail&  or  Servant. 

One  of  several  coparceners  may  maintain  eject- 
ment on  her  separate  demise.  A  mere  servant  or 
bailiff,  in  the  possession  of  lands,  is  not  entitled  to  a 
notice  to  quit. 

»  Citations— 1  Moore,  682;  1  Ld.  Raym.,  726;  1  Wils., 
1;  Co.  Litt.,  167  a;  1  Salk.,  391 :  12  Mod.,  86;  5  Mod., 
141 ;  Comb.,  347 ;  2  Co.  Litt.,  93  b ;  106  b.j 

THIS  was  an  action  of  ejectment,  brought  to 
recover  certain  lands  in  a  tract  called 
"Warrensburgh,  in  the  County  of  Montgomery, 
on  a  demise  ^rom  Lord  Southampton  and  his 
wife,  and  the  several  demises  of  the  other 
lessors. 

On  the  trial,  before  Mr.  Justice  Lewis,  at  the 
last  June  Circuit  in  that  county,  it  was  stated 
on  the  part  of  the  plaintiff,  that  the  defendant 
originally  took  possession  of  the  premises  in 
question,  by  permission  of  an  agent  of  the 
heirs  and  devisees  of  Sir  Peter  Warren;  and 
the  plaintiff  proved,  that  on  the  1st  August, 
1763,  the  defendant  applied  to,  and  obtained 
leave  from  J.  Glen,  who  was  an  agent  of  the 
heirs  and  devisees  of  Sir  P.  Warren,  to  take 
possession  of  the  half  of  lot  No.  68,  which  is 
part  of  the  premises  in  question,  and  also,  that 
on  the  18th  August,  1772,  the  defendant  and 
others  on  the  one  part,  and  O.  Delancey,  as 
agent  of  the  heirs  and  devisees  of  Sir  Peter 
Warren,  on  the  other  part,  executed  an  agree- 
ment under  their  hands,  and  in  the  words  fol- 
lowing: 

"This  indenture  made  the  18th  July,  1772, 
between  Johannes  Stein,  Samuel  Sample  and 
others,  of  the  County  of  Tryon,  yeomen,  of 
232*]  the  one  part, 'and  Oliver  Delancey,  *of 
the  city  of  New  York,  for  and  on  behalf  of 
the  heirs  and  devisees  of  Sir  Peter  Warren, 
deceased,  of  the  other  part,  witnesseth;  that 
the  said  parties  of  the  first  part  for  divers  good 
causes,  and  for  and  in  consideration  of  the 
sum  of  five  shillings  current  money  of  the 
province  of  New  York,  to  them  severally  and 
respectively  in  hand  paid,  by  the  said  Oliver 
Delancey,  the  receipt  whereof  they  do  hereby 
acknowledge,  do  by  these  presents  severally 
and  respectively  for  themselves,  their  heirs, 
executors  and  assigns,  covenant,  promise, 
grant  and  agjee  to  and  with  the  said  Oliver 
Delancey,  his  heirs  and  assigns,  that  they  will 
severally  and  respectively  hold,  keep  and  pre- 


serve the  possession  of  the  several  farms, 
pieces  and  parcels  of  land  they  respectively 
reside  on  and  occupy,  in  a  certain  tract  of  land 
commonly  called  Warrensburgh,  and  granted 
by  letters  patent  bearing  date  the  29th  August, 
1735,  to  Charles  Williams  and  others,  to  atid 
for  the  heirs  and  devisees  above  mentioned, 
of,  from  and  against  all  and  every  other  per- 
son or  persons  whatsoever,  claiming  or  to  claim 
the  same,  by,  from  or  under  any  right,  title, 
or  interest  whatsoever;  for  the  true  perform- 
ance whereof,  they  hereby  severally  and  re- 
spectively bind  themselves,  their  heirs,  execu- 
tors and  administrators  unto  the  said  Oliver 
Delancey,  in  the  penal  sum  of  £500,  current 
money  aforesaid;  and  the  said  Oliver  Delan- 
cey, for  himself,  his  heirs,  executors  and  ad- 
ministrators doth  covenant,  grant,  promise  and 
agree,  to  and  with  the  said  parties  of  the  first 
part,  their  heirs  and  assigns,  that  he  will  in- 
demnify and  save  harmless  every  and  each  of 
them  respectively  of  and  from  all  charges  and 
expenses  that  may  accrue  to  them  in  conse- 
quence of  the  true  performance  of  the  afore- 
said covenant,  for  which  purpose  he  binds 
himself,  in  the  like  penalty  of  £500  current 
money  aforesaid,  to  the  parties  of  the  first  part 
severally  and  respectively,  and  their  heirs  and 
assigns.  In  witness  whereof,"  &c. 

It  was  then  proved,  that  the  heirs  of  Sir  P. 
Warren  were  three  daughters,  who  claimed 
the  premises  as  coparceners,  one  of  whom  is 
Lady  Southampton,  who  is  one  of  *the  [*233 
lessors,  and  it  was  admitted,  that  Lord  South- 
ampton had  died  since  the  commencement  of 
this  action.  The  defendant  had  not  received 
any  notice  to  quit  the  premises. 

A  verdict  was  taken  for  the  plaintiffs,  for 
an  undivided  third  part  of  the  premises. 

At  the  last  term  a  motion  was  made  for  a 
new  trial  on  the  following  grounds:  1.  That 
the  demise  to  the  plaintiff  ought  to  have  been 
joint  from  all  the  coparceners,  and  that  he  can- 
not recover  on  the  several  demise  of  one  of 
them  only. 

2.  That  the  defendant  was  entitled  to  a  pre- 
vious notice  to  quit. 

Mr.  Van  Vechten  for  the  plaintiff; 

Mr.  Cady  and  Mr.  Burr  for  the  defendant. 

LANSING,  Ch.  J.  delivered  the  opinion  of  the 
court: 

Two  points  have  been  made  in  this  cause,  as 
reasons  for  setting  aside  the  verdict. 

1.  That  coparceners  cannot  sever  in  eject- 
ment, so  as  to  maintain  the  action  severally. 

2.  That  the  plaintiff  had  neglected  to  give 
'  notice  to  quit. 


Payne,  Mart.  (N.  C.),  72  (but  see  Selby  v.  Clark,  4 
Hawks.  (N.C.),  265;  Barrel  v.  Ward,  2  Sneed.  (Tenn.), 
610 ;  Contra,  Jackson  v.  Feather  River  etc.  Co.  above 
cited. 

Where  witness  cannot  with  due  diligence  he  found. 
Powers  v.  McFerran,  2  S.  &  R.,  44 ;  Jackson  v.  Wal- 
dron,  13  Wend.,  178;  IE.  D.  8.,  153;  Clark  v.  Court- 
ney, 3  Pet.,  519. 

Where  witness  has  become  disqualified  by  interest. 
Tinnin  v.  Price,  31  Miss.,  422;  Robertson  v.  Allen, 
16  Ala.,  106;  Reefer  v.  Zimmerman,  22  Md.,  274; 
Haynes  v.  Rutter,  24  Pick.,  242;  see,  also,  McKinley 
v.  Irvine,  13  Ala.,  681. 

Absence  of  all  subscribing  irttncsses  nnwf  be  ac- 
counted for.  Jackson  v.  Gager,  5  Cow.,  383 :  Jackson 
v.  Christmau,  4  Wend.,  277. 

808 


Where  witness  was  incompetent  at  time  of  execu- 
tion of  instrument  and  of  the  trial,  handwriting  of 
party  proved.  Packard  v.  Dunsmore,  11  Cush.,  283. 

Where  witness  was  incompetent  at  execution  of 
instrument  and  dead  at  time  of  trial  proof  of  his 
handwriting  refused.  Amherst  Bank  v.  Root,  2 
Met.  (Mass.),  522. 

Plaintiff  brought  his  action  before  a  subscribing 
witness  as  justice,  held  he  could  not  give  proof  of 
witness's  handwriting.  Patterson  v.  Shenck,  3  Green 
(N.  J.  L.),  434. 

Foreign  jurixdiction,  as  to  cases  in  which  a  deed 
was  executed  in,  see  Tyng  v.  Boston  etc.  R.  R. 
Co.,  12  Cush.,  279;  Savage  v.  Do  Wolf,  1  Blatehf .,  343 : 
McMinn  v.  O'Connor,  27  Cal.,  238 ;  Clardy  v.  Rich- 
ardson, 24  Mo.,  295. 

JOHNSON'S  CASES,  1. 


1800 


JACKSON,  ETC.,  v.  SAMPLE. 


233 


As  to  the  first  point,  the  doubt  seems  originally 
to  have  been  whether  coparceners  could  join, 
and  not  whether  they  could  sever,  in  an  action 
of  ejectment. 

In  the  case  of  Mittener  v.  Robinson  (Moore, 
682)  two  coparceners  declared  quod  dtmiaerunt, 
this  was  excepted  to,  and  the  exception  was 
held  to  be  well  taken. 

In  the  case  of  Banner  v.  James  (1  Ld.  Raym., 
726)  Holt,  J.,  ruled  that  coparceners  might  join 
in  ejectment,  and  denied  the  case  in  Moore  to 
be  law. 

In  the  case  of  Moi'ris  v.  Barry  (1  Wilson,  1), 
there  were  two  demises  of  the  same  date  for 
the  same  land,  and  for  the  same  term,  to  which  | 
it  was  objected  that  both  lessors  could  not  have  j 
title  at  the  same  time,  and,  therefore,  the  plaint-  j 
iff  could  not  enter  by  virtue  of  both  demises.    | 

This  was  on  error,  after  verdict.     Lee,  Ch.  j 
./.,  in  giving  the  opinion  of  the  court  says,  "if  j 
234*]  by  any  means  whatever,  *the  plaintiff 
can  be  supposed  to  have  a  title  as  laid  in  the 
declaration,  after  a  verdict  we  will  hold  his 
judgment  right,  and  there  is  no  inconsistency, 
but  that  two  leases  of  the  same  term,  and  of 
the  same  lands,  may  be  good." 

Sir  John  Strange,  who  argued  for  the  defend- 
ant, had  put  a  case,  "that  if  there  be  two  joint- 
tenants,  and  one  of  them  make  a  lease  for  the 
whole  land  at  one  time,  and  the  other  make  a 
lease  for  the  whole  land  at  another  time  of  the 
same  day,  the  moiety  of  each  joint-tenant  will 
only  pass,  and  in  such  case  the  plaintiff  could 
not  have  declared  more  properly  than  he  had 
done."  Lee,  adverting  to  this  case,  observes, 
in  the  case  of  two  joint-tenants  each  of  them, 
as  they  are  seised  per  mie  and  per  tout,  may 
make  a  lease  of  the  whole,  although  his  moiety 
will  only  pass. 

That  the  leases  in  this  instance  are  stated  to 
extend  beyond  the  right,  is  evidently  not  the 
ground  upon  whi'ch  the  opinion  of  their  va- 
Hdity  is  founded,  for  their  operation  is  limited 
tq  the  passing  of  their  respective  moieties,  and 
joint-tenants  and  coparceners  have  similar  in- 
terests. Of  consequence,  the  reasoning  applies 
to  this  case.  Indeed,  the  solution  of  a  question, 
whether  a  coparcener  is  legally  competent  to 
make  a  lease  of  his  portion  of  the  joint  estate, 
seems  to  determine  the  controversy.  It  appears 
from  Co.  Litt.,  167  a.,  that  she  is  competent  to 
make  such  lease,  and  it  follows,  that  she  can 
sustain  her  ejectment  on  her  own  demise,  for 
her  proportion  of  the  common  estate. 

The  case  of  Stedmanv.  Page  (1  Salk.,  391;  12 
Mod.,  86,  S.  C.;  5  Mod.,  141,  S.  C.;  Comb., 
347,  S.  C.),  reported  in  Salkeld  by  the  name  of 
Stedmun  v.  Bates,  was  relied  on  by  the  defend- 
ant, to  support  the  doctrine  he  contended  for. 
That  case  was  in  replevin,  in  which  the  defend- 
ant avowed  for  a  moiety  of  rent,  reserved  by 
the  ancestor  of  coparceners,  and  it  was  held, 
that  one  coparcener  cannot  make  such  avowry 
for  a  moiety  of  rent  before  partition.  It  is  also 
said,  that  both  sisters  must  join;  both  make  but 
one  heir,  to  whom  the  rent  descends  as  one  en- 
tire inheritance. 

235*]  *This  avowry  was  by  a  coparcener 
of  a  moiety  of  a  rent,  of  which  the  ancestor 
was  seised.  It  was  before  partition,  and  they 
could  only  entitle  themselves  as  heirs  jointly; 
the  rent  was  there  merely  a  subject  of  contro- 
versy, and  considered  as  a  clioae  in  action  im- 
JOHNBON'S  CASES,  1. 


partible  in  its  nature.  It  would  be  an  extremely 
inconvenient  doctrine,  if  it  were  established  a's 
law,  that  each  coparcener  should  be  permitted 
to  sustain  her  action  separately  for  a  portion  of 
the  rent,  or  that  a  tenant  should  be  subject  to 
several  distresses  before  partition. 

Some  authorities  were  produced  to  show  that 
coparceners  were  compellable  to  join  in  a  pne- 
tipe.  It  is  not  necessary  to  trace  the  reasoning 
on  this  subject.  The  doctrine  respecting  it  ap- 
pears inapplicable  to  the  present  case.  In  drvit- 
ural  actions,  perhaps,  the  reason  for  imposing 
it  on  them  to  join,  was  to  prevent  the  estate  in 
coparcenary  from  being  converted  into  an  es- 
tate in  common,  by  the  mere  recovery,  without 
the  privity  or  consent  of  the  other  coparceners. 
In  actions  of  that  description,  as  well  as  possess- 
ory'actions,  the  common  practice  (during  the 
time  those  actions  were  usually  brought)  of 
summons  and  severance,  disengaged  the  party 
disposed  to  assert  her  right  by  action,  and  en- 
abled her  to  proceed  without  any  embarra.-s- 
ments  from  her  associates. 

We  find  no  process  correspondent  to  sum- 
mons and  severance,  in  ejectment,  and  hence, 
if  any  remains  of  ancient  strictness  should  op- 
erate against  the  plaintiff's  right  of  recovery, 
we  should  be  strongly  opposed  to  it.  We  are, 
however,  satisfied  that  this  is  not  the  case,  and 
that  the  plaintiff  may  well  sustain  this  action 
on  the  first  ground. 

The  second  question  does  not  depend  on  an 
implication  of  law,  arising  from  a  silent  ac- 
quiescence, or  a  series  of  equivocal  acts  as  to 
the  nature  and  duration  of  the  defendant's 
tenure,  but  upon  the  express  agreement  of  the 
parties.  The  terms  of  that  agreement,  on  the 
part  of  the  defendant  and  his  associates,  were, 
"in  consideration  of  your  indemnifying  us, 
we  engage  to  hold  the  land  we  possess  for 
*you  against  all  others,  and  this  with-  [*23G 
out  limiting  any  period,  or  stipulating  any  ser- 
vice or  compensation  for  its  use." 

If  the  defendant  had  been  strictly  a  tenant, 
the  law  would  have  imposed  on  him  the  obli- 
gation of  holding  the  premises  for  his  landlord 
against  all  others.  It  was  an  essential  part  of 
his  duty,  superadded  to  any  rents  or  services 
which  might  have  been  reserved  and  exacted 
from  him  in  that  capacity.  It  has,  therefore, 
not  the  least  analogy  to  the  tenures  of  Frank- 
almoigne  and  Cornage  (Co.  Litt.,  93  b.,  106  b.), 
to  which  it  has  been  likened  in  the  argument. 
In  those  cases  the  services  had  no  necessary 
connection  with  the  land  granted.  In  the  for- 
mer they  were  considered  as  contributing  to 
the  salvation  of  the  soul  of  the  donor  (and  es- 
teemed a  sacred  duty),  in  the  latter  to  the  pub- 
lic security,  by  winding  a  horn  at  the  approach 
of  an  enemy.  Both  tenures  imposed  trouble- 
some services  on  the  tenants;  and  the  tenure  by 
cornage  was  a  species  of  grand  serjeanty,  or  of 
knight-service,  the  former  of  which  being  a 
service  exclusively  attached  to  the  person  of  the 
sovereign. 

A  strong  disposition  has  been  discovered,  for 
a  length  of  time,  to  give  tenancies  at  will  a 
more  determinate  and  certain  duration.  If  any 
circumstance  be  presented  to  afford  a  reason- 
able construction  to  convert  them  into  a  more 
certain  term,  courts  have  uniformly  availed 
themselves  of  it  to  effect  an  object  connected 
with  the  general  convenieuceof  thexommunity ; 

30i> 


236 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


but  there  is  nothing  in  the  contract  between 
the  parties  in  the  present  case,  or  in  their  sub- 
sequent conduct,  which  can  afford  any  ground 
for  that  purpose.  No  rent  is  reserved;  no  pe- 
riodical services  are  to  be  performed;  no  act  by 
which  the  original  contract  can  be  supposed  to 
have  been  varied;  it  presents  simply  the  stipu- 
lation, that  the  land  shall  be  held  by  the  one 
party  for  the  other. 

The  defendant  appears  in  this  instance  to  re- 
sist the  performance  of  the  only  service  for 
which  his  enjoyment  was  permitted,  the  pres- 
ervation of  the  land  he  possessed  for  the  heirs 
and  devisees  of  Sir  Peter  Warren;  he  has  entered 
237*]  *into  a  deliberate  contract  to  perform 
this  service;  he  was  to  hold  it  as  their  servant 
or  bailiff,  and  to  the  performance  of  that  duty, 
we  think,  under  all  the  circumstances,  he  ought 
to  be  strictly  held. 

The  bringing  of  this  action  was  a  legal  de- 
mand, which  could  not  have  subjected  the  de- 
fendant to  any  inconvenience  if  he  had  dis- 
claimed. He  might  have  discharged  himself 
from  the  mesne  profits  and  costs,  by  showing 
the  manner  and  condition  of  his  occupancy. 

We  are,  therefore,  of  opinion  on  both  points, 
that  the  defendant  must  take  nothing  by  his 
motion. 

Rule  refused. 


THE  FREEHOLDERS  AND  INHABITANTS 
OF  GRAVESEND,  Demandants, 

T. 

VOORHIS  ET  AL.,  Tenants. 

Writ  of  Right—  View. 

In  an  action  on  a  writ  of  right,  the  tenants  are  en- 
titled to  a  view  of  the  premises  as  a  matter  of  right, 
in  all  cases,  except  those  in  which  it  is  restrained  by 
the  statute. 

HARISON,    for   the   tenants,  demanded   a 
view  of  the  premises. 

Mr.  Riggs,  contra,  for  the  demandants,  ob- 
jected, on  the  ground  that,  from  the  descrip- 
tion of  the  premises  in  the  count,  and  other 
circumstances  shown  to  the  court,  a  view  could 
not  be  necessary  for  any  beneficial  purpose  to 
the  tenants. 

Per  Curiam.  The  tenants  are  entitled  to  have 
the  view  as  a  matter  of  right,,  and  we  cannot 
refuse  it,  except  in  the  cases  restrained  by  the 
statute. 

Rule  granted.^ 


238*]  *THOMPSON  «.  TOMPKINS. 

Reference — Report — Motion  to  set  oxide  —  Re- 
port in  Defendants  Possession. 

A  motion  to  set  aside  the  report  of  referees  will 
be  heard,  though  it  is  not  tiled,  it  having  been  de- 
livered to  the  defendant's  attorney,  who  kept  it  in 
his  pocket. 

THIS  cause  had  been  referred  to  referees, 
who  reported  in  favor  of  the  defendant, 

1.— See  Revised  Laws,  vol.  1,  p.  89  and  383. 
310 


and  delivered  their  report  to  the  defendant's 
attorney,  which  was  not  yet  filed. 

Mr.  Riggs  applied  for  leave  to  bring  on  the 
argument  of  a  motion  to  set  aside  the  report. 

Mr.  Colernan,  for  the  defendant,  submitted 
whether  the  motion  to  set  aside  the  report 
could  be  heard  before  the  report  was  filed. 

Per  Curiam.  It  does  not  lay  in  the  mouth 
of  the  defendant  to  make  this  objection.  If 
the  report  be  not  filed,  it  is  his  own  neglect, 
and  we  will  not  delay  the  motion  for  that 
reason. 

Rule  granted. 


SMITH  AND  SMITH  t>.  BLAGGE. 

Evidence — Of    Foreign    Record — Attestation. 

The  record  of  a  court  in  another  State  will  not  be 
received  in  evidence,  unless  the  attestation  be  certi- 
fied by  the  presiding  judge,  in  the  manner  directed 
by  the  act  of  Congress.  Laws  of  U.  S.,  Vol.  I.,  p.  115. 

THE  plaintiffs  brought  an  action  of  debt  on 
a  judgment  obtained  in  the  Superior 
Court  of  the  State  of  Connecticut.  The  de- 
fendant pleaded  mil  tiel  record,  on  which  issue 
was  joined. 

A  day  having  been  assigned  for  the  trial, 
Mr.  Hamilton,  for  the  plaintiffs,  produced  a 
copy  of  the  record,  which  was  authenticated 
in  the  mode  directed  by  the  act  of  Congress, 
except  that  the  presiding  judge  did  not  certify 
that  the  attestation  of  the  clerk  of  the  court  in 
Connecticut  was  in  the  usual  form  prescribed 
by  the  laws  of  that  State. 

Mr.  B.  Livingston,  for  the  defendant,  relied 
on  this,  and  other  objections,  against  the  com- 
petency of  the  proof  of  the  record. 

Per  Curiam.  Without  meaning  that  any 
inference  shall  be  drawn  from  the  opinion  now 
delivered,  as  to  the  propriety  of  the  present 
plea,  which  is  conceded  by  the  issue, 
*we  think  the  copy  of  the  record  is  not  [*239 
well  authenticated.  We  cannot  officially  know 
the  forms  of  another  Slate,  and  therefore  they 
ought  to  be  proved.  The  act  of  Congress 
directs  the  mode  of  proof,  and  requires  that 
the  presiding  judge  of  the  court  from  which 
the  copy  is  obtained  shall  certify  that  the  at- 
testation is  in  due  form.  This  not  being  done, 
the  record  is  not  sufficiently  proved. 

On  the  application  of  the  plaintiffs,  the 
court  assigned  another  day  to  produce  a  copy 
duly  authenticated. 


Cited  in-18  N.  Y.,  94;  TJ4  N.  Y., : 
Hemp.,  540. 


S;  45  N.  Y.,32; 


VAN  RENSSELAER  r.  DOLE. 

Case  Made  —  Judgment  —  Stay. 

The  court  will  not  set  aside  a  judgment  entered  on 
a  verdict,  where  a  case  is  made,  nor  hear  the  motion 
for  a  new  trial,  unless  an  order  to  stay  proceedings 
has  been  obtained. 

A  FTER  verdict  for  the  plaintiff,  a  ca.se  was 

-LA.    made  on  which  to  found  a  motion  for  a 

new  trial,  but  the  defendant  omitted  to  ob- 

JOIINSON'S  CASES,  1 . 


1800 


BENTLEY  v.  WEAVER. 


239 


tain  a  certificate  that  there  was  probable  cause 
to  stay  the  proceedings,  and  the  plaintiff 
•entered  judgment  on  the  verdict. 

Mr.  Van  Vechten  moved  to  set  aside  the 
judgment  as  irregular,  and  to  be  heard  on  the 
motion  for  a  new  trial. 

Mr.  Woodworth,  for  the  plaintiff,  insisted 
that  the  defendant  had  been  guilty  of  neglect, 
in  not  obtaining  a  certificate  to  stay  proceed- 
ings, and  that  the  judgment  was  regular. 

Per  Curiam.  It  was  incumbent  on  the  de- 
fendant to  obtain  a  judge's  certificate  to  stay 
the  proceedings,  which  is  expressly  required 
by  the  fourth  rule  of  January,  1799.  Not 
having  done  this,  nor  accounted  for  the  neg- 
lect, we  cannot  interfere. 

Rule  denied. 

N.  B. — The  case  was  afterwards  argued  and 
decided  on  its  merits,  by  consent  of  parties. 

See  post,  279. 

Cited  in-37  Ind.,  80. 


;24O*|     *BENTLEY  v.  WEAVER. 

Change  of   Venue  —  Witnesses  —  Stipulation   to 
Give  Material  Evidence. 

When  the  defendant  moves  to  change  the  venue, 
•on  the  ground  that  the  cause  of  action  arose  in 
another  county,  &c.,  the  venue  will  be  changed,  un- 
less the  plaintiff  will  stipulate  to  give  material  evi- 
dence in  the  county  where  it  is  laid. 

T?MOTT,  for  the  defendant,  moved  to  change 
-C^  the  venue  from  the  City  and  County  of 
Albany  to  the  County  of  Chenango.  The 
motion  was  founded  on  an  affidavit  of  the  de- 
fendant, stating  that  the  action  was  brought 
•on  a  special  agreement  made  in  the  latter 
county,  and  that  the  cause  of  action,  if  any, 
arose  in  that  county,  and  not  elsewhere,  and 
.also  stating  that  eight  or  ten  witnesses,  whose 
testimony  would  be  material  on  the  trial,  re- 
sided in  that  county. 

Mr.  Woodworth,  for  the  plaintiff,  opposed 
the  motion  on  two  grounds. 

1.  That  the  declaration  contained  no  other 
than  the  common  money  counts,  and    that, 
therefore,  the  action  could  not  be  founded  on 
a  special  agreement,  and  the  plaintiff  was  en- 
titled to  retain  the  venue  where  it  was  laid. 

2.  On  an  affidavit  of  the  plaintiff,  stating 
that  the  cause  of  action  arose  in  Saratoga,  and 
that  two  of  his  witnesses  resided  there. 

LANSING,  Ch.  J.,  delivered  the  opinion  of 
the  court: 

The  affidavit  of  the  defendant  as  to  the 
place  where  the  cause  of  action  arose,  is  in  the 


NOTE.— Change  of  venue  on  ground  that  cause  of 
•action  arose  in  another  county. 

Compare  N.  Y.  Code  Civil  Procedure,  sections  218, 
•983,990;  Gen'l  Rules  Pr.,  47, 48 ;  Woodsy.  Van  Rankin,  1 
Caines,  122 ;  Clinton  v.  Crosswell,2  Cames,245 ;  Frank- 
lin v.  Underbill,  2  Johns.,  374 ;  Manning  v.  Downing, 
2  Johns.,  453 ;  Tillinghast  v.  King,  6  Cow.,  591 ;  Seri- 
ally v.  Wells,  1  Cow.,  196 ;  Vanderzee  v.  Van  Dyck,  1 
Cow.,  600. 

Change  of  venue  because  of  residence  of  witnesses. 
See  Gourlay  y.  Shoemaker  (post,  392). 

When  motion  should  he  made.  See  Delavan  v. 
Baldwin,  3  Caines,  104 ;  Rules  Pr.,  above  cited. 

JOHNSON'S  CASES,  1. 


usual  form,  and  instead  of  the  plaintiff's  meet- 
ing the  application  by  stipulating  to  give  evi- 
dence arising  in  the  county  where  the  venue  is 
laid,  he  has  sworn  that  the  cause  of  action 
arose  in  another  county  (Saratoga),  and  that 
two  of  his  witnesses  resided  there:  at  the  same 
time  cautiously  avoiding  the  negative,  that  the 
cause  of  action  did  not  arise  elsewhere.  This 
was  irregular,  and  cannot  assist  him  to  retain 
the  venue  in  Albany. 

As  to  the  other  objection,  although  the  dec- 
laration contains  the  money  counts  only,  yet 
the  special  agreement  may  still  come  in  ques- 
tion, and,  therefore,  unless  the  plaintiff 
*will  stipulate  that  he  will  give  no  evi-  [*24 1 
dence  of  a  special  agreement,  or  that  he  will  give 
material  evidence  arising  in  the  City  and 
County  of  Albany,  the  venue  ought  to  be 
changed. 

Rule  granted. 

See  2  Johnson,  453,  481. 


WEAVEL  «.  LASHER. 

Mandamtis —  To  Enter  Judgment  —  Non»uit  on 
New  Trial. 

Where  a  party  submits  to  a  new  trial  on  the 
merits,  in  a  court  of  common  pleas,  and  is  non- 
suited at  the  trial,  it  is  too  late  to  apply  to  this  court 
for  a  mandamus  to  compel  the  court  below  to  enter 
judgment  on  the  verdict  given  on  the  first  trial. 

MR.  METCALF  moved  for  a  mandamus  to 
the  Court  of  Common  Pleas  of  the  County 
of  Montgomery,  commanding  them  to  proceed 
to  judgment  on  a  verdict  obtained  by  the 
plaintiff  against  the  defendant,  in  June  Term, 
1796,  of  that  court.  He  founded  his  motion 
on  a  copy  of  the  minutes  of  that  court,  cer- 
tified by  its  clerk,  by  which  it  appeared  that 
the  verdict  was  set  aside  in  the  same  term,  on 
the  merits,  and  that  in  February,  1798,  a  new 
trial  was  had,  and  the  plaintiff  was  nonsuited. 

Per  Curiam.  The  plaintiff,  by  submitting 
to  the  new  trial,  has  waived  his  right  to  the 
interposition  of  this  court. 

Rule  refused. 


*TORREY  c.  MO-REHOUSE.  [*242 

1.  Nonsuit — Trial  not  had — Notice  Counter 
manded — Epidemic.  2.  Motion — Absent  At- 
torney— Later  Hearing.  3.  Costs — Motion  to 
set  aside  Proceeding. 

Where  the  plaintiff  was  under  a  stipulation  to  try 
a  cause,  but  countermanded  the  notice  of  trial,  on 
account  of  an  epidemic  prevailing  in  the  city  of 
New  York,  where  the  cause  was  to  be  tried,  which 
prevented  his  being  prepared  for  trial,  the  court  re- 
fused to  grant  the  rule  for  a  nonsuit.  The  plaintiff's 
attorney  residing  in  New  York,  and  not  having 
time  to  prepare,  in  order  to  oppose  a  motion  to  be 
made  at  Albany,  on  the  first  day  of  term,  of  which 
six  days  notice  had  been  given,  was  held  a  sufficient 
excuse  for  not  opposing  the  motion  on  the  first  day. 

THE  plaintiff  was  under  a  previous  stipula- 
tion to  try  this  cause  at  the  last  sittings  in 
New  York. 

On  the  first  day  of  the  present  term,  Mr. 

311 


343 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800- 


Riggs,  for  the  defendant,  moved  for  a  rule  for 
judgment  as  in  case  of  nonsuit;  having  given 
six  day's  notice  of  the  motion,  and  no  pefson 
appearing  to  oppose  it,  it  was  granted  of 
course. 

Mr.  Coleman  now  moved  to  set  aside  the 
judgment,  on  an  affidavit,  stating  that  the 
cause  was  noticed  for  trial  at  the  last  sittings 
in  New  York,  and  countermanded,  because 
the  plaintiff  had  every  reason  to  expect  that  he 
could  not  then  be  prepared  for  the  trial  on  ac- 
count of  the  interruption  to  business  occasioned 
by  the  epidemic  which  prevailed  in  the  city. 
It  was  also  shown  that  the  plaintiff  had 
offered  to  try  the  cause,  and  would  probably 
have  done  so  after  the  •sittings  commenced,  if 
he  could  regularly  have  brought  on  the  trial. 

Mr.  Biggs,  for  the  defendant,  farther  ob- 
jected, that  if  the  excuse  were  otherwise  suffi- 
cient, which  he  did  not  admit,  it  ought  to  have 
been  made  on  the  first  day  of  the  term,  and 
could  not  now  be  received  to  set  aside  the 
judgment  then  entered. 

Mr.  Coleman  answered  that  the  distance  of 
his  residence  in  New  Y'ork,  and  the  short 
notice  of  the  motion  prevented  him  from  being 
in  readiness  to  oppose  it  on  the  first  day. 

Per  Ouriam.  We  think  the  reason  for 
countermanding  the  notice  of  trial,  under  the 
circumstances  of  the  case,  was  sufficient,  not- 
withstanding the  plaintiff's  stipulation;  and 
considering  the  shortness  of  the  notice  of  the 
motion  for  a  nonsuit,  and  the  distance  of  the 
residence  of  the  plaintiff's  attorney  at  New 
York,  we  also  think  the  excuse  for  not  oppos- 
ing it  on  the  first  day  ought  to  be  admitted. 
But  the  judgment  being  regular,  it  is  set  aside 
on  payment  of  costs  by  the  plaintiff. 

Rule  granted,  on  payment  of  costs. 


243*]       *CASE  v.  VAN  NESS. 

Certiorari — Judgment — Court  not  held  as  stated 
in  Summon*. 

On  a  return  to  a  certiorari  to  a  justice,  it  is  error, 
if  it  appear  that  the  court  was  not  held  at  the  place 
mentioned  in  the  summons,  and  a  judgment  was 
given  by  default. 


0 


N  certiorari  from  a  justice's  court. 


The  exception  relied  upon  for  the  plaintiff  in 
error  was,  that  it  did  not  appear  from  the  jus- 
tice's return  that  he  held  his  court  at  the  place 
appointed  in  the  summons. 

Mr.  Emott  for  the  plaintiff. 

Mr.  Woodworth  for  the  defendant. 

Per  Curiam.  This  exception  is  fatal,  as  the 
defendant  below  did  not  appear,  and  the  judg- 
ment against  him  was  given  by  default. 

Judgment  reversed. 

Cited  In— 12  Johns.,  417;  1  Cow.,  113. 
312 


FORD  v.  GARDNER. 

Judgment — Summons — Declaration —  Variance.. 

In  an  action  before  a  justice,  the  plaintiff  declared 
by  a  different  name  from  the  one  mentioned  in  the 
summons,  but  the  identity  of  the  person  was  ascer- 
tained; the  defendant  did  not  appear,  but  suffered 
judgment  by  default;  it  was  held  that  he  should 
have  appeared  and  taken  the  advantage  of  the 
variance  before  the  justice,  but  could  not  avaft 
himself  of  it  afterwards. 


0 


N  certiorari  from  a  justice's  court. 


Mr.  Emott,  for  the  plaintiff  in  error,  relied 
on  the  objection  that  the  plaintiff  below  de- 
clared before  the  justice  by  a  name  different 
from  that  in  the  summons,  to  wit,  by  the  name- 
of  Carner. 

Mr.  Woodworth,  for  the  defendant,  answered, 
that  it  appeared  by  the  return  that  the  plaintiff 
below,  as  named  in  the  declaration,  was  in 
fact  the  same  person  named  in  the  summons,, 
and  that  the  return  described  him  as  such. 

Per  Curiam.  The  defect  is  thereby  cured. 
The  identity  of  the  plaintiff  below  being  as- 
certained, it  was  the  duty  of  the  defendant 
there  to  have  availed  himself  of  the  variance 
before  the  justice,  instead  of  which  he  did  not 
appear,  and  suffered  judgment  by  default. 

Judgment  affirmed. 
Cited  in— 18  Abb.,  78. 


•SALTER  AND  STEELE      [*244 

c. 
BRIDGEN.  one  of  the  Attorneys,  «fcc. 

Service — On  Attorney. 

Service  of  a  copy  of  a  bill  against  an  attorney,  on- 
a  person  in  his  office,  who  appeared  to  be  one  of  his 
family,  was  held  not  sufficient  where  the  receipt  of 
it  was  denied,  and  no  reason  shown  why  a  better 
service  was  not  made. 

MR.  TROUP  moved  to  set  aside  a  default 
entered  in  this  cause  for  not  pleading,  on 
an  affidavit  by  the  defendant,  that  a  copy  of 
the  bill  filed  therein  had  not  been  served  on 
him,  nor  had  at  any  time  come  to  his  hands. 

Mr.  Evertson  opposed  the  motion,  and  offered 
affidavits  on  the  part  of  the  plaintiffs,  showing 
that  a  copy  of  the  bill  had  been  served  by  de- 
livering the  same  to  a  person  who  appeared  to 
be  one  of  the  defendant's  family,  at  his  office; 
but  it  was  not  proved  to  have  been  served 
either  on  the  defendant,  personally,  nor  on  any 
clerk  or  person  employed  in  his  office. 

Per  Curiam.  The  service  by  delivering  » 
copy  to  one  of  the  defendant's  family,  although 
at  his  office,  is  not  of  itself  -sufficient,  especially 
when  it  is  denied  to  have  been  received  by 
him,  and  no  reason  is  shown  why  a  better  ser- 
vice could  not  have  been  made.  Let  the  de- 
fault be  set  aside  with  costs. 


Motion  granted. 


JOHNBOU'S  CASES,  1. 


1800 


DOYLE,  SHERIFF,  &c.,  v.  MOCLTON  ET  AJL. 


245- 


245*]     *CASE  v.  SHEPHERD. 

1.   Case  made — Judgment —  Verdict — Stay.     2. 
Judgment — Setting  aside — Stay — Certificate. 

After  a  verdict,  unless  a  certificate  or  ofder  of  a 
judge  to  stay  proceedings  be  obtained,  the  party  in 
whose  favour  the  verdict  is  given,  though  a  case  be 
made,  may  proceed  to  enter  up  judgment.  After 
judgment  entered,  the  court  will  not  hear  a  motion 
to  set  aside  a  verdict,  unless  there  has  been  a  certifi- 
cate of  a  judge,  or  an  order  to  stay  proceedings. 
A  party  who  is  dissatisfied  with  the  refusal  of  the 
judge  to  grant  an  order  to  stay  proceedings,  may 
apply  at  the  next  term  to  the  court  for  that  purpose. 

MR.  SPENCER,  for  the  defendant,  moved 
to  bring' on  the  argument  for  a  new  trial 
in  this  cause. 

Mr.  Van  Vechten,  contra,  objected,  because 
a  judgment  had  been  regularly  entered,  and  no 
order  had  been  obtained  to  stay  proceedings 
after  the  verdict. 

Per  Ouriam.  The  true  construction  of  the 
4th  rule  of  January  Term,  1799,  is,  that  the 
notice  with  a  judge's  order  to  stay  proceedings, 
is  a  substitute  for  the  former  practice  of  a  rule 
to  show  cause;  and,  therefore,  if  the  party 
neglects  to  obtain,  or  cannot  obtain,  an  order 
to  stay  proceedings,  the  consequence  is,  that 
if,  when  the  hearing  of  the  motion  is  to  come 
on,  a  judgment  has  been  duly  entered,  he  can- 
not be  heard  on  the  motion ;  for  we  will  not 
hear  an  argument  to  set  aside  a  verdict,  default, 
or  inquisition,  after  a  judgment  has  been  duly 
entered. 

There  is  nothing  in  the  rules  of  the  court  to 
prevent  a  party,  who  is  dissatisfied  with  the 
refusal  of  a  judge  to  grant  a  certificate,  or 
order  to  stay  proceedings,  from  applying  to 
the  court  for  that  purpose. 

Though  the  defendant  is  not,  therefore, 
strictly  entitled  to  be  heard,  yet,  as  there  ap- 
pears to  have  been  a  misconstruction  of  the 
rule,  we  will,  in  the  present  instance,  hear  the 
motion. 

Cited  in— 1  Johns.,  139 ;  4  Hill,  556 ;  45  N.  Y.,  324 ;  5 
Bos.,  682;  4  Rob.,  640. 


246*]       *DOYLE,  Sheriff,  &c.( 


MOULTON  ET  AL. 

1.    Pkdding  —  Election — Demurrer.     2.  Id. — 
Demurrer — New  plea — Amendment. 

After  a  demurer  is  put  in,  and  withdrawn,  it 
is  too  late  to  move  that  the  defendant  elect  one  of 
several  pleas,  and  abide  by  it.  Before  a  default  for 
not  joining  in  demurrer,  a  party  may  amend  the 
pleading  demurred  to ;  but  he  cannot  add  a  new 
plea. 

THIS  was  an  action  on  a  bond  given  to  the 
sheriff,  pursuant  to  the  Act  of  the  5th 
April,   1798,   for  regulating  the    liberties  of 
gaols.     The  defendant  pleaded  five  pleas. 

1.  Non  estfactum. 

2.  Performance  of  the  condition. 

3.  That  the  escape  was  by  casualty,  and 
there  was  a  return  of  the  prisoner  before  the 
action  was  brought.   ' 

JOHNSON'S  CASES,  1. 


4.  That  the  penalty  of  the  bond  was  for 
more  than  double  the  amount  for  which  the 
prisoner  was  confined,  and  so  not  agreeable  to 
the  act. 

5.  That  the  condition  of  the  bond  does  not 
conform  to  the  act. 

There  was  a  demurrer  to  the  second  and1 
third  pleas,  after  which  and  before  a  default 
or  rejoinder  in  demurrer,  the  fourth  and  fifth 
pleas  were  added. 

Mr.  Henry,  for  the  plaintiff,  withdrew  the 
demurred,  and  moved  that  the  defendant 
should  elect  one  of  the  three  first  pleas  and 
abide  by  it,  and  that  the  fourth  and  fifth  pleas 
should  be  struck  out  for  irregularity. 

Mr.  Woodworth,  contra,  contended  that  the 
pleas  ought  to  stand,  though  apparently  in- 
compatible, and  cited  2  Black.  Rep.,  1093; 
and  that  under  the  8th  rule  of  April  Term, 
1796,  it  was  regular  to  add  the  two  last  pleas. 

Per  Guriam.  The  plaintiff,  after  a  de- 
murrer, comes  too  late  to  compel  the  defendant 
to  elect  his  plea.  As  to  the  other  part  of  the 
motion,  the  rule  referred  to  merely  says,  that 
before  the  default  for  not  joining  in  demurrer 
is  entered,  the  party  may  amend  the  pleading 
demurrer  to.  It  does  not  extend  so  far  as  to 
allow  the  party  to  add  new  pleas. 

Let  tlie  fourth  and  fifth  pleas  be  struck  out. 
Distinguished — 4  Johns.,  50. 


*CUYLER  v.  VANDERWERK.  [*247 

Stay  of  Proceedings —  Costs — Nonsuit —  Second 
Trial. 

If  a  plaintiff  voluntarily  suffers  a  nonsuit,  and 
then  brings  a  second  action  without  paying  the  costs- 
of  the  first,  the  defendant  may,  at  any  time  before 
trial,  move  for  a  stay  of  proceedings  until  the  costs 
of  the  first  suit  are  paid. 

A  JUDGMENT  as  in  case  of  nonsuit  had 
been  entered  in  a  fprmer  cause,  for  not 
proceeding  to  trial.  The  plaintiff  then  com- 
menced a  second  suit,  for  the  same  cause  of 
action,  without  paying  the  costs  of  the  first. 
A  plea  was  put  in,  and  the  cause  noticed  for 
trial. 

Mr.  Emott,  for  the  defendant,  now  moved 
that  all  proceedings  be  stayed  until  the  costs 
of  the  first  suit  be  paid.  He  cited  1  Term 
Rep.,  511. 

Mr.  Wood/worth,  contra,  cited  2  Black.  Rep., 
741;  3  Wilson,  149;  2  Burr.,  1025. 

Per  Curiam.  The  plaintiffs  having  volun- 
tarily suffered  a  nonsuit  in  the  first  suit,  the 
second  is  to  be  deemed  vexatious;  and  the  de- 
fendant is  never  too  late,  pending  the  second 
suit,  before  trial,  to  make  his  application  to 
stay  the  proceedings. 

Rule  granted. 


Approved— 27  How.  Pr.,  156. 
Cited  in— 2  Cow.,  503 ;  64  Ind.,  20. 


315 


241 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


BARRETT  v.  FORRESTER. 
Nonsuit — Trial  not  had — Replevin. 

In  replevin  both  parties  are  actors,  and  a  judg- 
ment as  in  case  of  nonsuit  for  not  proceeding  to 
trial,  is  never  granted. 

THIS  was  an  action  of  replevin,  and  the 
plaintiff  having  neglected  to  bring  his 
cause  to  trial, 

Mr.  Burr,  for  the  plaintiff,  now  moved  for 
judgment  as  in  case  of  nonsuit.  He  cited 
Barnes,  317. 

Mr.  Harison,  contra,  cited  Buller,  65;  3 
Term  Rep.,  661;  1  Black.  Rep.,  375. 

Per  Curiam.  In  an  action  of  replevin, 
both  parties  are  considered  as  equally  actors, 
and  either  may  carry  down  the  cause  to  trial. 
A  judgment,  therefore,  as  in  case  of  nonsuit, 
is  never  granted  in* an  action  of  replevin. 

Rule  refused. 
Cited  in-1  Code  Rep.,  N.  S.,  37. 


248*]      *HOLMES  v.  LANSING. 

Amendment  —  After  Plea —  Owls — Imparlance. 

The  plaintiff  cannot  amend  his  declaration  after 
plea  pleaded,  without  paying  costs,  and  giving  an 
imparlance. 

MR.  EMOTT  moved  to  amend  the  declara- 
tion after  plea  pleaded,  which  was 
granted.  A  question  then  arose  whether  the 
defendant  was  entitled  both  to  an  imparlance 
and  to  costs.  The  following  cases  were  cited: 
1  Str.,  950;  1  Dallas,  494;  2  Black.  Rep.,  785. 

Per  Curiam.  There  seems  to  be  some  di- 
versity of  practice  in  the  English  courts  in  this 
respect.  This  court  will,  therefore,  establish 
a  rule  of  its  own.  As  the  amendment  is  a 
benefit  to  the  plaintiff,  it  is  reasonable  that  he 
should  pay  the  costs;  and  it  is  equally  reason- 
able that  the  defendant,  after  an  amendment, 
should  be  allowed  to  .plead  de  novo. 

We  are,  therefore,  of  opinion  that  the 
amendment  be  allowed,  on  payment  of  costs, 
and  giving  an  imparlance. 

Rule  granted. 


McEVERS  v.  MARKLER. 

Motion — To  set  aside  Proceedings — Term. 

A  motion  to  set  aside  proceedings  for  irregularity 
must  be  made  at  the  next  term  after  the  irregularity 
happens. 

T?IGHT  days  notice  of  trial  was  given  in  this 
-Cj     cause,  for  the  last  circuit  in  New  York. 

The  defendant  being  more  than  40  miles 
from  the  place  of  trial,  considered  the  notice 
given  as  void,  and  paid  no  regard  to  it.  An 
inquest  was  taken  by  default,  and  the  defend- 
ant now  moved  to  set  aside  the  verdict. 


entitled  to  14  days  notice  of  trial,  yet  the  notice 
that  was  given  was  sufficient  to  put  him  on 
inquiry,  and  he  ought  to  have  made  his  appli- 
cation at  the  last  term.  Having  suffered  a 
term  to  intervene  since  the  verdfct  was  taken, 
he  comes  too  late  with  the  present  motion. 

Rule  refused. 


*FERRIS  t.  PHELPS.        [*24» 

Bail — Special  Bail — Exception. 

After  special  bail  is  put  in,  the  plaintiff  must  ex- 
cept to  the  bail,  and  cannot  proceed  on  the  bail- 
bond. 

O  PECIAL  bail  was  put  in,  in  this  cause,  and 
O  the  plaintiff  neglected  to  enter  any  excep- 
tion on  the  bailpiece,  but  brought  an  action 
on  the  bail-bond. 

A  motion  was  now  made  to  set  aside  the 
judgment  on  the  bail-bond,  on  the  ground  that 
the  plaintiff,  by  not  excepting  to  the  special 
bail,  was  precluded  from  an  action  on  the  bail- 
bond. 

Per  Curiam.  The  plaintiff  ought  to  have 
excepted  to  the  special  bail.  Take  your  rule. 

Rule  granted. 


SACKET,  Demandant, 
LOTHROP,  Tenant. 

Writ  of  right — Return — Default — Ne  recipiatur. 

If  a  writ  of  right  be  not  returned  on  the  quarto 
die  post,  and  the  tenant  means  to  put  the  demand- 
ant out  of  court,  he  should  enter  a  ne  recipiatur. 

Citation— Booth,  93. 

THE  writ  in  this  cause  was  not  returned  on 
the  quarto  die  post,  and  the  demandant  ob- 
tained a  rule,  that  the  sheriff  return  the  writ 
sedente  curia,  or  show  cause  why  an  attach- 
ment should  not  issue  against  him.  On  the 
service  of  this  rule,  the  writ  was  returned. 

Mr.  Bogardus,forthe  demandant,  now  moved 
that  the  tenant  be  called. 

Mr.  S.  Thompson,  contra,  contended,  that 
the  demandant,  not  having,  on  the  quarto  die 
post,  obtained  a  day  further,  must  be  consid- 
ered as  out  of  court;  that  the  rule  on  the 
sheriff  was  a  nullity,  instead  of  which  the  de- 
mandant should  have  taken  out  a  second  sum- 
mons. He  cited  1  Reeves,  119-121. 

Per  Curiam.  The  tenant,  if  he  meant  to  put 
the  demandant  out  of  court,  should  have  en- 
tered a  ne  recipiatur  on  the  quarto  die  post.  As 
he  has  not  done  so  in  the  present  case,  his  neg- 
lect must  be  considered  as  a  *waiver.  [*25O 
By  the  rule  requiring  the  sheriff  to  return  the 
writ,  sedente  curia,  the  demandant  is  to  be 
deemed  as  continuing  in  court  from  day  to  day 
during  the  term.  (See  Booth,  92.)  So  the 
tenant  must  be  called. 


Per  Curiam.     Though   the  defendant   was  '      Rule  granted. 


JOHNSON'S*  CASES,  1. 


1800 


GOODRICH  v.  WALKER. 


250 


GOODRICH  v.   WALKER. 


1.    Release — Delivery.      2.    New  Trial—  Charge 
on  weight  of  evidence — Right  of  Party. 

A  formal  delivery  of  a  release  is  not  essential;  it  is 
sufficient  if  such  acts  appear  as  showed  an  intention 
to  deliver  it.  Where  a  judge  charg-ed  the  jury,  that 
in  his  opinion  the  weight  of  evidence  was  in  favor 
of  the  defendant,  and  the  jury  found  a  verdict  ac- 
cordingly, a  new  trial  on  account  of  the  misdirec- 
tion of  the  judge  was  refused,  the  court  being  sat- 
isfied that  the  plaintiff  ouarht  not  to  recover. 

'PHIS  was  an  action  of  assumpsit,  for  work, 
JL  labor  and  services.  The  defendant  pleaded 
the  general  issue,  and  gave  notice  with  his  plea, 
that  he  would  offer  in  evidence,  on  the  trial  of 
the  cause,  an  instrument  in  writing,  under  the 
hand  and  seal  of  the  plaintiff,  bearing  date  the 
24th  day  of  May,  1796,  whereby,  in  considera- 
tion of  forty  pounds  to  him  in  hand  paid,  by 
David  Meachum  and  David  Osborn,  overseers 
of  the  church  at  New  Lebanon,  the  plaintiff 
released  and  discharged  the  said  overseers  and 
community  of  the  said  church,  jointly  and 
severally,  from  any  further  charges  and  de- 
mands whatsoever;  and  that  the  defendant 
would  also  give  in  evidence  that  he  was  at  that 
time  a  member  of  the  said  church,  and  one  of 
the  said  community. 

The  cause  was  tried  at  the  sittings  after 
January  Term,  1799,  at  the  city  of  Albany, 
before  His  Honor  Mr.  Chief  Justice  Lansing. 

On  the  trial,  it  appeared  in  evidence  that  the 
defendant,  at  the  time  the  labor  was  performed 
for  which  the  action  was  brought,  was  a  mem- 
ber, and  one  of  the  principal  directors  of  the 
church  and  community  at  New  Lebanon,  called 
the  Society  of  Shaking  Quakers;  that  the 
labor  was  performed  for  the  common  benefit 
of  the  said  church  and  community:  that  the 
period  of  service  was  upwards  of  eight  years, 
and  during  four  or  five  years  the  labor  was 
performed  under  the  immediate  direction  of 
the  defendant;  that  the  plaintiff  was  nineteen 
25 1*]  years  old  when  he  entered  *the  society; 
that  the  property  of  the  church,  together  with 
the  product  of  the  labor  and  profits  of  the 
members  thereof,  were,  during  the  time  the 
labor  was  performed,  held,  and  afterwards 
continued  to  be  held  and  enjoyed  in  common 
among  them. 

After  this  evidence  on  the  part  of  the  plaint- 
iff, the  defendant's  counsel  moved  for  .a  non- 
suit, which  was  overruled  by  the  judge. 

The  defendant's  counsel  then  produced  the 
discharge  set  forth  in  the  notice  subjoined  to 
the  defendant's  plea,  as  above  mentioned. 

The  plaintiff's  counsel  objected  to  the  valid- 
ity of  the  discharge,  if  proved;  which  objec- 
tion was  overruled  by  the  court. 

To  prove  the  execution  of  the  discharge,  the 
defendant  offered  one  Joseph  Markum  as  a 
witness. 

The  plaintiff's  counsel .  objected  to  this  wit- 
ness, on  the  ground  of  interest,  and  in  support 
of  the  objection,  proved,  that  at  the  time  the 
labor  and  services  were  performed,  Joseph 
Markum  was  a  member  of  the  church,  and  one 
of  the  community.  The  witness  upon  this 
executed  to  the  society  and  to  the  defendant  a 

NOTE.— As  to  delivery. 
See  note  to  Jackson  v.  Dunlap,  ante  114. 
JOHNSON'S  CASES,  1. 


general  release,  and  the  defendant  executed  to 
the  witness  a  similar  release,  after  which  the 
judge  permitted  the  witness  to  be  sworn,  who 
thereupon  deposed,  that  he  saw  the  plaintiff 
execute  the  discharge,  by  signing  and  putting 
something  as  a  seat  for  "his  deed;  that  David 
Meachum  was  present,  and  took  it  up  in 
presence  of  the  plaintiff,  after  the  witness  had 
attested  it  as  a  subscribing  witness.  That  the 
plaintiff  did  not  appear  to  be  under  any  re- 
straint at  the  time  of  such  execution,  and  that 
he  expressed  himself  satisfied  with  the  settle- 
ment; that  he  had  seen  the  plaintiff  the  morn- 
ing of  the  day  when  the  discharge  was  executed, 
and  before  its  execution,  walking  in  front  of 
the  house  in  which  it  was  executed,  apparently 
at  his  liberty.  Upon  this  evidence,  the  dis- 
charge was  read  to  the  jury. 

*On  the  part  of  the  plaintiff ,  Ezekiel  [*252 
Goodrich  was  produced  as  a  witness,  who  tes- 
tified that  in  the  winter  of  1*97  and  1798,  he, 
together  with  Elihu  Goodrich,  went,  at  the  re- 
quest of  the  plaintiff,  to  confer  with  the  Quak- 
ers at  New  Lebanon;  that  the  plaintiff  entered 
into  a  conversation  with  the  defendant 
Meachum  and  Osborn,  in  the  course  of 
which  the  plaintiff  alleged  that  he  had  been 
kept  in  a  room  all  night,  and  until  next  day  at 
noon;  and  that  they  had  forced  him  to  sign  a 
release;  that  after  some  hesitation,  one  of  them 
replied,  that  they  had  orders  for  what  they 
had  done  from  headquarters;  and  they  had  a 
right  to  do  what  they  did.  In  this  testimony 
Elihu  Goodrich  concurred. 

Samuel  Chapman  also  testified  that  he  heard 
some  persons  in  a  room  talking  to  the  plaintiff, 
and  persuading  him  to  settle,  saying  that  they 
would  not  agree  to  his  going  away  until  he  had 
settled. 

The  defendant  then  produced  Eleazer  Grant, 
who  deposed,  that  the  plaintiff  informed  him, 
after  he  left  the  society,  that  he  had  settled 
with  them;  that  he  had  got  a  horse,  saddle, 
bridle,  and  some  money;  that  the  witness  asked 
how  it  came  about  that  he  had  settled  so 
reasonably;  to  which  the  plaintiff  answered, 
that  it  was  because  he  could  do  no  better. 

George  Darrow  also  deposed  that  he  lived 
about  a  mile  from  New  Lebanon;  that  the 
morning  after  the  plaintiff  left  the  society,  he 
had  a  conversation  with  him;  that  the  plaintiff 
told  him  he  had  left  the  society,  and  in  answer 
to  the  witness's  inquiry  whether  they  had  set- 
tled with  him,  he  said  they  had;  that  the  wit- 
ness then  inquired  whether  he  had  been  in- 
timidated or  compelled  to  settle,  to  which  the 
plaintiff  answered,  no,  that  they  had  acted 
honorably,  and  settled  without  difficulty;  that 
the  reasons  he  had  for  making  these  inquiries, 
were  some  reports  that  the  plaintiff  had  settled 
with  them  under  constraint. 

Roswell  Goodrich  also  deposed  that  he  ac- 
cidentally met  the  plaintiff  the  same  day  the 
settlement  was  made;  that  the  plaintiff  said  he 
had  settled  with  David  Meachum  *and  [*253 
David  Osborn,  and  that  he  had  received  more 
from  them  than  he  deserved,  for  he  knew  on 
what  conditions  he  engaged  with  them;  that 
three  months  afterwards  he  heard  him  again 
repeat  that  he  was  satisfied;  and  he  then  said, 
he  had  gone  to  the  society  without  wages;  that 
he  was  neither  to  have  debt  nor  blame. 

The  Chief  Justice  charged  the  jury,  that  in 

815 


253 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


his  opinion  the  weight  of  testimony  on  the  sub- 
ject of  the  duress  was  in  favor  of  the  defend- 
ant; and  that  if  the  plaintiff  was  not  under 
duress  at  the  time  he  executed  the  discharge, 
they  ought  to  find  for  the  defendant. 
The  jury  found  for  the  defendant, 
It  was  moved  to  set  aside  the  verdict  on  the 
following  grounds: 

1.  That  the  witness,  Markum,  was  interested. 

2.  That  the  discharge  or  release  was  never 
delivered. 

3.  That  the  charge  of  the  court  on  the  evi- 
dence of  duress  was  improper. 

Mr.  Whiting  for  the  plaintiff. 

Mr.  Van  VecJiten  for  the  defendant. 


petency  of  Markum,  as  a  witness,  if  any  ex- 
isted, was  removed  by  the  mutual  releases 
executed  between  him  and  the  defendant. 

As  to  the  second  point.  The  discharge  or 
release  must  be  intended  to  have  been  well  de- 
livered. Nothing  to  the  contrary  appears.  A 
formal  delivery  is  not  essential,  if  there  be  any 
act  evincing  the  intent. 

We  also  think,  with  the  judge  at  the  trial, 
that  the  weight  of  evidence  was  in  favor  of 
the  defendant;  and  that  the  plaintiff  ought  not 
to  recover. 

We  are,  therefore,  of  opinion  that  a  new 
trial  ought  not  to  be  granted. 

Rule  refused. 


,     Cited  ln-3  Johns.,  241 ;  4  Barb.,  518 ;  1  Bedf  „  424  ;  2 
Per  Ou.nam.     Every  objection  to  the  com- '  E.  D.  S.,  311;  1  McLean,  323;  2  Wood.  &  M.,  1&. 


316 


JOHNSON'S  CASES,  1. 


[END  OF  JANUARY  TERM.] 


CASES   ARGUED   AND   DETERMINED 


SUPREME  COURT  OF  JUDICATURE 


STATE   OF  NEW  YORK, 


APRIL 


,    IN"    THE    YKA.R    18OO. 


255*]  *BRANTINGHAM  t».   FAY. 

New     Tried — Nonsuit — To     Recover    Nominal 
Damages. 

Where  in  an  action  of  debt,  for  a  penalty  in  a  spe- 
cial agreement,  though  the  court  were  of  opinion 
that  the  plaintiff  was  entitled  to  a  verdict,  but  no 
damages  were  shown,  nor  any  rule  by  which  the 
jury  could  ascertain  the  damages,  they  refused  to 
set  aside  a  nonsuit  and  grant  a  new  trial,  merely  to 
give  the  plaintiff  an  opportunity  to  recover  nominal 
damages. 

rPHIS  was  an  action  of  debt,  for  £4,000,  being 
J-  the  penalty  of  a  certain  agreement  made 
between  the  plaintiff  and  defendant,  bearing 
date  the  23d  May,  1795.  The  agreement, 
as  set  forth  in  the  declaration,  was  as  follows: 
' '  Whereas  the  said  Joseph  Fay  had  received 
from  the  said  Thomas  H.  Brantingham  a  deed, 
executed  unto  Oliver  Phelps,  Esq.,  of  Suffleld, 
by  the  said  Thomas  H.  Brantingham  and  Han- 
nah, his  wife,  for  26,814  acres  of  land,  in  the 
townships  of  New  Huntingdon,  Bolton,  and 
Sterling,  in  the  State  of  Vermont,  bearing  date 
the  same  day  and  year;  the  said  Joseph  did 
256*]  covenant  and  agree  to  forward  *the 
same  to  the  proper  officers  and  cause  the  same 
to  be  recorded  and  returned  to  the  said 
Thomas  H.  Brantingham,  in  New  York,  to- 
gether with  the  proper  certificates  necessary  to 
show  that  the  titles  of  the  said  lands  were  le- 
gally vested  in  the  said  Thomas  H.  Branting- 
ham, and  that  they  were  free  and  clear  from 
all  incumbrances,  if  on  examination  they 
should  be  found  to  be  so;  and  that  when  such 
titles  should  be  fully  and  satisfactorily  ascer- 
tained, the  said  land,  or  so  much  of  it  as  should 
appear  to  have  a  good  title,  as  set  forth  in  the 
said  deed  of  conveyance,  should  be  paid  for  at 
the  rate  of  three  shillings  per  acre.  New  York 
currency,  in  notes,  bonds,  or  other  just  de- 
mands against  the  said  Thomas  H.  Branting- 
ham, including  £1,513  3s.  9d.,  which  the  said 
Thomas  H.  Brantingham  had  already  received 
and  acknowledged,  on  a  contract  for  the  afore- 
said lands;  and  that  the  said  Joseph  Fay 
would  pay  a  judgment  obtained  against  the 
said  Thomas  H.  Brantingham,  at  the  suit  of 
JOHNSON'S  CASES,  1. 


one  Comfort  Sands,  for  the  sum  of  £1,200  and 
also  two  rotes  of  hand,  made  by  the  said 
Thomas  H.  Brantingham  to  James  Roosevelt, 
amounting  to  £459,  and  other  demands  against 
the  said  Thomas  H.  Brantingham,  and  then 
due  from  him,  sufficient  to  pay  the  amount  of 
the  said  lands  at  the  rate  aforesaid,  allowing 
for  such  bonds,  notes,  and  other  demands, 
twenty  shillings  in  the  pound,  including  prin- 
cipal and  interest,  and  for  which  the  said 
Joseph  Fay  was  to  receive  an  allowance  or  de- 
duction of  five  per  cent.,  to  be  deducted  from 
the  sum  which  should  appear  due  from  the 
said  lands,  the  said  agreement  to  be  carried  in- 
to execution  without  delay ;  and  for  the  faith- 
ful performance  of  the  said  covenants  and 
agreements,  the  said  Joseph  Fay  did  bind  him- 
self to  the  said  Thomas  H.  Brantingham,  his 
heirs,  executors,  administrators  and  assigns,  in 
the  sum  of  £4,000,  current  money  of  the 
State  of  New  York." 

The  plaintiff  averred  that  Fay  received  the 
deed  or  conveyance,  so  executed  by  Thomas 
H.  Bran tingham*and  Hannah, his  wife,  [*257 
to  the  said  Oliver  Phelps,  and  assigned  the  fol- 
lowing breaches : 

"  That  the  said  Joseph  Fay  had  not  forward- 
ed the  said  deed  to  the  proper  officers,  and 
caused  the  same  to  be  recorded,  and  had  not  re- 
turned the  said  deed  to  the  said  Thomas  H. 
Brantingham,  without  any  unnecessary  delay, 
nor  caused  the  same  to  be  returned;  but  that 
the  said  Joseph  Fay  had  wholly  neglected  and 
refused  to  return  the  said  deed  of  conveyance 
to  the  said  Thomas  H.  Brantingham." 

The  plaintiff  further  averred  that  although 
the  title  for  the  said  lands  was  legally  vested 
in  him,  and  though  the  same  were  free  and 
clear  from  all  incumbrances;  nevertheless  the 
defendant  did  not,  without  unnecessary  delay, 
return  proper  certificates  necessary  to  show 
that  the  said  title  was  legally  vested  in  the 
plaintiff,  and  that  the  said  land  was  free  and 
clear  from  all  incumbrances,  but  had  wholly 
neglected  and  refused  to  return  the  said  certifi- 
cates. And  the  plaintiff  further  averred  that 
although  the  title  for  the  said  26,814  acres  of 
land  was,  at  the  time  of  the  execution  and  de- 

817 


257 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


livery  of  the  said  deed  of  conveyance  to  the  de- 
fendant, for  the  said  Oliver  Phelps,  lawfully 
vested  in  the  plaintiff,  and  though  the  same 
was  free  and  clear  of  all  incumbrances,  never- 
theless the  defendant  had  not,  without  unneces- 
sary delay,  paid  for  the  same  at  the  rate  of 
three  shillings  per  acre,  New  York  currency, 
in  the  plaintiff's  notes,  bonds,  or  other  just  dV 
mands  against  the  plaintiff,  over  and  above  the 
said  sum  of  £1,513  3s.  9d.,  which, at  the  time  of 
making  the  said  covenant,  was  paid  by  the  de- 
fendant to  the  plaintiff;  but  to  pay  for  the 
same  had  wholly  refused  and  neglected.  And 
the  plaintiff  further  averred  that  the  said  de- 
fendant did  not,  without  unnecessary  delay, 
pay  to  the  said  Comfort  Sands,  a  judgment  ob- 
tained by  him  against  the  plaintiff,  amounting 
to  £1,200,  but  wholly  neglected  and  refused  to 
pay  the  same.  And  the  plaintiff  further 
12 08*]  averred  that  the  defendant  did  not  pay,* 
without  unnecessary  delay,  to  the  said  James 
I.  Roosevelt,  the  said  sum  of  £459,  in  discharge 
of  two  notes  from  the  said  Thomas  H.  Brant- 
ingham  to  the  said  James  I.  Roosevelt,  and 
then  due,  but  wholly  neglected  and  refused  to 
pay  the  same  to  the  said  James  I.  Roosevelt,  by 
reason  of  which,  <fcc. 

The  defendant  pleaded  non  eat  factum,  and 
gave  notice  under  that  plea,  pursuant  to  the 
statute,  that  he  would  give  in  evidence  that 
"the  title  of  the  said  lands  was  not  legally 
vested  in  the  plaintiff  free  and  clear  from  all 
incumbrances,  as  in  the  said  declaration  was 
alleged,  and  that  he,  the  defendant,  had  well 
and  faithfully  performed  all  and  singular 
the  covenants  in  the  said  writing  contained,  on 
the  part  and  behalf  of  the  defendant  to  be  per- 
formed," &c. 

The  cause  was  tried  before  Mr.  Justice  Ben- 
son, at  the  last  July  Circuit  in  the  city  of  New 
York.     It  was  proved  on  the  part  of  the  plaint- 
iff that  the  agreement  was  executed  and  deliv- 
ered by  the  defendant  to  the  plaintiff;  that  the 
defendant  caused  the  deed  mentioned  in  it,  and 
which  contained  the  usual  covenants  and  a 
general  warranty,  to  be  recorded  in  the  town- 
ship of  Bolton,  on  the  18th  June,  1795,  in  the 
township  of  New  Huntingdon,  on  the  llth  of 
June,   1795,  and  in  the  County  of  Chittenden 
on  the  12th  of  the  same  month ;  and  that  on  the 
16th  August  following,  he  delivered  the  same 
to  Oliver  Phelps.  who  was  the  grantee  named  j 
in  it,  and  to  whom  he,  the  defendant,  had  pre- ; 
viously  sold  the  land  at  3s.  4d.  per  acre;  that  \ 
the  defendant  informed  Phelps  that  he  had  ex-  i 
amined  and  believed  the  title  to  the  greater  | 
part  of  the  lands  to  be  good,  but  expressed  j 
some  doubts  as  to  the  title  of  a  part,  consisting  j 
of  somewhat  more  than  4, 000  acres,  and  which 
Phelps  thereupon  reconveyed  to  the  defendant  i 
by  a  quit-claim  deed;  that  the  defendant  also  ! 
gave  him  a  bond  conditioned  to  save  him  harm-  j 
less  in  case  the  title  to  the  whole  or  any  part  j 
2o9*]  of  the  said  lands  should  fail,  and  *the 
plaintiff  be  unable  to  respond  the  damages; 
that  sometime  in  May,  1796,  the  lands  in  Bol- 
ton and  Sterling  were  sold  for  taxes,  and  in 
December,     1796,     the    defendant    informed 
Phelps  that  he  did  not  wish  him  to  pay  the 
taxes,  as  he  had  employed  a  person  to  bid  off 
the  lands  at  vendue,  and  in  the  summer  fol- 
lowing,  the  defendant  told  him  that  he  be- 
lieved it  necessary,  in  order  to  secure  the  title 
318 


to  the  lands,  to  have  them  sold  at  auction  for 
taxes,  and  hold  them  under  such  sale;  and  that 
he  had  employed  and  authorized  a  person  to 
purchase  them  at  auction  accordingly. 

The  town  clerks  of  Bolton  and  New  Hunt- 
ington,  and  the  clerk  of  the  County  of  Chitten- 
den testified  that  they  understood  that  by  the 
laws  of  Vermont,  a  title  for  land  is  not  valid 
or  complete  unless  the  deed  from  the  original 
proprietor  be  recorded  in  the  town  where  the 
lands  lie,  if  the  town  be  organized,  and  if  not, 
then  in  the  county  where  the  lands  lie,  except 
that  a  vendue  deed  (as  it  is  called)  is  good 
without  being  recorded;  that  the  town  of 
Sterling  is  not  organized;  and  that,  by  the 
laws  of  Vermont  it  is  necessary,  in  order  to 
perfect  the  validity  of  titles  of  land,  that  all 
the  deeds  conveying  the  same  should  be 
entered  on  record  in  the  clerk's  office  at  the 
town  where  the  lands  lie. 

It  also  appeared  by  a  certificate  of  the  clerk 
of  the  town  of  Bolton,  which  was  admitted  to 
be  read,  that  the  names  of  Stephen  Jackson, 
Daniel  Jackson,  William  Sanford,  Joel  Smith, 
Nathaniel  Wilkinson,  William  Fitch,  and  John 
Neilson,  were  not  entered  as  grantees  in  the 
original  grant,  or  as  it  is  commonly  called,  the 
charter  of  that  town,  and  that  there  were  no 
conveyances  from  the  original  proprietors  on 
record  to  show  that  the  plaintiff  had  any  right 
to  convey  the  lands  of  those  persons  whose 
names  appear  in  the  charter;  and  the  town 
clerk  of  New  Huntingdon  testified  that  the 
names  of  John  Tolson,  Thomas  Fowler,  Cor- 
nelius Davis,  Oliver  Bissery,  Jun.,  and  Peter 
Hungerford,  did  not  appear  as  grantees  in  the 
original  *charter  of  the  town;  and  also  [*26O 
that  1,500  acres  of  Isaac  Oakley's  right,  150 
acres  of  Joshua  Autun's  right,  and  the  whole 
right  of  Caleb  Griffiths  and  Samuel  Averill 
were  sold  at  vendue  in  August,  1 794,  for  taxes, 
and  that  about  4,000  acres  of  the  land  were  mort- 
gaged by  the  plaintiff  to  one  Fitch,  in  1794,  to 
secure  such  sum  as  Fitch  should  recover 
against  the  plaintiff  in  an  action  therein  men- 
tioned and  intended  to  be  brought  against  him; 
but  no  evidence  was  offered  of  any  such  action 
having  been  brought. 

It  further  appeared  that  there  were  deeds 
from  different  persons  to  the  plaintiff  for 
about  19,000  acres  of  the  lands  conveyed  by 
him  to  Phelps,  on  record  in  Vermont,  but  the 
previous  conveyances,  to  compose  the  chain  of 
title  from  the  original  proprietors,  were  not  on 
record. 

The  plaintiff  also  offered  to  prove  that  the 
defendant  had  declared  that  he  had  caused  the 
lands  to  be  sold  for  taxes,  and  bought  them 
himself  to  secure  the  title,  and  not  to  defeat 
the  plaintiff's  right;  which  evidence  was  over- 
ruled by  the  judge. 

The  statute  of  Vermont  relative  to  the  re- 
cording of  deeds  was  then  produced  and  read, 
as  follows: 

"That  all  deeds  or  conveyances  of  any 
houses  or  lands  within  this  State,  signed,  seal- 
ed and  delivered  by  the  parties  granting  the 
same,  having  a  good  and  lawful  authority,  at- 
tested by  two  or  more  witnesses,  and  acknowl- 
edged by  such  grantor  or  grantors,  before  a 
justice  of  the  peace,  and  recorded  at  length  in 
the  town  clerk's  records,  where  such  houses  or 
lands  lie,  shall  be  valid  to  pass  the  same  with- 
JOHNBON'B  CASES,  1. 


1800 


BKAKTINGHAM  v.  FAY. 


260 


out  any  other  act  or  ceremony  in  the  law  what- 
ever, want  of  livery  of  seisin,  or  attornment  of 
the  possessors,  notwithstanding.  And  that  no 
bargain,  sale,  mortgage,  or  other  conveyances 
of  houses  or  lands  made  and  executed  within 
this  State,  or  attachment  served  thereon,  shall 
be  valid  in  law  to  hold  such  houses  or  lands 
against  any  other  person  or  persons  but  the 
grantor  or  grantors  and  defendant  and  their 
heirs  only,  unless  the  deed  or  conveyance 
thereof  be  duly  acknowledged  and  recorded,  in 
2<>1*]  *manner  as  is  before  expressed,  or  un- 
less minutes  be  made  of  such  mortgages  in  the 
town  records,  which  minutes  shall  respectively 
contain  the  description  and  boundaries  of  the 
land  mortgaged,  the  names  of  the  mortgageors 
and  mortgagees,  the  dates  of  the  mortgages, 
the  mortgage  money,  the  times  when  payable, 
and  when  registered,  or  unless  an  attested  copy 
of  such  attachments,  and  the  officer's  return 
thereof,  be  filed  in  the  said  town  clerk's  office." 

It  was  further*  proved  that  conveyances  for 
lands  in  Vermont  are  good  against  the  grant- 
ors without  being  recorded;  but  the  plaintiff 
did  not  show  any  conveyance  of  the  lands  in 
question  to  himself,  and  there  were  no  mesne 
conveyances  from  the  original  grantees  or  pro- 
prietors on  record.  Phelps  also  testified  that 
he  had  sold  the  lands  conveyed  to  him  as  above 
mentioned,  and  that  he  had  since  discovered 
from  the  persons  to  whom  he  had  sold  the 
lands  that  the  title  of  the  plaintiff  to  a  con- 
siderable part  of  said  lands  was  defective,  and 
that  he  (Phelps)  had  been  called  on  to  make 
good  such  defective  titles. 

Upon  this  evidence  the  defendant  moved  for 
a  nonsuit,  and  the  judge  being  of  opinion  that 
the  plaintiff  was  not  entitled  to  recover, 
directed  a  nonsuit  accordingly. 

Mr.  Pendletan,  for  the  plaintiff,  at  a  former 
term,  moved  to  set  aside  the  nonsuit,  and  for 
a  new  trial,  on  the  ground  that  if  the  plaintiff's 
title  to  the  lands  in  question  was  not  good,  still 
the  defendant  had  broken  his  covenant  in 
delivering  the  deed  to  Phelps,  which  he  had 
agreed,  in  that  case,  to  return  to  the  plaintiff; 
that  bv  the  delivery  of  the  deed  to  Phelps,  the 
plaintiff  was  devested  of  whatever  title  he 
previously  had,  and  ought,  therefore,  to  re- 
cover the  consideration  money  for  which  the 
lands  were  sold,  and  he  would  remain  liable 
for  any  defect  of  title  on  the  covenants  and 
warranty  contained  in  the  deed  to  Phelps. 

He  also  argued  that  the  conduct  of  the  de- 
fendant was  improper,  in  permitting  the  sale 
262*]  of  the  lands  for  taxes,  "and  that  he 
thereby  treated  them  as  his  own,  and  ought  to 
be  liable  for  their  value. 

Mr.  Ecertson,  for  the  defendant,  contended 
that  by  the  spirit  of  the  contract  between  the 
parties,  the  defendant  was  liable  to  pay  the 
consideration  money  only,  in  case  the  plaintiff's 
title,  on  examination,  should  appear  to  be 
valid,  and  from  the  evidence  it  clearly  appear- 
ed not  to  be  valid;  that  the  delivery  of  the 
deed  to  Phelps,  although  not  strictly  correct, 
was  not  a  material  fact,  and  could  in  no  way 
prejudice  the  plaintiff  who  had  no  title;  that 
for  this  cause,  the  plaintiff  could,  at  the  most, 
be  entitled  to  receive  nominal  damages  only, 
and  the  court  would  not,  for  that  reason,  set 
aside  the  nonsuit,  and  send  back  the  cause  for 
a  new  trial:  neither  could  the  sale  of  the  lands 
JOHNSON'S  CASES,  1. 


for  taxes,  which  was  permitted  by  the  defend- 
ant in  order  to  obtain  a  title,  give  any  right  to 
the  plaintiff  to  recover  at  law,  which  he  would 
not  otherwise  have  by  virtue  of  this  contract. 

RADCLIFF,  J.  The  deed  or  instrument  on 
which  this  action  is  brought,  is  obscurely  and 
inartificially  expressed;  but  the  intent  of  the 
parties,  and  the  scope  of  their  contract,  I  con- 
sider to  have  been  that  the  defendant  should 
pay  for  the  lands  in  case  the  plaintiff  appeared 
to  have  a  good  title,  and  not  otherwise.  The 
defendant,  or  Phelps,  who  was  his  principal, 
and  whom  he  must  be  deemed  to  represent, 
did  not  choose  to  rely  on  the  covenants  or  war- 
ranty contained  in  the  plaintiff's  deed,  and  for 
that  reason  stipulated  to  pay  the  consideration 
money  only  in  case  the  title  should  be  clearly 
ascertained  to  be  valid.  By  the  laws  of  Ver- 
mont, it  appears  that  no  title  can  be  valid  or 
secure  unless  the  deeds,  which  are  the  evi- 
dence of  such  title,  be  regularly  recorded  in 
the  town  where  the  lands  lie.  Aware  of  this, 
the  parties  regulated  their  contract  according- 
ly, and  referred  to  the  records  of  several 
towns,  and  to  certificates  to  be  there  obtained, 
as  the  evidence  by  which  its  validity  should 
be  ascertained.  When  so  ascertained,  the  de- 
fendant- agreed  to  pay  the  plaintiff  for  the 
lands. 

*It  appeared  in  evidence  that  there  [*263 
were  no  mesne  conveyances  from  the  original 
proprietors  of  the  lands  in  question  on  record, 
and,  of  course,  there  did  not  exist  that  evidence 
of  title  which  the  parties  contemplated  and  the 
laws  of  Vermont  required.  There  is  proof 
that  the  defendant  told  Phelps  that  he  had  ex- 
amined, and  believed  the  title  to  be  good,  ex- 
cept as  to  about  4,000  acres;  but  this  informa- 
tion was  not  true  in  fact,  and  being  founded  in 
mistake,  I  think  that  it  ought  not  to  conclude 
him.  It  is  also  true  that  the  defendant  de- 
livered the  deed  to  Phelps,  which,  by  the 
agreement  with  the  plaintiff,  he  was  bound  to 
return  to  him.  This  act  was  unauthorized, 
and  strictlv  in  violation  of  his  contract  with 
the  plaintiff,  but  I  do  not  think  that  it  ought  to 
subject  him  to  the  rigorous  consequence  of 
paying  the  whole  value  of  the  lands.  The 
plaintiff  still  can  be  no  further  damnified  than 
it  appears  he  had  title  to  those  lands;  to  that 
extent  he  ought  to  recover  and  no  more.  As 
between  the  plaintiff  and  the  defendant  the 
possession  of  the  deed  by  the  former  could  be 
of  no  use  if  he  had  no  title;  and  if  he  had  a 
title,  it  could  be  of  no  other  use  than  to  enable 
him  to  retain  it  until  his  money  was  paid.  The 
delivery  to  Phelps  might  deprive  him  of  that 
security,  and  also  render  him  liable,  in  case  of 
a  defect  of  title,  on  the  covenants  and  war- 
ranty contained  in  it.  But  in  whatever  man- 
ner he  may  be  affected  in  the  event  by  these 
covenants  and  the  warranty,  he  has  nof  shown 
that  he  has  in  fact  sustained  any  damages,  and 
it  would  be  too  uncertain  to  allow  him  to  pre- 
vail in  this  action,  on  the  expectation  merely 
of  a  future  recover}'  by  Phelps.  No  rule  of 
actual  damages  can  be  given  in  the  present 
situation  of  things,  nor  until  recovery  be  had: 
and  I  therefore  think  that  the  claim  of  the 
plaintiff  and  the  responsibility  of  the  defendant 
must  still,  under  the  existing  circumstances, 
be  substantially  founded  on  the  sufficiency  of 

319 


368 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


the  plaintiff's  title.  No  actual  damages  being 
shown,  the  plaintiff  could  be  entitled  to  re- 
cover a  nominal  sum  only,  and  although  this 
264*]  may  be  strictly  his  *right,  1  do  not 
think  that  we  ought  to  direct  a  new  trial  for  the 
sake  of  nominal  damages  merely. 

On  the  trial,  the  plaintiff  offered  to  prove 
that  the  defendant  declared  that  he  had  caused 
the  lands  to  be  sold  for  taxes,  and  bought 
them  himself  to  secure  the  title,  but  not  to  de- 
feat the  plaintiff's  right;  which  evidence  was 
overruled.  It  has  been  insisted  that  this  evi- 
dence ought  to  have  been  admitted,  and  that 
the  plaintiff  was  entitled  to  recover  the  value 
of  the  lands  so  purchased,  after  deducting  the 
moneys  paid  by  the  defendant.  Allowing  the 
purchase  to  have  been  made  in  affirmance  of 
the  plajntiff's  title,  the  defendant  may  be  con- 
sidered as  his  trustee,  but  I  think  he  can  have 
no  remedy  against  him  at  law,  on  the  founda- 
tion of  this  contract.  The  purchase  must  be 
considered  as  a  separate  transaction,  and  dehora 
the  contract.  The  contract  was  for  a  perfect 
and  existing,  not  an  imperfect  or  future  title. 
A  title  subsequently  acquired,  cannot  be  with- 
in it,  and,  therefore,  cannot  be  a  basis  for  the 
present  action ;  and  if  the  plaintiff  be'  entitled 
to  a  remedy  on  this  ground,  he  must  seek  it  in 
another  mode. 

I  am,  therefore,  of  opinion  that  this  evidence 
was  properly  refused,  and  that  we  ought  not  to 
award  a  new  trial,  for  the  purpose  of  nominal 
damages  merely. 

KENT,  J. ,  and  BENSON,  J. ,  Were  of  the  same 
opinion. 

LANSING,  C/t.  J.  A  motion  has  been  made 
to  set  aside  the  nonsuit  granted  in  this  cause. 

To  determine  on  it  the  terms  of  the  contract 
and  the  transactions  in  consequence  of  it, must 
be  particularly  considered. 

The  contract  states  in  substance — 

1.  That  the  defendant  had  received  a  deed 
executed  by  the  plaintiff  and  his  wife  to  Oliver 
Phelps,  for  26,814  acres  of  land  in  the  State  of 
Vermont. 

2.  The  defendant  agreed  that  he  would  have 
it  recorded,  and  return  it  to  the  plaintiff  with 
the  proper  certificate  necessary  to  show  that 
the  title  to  the  land  was  legally  vested  in  the 
plaintiff,  and  that  it  was  clear  of  incumbrances, 
265*]  *if  on  examination  it  should  be  found 
to  be  so. 

3.  That  when  such  title  was  fully  and  satis- 
factorily ascertained, and  said  lands.or  so  much 
of  them  as   the  plaintiff    should  appear    to 
have  a  good  title  to,  should  be  paid  for  at  the 
rate  of  three  shillings  her  acre,  by  discharging 
certain  demands  which  existed    against  the 
plaintiff,  including  £1,513  3s.  9d.,  which  the 
plaintiff  had    already  received  and  acknowl- 
edged on  a  contract  for  the  same  lands.  . 

4.  That  the  defendant  was  to  be  allowed  five 
per  cent,  for  transacting  the  business. 

This  contract  obviously  formed  only  a  part 
of  the  engagements  subsisting  between  the 
parties  named  in  it.  The  other  part  is  not 
brought  into  view,  but  sufficient  appears  to 
enable  us  to  infer  that  the  plaintiff  and  Phelps 
were  the  principals  in  it,  and  that  the  defendant 
was  merely  introduced  as  agent  for  one  or  both 
of  the  parties;  and  this  receives  some  corrobora- 
320 


tion,  for  the  circumstance  of  his  being  entitled 
to  receive  a  commission  for  the  service  in 
which  he  was  to  be  employed. 

The  deed  was  executed  by  the  plaintiff  to 
Phelps,  and  I  think  this  affords  strong  ground 
to  infer  that  he  was  the  person  who  made  the 
payment  of  part  of  the  consideration  money, 
though  the  vague  and  indefinite  terms  in  which 
the  payment  is  mentioned  does  not  positively 
asertain  it. 

It  is,  however,  certain  that  the  plaintiff  con- 
veyed the  land  in  question  to  Phelps,  and  that 
he  received  a  sum  of  money  on  account;  and 
I  can  discover  no  circumstances  in  the  case 
which  will  establish  the  fact,  or  even  the  pre- 
sumption that  the  defendant  made  this  advance. 
If  no  such  fact  exists,  the  defendant  was  mere- 
ly intrusted  with  the  deed  to  have  it  recorded, 
and  to  ascertain  whether  the  title  was  clear  and 
exempt  from  incumbrances;  These  objects 
being  attained,  he  was  to  return  it  to  the  plaint- 
iff, with  certain  certificates  of  public  officers, 
evidencing  those  facts  and  *then  the  [*266 
plaintiff  was  to  receive  at  the  rate  of  three 
shillings  per  acre,  in  the  mode  stipulated,  for 
the  land  for  which  a  good  title  appeared. 

The  defendant  examined  the  records,  had 
the  deed  recorded,  and  possessed  himself  of  the 
certificate;  he  expressed  some  doubt  as  to  the 
title  to  4,000  acres,  but  supposed  the  title  of 
the  residue  to  be  good,  and  thereupon  received 
a  deed  from  Phelps  for  the  4,000  acres,  and 
delivered  the  deed  executed  by  the  plaintiff, 
which  he  had  expressly  stipulated  to  return  to 
him,  to  Phelps,  to  whom  he  had  previously 
sold  the  land  described  in  it,  at  the  rate  of  3s. 
M.  per  acre.  He  gave  Phelps  a  bond  conditioned 
to  save  him  harmless,  in  case  the  title  to  the 
whole  or  any  part  of  the  land  should  fail,  and 
the  plaintiff  be  unable  to  respond  for  the  dam- 
ages; and  from  the  evidence  offered  and  over- 
ruled at  the  trial,  which  it  is  proper  to  consider 
as  forming  part  of  the  plaintiff's  case,  the  de- 
fendant confessed  that  he  had  caused  part  of 
the  land  to  be  sold  for  taxes,  and  became  the 
purchaser  himself. 

From  this  state  of  things  it  appears  to  me  to- 
tally irrelevant  to  the  issue  between  the  parties 
to  inquire  whether  the  title  to  the  land  was  valid 
or  otherwise;  this  was  to  have  been  settled  be- 
tween the  plaintiff  and  Phelps.  It  is  sufficient 
to  entitle  the  plaintiff  to  recover  to  show  that 
the  contract  entered  into  between  him  and  the 
defendant  was  not  complied  with. 

It  appears  to  me  to  have  been  grossly  vio- 
lated, and  that  the  subsequent  transaction  be- 
tween the  defendant  and  Phelps  was  tiutlajide. 

The  defendant  had  agreed  to  return  the  deed 
to  the  plaintiff;  instead  of  this  he  delivered  it 
to  Phelps. 

It  was  stipulated  that  the  plaintiff  should  re- 
ceive three  shillings  per  acre.  Instead  of  this 
the  defendant  makes  a  new  sale  to  Phelps  at 
3s.  4(1.,  receives  a  title  for  4,000  acres  to  himself, 
and,  for  aught  that  appears,  pockets  not  only 
the  additional  4d.  per  acre,  but  the  balance  of 
the  consideration  money,  which  was  to  be  paid 
to  the  plaintiff. 

*The  transaction  appears  mysterious;  [*2O7 
but  as  far  as  the  inducements  of  the  parties  can 
be  traced,  it  may  in  some  measure  be  accounted 
for.  Phelps,  probably  diffident  of  the  responsi- 
bility of  the  plaintiff,  was  induced  to  give  an 
JOHNSON'S  CASES,  1. 


1800 


CORTES  v.  BILLINGS. 


267 


additional  sum  for  the  defendant's  indemnifi- 
•cation;  and  the  acceptance  of  the  deed  for  the 
4,000  acres,  and  the  receipt  of  the  4d.  per  acre, 
•explains  the  motive  by  which  the  defendant 
was  actuated. 

If  the  defendant  afterwards  purchased  the 
lands  in  question  for  the  taxes,  it  must  have 
been  in  affirmance  of  the  plaintiff's  title;  or  if 
not  so  intended,  his  procuring  them  to  be  sold 
under  that  pretence  was  fraudulent  and  ought 
not  to  avail  him.  Besides,  if  the  defendant  ac- 
quired a  good  title  by  the  sale  for  taxes,  it  must, 
from  the  situation  in  which  he  had  placed  him- 
self with  Phelps,  operate  in  affirmance  of  the 
title  of  Phelps;  for  the  defendant  had  engaged 
to  indemnify  him,  and  it  could  answer  none  of 
his  purposes  to  assert  his  title  in  consequence 
of  his  purchases,  if  he  was  subject  to  respond 
in  damages  on  his  contract.  The  defendant 
appears  in  this  court  in  an  unfavorable  view. 
He  undertakes  to  investigate  the  title  for  a 
reward;  he  asserts,  contrary  to  his  better  judg- 
ment, if  the  evidence  is  to  be  relied  on  in  its 
extent,  that  the  title  is  good  for  19,000  acres; 
avails  himself  of  the  knowledge  he  has  acquired 
.at  the  expense  of  his  confiding  employers,  to 
take  the  money  from  the  one  and  the  land  from 
the  other,  if  it  be  true  that  his  last  purchase 
was  not  for  the  benefit  of  Phelps. 

It  was  insisted  that  the  plaintiff,  to  sustain 
this  action,  ought  to  show  that  his  title  to  the 
lands  was  good;  but  it  appears  to  me  that  even 
.as  between  the  parties  in  this  suit  (supposing 
the  defendant  to  be  a  principal),  the  manner  in 
which  the  business  was  conducted  would  con- 
clude the  defendant. 

After  detailing  the  particular  mode  in  which 
the  defendant  was  to  conduct  his  researches, 
and  to  procure  the  certificates  necessary  to  show 
that  the  title  of  the  lands  was  in  the  plaintiff, 
and  that  they  were  free  from  incumbrances, 
2C8*]  *the  contract  proceeds,  and  "when 
such  titles  are  fully  and  satisfactorily  ascertain- 
ed," then  the  amount  of  the  said  lands,  or  so 
much  of  them  as  it  shall  appear  the  plaintiff 
has  title  to,  shall  be  paid  for.  If  after  the 
word  "ascertained,"  the  words  "in  manner 
aforesaid"  had  been  added,  it  would  have  re- 
moved eveiy  doubt  of  the  construction;  and 
yet  the  words  are  so  placed  in  relation  to  those 
preceding,  as  strongly  to  convey  the  same 
sense,  and  to  confine  it  to  the  manner  of  ascer- 
taining it,  before  detailed,  as  if  it  were  pre- 
cisely limited  by  an  express  specification, 

The  title  was  to  be  fully  and  satisfactorily 
ascertained  by  the  defendant,  and  when  he  was 
satisfied,  he  was  to  return  the  deed  with  the 
certificates  to  the  plaintiff,  upon  which  the  de- 
fendant was  to  receive  the  consideration  money. 
A  different  construction — that  the  proof  of  title 
was  to  be  satisfactorily  made  in  a  court  of 
justice — would  suppose  the  singular  case  of  a 
deliberate  contract  for  a  litigation. 

It  was,  however,  said,  that  even  admitting 
the  plaintiff's  general  right  to  recover,  the  con- 
tract furnished  no  measure  of  damages.  That 
the  consideration  money  was  to  be  paid  in  the 
discharge  of  debts  due  from  the  plaintiff  can 
offer  no  insurmountable  difficulty;  for  as  to 
him,  they  were  worth  their  nominal  value,  as 
it  extinguished  so  much  of  his  debts.  The  loss 
the  plaintiff  has  sustained  is  susceptible  of 
being  reduced  to  certainty  by  calculation,  for 
.JOHNSON'S  CASES,  1.  N.  Y.  REP.,  BOOK  1. 


it  appears  to  me  his  damage  sought  to  be  meas- 
ured by  the  amount  of  the  sum  for  which  the 
plaintiff  sold  the  land,  with  interest,  deducting 
the  £1,513  3*.  dd.,  already  paid. 

The  objection  that  there  is  a  variance  between 
the  contract  set  forth  in  the  declaration  and  the 
one  produced  in  evidence,  I  think  cannot  be 
supported.  The  description  in  the  declaration 
of  the  evidences  of  the  debts  to  be  received  in 
payment  for  the  land,  are  such  as  the  contract 
warrants.  The  contract  mentions  that  the  land 
is  to  be  paid  for  "in  Brantingham's  notes, 
bonds,  or  other  demands  *against  him,"[*26O 
and  then  proceeds,  "including  the  £1,513  3s. 
9d.,  which  the  said  Brantingham  has  already 
received,  &c. ,  a  judgment  in  favor  of  Comfort 
Sands,"  and  then  enumerates  the  other  securi- 
ties to  be  received;  then  follows  the  clause 
which  is  supposed  to  support  the  objection  as 
to  the  variance,  "and  other  demands  which 
are  now  due,  sufficient  to  pay  the  amount  of 
the  said  lands,"  &c.  The  declaration  states  the 
sum  of  £1,513  3s.  $d.,  as  to  be  included  in  the 
payment,  and  adds,  ' '  and  that  the  said  Joseph 
Fay  would  pay  a  judgment  obtained  against 
the  said  Thomas  H.  Brantingham,  at  the  suit 
of  one  Comfort  Sands,"  and  describes  the  other 
securities  correspondent  with  the  description  in 
the  contract;  after  which  we  find  the  words, 
' '  and  other  demands  against  the  said  Thomas 
H.  Brantingham,  and  then  due  from  him, 
sufficient  to  pay  the  amount  of  the  said  land." 

It  is  barely  necessary  to  state  the  connection 
of  the  different  expressions  to  show  that  the 
supposed  variation  is  merely  in  the  terms  em- 
ployed; that  the  description  of  the  contract  in 
the  declaration  is  substantially  and  strictly  true, 
and  that  the  construction  that  a  double  pay- 
ment was  imposed  on  the  defendant  by  the 
terms  contained  in  the  declaration  is  totally  un- 
founded. 

I  am,  therefore,  of  opinion  that  the  nonsuit 
ought  to  be  set  aside. 

LEWIS,  J. ,  declared  himself  to  \>e  of  the  same 
opinion. 

Rule  refused. 

Cited  in  3  Johns.,  240 ;  3  Hill,  136 ;  23  Barb.,  555 ;  42 
Barb.,  230 ;  43  Barb..  538. 


*CORTES  «.  BILLINGS.      [*27O 

Witness — Competency — Agent. 

The  owner  of  a  vessel  who  has  overpaid  money 
shipped  in  the  vessel  to  the  shipper,  and  been  re-im- 
bursed  the  amount  by  the  master,  is  a  competent 
witness  in  an  action  brought  by  the  master  against 
the  shipper,  for  the  same  money,  though  in  the  first 
instance,  the  owner  is  liable  for  the  default  of  the 
master.  An  agent  is  a  good  witness,  ex  necessitate. 

THIS  was  an  action  for  money  had  and 
received.  Plea,  the  general  issue.  On  the 
trial  before  Mr.  Justice  Radcliff,  at  the  last  No- 
vember Circuit  in  the  city  of  New  York,  the 
plaintiff's  counsel  having  opened  the  case,  and 
staled  the  testimony  of  the  witness,  Hervey,  as 
hereafter  mentioned,  the  defendant's  counsel 
objected  to  the  admission  of  the  witness  on  the 
ground  of  interest.  The  objection  was  over- 
ruled, and  Hervey  being  sworn,  testified,  that 
21  321 


270 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


about  the  beginning  of  June,  1796,  the  plaint- 
iff arrived  at  New  York  from  New  Orleans  in 
a  ship  belonging  to  the  witness  and  John  Her- 
vey,  of  New  York,  merchants,  of  which  the 
plaintiff  was  master;  that  the  plaintiff  brought 
with  him  upwards  of  $40,000  in  cash,  which 
had  been  shipped  at  New  Orleans,  and  con- 
signed to  different  persons  at  New  York;  that 
the  money  was  lodged  in  one  of  the  b*anks  by 
the  witness,  and  his  account  credited  for  the 
amount;  that  the  witness  paid  thereout  from 
time  to  time,  to  different  persons,  who  held 
bills  of  lading  for  the  amount  due  to  them,  ac- 
cording to  such  bills;  that  $13,061.37  of  the 
said  moneys  were  shipped  by  the  house  of  Sar- 
ping  &  Co.,  of  New  Orleans,  of  which  house 
the  defendant  was  a  partner,  and  were  con- 
signed to  J.  Thebaud,  of  New  York;  that  one 
Longchamp,  a  clerk  of  Thebaud,  soon  after 
the  arrival  of  the  said  ship,  applied  to  the 
witness  for  the  last  mentioned  sum,  and  also 
for  $566.37,  for  which  no  bill  of  lading  or 
other  voucher  was  produced;  that  the  witness 
offered  to  pay  the  sum  for  which  bills  of  lading 
were  shown,  but  refused  to  pay  the  said  $566. 
37,  and  Longchamp  declined  accepting  the 
former  sum;  that  soon  after,  on  the  same  day, 
the  defendant  in  person  applied  to  the  witness 
for  both  the  said  sums,  and  stated  that  he  had 
brought  the  said  $566.37  on  board  the  ship  for 
his  private  expenses,  and  that  when  going 
271*]  down  the  Mississippi  from  *New  Or- 
leans, he  delivered  the  same  to  the  plaintiff 
from  a  fear  that  a  search  would  be  made  at  the 
mouth  of  the  river  for  money,  and  that  he 
took  the  plaintiff's  receipt  for  the  same,  which 
receipt  the  witness  understood  he  then  had  in 
New  York,  but  could  not  readily  find,  and  the 
defendant  said  he  would  produce  it,  or  hold 
himself  accountable  for  the  amount;  that  in 
consequence  of  this  representation,  the  witness, 
on  the  next  day,  being  the  6th  of  June,  paid  to 
Longchamp,  the  clerk  of  Thebaud,  the  sums 
specified  in  the  bills  of  lading,  and  also  the 
said  $566.37,  and  took  a  separate  receipt  for 
the  latter  sum,  which  receipt  being  called  for 
by  the  defendant,  was  produced  in  evidence  on 
the  part  of  the  plaintiff. 

,  The  witness  also,  on  the  26th  of  June,  re- 
ceived the  freight  for  the  sum  last  mentioned, 
and,  by  his  clerk,  gave  a  receipt  therefor. 
The  witness,  Hervey,  further  deposed  that 
during  the  above  transaction,  the  'plaintiff  and 
defendant  were  both  in  New  York,  but  that 
the  witness  did  not  inform  the  plaintiff  of  the 
payment  of  the  said  $566.37,  nor  of  the  re- 
ceipt of  the  freight  for  the  same,  and  believed 
that  he  did  not  know  of  such  payment ;  that 
the  money  was  received  by  Thebaud,  as  agent 
of  the  defendant,  which  agency  and  the  re- 
ceipt of  the  money  by  the  defendant  were  ad- 
mitted; that  afterwards,  when  the  plaintiff 
and  witness  settled  the  account  of  all  the 
moneys  brought  in  the  ship,  they  discovered  a 
deficiency  corresponding  with  the  sum  in 
question  ;  that  the  plaintiff  allowed  the  same 
in  his  account  with  the  witness  in  order  to  re- 
imburse him,  but  at  the  same  time  denied  the 
defendant's  right  thereto;  that  the  defendant 
resides  at  New  Orleans,  and  on  his  arrival  at 
New  York  about  eighteen  months  since,  the 
plaintiff  caused  him  to  be  arrested  for  the  said 
$566.37;  the  witness  further  stated  that  he  i 
822 


was  at  New  Orleans  in  the  month  of  May 
last,  and  saw  the  defendant  there,  and  several 
times  mentioned  to  him  the  subject  of  the 
plaintiff's  receipt ;  that  the  defendant  still  al- 
leged that  he  had  such  receipt,  but  did  not 
produce  it,  and  the  witness  further  said  that 
he  had  no  interest  in  the  event  of  the  suit. 

*The  plaintiff  having  rested  his  [  *272 
cause,  the  defendant's  counsel  again  objected 
to  the  competency  of  this  witness,  and  on  that 
ground  moved  for  a  nonsuit,  which  motion 
was  overruled. 

On  the  part  of  the  defendant,  Longchamp- 
was  then  examined,  who  proved  the  same- 
facts  mentioned  by  Hervey,  as  far  as  he  is 
above  stated  to  have  been  concerned  in  the 
transaction.  A  deposition  of  G.  Dubuys  was 
also  read,  who  testified  that  he  resided  a't  New 
Orleans  in  May,  1796;  that  the  ship  above- 
mentioned  was  there  at  that  time,  commanded 
by  the  plaintiff;  that  she  sailed  in  the  same 
month  for  New  York,  and  the  defendant  was 
a  passenger;  that  he  saw  a  receipt  given  by 
the  plaintiff  to  the  defendant  for  $566.12,  and 
the  reason  of  taking  such  receipt  was  that  the- 
defendant  had,  unexpectedly,  received  that 
sum  at  the  moment  of  sailing,  and  it  was- 
therefore  not  included  in  the  bills  of  lading, 
and  that  the  business  was  transacted  in  his 
counting-house. 

The  witness,  Hervey,  was  again  called  by 
the  plaintiff,  who  further  testified  that  it  was- 
very  difficult  to  bring  money  from  New 
Orleans,  it  being  against  the  laws  of  that 
country,  and  if  detected,  would  subject  the 
same  to  seizure.  It  was,  therefore,  usually 
done  by  delivering  small  parcels  at  a  time  and 
giving  the  shipper  separate  receipts,  and  when 
the  whole  was  received  on  board,  to  sign  a  bill 
of  lading  for  the  total  amount  and  take  up  the 
receipts. 

On  this  evidence  it  was  submitted  to  the- 
jury  to  determine  whether  the  plaintiff  had 
ever  received  the  sum  in  question,  and  if  so,, 
whether  from  the  nonproduction  of  the  receipt, 
and  the  other  circumstances,  it  was  not  to  be 
presumed  that  the  same  had  been  included  in 
the  bills  of  lading.  The  jury  found  for  the- 
plaintiff  for  $692.35  damages,  being  the 
amount  of  the  sum  claimed,  including  interest 
and  deducting  the  freight  paid  for  the  same. 

On  the  part  of  the  defendant,  a  motion  was 
made  for  a  new  trial,  on  the  argument  of 
which  the  following  points  were  raised : 

*1.  Whether  Hervey  was  a  compe-  [*273 
tent  witness. 

2.  Whether  the  action  ought  not  to  have 
been  brought  by  the  Herveys,  who  were  the 
owners  of  the  ship,  instead  of  the  plaintiff,, 
who  was  the  master. 

3.  Whether  the  verdict  ought  not  to  be  set 
aside,  as  being  against  evidence. 

Mr.  Rigg*  for  the  plaintiff. 
Mr.  Evertson  for  the  defendant. 

RADCLIFF,  J.,  delivered  the  opinion  of  the 
court : 

The  objections  to  the  witness,  Hervey,  and 
to  the  propriety  of  the  action  in  the  name  of 
the  plaintiff,  may  be  considered  in  one  view. 
The  argument  of  the  defendant's  counsel  as  to- 
both  is  founded  on  the  idea  that  this  witness, 
JOHNSON'S  CASES,  1. 


1800 


BRANDT,  EX  DEM.  VAN  CORTLANDT  ET  AL.,  v.  DYCKMAN. 


273 


as  one  of  the  owners  of  the  ship,  was  liable  to 
the  defendant  for  all  the  moneys  delivered  to 
the  master,  and  if  there  was  an  overpayment, 
that  the  owners  were  entitled  to  recover  it,  and 
not  the  plaintiff.  It  is  true  that  the  owners  of 
a  ship  are  generally  liable  to  the  shipper  for 
the  skill  and  fidelity  of  the  master  whom  they 
employ.  Whether  this  liability  ought  to  be 
limited  to  the  amount  of  the  property  for 
which  bills  of  lading  were  actually  given,  as 
has  been  supposed  by  the  counsel  for  the 
plaintiff,  or  would  extend  to  all  property  re- 
ceived by  the  master,  in  the  ordinary  course  of 
the  trade  in  which  he  was  engaged.it  is  unneces- 
sary to  consider.  Admitting  the  responsibility 
of  the  owners  in  the  fullest  latitude,  they  were 
in  fact  discharged  from  it  in  the  present  case 
by  the  actual  payment  of  the  sum  in  question 
to  the  defendant,  who,  if  it  were  originally 
due,  could  not  afterwards  maintain  an  action 
against  them  for  it.  They  were  also  discharged 
from  their  responsibility  to  the  master  by  his 
re-imbursing  the  amount  to  the  witness,  and 
allowing  it  in  the  settlement  of  their  account. 
The  plaintiff  might  have  disaffirmed  the  pay- 
ment, and  the  witness,  Hervey,  would  then 
have  been  compelled  to  seek  his  remedy  against 
the  defendant.  But  the  plaintiff  appears  to 
have  considered  Hervey  for  this  purpose  as 
acting  in  the  capacity  of  his  agent,  and  having 
274*]  allowed  the  *payment,  he  thereby 
discharged  him  from  all  responsibility,  and 
from  all  interest,  either  as  a  witness  or  a  party. 
It  follows  that  if  there  was  an  overpayment, 
it  became  so  much  money  received  by  the  de- 
fendant to  the  plaintiff's  use. 

Allowing  the  competency  of  Hervey  as  a 
witness,  and  that  the  action  was  rightly 
brought  by  the  plaintiff,  we  think  the  evi- 
dence was  sufficient  to  support  the  verdict. 
No  part  of  the  conduct  of  the  plaintiff  can  be 
construed  into  an  admission  that  the  money  in 
question  was  due  to  the  defendant.  On  the 
contrary,  considering  that  the  defendant  al- 
leged that  he  had  a  receipt  for  the  money  in 
his  possession,  and  that  he  did  not  produce  it, 
although  he  had  ample  opportunities  for  that 
purpose,  nor  pretended  that  it  was  lost ;  con- 
sidering also  that  the  account  of  the  transaction 
at  New  Orleans,  as  given  by  his  witness  Du- 
buys,  differs  essentially  from  the  account  given 
by  himself  to  Hervey,  and  that  it  is  probable 
from  the  manner  in  which  money  is  usually 
shipped  from  New  Orleans,  the  sum  in  ques- 
tion, if  received  by  the  plaintiff,  was  included 
in  the  bill  of  lading,  we  think  the  jury  were 
justified  in  the  verdict  they  found,  and  that  it 
is  consistent  with,  rather  than  against  the 
weight  of  evidence. 

Rule  refused. 


275*]  *BRANT,  ex  dem.,  VAN  CORTLANDT 
ET  AL., 

vs. 
DYCKMAN. 

Witness — Competency — Tenant  in  Possession. 

In  an  action  of  ejectment,  it  was  held  that  a  per- 
son cannot  be  a  witness  to  show  that  he  was  the 
tenant  in  possession,  and  not  the  defendant. 

JOHNSON'S  CASES,  1. 


THIS  was  an  action  of  ejectment,  tried  be- 
fore Mr.  Justice  Benson,  at  the  last  July 
Circuit,  in  the  County  of  Westchester. 

The  plaintiff  having  proved  his  title,  gave 
evidence  to  show  the  defendant  in  possession 
of  the  premises  in  question,  and  there  rested 
his  cause. 

The  defendant  insisted  that  he  was  not  in 
possession  of  the  premises  at  the  time  when 
the  action  was  commenced,  and  called  one 
Vredenbergh  as  a  witness,  to  prove  that  he 
( Vredenbergh ),  at  the  commencement  of  the 
suit,  was,  and  then  still  continued  to  be  the 
real  tenant  in  possession,  and  not  the  de- 
fendant. 

The  plaintiff's  counsel  objected  to  hit  being 
received  as  a  witness,  because  his  testimony 
went  to  protect  his  own  possession : 

The  judge  was  of  that  opinion,  and  refused 
to  permit  the  witness  to  be  sworn. 

A  motion  was  made  for  a  new  trial,  on  the 
ground  that  the  witness  was  competent,  and 
ought  to  have  been  received. 

Per  Curiam.  We  think  that  Vredenbergh 
was  not  a  competent  witness,  and  was  prop- 
erly excluded.  If  he  was  in  possession,  he 
had  an  immediate  interest  to  protect  that  pos- 
session, and  prevent  a  recovery,  and  if  he  was 
not,  the  object  of  producing  him  was  im- 
proper, and  ought  not  to  succeed.  Whether 
this  be  considered  as  an  interest  in  the  event  of 
the  suit,  or  in  the  question  between  the  parties 
merely,  it  is  one  of  those  cases  in  which  the 
reason  and  policy  of  the  law  ought  to  exclude 
a  witness.  His  interest  on  the  question  of 
possession  is  almost  the  same  as  that  of  the  de- 
fendant himself,  and  from  the  nature  of  the 
fact,  there  can  be  no  inconvenience  in  requir- 
ing other  proof,  which  it  must  always  be  in 
the  power  of  the  party  to  produce. 

Rule  refused. 

Distinguished— 6  Cow.,  249. 

Cited  in— 12  Johns.,  247 ;  8  Cow.,  294. 


*PLATT 


[*276 


ROBINS  AND  SWARTWOUT,    Administra- 
tors of  M.  SMITH. 


1.  Evidence — Plene  Administravit — Burden  of 
Proof.  2.  Id.—DevaMavit—Fi.  fa.—Nutta 
bona.  3.  Executor — Devastacit — Defense  in 
First  Suit. 

On  a  plea  of  plene  administravit,  the  onus  pro- 
bandi  lies  on  the  defendant.  A  former  judgment 
against  executors,  and  a  ft.  fa.  returned  nuUa  bona, 
are  conclusive  evidence  of  a  deoastaott.  The  execu- 
tor must  defend  himself  in  the  first  suit,  or  he  will 
be  precluded  afterwards  from  saying  he  had  no 
assets. 

Citations— 3  Bacon  Abr.,  80,  rev.  ed.;  2  Com.  Dig., 
255,  256,  tit.  Admr.,  [I,  31;  Noy,  7;  1  Salk.,  310; 
Cro.  Car.,  527,  519;  Cro.  Eliz.,859;  5  Co.,  32;  3.  Salk., 
310 ;  1  Ld.  Ravm.,  589 ;  3  Term  R.,  690 ;  1  Atk.,  294  :  3 


Term,  (585 ;  1  W ils.,  358. 


328 


276 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


'S  was  an  action  of  debt  against  the  de- 
JL  fendants,  suggesting  a  devastavit  by  them, 
as  the  administrators  of  M.  Smith,  deceased. 
The  declaration  stated  a  judgment  recovered 
by  the  plaintiff  against  the  defendants,  as  such 
administrators,  by  default,  upon  a  scire  facias 
issued  upon  a  former  judgment  obtained 
against  the  intestate,  in  his  lifetime,  that  a 
writ  of  scire  facias  had  issued  on  the  said  judg- 
ment against  these  defendants,  directed  to  the 
sheriff  of  New  York,  in  which  county  the 
venue  was  laid,  commanding  him  to  levy  the 
damages  recovered  of  the  goods  and  chattels  of 
the  intestate  in  the  hands  of  the  defendants  to 
be  administered,  and  that  the  said  writ  was  re- 
turned nutta,  bona.  The  declaration  also  al- 
leged that  divers  goods  and  chattels,  which 
were  of  the  intestate  to  the  amount  of  the  dam- 
ages recovered,  had  come  to  the  hands  of  the 
defendants  as  administrators  as  aforesaid, 
which  they  had  "sold,  eloigned,  wasted, 
converted  and  disposed  of  to  their  own  use," 
by  which  an  action  had  accrued  to  the  plaintiff, 
to  demand  and  have  the  said  damages  of  the 
defendants,  &c. 

The  defendants  pleaded, 

1.  Plene  administramt,  except  as  to  the  sum 
of  $50,  to  which  amount  they  admitted  assets. 

2.  That  the  defendants  had  not  sold,  eloign- 
ed, wasted,  converted  or  disposed  of,  to  their 
own  use,  any  of  the  goods  and  chattels  which 
were  of  the  intestate,  &c. 

The  plaintiff  replied,  and  took  issue  on  both 
pleas. 

On  the  trial,  the  plaintiff  gave  in  evidence 
the  judgment  recovered  against  the  defendants 
on  the  scire  facias,  the  writ  of  fieri  facias  issued 
thereon,  and  the  sheriff's  return  thereto  of  nul- 
la  bona,  and  there  rested. 

The  defendants  offered  no  proof,  and  a  ver- 
dict was  taken  for  the  plaintiff. 
277*]  *A  motion  was  made  for  a  new  trial, 
on  the  general  ground  that  it  was  competent 
for  the  defendant,  in  this  action,  to  deny  the 
devastavil,  and  incumbent  on  the  plaintiff  to 
prove  it  by  other  evidence. 

Mr.  Boyd  for  the  plaintiff. 
Mr.  Burr  for  the  defendants. 

RADCLIFF,  J.,  delivered  the  opinion  of  the 
court: 

1.  If  the  plea  of  plene   administramt   was 
properly  pleaded  in  this  action,  the  onus  pro- 
bandi  lay  on  the  defendants.     It  is  an  affirma- 
tive plea,  and  it  was  incumbent  on  them  to 
maintain  it,    which  they  might  have  done,   by 
showing  that  they  had  fully  administered,  ac- 
cording   to    the  inventory  which  they  were 
bound  to  make  when  they  assumed  the  admin- 
istration.    (3  Bac.  Ab.,  80,  new  ed.) 

2.  According  to  the  ancient  law,  different 
modes  of  proceeding  appear  to  have  prevailed, 
At  one  period  it  was  held  that  a  fieri  facias 
quare  executionem  non  did  not  lie  against  an 
executor  or  administrator,  without  a  devastavit 
previously  returned  or  found.     (Com.  Dig., 
255,  256,  tit.  Administrator   [I.  3],   Noy,   7.) 
And  the  sheriff  might  return  a  derastamt,  but 
ne  did  so  at  his  peril.     (1  Salk..  310.)    Ip  or- 
der to  protect  him  against  this  peril,   he  might 
return   nulla  bona  merely,    upon   which  the 
324 


plaintiff,  by  a  suggestion  on  the  roll,  called  a 
testatum,  might  issue  a  writ  of  inquiry  to  the 
sheriff,  and  if  a  devastarit  was  found  by  the 
inquisition,  the  plaintiff  might  then  have  a 
scire  facias  quare  executionem  non  de  bonis  pro- 
priis, against  the  executor  or  administrator, 
and  the  latter  might  plead  and  traverse  the  in- 
quisition. (Com.  Dig.,  255,  256,  ut  supra; 
Cro.  Car.,  527;  Cro.  Eliz.,  859.)  And  if  the 
traverse  was  found  against  him,  the  judgment 
was  then  de  bonis  propriis.  (Cro.  Car.,  519.) 
But  there  could  be  no  scire  facias  against  an 
executor  or  administrator,  on  the  bare  sugges- 
tion of  a  devastavit,  which  was  necessary  to  be 
returned  by  the  sheriff,  or  found  by  an  inqui- 
sition. (Com.  Dig.,  255,  256,  ut  supra.) 

At  another  period,  it  was  held  that  if  nutta 
bona  was  returned,  a  special  fieri  facias  should 
go  to  the  sheriff  quod  de  bonis  testatoris,  &c., 
et  si  constare  polerit  quod  detastavit,  tune  de 
bonis  propriis.  (5  Co.  32.)  And  a  writ  of  in- 
quiry to  the  sheriff  was  resolved  to  be  improper, 
because  the  *sheriff,  on  taking  an  in-  [*278 
quest,  would  not  be  liable  for  false  return,  nor 
the  jury  to  an  attaint,  being  merely  an  inquest 
of  office. 

The  principle  which  has  since  been  settled, 
and  which  I  think  decides  the  present  case,  is, 
that  if  the  party  does  not  avail  himself  of  the 
opportunity  of  pleading  a  matter  in  bar  to 
the  original  action,  he  cannot  afterwards  plead 
it  in  another  action,  founded  on  a  judgment 
obtained  in  the  first.  This  was  determined  in 
the  case  of  Rock  v.  Leighton  (Salk.,  310;  1 
LordRaym.,  589;  S.  C.,  3  Term  Rep.,  690), 
by  Lord  Holt,  and  it  was  held  that  the  execu- 
tor was  estopped  by  suffering  judgment  to 
pass  against  him  in  such  action,  and  the  sher- 
iff justified  in  returning  a  devastarit.  A  decis- 
ion to  the  same  effect  was  made  by  Lord 
Hardwicke  (1  Atk.,  294),  and  another  by 
Lord  Kenyon  and  the  whole  court  of  K.  B". 
(3  Term  Rep.,  685.)  In  delivering  the  opinion 
of  the  court  in  the  latter  case,  Lord  Kenyon 
considered  the  rule  inconsistent  with  the  form 
of  the  judgment  against  an  executor  or  admin- 
istrator, and  with  the  apparent  equity  of  the 
case,  but  the  decision  of  Lord  Holt  was 
deemed  to  have  settled  the  law,  since  which 
the  determinations  have  been  uniform  on  the 
subject. 

In  the  cases  which  have  been  mentioned,  a 
derastamt  was  actually  returned.  In  the  case 
before  us,  the  return  of  the  sheriff  was  nutta 
bona  merely.  This  difference,  however,  does 
not  affect  the  application  of  the  rule.  The 
principle  in  both  cases  is  the  same,  that  the 
executor  or  administrator,  by  suffering  a 
judgment  by  default  in  the  first  action  against 
him  has  admitted  assets,  and  is  afterwards 
precluded  from  denying  it.  It  is  the  judg- 
ment in  that  action  which  concludes  him,  and 
to  this  effect  is  the  case  of  Skelton  v.  Hatrling 
(1  Wils.,  258). 

I  am  therefore  of  the  opinion  that  the  plaint- 
iff is  entitled  to  judgment,  and  this  is  the 
opinion  of  the  court. 

Judgment  for  the  plaintiff. 


Cited  in— 14  Johns.,  449;  4  Cow.,  448;   7  Cow.,  706 ; 
3  Wend.,  308 ;  4  Wend.,  228. 

JOHNSON'S  CASES,  1. 


1800 


VAN  RENSSELAER  v.  DOLE. 


279 


279*]        *VAN  RENSSELAER 

v. 
DOLE 


Slander — Actionable  Words — Particular  Trans- 
action. 

Where  words  otherwise  actionable,  are  explained 
at  the  time  by  a  reference  to  a  known  and  particu- 
lar transaction,  they  are  to  be  construed  accordingly; 
and  being:  so  explained,  they  were  held  not  actiona- 
ble. Where  a  verdict  is  found  against  the  charge  of 
the  judgre,  on  granting  a  new  trial,  the  costs  are  to 
abide  the  event  of  the  suit. 


was  an  action  of  slander.  The  decla- 
J.  ration  charged  the  defendant  with  speak- 
ing of  the  plaintiff  and  others,  the  following 
words:  "  John  Keating  is  as  damned  a  rascal 
as  ever  lived,  and  all  who  joined  his  party  and 
the  procession  on  the  4th  July  (meaning  the 
said  John  Van  Rensselaer  and  the  party  and 
procession,  in  which  the  said  John  Keating 
acted  as  captain  on  the  said  4th  day  of  July) 
are  a  set  of  blackhearted  highwaymen,  rob- 
bers, and  murderers."  The  words  were  dif- 
ferently charged,  with  some  additional  ex- 
pressions, in  the  other  counts,  but  were  in 
substance  the  same.  Plea,  the  general  issue. 

The  cause  was  tried  before  Mr.  Justice  Ben- 
son, at  the  last  March  sittings,  in  the  city  of 
Albany.  The  words  charged  were  proved  to 
have  been  spoken  by  the  defendant. 

On  the  part  of  the  defendant,  it  appeared 
that  on  the  day  previous  to  the  speaking  of 
the  words  there  had  been  a  public  procession 
to  a  church  in  Lansingburgh,  where  the  par- 
ties resided;  that  Keating  commanded  an  ar- 
tillery company,  which  formed  part  of  the 
procession,  attended  with  music;  that  a  Mr. 
Bird  claimed  one  of  the  instruments  of  music, 
a  bass  viol,  and  went  to  the  church  to  demand, 
or  take  it,  but  it  was  refused  to  be  delivered, 
and  retained  by  force;  that  upon  this,  an  af- 
fray ensued,  in  which  Mr.  Bird  received  a 
dangerous  wound. 

It  was  proved  that  the  conversation,  in 
which  the  words  were  spoken,  was  understood 
by  the  witnesses  to  relate  to  the  transactions 
of  the  preceding  day,  and  that  the  terms 
"highwayman,  robbers,  and  murderers," 
were  used  in  reference  to  the  treatment  of 
Mr.  Bird  in  withholding  the  bass  viol,  and  in 
stabbing  him. 

The  judge  was  of  the  opinion  that  the  words 
being  spoken  in  relation  to  the  transactions  of 
the  preceding  day,  and  so  understood,  were 
thereby  explained,  and  on  that  account  not 
actionable.  The  jury,  nevertheless,  found  a 
28O*]  *verdict  for  the  plaintiff,  for  $50  dam- 
ages and  6  cents  costs. 

The  defendant  at  this  term,  moved  for  a  new 
trial,  on  the  ground  that  the  verdict  was  con- 
trary to  law  and  the  evidence. 


NOTE. — Words,  othencise  actionable,  may  be  ex- 
plained by  reference  to  a  particular  transaction  to 
which  they  are  known  by  the  listeners  to  refer. 

The  burden  of  proof  is  on  the  defendant,  however, 
to  show  that  they  were  known  to  refer  to  such 
transaction.  Hayes  v.  Ball,  72  N.  Y.,  418 ;  Thompson 
v.  Bernard,  1  Camp.,  48 ;  Cristie  v.  Cowell,  Peake,  4 ; 
Hankinson  v.  Bilby,  2  C.  &  K.,  440;  Norton  v.  Ladd, 
5  N.  H.,  209 ;  Williams  v.  Cawley,  18  Ala.,  206 ;  Quinn 
v.  O'Gard,  2  E.  D.  S.,  388. 

JOHSSON'S  CASES,  1. 


Mr.  Woodworth  for  the  plaintiff. 
Mr.  Van  Vechten  for  the  defendant. 

Per  Curiam.  We  agree  in  opinion  with  the 
judge  at  the  trial.  The  words  spoken  by  the 
defendant  were  clearly  understood  to  apply  to 
the  transactions  of  the  preceding  day,  and  these 
were  known  not  to  amount  to  the  charge  which 
the  words  would  otherwise  import.  Let  the 
verdict,  therefore,  be  set  aside;  and  there  being 
no  question  upon  the  evidence,  the  finding  of 
the  jury  must  be  considered  as  contrary  to  law, 
and  it  is  therefore  ordered  that  the  costs  abide 
the  event  of  the  suit. 

Rule  granted. 

Distinguished — 7  Wend.,  177. 

Cited  in-12  Johns..  240 ;  26  Wend.,  304 ;  72  N.  Y.,  422 ; 
6  Barb.,  47 ;  3  Rob.,  290. 


ALLARD  v.  MOUCHON. 

Reference — Report  set  aside — Defective  Infor- 
mation. 

Where  the  facts  in  the  case  were  various  and  in- 
tricate, and  the  matters  involved  in  doubt  and  ob- 
scurity, a  report  of  referees  was  set  aside  in  order  to 
let  in  new  light,  and  to  have  the  merits  re-examined. 

rpHIS  case  had  been  submitted  to  referees,  who 
-L  reported  in  favor  of  the  defendant. 

A  motion  was  now  made  to  set  aside  the  re- 
port on  the  ground  of  mistake  of  the  referees 
as  to- the  principal  facts  in  evidence,  and  the 
law  arising  upon  them.  The  case  presented  a 
mass  of  testimony,  which  was  discussed  at  much 
length,  but  is  unnecessary  to  be  detailed  here, 
in  regard  to  the  ground  on  which  the  opinion 
of  the  court  was  founded. 

Per  Curiam.  The  facts  in  this  case  are  in- 
tricate, and  there  exists  so  much  doubt  and  ob- 
scurity on  the  subject,  that  there  is  reason  to 
apprehend  that  the  referees  did  not  possess  all 
the  lights  which  may  now  be  afforded  them, 
and  which  may  lead  to  a  more  satisfactory  re- 
sult. We  therefore  think  the  case  ought  to  be 
reviewed,  and  direct  that  the  report  be  set 
aside,  in  order  to  re-examine  the  merits. 

Rule  granted. 

Cited  in— 17  How.  Pr.,  406. 


*VAN  ALEN  v.  ROGERS.     [*281 

1.  Ejectment — Mesne  Profits.  2.  Id. — Id. — 
Right  of  Possession.  3.  Id. — Time  of  Demise. 
4.  Id. — Mesne  Pi'ofits — Judgment  for  Damages 
and  Costs. 

A  recovery  of  nominal  damages  in  ejectment  is  no 
bar  to  a  subsequent  action  for  mesne  profits.  The 
entry  of  aremittiturdamnaon  the  record  in  eject- 
ment is  matter  of  form  merely,  and  if  no  rcmittitur 
is  entered,  and  the  plaintiff  enter  judgment  for  the 
damages  and  costs,  it  will  not  bar  the  action  for 
mesne  profits,  to  which  the  plaintiff  is  entitled  from 
the  time  of  the  demise  laid  in  the  declaration  in 
ejectment.  If  the  tenant  has  made  improvements 
on  land,  under  a  contract  with  the  owner,  he  will 

325 


281 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1800 


not  be  allowed  for  them,  in  an  action  of  ejectment 
brought  by  a  devisee,  but  must  seek  his  compensa- 
tion from  the  personal  representatives  of  the  de- 
visor. 

THIS  was  an  action  of  trespass,  brought  for 
the  recovery  of  the  mesne  profits  of  a  lot  of 
land,  with  a  storehouse  and  other  buildings 
thereon,  situate  in  the  County  of  Columbia. 

The  cause  was  tried  before  Mr.  Justice  Lewis, 
at  a  circuit  held  in  the  County  of  Columbia,  on 
the  30th  October,  1799.  The  plea  was  not 
guilty,  with  a  notice  subjoined  to  the  following 
effect:  "That  in  support  of  the  plea,  the  de- 
fendant, upon  the  trial,  would  give  in  evidence 
that  the  plaintiff  derived  title  to  the  premises 
from  one  Lowrens  Van  Alen,  deceased,  and  as 
a  devisee  under  the  last  will  and  testament  of 
the  said  Lowrens,  who  died  in  the  month  of 
May,  1795,  and  that  the  defendant  has  occupied 
the  premises  with,  and  under  one  Alexander 
McMechan,  his  copartner  in  trade,  for  the  whole 
space  of  time  mentioned  in  the  declaration. 
And  further,  that  the  said  Alexander  Mc- 
Mechan entered  by  permission  and  license, 
under  one  John  C.  Holland,  the  son-in-law  and 
agent  of  the  said  Lowrens  Van  Alen,  deceased, 
who  was  duly  authorized  by  the  said  Lowrens 
Van  Alen,  in  his  lifetime,  to  grant  such  license 
and  permission;  and  that  the  said  Alexander 
McMechan  paid,  before  the  commencement  of 
the  present  action,  and  before  the  commence- 
ment of  the  action  of  ejectment,  on  which  the 
present  action  is  founded,  for  the  use  and  oc- 
cupation of  the  said  premises,  and  in  full  satis- 
faction of  the  mesne  profits  in  the  declaration 
mentioned,  to  the  said  John  C.  Holland,  the 
son-in-law,  agent  and  attorney  of  the  said  Low- 
rens Van  Alen,  the  sum  of  $375,  which,  by  the 
said  John  C.  Holland,  the  son-in-law,  agent  and 
attorney  as  aforesaid,  was  accepted  as  such 
satisfaction;  and  also,  that  the  said  Alexander 
McMechan,  by  agreement  with  the  said  John 
J3.  Holland,  and  with  the  knowledge,  acquies- 
cence and  permission  of  the  said  Lowrens  Van 
Alen,  in  his  lifetime,  did  erect  and  build  a  store- 
282*]  house  and  barn,  and  *make  other  last- 
ing and  valuable  improvements  upon  the  said 
)remises,  which  are  now  held  and  enjoyed  by 
the  plaintiff,  as  the  devisee  of  the  said  Lowrens 
Van  Alen." 

The  evidence  produced  on  the  part  of  the 
plaintiff  was  an  exemplification  of  the  record 
of  a  recovery  in  ejectment  brought  in  the 
name  of  James  Jackson,  on  the  demise  of 
the  present  plaintiff,  against  the  present 
defendant,  whicli  demise  was  laid  on  the 
1st  June,  1795,  and  also  an  exmplification 
of  a  writ  of  possession  issued  upon  the  said 
judgment,  and  containing  a  fieri  facias  for  the 
damages  and  costs  found  by  the  jury,  with  the 
costs  of  increase,  and  proof  of  the  due  execu- 
tion of  the  writ;  and  also  parol  proof  that  the 
defendant  had  occupied  the  premises  for  the 
space  of  three  or  four  years  subsequent  to  that 
period ;  that  the  rent  of  the  said  store  at  present 
was  of  the  value  of  $100  per  annum,  upon 
whicli  the  plaintiff  rested  his  cause. 

The  counsel  for  the  defendant  objected  that 
this  evidence  did  not  maintain  the  plaintiff's 
action;  because,  it  appeared  from  the  record 
produced  by  the  plaintiff  that  there  was  no  re- 
mittitur  damna  contained  therein ;  but  on  the 
contrary,  that  the  plaintiff  had  taken  judgment 
326 


and  execution  for  the  damages  and  costs  found 
by  the  jury,  in  the  action  of  ejectment. 

The  judge  overruled  the  objection,  but  re- 
served the  question. 

The  defendant  then  offered  to  prove  the  sev- 
eral matters  contained  in  the  notice,  as  consti- 
tuting a  defence  in  this  action.  The  plaintiff 
objected  that  this  defence  was  incompetent,  and 
ought  not  to  be  admitted.  The  judge  being  of 
that  opinion,  the  evidence  was  rejected,  and  a 
verdict  was  found  for  the  plaintiff  for  $350 
damages  and  6  cents  costs. 

A  motion  was  made  for  a  new  trial,  on  two 
grounds: 

1.  That  the  plaintiff  having  taken  judgment 
in  the  action  of  ejectment,  for  the  damages  and 
costs  found  by  the  jury,  instead  of  entering  a 
remiltitur  damna,,  was  thereby  precluded  from 
a  further  recovery  of  damages  in  this  action. 

*2.  That  the  facts  contained  in  the  [*283 
notice  and  offered  to  be  proved  on  the  trial, 
amounted  to  a  competent  defence  in  this  action, 
and  ought  to  have  been  received. 

Mr.  Spencer,  for  the  plaintiff. 

Mr.  Van  Vechten  for  the  defendant. 

Per  Curtain.  The  first  objection  to  the  plaint- 
iff's recovery  rests  on  a  matter  of  form,  arising 
from  the  fictitious  proceedings  in  ejectment. 
That  action,  in  practice,  is  confined  to  the  trial 
of  the  title  only.  The  damages  are  nominal, 
and  are  not  given  in  satisfaction  of  the  mesne 
profits  which  have  long  been  the  subject  of  a 
distinct  action.  They  are  necessary  only  to 
entitle  the  plaintiff  to  recover  costs,  and  cer- 
tainly cannot  preclude  him  from  a  recovery  of 
the  mesne  profits,  any  more  than  the  entry  of 
a  remittitur  upon  a  judgment  by  default  against 
the  casual  ejector.  The  latter  is  an  express  re- 
lease of  the  damages  upon  record,  and  the  for- 
mer is  such  by  inference  only.  Both  are  forms, 
and  do  not  affect  the  substantial  rights  of  the 
parties. 

As  to  the  second  point,  the  judgment  in 
ejectment  is  conclusive  of  the  right  of  posses- 
sion, and  of  the  title  to  the  mesne  profits  from 
the  time  of  the  demise  laid  in  the  declaration. 
That  time  must  always  be  laid  at,  or  subse- 
quent to  the  period  when  the  plaintiff's  right 
accrued.  If  laid  before,  he  would  fail  in  the 
ejectment.  By  the  recovery  in  that  action,  the 
right  to  the  mesne  profits  is,  therefore,  es- 
tablished from  the  time  of  the  demise,  and  the 
defendant  cannot  again  in  this  action  dispute 
it.  If  permitted,  it  would  always  lead  to  a  sec- 
ond trial  of  the  merits,  already  determined  in 
the  ejectment,  and  in  a  great  degree  render 
that  action  nugatory. 

The  buildings  and  improvements  (if  any) 
were  made  antecedent  to  the  time  when  the 
plaintiff's  title  accrued,  and  are  pretended  to 
have  been  made  in  pursuance  of  a  contract 
with  Lowrens  Van  Alen,  or  his  agent.  If  the 
defendant  is  entitled  to  compensation  for  these 
improvements,  he  must  seek  it  from  the  per- 
sonal representatives  of  Lowrens  Van  Alen, 
and  not  from  the  plaintiff.  His  right  under 
the  contract  (if  any  existed)  with  Lowrens 
*Van  Alen  terminated  at  his  death,  [*284 
and  he  cannot  charge  the  plaintiff,  a  devisee, 
with  the  injury  or  damage  sustained  in  conse- 
quence of  it. 

JOHNSON'S  CASES.  1. 


1800 


JACKSON,  EX  DEM.  JONES,  v.  STRIKER. 


284 


We  are,  therefore,  of  opinion  that  the  plaint- 
iff is  entitled  to  judgment. 

Rule  refused. 

Cited  in— 3  Johns.,  482 ;  4  Cow.,  171 ;  24  Wend.,  445 ;  4 
:Sand.,  487.    See  5  Cow.,  264. 


JACKSON,  ex  dem.   JONES,  «.    STRIKER. 

1.  Sheriff's  Deed  —  Easement  —  Stay — Descrip- 
tion. 2.  Id. — Id. — Subsequent  Deed.  8.  Id. 
— Ascertained  Property. 

A  sheriff's  deed  for  certain  lands  sold  under  an  ex- 
ecution, and  described  by  metes  and  bounds,  to- 
gether with  "all  ways,  passages,  easements,"  &c., 
does  not  include  land  held  by  a  distinct  title,  though 
.adjoining  the  premises,  and  formerly  purchased  and 
used  as  a  road  for  the  same,  when  it  was  not  included 
in  the  description  of  the  premises.  A  subsequent 
deed  by  the  sheriff  for  the  road,  founded  on  the  an- 
tecedent execution  and  sale,  will  not  pass  the  land, 
unless  included  under  the  description  of  the  prem- 
ises sold  and  conveyed  by  the  first  deed.  The  au- 
thority of  the  sheriff,  in  relation  to  the  property, 
-ceased  on  the  return  of  the  execution  satisfied. 

Citations— 1  Vent.,  228  b;  Co.,  18  a;  1  Leb.,  151;  1 
Roll.,  329,  pi.  45 :  1  Burr.,  60 ;  Litt.,  s.  169 ;  Salk.,  467 ; 
•Com.  Rep.,  c.  212;  Co.  Litt.,  212  b;  6  Mod.,  1;  Cro. 
-Jac.,  121 ;  Barn.  Ch.  Rep.,  111. 

THIS  was  an  action  of  ejectment,  brought  to 
recover  the  possession  of  a  road  through  a 
farm,  owned  by  the  defendant,  in  the  seventh 
ward  of  the  city  of  New  York. 

The  cause  was  tried  before  Mr.  Justice  Kent, 
«t  a  circuit  court  held  in  the  city  of  New  York, 
in  March,  1799. 

It  was  proved  that  in  October,  1764,  one 
Humphrey  Jones  being  seized  of  the  farm  ad- 
joining the  lands  of  one  C.  W.  Apthorp,  pur- 
chased from  him  the  road  in  question,  being  16 
feet  wide,  leading  from  the  farm,  through  the 
lands  of  Apthorp,  to  the  Hudson  River,  and 
which  in  the  deed  from  Apthorp  to  Jones  is 
•described  by  metes  and  bounds.  A  record  of 
a  deed  was  also  produced  from  Apthorp  to 
•Garret  Striker,  the  father  of  the  defendant, 
•dated  the  8th  August,  1764,  for  land  compre- 
hending the  road  in  question,  with  the  excep- 
tion of  a  road  or  passage  from  the  river  to  the 
land  of  Jones,  and  mentioned  as  having  been 
•conveyed  to  him,  by  lease  and  release  the  3d 
or  4th  August,  1764.  The  road  was  seldom 
used  by  Jones,  and  only  for  the  transportation 
•of  manure  from  the  river  to  the  farm,  and  the 
last  time  he  so  used  it  was  in  1776;  and  it  ap- 
peared that  in  1786  or  1787,  Nicholas  Jones, 
the  son  and  heir  of  Humphrey  Jones,  sent  his 
285*]  wagon  along  *the  road  to  the  river. 
'The  road  was  never  inclosed,  and  Striker  used 
to  cultivate  it. 

It  also  appeared,  that  the  plaintiff's  title, 
.among  other  things,  depended  on  a  deed  ex- 
ecuted by  M.  Willett,  formerly  sheriff  of  New 
York,  to  the  lessor,  in  consequence  of  a  sale 
made  by  him  under  two  judgments  against 
N.  Jones,  one  of  which  was  obtained  in  the 
Mayor's  Court,  and  the  other  in  this  court. 
The  deed  was  dated  the  28d  February,  1786, 


NOTE.— Sheriff's  sale. 

Compare  above  case  with  Carpenter  v.  Cameron, 
7  Watts.  (Pa.),  51 ;  Sheldon  v.  Soper,  14  Johns.,  352 ; 
Jackson  v.  Hathaway,  15  Johns.,  447 ;  Bay  v.  Gilli- 
iand,  1  Cow.,  220;  De  Riemer  v.  Cantillon,  4  Johns. 
•Ch.,  85. 

.JOHNSON'S  CASES,  1. 


and  recited  the  judgments,  the  executions 
thereon,  the  seizure  by  the  sheriff,  and  the  sale 
of  the  real  estate  of  the  said  N.  Jones,  and  con- 
veyed the  same  for  a  valuable  consideration, 
by  metes  and  bounds,  to  the  lessor  of  the  plaint- 
iff, "together  with  all  ways,  passages,  paths, 
easements,"  &c.,  to  the  same  belonging  or  ap- 
pertaining; but  does  not  by  any  description  of 
the  premises,  include  the  road  in  question. 

It  was  afterwards  discovered  that  the  sheriff's 
deed  did  not  include  the  road,  and  the  lessor, 
on  giving  the  sheriff  an  indemnity  for  the  act, 
obtained  from  him  a  new  deed,  including  the 
road,  by  a  particular  description.  This  second 
deed  professed  to  be  founded  on  the  former 
sale,  under  the  same  judgments  and  execu- 
tions, and  was  executed  the  10th  August,  1798, 
more  than  twelve  years  subsequent  to  the  sale, 
and  without  any  new  consideration. 

The  sheriff  was  sworn  as  a  witness  for  the 
plaintiff,  and  in  his  testimony  said  that  he  in- 
tended to  convey  all  the  real  estate  of  N. 
Jones  at  the  time  of  the  sale;  but  that  the  road 
in  question  was  not  then  known  to  him. 

A  verdict  was  found  for  the  plaintiff,  subject 
to  the  opinion  of  the  court  on  the  whole  case. 

Messrs.  D.  A.  Ogden  and  Harison    for  the 
plaintiff. 
Mr.  Riggs  for  the  defendant. 

RADCLIFF,  J.  The  title  of  N.  Jones  to 
the  road  in  question  was  not  a  mere  right  of 
way,  capable  of  being  conveyed  by  the  general 
terms  expressed  in  the  first  deed.  The  ways, 
paths,  and  easements  therein  mentioned,  were 
incorporeal  hereditaments  only,  and  appurte- 
nant to  the  thing  granted,  and  cannot  be  con- 
strued to  comprehend  a  different  *par-  [*28(\ 
eel  of  land  purchased  and  held  by  a  distinct^ 
title,  though  appropriated  to  the  use  of  a  way. 
The  first  deed  of  the  sheriff,  therefore,  did  not 
convey  the  road  to  the  lessor  of  the  plaintiff. 

I  think  it  unnecessary  to  decide  whether  a 
deed  from  the  sheriff  was  essential  to  perfect 
the  title  of  the  lessor.  It  appears  from  the 
testimony  of  the  sheriff  that  the  road  in  ques- 
tion was  not,  in  fact,  sold  by  him.  He  did  not 
know  that  it  existed.  It  is  true  that  he  intend- 
ed to  sell  all  the  real  estate  of  N.  Jones,  but 
that  was  not  sufficient,  without  an  actual  sale, 
and  without  designating  the  property,  so  that 
purchasers  might  know  for  what  to  bid.  A 
different  mode  of  proceeding  at  sheriff's  sales 
would  be  too  uncertain,  and  liable  to  great 
abuse,  and  could  answer  no  valuable  purpose 
to  any  creditor.  If  the  property  be  unknown, 
it  may  as  easily  be  ascertained  before  as  after  a 
sale,  and  to  require  it  to  be  identified,  imposes 
no  additional  hardship  on  any  creditor. 

The  road  in  the  present  case,  not  being,  in 
fact,  sold  by  the  sheriff  in  the  first  instance,  he 
:iad  no  power  to  convey  it  by  the  second  deed. 
His  authority  ceased  with  the  execution  of  his 
writ  which  was  complete,  and  he  could 
not,  by  the  second  deed,  give  a  right  which 
was  not  created  by  the  sale.  The  second  deed 
was  wholly  unauthorized,  without  considera- 
tion, and  void. 

For  these  reasons,  without  touching  the 
other  points  made  in  the  case,  I  think  the  ver- 
dict ought  to  be  set  aside,  and  a  new  trial 
awarded. 

327 


286 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


KENT,  J.  I  am  of  the  same  opinion.  The 
premises  certainly  did  not  pass  by  the  first 
deed;  for  the  lands  therein  describea  and  con- 
veyed are  accurately  ascertained,  by  metes  and 
bounds,  and  the  premises  are  not  included;  and 
being  a  corporeal,  as  contradistinguished  from 
an  incorporeal  hereditament,  the  road  could 
not  pass  by  any  of  the  general  and  usual  words 
thrown  in,  at  the  end  of  the  metes  or  bounds. 

The  question  then  is,  can  a  sheriff,  after  a 
sale  duly  made,  and  after  a  deed  executed  with 
287*]  the  requisite  *formalities,  and  an  ac- 
ceptance of  it  by  the  grantee,  and  the  execution 
returned  and  satisfied,  be  permitted  to  aver 
against  his  own  deed,  and  substantially  to  vary, 
and  enlarge  it  by  a  subsequent  conveyance  V 
I  consider  his  whole  authority  as  at  an  end, 
after  the  sale  and  consequent  satisfaction  of  the 
party.  It  appears  to  me  that  it  would  be  of 
dangerous  consequence  to  allow  a  party,  after 
a  long  acquiescence  in  a  sale,  to  come  forward 
and  cover  a  claim,  not  known  or  declared  at 
the  time,  by  a  new  and  secret  negotiation  with 
the  sheriff.  The  purchaser  buys  at  his  peril. 
Nothing  ought  to  pass  at  a  public  sale  but 
what  was  then  known  and  promulgated.  I 
adopt  this  general  and  salutary  principal  as 
requisite  to  guard  against  fraud,  and  to  preserve 
integrity  and  fairness  at  public  auctions,  that  no 
property  can  pass  at  a  sheriff's  sale  but  what 
was  at  the  time  ascertained  and  declared. 

BENSON,  J.,  and  LANSING,  Ch.  J.,  were  also 
of  the  same  opinion. 

LEWIS,  J.  The  following  questions  arise  in 
this  case: 

1.  Was  the  deed  from  Apthorp  to  Humphrey 
Jones,  of  the  12th  of  October,  1764,  admissible 
in  evidence,  as  forming  a  link  in  the  chain  of 
the  plaintiff's  title,  after  he  had  produced  the 
record  of  the  deed  to  Striker,  referring  to  the 
lease  and  release  of  August,   1764,   without 
producing  such  lease  and  release,  or  accounting 
for  them  ? 

2.  Ought  not  the  plaintiffs  to  have  produced 
the  record  of  the  judgment  and  execution  of 
the  Mayor's  Court? 

3.  Was  there  not  a  disseisin  of  the  road  at 
the  time  of  the  levy  by  the  sheriff? 

4.  Did  the  road  pass  to  the  lessor  of  the 
plaintiff  by  either  of  the  deeds  from  the  sheriff, 
or  by  any  other  means? 

1.  With  respect  to  the  first  question,  I  think 
the  deed  from  Apthorp  to  Jones  of  the  12th  of 
October,  1764,  was  properly  admitted  in  evi- 
dence, and  as,  at  present  advised,  I  should  also 
have  admitted  the  evidence  offered  by  the 
plaintiff,  tending  to  show  a  probable  mistake 
288*]  in  the  date  fof  the  deed,  in  order  to 
have  aided  the  jury  in  what  I  consider  the 
material  inquiry,  as  far  as  concerns  the  deeds, 
whether  the  exception  in  Striker's  conveyance, 
and  the  grant  to  Jones,  relate  to  the  identical 
subject  matter.  Whether  this  was  the  deed 
referred  to,  or  whether  there  had  been  others, 
which  might  have  been  destroyed  or  cancelled, 
upon  a  new  deed  being  given  by  way  of  further 
assurance,  or  otherwise,  was  a  question  of  fact, 
upon  which  the  jury  having  decided,  though 
without  all  the  light  they  might  have  had  on 
the  subject,  I  can  see  no  sufficient  reason  for 
arraigning  their  decision. 
328 


2.  Upon  the  second  question,  I  am  of  opinion 
that  the  law  is  with  the  plaintiff,  and  that  it 
was  sufficient  to  produce  the  record  of  the  one 
judgment,   and   the   execution  thereon.     The 
production  of  these  documents  was  for  the  pur- 
pose of  showing  a  legal  right  acquired,  and  the 
sheriff's  consequent  authority  to  sell.     Now,  it 
is  a  rule  of  law  that  where  a  man  has  two> 
authorities  to  do  an  act,  he  cannot  use  both 
simvl  and  semel. ,  and  if  he  executes  one,  the 
other  is  void.     This  rule  would  appear  to  apply 
forcibly  to  the  case  of  writs  of  execution.    The 
sheriff  cannot  sell  upon  both,  where  one  has  a 
priority;  because  the  proceeds  may  be  insuffi- 
cient to  satisfy  both,  and  he  cannot  apportion. 
In  such  case,  where  the  property  to  be  levied 
on  is  an  entirety,  though  a  levy  may  be  made 
under  each,  he  must  sell  on  the  first  execution 
only,  and  that  being  satisfied,  the  surplus,  if 
any,  will  go  to  the  satisfaction  of  the  other. 
Nor  is  he  bound  to  declare  previously  under 
which  authority  he  sells,  because  the  writ  of 
execution,    which    is    his    warrant,   does  not 
specify  the  time  of  the  judgment,  or  of  its 
being  docketed,  which  in  the  present  instance 
was  equally  important.     But  should  this  rule 
not  apply  to  the  case  of  a  sheriff  in  its  full  ex- 
tent, yet  it  must  be  sufficient,  for  the  execution 
of  a  single  power,  to  show  a  single  authority. 
The  recital  of  the  two  judgments  in  the  sheriff's 
deed,  in  my  opinion,  does'not  alter  the  case,  for 
as  in  the  execution  of  a  power  by  deed,  it  is 
not  necessary  to  refer  to  the*  authority,  [*28J> 
when  the  deed  would  have  no  operation,  but  in 
the  execution  of  such  power,  such  a  reference 
would  be  surplusage,  particularly  where  two 
authorities  are  referred  to,  and  one  only  is 
sufficient  and  proper  for  the  purpose.     And  we 
may  here  apply  the  maxim,  quando  non  valet 
quod  ago  ut  ago,  valet  quantum  vaUre  potent. 
(1  Vent.,  228  b;  Co.,  18  a;  1  Lev.,  151;  1  Rol.r 
329,  pi.  45.) 

3.  The  question  as  to  disseisin,  was  contend- 
ed, on  the  part  of  the  defendant,  to  be  a  ques- 
tion of  law,   and  therefore    improperly  sub- 
mitted to  the  jury.     In  the  case  of  Taylor,  ex 
dem.  Atkins,  v.  Horde  (1  Burr.,  60),  it  is  said 
by  Lord  Mansfield,  in  giving  the  opinion  of 
the  court,  to  be  a  question  of  fact.     With  us  it 
is  emphatically  so ;  for  being  stripped  of  all  its 
feudal  relations,  by  the  nature  of  our  tenures, 
it  is  but  another  term  for  a  dispossession  of  a 
freehold  interest,    which   must  be  a    simple 
question  of  fact.     It  was  therefore  properly 
submitted  to  the  jury,  and  the  only  question 
for  the  court  is,  whether  they  decided  it  against 
evidence.     I  think  they  did  not;  for  it  is  fairly 
inferable  from  the  evidence  that  Striker's  use 
of  the  soil  of  the  road  was  by  permission  of 
Jones,  and  not  inconsistent  with  the  use  that 
the  latter  occasionally  made    of  it.     Nor  can 
anything  be  inferred  from  its  not  having  been 
visible  to    the  witnesses  examined    on    that 
point;  this  was  an  unavoidable  consequence  of 
the  little  use  Jones  made  of  it,  and  the  culti- 
vation   of    it    by    Striker.     The  inability  of 
Nicholas  to  locate  it  probably  arose  from  the 
same  cause.     But  as  he  knew  the  place  of  be- 
ginning, and  as  its  courses  and  distances  are 
given  by  the  deed,  it  may  easily  be  ascertained 
by  a  survey,  and  the  sheriff,  in  case  of  a  re- 
covery, be  thereby  enabled  to  give  possession 

I  according  to  the  deed. 

JOHNSON'S  CASES,  1- 


1800 


JACKSON,  EX  DEM.  JONES,  v.  STRIKER. 


289 


4.  The  fourth  and  last  question  involves 
several  important  considerations.  First,  by 
what  act  of  the  sheriff  is  his  power  executed? 
Is  it  by  the  sale,  or  must  it  be  by  deed? 
29O*j  *It  is  a  well  established  rule  of  law 
that  a  purchaser  under  a  nude  power  to  sell,  is 
in,  under  the  authority  creating  that  power, 
and  that  therefore  the  execution  of  that  power 
may  be  without  deed,  where  it  is  not  expressly 
required,  for  the  interest  arises  out  of  the 
estate.  This  was  law  as  early  as  the  days  of 
Littleton,  who  in  his  169th  sec.,  speaking  of 
devises  by  custom,  as  he  wrote  long  prior  to 
the  statute  of  wills,  says  that  executors  under  a 
power  to  sell  may  sell  and  make  an  estate  by 
deed  or  without  deed.  In  Combe's  case  (9 
Rep.)  it  is  resolved  that  where  executors  sell 
under  a  power,  though  they  do  it  in  their  own 
names,  this  is  of  necessity,  yet  the  vendee  is 
in,  under  the  devisor. 

There  were  cases  prior  to  the  statute  of  j 
frauds.  It  may  therefore  be  necessary  to  ex-  j 
amine  whether  that  statute  has  made  any  dif-  \ 
ference  in  the  law  on  the  subject.  Naked 
powers  are  neither  within  the  letter  nor  the 
spirit  of  the  9th  section,  for  the  person  execut- 
ing such  power  neither  makes  nor  creates  an 
estate.  If  the  case  of  a  sheriff's  sale  falls 
within  any  clause  of  the  act,  it  must  be  the 
10th  section,  by  which  assignments,  grants 
and  surrenders  of  estate,  by  act  and  operation 
of  law,  are  equivalent  to  those  by  deed  or  writ- 
ing. The  statute,  then,  has  not  altered  the 
law ;  on  the  contrary,  in  a  sale  under  a  judg- 
ment, it  confirms  it.  That  it  has  not  been 
cosidered  in  England,  as  touching  the  general 
principle,  appears  from  the  cases  of  Saunders 
v.  Owen  (Salk.,  467)  and  Bayley  v.  Wurburton 
(Comyn's  Rep.,  by  Rose,  case  212).  In  the 
first  of  these  cases  it  was  resolved  that  a  power 
to  an  executor  to  sell  may  be  executed  without 
deed,  for  that  whatever  is  to  take  effect  out 
of  a  power  or  authority,  is  good  without  a 
deed.  In  the  second,  it  was  held  that  leases 
for  lives  made  by  a,  feme  covert  under  a  power, 
were  good  without  a  fine,  for  that  the  lessee 
derived  no  estate  from  the  lessor,  but  from  the 
source  from  whence  the  authority  sprung.  I 
have  met  with  no  case  contradicting  this  law, 
and  unless  some  positive  regulation  can  be 
shown  that  renders  it  necessary  that  a  sheriff 
20 1*]  should  *execute  his  authority  by  deed,  I 
must  hold  the  sale  to  be  a  complete  execution, 
and  the  deed  nothing  more  than  written  evi- 
dence of  the  fact,  which  may  also  be  proved  by 
parol.  This  idea  is  strengthened,  if  not  ab- 
solutely confirmed,  by  a  recurrence  to  the 
authority  under  which  Nicholas  Jones's  prop- 
erty was  sold.  The  words  of  the  statute  (5 
Geo.  II.,  ch.  7)  are,  that  real  estates  in  the 
plantations  may,  for  the  satisfaction  of  debts, 
be  seized,  extended,  sold,  or  disposed  of,  in 
like  manner  as  personal  estates.  If,  then,  the 
sale  was  a  complete  execution  of  the  sheriff's 
authority,  the  lessor  of  the  plaintiff  purchased 
the  road  as  a  part  of  the  estate  sold,  for  the 
sheriff  testified  that  he  sold,  and  meant  to  con- 
vey to  him  all  the  estate  of  Nicholas  Jones. 

If,  however,  the  sheriff's  authority  can  be 
JOHNSON'S  CASES,  1. 


executed  by  deed  only,  we  must  next  examine 
whether  the  road  passed  by  the  first  deed.  It 
appeared  to  be  conceded  that  had  the  road 
been  a  mere  easement,  it  would  have  well 
passed,  by  the  general  terms,  ways,  passages, 
paths,  &c.  It  is  at  least  questionable  whether 
anything  more  than  a  right  of  way  passed  by 
the  deed  of  Apthorp  to  Jones.  If  by  the  term 
"road,"  which  is  the  only  one  in  his  deed,  the 
land  did  not  pass,  then  he  certainly  would 
take  a  right  of  way,  the  limits  of  which  are 
defined  by  courses  and  distances.  Whether 
the  one  or  the  other  passed  by  Apthorp's  deed, 
will,  however,  be  immaterial,  if  it  can  be 
shown  that  the  road  was  an  appurtenant  to 
Jones's  farm. 

Appendants  are  by  prescription;  appurte- 
nances by  grant.  (Co.  Lit.,  212  b.)  The  latter 
also  may  arise  from  use.  If  one  be  seized  of 
black  acre  and  white  acre,  and  uses  a  way 
over  white  acre  from  black  acre  to  a  mill, 
river,  &c.,  and  grants  black  acre,  with  all 
ways,  easements,  &c.,  the  grantee  shall  have 
the  same  conveniency  the  grantor  had.  (6 
Mod.,  Staple  v.  Hey  den,  p.  1.) 

Nor  are  appurtenants,  necessarily,  of  an  in- 
corporeal nature,  but  things  corporeal  may 
be  appurtenant.  If  one  has  a  house  and  land', 
and  conveys  water  to  the  house  by  pipes 
*through  the  land,  and  afterwards  [*2O2 
sells  the  house  with  the  appurtenances  to  one, 
and  the  land  to  another,  the  conduit  and  the 
pipes  pass  with  the  house,  because  they  are 
necessary,  and  quasi  appendant  thereto,  and 
he  shall  have  liberty  by  law  to  dig  in  the  land 
for  mending  the  pipes,  or  making  them  anew, 
as  the  case  may  require.  (Cro.  Jac.,  121; 
Nicholas  v.  Chamberlain.)  Here,  then,  was  a 
grant  of  a  road  through  Striker's  farm  from 
one  part  of  Jones's  farm  to  another  part  of  the 
same.  Its  only  use  was  as  an  easement  to  that 
farm,  and  from  the  authorities  adduced,  well 
passed  with  it,  quasi  an  appurtenant. 

The  only  remaining  inquiry  is,  whether  the 
road  passed  by  the  second  deed  of  the  sheriff, 
if  it  did  not  by  the  first.  In  the  case  of  Her- 
veyv.  Hervey  (Barnard.  Ch.  Rep.,  Ill),  it  was 
resolved,  and  from  that  period  it  has  been  so 
settled,  that  a  power  over  a  legal  estate,  de- 
fectively executed  at  first,  may  be  executed 
over  again,  and  the  last  execution  shall  stand, 
the  first  being  a  nullity.  Here,  then,  was  a  de- 
fective execution,  for  the  sheriff  sold  all  the 
estate  of  Nicholas  Jones,  but  conveyed  a  part 
only.  Nor  is  the  case  altered  by  the  sheriff's 
want  of  knowledge,  for  it  is  highly  probable 
he  was,  at  the  time  of  sale,  as  ignorant  of  the 
bounds  of  the  farm  and  the  quantity  of  land 
contained  within  them  as  he  was  of  the  road. 
He  sold  the  whole  estate,  and  of  course  ought 
to  have  conveyed  the  whole. 

My  opinion,  therefore,  is  that  the  plaintiff  is 
entitled  to  recover,  and  that  the  defendant  take 
nothing  by  his  motion. 

New  trial  granted. 

Approved— 2  Caines,  C6 ;  14  Johns.,  Si3. 
Cited  in— 17  Johns.,  122;  11  Barb.,  190. 


293 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


293*]  *GOOLD  AND  GOOLD  v.   SHAW. 

1.  Marine  Insurance  —  Total  Loss  —  Loss  of  Voy- 
age. 2.  Id.  —  Abandonment  —  Subject  insured. 
3.  Id.  —  Warranty  —  Seaworthiness.  4.  Id.  — 
Latent  Defect.  5.  Id.  —  Abandonment  —  Loss 
of  Voyage  —  Injury  to  Ship.  6.  Id.  —  Id.  — 
Capacity  to  Carry  Freight.  7.  Neio  Trial  — 
Value  in  Controversy—  Testimony. 

A  ship  was  insured  from  New  York  to  the  East 
Indies,  and  was  compelled,  in  consequence  of  a 
storm,  to  put  into  Martinique,  for  repairs,  and  the 
cargo,  consisting  .chiefly  of  claret  and  porter,  was 
unladen,  and  though  undamaged,  it  was  sold,  be- 
cause, from  the  heat  of  the  climate,  and  exposure 
on  the  beach,  it  was  in  great  danger  of  spoiling, 
and  the  voyage  was  thereupon  broken  up.  The 
vessel  might  nave  been  repaired  for  less  than  half 
her  value,  so  as  to  have  been  competent  to  prose- 
cute her  intended  voyage  ;  and  was  so  repaired,  as 
to  return  to  New  York.  It  was  held  that  the  loss  of 
the  voyage,  in  consequence  of  the  necessity  of  sell- 
ing the  outward  cargo  at  Martinique,  did  not  en- 
title the  insured  to  recover  for  a  total  loss,  on  the 
policy  on  the  ship. 

Citations—  1  Term  R.,  611,  n.  a.;  Z  Burr.,  1198  5 
2  Burr.,  683;  1  Term  R.,  187;  1  Term  R.,  130,  n.;  1 
Term  R.,  127  ;  2  Wills.,  647  ;  Park.,  164. 


was  an  action  on  a  polioy  of  insurance 
J.  on  the  ship  Astrea,  from  New  York  to 
certain  ports  in  the  East  Indies,  with  liberty 
to  touch  at  several  intermediate  places.  The 
plaintiffs  declared  for  a  total  loss  by  the  perils 
of  the  sea.  Plea,  the  general  issue. 

The  cause  was  tried  before  Mr.  Justice  Rad 
cliff,  at  the  last  March  circuit,  in  the  city  of 
New  York.  The  policy,  the  plaintiffs'  interest, 
the  preliminary  proofs,  and  an  abandonment 
of  the  ship  to  the  defendant  in  due  season, 
after  notice  of  the  loss,  were  admitted. 

It  appeared  in  evidence,  that  the  ship  sailed 
from  New  York,  on  the  voyage  insured,  on 
the  7th  February,  1796,  and,  about  the  13th  of 
the  same  month,  was  overtaken  by  a  violent 
storm,  in  which  she  became  so  much  injured 
that  she  was  obliged  to  seek  the  first  port,  and 
put  into  Martinique,  where  she  arrived  on  the 
3d  day  of  March  following.  There  it  became 
necessary  to  overhaul  her  cargo,  of  which  the 
greater  part,  in  value,  consisted  of  claret  and 
porter.  The  ship  was  found  to  be  consider- 
ably injured,  but  the  cargo  remained  unhurt. 
The  wine  and  porter  were  there  sold,  because 
from  the  heat  of  the  climate  and  the  necessity 
of  exposing  them  to  the  sun,  and  of  rolling 
them  over  a  hot  beach,  these  articles  were  in 
great  danger  of  perishing.  As  they  composed 
the  most  valuable  part  of  the  cargo,  the  neces- 
sity of  selling  them  occasioned  the  loss  of  the 
voyage,  which,  for  that  reason,  was  given  up. 
The  ship  was  sufficiently  repaired  to  return  to 
New  York,  and  might  have  been  repaired  to 
perform  the  voyage  intended,  at  an  expense 
of  less  than  half  her  value. 

Much  evidence  was  also  given  on  both  sides 
on  the  question  whether  the  ship  was  sea- 
worthy when  she  sailed  on  the  voyage  insured. 
This  evidence  is  not  detailed  here,  as  the  ques- 
tion depended  on  the  weight  of  evidence  mere- 
ly, without  involving  any  important  principle 
£94*]  in  the  discussion,  *and  was  decided  by 
the  jury  in  favor  of  the  plaintiffs,  and  their 
verdict,  in  this  respect,  was  considered  by  the 
court  as  justified  by  the  evidence. 

The  principal  point  in  controversy  was 
830 


whether,  admitting  the  ship  to  have  been  sea- 
worthy, the  plaintiffs,  under  the  circumstances 
of  the  case,  were  entitled  to  recover  for  a  total 
or  a  partial  loss  only. 

The  judge,  at  the  trial,  was  of  opinion  that 
the  situation  of  the  cargo,  which  remained  en- 
tire, could  not  affect  the  policy  on  the  ship, 
and  that  the  ship  being  in  a  condition  to  be  re 
paired  at  an  expense  less  than  half  her  value, 
and  in  a  capacity  to  perform  her  voyage,  it  was 
not  a  case  in  which  the  plaintiffs  had  a  right  to 
abandon  and  claim  a  total  loss,  and  that  they 
ought  to  recover  for  a  partial  loss  only.  The 
jury,  nevertheless,  found  a  verdict  for  the 
plaintiffs,  as  for  a  total  loss. 

A  motion  for  a  new  trial  was  made,  which 
was  argued  by  Messrs.  Troup  and  B.  Livings- 
son  for  the  plaintiffs,  and  Messrs.  Pendleton  and 
Riggs  for  the  defendant. 

RADCLIFFE,  J.  Notwithstanding  the  able 
discussion  this  case  has  received,  I  cannot  per- 
ceive any  grounds  on  which  to  change  the 
opinion  that  I  entertained  at  the  trial.  It  is 
expressly  stated  that  the  injuries  received  by 
the  ship  might  have  been  repaired  at  Martin- 
ique for  less  than  half  her  value.  The  plaint- 
iffs, therefore,  cannot  recover  for  a  total  loss, 
on  the  principle  that  a  moiety  of  the  value  of 
the  ship  was  lost.  Their  claim  for  a  total  loss 
must  depend  on  the  question  whether  the  de- 
fendant, being  an  underwriter  on  the  ship, 
shall  be  affected  by  the  loss  of  the  cargo,  occa- 
sioned by  the  necessity  of  a  sale,  in  conse- 
quence of  the  perishable  nature  of  the  articles, 
and  not  in  consequence  of  an  actual  injury  sus- 
tained, by  means  of  any  of  the  perils  insured 
against. 

In  general,  it  is  true  that  the  subjects  of  in- 
surance are  intimately  connected,  and  the  perils 
attending;  the  one  most  commonly  affect  the 
other.  The  sources  of  danger  are,  in  most  in- 
stances, the  same,  and  the  policies  on  each  in- 
discriminately insure  against  the  same  risks. 
But  although  *the  same  dangers  await  [*29o 
them,  they  are  considered  as  distinct  and  inde- 
pendent of  each  other,  and  liable  to  different 
results.  The  same  cause  or  occasion  of  loss 
may  affect  them  in  different  degrees,  and  en- 
title the  insured  on  each  to  a  different  measure 
of  compensation,  as  sometimes  to  recover  on  the 
one  for  a  total,  and  on  the  other  for  a  partial 
loss  only.  Thus  the  ship,  in  a  technical  sense, 
may  be  totally  lost,  and  the  freight  pro  rate,  for 
the  greater  part  of  the  voyage  be  saved.  So 
the  ship,  or  both  the  ship  and  her  freight,  may 
be  lost,  and  the  cargo  saved,  by  being  conveyed 
without  delay,  in  another  ship,  to  the  port  of 
destination.  This  was  the  case  in  Plantamour 
v.  Staples  (T.  R.,  611,  n.  a.),  in  which  the  in- 
sured on  the  cargo  recovered  for  an  average 
loss  only.  In  like  manner,  the  freight  and 
cargo,  of  either,  may  be  wholly  lost,  and  the 
ship  saved,  as  in  case  of  a  capture,  and  a  deten- 
tion of  the  cargo,  and  the  immediate  release  of 
the  ship  before  an  abandonment. 

These  instances  show  that  although  liable  to 
the  same  perils,  the  consequences  to  each  sub- 
ject of  insurance  may  be  essentially  different. 
It  is,  therefore,  necessary  in  every  case  of  a 
loss,  in  order  to.determiue  the  insurer's  respon- 
sibility, to  inquire  to  what  extent  the  subject 
insured  is  affected.  He  is  liable  for  that  and 
JOHNSON'S  CASES,  1. 


1800 


GOOLD   AND   GOOLD   V.    SHAW. 


295 


no  more.  According  to  the  terms  of  the  con- 
tract, his  responsibility  can  extend  no  farther. 
It  was  never  imagined  that  an  insurer  upon 
•either  ship,  freight,  or  cargo,  could  be  held 
liable  for  a  loss  sustained  by  the  subjects 
which  he  did  not  insure,  and  if  not  directly 
liable,  I  think  he  cannot  be  indirectly  affected 
by  any  accident  that  attends  them.  If  the  sub- 
ject insured  be  a  ship,  he  undertakes  that  she 
shall  be  in  a  condition  to  perform  the  voyage, 
or  in  the  words  of  Mr.  Justice  Buller,  he  insures 
the  ship  for  the  voyage.  If  the  ship  be  dis- 
abled, he  is  liable,  according  to  the  circum- 
stances, for  a  total  or  a  partial  loss,  but  he  is 
liable  in  relation  to  the  ship  only,  and  he  can- 
not be  affected  by  the  state  of  the  cargo  which 
he  did  not  insure.  On  these  principles,  I  am 
of  opinion  that  the  plaintiffs  in  this  action  are 
296*]  not  entitled  to  recover  *for  a  total  loss. 
The  ship  was  capable  of  being  repaired  at  a 
reasonable  expense,  and  within  a  reasonable 
time,  and,  therefore,  in  a  capacity  to  perform 
the  voyage. 

Although  the  object  of  the  voyage  was  de- 
feated, it  was  not  on  account  of  the  accidents 
which  attended  the  ship,  and,  therefore,  not 
by  any  peril  assumed  by  the  defendant.  The 
rule  that  when  a  voyage  is  defeated  the  insured 
may  abandon  and  recover  for  a  total  loss,  is  a 
sound  one,  when  applied  to  the  subject  insured. 
The  cases  which  have  been  cited,  I  think,  ex- 
tend no  farther. 

In  Hamilton  v.  Mendez  (2  Burr,  1198),  in 
which  this  rule  was  adopted,  the  insurance 
'  was  on  ship  and  cargo,  and  Lord  Mansfield,  in 
delivering  the  opinion  of  the  court,  speaks  in- 
discriminately of  both;  it  was  unnecessary  in 
that  case  to  distinguish  between  them,  for  the 
loss  was  the  result  of  a  capture  and  recapture, 
and  the  circumstances  relative  to  the  ship  and 
cargo  were  in  all  respects  the  same. 

In  the  case  of  Goss  v.  Withers  (2  Burr,  683), 
there  were  two  distinct  policies  on  ship  and 
cargo,  and  the  injuries  to  each  were  distinctly 
considered. 

The  case  of  Cazelet  v.  Barbe  (1  T.  R,  187), 
also  appears  to  have  been  governed  by  the 
same  distinction.  That  was  an  insurance  on 
the  ship  only,  and  the  question  was,  whether 
the  insured  could  recover  for  a  total  or  a  par- 
tial loss.  The  principles  on  which  that  case 
was  considered,  and  the  determination  of  the 
court,  related  wholly  to  the  loss  sustained  by 
the  ship,  without  the  least  reference  to  the 
cargo.  None  of  the  other  cases  that  have  been 
mentioned  contradict  this  rule,  and  although 
the  question  does  not  appear  to  have  been  di- 
rectly decided,  I  think  the  reason  and  justice 
of  the  case  are  decisively  in  favor  of  the  de- 
fendant. 

But  in  the  present  instance,  it  has  been  con- 
tended that  the  underwriter  on  the  ship  shall  be 
affected  not  only  by  an  injury  to  the  cargo,  oc- 
casioned by  the  accidents  which  attended  the 
ship,  but  shall  also  be  answerable  for  the  loss 
of  the  voyage  resulting  from  the  perishable 
nature  of  the  goods  which  remained  unhurt.  If 
297*]  his  responsibility  can  *be  carried  to  this 
extent,  it  appears  to  me  that  a  new  course  of 
proceeding  ought  to  be  adopted  in  the  practice 
of  insuring.  If  the  underwriter  on  the  ship 
can  be  affected  by  the  nature  of  the  cargo,  he 
ought  to  be  informed  with  respect  to  its  quality, 
JOHNSON'S  CASES,  1. 


and  it  ought  to  be  required  of  the  insured,  in 
every  instance,  to  disclose  to  him  the  particular 
commodities  to  be  laden  on  board  the  ship  to  be 
insured.  It  would  certainly  be  material  to  the 
risk,  and  affect  the  amount  of  the  premium, 
and  without  such  disclosure  the  policy  ought 
to  be  discharged.  So  in  the  case  of  articles 
commonly  treated  as  perishable,  it  would  be 
necessary  that  the  underwriter  on  the  ship 
should  protect  himself  from  the  losses  usually 
provided  against,  by  the  memorandum  at  the 
foot  of  cargo  policies;  otherwise,  if  a  cargo  of 
such  articles,  by  a  trifling  accident  to  the  ship, 
should  happen  to  perish,  the  insurer  on  the 
ship,  being  affected  by  the  state  of  the  cargo, 
would  be  liable  for  a  total  loss,  and  at  the  same 
time  the  insurer  upon  the  cargo  itself  might  not 
be  liable  at  all.  Yet  a  memorandum  of  this 
kind  to  a  policy  on  the  ship  alone,  I  believe 
was  never  known.  Other  difficulties  of  a 
similar  nature  may  be  easily  conceived,  and  the 
extent  of  them  cannot  be  foreseen.  They  seem 
to  show  that  the  doctrine  contended  for,  and 
the  consequences  which  would  flow  from  it, 
were  never  contemplated  by  the  parties  to  an 
insurance.  As  far  as  I  can  trace  those  conse- 
quences, they  present  insuperable  obstacles  in 
almost  every  situation  of  the  parties,  and  1  can 
adopt  no  rule  more  simple  in  itself,  and  which 
appears  to  me  more  agreeable  to  the  intent  and 
just  construction  of  the  contract,  than  to  con- 
sider the  losses  attending  the  different  subjects 
of  insurance,  as  distinct  and  independent  of 
each  other,  as  the  policies  themselves  are  dis- 
tinct. 

I  am,  therefore,  of  opinion,  in  the  present 
case,  that  the  ship  being  in  a  condition  to  be 
repaired,  and  in  a  capacity  to  perform  the  voy- 
age, the  plaintiffs  are  not  entitled  to  recover  for 
a  total,  but  for  a  partial  loss  only,  and  that  a 
new  trial  ought,  therefore,  to  be  awarded. 

*LEWIS,  J.  Three  principal  ques-  -[*298 
tions  arise  in  this  cause. 

1.  Whether  the  ship  was  seaworthy. 

2.  Whether  she  was  disabled  from  pursuing 
her  voyage,  through  stress  of  weather. 

3.  Whether  the  sale  of.  the  perishable  arti- 
cles at  Martinique,  which  composed  nearly  two 
thirds  in  value  of  her  cargo,  was  a  consequence 
of  the  injury  sustained  in  the  storm,  and  a  suf- 
ficient motive  for  abandoning  the  voyage. 

The  first  question  affects  the  right  of  re- 
covery generally.  The  two  others  relate  to  the 
amount  of  damages. 

The  first,  though  depending  on  professional 
skill  and  opinion,  is  nevertheless  a  simple  ques- 
tion of  fact,  on  which  the  jury  alone  were  com- 
petent to  decide;  and  as  there  appears  to  have 
been  considerable  testimony  on  both  sides, 
which  they  must  have  had  under  their  con- 
sideration, and  upon  which  they  must  have 
made  up  an  opinion,  I  consider  the  court  as 
precluded  from  saying  that  they  ought  to  have 
decided  differently  from  what  they  have  done 
on  this  point. 

The  second  question  appears  to  be  in  the 
same  situation.  Burnet,  the  master  shipwright 
of  the  dock  yard  at  Port  Royal,  testifies  that 
the  ship  was  not  in  a  state  to  proceed  to  the 
East  Indies,  and  that  the  repairs  necessary  for 
such  a  voyage  could  not  have  been  effected  at 
Martinique.  Palmeter,  another  shipwright  at 

331 


293 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1MM> 


the  same  place,  testifies  that  the  expense  of  her 
repairs  at  Martinique  would  have  exceeded  her 
value.  If  this  be  true,  then  the  verdict  for  a 
total  loss  is  right;  because  her  whole  value 
would  have  been  sunk  to  the  owner.  It  is  true 
that  the  report  of  survey  states  that  she  might 
have  been  repaired  for  £1,200  sterling;  but  it 
does  not  state  that  she  might  have  been  thus  re- 
paired for  an  East  India  voyage.  On  the  con- 
trary, it  could  not  have  been  made  with  a  view 
to  such  a  voyage,  as  the  master  had  determined 
to  sell  the  cargo,  and  return  to  New  York, 
previous  to  the  survey;  and,  as  one  of  the 
1399*]  *witnesses  deposes,  she  could  not  be 
repaired  in  Martinique  for  such  a  voyage. 

The  captain,  on  the  other  hand,  deposes  that 
he  thought  the  ship  strong  enough,  after  she 
was  refitted,  to  proceed  on  a  voyage  to  India,  j 
though  he  would  not  like  to  have  gone  in 
her  without  new  sheathing  her  larboard  like 
her  starboard  side,  which  might  have  been 
done  for  about  $3,000.  It  may  be  said  that 
had  not  the  captain  sold  the  principal  part  of  i 
his  cargo  at  Martinique,  there  is  a  porbability  j 
that,  under  the  influence  of  his  own  opinion 
of  the  strength  of  the  ship,  he  would  have 
prosecuted  his  voyage.  But  it  is  equally 
probable  that  as  a  prudent  man  he  would  have 
reposed  himself  on  the  opinion  of  the  ship- 
wrights and  merchants;  for  had  he  proceeded, 
and  the  ship  been  lost  from  an  inability  to 
resist  the  ordinary  perils  of  the  ocean,  there 
would  have  been  room  for  dissatisfaction  on 
the  part  of  the  underwriters,  and  in  the  event 
of  a  recovery,  their  loss  would  have  been  en- 
hanced. Besides,  the  advanced  state  of  the 
.season  might  have  been  a  sufficient  reason  for 
not  prosecuting  the  voyage.  It  appears  from 
the  letters  of  instruction  from  the  agents  of 
Mr.  Dickson,  the  plaintiffs  in  this  cause, 
that  it  was  late  when  he  sailed;  upwards  of 
two  months  were  occupied  by  the  repairs  she 
received,  and  a  further  repair  would  have  oc- 
casioned a  much  longer  delay.  Thus  it  appears 
that  there  has  been  testimony  on  both  sides  of 
this  question  also,  and  as  it  was  a  mere  matter 
of  fact,  it  belonged  entirely  to  the  jury  to  decide 
upon  it. 

The  verdict  for  a  total  loss  may,  however, 
have  been  founded  on  the  facts  stated  in  the 
third  question;  an  examination  of  it,  therefore, 
also  becomes  necessary.  It  was  observed  by 
one  of  the  plaintiffs'  counsel  that  the  verdict 
being  general,  and  it  not  appearing  on  what 
particular  ground  it  is  founded,  if  there  is  a 
sufficient  one,  it  ought  to  be  supported.  I  be- 
lieve this  is  a  good  general  rule,  and  if  the 
second  question  stated  was  perfectly  free  from 
doubt,  I  should  have  no  hesitation  as  to  its  ap- 
3OO*]  plicability  *to  the  present  case.  But 
this  is  not  precisely  the  fact. 

It  was  contended,  on  the  part  of  the  defend- 
ant, that  the  ship,  cargo,  and  freight,  being 
distinct  subjects  of  insurance,  are  so  discon- 
nected that  the  loss  or  injury  of  the  one  cannot 
affect  the  policies  on  the  others.  The  subject 
of  this  proposition  is  certainly  true;  but  the 
predicate  is  as  certainly  the  reverse.  There  are 
cases  in  which  they  may  be  connected  and  in- 
fluence each  other;  there  are  others  in  which  it 
is  impossible  to  disconnect  them.  Thus,  be- 1 
tween  the  goods  and  freight,  a  total  loss  of  the 
former  annihilates  the  latter.  A  jettison  of  the 
332 


former  creates  a  general  average  on  the  whole. 
As  between  the  ship  and  freight,  the  former 
being  arrested  in  her  iter,  the  latter  is  de- 
maudable  pro  rata  only.  The  connection 
material  to  the  decision  of  this  question,  is  that 
between  the  goods  and  the  ship. 

It  was  asserted  by  one  of  the  counsel  for  the 
defendant  that  no  case  is  to  be  found  in  which 
the  loss  of  the  cargo  has  affected  the  policy  on 
the  ship.  This,  I  think,  is  a  mistake.  Ac- 
cording to  rny  understanding  of  the  cases  of 
Ooss  v.  Withers,  and  Mitten  v.  Fletcher,  the 
doctrine  is  expressly  recognized  in  each  of 
them. 

In  the  former  case,  although  there  were  two 
actions  on  two  policies — one  on  the  ship,  the 
other  on  the  cargo — the  two  questions  submit- 
ted to  the  consideration  of  the  court  arose  upon 
the  former.  The  second  question  was  ex- 
clusively so,  because  it  related  solely  to  the 
right  of  abandoning  the  ship.  The  whole  argu- 
ment of  Lord  Mansfield  rests  upon  this  policy, 
with  the  exception  of  an  incidental  observation 
that  everything  advanced  on  it  held  stronger 
in  the  case  of  the  other  policy  with  regard  to 
the  goods.  It  is  in  relation  to  the  former  policy 
that  the  following  arguments  are  made  use  01 : 
' '  The  freight  (except  in  proportion  to  the  goods 
saved)  was  lost."  "  To  pursue  the  voyage  was 
not  worth  the  freight."  "  The  goods  saved 
might  not  be  worth  the  freight  for  so  much  of 
the  voyage  as  they  had  gone  when  they  were 
taken."  "  The  cargo  *from  its  nature  [*3O1 
must  have  been  sold  where  it  was  brought  in." 
These  circumstances,  though  having  an  im- 
mediate relation  to  the  goods  and  freight,  are 
held  so  to  affect  the  ship  also  as  to  constitute  a 
right  to  abandon  her.  If  we  are  not  to  under- 
stand them  in  this  sense,  what  explanation 
shall  we  give  of  a  loss  of  voyage  constituting  a 
right  to  abandon  the  ship?  If  she  does  not 
arrive  with  her  cargo  at  her  port  of  discharge, 
she  sustains  a  diminution  at  least  of  her  freight, 
which  is  her  earnings.  If  the  goods  saved  are 
insufficient  to  pay  her  freight  pro  rata  itineris, 
her  security  for  it  is  lessened  in  proportion  to 
the  diminution  of  the  subject  of  her  lien. 

In  the  case  of  Mittes  v.  Fletcher,  which  was 
an  insurance  on  the  ship  and  freight,  the  argu- 
ments of  the  coxirt  turn  principally  on  the 
situation  of  the  cargo;  and  as  they  are  offered 
conjunctively  with  relation  to  both  subjects  of 
insurance,  I  can  see  no  authority  by  which  we 
ought  to  consider  them  distributively.  One  of 
them  is  expressly  applied  to  the  ship,  in  the 
following  terms:  "As  to  the  ship,  it  was  cer- 
tainly better  to  sell  her  than  to  bring  her  to 
London."  Why?  One  reason  is  because  "  she 
had  no  cargo."  " 

I  have  viewed  this  subject  in  every  situation 
in  which  I  am  capable  of  placing  it,  and  can 
imagine  but  one  cause  in  which  the  loss  of 
cargo  does  not  affect  the  ship;  and  that  is, 
where  the  goods  arrive  specifically  at  the  port 
of  discharge,  though  injured  or  even  destroyed; 
and  that  is  on  the  principle  that  neither  the 
ship  nor  the  voyage  is  lost.  She  sustains  no 
injury,  either  'immediate  or  by  direct  con- 
sequence, except  in  the  diminution  of  her  securi- 
ty for  her  freight,  which  is  but  a  remote  con- 
tingency, as  a  cause  of  real  loss,  and,  there- 
fore, insufficent,  perhaps,  per  se,  to  warrant  an 
abandonment. 

JOHNSON'S  CASES.  1. 


1800 


GOOLD   AND   GOOLD   V.    SHAW. 


301 


The  only  remaining  question  is,  whether  the 
sale  of  the  supposed  perishable  part  of  the 
cargo  was  a  sufficient  reason  for  adandoning 
the  voyage.  Or  rather,  whether  the  loss  of  the 
voyage  was  a  consequence  of  a  peril  incurred 
within  the  policy.  It  was  insisted,  on  the  part 
of  the  defendant,  on  the  authority  of  Jones  v. 
3O2*]  Schnwll  (1  Term.  Rep.  130.  n),  that  it 
must  be  a  direct  and  immediate  consequence  of 
the  peril  insured  against,  and  not  a  remote  one. 

In  Robertson  v.  Ewer  (1  Term.  Rep.,  127), 
the  case  is  so  cited  by  Mr.  Erskine,  and  Mr. 
Parke  has  adopted  his  precise  words;  but  in  a 
report  of  it,  in  a  note  to  the  case  last  men- 
tioned, Lord  Mansfield  is  not  made  to  speak  in 
such  strong  terms.  lie  only  says  that  the  un- 
derwriter is  not  answerable  for  the  loss  or  price 
of  market,  as  this  is  a  remote  consequence, 
and  not  within  any  peril  insured  against.  It  is 
true,  that  he  leaves  it  as  a  question  for  the  jury  to 
determine  what  slaves  fell  within  the  terms  of 
the  policy,  it  being  an  insurance  against  mutiny, 
and  what  did  not.  I  do  not  consider  this  case 
as  of  much  authority.  It  was  at  nisiprius,  and, 
in  my  opinion,  contains  absurdities.  Thus  the 
distinction  taken  by  his  lordship  between  the 
effect  of  mutiny  and  that  of  the  failure  of 
mutiny,  as  if  the  favorable  or  unfavorable  issue 
of  the  thing  could  altar  its  nature.  Thus,  also, 
the  distinction  taken  between  the  slaves  who, 
to  avoid  the  fire  of  the  crew,  precipitated  them- 
selves down  the  gangway,  and  thus  terminated 
their  existence,  or  those  who,  from  the  same 
motives,  threw  themselves  into  the  ocean,  and 
there  met  a  similar  fate;  and  that  the  under- 
writers should  be  held  liable  for  the  former  and 
not  the  latter,  are  to  me  things  unintelligible. 
I  should  suppose  a  better  rule  to  be  that  where 
the  loss  of  voyage  was  a  necessary  or  justifiable 
•consequence  of  the  peril  incurred,  the  under- 
writer should  be  liable,  otherwise  not.  I  will 
apply  this  rule  to  the  present  case.  The  cap- 
tain had  an  implied  authority  from  all  the  par- 
ties concerned,  to  do  what  was  fit  and  right, 
and  for  the  general  benefit,  and  each  must  abide 
by  the  consequences.  Un  his  arrival  at  Mar- 
tinique, he  found  no  agent  to  whom  he  could 
apply  for  instructions.  He  did  what  he  in 
prudence  ought  to  do;  he  applied  for  advice 
from  merchants  on  the  spot.  He  was  com- 
pelled to  unload  his  cargo,  and  to  repair  his 
ship.  He  was  compelled  to  lay  it  on  the  hot 
beach,  and  was  advised  that  the  wine  and 
porter,  thus  exposed,  would  not  bear  the  influ- 
3O3*]  ence  of  a  tropical  sun;  *and  that,  there- 
fore, he  ousrlit  in  prudence  to  dispose  of  it.  He 
followed  their  advice,  and  is  thereby  deprived  of 
the  principal  part  of  his  cargo.  The  season, 
too,  from  the  length  of  time  he  had  been  de- 
layed, was  probably  lost.  The  object  of  the 
voyage  was  also  defeated.  For,  to  carry  money 
to  India,  instead  of  the  articles  originally  ship- 
ped, might  not  be  equally  beneficial.  The 
greater  part  of  the  freight  must  be  lost.  Be- 
sides, he  might  be  apprised  of  the  abandon- 
ment of  the  cargo,  and  then  surely  he  would 
not  be  justified  in  carrying  the  money,  which 
belonged  to  the  underwriters,  to  India,  without 
their  consent.  Most  of  these  points  will  be 
found  to  have  entered  deeply  into  the  decision 
of  the  court  in  Milles  v.  Fletcher.  Whether, 
then,  from  a  view  of  these  circumstances,  the 
loss  of  the  voyage  was,  if  I  may  so  express 
JOHNSON'S  CASES,  1. 


myself,  a  prudential  necessity,  consequent  to 
the  injury  sustained  by  the  seas,  was  a  proper 
subject  of  inquiry  for  the  jury.  It  has  been 
submitted  to  them:  they  have  decided  it;  and  I 
cannot  say  that  there  is  such  manifest  error  in 
their  decision  as  would  warrant  my  assenting 
to  set  it  aside. 

My  opinion,  therefore,  is  that  the  defendant 
ought  to  take  nothing  by  his  motion. 

BENSON,  J. ,  was  also  of  opinion  that  the  voy- 
age was  defeated,  and  that  the  plaintiffs  were, 
therefore,  entitled  to  recover  as  for  a  total  loss. 

LANSING,  Ch.  J.  A  motion  has  been  made 
to  set  aside  the  verdict  in  this  cause,  on  two 
grounds. 

1.  Because  it  was  contrary  to  evidence,  as  to 
the  seaworthiness  of  the  ship. 

2.  Because  the  plaintiffs  were  not  entitled  to 
recover  as  for  a  total  loss. 

The  doctrine  of  seaworthiness  imposes  on  the 
insured  a  knowledge  of  the  condition  of  the 
ship,  so  far  as  to  exempt  the  insurer  from  re- 
sponsibility from  any  loss  arising  from  its  defi- 
ciency or  defective  quality. 

If  any  latent  defect  occasioned  the  loss  of 
the  ship,  it  is  one  of  those  perils  against  which 
the  insurer  has  not  stipulated  to  indemnify  the 
insured. 

*The  question,  then,  is,  whether  the  f*3O4 
weight  of  testimony  is  such  that  the  impedi- 
ment of  the  voyage,  in  this  instance,  was  owing 
to  such  latent  defect,  so  as  to  induce  the  court 
to  say  that  the  verdict  is  against  evidence. 

From  the  testimony  of  Captain  Dodge,  it  ap- 
pears that  he  examined  the  ship  minutely  by 
boring  her  timbers  about  eighteen  months  be- 
fore the  commencement  of  her  voyage,  and  that 
she  was  then  perfectly  sound. 

Thorn,  a  ship  carpenter,  employed  in  caulk- 
ing the  ship  before  her  departure  from  New 
York,  and  after  her  return  to  that  port,  in  ex- 
amining her,  pronounced  her  perfectly  sound, 
and  a  remarkably  strong  built  ship;  and  from 
both  examinations,  he  concludes  she  was  sea- 
worthy when  she  sailed.  He  afterwards  as- 
sisted Rutgers  and  Miller,  the  wardens  of  the 
port,  in  examining  the  ship,  about  two  years 
after  she  returned.  They  all  agreed  that  she 
was  a  remarkably  strong  and  good  ship. 

William  Burns,  William  Bennet,  and  George 
Parmeter,  who  surveyed  the  ship  at  Martinique, 
describe  the  defects  they  discovered  on  such 
survey  generally;  that  about  a  dozen  of  the 
lodging  and  dagger  knees  were  rotten  and  de- 
cayed, and  two  or  three  of  her  beams  defective; 
that  the  mainmast  was  sprung,  and  part  of  the 
copper  sheathing  off.  Bennet  adds  that  one  of 
her  beams  was  broken,  and  they  all  are  of  opin- 
ion that  the  ship  could  not  have  been  seaworthy 
when  she  left  New  York. 

Richard  Packwood,  the  shipwright  who  re- 
paired the  ship,  testifies  that  about  nine  of  the 
dagger  knees  were  broken  and  rotten;  that  one 
of  her  lower  deck  beams  was  rotten  at  the  end; 
that  one  carline  and  sleeper  had  fallen  from  the 
deck;  that  the  copper  had  eaten  the  iron  bolts, 
and  that  the  starboard  side  sheathing  and  cop- 
per were  washed  away. 

William  Dodge,  the  captain,  in  his  deposi- 
tion, enters  into  a  fuller  explanation  of  the 
nature  of  the  defects.  He  describes  the  knees 

333 


304 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


as  a  little  defective  at  the  ends,  but  some  were 
broken  that  were  not  defective;  that  the  new 
3O5*1  *oak  knees  were  not  quite  as  good  as 
the  old  ones;  that  it  did  not  appear  that  the 
copper  had  corroded  the  nails,  or  the  iron 
rotted  the  plank;  and  he  supposed  the  ship  suf- 
ficiently strong,  after  being  refitted,  to  proceed 
to  India. 

William  Smith,  the  mate,  testified  that  he  ex- 
amined the  ship  before  she  left  New  York; 
that  she  appeared  to  him  to  be  tight,  staunch 
and  strong;  that  one  of  the  beams,  which  was 
afterwards  "found  to  be  defective,  was  some- 
what rotten  at  one  end,  but  was  broken  in  a 
sound  part  of  it;  that  the  knees  were  remarka- 
bly well  bolted,  having  each  three  or  four  bolts 
in  the  sound  parts  of  them,  only  five  were  a 
little  rotten  at  the  ends,  and  that  he  believes 
the  ship  was  seaworthy  when  she  left  New 
York,  and  capable  of  proceeding  to  the  East 
Indies,  if  she  had  not  met  with  the  violent  gale 
in  which  she  was  injured;  and  that  the  sheath- 
ing, he  thinks,  was  good  before  the  storm,  but 
some  of  the  nails  appeared  corroded. 

There  is  no  doubt  that  the  vessel  was  exposed 
for  many  hours  to  a  violent  storm. 

There  are  other  witnesses,  whose  testimony 
tends  to  support  the  different  sides  of  these 
irreconcilable  opinions,  but  enough  is  detailed 
to  show  that  there  was  great  room  for  the  jury 
to  exercise  their  judgment  in  their  peculiar 
province,  to  discover  which  ought  to  preponder- 
ate; that  there  was  evidence  on  both  sides,  and 
that  the  preponderancy  is  not  so  great  on 
either  as  to  induce  the  court  to  pronounce 
that  this  is  a  verdict  contrary  to  evidence,  or 
even  the  weight  of  evidence. 

This  point  was  particularly  stated,  as  an  ob- 
ject of  attention  to  the  jury,  and  as  they  have 
passed  upon  it,  I  think,  if  this  was  the  only 
question,  it  ought  to  conclude  the  parties. 

The  second  ground  is  that  the  plaintiffs  were 
not  entitled  to  recover  for  a  total  loss. 

I  understand  the  insurance,  as  it  was  stated 
in  the  argument,  to  be  an  insurance  on  the 
ship  for  the  voyage;  that  if  the  ship  was  so  in- 
3O6*]  jured  as  to  detract  more  than  one  *half 
from  its  value,  or  the  voyage  had  been  so  far 
defeated  as  to  render  it  an  object  not  worth 
pursuing,  the  insured  might,  by  abandoning, 
have  constituted  it  a  total  loss.  (Park.,  164.) 

The  ship  appears  to  have  been  valued  at 
$25,000.  The  amount  of  the  repairs  was 
$4,199;  and  if  the  sheathing  which  remained 
on  her  had  been  taken  off,  it  appears  that  the 
whole  would  not  have  exceeded  $7,199. 

The  ship,  therefore,  unconnected  with  the 
circumstance  in  which  the  cargo  was  placed, 
was  not  so  much  injured  as  to  constitute  a  case 
authorizing  an  abandonment.  The  actual  ex- 
penditures were  less  than  one  fifth  of  her  esti- 
mated value,  and  adding  the  repairs  which 
were  supposed  necessary,  but  which  in  the  re- 
sult appeared  not  to  have  been  so,  they  would 
not  have  amounted  to  one  third. 

The  time  necessarily  employed  in  refitting 
the  ship  does  not  appear.  She  arrived  at  Mar- 
tinique on  the  3d  of  March,  and  William  Par- 
sons declares  that  she  left  it  about  the  month  of 
June ;  but  whether  all  the  intermediate  time 
was  necessarily  spent  in  repairing,  or  what  in- 
fluence her  detention  could  have  had  on  her 
voyage,  is  totally  left  out  of  the  case. 
334 


The  point  that  the  ship  was  not  capable  of 
proceeding  to  India  after  she  was  repaired,  ap- 
pears not  to  have  been  much  insisted  on  in  the 
argument;  but  it  was  said  that  the  articles,  the 
proceeds  of  which  were  to  furnish  freight  upon 
her  return,  were  parted  with  from  an  appre- 
hension that  they  would  be  spoiled  by  their  ex- 
posure to  the  heat  of  the  sun  on  the  beach. 

The  insurance  in  this  instance  is  not  on  the 
cargo,  but  on  the  ship  ;  and,  as  in  cases  of  in- 
surance of  goods,  the  speculation  of  the  mer- 
chant is  not  attended  to,  so  in  this  case,  in  my 
opinion,  the  profit  of  the  voyage  is  not  in  ques- 
tion, as  connected  with  its  ulterior  object,  the 
safe  progress  of  the  ship  to  the  port  of 
its  destination.  The  inquiry  resolves  itself 
into  the  simple  question  whether  she  was 
capable  of  earning  freight  generally,  and  not 
*  whether  she  carried  the  particular  car-  [*3O7 
go  with  which  she  was  laden  in  safety. 

To  exemplify  this  doctrine,  I  will  state  a  case: 

Suppose  the  ship  had  sprung  a  leak  the  day 
after  she  left  New  York,  which,  though  it 
spoiled  her  cargo  to  all  useful  purposes,  might 
have  been  repaired  at  a  trifling  expense,  and 
without  loss  of  time.  Here  the  leak  not  de- 
tracting from  the  ship  one  half  its  value,  nor 
destroying  its  capacity  to  earn  freight,  could 
not  authorize  the  abandonment  of  the  ship,  and 
yet  the  funds  destined  to  produce  the  freight 
would  be  completely  destroyed. 

A  contrary  doctrine  would  make  the  insurer 
responsible  not  only  for  the  safety  of  the  ship, 
but  the  preservation  of  the  cargo. 

If,  however,  the  intimate  connection,  which 
is  contended,  on  the  part  of  the  plaintiffs,  to 
subsist  between  the  ship  and  cargo,  actually 
existed,  it  could  not  better  their  situation,  for 
the  sale  of  the  cargo  was  merely  dictated  by  an 
apprehension  of  loss,  and  the  captain  declares, 
that  before  he  had  taken  measures  to  ascertain 
the  extent  of  the  injury  the  ship  had  received, 
he  had  resolved  to  convert  the  claret  and  por- 
ter into  cash,  by  the  advice  of  his  friends,  and 
under  the  influence  of  this  apprehension. 

It  was  a  matter  of  no  consequence  to  the  in- 
surer, if  the  claret  and  porter  were  preserved 
in  substance,  that  their  inherent  tendency  to 
spoil  had  rendered  them  of  no  value.  Perils 
of  the  sea  were  only  insured  against,  and  if 
they  were  not  injured  by  some  of  these,  wheth- 
er the  claret  and  porter  commanded,  at  the 
port  of  delivery,  or  at  any  intermediate  port, 
prices  equal  to  those  of  the  best  quality  of  such 
articles,  or  a  sum  not  more  than  the  value  of 
the  casks  in  which  they  were  contained,  was 
immaterial  to  the  insurer.  He  had  only  stipu- 
lated that  the  ship  should,  notwithstanding  the 
perils  insured  against,  be  in  a  capacity  to  earn 
a  reasonable  freight  for  the  voyage,  and  not 
that  the  goods  should  remain  in  perfect  preser- 
vation. 

*There  is  no  point  of  view  in  which  [*3O8f 
I  have  been  able  to  place  this  subject,  which 
would,  in  my  opinion,  justify  a  verdict  as  for 
a  total  loss.  I  am,  therefore,  for  setting  aside 
the  verdict  on  this  ground. 

Another  ground  was  mentioned  in  the  argu- 
ment; that  the  jury  had  sealed  their  verdict, 
and  separated  before  it  was  delivered  to  a 
judge  or  given  in  court.  This  practice  has 
been  for  some  time  established  for  the  sake  of 
convenience.  The  delivery  to  the  judge  does 
JOHNSON'S  CASES,  1. 


1800 


DELAVIGNE  v.  THE  UNITED  INSURANCE  COMPANY. 


308 


not  afford  the  parties  any  additional  security; 
for  after  it  has  been  sealed,  they  may  take  it 
into  court. 

I  am  inclined  to  consider  the  objection  as  of 
no  weight,  but  it  is  not  necessary  for  me  to 
give  any  opinion  on  the  point,  as  the  second 
reason  for  a  new  trial  is,  in  my  opinion,  decisive. 

KENT,  J.  Having  formerly  been  concerned 
as  counsel  in  the  cause,  it  was  not  my  inten- 
tion to  have  expressed  any  opinion  on  the 
questions  which  have  been  argued;  but  as  the 
other  judges  are  equally  divided  in  their  opin- 
ions, I  think  it  proper,  in  order  that  there  may 
be  a  new  trial  on  the  merits,  and  that  the  par- 
ties may  have  an  opportunity,  by  a  bill  of  ex- 
ceptions, or  a  special  verdict,  to  spread  the 
case  on  the  record,  and  carry  it  up  by  a  writ 
of  error,  to  be  decided  in  the  court  of  the  last 
resort,  briefly  to  state  my  opinion  on  the  case. 

The  question  of  seaworthiness  was  fairly 
submitted  to  the  jury,  and  two  verdicts  having 
already  been  given  on  that  point,  and  there 
being  a  variety  of  testimony,  and  some  of  it 
contradictory,  I  think  the  verdict  ought  not  to 
be  disturbed  on  that  ground. 

But  the  weight  of  evidence  is,  that  the  ship 
was  not  so  injured  as  to  be  worth  less  than  half 
of  her  value.  It  appears  that  she  might  have 
been  repaired  for  one  fifth  of  her  value,  and 
that  she  was  actually  repaired  and  returned 
from  Martinique  to  New  York.  The  sale  of 
the  liquor,  admitting  the  sale  to  have  been  a 
direct  and  necessary  consequence  of  one  of 
the  perils  tn  the  policy,  ought  not  to  be 
considered  as  defeating  the  voyage.  The 
3O9*J  *liquors  constituted  only  a  small 
freight  for  a  ship  of  400  tons,  and  a  principal 
object  of  the  voyage  must  have  been  the  home- 
ward freight  from  the  East  Indies. 

Here,  then,  did  not  exist  a  case  authorizing  an 
abandonment.  Neither  the  subject  insured 
nor  the  voyage  was  lost.  And,  indeed,  I  think 
it  is  a  question  (though  not  necessary  now  to 
be  discussed  and  decided)  whether  on  a  policy 
on  a  ship,  the  insured  can  abandon  while  the 
ship  is  safe,  in  consequence  of  the  loss  of  car- 
go, and  whether  the  true  rule  of  law  be  not 
that  the  subject  insured  must  be  either  actually 
lost  or  so  injured  as  thereby  to  occasion  a  loss 
of  the  voyage,  before  it  can  be  abandoned. 
(See  Pole  v.  Fitzgerald,  2  Willes's  Rep. ,  647.)  But 
as  I  observed,  it  is  not  necessary,  and  therefore 
I  give  no  opinion  on  this  point.  It  is  suffi- 
cient to  say  that  here  does  not  appear  to  exist 
a  case  constituting  a  total  loss,  and  that  the 
plaintiff  is  entitled  only  to  an  average  loss. 
It  may  further  be  observed,  as  a  strong  auxiliary 
consideration  in  favor  of  granting  a  new  trial, 
that  the  thing  in  controversy  is  of  great  value,and 
the  testimony  considerably  nice  and  complex. 

I  'am  accordingly  of  opinion,  that  the  ver- 
dict should  be  set  aside,  and  a  new  trial  grant- 
ed, on  the  payment  of  costs. 

Rule  granted  accordingly. 1 

Affirmed— 2  Johns.  Cas.,  442. 

1.— The  case  was  again  brought  to  trial,  when  a 
special  verdict  was  found,  containing,  in  substance, 
the  facts  as  above  stated.  A  judgment  was  given 
for  the  plaintiffs  in  this  court,  for  a  partial  l«ss,  up- 
on which  a  writ  of  error  was  brought,  and,  after 
argument,  the  court  of  errors,  in  February,  1801. 
affirmed  the  judgment  of  this  court  as  above  deliv- 
ered by  Lansing,  Ch.  J.,  Radcliff,  J.,  and  Kent,  J. 

JOHNSON'S  CASES,  1. 


*DELAVIGNE  [*31O 

v. 
THE  UNITED  INSURANCE   COMPANY. 

Insurance — Failure   of    Warranty — Premium. 

Where  a  policy  becomes  void  by  a  failure  of  the 
warranty,  the  insured  is  entitled  to  a  return  of  the 
premium,  if  there  be  no  actual  fraud. 

THIS  was  an  action  for  money  had  and  re- 
ceived, brought  to  recover  back  the  pre- 
mium which  had  been  paid  by  the  plaintiff  to 
the  defendants,  for  insuring  the  brig  Norge 
and  her  cargo,  from  St.  Thomas  to  New 
York. 

The  cause  was  tried  before  Mr.  Justice  Rad- 
cliff, on  the  20th  day  of  November,  1799,  at  a 
circuit  court  held  in  the  city  of  New  York. 

The  jury  found  a  verdict  for  the  plaintiff 
for  $1,460.54,  subject  to  the  opinion  of  the 
court  on  the  following  case : 

On  the  12th  of  December,  1798,  the  defend- 
ants insured  for  the  plaintiff  the  brig  Norge 
and  her  cargo,  by  two  separate  policies,  at  a 
premium  of  17^  per  cent.,  from  St.  Thomas  to 
New  York.  The  vessel  was  described  as  the 
"Danish  brig  called  the  Norge,"  but  there 
were  no  other  words  importing  any  warranty. 

In  the  policy  on  the  cargo  there  was  a  writ- 
ten warranty  in  these  words:  "Warranted 
the  property  of  Casimire  Delavigne,  a  citizen 
of  the  United  States."  The  Norge  was  capt- 
ured during  her  voyage,  and  the  vessel  and 
cargo  were  condemned  in  the  Admiralty  Court 
at  New  Providence,  as  being  ' '  French  proper- 
ty." The  plaintiff,  insisting  that  the  cargo 
was  his  property,  and  the  vessel  the  property 
of  Joseph  Gilbert,  a  naturalized  Danish 
burgher,  resident  in  the  island  of  St.  Thomas, 
and  claiming  a  total  loss  on  each  of  the  poli- 
cies, the  parties  thereupon  submitted  the  lia- 
bility of  the  defendants  to  pay  the  sums  as- 
sured, to  three  arbitrators,  who,  on  the  27th  of 
January,  1799,  made  the  following  award: 

"  Having  duly  examined  and  considered  the 
case  of  the  brig  Norge  and  her  cargo,  submit- 
ted to  our  decision,  and  the  evidence  and 
arguments  produced  by  the  parties,  we  are  of 
opinion  that  the  assured  are  not  entitled  to 
*recover  against  the  assurers  for  the  [*311 
said  brig  and  cargo,  because, 

"1.  By  the  English  books  of  law  it  is  a  set- 
tled principle  that  when  the  precise  point  at 
issue  between  the  parties  has  been  decided  by 
a  foreign  court,  and  the  grounds  of  that  decis- 
ion are  manifest,  it  is  conclusive  and  binding; 
which  principle,  we  understand,  has  been 
recognized  and  adopted  as  law  in  the  Supreme 
Court  of  Judicature  of  this  State  (see  ante,  p. 
16),  and  the  Vice-Admiralty  Court  of  New 


NOTE.— Marine  insurance,  return  of  premium. 

In  support  of  the  doctrine  of  the  above  case,  see 
Duguet  v.  Rhinelander.  post,  360 ;  Murray  v.  United 
Ins.  Co.,  2  Johns.  Cas.,  168 ;  Jackson  v.  N.  Y.  Ins.  Co., 
2  Johns.  Cas.,  191 ;  Robertson  v.  United  Ins.  Co.,  2 
Johns.  Cas.,  250;  Forbes  v.  Church,  3  Johns.  Cas., 
159 ;  Graves  v.  Marine  Ins.  Co.,  2  Caines,  339 ;  Richards 
v.  Marine  Ins.  Co.,  3  Johns.,  307 ;  Murray  v.  Colum- 
bian Ins.  Co.,  4  Johns.,  443;  Elbers  v.  United  Ins. 
Co.,  16  Johns.,  128 ;  Feise  v.  Parkinson,  4  Taunt.,  640 ; 
Anderson  v.  Thornton,  8  Exch.,  425 ;  Oroin  v.  Bruce, 
12  East,  225 ;  Foster  v.  United  Ins.  Co.,  11  Pick.,  85, 
90;  see,  further,  Waters  v.  Allen,  5  Hill,  421;  Mer- 
chants' Ins.  Co.  v.  Clapp,  11  Pick.,  56. 

335 


311 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1800 


Providence  did  expressly  decree  the  brig 
Norge  and  her  cargo  to  be  French  property, 
And,  therefore,  not  the  property  warranted  in 
the  policies  of  insurance. 

"2.  Admitting  the  sentence  of  a  foreign 
«ourt  not  to  be  binding  in  the  courts  of  this 
•country,  yet  the  evidence  produced  on  the 
trial  before  the  Admiralty  Court,  particularly 
the  instructions  of  Joseph  Gilbert  to  the  cap- 
tain, and  the  contradictory  swearing  of  the 
captain  himself,  afford  such  circumstances  of 
doubt,  as  do  not  permit  us  to  say  that  the 
decision  of  the  court  was  inconsistent  and  con- 
tradictory, or  so  manifestly  against  law  and 
justice  on  the  face  of  it  as  that  it  ought  to  be 
disregarded;  we,  therefore,  determine  that  the 
insured  ought  not  to  recover  against  the  said 
United  Insurance  Company,  for  the  total  loss 
•of  the  said  brig  and  cargo,  and  that  the  policies 
thereupon  be  cancelled.^' 

The  policies  were  cancelled  accordingly. 

Among  the  proofs  exhibited  by  the  plaintiff 
to  the  arbitrators,  was  the  affidavit  of  James 
La  Rue,  one  of  his  clerks,  who  swore  positive- 
ly that  the  cargo  belonged  to  the  plaintiff. 
Nothing  was  said  by  either  party  to  the  arbi- 
trators respecting  the  return  of  premium, 
which  had  been  actually  paid  by  the  plaintiff; 
nor  was  that  question  either  considered  by,  or 
submitted  to  them. 

The  plaintiff  was  admitted  to  be  a  natural- 
ized citizen  of  the  United  States. 

It  was  agreed  that  the  court  might  draw 
such  inferences  as  to  facts,  as  a  jury  might 
•draw;  and,  if  the  court,  under  all  the  circum- 
stances of  the  case,  should  be  of  opinion 
3 1 2*]  *that  the  plaintiff  was  entitled  to  a  re- 
turn of  premium,  the  verdict  was  to  stand  and 
a  judgment  to  be  entered  accordingly;  if  not, 
then  judgment  was  to  be  entered  for  the 
defendants,  with  costs. 

Mr.  B.  Livingston  for  the  plaintiff. 
Mr.  Troup  for  the  defendant. 

LEWIS,  J.,  delivered  the  opinion  of  the 
court :  It  was  admitted  as  a  general  principle 
that  where  the  policy  never  attaches,  but  is 
void  ab  initio,  that  the  premium  must  be  re- 
turned, because  the  contract  is  without  consid- 
eration, and  the  insurer  ought  not  to  retain  the 
premium  where  no  risk  has  been  run.  But  it 
was  insisted  that  here  was  a  fraud  on  the  in- 
surer, which  enhanced  the  risk,  and  that, 
therefore,  the  plaintiff  ought  not  to  be  allowed 
to  maintain  an  action  for  a  return  of  premium. 

If  the  defendants  had  sought  relief  in  a 
court  of  equity  against  the  policy  on  the 
ground  of  fraud,  they  would  have  been 
obliged,  according  to  the  course  of  that  court, 
to  have  refunded  the  premium  before  any  aid 
would  have  been  afforded  them.  Whether  in 
a  suit  on  the  policy  in  this  court  they  would 
not  have  been  held  to  do  the  same,  and  to 
bring  the  money  into  court,  it  is  not  necessary 
now  to  decide.  As  no  risk  was  run  the  plaint- 
iff will  be  clearly  entitled  to  a  return  of  the 
premium,  unless  some  positive  bar  can  be 
shown.  It  has  been  agreed  by  the  parties, 
that  the  court  may  make  such  inferences  as  to 
facts  as  might  be  drawn  by  a  jury.  If,  there- 
fore, we  do  not  find  sufficient  grounds  for  an 
inference  of  fraud,  it  will  be  unnecessary  to 

330 


consider  the  propriety  of  some  late  decisions  of 
the  English  courts,  that  actual  and  gross  fraud 
will  defeat  the  right  to  a  return  of  premium. 
In  the  present  case  no  positive  or  direct  fraud 
appears.  In  the  policy  on  the  vessel,  she  is  de- 
scribed as  Danish,  and  there  is  no  one  circum- 
stance from  which  we  can  infer  that  the  plaint- 
iff knew  her  to  be  otherwise.  The  Vice-Ad- 
miralty Court  founded  its  sentence  of  con- 
demnation on  the  circumstance  of  the  bill  of 
sale  made  by  Gilbert  to  Michel,  in  a  foreign 
country,  which  we  cannot  presume  was  known 
*to  the  plaintiff.  There  is  no  pretence  [*313 
that  Gilbert  was  not  a  Dane.  As  to  the  policy 
on  the  ship,  there  cannot  be  the  least  doubt, 
but  that  the  plaintiff  is  entitled  to  a  return  of 
the  premium.  As  to  the  warranty  in  the  poli- 
cy on  the  cargo,  there  may  be  some  room  for 
doubt,  but  from  a  consideration  of  all  the 
facts,  we  are  not  authorized  to  conclude  that 
the  plaintiff  knew  that  the  warranty  was  false. 
It  is  not  easy  to  imagine  any  motive  of  fraud. 
The  plaintiff  had  everything  to  lose  and  noth- 
ing to  gain  by  practicing  it.  At  most  it  is  a 
bare  constructive  fraud,  We  are,  therefore, 
clearly  of  opinion,  that  the  plaintiff  is  entitled 
to  judgment. 

Judgment  far  theplaintiff. 
Cited  in— 2  Johns.  Cas.,  193. 


EARL  e.  SHAW. 

1.  Marine  Insurance — Abandonment — Accident. 
2.  Id. — Id. — Continuing  Loss.  3.  Id, — As- 
signment—Notice. 4.  Id. — Deviation— In 
Port  for  Stx  Months. 

The  insured  are  not  bound  to  abandon  in  case  of 
an  accident,  but  may  wait  the  final  event,  and  recov- 
er accordingly  for  a  total  or  a  partial  loss,  as  the 
case  may  be.  It  is  sufficient  if  there  be  a  loss  con- 
tinuing' to  the  time  when  the  abandonment  is  made. 
If  a  policy  be  assigned  by  the  insured  to  a  third  per- 
son, before  the  vessel  sails  on  her  voyage,  it  is  not 
necessary  that  the  insurer  should  have  notice  of  the 
assignment.  Where  a  vessel  stayed  in  port  six 
months  after  the  date  of  the  policy,  it  was  neld  not 
to  be  a  deviation,  it  not  being  fraudulent  or  varying 
the  risk.  The  date  of  a  policy  is  not  conclusive  evi- 
dence of  the  time  of  its  actual  subscription. 

Citations— Marsh.,  405;  Park,  313;  Doug.,  291,  292; 
4  Esp.  N.  P.  Cos.,  26. 

rpHISwas  an  action  on  a  policy  of  insurance 
-L  on  the  ship  Grand  Turk,  from  New 
York  to  any  port  or  ports  in  the  East  Indies, 
and  back  to  New  York.  The  policy  was 
dated  the  5th  of  May,  1795. 


NOTE.— Marine  insurance. 

Assignment  of  policy.  The  doctrine  of  the  above 
case  is  approved  in  Hitchcock  v.  North-Western  Ins. 
Co.,26  N.  Y.,  68 ;  see,also.  1  Parsons  on  Marine  Ins.,  53. 

Abandonment,  time  for.  As  the  doctrine  of  the 
above  case  is  applied  only  in  cases  where  the  loss 
continues  total,  it  is  of  little  practical  importance. 
See  Stienbach  v.  Col.  Ins.  Co.,  2  Guinea,  132 ;  2  Caines' 
Cas.,  158;  Brown  v.  Phoenix  Ins.  Co.,  4  Binney  (Pa.), 
445;  sec,  generally,  Livingston  v.  Md.  Ins.  Co.,  7 
Cranch,  506 ;  Pierce  v.  Ocean  Ins.  Co.,  18  Pick.,  83 ; 
Reynolds  v.  Ocean  Ins.  Co.,  22  Pick.,  1!)1 ;  Mellish  v. 
Andrews,  15  East.,  13;  Mitchell  v.  Edie,  1  T.  R.,  608; 
Abel  v.  Potts,  3  Esp.,  242. 

Delay,  when  it  constitutes  deviation  and  when  not. 
See  Oliver  v.  Md.  Ins.  Co.,  7  Cranch,  487 ;  Columbian 
Ins.  Co.  v.  Catlett.  12  Wheat..  384 ;  Seamans  v.  Loring, 
1  Mason,  127 ;  Whitney  v.  Haven,  13  Mass.,  172 ;  22 
Pick.,  205;  Hull  v.  Cooper,  14  East,  479;  Palmer  v. 
Funning,  9  Bing.,  4(iO. 

JOHNSON'S  CASES,  1. 


1800 


EARL  v.  SHAW. 


313 


The  cause  was  tried  before  Mr.  Justice  Rad- 
cliff,  at  the  sittings  in  New  York,  on  the  14th 
of  November,  1799,  when  the  jury  found  a 
verdict  for  the  plaintiff,  subject  to  the  opinion 
of  the  court  on  a  case  made,  with  liberty  to 
either  party  to  turn  the  same  into  a  special  ver- 
dict. 

The  following  are  the  material  facts  in  the 
case: 

The  vessel  was  captured  on  the  26th  of  De- 
cember, 1796,  on  her  return  to  New  York,  and 
carried  into  St.  Kitts.  The  plaintiff  was  on 
board  at  the  time  of  her  capture.  The  policy 
was  assigned  and  delivered  on  the  5th  of  No- 
vember, 1795  (which  was  previous  to  her  sail- 
314*]  ing  on  her  *intended  voyage),  to  Lewis 
H.  Guerlain,  who  then  resided  in  the  city  of 
New  York,  and  has  continued  to  reside  there 
ever  since,  of  which  assignment  the  underwrit- 
ers had  no  notice. 

Both  Earl  and  Lewis  H.  Guerlain  were,  at 
the  time  of  the  insurance,  naturalized  citizens 
of  the  United  States,  the  former  having  been  a 
subject  of  England,  and  the  latter  a  subject  of 
France. 

On  the  15th  of  February,  1797,  there  was 
published  in  the  gazettes  printed  in  New  York, 
an  account  that  the  Grand  Turk  had  been  capt- 
ured by  a  British  ship  of  war,  and  carried 
into  Dominico,  where,  after  an  examination, 
she  was  discharged;  that  she  had  sailed  from 
Dominico,  and  had  been  again  captured  by  a 
British  ship  of  war,  and  carried  into  St.  Kitts. 

The  captain  of  the  Grand  Turk  arrived  in  the 
city  of  New  York  in  the  month  of  April,  1797, 
and  some  time  after  his  arrival  (less  than  one 
morith)  Guerlain  sent  his  clerk  to  the  captain 
for  information  with  respect  to  the  vessel,  who 
delivered  to  the  clerk  his  protest,  and  at  the 
same  time  observed  that  the  plaintiff  being  in 
the  West  Indies,  and  having  attended  particu- 
larly to  this  business,  he  could  give  no  informa- 
tion. 

On  the  llth  of  February,  1797,  sentence  of 
condemnation  on  the  vessel  and  cargo  was 
pronounced  in  the  words  following,  viz. : 

"That  the  ship  Grand  Turk,  her  tackel,  ap- 
parel and  furniture,  together  with  the  guns, 
ammunition  and  stores,  and  also  six  casks  of 
indigo  and  eight  bales,  all  marked  S.  M.  &  Co., 
laden  and  seized  on  board  the  said  ship,  be 
condemned  as  lawful  prize  to  the  captors,  as 
being  the  property  of  enemies  of  the  crown  of 
Great  Britain,  or  otherwise  subject  and  liable 
to  confiscation,  to  be  forthwith  delivered  to  the 
captors,  their  agent  or  agents;  that  the  register 
do  with  all  speed  take  an  account  of  all  the 
contraband  articles  contained  in  the  invoice 
of  the  said  ship's  outward  bound  cargo  from 
New  York,  and  report  the  amount  thereof  to  this 
315*]  court;  that  the  return  *  cargo,  or  such 
part  of  the  goods,  wares  and  merchandises  laden 
and  seized  on  board  the  said  ship  Grand  Turk, 
and  which  are  marked  with  the  initials  of  the 
said  claimant,  viz.,  I.  E.,  be  afterwards  sold  by 
the  agent  or  agents  for  the  captors,  and  that  in 
the  proportion  which  the  contraband  articles, 
composing  part  of  the  said  outward  cargo,  bear 
in  value  to  the  other  articles  or  other  lawful 
goods  composing  such  outward  cargo,  by  the 
invoice  of  the  whole  thereof,  the  nett  proceeds 
arising  from  the  sale  of  the  said  return  cargo, 
or  that  part  thereof  which  is  marked  with  the 
JOHNSON'S  CASES,  1.  N.  Y.  REP..  BOOK  1. 


initials  I.  E. ,  be  divided  in  the  same  proportion 
between  the  captors  and  claimant;  and  that 
such  proportion  which  is  so  adjuged  to  the 
captors,  to  be  also  condemned  as  lawful  prize 
to  the  said  captors,  as  the  enemies  of  His  Brit- 
annic Majesty,  or  otherwise  subject  and  liable  to 
confiscation.  And  that  such  proportion  which 
is  directed  to  be  restored  to  the  claimant  be,  and 
the  same  is  hereby  acquitted.  And  his  worship, 
the  judge  was  further  pleased  to  pronounce, 
adjudge  and  decree,  that  all  the  goods,  wares 
and  merchandises,  laden  and  seized  on  board 
the  said  ship  Grand  Turk,  marked  with  the 
initials  V.  S.,  and  consisting  of  45  bales  of 
cotton,  42  bags  of  coffee,  1  box  of  nutmegs, 
and  72  bales  of  cotton,  be  accquitted  and  re- 
stored to  the  said  claimant,  for  the  benefit  of 
the  owners  thereof,  as  being  the  property  of 
neutrals;  that  the  wages  of  the  master,  physi- 
cian, officers  and  seamen,  be  a  charge  upon 
the  said  ship  and  her  freight,  and  that  the 
question  of  costs  be  reserved  for  further  con- 
sideration." 

On  the  12th  of  May  (being  the  day  appointed 
for  that  purpose)  an  appeal  from  the  sentence 
of  the  said  court  was  duly  filed  by  Earl,  for 
the  benefit  of  all  concerned,  and  a  bond  with 
security  given  for  the  prosecution  of  such 
appeal. 

The  policy  of  insurance  on  the  Grand  Turk 
was  in  tile  usual  form,  with  a  memorandum 
at  the  bottom,  in  the  words  following: 

*  "Note.  The  ship  is  warranted  [*316 
American  property,  and  the  oath  of  the 
parties,  together  with  the  register  at  the 
collector's  office,  or  the  duplicate  on  board  the 
said  ship,  are  to  be  admitted  as  sufficient  proof, 
and  not  to  be  bound  by  any  foreign  adjudi- 
cation." 

This  evidence,  as  prescribed,  was  produced 
at  the  trial. 

The  abandonment  was  made  on  the  6th  of 
October,  1797,  which  was  immediately  after 
Guerlain  had  received  the  papers  proving 
the  condemnation. 

From  the  period  of  the  capture  of  the  ship 
until  the  time  of  abandonment,  and  both  before 
and  after  condemnation,  the  assured  did  every 
act  and  thing  he  judged  necessary  for  her  re- 
covery, and  the  benefit  of  all  concerned. 

When  the  abandonment  was  made,  the 
vessel  still  continued  in  the  hands  of  the  cap- 
tors, and  the  sentence  of  condemnation  has 
not  been  reversed,  and  the  property  still 
remains  in  the  hands  of  the  captors. 

No  information  was  given  to,  or  inquiry 
made  by  the  underwriters  of  the  nature  of  the 
cargo  on  board,  at  the  time  the  ship  sailed 
from  New  York. 

A  motion  for  a  new  trial  was  made  by  the 
defendants,  and  argued  by  Messrs.  Burr  and 
Harison  for  the  plaintiff,  and  Messrs.  B.  Liv- 
ingston and  Hamilton  for  the  defendant. 

LEWIS,  J., delivered  the  opinion  of  the  court: 
In  this  case  three  questions  have  been  made. 

1.  Whether  the  delay  of  the  voyage  before 
the  vessel  sailed  can  affect  the  policy. 

2.  Whether  the  assignment  of  the  policy  by 
the  plaintiff  to  Guerlain.  previous  to  the  sailing 
of  the  vessel,  altered  the  risk,  so  as  to  vitiate  the 
policy. 

3.  Whether  the  abandonment  was  made  in 

22  337 


316 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1800 


due  season,  the  notice  of  loss  having  been  re- 
ceived in  April,  1797,  and  the  abandonment 
made  in  October  following. 

1.  It  does  not  appear  that  the  vessel  was 
detained  after  the  policy  was    dated,   from 
fraud  or  any  sinister  design,  nor  that  the  risk 
was  thereby  enhanced.     The  vessel  was  in- 
317*]   sured    *  for  an  India  voyage,   and 
several  months  may  have  been  necessary,  after 
the  date  or  opening  of  the  policy,  to  complete 
the  insurance.     Whether  it  was  so  or  not,  was 
a  question  of  fact  to  be  raised  at  the  trial,  and 
decided  by  the  jury.     It  is  the  practice  to 
insure  before  as  well  as  after  the  commence- 
ment of  the  voyage,  and  while  the  circumstances 
and  risk  remain  the  sanu ,  it  cannot  be  material 
whether  the  voyage  is  immediately  pursued.1 
In  the  present  case,  the  policy  attached  as  soon 

.  as  it  was  effected,  and  it  does  not  appear  that 
there  has  been  any  unusual  or  unnecessary 
delay,  nor  that  any  occurred  to  alter  the  risk 
before  the  vessel  sailed. 

2.  The  objection  as  to  the  assignment  of  the 
policy  appears  to  be  equally  immaterial.     Such 
assignments  are  common,  and  it  is  not  easy  to 
perceive  how  they  can  affect  the  insurer,  unless 
in  the  case  of  neutral  property  assigned  to  a 
subject  or  citizen  of  one  of  the  belligerent 
parties.     That  is  not  pretended  to  be  the  case 
here. 

3.  It  is  contended,  that  the  insured  is  bound 
to  make  his  election  in  a  reasonable  time  after 
notice  of  the  loss;  and  if  he  does  not  elect  to 
abandon  within    such  time,  he  cannot  after- 
wards.    The  right  to  abandon  is  for  the  benefit 
of  the  insured,  and  he  has  an  election  to  exer- 
cise his  right  or  not.     If  he  pursues  the  enter- 
prise and  does  not  abandon,  he  may  recover 
for  a  total  or  partial  loss,  according  to  the  final 
event.     By    the   terms     of     the     policy,  he 
may     labor    and     sue     in     and    about     the 
property    insured,    without  prejudice  to  the 
policy.      He    may  therefore  take  the  chance 
of  the  ultimate  success  of  the  voyage.     If  the 
loss  should  continue  total,  he  may  abandon,  or 
if  it  be  converted  into  a  partial  loss,  he  must 
recover  accordingly.     This  is  favorable  to  the 
interests  of  trade,  and  is  consistent  with  the 
contract  and  the  rights  of  the  parties.     While 
the  insured  acts  with  good  faith  in  endeavoring 
to  recover  the  property,  no  injury  can  arise  to 
the  insurer.     If  he  is  guilty  of  fraud,  or  cul- 
pable neglect,  his  conduct  ought  not  to  affect 
the  insurer,  and  the  loss  in  consequence  would 
318*]   *be  his  own.     There  is  no  fixed  time 
at  which  the  abandonment  is  to  be  made.     In 
the  present  case,  it  was  made  immediately  after 
receiving  the  papers  proving  the  condemnation. 
This  was  the  earliest  period  at  which  it  could, 
with  propriety,"  be  done.     Neither  the  account 
in  the  gazette,  nor  the  master's  protest,  con- 
sidering the  declaration  with  which   it  was 
qualified,  was  sufficient  proof  of  the  loss;  and 
while  the  master  was  prosecuting  his  claim  for 
a  recovery,  the  insured  was  justified  in  waiting 
the  event,  and  no  possible  injury  could  thereby 
arise  to  the  insurer. 

As  the  special  clause  relative  to  the  warranty 
provides  for  the  mode  of  proof,  and  that  the 
parties  are  not  to  bet  bound  by  a  foreign  con- 

1. — But  if  the  delay  be  unnecessary  and  voluntary, 
it  will  amount  to  a  deviation.  Marshall,  405 ;  Park, 
313 ;  Doug.  291,  293 ;  4  Esp.  N.  P.  Cases,  26. 

338 


demnation,  the  sentence  of  the  admiralty  court 
can  have  no  effect,  as  the  requisite  proofs  of 
the  neutrality  of  the  property  were  produced 
at  the  trial. 

The  court  are,  therefore,  of  opinion  that  the 
plaintiff  is  entitled  to  recover. 

Judgment  for  the  plaintiff  * 

Approved— 2  Caines,  132. 
Cited  in— 26  N.  Y.,  69. 


*ERNST  «.  BARTLE  ET  AL.  [*319< 

1.  Beneficial  Association — Corporation.  2.  Cov- 
enant— Distributimty.  3.  Pleading — Demand 
— Precedent  Debtor. 


society  are  not  to  be  considered  as  a  corporation, 
unless  their  corporate  capacity  be  expressly  shown. 
A  covenant  by  several  persons  may  be  taken  dis- 
tributively,  though  there  be  no  express  words  of 
seyeralty.  Where  there  is  a  precedent  debt,  or  duty- 
it  is  not  necessary  for  the  plaintiff  to  state  a  special 
request  or  demand  in  the  declaration. 

THIS  was  an  action  of  covenant,  in"  which 
the  plaintiff  declared:  "  for  that  whereas, 
by  a  certain  article  of  agreement  made  at  the 
town  of  Claverack,  in  the  County  of  Colum- 
bia, on  the  eighth  day  of  October,  in  the  year 
of  our  Lord  one  thousand  seven  hundred  and 
ninety-one,  between  John  Frederick  Ernst  of 
the  one  part,  and  Thomas  Buchtel  in  his  life- 
time, and  Henrich  Bartle,  Jacob  Millions, 
Jacob  Camer,  Peter  Miller,  Fite  Roschman, 
Jacob  Roschman,  Thomas  Lewe,  Petrus  Silver- 
nail,  and  Jonas  Roschman  of  the  other  part, 
which  said  Thomas  Buchtel  is  now  deceased, 
which  said  article  of  agreement,  sealed  with 
the  seals  of  the  said  Thomas  Buchtel,  Henrich 
Bartle,  Jacob  Millions,  Jacob  Camer,  Peter 
Miller,  Fite  Roschman,  Jacob  Roschman, 
Thomas  Lewe,  Petrus  Silvernail,  and  Jonas 
Roschman,  the  said  John  Frederick  Ernst  now 
brings  here  into  court,  bearing  date  the  same 
day  and  year  above  mentioned,  reciting 
amongst  other  things  that  the  subscribers  to 
the  same  article  of  agreement,  the  trustees,  the 
elders  and  deacons  of  the  Evangelical  Luther- 
an Church  called  St.  Thomas,  in  Claverack 
district  in  the  County  of  Columbia,  in  the 
State  of  New  York,  and  the  trustees,  the  elders 
and  deacons  of  the  Evangelical  Lutheran 
Church  at  Lunenburgh,  in  the  County  of  Al- 
bany and  State  aforesaid,  well  knowing  their 
deplorable  situation,  without  publishing  the 
word  of  God  and  cure  of  souls  as  well  amongst 
the  old  as  among  their  young  people,  had,  in 
firm  reliance  on  the  zeal,  faithfulness  and  dili- 
gence of  the  said  John  Frederick  Ernst  (there- 
in called  and  named  the  Rev.  Mr.  John  Freder- 
ick Ernst),of  Kutztown,Maxetawney  township, 
Bucks  County,  State  of  Pennsylvania,  called 
him  by  virtue  of  their  respective  church  offices 

2. — The  case  of  Earl  v.  Lefferts,  depending  on  the 
same  facts,  was  decided  in  the  same  manner. 


NOTE.— Covenants,when  taken  distributively  though 
without  words  of  severalty. 

Ludlow  v.  McCrea,  1  Wend.,  228 ;  Walker  v.  Web- 
ber, 12  Me.,  60. 

Corporations,  what  not.  Compare  Appleton  v. 
Water  Commissioners,  2  11111,432;  Medical  Inst.  v. 
Patterson,  1  Denio,  61 ;  Wells  v.  Gates,  18  Barb.,  564. 

JOHKSON'S  CASES,  1. 


1800 


ERNST  v.  BARTLE  ET  AL. 


319 


and  their  duty,  in  the  name  and  with  the  consent 
of  all  the  respective  members  of  the  Evangel- 
ical Church,  in  their  aforesaid  congregations, 
32O*]  by  those  presents,  *to  preach,  maintain, 
and  spread  therein,  publicly,  as  well  as 
privately,  the  pure  and  sound  evangelical  doc- 
trine, according  to  the  foundation  laid  by  the 
holy  apostles,  of  which  Christ  Jesus  was  the 
corner-stone,  and  their  unaltered  Augustan 
confession;  and  likewise  to  administer  the  two 
holy  sacraments,  according  to  Christ's  institu- 
tion; and  with  edifying  sermons,  which  were 
to  be  preached  on  every  other  Sunday,  in  each 
of  the  aforesaid  congregations,  as  much  as  God 
might  grant  him  by  grace  and  strength  to  feed 
the  sheep,  and  with  edifying  catechisations, 
during  the  summer  season,  the  lambs  of.  Jesus 
Christ;  to  visit  the  sick  if  it  be  made  known  unto", 
desired  of,  and  was  possible  unto  him;  to  attend 
on  funerals;  to  instruct  those  in  the  sound 
principles  of  the  doctrine  of  their  church,  who 
for  the  first  time  should  be  desirous  to  be  ad- 
mitted unto  the  table  of  the  Lord,  and  law- 
fully to  join  in  holy  wedlock;  likewise  to  ad- 
minister his  sacred  office  in  all  cases  whatso- 
ever occurring,  without  regard  to  person  or 
persons,  so  long  as  his  doctrine  and  example 
shall  prove  to  be  according  to  the  Word  of  God 
and  the  general  established  rules  of  their  Ameri- 
can Lutheran  Church,  the  said  Thomas  Buch- 
tel  in  his  lifetime,  and  the  said  Henrich  Bartle, 
Jacob  Millions,  Jacob  Gamer,  Peter  Miller, 
Fite  Roschman,  Jacob  Roschman,  Thomas 
Lewe,  Petrus  Silvernail,  and  Jonas  Roschman, 
did,  in  and  by  the  same  article  of  agreement, 
promise  and  covenant  to  pay,  or  cause  to  be 
paid  to  the  said  John  Frederick  Ernst,  yearly, 
and  every  year,  from  the  day  of  the  date  of 
the  same  article  of  agreement,  as  long  as  he,  the 
said  John  Frederick  Ernst,  should  be  teacher  in 
the  congregation  aforesaid,  in  manner  and 
form  following,  to  wit:  for  the  administration 
of  pubiic  worship  the  sum  of  fifty  pounds 
current  money  of  the  State  of  New  York,  pay- 
able in  gold  or  silver,  to  be  paid  unto  the  said 
John  Frederick  Ernst  in  quarterly,  or  half- 
yearly  payments,  according  to  the  request  of 
the  said  John  Frederick  Ernst,  and  that  they, 
the  said  Thomas  Buchtel,  Henrich  Bartle, 
Jacob  Millions,  Jacob  Gamer,  Peter  Miller,  Fite 
Roschman,  Jacob  Roschman,  Thomas  Lewe, 
321*]  *  Petrus  Silvernail,  and  Jonas  Rosch- 
man, should  yearly  find  and  provide  him,  the 
said  John  Frederick  Ernst,  with  ten  cords  of 
good  firewood.  And  the  said  John  Frederick 
Ernst  in  fact  says,  that  from  the  time  of 
making  and  entering  into  the  said  article  of 
agreement  to  the  eighth  day  of  October,  in  the 
year  of  our  Lord  one  thousand  seven  hundred 
and  ninety-seven,  at  the  town  and  in  the  county 
aforesaid,  he  was  and  still  is  a  teacher  in  the 
congregation  at  Churchtown,  of  St.  Thomas's 
Church  there,  and  hath  done  and  performed 
all  the  duties  and  services  to  him  pertaining  as 
teacher  as  aforesaid.  And  the  said  John 
Frederick  Ernst  further  in  fact  says,  that  the 
said  Thomas  Buchtel.  Henrich  Bartle,  Jacob 
Millions,  Jacob  Gamer,  Peter  Miller,  Fite 
Roschman,  Jacob  Roschman,  Thomas  Lewe, 
Petrus  Silvernail,  and  Jonas  Roschman,  nor 
either  of  them,  in  the  lifetime  of  the  said 
Thomas  Buchtel,  nor  have  the  said  Henrich 
Bartle,  Jacob  Millions,  Jacob  Camer,  Peter 
JOHNSON'S  CASES,  1. 


Miller,  Fite  Roschman,  Jacob  Roschman, 
Thomas  Lewe,  Petrus  Silvernail,  and  Jonas 
Roschman,  or  either  of  them,  since  the  death  of 
the  said  Thomas  Buchtel,  paid  to  the  said  John 
Frederick  Ernst  the  sum  of  twenty -five  pounds 
of  the  said  yearly  payments,  for  the  half  of  a 
year  ending  on  the  eighth  day  of  April,  in  the 
year  of  our  Lord  one  thousand  seven  hundred 
and  ninety-three;  nor  have  they,  or  either  of 
them,  in  the  life  time  of  the  said  Thomas  Buch- 
tel, or  since  his  decease,  paid  to  him,  the  said 
John  Frederick  Ernst,  the  further  sum  of 
twenty -five  pounds  of  the  said  half-yearly  pay- 
ments, for  the  half  of  a  year  ending  on  the 
eighth  day  of  April  one  thousand  seven  hun- 
dred and  ninety-four;  nor  have  they,  or  either 
of  them,  in  the  lifetime  of  the  said  Thomas 
Buchtel,  or  since  his  decease,  paid  to  him,  the 
said  John  Frederick  Ernst,  the  further  sum  of 
twenty -five  pounds  of  the  said  half-yearly  pay- 
ments, for  the  half  of  a  year  ending  on  the 
eighth  day  of  April  one  thousand  seven  hun- 
dred and  ninety-five;  nor  have  they,  or  either 
of  them,  in  the  lifetime  of  the  said  Thomas 
Buchtel,  or  since  his  decease,  paid  to  him,  the 
said  John  Frederick  Ernst,  the  further  sum  of 
twenty-five  ^pounds,  of  the  said  half-  [*322 
yearly  payments,  for  the  half  of  a  year  ending 
on  the  eighth  day  of  October  one  thousand 
seven  hundred  and  ninety -five;  nor  have  they, 
or  either  of  them,  in  the  lifetime  of  the  said 
Thomas  Buchtel,  or  since  his  decease,  paid  to 
him,  the  said  John  Frederick  Ernst,  the  further 
sum  of  twenty -five  pounds  of  the  said  half- 
yearly  payments,  for  the  half  of  a  year  ending 
on  the  eighth  day  of  April,  one  thousand  seven 
hundred  and  ninety -six;  nor  have  they,  or 
either  of  them,  in  the  lifetime  of  the  said 
Thomas  Buchtel,  or  since  his  decease,  paid  to 
him,  the  said  John  Frederick  Ernst,  the  further 
sum  of  twenty-five  pounds  of  the  said  half- 
yearly  payments,  for  the  half  of  a  year  ending  on 
the  eighth  day  of  October,  one  thousand  seven 
hundred  and  ninety-six.  Nor  have  they,  or 
either  of  them,  or  the  said  Thomas  Buchtel,  in 
the  lifetime  of  the  said  Thomas  Buchtel,  or 
since  his  decease,  paid  to  him,  the  said  John 
Frederick  Ernst,  the  further  sum  of  twenty- 
five  pounds  of  the  said  half-yearly  payments, 
for  the  half  of  a  year  ending  on  the  eighth  day 
of  April,  one  thousand  seven  hundred  and 
ninety -seven ;  nor  have  they,  or  either  of  them, 
or  the  said  Thomas  BucLtel,  in  the  lifetime  of 
the  said  Thomas  Buchtel,  or  since  his  decease, 
paid  to  him,  the  said  John  Frederick  Ernst,  the 
further  sum  of  twenty-five  pounds  of  the  said 
half-yearly  payments,  for  the  half  of  a  year 
ending  on  the  eighth  day  of  October,  one  thou- 
sand seven  hundred  and  ninety-seven.  And 
the  said  John  Frederick  Ernst  further  in  fact 
says  that  the  said  Thomas  Buchtel,  Henrich 
Bartle,  Jacob  Millions,  Jacob  Camer,  Peter  Mil- 
ler, Fite  Roschman,  Jacob  Roschman,  Thomas 
Lewe,  Petrus  Silvernail,  and  Jonas  Rosch- 
man, nor  either  of  them,  in  the  lifetime  of  the 
said  Thomas  Buchtel,  or  since  his  decease, 
have  not  paid  to  the  said  John  Frederick  Ernst, 
from  the  eighth  day  of  October,  in  the  year  of 
our  Lord  one  thousand  seven  hundred  and 
ninety-five,  to  the  eighth  day  of  October,  one 
thousand  seven  hundred  and  ninety-seven,  the 
said  ten  cords  of  good  fire-wood  for  each  of 
the  said  two  years,  which,  according  to  the 

339 


322 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


form  of  the  said  covenants  in  those  behalfs 
323*]  made  as  *aforesaid  they  ought  to  have 
done,  and  so  the  said  John  Frederick  Ernst, 
saith,  that  they,  the  said  Thomas  Buchtel,  Hen- 
rich  Bartle,  Jacob  Millions,  Jacob  Camer, 
Peter  Miller,  Fite  Roschman,  Jacob  Roschman, 
Thomas  Lewe,  Petrus  Silvernail,  and  Jonas 
Roschman,  in  the  lifetime  of  the  said  Thomas 
Buchtel,  and  they,  the  said  Henrich  Bartle, 
Jacob  Millions,  Jacob  Camer,  Peter  Miller, 
Fite  Roschman,  Jacob  Roschman,  Thomas 
Lewe,  Petrus  Silvernail,  and  Jonas  Roschman, 
since  the  death  of  the  said  Thomas  Buchtel, 
have  not,  nor  hath  either  of  them,  kept  with 
the  said  John  Frederick  Ernst  the  said  cove- 
nants so  made  in  those  behalfs  as  aforesaid,  but 
the  same  have  altogether  broken,  to  the  dam- 
age of  the  said  John  Frederick  Ernst  of  one 
thousand  dollars,  and  thereof  he  brings 
suit,"&c. 

The  defendants  craved  oyer  of  the  articles 
of  agreement,  which  were  as  follows: 

"In  the  name  of  our  Great  Shepherd  Jesus 
Christ,  Amen:  We  the  subscribers,  the  trust- 
ees, elders,  and  deacons  of  the  Evangelical 
Lutheran  Church  called  St.  Thomas,  in  Clav- 
erack  district,  in  the  County  of  Columbia,  in 
the  State  of  New  York,  and  the  trustees,  the 
elders  and  deacons  of  the  Evangelical  Lutheran 
Church  at  Lunenburgh,  in  the  County  of  Al- 
bany and  State  aforesaid,  well  knowing  our 
deplorable  situation  without  publishing  of  the 
word  of  God  and  cure  of  souls,  as  well  among 
the  old,  as  particularly  among  our  young  peo- 
ple, have,  in  firm  reliance  on  the  zeal,  faithful- 
ness and  diligence  of  the  Rev.  Mr.  John  Fred- 
erick Ernst,  of  Kutztown,  Maxetawney  town- 
ship, Berk's  County,  State  of  Pennsylvania, 
called  him  by  virtue  of  our  respective  church 
offices  and  our  duty  in  the  name  and  with  the 
consent  of  all  the  respective  members  of  the 
Evangelical  Church  in  the  aforesaid  our  congre- 
gations, by  these  presents,  to  be  our  ordinary 
minister,  teacher,  curate  of  souls,  and  overseer 
of  these  our  congregations,  to  preach,  maintain 
and  spread  therein,  publicly  as  well  as  pri- 
vately, the  pure  and  sound  evangelical  doctrine, 
according  to  the  foundation  laid  by  the  holy 
apostles  and  prophets,  of  which  Christ  Jesus 
324*]  is  the  corner-stone,  and  *our  unaltered 
Augustan  confession ;  likewise  to  administer  the 
two  holy  sacraments  according  to  Christ's  insti- 
tution,  and  with  edifying  sermons,  which  are  to 
be  preached  on  every  other  Sunday,  in  each  of 
the  aforesaid  congregations,  as  much  as  God 
may  grant  him  grace  and  strength  to  feed  the 
sheep,  and  with  edifying  catechisations,  during 
the  summer  season,  the  lambs  of  Jesus  Christ; 
to  visit  the  sick  if  it  be  made  known  unto,  de- 
sired of,  and  is  possible  unto  him;  to  attend  on 
funerals,  to  instruct  those  in  the  sound  princi- 
ples of  the  doctrine  of  our  church,  who  for  the 
first  time  shall  be  desirous  to  be  admitted  unto 
the  table  of  our  Lord;  and  lawfully  to  join  in 
holy  wedlock;  likewise  to  administer  his  sacred 
office,  in  all  cases  whatsoever  occurring,  with- 
out regard  to  person  or  persons*  so  long  as  his 
doctrine  and  example  shall  prove  to  be  accord- 
ing to  the  Word  of  God,  and  the  general  estab- 
lished rules  of  the  American  Lutheran  Church, 
into  which  church  rules  both  the  respective 
vestries  and  congregations  think  themselves 
bound,  and  with  Divine  assistance  will  en- 
340 


deavor  effectually  to  defend  and  assist  their 
said  minister  therein,  and  in  case  of  any  dis- 
pute (which  may  God  avert)  happening,  only 
to  hear  and  adhere  to  the  judgment  of  the 
most  reverend  ministry  of  New  York;  he  shall 
likewise  call  a  meeting  of  all  the  church  officers 
of  each  of  the  aforesaid  congregations,  every 
three  months  in  the  year,  to  consult  and  put 
such  regulations  in  force,  as  may  by  him  and 
them  jointly  be  thought  most  beneficial  to  the 
said  congregations;  he  shall  likewise  preach  in 
the  Holland  language,  in  the  congregation  of 
Lunenburgh,  as  soon  as  he  finds  himself  capa- 
ble. 

"  And  since  it  is  the  command  of  our  Lord 
and  Great  Shepherd,  that  they  which  preach 
the  gospel  should  live  of  the  gospel,  equity 
likewise  demands  that  our  congregations,  ac- 
cording to  our  church  rules,  see}t  to  procure 
temporal  maintenance  for  their  teachers: 
Therefore,  we  the  subscribers,  the  trustees, 
elders  and  deacons,  promise  and  bind  our- 
selves and  the  successors  in  our  respective 
church  offices,  with  conjunction  and  consent 
of  the  respective  *members  of  these  our  [*32/> 
congregations,  firmly  by  these  presents  to  pay, 
or  cause  to  be  paid  unto  our  teacher,  the  Rev. 
Mr.  John  Frederick  Ernst,  yearly  and  every 
year,  from  the  day  of  the  date  hereof,  as  long 
as  he  is  or  shall  be  teacher  in  the  congregation 
aforesaid:  Impi'imis,  for  the  administration 
of  public  worship  in  our  said  congregations, 
the  sum  of  one  hundred  pounds,  current 
money  of  the  State  of  New  York,  payable  in 
gold  or  silver,  to  be  paid  unto  him  or  his  or- 
der in  quarterly  or  half-yearly  payments, 
according  to  the  request  01  the  said  Parson 
Ernst,  whereof  each  of  the  congregations 
aforesaid  is  to  pay  the  equal  sum  of  fifty 
pounds,  together  with  the  free  and  unincum- 
bered  use  and  benefit  of  the  parsonage  house 
and  lot  of  ground  belonging  to  the  church  of 
Lunenburgh,  now  in  possession  of  Mr. 
Anthony  DeWitt,  which  said  house  and  lot  of 
ground  shall,  at  the  desire  of  Mr.  Ernst,  be 
put  and  kept  in  good  tenantable  order  and  re- 
pair by  the  congregation  of  Lunenburgh, 
further  to  find  and  provide  him  yearly  with 
twenty  cords  of  good  firewood,  whereof  each 
of  the  said  congregations  aforesaid  is  to  find 
and  provide  ten  cords;  further,  two  tons  of 

food  first  crop  hay,  together  with  pasturage 
uring  the  summer  season  for  one  horse, 
together  with  fifty  bushels  of  oats  to  keep  the 
same  in  good  riding  order.  We  further  agree 
with  the  said  Parson  Ernst  to  receive  from  all 
persons,  who  are  members  of  the  said  congre- 
gations, the  perquisites  as  are  allowed  by  cus- 
tom in  each  of  our  respective  congregations, 
for  inscribing  the  names  of  children  baptized 
in  the  record  book  kept  for  that  purpose:  it  is 
further  agreed  that  said  Parson  Ernst  shall  re- 
ceive from  the  parents  of  every  child  or  other 
person  the  sum  of  four  shillings,  who  shall 
especially  be  instructed  previous  to  their  ad- 
mittance to  the  communion.  It  is  also  agreed 
that  said  Parson  Ernst  shall  receive  for  every 
solemnization  of  marriage  between  persons 
belonging  to  our  respective  congregations  the 
sum  of  ten  shillings,  provided  the  same  be  per- 
formed at  church  or  at  his  dwelling-house. 
Further,  it  is  agreed,  th^t  said  Parson  Ernst 
shall  receive  eight  shillings  from  every  person 
JOHNSON'S  CASES,  1. 


1800 


BROOKS  v.  PATTERSON. 


326 


326*]  who  *shall  request  and  desire  him  to 
deliver  a  funeral  sermon,  on  the  mournful  oc- 
casion of  the  death  of  any  member  of  said  con- 
gregation. It  is  further  agreed,  that  the  said 
Parson  Ernst  shall  have  four  Sundays  in  each 
and  every  year  for  his  own  use,  provided  the 
same  be  not  taken  on  a  festival  day,  and  two 
Sundays  for  attending  on  the  yearly  synod  or 
conference  held  by  his  clerical  brethren;  all 
the  above  and  each  part  thereof,  we  do  hereby 
promise  to  perform,  and  testify  to  have  agreed 
to,  with  the  said  Rev.  Mr.  John  Frederick 
Ernst,  in  the  name  of  the  above  said  our  con- 
gregations, signed  with  our  hands  and  sealed 
with  our  seals  this  eighth  day  of  October,  in 
the  year  of  our  Lord  one  thousand  seven  hun- 
dred and  ninety-one." 

The  defendants  then  demurred,  and  assigned 
the  following  causes  of  demurrer: 

1.  That  the  defendants  are  a  corporation, 
and  the  agreement  was  made  with  them  in 
their  corporate  capacity,   as  trustees  of  the 
churches  mentioned  in  the  plaintiff's  declara- 
tion, and  the  suit  is  brought  against  them  in 
their  natural  and  private  capacities. 

2.  That  the  covenant  on  which  the  suit  is 
brought,   is  not  shown  to  be  under  the  cor- 
porate seal  of  the  defendants  as  trustees. 

3.  That  the  covenant  is  joint  on  the  part  of 
both  congregations,  and  the  action  is  against 
the  trustees  of  one  only. 

4.  That  no  request  to  pay  is  alleged  in  the 
declaration. 

5.  That  the  declaration  states  that  the  pay- 
ments were  to  be  made  quarterly  or  half-yearly, 
when  it  is  not  so  expressed  in  the  agreement. 

Per  Curiam.  With  regard  to  the  two  first 
objections,  it  is  sufficient  to  observe  that  it 
does  not  appear  from  the  declaration,  nor  is  it 
shown  by  the  pleadings,  that  the  defendants 
are  a  corporation,  or  capable  of  being  sued  as 
such.  The  names  and  additions  by  which 
they  are  described  are  a  mere  descriptio  person- 
arum,  and  they  remain  liable  only  in  their 
private  capacities.  Without  such  a  construc- 
tion, the  covenant  would  be  nugatory  and 
327*]  void;  *and  there  is  no  reason  to  adopt 
a  different  one.  They  have  affixed  their 
private  seals  to  the  instrument,  not  a  corpora- 
tion seal. 

Covenants  may  be  taken  distributively,  ac- 
cording to  the  subject  matter,  although  there 
be  no  express  words  of  severally.  The  evi- 
dent intent  of  this  covenant  was,  that  each 
congregation  should  be  separately  liable  for 
what  they  stipulated  to  pay;  and  that  intent 
should  be  carried  into  effect,  as  far  as  the 
terms  will  admit.  No  more  is  claimed  in  this 
action  than  what  may  be  severally  demanded. 
The  breach  is  not  alleged  as  to  anything  that 
may  be  deemed  a  joint  undertaking. 

It  was  not  necessary  to  state  a  request  in  or- 
der to  show  a  breach  of  the  covenant.  It  is 
enough  that  it  is  alleged  to  be  broken.  The 
request  is  not  a  condition  precedent.  It  is  not 
a  case  in  which  a  request  is  essential  to  the 
right  of  action.  The  bringing  of  the  action  is, 
of  itself,  the  legal  demand,  and  it  was  a  duty 
which  the  defendants  were  bound  to  discharge 
without  a  demand. 

The  request  mentioned  in  the  covenant  re- 
lates merely  to  the  election  which  the  plaintiff 
JOHNSON'S  CASES,  1. 


had  to  demand  payment  quarterly  or  half- 
yearly.  The  payment  quarterly  was  for  the 
benefit  of  the  plaintiff.  If  not  demanded 
quarterly,  the  defendants  were  bound,  at  all 
events,  to  pay  half-yearly.  We  are  of  opinion 
that  the  demurrer  is  not  well  taken,  and  that 
the  plaintiff  must  have  judgment. 

Judgment  for  the  plaintiff. 

Cited  in  1  Wend.,  231;  5  Daly,  142;  Blatchf.  &  H., 
420 ;  4  Mason,  227  (n). 


*BROOKS  v.  PATTERSON.  [*328 

1.  Pleading — By  Attorney — Of  Privilege — De- 
murrer. 2.  Id. — Id. —  Verification  —  Special 
Bail. 

A  plea  of  privilege,  by  an  attorney,  in  abatement, 
concluding1  his  plea  to  the  jurisdiction  of  the  court, 
ought  not  to  be  treated  as  a  nullity,  but  must  be 
demurred  to.  Such  a  plea  does  not  require  an  affi- 
davit, and  it  may  be  put  in  after  special  bail  has  been 
entered. 

THE  defendant,  being  an  attorney  of  this 
court,  was  sued  and  arrested  as  a  common 
person. 

He  appeared  and  entered  special  bail,  and 
pleaded  his  privilege  in  abatement,  and  con- 
cluded his  plea  to  the  jurisdiction  of  the  court, 
and  not  in  abatement  of  the  bill.  The  plea  was 
not  verified  by  affidavit. 

The  plaintiff  entered  an  interlocutory  judg- 
ment regarding  the  plea  as  a  nullity. 

It  was  now  moved  to  set  aside  the  judgment 
as  irregular. 

Mr.  Munro  for  the  plaintiff. 
Mr.  Hiker  for  the  defendant. 

Per  Curiam.  An  affidavit  of  the  truth  of 
the  plea  was  not  necessary  in  this  case,  and  it 
may  be  pleaded  after  special  bail  is  entered. 
As  to  the  other  objection,  however  it  might  be 
considered  on  a  demurrer,  we  think  the  plea 
ought  not  to  have  been  treated  as  a  mere 
nullity.  Let  the  judgment  be  set  aide. 

Sale  granted. 


CORP  v.  M'COMB. 

Negotiable  instrument — Protest — On  last  day  of 
Cfrace. 

A  notice  to  the  indorsee  on  the  third  or  last  day  of 
grace,  after  a  demand  on  the  maker  and  his  default, 
is  good. 

THIS  was  an  action  by  the  plaintiff,  as  the 
indorsee  of  a  promissory  note,  against  the 
defendant  as  the  indorser. 

A  verdict  having  been  obtained  by  the 
plaintiff,  a  motion  was  made  in  arrest  of  judg- 
ment, on  the  grounds  that  it  was  stated  in  the 
declaration  that  the  notice  to  the  indorser  was 
given  on  the  same  day  on  which  the  demand 
was  made  of  the  maker,  but  after  such  de- 


NOTE.— Negotiable  paper,  as  to  when  notice  of  dis- 
honor to  be  given. 
See  note  to  Bryden  v.  Bryden,  11  Johns,  (this  ed.), 

187. 

341 


328 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


mand  and  a  default  of  payment  by  the  maker. 
It  was  contended  that  the"  notice  ought  to  have 
been  given  on  the  subsequent  day,  and  have 
been  so  alleged  in  the  declaration. 

329*]  *Per  Curiam.  Notice  to  the  indorsee 
on  the  third  day  of  grace,  after  a  demand 
made  of  the  maker,  and  his  default  of  pay- 
ment, is  good.  Its  being  earlier  than  is  re- 
quired, cannot  form  an  objection  on  the  part 
of  the  indorser. 

Ride  refused. 
Cited  in-3  Wend.,  171. 


STRANG  «.  BARBER  AND  GRIFFIN. 

Bail  —  Exoneretur  —  Surrender   within  Eight 
Days  in  Term. 

If  the  bail  surrender  the  principal,  within  eight 
days  in  term,  after  the  return  ot  process  against 
them,  it  is  sufficient:  and  the  exoneretur  may  be  en- 
tered afterwards. 

THIS  was  an  action  against  the  defendant, 
as  the  special  bail  of  J.  S.  On  Saturday 
in  the  first  week  of  the  present  term,  the  de- 
fendants surrendered  their  principal,  and  on 
that  day  obtained  an  order  from  the  recorder 
of  the  city  of  New  York,  to  show  cause  on  this 
day  why  an  exoneretur  should  not  be  entered 
on  the  bailpiece.  The  surrender  thus  made, 
was  within  eight  days  after  the  return  of  the 
capias  against  the  defendants.  Notice  having 
been  given  for  that  purpose,  it  was  now  moved 
to  stay  the  proceedings  against  the  bail  in  this 
action,  on  the  usual  terms. 

It  was  insisted,  on  the  part  of  the  plaintiff, 
that  the  exoneretur  on  the  bailpiece  was  neces- 
sary to  be  entered,  as  well  as  the  surrender  to 
be  actually  made,  within  eight  days  after  the 
return  of  the  writ,  to  entitle  the  bail  to  be 
discharged,  and  that  the  eight  days  had  now 
elapsed. 

Per  Curiam,  The  surrender  was  cemplete, 
and  in  time  to  entitle  the  defendants  to  have 
an  exoneretur  entered.  The  subsequent  order 
and  this  motion  were  proper  to  put  an  end  to 
this  suit,  when  the  plaintiff  would  not  submit. 
Let  the  exoneretur  be  entered. 

Rule  granted. 


33O*J  *DOLE  v.  VAN  RENSSELAER. 

Slander — Action  Words — Official. 

Words  spoken  of  a  person,  in  relation  to  his  office 
of  sheriff,  and  amounting  to  a  charge  of  malprac- 
tice, are  actionable. 

THIS  was  an  action  of  slander,  in  which  a 
general  verdict  was  found  for  the  plaint- 


iff. The  declaration  contained  several  counts, 
and  the  plaintiff  being  sheriff  of  the  county  of 
Rensselaer,  the  words  were  alleged  in  the  decla- 
ration to  be  spoken  of  him  in  relation  to  his 
office  of  sheriff. 

The  words  charged  in  one  of  the  counts, 
with  proper  innuendoes  to  show  their  applica- 
tion to  the  plaintiff,  were  as  follows  : 

"  If  his  debts  were  paid,  he  would  be  worse 
than  nothing;  that  he  would  fail  or  break  be- 
fore long;  that  moneys  which  he  had  collected 
on  execution  he  had  taken  and  converted  to  his 
own  use,  and  that  they  could  not  be  got  out  of 
his  hands." 

Mr.  Woodworth,  for  the  defendant,  moved  in 
arrest  of  judgment,  contending  that  these 
words  were  not  actionable,  and  that  one  count 
being  bad,  and  the  verdict  general,  the  judg- 
ment ought  to  be  arrested. 

Messrs.  Bird  and  Riggs,  contra. 

Per  Curiam.  The  words  are  expressly 
charged  to  have  been  spoken  by  the  defendant 
in  relation  to  the  plaintiff,  in  his  office  of 
sheriff,  and  such  is  their  natural  import.  They 
amount  to  a  charge  of  malpractice,  and  are, 
therefore,  actionable. 

Rule  refused. 
Cited  in-1  Denio,  253 ;  3  N.  Y.,  178. 


*  JACKSON,  ex  dem.  PICKERT,  [*331 

«. 
BACKER. 

Motion — Notice — Due  Service. 

Service  of  a  notice  of  a  motion,  by  leaving  it  at 
the  lodgings  of  an  attorney,  is  not  sufficient.  It 
must  be  served  personally,  or  be  left  in  his  office,  or 
place  of  business. 

MR.  BACKER,  for  the  defendant,  moved  to 
strike  out  three  of  the  demises  contained  in 
the  declaration  of  this  cause,  on  the  ground  of 
their  being  laid  in  the  names  of  persons  now 
deceased,  and  of  a  date  so  ancient  as  to  over- 
reach the  time  when  the  title  set  up  by  the  de- 
fendant accrued. 

The  notice  of  the  motion  was  served  by  leav- 
ing the  same  at  a  house  where  the  plaintiff's 
attorney  lodged. 

Per  Curiam.  The  service  was  insufficient. 
To  dispense  with  personal  service  on  the  attor- 
ney, the  notice  ought  to  have  been  left  in  his 
office,  the  place  of  his  business,  and  not  at  his 
lodgings. 

Rule  refused. 


NOTE. — Slander,  words  spoken  relative  to  an  officer. 

Words  not  actionable  in  themselves  are  not  so 
when  spoken  of  one  holding  office  unless  they  affect 
him  as  an  officer.  Kinney  v.  Nash,  3  N.  Y.,  177 ;  Van 
Tassel  v.  Capron,  1  Denio,  250 ;  Oakley  v.  Farring- 
ton,  ante,  129 ;  McGuire  v.  Blair,  2  Law  Repository 
(N.  C.).  443;  James  v.  Brook,  9  Q.  B.,  7. 

Nor  if  the  office  has  ceased  at  time  of  speaking. 
Forward  r.  Adams,  7  Wend.,  204 ;  Bellamy  v.  Burcn, 
16  M.  &  W.,  590;  Gallney  v.  Marshall,  9  Ex.,  294. 

342 


Particular  words  held  actionable,  see  Craig  v. 
Brown,  5  Blackf .  (Ind.),  44 ;  Hook  v.  Hackney,  16  S. 

6  K.  (Pa.),  385 ;  Irwin  v.  Brandwood,  2  H.  &  C.,  960 ; 
Lansing  v.  Carpenter,  9  Wis.,  540 ;  Lindsey  v.  Smith, 

7  Johns.,  360;  Chaddock  v.  Briggs,  13  Mass.,  253. 
See,  also,  Towshend  on  Slander  and  Libel,  286 ;  Dol- 

loway  v.  Turrill,  26  Wend.,  383. 

As  to  words  spoken  of  one  regarding  his  profes- 
sion or  trade,  see  note  to  Foot  v.  Brown,  8  Johns., 
50. 

JOHNSON'S  CASES,  1. 


1800 


SEEKING  AND  VAN  WYCK  v.  RATHBUN. 


331 


SEEKING  AND  VAN  WYCK  ».  RATHBUN. 

1.    Note — Indorsed  after  Dishonor — Defenses. 
2.  Judgment — By  Confession. 

Where  a  note  is  indorsed  after  it  is  dishonored, 
the  maker  may  set  up  every  equitable  defence  in  an 
action  by  the  indorsee,  which  he  might  have  done 
against  the  payee ;  but  if  the  maker  has  confessed 
judgment  on  the  note,  the  court  will  not  set  aside 
the  judgment,  in  order  to  let  in  such  equitable  de- 
fence, especially  where  the  parties  are  in  part  de- 
Itotn. 

THE  plaintiffs  were  holders  of  a  promissory 
note  given  by  the  defendant  for  the  pur- 
chase money  of  lands  in  this  State,  bought  by 
him  from  the  payee,  under  a  title  derived  from 
the  State  of  Connecticut.  The  note  was  in- 
dorsed to  the  plaintiffs  after  it  fell  due,  who 
brought  this  action,  in  which  the  defendant 
.had  confessed  judgment. 

Mr.  Burr,  on  an  affidavit  stating  these  facts, 
moved  to  set  aside  the  judgment,  and  to  be  let 
into  a  defence,  on  the  ground  that  the  consid- 
eration of  the  note  was  illegal,  according  to 
the  determination  of  the  Court  of  Errors,  at 
their  last  session,  in  the  case  of  Woodioorth  and 
RatJibun  v.  James  and  Dole,  and  that  as  the 
plaintiff  received  it  after  it  was  dishonored,  he 
took  it  subject  to  every  equitable  defence  as 
between  the  original  parties. 

Mr.  Biggs,  contra. 

Per  Curiam.  The  note  being  indorsed  to  the 
plaintiffs,  after  it  was  dishonored,  the  defend- 
332*]  ant  no  doubt  had  a  *right  to  make 
«very  defence  against  them  which  he  might 
have  set  up  against  the  payee  ;  but  he  has  con- 
fessed judgment,  and  admitting  the  decision  of 
the  Court  of  Errors  to  have  been  made  on  the 
ground  stated  by  the  defendant's  counsel,  both 
the  parties,  as  to  the  original  transaction  on 
which  the  note  was  given,  were  equally  culpa- 
ble, and  in  pan  delicto,  and  the  court  will  not, 
therefore,  interpose  in  favor  of  either. 

Rule  refused. 
Cited  in-1  Cow.,  396 ;  5  Wend.,  601 ;  2  Duer,  643. 


EAGLE  v.  ALNER. 

1.  Motion  for  Judgment — Verdict  Subject  to 
Opinion  of  Court — Points  Reserved — Case 
Made.  2.  New  Case — Substitution — Amend- 
ments. 

When  a  verdict  is  taken  subject  to  the  opinion  of 
the  court  on  points  reserved,  the  plaintiff  must 
make  up  the  case,  and  have  it  settled,  and  cannot 
move  for  judgment,  because  no  case  is  made.  The 
right  of  proposing  amendments  to  a  case  made, 
•does  not  authorize  the  party  to  substitute  a  new 
•case. 

ON  the  trial  of  this  cause  a  verdict  was  taken 
for  the  plaintiff,  subject  to  the  opinion  of 
the  court  on    certain  points  which  were  re- 
served. 

NOTE.— Negotiable  paper,  as  to  indorsement  after 
maturity. 
See  note  to  Johnson  v.  Bloodgood,  ante,  51. 

JOHNSON'S  CASES,  1. 


No  case  having  been  settled,  Mr.  Munro 
moved  for  judgment  on  the  verdict. 

Per  Curiam.  It  is  incumbent  on  the  plaint- 
iff to  make  up  the  case,  and  if  amendments  are 
offered,  to  have  it  settled.  The  points  re- 
served must  be  disposed  of  before  he  can  have 
judgment,  and  the  motion  is  therefore  denied. 

On  a  representation  of  the  proceedings  of  the 
parties  relative  to  the  case  proposed  to  be 
made,  the  court  said  that  where  a  case  is  made 
by  one  party,  and  intended  to  be  amended  by 
the  other,  the  right  of  amending  will  not  au 
thorize  a  new  case  to  be  made  by  way  of  a  sub- 
stitute for  the  first. 

Rule  refused. 


*CAHILL  v.  DOLPH.         [*333 

Justice  —  Jurisdiction  —  Amount  of  Demand — 
Balance  Claimed. 

Justices  may  inquire  into  demands  to  the  amount 
of  $200,  if  the  plaintiff  claims  no  more  than  a  bal- 
ance of  $25 :  and  the  declaration  may  state  a  debt  or 
demand  to  the  amount  of  $200,  provided  it  con- 
cludes with  demanding  damages  to  $25  only. 


I 


N  error  on  certiorari.  . 


By  the  justice's  return,  it  appeared  that  the 
plaintiff  in  the  action  before  him,  who  is  the 
defendant  in  error,  declared  in  assumpsit,  with 
two  counts,  in  each  of  which  he  stated  that  the 
defendant  below  was  indebted  to  him  in  $27.50, 
but  concluded  the  declaration  to  his  damage 
of  $25  only. 

It  also  appeared  that  the  defendant  below, 
in  some  shape  or  other,  resisted  the  plaintiff's 
demand,  upon  which  a  trial  by  jury  was  had, 
but  no  issue  was  formally  joined. 

Mr.  Biggs,  for  the  plaintiff  in  error,  relied 
upon  two  objections: 

1.  That  no  issue  was  joined  before  the  jus- 
tice, and  that,  therefore,  the  verdict  and  judg- 
ment before  him  were  erroneous. 

2.  That  the  sum  in  each  count  of  the  decla- 
ration exceeded  the  jurisdiction  of  the  justice. 

Mr.  Bowman,  contra. 

Per  Curiam.  The  joining  a  formal  issue 
before  a  justice  is  not  material.  It  is  sufficient 
if  it  appear  to  have  been  substantially  done, 
which  is  the  case  here. 

As  to  the  second  objection,  a  justice  has 
jurisdiction  to  the  amount  of  $200,  provided 
the  balance  claimed  do  not  exceed  $25.  Regu- 
larly, the  plaintiff  ought  to  state  in  his  declara- 
tion the  credit  to  reduce  it  to  that  sum,  which 
in  the  present  case  is  not  done,  but  he  concludes 
to  his  damage  of  $25  only.  It  is  therefore  an 
objection  of  form,  and  not  a  substantial  error, 
for  which  the  judgment  below  ought  to  be  re- 
versed. » 

Judgment  affirmed. 

Cited  in— 12  Johns.,  435 ;  1  Wend.,  441 ;  4  Barb.,  366. 

84S 


334 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1800 


334*] 


*ELLIS  v.  HAY. 


Sail — Surrender — Application —  Time. 

Bail  have  eight  days  in  term  after  the  return  of 
the  capias  against  them,  within  which  to  surrender 
their  principal,  and  an  application  for  leave  to  sur- 
render before  the  expiration  of  that  term,  is  unnec- 
essary and  premature. 

THE  defendant  was  sued  as  the  special  bail, 
or  manucaptor  of  I.    S.    and  the  capias 
against  him,  on  which  he  was  taken,  was  re- 
turnable on  the  last  day  of  the  preceding  term. 
Mr.    Wilkim,   on   behalf  of  the  defendant, 
moved  for  leave  to  surrender  the  principal,  and 
to  stay  the  proceedings  in  this  suit,  on  the  usual 
terms. 

Per  Curiam.  The  application  is  premature. 
The  defendant,  by  the  practice  of  the  court, 
has  a  right  to  surrender  his  principal,  until 
eight  days  in  term  have  elapsed  after  the  return 
of  the  writ.  This  being  the  first  day  of  the 
term,  the  defendant  does  not  stand  in  need  of 
our  interference  to  make  the  surrender.  If 
that  be  made  in  time,  the  proceedings  in  this 
suit  will  be  stayed,  of  course,  on  a  proper  ap- 
plication for  the  purpose. 

Rule  granted. 


BROWER  v.  KINGSLEY. 

1.  Reference  —  To  Report  with  Certain  Time  —  2. 
Id.  —  To  Three  Persons  —  Report  of  Two  — 
No  Notice  to  Third. 

Where  the  rule  of  reference  in  a  cause  requires 
the  referees  to  report  within  a  particular  time,  the 
power  of  the  referees  is  at  an  end,  if  they  do  not 
report  within  the  time  limited.  Where  a  cause  was 
referred  to  three  persons,  and  two  of  them  met  and 
made  a  report,  without  giving1  notice  to  the  other 
to  attend,  the  proceeding  was  held  to  be  irregular, 
and  the  report  was  set  aside. 


cause  was  referred,  by  consent,  to  ref- 
erees,  and  the  rule  was  special,  requiring 
them  to  hear  the  parties,  and  report  within  a 
specified  time. 

The  referees  heard  the  parties,  and,  after- 
wards, two  of  them,  subsequent  to  the  time 
limited  in  the  rule,  and  without  notifying  the 
third,  convened,  and  made  their  report  in 
favor  of  the  defendant.  Previous  to  making 
the  report,  the  plaintiff  also,  by  writing,  re- 
voked the  authority  of  the  referees. 

Mr.  Pendleton,  for  the  plaintiff,  moved  to  set 
aside  the  report  on  the  following  grounds: 
335*]      *1.  That  the  power  of  the  referees 
was  at  an  end  by  the  limitation  contained  in  the 
rule  which  was  entered  by  consent. 

2.  That  their  conduct  was  irregular  in  not 

NOTE.—  That  referees  cannot  act  unless  all  be 
present. 

See  Mclnroy  v.  Benedict,  11  Johns.,  402  ;  Harris  v. 
Norton,  7  Wend.,  534;  Jackson  v.  Ives,  22  Wend., 
637  ;  Eames  v.  Eames,  41  N.  H.,  177. 

See,  also,  Daniels  v.  Ripley,  10  Mich.,  237  ;  Battey  v. 
Button,  13  Johns.,  187  :  Clark  v.  Fraser,  1  How.  Pr., 
98  ;  Yates  v.  Russell,  17  Johns.,  461. 

Expiration  of  time  given  in  which  to  report.  See 
Buntain  v.  Curtis,  27  111.,  374;  White  v.  Kemble, 
2  Pen.  (N.  J.  L.),  461  ;  McClure  v.  Shroyer,  13  Mo., 
104;  Thiesselin  v.  Rossett,  3  Abb.Pr.  N.  S.,54;  Keller 
v.  Suttrick,  22  CaL,  471. 


giving  notice  to  the  other  referee  to  deliberate 
and  act  in  conjunction  with  them. 

3.  That  it  was  competent  for  the  plaintiff 
to  revoke  the  appointment  of  the  referees, 
although  he  might  thereby  subject  himself  to  a 
contempt  for  disobeying  the  rule  of  this  court. 
(3  Vin.  Ab.,  131.) 

Mr.  Coleman,  contra. 

Per  Curiam.  We  are  of  opinion  that  the 
power  of  the  referees  expired  with  the  time 
limited  in  the  rule,  and  that  the  conduct  of  the 
two  referees  was  irregular,  in  not  meeting  with 
the  other  to  deliberate  together,  or  giving  him 
notice  and  an  opportunity  so  to  do.  His  as- 
sistance might  have  changed  their  opinion,  and 
produced  a  different  result. 

Let  the  report  be  set  aside  for  irregularity, 
with  costs. 

Rule  granted. 
Cited  in— 10  Abb.  N.  S.,  285. 


HAINES  ET  AL.,  Demandants, 

v. 
BUDD,  Tenant. 

Ejectment  —  Pleadiny  —  Special   Importance — 

View  of  Premises. 

Citation— Ante,  237. 

Where  on  a  writ  of  right,  a  special  imparlance  is 
granted,  to  the  first  day  of  the  next  term,  the  tenant 
is  bound  to  plead  on  that  day,  and  is  not  allowed 
until  the  quarto  die  post.  The  demandant  is  entitled 
to  have  a  view  of  the  premises,  as  of  course. 


0: 


a  writ  of  right. 


At  the  last  term,  a  special  imparlance  was 
granted  to  the  tenant  until  the  first  day  of  this 
term. 

Mr.  Monro  now  moved  that  the  tenant  be 
called  and  plead,  or  that  his  default  be  entered. 

Mr.  Riggs,  for  the  tenant,  submitted  whether 
he  was  bound  to  plead  until  the  quarto  die  post 
of  this  term. 

Per  Curiam.  The  tenant  is  bound  to  plead 
on  this  day. 

The  tenant  having  pleaded,  Mr.  Munro 
thereupon  prayed  a  view  of  the  premises,  which 
was  opposed  on  the  part  of  the  tenant.  The 
court  said  that  the  demandant  was  entitled  to 
have  the  view  of  course.  (See  ante,  p.  237.) 


*THE   PEOPLE  v.  VALENTINE.    [*33G 

Certiorari — Indictment  for  Nuisance — No  Rec- 
ord of  Conviction —  Writ  to  Abate. 

On  the  return  of  a  certtorari,  to  the  oyer  and  tor- 
miner,  of  the  proceedings  in  the  case  of  an  indict- 
ment for  a  nuisance,  this  court  refused  to  interfere 
on  a  motion  for  a  writ  to  prostrate  the  nuisance, 
until  a  record  of  conviction  was  regularly  made  out 
and  returned. 

rPHE  defendant  was  indicted  for  a  nuisance, 

JL   at  a  court  o.f  oyer   and  terminer  in  the 

JOHNSON'S  CASES,  1. 


1800 


SILVA  v.  Low. 


33ft 


County  of  Westchester,  convicted  and  fined. 
The  proceedings  were  now  brought  up  by  cer- 
tiorari  into  this  court,  and  Mr.  Golden,  on 
behalf  of  the  people,  'moved  for  a  writ  to  the 
sheriff,  commanding  him  to  prosecute  the 
nuisance,  &c.  A  formal  record  of  the  convic- 
tion did  not  appear. 

Per  Curiam.  Whatever  may  be  the  merits 
of  this  application,  we  cannot  interfere  until 
the  record  be  regularly  made  out  and  returned. 

Rule  refused.  , 


SILVA  v.  LOW. 

New  Trial — Second  Trial — Decision  Disregarded 
—Third  Trial. 

Where  the  jury  on  a  second  trial  find  a  verdict 
against  the  decision  of  the  court,  on  the  former 
motion  for  a  new  trial,  on  a  point  of  law,  the  court 
will  grant  a  rule  for  a  third  trial. 

THIS  case  came  up  on  a  motion  for  a  new 
trial,  after  a  second  trial,  on  which  the  jury 
had  given  a  verdict  for  the  plaintiff  as  before, 
upon  evidence  substantially  the  same.  (See 
ante,  p.  184.) 

On  the  part  of  the  plaintiff  it  was  insisted  that 
this  was  a  second  verdict  on  the  question  of 
fact,  and  ought  to  conclude. 

For  the  defendant,  it  was  contended  that  the 
evidence  being  materially  the  same,  the  finding 
of  the  jury  was  an  attempt  to  overrule  the  de- 
cision of  this  court  on  the  questions  of  law 
formerly  determined,  arid  therefore  ought  not 
to  prevail. 

Messrs.  B.  Livingston,  Burr,  and  Harison,  for 
the  plaintiff. 

Messrs.  Troup  and  Hamilton  for  the  defend- 
ant. 

Per  Curiam.  The  jury,  in  finding  this  verdict, 
must  have  intended  to  disregard  the  determina- 
tion of  this  court  on  the  questions  of  law  pre- 
viously settled,  and  their  verdict  must  there- 
fore be  considered  as  against  law.  It  could 
337*]  *not  have  been  found  in  conformity 
to  the  opinion  of  the  court  as  formerly  de- 
livered, unless  we  suppose  the  jury  to  have 
been  governed  by  conjectures  or  circumstances 
too  trivial  to  be  mentioned.  We  therefore  think 
that  the  verdict  ought  to  be  set  aside,  and  the 
costs  to  abide  the  event  of  the  suit. 

LANSING,  Ch.  J. ,  and  LEWIS,  J. ,  dissented. 
New  trial  awarded. 


GOIX  v.  KNOX. 

Marine  Insurance — "Against  all  Risks." 

Where  a  policy  of  insurance  contains  the  written 
clause,  "against  all  risks,"  it  protects  the  insured 
against  every  loss  happening  during  the  voyage, 
except  such  as  may  arise  from  his  fraudulent  acts. 

THIS  was  an  action  on  a  policy  of  insurance, 
dated  the  21st  of  February,  1798,  upon  all 
kinds  of  lawful  goods  in  the  ship  Minerva,  on 
JOHNSON'S  CASES,  1. 


a  voyage  from  New  York  to  Guadaloupe,  val- 
ued at  $5,500. 

The  premium  was  ten  per  cent. ,  and  besides 
the  usual  risks  enumerated  in  printed  policies, 
it  was  declared,  by  a  cause  in  writing,  that  the 
insurance  was  to  be  "against  all  risks."  The 
policy  contained  no  warranty. 

The  cause  was  tried  at  the  last  circuit  held 
for  the  City  and  County  of  New  York,  before 
Mr.  Justice  Benson,  and  a  verdict  was  found 
for  the  plaintiff,  subject  to  the  opinion  of  the 
court  on  the  following  case,  with  liberty  to 
either  party  to  turn  the  case  into  a  special  ver- 
dict: 

The  policy  was  admitted.  It  was  also  ad- 
mitted or  proved,  that  the  Minerva,  in  the 
prosecution  of  the  voyage  insured,  was  capt- 
ured on  the  2d  of  April,  1798,  by  a  British 
ship  of  war,  and  carried  into  the  island  of  An- 
tigua, where  she  and  her  cargo  were  both 
libelled  in  a  court  of  vice-admirality,  and  con- 
demned as  lawful  prize  to  the  captors,  no  rea- 
son for  the  condemnation  being  assigned  in  the 
sentence. 

The  plaintiff  had  property  on  board  to  the 
amount  of  $14,639.55,  for  which  the  captain 
had  signed  a  bill  of  lading  in  his  favor. 

*The  plaintiff  was  naturalized  as  a  [*338 
citizen  of  the  United  States,  on  the  2d  of 
August,  1796;  and  before  he  was  so  natural- 
ized, he  was  a  subject  of  the  Swiss  Cantons,  of 
which  he  is  a  native.  The  plaintiff  abandoned 
to  the  underwriters  on  the  10th  of  June,  1798, 
and  at  the  same  time  exhibited  the  usual  proof 
of  loss  and  interest. 

By  the  proceedings  in  the  Court  of  Vice- Ad- 
miralty of  Antigua,  which  were  produced  on 
the  trial,  it  appeared  that  the  Minerva  had  on 
board,  when  captured,  the  following  papers, 
to  wit: 

1.  An  American  register,  in  the  name  of  the 
plaintiff  only. 

2.  An  affidavit  of  the  plaintiff,  taken  before 
a  notary  public  in  New  York,  dated  the  1st  of 
March,  1798,  that  he  was  the  true  and  lawful 
proprietor  of  all  and  singular  the  goods,  wares 
and  merchandises  shipped  by  him  on  board 
the  Minerva,  as  specified  in  the  two  bills  of 
lading  and  invoice  thereto  annexed,  amount- 
ing to  the  sum  of  $14,639.55,  and  that  no  sub- 
ject of  any  of  the  present  belligerent  powers, 
br  any  other  person  or  persons,  was  or  were 
directly  or  indirectly  interested  or  concerned 
with  him  in  the  said  goods,  or  any  part  there- 
of, the  same  being  shipped  solely  for  his  ac- 
count and  benefit,  and  at  his  risk.     To  this  af- 
fidavit were  annexed  two  bills  of  lading,  both 
filled  up  in  favor  of  the  plaintiff,  and  one  in- 
voice.    The  goods  in  one  of  the  bills  of  lading 
corresponded  with  the  invoice,  and  amounted 
to  the  value  insured.     There  was  no  invoice  in 
the  name  of  the  plaintiff  accompanying  the 
other  bill  of  lading,  but  among  the  admiralty 
papers  there  appeared,  besides  the  bills  of  lad- 
ing and  invoice  already  mentioned,  another 
bill  of  lading,  and  an  invoice  corresponding 
with  it,  in  the  name  of  Benjamin  F.  Haskin. 
This  bill  of  lading  in  fa\ror  of  Haskin  agreed, 
in  all  respects,  with  the  one  in  favor  of  the 
plaintiff,  which  was  not  accompanied  with  an 
invoice. 

3.  An  affidavit  made  by  Haskin,  on  the  1st 
of  March,  1798,  before  a  notary  public,  that 

345 


338 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1800 


he  was  the  sole  owner  of  the  goods  con- 
tained in  the  last-mentioned  invoice,  and  in 
339*J  *the  bill  of  lading  in  his  favor,  and 
that  no  citizen  or  subject  of  the  present  bellig- 
erent powers  had  any  part  or  portion  therein, 
directly  or  indirectly. 

4.  A  manifest  of  the  cargo  signed  by  the 
captain,  which  corresponded  with  the  goods 
specified  in  the  two  invoices  above  mentioned, 
and  sworn  to  before  a  iiOtary  public  in  New 
York. 

5  A  sea-letter,  granted  by  the  President  of  the 
United  States  to  the  master  of  the  Minerva,  in 
the  English,  French,  Spanish,  and  Dutch  lan- 
guages, specifying  the  voyage,  and  the  arti- 
cles on  board,  with  the  usual  certificates  of 
the  consuls  of  those  nations. 

6.  Another  bill   of  lading  and  invoice  of 
goods,  in  favor  of  Jacop  Fintado,  a  natural- 
ized citizen  of  the  United  States. 

7.  A  clearance  from  the  custom-house  at 
New  York,  dated  the  28th  of  February,  1798. 

8.  A  passport  for  the  Minerva  as  an  Ameri- 
can ship,  signed  by  the  President,  and  coun- 
tersigned by  the  Secretary  of  State,  and  the 
collector  of  the  customs  of  New  York. 

9.  A  Roll  of  the  crew,  by  which  it  appeared 
that  all  the  crew,  consisting  of  thirteen,  were 
native   Americans,   excepting  three;    one    of 
whom  was  a  Prussian,  another  a  Frenchman, 
and  a  third  a  Chinese.     This  roll  was  sworn 
to  by  the  master,  before  a  notary  public,  stat- 
ing that  all  the  crew  were  native  or  natural- 
ized citizens  of  the  United  States;  but  in  the 
roll  it  was  also  stated  that  one  of  the  crew 
was  a  subject  of  the  King  of  Prussia;  that  an- 
other was  a  subject  of  the  republic  of  France, 
and  a  third  a  subject  of  the  emperor  of  China. 
This  roll  was  duly  attested  by  the  collector  of 
New  York,  and  certified  by  the  French  and 
Spanish  consuls. 

10.  The  depositions  of  the  master,  and  the 
first  and  second  mates;  by  which  it  appeared 
that  the  Minerva,  when  taken,  had  no  colors 
but   American,  and  that  she  made  no  resist- 
ance. 

By  the  master's  deposition,  it  appeared 
that  he  signed  bills  of  lading  for  the  cargo 
34O*]  of  the  ship,  as  the  *property  of 
Haskin  and  the  plaintiff.  That  all  the  bills  of 
lading  were  presented  to  him  by  the  plaint- 
iff, which  he  signed  and  delivered  to  him 
again. 


*.    B.    Livingston    and    Burr    for    the 
plaintiff. 

Me.$»rs.  Troup  and  Harison  for  the  defend- 
ant. 

Pei-  Curiam.  In  the  present  case  there  is  no 
warranty,  either  express  or  implied,  nor  any 
representation  that  the  ship  or  goods  were 
neutral  property;  and  besides  the  usual  risks 
inserted  in  printed  policies,  this  policy  de- 
clares that  the  insurance  is  to  be  "against  all 
risks."  This  expression  is  vague  and  indefinite, 
but  if  we  allow  it  any  force,  it  must  be  consid 
ered  as  creating  a  special  insurance,  and  extend- 
ing to  other  risks  than  are  usually  contemplated. 
We  are  inclined  to  give  it  a  liberal  construc- 
tion, and  apply  it  to  all  losses,  except  such  as 
arise  from  the  fraud  of  the  insured.  This  lim- 
itation is  necessarv  and  proper,  for  it  cannot 
346 


be  supposed  that  the  plaintiff  was  to  be  in- 
sured against  his  own  fraudulent  acts.  The 
terms  used  are  sufficiently  broad  to  compre- 
hend every  other  loss.  With  this  construc- 
tion, whatever  may  be  the  effect  of  the  sentence  • 
of  a  fereign  court  of  admirality  in  ordinary 
cases,  it  will  not  interfere  with  the  plaintiff's 
right  of  recovery  in  this. 

Much  reliance  was  placed  by  the  defendant's 
counsel  on  the  extra  bill  of  lading,  annexed  to 
the  plaintiff's  affidavit,  and  found  among  the 
ship's  papers,  which,  it  was  contended,  was 
false  and  colorable,  and  tended  to  enhance 
the  risk.  We  think  it  could  not  have  that  ef- 
fect. On  the  face  of  the  papers,  it  was  plain- 
ly a  mistake,  and  the  other  documents  accom- 
panying the  property  were  calculated  to  lessen 
the  risk,  and  preclude  every  idea  of  intention- 
al fraud. 

We  are,  therefore,  of  opinion  that  the 
plaintiff  is  entitled  to  recover. 

Judgment  for  tlie  plaintiff. 

Cited— 2  Johns.  Cas.,  78, 150,  480 ;  2  Caines*  Gas.,  221 ; 
7  Johns.,  46 ;  see  2  Johns.  Cas.,  480. 


*GOIX  v.  LOW. 


[*341 


1.  Marine  Insurance — Warranty — "American 
Ship."  2.  Prize — Sentence  of  Foreign  Court. 
3.  Evidence.  4.  Proper  Documents — Devia- 
tion. 

If  a  vessel  is  described  in  a  policy  as  an  "American 
ship,"  it  is  an  implied  warranty  that  she  is  Ameri- 
can. A  sentence  of  a  foreign  court  of  admiralty 
condemning1  a  vessel  as  good  and  lawful  prize,  with- 
out assigning  any  reason,  is  to  be  considered  as 
proceeding  on  the  ground  of  its  being  enemy's 
property.  Such  a  sentence  is  conclusive  evidence 
of  the  breach  of  warranty  by  the  assured.  (See 
ante,  p.  16,  and  contra,  Vandenheuvel  v.  United  In- 
surance Company,  in  error,  post.)  Qucere,  If  the 
negligence  or  the  assured  in  not  having  proper  doc- 
uments on  board,  or  having  contradictory  papers, 
in  consequence  of  which  the  ship  is  taken  out  of 
her  course,  amounts  to  a  deviation  ? 

Citations— 1  Park, 362 ;  Ante,  16 ;  Doug.,  10 ;  7  Term 
R.,  705 ;  Str.,  733 ;  2  Wood.,  455,  7  TermR.,  523 ;  2  Ersk., 
7a5;  Kaimcs  Eq.,  366;  Grotius,  1.  3,  c.  2,  s.  5;  Vattel, 
1.  3,  84-85;  Martens,  p.  104,  105;  Doug.,  1;  Doug., 
Addenda;  8  Mod.,  311;  Park.,  SJ8,  360;  Park.,  195; 
Park.,  365 ;  3  Johns.  Cas.,  337 ;  Cowp.,  785 ;  Park.,  322 ; 
Park.,  177 ;  Doug.,  575 ;  7  Term  R.,  523. 

THIS  was  an  action  on  a  policv  of  insurance 
"on  the  American  ship  Minerva,"  on  a 
voyage  from  New  York  to  Guadaloupe.  The 
cause  was  tried  at  the  last  sittings  in  New 
York,  when  a  verdict  was  found  for  the 
plaintiff,  subject  to  the  opinion  of  the  court, 
on  a  case  made  between  the  parties,  with  lib- 
erty for  either  party  to  turn  the  same  into  a 
special  verdict. 

The  policy  was  dated  the  10th  of  February, 
1798,  and  subscribed  by  the  defendant,  as 
president  of  the  United  Insurance  Company,  for 
$10,000.  The  ship  was  valued  at  $13,000. 
The  policy  was  in  the  usual  printed  form. 

The  other  material  facts  in  the  case  were  the 
same  as  stated  in  the  preceeding  case  of  Goix 
v.  Knox. 

JOHNSON'S  CASES,  1. 


1800 


Goix  v.  Low. 


341 


Messrs.  B.  Livingston  and  Burr  for  the 
plaintiff. 

Messrs.  Troup  and  Hanson  for  the  defen- 
dant. 

RADCLIFF,  J.  This  is  the  case  of  a  policy 
on  the  ship  Minerva,  on  a  voyage  from  New 
York  to  Guadaloupe.  The  risks  specified  in 
the  policy  are  of  the  usual  kind.  There  is  no 
express  warranty  that  the  ship  was  neutral; 
but  she  is  stated  in  the  policy  to  be  an  Ameri- 
can ship.  She  was  captured  on  the  voyage 
insured,  by  a  British  privateer,  carried  to 
the  island  of  Antigua,  and  there  libelled  and 
condemned  in  the  Court  of  Vice-Admiralty, 
as  a  lawful  prize,  no  reason  for  the  condem- 
nation being  stated  in  the  sentence.  It  ap- 
pears that  the  papers  of  the  ship  were  regular, 
and  such  as  were  requisite  to  entitle  her  to  the 
privileges  of  an  American  ship;  that  the 
plaintiff  was  the  owner;  that  he  is  a  native  of 
one  of  the  Swiss  cantons,  and  that,  on  the  3d 
August,  1796,  he  was  naturalized  as  an  Ameri- 
can citizen.  He  has  abandoned  to  the  under- 
writers, and  claims  a  total  loss. 

It  does  not  appear  on  what  particular 
ground,  or  on  what  evidence  the  Court  of  Ad- 
miralty proceeded.  The  ship's  papers  were  in 
possession  of  that  court;  but  if  nothing  else 
appeared,  there  could  exist  no  circumstance 
342*]*of  fraud  or  suspicion,  unless  the  irreg- 
ularity of  one  of  the  papers,  I  mean  the  su- 
pernumerary bill  of  lading,  be  considered  as 
such.  If  it  rested  on  that  alone  (which  proba- 
bly arose  from  inadvertence  or  mistake),  I 
should  think  the  condemnation  unjust,  and 
that  the  insured,  if  at  liberty  to  examine  it, 
ought  not  to  be  affected  by  it.  The  case  still 
presents  three  questions  to  be  determined: 

1.  Whether  the  expression  contained  in  the 
policy,  naming  her  the  American  ship  Miner- 
va,   amounts  to  an  implied  warranty  of  the 
fact. 

2.  Whether  the  sentence  of  the  Court  of 
Admiralty  is  to  be  considered  as   proceeding 
on  the  ground  of  her  not  being  neutral  prop- 
erty. 

3.  Whether,  proceeding  on  that  ground,  the 
sentence  is  to  be  deemed  conclusive  against 
the  plaintiff. 

On  the  first  point,  I  can  entertain  no  doubt. 
It  was  evidently  material  to  risk,  whether  the 
ship  was  American,  and,  therefore,  a  neutral 
ship;  and  a  representation  of  that  fact,  wheth- 
er in  the  policy  or  otherwise,  if  untrue,  must 
discharge  the  underwriter.  It  is  a  fact  resting 
in  the  knowledge  of  the  insured,  for  which  he 
ought  to  be  responsible.  (Saloucciv.  Woodmass, 
Park,  362.)  Being  inserted  in  the  policy,  it 
becomes  a  part  of  the  written  agreement,  and 
effectually  concludes  him  if  he  cannot  main- 
tain it. 

As  to  the  second  question,  I  think  the  sen- 
tence is  to  be  considered  as  proceeding  on  the 
want  of  neutrality.  Its  silence  will  not  author- 
ize a  different  conclusion.  Enemy  property 
forms  the  general  ground  for  condemnation. 
If  founded  on  a  special  or  different  ground,  it 
would  probably  have  been  stated,  or  might  be 
made  to  appear  from  the  libel,  or  the  proceed- 
ings upon  it,  to  which  it  must  have  referred. 
No  other  being  shown,  an  extraordinary 
cause  of  condemnation  cannot  be  presximed. 
JOHNSON'S  CASES,  1. 


This  interpretation  of  silent  sentences  was 
adopted  in  the  case  of  Saloucei  v.  Woodmass, 
and  appears  to  be  natural  and  just. 

The  third  question  has  already  been  deter- 
mined against  the  insured,  in  the  case  of  Lud- 
low  v.  Dale  (ante,  p.  16),  and  I  consider  it  un- 
necessary to  review  that  decision. 

*I  am  therefore  of  opinion  that  the  [*343 
plaintiff  ought  not  to  recover. 

KENT,  J.  The  ship  insured  in  this  case  was 
described  in  the  policy  as  the  American  ship 
Minerva.  She  was  captured  in  the  prosecu- 
tion of  her  voyage  by  a  British  ship  of  war, 
and  carried  into  the  island  of  Antigua,  and 
condemned  as  lawful  prize. 

Several  questions  arise  upon  this  case. 

1.  Whether  the  above  description  amounts 
to  a  warranty  that  the  ship  was  American 
property. 

2.  If  it  does,  then  whether  the  condemna- 
tion is  evidence  of  a  breach  of  it. 

3.  If  it  does  not,  then  whether  the  facts  in 
the  case  do  not  prove  a  deviation  to  have  taken 
place  in  the  course  of  the  voyage. 

There  are  no  precise  words  which  have 
been  held  requisite  to  create  a  warranty.  It 
is  a  written  declaration  upon  the  face  of  the 
policy,  of  a  fact  in  respect  to  the  subject  in- 
sured. A  naked  insertion  in  the  margin  of  a 
policy  of  these  words,  "thirty  seamen  besides 
passengers,"  has  been  adjudged  to  amount  to  a 
warranty.  (Doug.,  10.)  If  the  word  "Amer- 
ican" had  been  written  in  the  margin  of  the 
policy  against  the  name  of  the  ship,  it  must 
have  been  equally  operative  with  the  words 
"thirty  seamen."  They  are  equally  allega- 
tions of  a  fact  relative  to  the  subject  which  the 
insured  ought  to  be  held  equally  to  prove. 
The  word  "American"  cannot  have  less  force 
for  being  incorporated  with  the  description  of 
the  ship  in  the  body  of  the  policy,  than  if  it 
stood  solitarily  in  the  margin.  Allegations  of 
this  kind  may,  perhaps,  attract  more  or  less 
attention  according  to  their  position  in  the 
instrument.  But  in  the  construction  of  writ- 
ten contracts  we  are  to  presume  that  the  atten- 
tion of  the  parties  has  been  alive  and  active 
throughout  the  whole  instrument,  and  that  no 
averments  are  any  where  inserted  without  mean- 
ing and  without  use. 

The  ship  was  captured  on  the  high  seas, 
and  condemned  as  lawful  prize.  She  could 
not  have  been  lawful  prize,  except  upon  the 
ground  that  she  was  not  an  American  ship, 
or  that  she  had  in  some  manner  forfeited  her 
immunities  *as  such,  and  in  either  [*344 
case,  if  such  was  the  fact,  the  warranty  was 
not  fulfilled.  (7  Term  Rep.,  705.)  And  that 
this  must  have  been  the  case,  I  consider  as 
conclusively  proved  by  the  sentence  of  con- 
demnation in  the  Court  of  Vice-Admiralty. 
The  conclusive  effect  of  such  sentences  was 
admitted  and  declared  by  this  court  in  the 
case  of  Ludlow  v.  Dale,  in  the  January  Term, 
1799  (ante,  p.  16),  and  although  the  merits  of 
the  question  there  decided  have  been  permit- 
ted to  be  reconsidered  and  re-argued  in  this 
cause,  I  still  think  the  decision  to  be  sound. 
The  true  principle  of  the  law  is  that  where  a 
fact  has  been  litigated  and  decided  by  a  court 
having  jurisdiction  of  the  case,  and  has  be- 
come a  res  judicnta,  that  decision  will  con- 

347 


344 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


elude  the  parties,  and  each  of  them,  in  all 
other  courts,  and  for  this  reason,  that  the 
point  is  decided  by  a  court  of  competent  au- 
thority. 

I  cannot  believe  in  the  suggestion  made 
upon  the  argument,  and  this  principle, 
which  appears  to  be  deeply  engrafted  into 
each  of  the  systems  of  English  jurisprudence 
(Str.,  733;  2  Wood.,  455;  7  Term  Rep.,  523, 
681;  2Ersk,  Inst.,  735;  2  Kaimes' Eq.,  366), 
has,  as  it  respects  the  sentences  of  foreign 
courts,  been  moulded  and  extended  from 
reasons  of  State,  or  in  furtherence  of  their 
particular  interests  as  a  commercial  nation. 
The  dignified  character  of  their  courts  of 
justice  (I  speak  of  their  higher  courts  of  law 
and  equity),  which  have  maintained  their  in- 
tegrity, and  protected  right  to  a  degree  never 
before  witnessed  in  the  history  of  civil  society, 
is  sufficient  to  repel  the  force  of  such  an  un- 
founded insinuation.  Nor,  indeed,  is  the  doc- 
trine peculiar  to  the  English  law.  It  consti- 
tutes an  important  item  in  the  code  of  public 
law;  and  is  sanctioned  by  the  usage  and 
courtesy  of  nations.  This  leads  me  to  a  new 
and  more  interesting  view  of  the  question. 

If  the  subjects  of  one  government  be  ag- 
grieved by  unjust  judgment  in  the  courts  of 
another,  it  is  not  a  case  of  judicial  redress. 
The  party  aggrieved  ought  first  to  seek  relief 
by  appeal  to  the  courts  of  review  in  the  last 
resort,  and  if  justice  be  still  denied  him,  he 
must  then  lay  his  case  before  the  sovereign  of 
345*]  his  own  country.  The  injury  *be- 
comes  a  concern  of  his  government,  and  a 
ground  of  national  interference,  and  eventual 
reprisal.  But  the  case  of  public  interference, 
as  Grotius  observes  (1.  3,  c.  2,  sec.  5),  must  be 
m  re  minime  dubia  et  plane  contra  jus ;  for  in 
all  dubious  cases  the  presumption  is  in  favor 
of  the  judgment.  Gronovius  (Ibid,)  confirms 
this  doctrine,  and  observes  that  where  there  is 
not  manifest  injustice,  the  judges  are  to  be  re- 
garded as  honest  men,  and  their  judgments  as 
truth,  ubi  non  est  manifesto,  injustitia  judices 
habentur  pro  bonis  viris,  ut  judicatum  pro  veri- 
tate.  The  same  doctrine  is  advanced  by 
Vattel  (1.  3,  sec.  84,  85),  and  Martens  (pp.  104, 
105),  and  by  the  English  judges,  in  their 
answer  to  the  memorial  of  Prussia;  they  all 
express  themselves  in  a  very  emphatic  man- 
ner as  to  the  definitiveness  of  the  decisions  of 
foreign  tribunals  having  competent  jurisdic- 
tion. An  important  distinction  prevails  upon 
this  subject  both  in  Great  Britain  and  upon 
the  Continent,  and  it  ought  to  be  kept  in  view 
in  all  the  discussions  upon  the  question.  No 
sovereign  is  obliged  to  execute  within  his  do- 
minions a  sentence  rendered  out  of  it,  and  if 
such  execution  be  sought  by  a  suit  upon  the 
judgment,  or  otherwise,  he  is  then  at  liberty 
in  his  courts  of  justice  to  examine  into  the 
merits  of  such  judgment.  And  yet  in  the 
case  of  a  suit  to  obtain  the  effect  of  a  foreign 
judgment,  the  rule  is  that  the  judgment  shall 
be  presumed  right,  and  it  shali  lay  with  the 
opposite  party  to  show  cause  against  it.  But 
if  a  judgment  has  been  pronounced  and  carried 
into  effect  by  a  competent  forum,  no  foreign 
court  will  admit  of  a  fresh  litigation,  at  the 
instance  of  either  party,  upon  a  fact  once  in 
issue  and  decided.  The  plea  of  the  foreign 
judgment  will  be  a  bar  to  the  second  action. 
348 


The  action  is  excluded  by  what  is  termed  by 
civilians  exceptio  rei  judicatce.  (Martens'  Law 
of  Nations,  105 ;  Ersk.  &  Kaimes,  ut  supra ; 
Doug.  1 ;  and  Galbraith  v.  Neville,  cited  in  ad- 
denda to  Doug. ) 

In  the  present  case,  the  question  now  raised, 
whether  the  Minerva  was  an  American  ship, 
was  the  very  question  raised  *and  [  *346 
decided  against  the  present  plaintiff,  by  the 
court  at  Antigua  He  was  a  party  to  that  suit, 
and  had,  by  himself,  or  his  agent,  due  notice 
and  due  opportunity  to  make  his  defense. 
That  court  had  the  competent  jurisdiction  to 
try  the  question,  and  the  party  is  bound  by  its 
sentence,  with  a  reservation  of  his  right  of  ap- 
peal. If  he  does  not  appeal,  he  must  be  con- 
sidered as  acquiescing  in  the  justice  of  that 
sentence.  We  are  to  regard  it  as  the  evidence 
of  truth,  res  judicata  pro  veritate  accipitur. 
The  peace  of  society,  the  interests  of  national 
intercourse,  mutual  urbanity,  and  the  neces- 
sity that  litigations  should  cease,  renders  the 
rule  as  salutary  as  it  is  extensive. 

But  if  the  court  were  now  to  depart  from 
its  former  decision  on  the  question,  there  is 
another  ground  to  be  taken  in  this  case,  and 
which  I  apprehend  to  be  sufficient  to  prevent 
a  recovery.  The  ship  had  contradictory 
papers  on  board,  and  that  fact  was  a  sufficient 
cause  for  bringing  the  -vessel  in  for  adjudica- 
tion. These  contradictory  and  colorable 
papers,  I  admit  and  believe,  originated  in  the 
mistake  of  the  plaintiff;  but  insurers  are  not 
liable  for  losses  arising  from  mistakes  of  the 
owner  or  master.  A  laches  of  the  plaintiff,  if 
it  be  the  cause  of  a  seizure,  will  avoid  the  pol- 
icy, as  for  a  deviation.  These  papers,  I  also 
admit,  were  susceptible  of  explanation;  but  in 
the  moment  and  hurry  of  detention  and  in- 
spection on  the  high  seas,  dum  fervet  opux, 
there  is  not  leisure  for  an  accurate  examina- 
tion of  contradictory  papers,  and  the  belliger- 
ent is  perfectly  justifiable  in  sending  in  the 
vessel  for  a  judicial  inquiry.  This  departure 
of  the  vessel  from  her  regular  course  is  not  a 
justifiable  deviation,  provided  the  via  majm:, 
by  which  it  was  produced,  proceeded  from 
the  neglect  of  the  owner.  And  as  in  this  case, 
the  contradictory  papers  which  justified  the 
seizure,  proceeded  from  the  want  of  due  atten- 
tion in  the  plaintiff,  he  must  be  considered  as 
the  cause  of  that  seizure  and  deviation,  and 
he  has  thereby  discharged  the  insurer. 

I  am  accordingly  of  opinion  that  the  de- 
fendant is  entitled  to  judgment. 

*BEXSON,  J.,  concurred  in  theopin-  [  *347 
ion  delivered  by  Kent,  J.,  on  the  last  point, 
and  thai  the  defendant  was,  therefore,  entitled 
to  judgment.  He  gave  no  opinion  on  the 
other  points. 

LEWIS,  J.  Two  questions  arise  in  this 
cause. 

1.  Whether  the  term  "  American  ship,"  ap- 
plied to  the  Minerva  in  the  policy  of  insur- 
ance, amounts  to  a  warranty  ? 

2.  If  it  does,  is  her  condemnation,  in  a  prize 
court  of  a  belligerent  power,  conclusive  on  the 
question  of  neutrality? 

All  contracts  are  to  be  construed  according 

to  the  intent  of  the  contracting  parties,  so  as 

to  give  complete  effect  to  such  intent,  if  it  may 

be  done,    consistent  with  the  rules  of  law. 

JOHNSON'S  CASES,  1. 


1800 


Goix  v.  Low. 


347 


The  contract  of  insurance  is  to  be  most  liber- 
ally expounded  for  the  attainment  of  this  end. 
The  first  inquiry  then  is,  whether  the  words 
"American  ship"  amount  to  a  warranty 
within  the  meaning  and  intention  of  the  par- 
ties. To  constiute  a  warranty,  the  stipulation 
must  be  on  the  face  of  the  policy,  but  it  does 
not  thence  result  that  every  assertion  there 
found  is  a  warranty.  There  appears  to  me  a 
clear  distinction  between  terms  intending  to 
designate  with  precision  the  subject  matter  of 
the  contract  and  those  which  form  an  express 
warranty  or  condition.  The  one  constitutes  a 
substantive  ground  of  insurance,  the  other  is 
a  mere  quality  of  the  subject,  inserted  for  the 
sole  purpose  of  identification.  Their  effects, 
also,  are  variant;  for  while  the  one,  perhaps, 
ought  to  be  construed  most  rigorously  against 
the  party  bound  by  it,  and,  therefore,  to  be 
true,  in  the  most  extensive  latitude  in  which 
the  contract  can  be  affected  by  it,  it  shall,  in 
regard  to  the  other,  be  taken  to  be  true,  in  its 
most  simple  and  common  sense.  Thus,  where 
a  ship  is  expressly  warranted  American,  the 
construction  shall  be  that  she  is  warranted  as 
entitled  to  all  the  privileges  of  neutrality. 
But  where,  in  the  ordinary  part  of  the  policy, 
among  her  distinguishing  qualities,  she  is  styled 
American,  if  she  is  so,  in  the  ordinary  accepta- 
tion of  the  term,  and  in  common  understand- 
348*]  ing,  *it  shall  suffice.  This  construc- 
tion is  not  repugnant  to  the  rules  of  law,  and 
it  only  remains  to  ascertain  the  intent  and 
meaning  of  the  parties,  which,  in  every  case, 
must  be  drawn  from  the  particular  circum- 
stances. In  the  present  case,  we  find  the  ex- 
pression connected  with,  and  standing  among 
the  descriptive  terms  of  the  subject.  It  is  not 
inserted  in  the  mode  in  which  the  defendants 
are  accustomed  to  introduce  warranties.  We 
are  to  suppose  that  it  produced  no  deduction 
from  the  ordinary  rate  of  insurance;  for  if  it 
had,  the  underwriters  would  undoubtedly  have 
shown  it,  and  this  would  have  been  conclusive 
as  to  the  intent.  It  may  be  likened  to  the 
case  of  estoppels :  a  particular  recital  or  aver- 
ment shall  estop,  a  general  recital  shall  not, 
as  in  the  case  of  Skipwith  v.  Green  (8  Mod., 
311 ),  calling  lands  meadow,  in  a  lease,  shall 
not  estop,  but  the  party  may  show  them  to 
be  arable.  In  the  policies  on  the  goods,  also,' 
which  are  to  a  greater  value  than  that  on  the 
ship,  there  is  no  warranty,  which  is  an  addi- 
tional circumstance  explanatory  of  the  inten- 
tion of  the  parties. 

The  commercial  law  of  most  nations  is  ad- 
justed to  the  principles  of  their  peculiar  policy. 
America, growing  into  commercial  importance, 
should  not  be  inattentive  to  this  fact.  And  as 
the  business  of  insurance  will  soon  become  to 
her  an  important  commercial  object  by  reason 
of  foreigners  procuring  policies  to  be  effected 
here,  it  is  of  the  highest  importance  to  preserve 
the  strictest  good  faith,  to  show  as  little  dispo- 
sition to  cavil  and  to  raise  as  few  difficulties 
in  the  adjustment  of  these  contracts,  as  we  feel 
ourselves  bound  to  do  in  our  other  foreign  en- 
gagements. I  can  find  no  British  law  which 
impugns  the  distinction  I  have  stated ;  the  case 
of  Bean  and  Stupart  (Doug.,  10)  is  by  no 
means  against  it.  For  the  insertion  there  in 
the  margin,  purported  to  be  a  warranty,  from 
the  very  manner  of  its  introduction. 
JOHNSON'S  CASES,  1. 


I  might  rest  my  opinion  on  this  single  point, 
but  as  the  other  is  of  great  importance,  and  as 
it  is  stipulated  that  either  party  may  turn  the 
case  into  a  special  verdict,  it  *may  be  [  *349 
desirable  that  an  opinion  should  also  be  ex- 
pressed on  the  other  question. 

How  far  the  sentence  of  a  foreign  court 
shall  be  conclusive  upon  the  parties  to  a  con- 
tract of  insurance,  in  deciding  a  question  of 
neutral  property,  is  an  interesting  inquiry. 
The  British  adjudications  do  not,  in  my  opin- 
ion, place  the  question  out  of  doubt.  In  Bar- 
zittay  v.  Lewis  (Park,  360),  Lord  Mansfield  ob- 
serves that  no  nation  is  bound  by  the  particu- 
lar regulations  of  belligerent  powers,  unless 
they  are  agreeable  to  the  general  laws  of 
nations,  but  that  all  third  persons  and  mer- 
cantile people  are,  and  that  the  assured,  by  his 
warranty,  takes  the  knowledge  of  the  circum- 
stances on  himself.  In  Easter  term  following, 
in  the  case  of  Mayne  v.  Walter  (Park,  195),  he 
declares  a  particular  ordinance  of  France  arbi- 
trary and  oppressive,  contrary  to  the  laws  of 
nations,  and  as  both  parties  were  ignorant  of 
it,  the  underwriter  must  run  all  risks.  (Park, 
365.)  In  Saloucciv.  Johnson,  Mr.  Justice  Bul- 
ler  declares  that  a  ship  is  only  bound  to  take 
notice  of  the  laws  of  the  country  she  sails 
from,  and  of  that  to  which  she  sails,  but  not 
of  the  particular  ordinances  of  other  powers. 
These  opinions  are,  to  me,  contradictory  and 
irreconcilable,  and  nothing  conclusive  can  be 
inferred  from  them.  If  we  resort  to  writers 
on  the  law  of  nations,  the  only  authority 
which  I  can  find,  notwithstanding  the  refer- 
ences are  many,  is  that  of  Grotius  (B.  3,  ch. 
2,  sec.  5),  and  his  commentators,  and  it  ap- 
pears to  me  rather  to  oppose  than  to  affirm  the 
doctrine.  His  words  are,  "  That  in  doubtful 
cases  the  presumption  is  in  favor  of  the  judges 
established  by  public  authority;  but  in  a  case 
admitting  of  no  doubt,  where  sentence  shall 
pass  plainly  against  right,  it  is  a  just  cause  of 
reprisal,  for  that  the  authority  of  the  judge  is 
not  of  the  same  force  against  strangers  as  sub- 
jects." 

Park,  in  his  comment  on  the  cases  above 
cited,  observes  that  if  the  sentence  be  so  am- 
biguous and  doubtful  that  1t  is  difficult,  to  say 
on  what  ground  the  decision  turned;  or  if 
there  be  color  to  suppose  that  the  court 
abroad  proceeded  upon  matter  not  relevant  to 
the  point  in  issue,  *evidence  will  be  [*35O 
allowed  in  order  to  explain;  and  if  the  sen- 
tence on  the  face  of  it  be  manifestly  unjust  or 
founded  on  ordinances  which  form  no  part  of 
the  law  of  nations,  it  is  a  risk  within  the  poli- 
cy. With  these  qualifications,  the  rule  that 
where  the  foreign  sentence  appears  to  have 
proceeded  on  the  point  in  issue  between  the 
parties,  or  is  general,  without  any  special 
ground  being  stated,  it  shall  conclude  the 
question  of  neutrality,  though  not  perfectly 
unobjectionable,  is  less  liable  to  exception. 

To  apply  it,  thus  qualified,  to  the  case 
before  us.  "  No  reason  is  here  assigned  in  the 
sentence  for  the  condemnation.  But  looking 
into  the  testimony  on  which  the  sentence  is 
grounded,  we  find  abundant  reason  to  sup- 
pose, nay,  I  may  say  conclusive  evidence,  that 
the  foreign  tribunal  proceeded  on  matter  not 
relevant  to  the  question  of  neutrality.  If  we 
are  to  respect  these  foreign  adjudications,  and 

349 


350 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


to  presume  that  they  are  agreeable  to  the  jus 
gentium;  if  we  are  to  believe  that  an  American 
citizen,  in  a  British  provincial  court  of  vice- 
admiralty,  in  a  controversy  with  a  British 
subject,  where  too  often  the  judge  is  a  party 
in  the  cause,  will  meet  with  impartial  justice, 
we  must  suppose  that  our  laws  and  our  regu- 
lations will  be  also  there  respected.  Accord- 
ing to  the  laws  of  the  United  States,  this  ship 
was,  to  every  intent,  American,  and  the  evi- 
dence of  her  being  so  was  fully  before  the 
Court  of  Vice- Admiralty.  To  that  court  were 
produced  her  register,  which  was  American, 
and  in  the  name  of  the  plaintiff  only;  a  sea- 
letter,  granted  by  the  President  of  the  United 
States,  accompanied  with  certificates  from  the 
Dutch,  Spanish,  French  and  English  consuls, 
declaratory  of  the  voyage,  and  the  articles  on 
board;  a  clearance  from  the  custom-house  at 
New  York;  a  passport,  declaring  her  Ameri- 
can, signed  by  the  President  of  the  United 
States,  and  countersigned  by  the  Secretary  of 
State  and  the  collector  of  the  customs  at  New 
York;  a  roll  of  the  crew,  from  which  it  ap- 
peared that  all  except  three  were  native  Amer- 
icans: and  lastly,  the  testimony  of  the  master 
and  mates,  that  she  had  none  but  American 
colors.  Can  we  suppose  that  a  judge  was  to 
351*]  *be  found  in  any  civilized  country,  who 
in  the  face  of  such  testimony,  uncontradicted, 
would  say  this  was  enemy's  property?  In 
justice  to  a  judge  who  could  pronounce  such  a 
decision,  we  must  conclude  that  his  opinion 
was  founded  on  the  extra  bill  of  lading  men- 
tioned in  the  other  cause  of  Gotx  v.  Knox,  to 
which  we  are  referred,  and,  therefore,  the 
question  of  neutrality  is  not  affected  by  it.  It 
is  evident  that  the  annexation  of  this  bill  to  the 
affidavit  and  invoice  was  the  effect  of  mistake, 
and,  considered  under  all  its  circumstances,  by 
no  means  fell  under  the  description  of  false  or 
colorable  papers.  But  had  the  fact  been 
otherwise,  as  they  respected  a  portion  of  the 
cargo  only,  amounting  to  little  more  than  half 
its  value,  there  is  no  principle  of  the  law  of 
nations,  or  of  the  maritime  law  of  Great 
Britain,  by  which  such  a  circumstance  can  be 
extended  to  affect  the  ship,  so  as  to  render  her 
a  lawful  prize.  The  Court  of  Vice-Admiralty, 
therefore,  proceeding  on  this  ground,  has 
manifestly  erred,  and  such  error  is  a  risk  with- 
in the  policy. 

My  opinion,  therefore,  is  that  thepostea  must 
be  delivered  to  the  plaintiff. 

LANSING,  C7t.  J.  Two  points  have  been 
presented  for  the  decision  of  the  court. 

1.  Whether  the  description  contained  in  the 
policy,  "  the  American  ship  called  the  Miner- 
va," is,  in  construction  of  law,  a  warranty  that 
she  was  American  property. 

2.  If  it  is  a  warranty,  whether  proof  is  now 
admissible,  notwithstanding  the  condemnation, 
that  the  vessel  was  American. 

The  description  of  the  subject  insured  is  an 
essential  part  of  the  policy.  An  untrue  de- 
scription may  tend  to  mislead  and  induce  an 
unfounded  estimate  of  the  risk,  intended  to  be 
insured  against.  The  notes  in  the  margins  of 
the  policies  in  the  case  of  Pawson  v.  Wateon 
(Cowp.,  785),  and  Bean  v.  Slupant  (Park, 
322),  were  construed  warranties,  solely  on  the 
ground  of  their  being  considered  part  of  the 
850 


policies.  It  would  seem  that  it  is  to  be  in- 
ferred from  those  cases  that  every  description 
of  the  subject  insured  must  be  strictly  and 
*literally  true,  for  so  is  the  doctrine  of  [*352 
warranty,  and  that,  if  it  is  not  perfectly  cor- 
rect, the  policy,  as  in  the  case  of  all  other 
warranties,  is  void  ah  inttio. 

The  construction  that  every  description  im- 
porting a  designation  of  the  condition  of  the 
thing  insured,  as  distinguished  from  and  added 
to  its  mere  identification,  should  be  deemed  a 
warranty,  would,  perhaps,  be  more  conforma- 
ble to  the  general  scope  of  the  authorities  on 
this  subject,  though  I  have  not  been  able  to 
discover  any  instances  in  which  that  distinc- 
tion has  been  specifically  taken.  But  whether 
the  word  "  American"  is  classed  among  the 
phrases  constituting  a  warranty,  or  its  insertion 
is  to  be  considered  as  the  mere  effect  of  repre- 
sentation, will  not  vary  the  result  in  this  case. 
A  rigorous  attention  to  the  purest  rules  of  good 
faith  is  exacted  from  all  the  parties  to  a  con- 
tract of  insurance;  but  warranty  is  tested  by 
the  positive  stipulation  of  the  party.  The 
insured  stipulates  that  a  fact  exists;  that  a 
certain  thing  is  done,  and  if  he  fails  in  main- 
taining his  warranty,  the  policy  is  void;  but  if 
a  representation  is  substantially  true,  it  is  held 
to  be  sufficient. 

If  the  word  "  American  "  has  been  inserted 
from  the  representation  of  the  insured,  and  so 
I  think  must  be  the  construction,  and  the  prop- 
erty is  not  so,  the  defendant  has  been  misled; 
he  has  estimated  his  risk,  and,  of  consequence, 
received  a  premium,  on  the  circumstance  of 
its  being  American  property,  as  contradistin- 
guished from  that  of  the  citizens  or  subjects  of 
the  belligerent,  or  of  other  powers  who  remain 
neutral.  Independent  of  this  representation, 
the  risk  would  probably  have  been  estimated  as 
arising  from  the  greatest  portion  of  it  which 
could  have  attached  to  the  ship  wherever  the 
property  might  be  vested;  as  if  no  disclosure 
had  been  made  of  its  precise  condition,  it  might 
have  been  the  property  of  a  Spaniard,  an 
Englishman,  or  a  Frenchman,  and  subject  to 
all  the  risks  to  which  that  condition  exposed 
it,  as  the  property  of  belligerents.  I  take  it, 
therefore,  without  determining  or  giving  my 
opinion  whether  this  description  constituted  a 
warranty,  that  if  it  should  appear  that  the 
property  of  the  ship  *was  not  American  [*353 
but  the  property  of  belligerents,  that  the 
plaintiff  ought  not  to  recover. 

But  it  is  insisted  that  the  case  of  Lucttow  v. 
Dale  put  the  second  question  at  rest,  and  that 
the  sentence  must  preclude  the  plaintiff  from 
proving  that  the  property  of  the  ship  was  as 
described  in  the  policy.  It  is  not  a  novel 
doctrine  that  the  sentence  of  a  court  of  com- 
petent jurisdiction,  deciding  on  the  subject  in 
controversy,  shall  conclude  on  every  point 
directly  tried  in  the  cause.  As  applied  to  this 
case,  it  is  not  necessary  to  resort  to  the  fiction 
that  all  the  world  are  parties  to  an  admiralty 
cause.  The  insured  was  emphatically  a  party. 
If  he  has  entered  into  a  warranty  that  his  ship 
is  neutral,  or  represented  her  to  be  so,  it  is 
peculiarly  his  duty  to  vindicate  his  allegation 
before  a  tribunal,  in  which  it  is  a  precise  ob- 
ject of  inquiry,  and  which  is  competent  to  de- 
cide upon  it.  He  has  in  effect  exempted  the 
i  risks  attached  to  the  ship  from  its  being  con- 
JOHNSON'S  CASES,  L 


1800 


Goix  v.  Low. 


353 


sidered  as  enemy's  property,  out  of  his  policy. 
If  he  has  omitted  to  furnish  the  evidence  of 
the  neutrality  of  the  ship,  which  he  was,  or 
ought  to  be  possessed  of,  it  is  to  be  attributed 
as  far  as  it  respects  the  present  parties,  ex- 
clusively to  himself;  and,  having  had  an  op- 
portunity of  vindicating  it,  he  ought  not  to  be 
permitted  to  devolve  the  consequence  of  his 
inability  or  disinclination  to  maintain  it,  on  the 
insurer.  . 

The  inference  that  the  ship  was  condemned 
as  enemy's  property  is  not,  however,  to  be 
made  from  the  express  terms  of  the  sentence, 
and  I  have  doubts  whether  a  presumption  that 
it  was  on  that  ground  can  be  rationally  made. 

I  concurred  in  the  opinion  given  in  the  case 
of  Ludlow  v.  Dale,  in  which  this  point  was 
decided;  but  upon  a  review  of  that  case  doubts 
were  excited,  which  my  reflections  have  not  re- 
moved: these  I  conceive  it  my  duty  to  express, 
and  I  am  happy  the  question  is  again  presented, 
whether  the  new  point  of  light  in  which  it  is 
placed  tends  to  correct  the  opinion  formerly 
given,  or  to  confirm  the  authority  of  that  case. 
354*]  *Several  cases  were  cited  as  sup- 
porting that  opinion. 

The  case  of  Fernandas  v.  De  Costa  (Park,  177), 
in  which  the  ship  insured  was  warranted 
Portuguese.  She  was  condemned  as  not  being, 
or  under  pretence  of  her  not  being  Portuguese. 
Lord  Mansfield  observes  that  as  the  sentence 
is  always  general,  without  expressing  the  rea- 
son of  the  condemnation,  attested  copies  of  the 
libel  ought  in  strictness  to  have  been  produced 
to  show  on  what  ground  the  ship  was  libeled; 
but  he  adds,  "as  the  plaintiff  has,  by  his 
answer  in  chancery,  admitted  that  she  was  con- 
demned as  not  being  Portuguese,  when  added 
to  the  expression  used  in  the  sentence  of  con- 
demnation that  the  ship  was  condemned  in 
the  court  of  prizes,  there  is  sufficient  evidence 
for  us  to  proceed  upon." 

Here  the  plaintiff's  answer  was  admitted  in 
aid  of  the  general  expressions  in  the  sentence, 
and  it  appeal's  that  the  court  were  inclined  to 
seek  for  the  reasons  which  dictated  it  in  the 
libel. 

The  case  of  Bernardi  v.  Motteaux  (Doug., 
575)  arose  on  an  insurance  on  freight  and  goods, 
upon  a  ship  warranted  neutral,  and  the  prop- 
erty neutral.  It  appeared  that  the  ship  was 
captured  by  a  French  frigate;  that  the  plaintiff 
offered  to  give  evidence  at  the  trial  that  the 
ship  was  neutral,  and  that  the  papers  belong- 
ing to  it  fell  overboard  by  accident.  The 
sentence  stated  that  the  goods  going  to  an 
enemy's  country  and  the  loss  of  papers  had 
raised  suspicions,  and  that  she  had  been 
stopped,  and  it  declared  both  ship  and  cargo 
good  prize.  The  question  arose  whether  this 
sentence  was  conclusive  against  the  insurer. 
Lord  Mansfield  observes,  it  is  difficult  to  dis- 
cover what  the  ground  of  this  sentence  was. 
He  inclined  to  think  the  court  went  upon  the 
ground  of  enemy's  property,  and  considered 
the  want  of  papers  as  a  strong  presumption  of 
that  fact.  He  concluded  upon  the  whole,  that 
enough  did  not  appear  on  this  obscure  sentence 
to  ascertain  precisely  on  what  it  was  founded, 
and  some  other  method  ought  to  be  taken  to 
inquire  what  the  ground  of  it  was.  In  this 
opinion,  Willes,/. ,  and  Ashhurst,  J. ,  concurred. 
3oo*]  *On  the  second  argument,  Lord 
JOHNSON'S  CASES,  1. 


Mansfield  again  observes  that  without  the 
proces  verbal  the  sentence  was  equivocal.  The 
opinion  of  the  court  was  that  the  sentence  was 
ambiguous,  and,  therefore,  not  conclusive; 
and  on  that  ground  judgment  was  given  for 
the  plaintiff.  Upon  Mr.  Lee'x  urging  the  dan- 
ger of  opening  foreign  sentences,  and  "  that  in 
all  cases  of  this  sort  there  would  be  contro- 
versies about  the  ground  for  foreign  sentences," 
Lord  Mansfield  replied  ''that  this  inconven- 
ience would  be  entirely  obviated,  if  the  foreign 
courts  would  say  in  their  sentences,  '  con- 
demned as  enemy's  property.'  " 

The  proces  verbal  is  set  forth,  which  is  mere- 
ly a  history  of  the  capture  and  the  circum- 
stances attending  it,  after  which  the  sentence 
is  introduced  with  the  words  "the  premises 
considered."  It  contains  no  ground  of  ad- 
judication, and  the  court  suggest  that  the  in- 
convenience arising  from  this  circumstance 
might  be  avoided  by  stating  the  reason  of  the 
condemnation  specifically. 

The  case  of  Barzittay  v.  Lewis  (Park,  358) 
arose  on  a  policy  on  a  ship  warranted  Dutch 
property.  The  ground  of  adjudication  in  that 
case  was  pointedly  that  it  appeared  that  the 
ship  was  English  and  not  Dutch  property. 

The  case  of  Saloucci  v.  Woodmass  (Park. ,  362) 
as  stated  in  Park,  arose  upon  a  policy  of  in- 
surance on  goods  warranted  neutral,  on  board 
the  Tuscan  ship  Thetis.  The  ship  was  taken 
by  the  Spaniards,  and  condemned  as  good  and 
lawful  prize.  There  was  an  appeal, upon  which 
the  sentence  was  reversed;  and  upon  a  further 
appeal,  the  first  sentence  was  sustained.  At 
the  trial  of  the  cause,  Lord  Mansfield  was  of 
opinion  that  the  sentence  of  the  Spanish  Court 
of  Admiralty  was  conclusive  evidence  of  the 
falsehood  of  the  plaintiff's  warranty,  and  the 
plaintiff  was  nonsuited.  A  motion  was  made 
to  set  aside  the  nonsuit,  and  denied  by  the 
whole  court.  Lord  Mansfield,  in  giving  the 
opinion  of  the  court  on  this  motion,  says,  "  it 
must  be  presumed  from  the  condemnation,  as. 
no  other  cause  appears,  that  it  proceeded  on 
the  ground  of  the  property  belonging  to  an 
enemy.  In  the  case  of  Bernardi  v.  Motteaux, 
*the  decision  of  the  court  turned  upon  [*35& 
the  particular  ground  of  the  confiscation  ap- 
pearing on  the  face  of  the  sentence,  and  that  it 
did  not  appear  to  be  on  the  ground  of  its  being^ 
enemy's  property.  This  being  so,  the  court 
gave  the  party  an  opportunity  to  show  by 
evidence  that  the  specific  ground  was  really 
the  cause  of  condemnation.  In  this  case  at 
Guildhall,  the  counsel  admitted  the  general 
rule;  but  they  said  if  a  copy  of  the  proceed- 
ings could  be  had,  a  special  cause  would  ap- 
pear. The  proceedings  are  now  come,  and 
from  them  it  appears  that  the  question  turned 
entirely  upon  the  property  of  the  goods;  for, 
in  the  second  court,  to  which  they  appealed 
from  the  sentence,  the  question  was,  whether 
the  goods  were  free:  the  decree  was  that  they 
were."  He  concludes,  "  it  is  sufficient  that  no 
special  ground  is  stated,  and  therefore  the  rule 
must  be  discharged. " 

We  find  in  these  cases,  the  court  seeking  for 
some  explanatory  circximstances  in  aid  of  the 
general  declaration  that  the  subject  captured 
was  good  and  lawful  prize,  as  a  reason  for  pre- 
suming it  to  be  grounded  on  the  fact  of  its 
being  enemy's  property.  This  consideration 

351 


356 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1800 


simply,  must  inspire  some  degree  of  doubt, 
whether  it  could  be  the  intent  of  Lord  Mans- 
field thus  lightly,  and  without  animadversion, 
to  shake  a  doctrine  fully  brought  into  view  in 
the  case  of  Fernande*  v.  De  Costa,  and  after  a 
lapse  of  at  least  sixteen  years,  recognized  by 
the  same  tribunal  in  which  he  had  continued 
to  preside  during  the  whole  of  the  intermediate 
time. 

The  case  is  stated  in  general  terms,  but  it  ap- 
pears that  there  had  been  successive  appeals; 
that  the  question  whether  property  was  free 
had  been  agitated  in  the  Court  of  Admiralty, 
and  it  is  highly  probable  that  some  circum- 
stances to  warrant  a  presumption  that  it  was 
determined  on  that  point  might  have  been 
developed.  This  presumption  is  corroborated 
by  the  expression  Lord  Mansfield  uses,  as  no 
•other  cause  appears  as  the  reason  for  the  pre- 
sumption. 

357*]  *There  may,  probably,  have  been 
some  indications  in  the"  proceedings  in  the  first 
instance  before  the  court,  of  the  real  situation 
of  the  process  in  the  Admiralty  Court,  which 
the  court  were  possessed  of  before  the  suit  was 
finally  determined.  After  observing  on  the 
progress  of  the  appeals  that  the  question  was 
whether  the  goods  were  free,  Lord  Mansfield 
concludes,  "it  is  sufficient,  however,  that  no 
special  ground  is  stated,  and,  therefore,  the 
rule  is  discharged." 

But  if  the  question  was  whether  the  goods 
were  free,  there  certainly  appeared  to  be  a 
ground  for  the  decision  in  the  determination 
against  it,  though  it  was  not  specially  stated. 

The  other  construction  of  this  case  I  take  to 
be  that  the  court  concluded  that  the  question 
of  neutrality  had  been  before  the  courts,  orig- 
inal and  appellate,  as  a  precise  object  of  inquiry, 
and  this  being  so,  and  no  special  ground  be- 
ing stated  from  which  it  could  be  inferred 
that  the  condemnation  was  on  another  ground, 
the  Court  of  King's  Bench  suffer  the  general 
principle  deducible  from  those  proceedings 
to  govern  the  case,  and  decides  accord- 
ingly. 

The  case  of  Calcert  v.  Bontt(7  T.  R.,  523), 
was  on  a  policy  of  insurance  on  goods  war- 
ranted American.  It  was  proved  on  the  trial 
that  the  property  corresponded  with  the  war- 
rantv.  The  goods  insured  had  been  declared 
good  prize. 

It  appeared  that  the  reasons  for  the  condem- 
nation were  "  because  the  true  destination 
of  the  vessel  in  which  they  were  laden  was 
bound  for  an  English  island,  having  been 
hired  and  loaded  in  London,  and  that  there 
had  been  found  on  board  of  her  eighty  barrels 
of  gunpowder." 

That  the  ship  and  cargo  were  American  was 
not  questioned;  but  it  was  contended  that 
though  the  fact  was  so,  the  sentence  of  con- 
demnation precluded  the  plaintiff  from  assert- 
ing the  fact.  The  court  examined  the  reasons, 
and  because  those  expressly  given  for  the 
judgment  led  to  a  contrary  conclusion,  they 
decided  that  it  could  not  be  on  the  ground 
that  it  was  British  property.  Lord  Ken- 
yon  expressly  refers  to  and  yields  to  the  doc- 
358*1  trine,  in  the  cases  *of  Salovcn  v.  John- 
son, Mayne  v.  Walter,  and  SaUnicci  v.  Wood- 
ma**. 

The  case  of  Saloucci  v.  Johnson  (Park,  415) 
352 


appears  to  have  arisen  on  a  policy  on  the  same 
ship  Thetis,  on  which  the  case  of  Saloucci  v. 
Woodman*  arose.  It  appears  that  the  ship  was 
condemned  for  resisting  a  search,  and  for  not 
having  a  charter-party  on  board.  The  ap- 
peals are  stated  as  in  the  other  case;  but  it  ap- 
pears that  the  last  sentence  admitted  the  ship 
to  be  neutral. 

It  was  admitted  that  a  ship  warranted  to  be 
neutral  must  be  so  conducted  as  not  to  forfeit 
her  neutrality.  But  the  court  determined  that 
the  act  of  search  is  always  the  effect  of  coercion, 
and  may  always  be  resisted  when  the  party  is 
able,  and  that  this  did  not  forfeit  her  neutral- 
ity. 

The  doctrine  of  Lord  Mansfield  in  the  case 
of  Saloucci  v.  Woodmans,  is  inconsistent  with 
that  laid  down  in  the  case  of  Bernardi  v.  Mot- 
teaux,  and  that  of  Fernandes  v.  De  Costa.  In 
the  two  last  cases,  the  aid  of  collateral  circum- 
stances was  admitted  to  give  a  construction  to 
the  generality  of  the  sentence,  such  as  the 
matter  disclosed  in  the  answer  to  a  bill  in 
chancery,  and  the  import  of  the  libel.  The 
general  doctrine  is  admitted  by  the  counsel  in 
the  case  of  Saloucci  v.  Woodma&s,  where  the 
general  doctrine  was  laid  down;  but  what  cir 
cumstances  prompted  the  admission,  or  what 
was  the  extent  of  it,  is  not  precisely  stated  in 
the  case. 

If  peculiar  circumstances  did  not  exist,  it  is 
difficult  to  reconcile  the  more  recent  decision 
of  the  Court  of  King's  Bench  to  the  principle 
alleged  to  have  governed  in  the  case  of  Saloucci 
v.  Woodmaxs.  In  that  case  the  goods  insured 
were  warranted  neutral,  and  Lord  Mansfield 
held  "  that  it  must  be  presumed  from  the  con- 
demnation, as  no  other  reason  appears,  that  it 
proceeded  on  the  ground  of  the  property  be- 
longing to  the  enemy." 

I  cannot  satisfy  myself  on  what  ground  this 
presumption  ought  to  prevail  in  preference  to 
any  other.  The  opinions  of  Lord  Mansfield 
merit,  and  will  always  command  *a  re-  [*35O 
spectful  attention;  but  at  a  period  when  they 
cease  to  be  binding  as  authority,  I  can  follow 
them  so  far  only  as  they  tend  to  convince  my 
mind  that  they  are  correct. 

The  rules  applicable  to  this  question,  as  laid 
down  by  Lord  Mansfield,  seem  to  be  that  if  it 
appears  that  the  condemnation  was  expressly 
on  the  ground  that  the  property  insured  was 
enemy's  property,  it  shall  conclude  that  if  the 
.grounds  are  set  forth,  they  are  examiuable; 
but  if  the  sentence  is  silent  as  to  the  reasons, 
though  it  is  admitted  that  there  are  cases  in 
which  an  examination  may  be  proper,  the 
presumption  is,  that  the  condemnation  was  on 
the  ground  of  its  being  enemy's  property,  and 
of  consequence,  the  reasons  presumed  being 
the  strongest  possible  against  the  insured,  it 
must  also  conclude  him.  This  is  established 
on  the  courtesy  which  ought  to  prevail  be- 
tween different  courts;  but  certainly  the  cour- 
tesy is  carried  beyond  the  necessity  which  dic- 
tated it.  All  that  can  be  required  is  a  pre- 
sumption that  their  proceedings  were  war- 
ranted on  some  ground  arising  from  local 
regulations,  or  from  the  general  maritime  law; 
and  it  does  not  follow  that  because  the  sentence 
is  silent  as  to  both,  that  the  condemnation 
is  to  be  attributed  exclusively  to  one  of 
them. 

JOHNSON'S  CASES,  1. 


1800 


DUGUET  v.  RHINELANDEK  ET  AL. 


859 


On  the  whole,  therefore,  I  am  of  opinion 
that  the  plaintiff  is  entitled  to  recover. 

Judgment  for  the  defendant.1 

Reversed— 2  Johns.  Gas.,  480. 

Cited  in^l  Johns.  Gas.,  362;  2  Johns.  Gas.,  142, 172, 
178, 182,  452 ;  2  Games'  Cos.,  258 ;  8  Johns.,  319 ;  9  Johns., 
221. 


4360*] 


*DUGUET 

v. 
RHINELANDER  ET  AL. 


1.  Marine  Insurance —  Warranty  —  Neutral 
Property.  2.  Naturalized  Citizen —  War  — 
Law  of  Nations. 

A  waranty  of  mutual  property  is  to  be  construed 
in  reference  to  the  belligerent  parties,  and  to  the 
law  of  nations.  A  Frenchman  who  emigrates  to 
this  country,  flagrant*,  bello,  and  becomes  natural- 
ized, though  he  thereby  acquires  the  privileges  of 
a  citizen  of  the  United  States,  is  still  to  be  con- 
sidered a  French  subject,  in  regard  to  France  and 
Great  Britain,  who  are  at  war,  according  to  the  law 
of  nations. 

Citations— Delavigne  v.  United  Ins.  Co.,  ante,  310 ; 
••Goix  v.  Low,  ante,  341. 

THIS  was  an  action  on  a  policy  of  insurance 
on  goods  on  board  the  schooner  Daphne, 
from  Philadelphia  to  Havanna. 

The  facts  were  these: 

On  the  26th  of  January,  1799,  "  Mr.  Will- 
iam Thomas,  for  account  of  Philip  Duguet,  a 
-citizen  of  the  United  States,"  opened  the 
policy  in  question.  The  vessel  and  property 
were  warranted  American,  and  the  defendants 
subscribed  the  sum  of  $2,500. 

The  schooner  was  captured  on  the  voyage  in- 
sured.and,  together  with  her  cargo,  were  libeled 
at  New  Providence.  The  vessel  was  acquitted. 
The  sentence,  pronounced  on  the  23d  of  Sep- 
tember, 1799,  by  the  judge  of  the  Vice-Ad- 
miralty Court  (Kelsall)  against  the  property 
insured  was  as  follows: 

"It  is  a  maxim  that  things  which  should 
be  judged  by  the  law  of  nations  ought  not  to 
be  determined  by  the  civil  law  or  the  particular 
institutions  of  any  country.  The  state  of 
war,  and  the  rights  which  result  from  thence, 
are  of  this  description.  No  individual  can,  of 
his  own  mere  act,  exempt  himself  from  the  re- 
lations this  state  places  him  in,  both  with  re- 
spect to  his  sovereign,  and  to  that  with  whom 
he  is  at  war.  He  is,  by  the  act  of  his  sover- 
eign, rendered  an  enemy,  nor  can  his  sovereign 
devest  him  of  his  own  authority,  of  that  char- 
acter, without  the  consent  of  that  power  with 
whom  he  wages  hostilities.  Much  less,  I  ap- 
prehend, can  a  neutral  state  plead  that  her 
municipal  regulations  have  changed  the  polit- 
ical condition  of  the  subjects  of  a  state  at  war, 
either  to  protect  them  from  the  punishment 
which  their  own  sovereign  can  inflict,  for  a 
nonperformance  of  their  duties  to  him,  to 
whom  they  owe  a  prior  obligation,  or  to  re- 
lieve them  from  the  consequences  of  those 
rights  which  accrue  to  the  enemy,  necessarily 
361*]  *and  justly  from  the  commencement 

1.— See  3  Bos.  &  Pull.,  201,  506,  514,  515,  531 ;  6  East, 
^82. 

JOHNSON'S  CASES,  1.        N.  Y.  REP.,  BOOK  1. 


of  hostilities;  among  these  are  the  right  of  re- 
prisals and  the  right  to  deprive  the  enemy  of 
his  goods  and  possessions." 

"An  individual  in  war  emigrates  at  his 
own  peril.  In  a  neutral  nation  his  person 
and  his  property  are  secure,  but  as  his 
character  of  enemy  cannot  be  changed  but  by 
the  same  powers  which  rendered  him  so,  as  long 
as  war  exists,  by  the  law  of  nations  he  cannot 
come  into  the  realm,  nor  travel  on  the  high 
seas,  nor  send  his  goods  and  merchandises  from 
one  place  to  another,  without  danger  of  being 
seized.  In  my  opinion,  a  man  who  was  a  citi- 
zen of  France  at  the  commencement  of  the 
war,  or  who  has  not  changed  his  domicile  prior 
to  that  period,  must  be  considered,  with  respect 
to  Great  Britain,  as  an  enemy,  notwithstanding 
his  naturalization  in  a  neutral  State.  It  is  on 
these  principles  that  I  acquit  the  property  of 
Joseph  Donath  and  James  I.  Masurie,  as  being 
citizens  of  the  United  States,  and  condemn 
that  of  Peter  Ducoing,  Peter  Lacombe,  and 
Philip  Urbin  Duguet,  they  having  been,  at  the 
commencement  of  the  present  hostilities  be- 
tween our  sovereign  lord  the  king  and  the 
republic  of  France,  and  still  are,  citizens  or 
subjects  of  the  said  republic." 

The  plaintiff  is  by  birth  a  Frenchman,  and 
became  a  naturalized  citizen  of  the  United 
States,  according  to  law,  on  the  llth  of  Oc- 
tober, 1796.  The  schooner  was  an  American 
vessel,  and  the  plaintiff  had  goods  on  board  to 
the  value  of  the  sum  insured.  An  abandon- 
ment was  made  in  due  time,  and  the  usual 
proofs  of  loss  and  interest  were  exhibited  to 
the  underwriters. 

On  a  case  made  containing  the  above  facts, 
it  was  agreed,  that  if  the  court  should  think 
that  the  plaintiff  was  entitled  to  recover  for  a 
total  loss,  a  judgment  should  be  entered  for 
$2,593;  or  if  the  court  should  be  of  opinion 
that  the  plaintiff  was  only  entitled  to  a  return 
of  premium,  that  then  the  judgment  should  be 
entered  for  $185.50.  Or,  if  the  court  should 
be  of  opinion  *  that  the  plaintiff  was  [*362 
not  entitled  to  recover  anything,  then  a  judg- 
ment was  to  be  entered  for  the  defendant. 

Mr.  B.  Livingston  for  the  plaintiff. 
Mr.  Hanson  for  the  defendant. 

RADCLIFF,  J.  Placing  out  of  view  the  ques- 
tion as  to  the  conclusiveness  of  foreign  senten- 
ces,! am  of  opinion  that  the  warranty  of  Ameri- 
can property  ought  to  be  construed  in  reference 
to  the  belligerent  parties.  It  was  intended 
that  the  property  should  be  neutral  in  regard 
to  them.  The  reasoning  of  the  Court  of  Ad- 
miralty appears  to  me  to  be  well  founded  that 
the  plaintiff,  being  a  Frenchman,  could  not, 
either  in  regard  to  his  own  country  or  its 
enemies,  expatriate  himself,  flagrante  bello,  so 
as  to  destroy  the  relation  in  which  he  stood  at 
the  commencement  of  the  war.  This  principle 
appears  to  have  been  generally  adopted  by 
public  writers,  and  in  the  practice  of  nations. 
I  think,  however,  that  for  the  reasons  given  in 
the  case  of  Delavigne  v.  The  United  Insurance 
Company  (ante,  p.  310),  decided  in  this  term, 
that  the  plaintiff  is  entitled  to  a  return  of 
premium. 


BENSON,  J.,  was  of  the  same  opinion. 
23 


853 


362 


SUPREME  COURT,  STATE  OF  NEW  YORK 


l&Ot!- 


KENT,  J.  For  the  reasons  given  by  me  in 
the  case  of  Goix  v.  Law  (ante,  p.  341),  I  con- 
sider the  sentence  of  condemnation  as  con- 
clusive evidence  of  a  breach  of  the  warranty, 
and  that  judgment  ought,  therefore,  to  be 
rendered  for  the  defendants.  But  supposing 
the  sentence  still  open  for  our  examination,  I 
think  that  the  warranty  of  neutrality  must  be 
considered  in  reference  to  the  law  of  nations; 
and  the  true  question  is,  whether  the  plaintiff 
is  to  be  considered  as  a  Frenchman  or  an 
American,  according  to  that  law.  It  is  imma- 
terial how  he  was  considered  in  France,  or  by 
the  municipal  law,  because  the  parties,  by 
the  true  construction  of  the  contract,  had 
in  view  a  protection  on  the  high  seas,  under 
the  sanction  of  the  general  law.  By  the  law 
of  nations,  the  plaintiff  was  to  be  deemed  a 
Frenchman,  and  not  an  American,  in  respect 
to  the  powers  at  war.  It  was  necessarily  to  be 
inferred  from  the  case  that  the  plaintiff 
emigrated  from  France,  pending  the  war,  and 
363*]  it  *  is  a  sound  principle  of  national 
policy  that  an  emigration,  flagrante  bello.  will 
not  and  cannot  rightfully  change  the  duties 
and  responsibility  of  the  party.  His  sovereign 
may  still  claim  him  as  a  subject,  and  the 
enemy  of  that  sovereign  has  a  right  to  regard 
him  as  an  enemy.  The  parties  at  war  can  only 
know  the  subjects  of  each  other,  as  their  .re- 
spective domiciles  existed  at  the  breaking  out 
of  the  war.  'By  the  naturalization  of  the 
plaintiff  here,  he  only  acquired  municipal 
privileges.  He  is  left  in  statu  quo,  as  to  his 
pre-existing  relations  to  other  nations. 

LANSING,  Ch.  J.,  did  not  admit  the  con- 
clusiveness  of  the  sentence  of  the  Admiralty 
Court,  but  concurred  in  this  opinion  on  the 
other  grounds. 

LEWIS,  J.,  dissented,  and  was  of  opinion 
that  the  plaintiff  was  entitled  to  judgment. 

Judgment  for  tJie  plaintiff,  for  the  premium 
only. ' 

Reversed— 1  Caiues'  Gas.,  XXV.  2  Johns.  Gas.,  476. 
Distinguished— 1  Caines,  291. 
Cited  in— 1  Johns.,  11. 


ARNOLD    AND    RAMSEY 

v. 
THE  UNITED  INSURANCE  COMPANY. 

Marine  Insurance — Warranty — Neutral  Prop- 
erty— Prize — Connul — Domicile — Foreign  Sen- 
tence. 

Goods  were  insured  from  New  York  to  two 
ports  in  the  Island  of  Cuba ;  "warranted  American 
property,  proof  to  be  made  in  New  York."  The 
goods  belonged  to  two  native  American  merchants 
in  New  York,  and  to  a  native  American  who  resided 
at  the  Havanna,  in  quality  of  American  consul,  and 
who  were  joint  owners  of  the  ship,  and  partners  in 
the  adventure.  The  vessel  and  cargo,  during  the  voy- 
age, were  captured  by  the  British,  and  the  goods  be- 
longing to  the  American  consul  at  the  Havanna  and 
his  partners,  were  condemned  as  Spanish  property. 
In  an  action  on  the  policy,  it  was  held  that  there 
was  a  breach  of  the  warranty;  that  a  consul  of  a 
neutral  State,  residing  in  a  belligerent  country,  and 

1.— Thisjudginent  was  afterwards  reversed  in  the 
Court  of  Errors  in  1801.  See  post. 

354 


carrying  on  trade  as  a  merchant,  was  to  be  con- 
sidered as  domiciled  in  that  country;  and  if  con-- 
nected  with  neutral  merchants  as  a  partner  in  trade 
his  property  would  be  subject  to  capture  and  con- 
demnation by  a  belligerent  as  enemy's  property. 

Citations— Park,  195;  2  Valin,249,  art.  8, 258,  art.,  11,- 
Vattel,  231;  Martens,  155,229;  Vattel,  711,  714  ;Vattel, 
105,  §  105,100 ;  Id.,  158, 8  114;  Vattel,  92, 1 213 ;  Vattel,  132- 

THIS  was  an  action  on  a  policy  of  insurance, 
upon  all  kinds  of  lawful  goods,  on  board 
the  ship  Hope,  from  New  York  to  two  ports 
in  the  Island  of  Cuba.  In  the  declaration  it 
was  averred  that  the  property  belonged  to  the 
plaintiffs  and  one  Daniel  Hawley;  there  were 
also  two  counts  for  money  had  and  received 
to  the  use  of  the  plaintiffs,  and  for  money 
paid,  &c. 

The  cause  was  tried  before  Mr.  Justice  Kent,, 
at  the  circuit  in  the  city  of  New  York,  the 
25th  of  July,  1799,  when  a  verdict  was  found 
for  the  plaintiffs,  subject  to  the  opinion  of  the 
court  on  the  following  case: 

*  The  policy  and  loss,  as  stated  in  [*364- 
the  declaration,  were  admitted;  it  was  also 
admitted  that  the  plaintiffs  and  Hawley  had 
property  on  board  to  the  amount  insured,  and 
that  an  abandonment  was  duly  made.  At 
the  time  the  policy  of  insurance  was  effected. 
Hawley  was  a  native  American  citizen,  and 
resided  at  the  Havanna,  in  the  Island  of  Cuba, 
in  quality  of  a  consul  of  the  United  States. 
No  information  was  given  to  the  defendants 
that  Hawley,  or  any  other  person  than  the 
plaintiffs  was  interested  in  the  cargo.  The 
vessel  was  described  in  the  policy  as  "the  good 
American  ship  called  the  Hope. "  At  the  foot 
of  the  policy  was  the  following  written  clause r 
" Warranted  American  property,  proof  where- 
of, if  required,  to  be  made  'in  New  York 
only."  The  Hope,  while  prosecuting  her 
voyage,  was  taken  by  a  British  cruiser,  and 
carried  into  New  Providence,  and  there 
libeled  in  the  Vice-Admiralty  Court,  on  the 
ground  that  the  ship  and  cargo  belonged  to 
Spain,  or  to  persons  being  subjects  of,  or  re- 
siding within  the  territories  of  Spain.  The 
ship  and  a  part  of  the  cargo  were  released,  but 
the  residue,  belonging  to  the  plaintiffs  and 
Hawley,  was  condemned  as  good  lawful  prize  to- 
the  captors.2 

Mr.  B.  Livingston  and  Mr.  Burr  for  the^ 
plaintiffs. 

Mr.  Troup  and  Mr.  Hanson  for  the  defend- 
ants. 

KENT,  J.  It  was  understood  to  be  the 
agreement  of  the  parties,  in  consequence  of 
the  special  clause  in  the  policy,  and  it  was  so- 
admitted  at  the  argument  of  the  cause,  that 
the  question  whether  the  warranty  was  broken 
*  or  not  was  open  for  examination,  [*3O£> 

2.— From  the  sentence  of  condemnation,  a  copy  of 
which  was  annexed  to  the  case,  it  appeared  that  the 
vessel  and  part  of  the  cargo  belonged  to  Arnold  and 
Ramsay,  and  to  Hawley,  who  resided  at  the  Ha- 
vanna, in  the  character  of  an  American  consul,  with 
his  wife  and  family;  that  the  vessel  took  in  part  of  her 
cargo  at  Trinidad,  in  the  Island  of  Cuba,  and  was  pro- 
ceeding to  Havanna,  to  complete  her  lading  there, 
when  she  was  captured;  and  that  Hawley  accepted 
a  draft  drawn  on  him  by  Arnold  and  Ramsay,  for 
the  purpose  of  enabling  them  to  purchase  part  of 
i  the  cargo,  for  their  joint  concern  and  benefit. 

JOHNSON'S  CASES,  1_ 


1800 


ARNOLD  AND  RAMSEY  v.  THE  UNITED  INSURANCE  COMPANY. 


365 


notwithstanding  the  sentence  of  condemnation 
in  the  Vice-Admira}ty  Court. 

If  this  condemnation  be  warranted  by  the 
law  of  nations,  it  was,  then,  necessary  to 
have  disclosed  to  the  insurer  the  part  owner- 
ship of  Hawley,  as  that  circumstance  material- 
ly increased  the  risk.  There  was  also  a  breach 
of  the  warranty  ;  for  the  averment  that  the 
property  was  American  must  be  wholly  and 
strictly  true,  since  the  sound  construction  is 
that  the  policy  must  be  American,  in  respect 
to  the  powers  at  war,  and  not  merely  in  respect 
to  our  municipal  law.  The  contract  had  refer- 
ence to  an  intercourse  with  foreign  nations, 
and  the  security  which  was  the  object  of  the 
warranty  was  such  as  would  be  granted  by  the 
law  of  nations,  under  the  sanction  of  which  all 
foreign  intercourse  is  'to  be  conducted. 

If,  on  the  other  hand,  the  sentence  of  con- 
demnation was  not  conformable  to  the  law  of 
nations,  then  the  warranty  has  not  been 
broken,  nor  was  it  necessary  to  disclose  the 
ownership  of  Hawley,  as  it  could  not  be  mate- 
rial. (Park,  195,  Mayne  v.  Walter.) 

The  decision  of  this  cause,  therefore,  turns 
wholly  on  the  legality  of  the  sentence  of  con- 
demnation at  New  Providence,  as  far  as  it  re- 
spects Hawlev.  And  the  question  is,  was  the 
property  of  Hawley,  who,  at  the  commence- 
ment of  the  risk,  resided  at  the  Havanna  in  the 
quality  of  consul,  and  transacted  business  as  a 
merchant,  American  property,  within  the  pur- 
view of  the  law  of  nations? 

On' this  point  I  have  no  doubt.  The  reasons 
assigned  in  the  decree  of  condemnation  appear 
sound.  The  judge  observes  "that  consuls 
have  certain  privileges  and  immunities,  but 
that  if  they  enter  into  trade,  they  are  tied  down 
by  the  same  restrictions  as  other  merchants 
are;  that  if  consuls  had  a  right,  in  their  con- 
sular capacity,  to  enter  into  trade,  and  to  be 
freed  from  being  considered  as  residents  in  the 
belligerent  country,  they  would  have  it  in  their 
power  to  cover  foreign  property,  under  the  mask 
of  its  being  American,  to  an  immense  extent." 
This  would  undoubtedly  be  the  case.  The  law 
366*]  which  authorizes  ^maritime  capture 
would  be  altogether  evaded,  and  become,  per- 
haps, null,  if  neutrals  were  permitted  to  reside 
within  the  belligerent  territories,  and  to  carry 
on  trade  under  neutral  protection.  However 
favorable  such  an  effect  might  be  to  the  policy 
of  neutrals,  yet  it  is  sufficient  to  observe  that  a 
state  of  war  is  permitted  by  the  law  of  nations; 
that  it  has  its  relations  and' its  rights  as  well  as 
a  state  of  peace,  and  that  neutrals  are  bound  to 
conduct  themselves  in  conformity  to  those  re- 
lations and  those  rights. 

In  order  to  guard  against  abuse,  and  to  ascer- 
tain the  parties  at  war  by  some  determinate  cri- 
terion, it  seems  now  to  be  pretty  generally 
understood,  that  the  domicile  shall  be  the  test 
by  which  to  determine  whether  a  person  is  to 
be  regarded  as  a  subject  or  a  foreigner.  It  was 
a  maxim  of  the  civil  law  that  incolas  domiciUum 
3Q7*\facit,1  and  the *domicile  was  defined  by 

1.  By  the  civil  law,  a  bare  habitation,  or  tempo- 
rary residence  in  a  place,  did  not  create  the  jus  in- 
colatus.  "  Et  in  eodem  ?oco  etaoulos  habere  clomi- 
cttium  ncm  ambigitur,  ubi  quis  larem  rerumque  ad 
fortunarum  suarum  xummam  constituit,  unde  rursus 
non  «tt  dbeewww,  si  nihil  adcocet :  unde  cum  profec- 
tus  est,  pregrinari  videtur ;  quod  si  redit,  peregrinari 
jam  dexttttt."  Cod.,  lib.  10,  tit.  39,  1.  7.  So  in  the 

JOHNSON'S  CASES,  1. 


the  same  law  to  be  the  place  where  a  person  re- 
sides and  carries  on  his  business. 

It  was  in  the  spirit  of  this  general  rule  that 
the  ordinance  of  France,  in  1704,  and  that  of 
1744  were  dictated,  which  declare  that  neutrals, 
fixing  their  domicile  and  carrying  on  commerce 
in  a  belligerent  territory,  were  to  be  treated  as 
enemies  (2  Valin,  249,  art.  8;  258,  art,  11.) 

As  long  as  public  ministers  and  consuls  con- 
fine themselves  to  the  business  appertaining  to 
their  public  characters,  their  domicile  is  not 
changed,  but  remains  in  the  country  from 
which  they  are  deputed,  and  they  are  not  sub- 
jects of  the  country  in  which  they  reside. 
(Vattel,  231 ;  Martens,  155,  229.)  But  if  they  en- 
gage in  business  inconsistent  with  or  foreign  to 
their  public  or  diplomatic  *character,  [*368 
they  are  thenceforth  to  be  considered  as  donii 
ciliating  themselves  abroad,  and  becoming  as 
subjects.amenabletotheordinary  jurisdiction  of 
the  State.  (Vattel,  711-714.)  As  they  contribute 
by  their  industry  and  property,  when  engaged 
in  trade,  to  aid  the  government  under  which 
they  reside,  it  is  but  reasonable  that  the  ene- 
mies of  that  government  should  have  a  right 
to  hold  their  property  responsible  as  that  of  an 
enemy. 

I  am  of  opinion,  therefore,  that  Mr.  Hawley, 

by  becoming  a  merchant  at  the  Havanna,   a 

character  wholly  distinct  from  his  consular 

functions,  was  rightfully  considered  as  estab- 

I  lishing  his  domicile  there;  and  that  he  became, 

j  in  regard  to  his  transactions  as  a  merchant, 

i  and  in  reference  to  the  enemies  of  Spain,  a 

I  Spanish  subject.     The  condemnation,    there- 

j  fore,  of  the  property  of  Hawley  was  lawful; 

and  the  warranty  was  not  strictly  or  wholly 

|  true,  nor  was  a  material  fact  disclosed  to  the 

j  insurer.     On  either  ground  there  must  be  judg- 

'  ment  for  the  defendants. 

RADCLIFF,  J.,  and  BENSON,  J.,  were. of  the 
I  same  opinion. 

LANSING,  Ch.  J.  In  the  policy  is  contained 
j  a  warranty  that  the  goods  were  American 
property,  and  that  proof  of  their  being  so 
i  should  be  made  at  New  York. 

Hence  it  becomes  necessary  to  examine, 

1.  The  intent  of  the  warranty;  and, 

2.  Whether  it  has  been  verified. 

The  doctrine  of  insurances  imposes  it  on  the 
contracting  parties  to  acquire  the  knowledge 
!  of  existing  wars,  and  the  influence  those  may 
i  have  on  maritime  adventures.  They  are  to  be 
j  presumed  to  know  the  extent  of  those  wars, 
|  what  nations  are  belligerent,  and  those  who  re- 
|  main  neutral.  The  parties  in  this  case  must  of 
i  course  have  known  that  American,  as  neutral 
j  property,  ought  to  be  respected  by  the  nations 
;  at  war,  'and  that  a  less  degree  of  risk  was  at- 
;  tached  to  property  of  that  description  than  to 
i  that  of  citizens  or  subjects  of  those  powers. 

*In  this  situation,  it  could  not  have  [*36?> 
j  been  their  intent,  in  forming  the  warranty  in 
1  question,  to  apply  the  term  "American  prop- 
Digest,  lib.  50,  tit.  16, 1.  203.  Earn  dnmum  unicuique 
nostrum  debere  extstimart,  ubi  quisque  sedes  ct  tabu- 
las  haberet,  suarumqrue  rcrum  con^titutionem /ecttset. 
Agreeably  to  this  is  the  opinion  of  Lord  Loughbor- 
ouprh,  in  the  case  of  Bempde  v.  Johnstone,  3  Ves., 
Jun.,  201.  See,  also,  the  case  of  Somerville  v.  Somer- 
vllle.5  Ves.,  Jun.,  750,  where  the  question  of  domicile 
was  learnedly  and  elaborately  discussed. 

355 


369 


SUPREME  COURT,  STATE  OK  NEW  YORK. 


1800 


erty,"  merely  as  descriptive  of  the  legal  import  of 
those  terms,  tested  by  the  laws  of  the  United 
States.  It  obviously  applied  to  the  general 
maritime  law  which  regulated  objects  of  this 
kind. 

The  language  of  the  warranty  seems  to  be 
this:  "  I  warrant  this  to  be  American  prop- 
erty, and  that  it  is  of  a  description  which  all  the 
powers  at  war  ought  to  respect  as  such.  But 
as  in  some  instances,  arbitrary  distinctions, 
originating  in  national  views  "or  local  ordi- 
nances, have  prevailed  in  the  foreign  courts,  to 
some  of  which  the  construction  of  what  con- 
stitutes property  of  this  description  may  be 
submitted,  I  reserve  to  myself  the  right  of  hav- 
ing it  decided  by  the  tribunals  of  our  own 
country — but  on  the  ground  of  the  general 
maritime  law,  established  by  the  usages  of 
nations." 

If  this  exposition  is  correct,  the  next  ques- 
tion may  be  solved  by  examining  whether  the 
goods  insured  were  of  a  description  entitling 
them  to  be  considered  as  American  property. 

The  sentence  of  condemnation  declares  the 
goods  to  be  the  property  of  persons  resident  in 
the  dominions  of  Spain,  one  of  the  powers  at 
war,  and  as  such,  good  prize  to  the  captors. 
The  warranty  has,  however,  excluded  that 
sentence  from  operating  to  the  prejudice  of  the 
insured,  it  containing  an  express  stipulation 
that  the  proof  of  this  being  American  should 
be  made  exclusively  at  New  York.  So  that 
the  question  is  not  merely,  has  this  point  been 
decided  by  the  Court  of  vice-Admiralty  at  New 
Providence?  but  were  the  circumstances  of  this 
case  such  as  to  warrant  the  decision  ? 

It  appears,  from  the  case,  and  it  is  expressly 
admitted,  that  Hawley,  one  of  the  persons  in- 
terested with  the  plaintiffs,  had  his  domicile  at 
the  Havanna,  in  the  Island  of  Cuba,  in  the 
dominions  of  the  King  of  Spain,  one  of  the 
powers  at  war,  and  that  he  was  a  citizen  of 
the  United  States,  and  their  consul  at  that 
place. 

37O*]  *  Among  the  effects  of  the  residence 
of  foreigners,  in  a.  State  of  which  they  are  not 
citizens,  Vattel  (155,  §  105, 106;  Ib.,  158,  §  114) 
enumerates  the  duty  of  contributing  to  its  de- 
fense, and  to  all  taxes  (those  excepted  which 
have  only  a  relation  to  the  citizens),  and  they 
certainly  aid  the  revenue  of  the  country  in 
which  they  reside  by  their  consumption  of 

In  the  case  of  The  Vigilantia  (1  Rob.  Adm.  Rep., 
13,  14),  Sir  William  Scott  says  that  where  there  is 
nothing  particular  or  special  in  the  conduct  of  a 
vessel  itself,  the  national  character  is  determined 
by  the  residence  of  the  owner :  but  there  may  be 
circumstances  arising  from  that  conduct,  which 
will  lead  to  a  contrary  conclusion.  He  refers  to  the 
•decision  of  the  Lords  of  Appeal  in  1785 ;  that  where 
one  of  two  partners  resided  in  Denmark,  and  the 
•other  in  St.  Eustatius,  where  they  established  a 
house  of  trade,  that  the  share  of  the  partner  resi- 
dent in  St.  Eustatius  was  liable  to  condemnation  as 
the  property  of  a  domiciled  Dutchman.  So  in  1795, 
in  the  case  of  one  of  two  partners  emigrating  from 
Nantueket  to  France,  for  the  purpose  of  carrying 
on  their  fishery,  the  property  of  the  partner  domi- 
ciled in  France  was  condemned. 

Again,  in  1798,  it  was  decided  that  if  a  person  en- 
tered into  a  house  of  trade  in  the  enemy's  country 
in  time  of  war,  or  continued  that  connection  during 
the  war,  he  should  not  protect  himself  by  mere  resi- 
dence in  a  neutral  country. 

In  the  case  of  The  Endraught  (1  Rob.,  19),  Sir 
William  Scott  said,  that  if  a  neutral  chose  to  en- 
gage himself  in  the  trade  of  a  belligerent  nation,  he 
must  l>e  content  to  bear  all  the  consequences  of 

SM 


articles  on  which  excises  or  duties  are  im- 
posed. 

The  doctrine  attempted  to  be  established 
from  Valin  (2  Valin,  249,  art.  8;  251,  art .  11), 
appears  to  derive  little  support  from  the  tern 
porary  regulations  we  find  referred  to  in  the 
argument,  as  it  appears  that  the  ordinances  in 
which  that  doctrine  is  contained  were  not  per- 
manent in  affirmance  of  the  law  of  nations,  and 
of  consequence,  merely  devised  as  means  to 
carry  the  principles  of  that  law  into  effect,  but 
limited  in  their  duration  to  the  existing  war  in 
which  France  was  then  engaged.  They  were 
calculated,  among  other  objects,  to  deprive  the 
subjects  of  the  powers  at  war,  who  had  not 
been  naturalized,  and  had  not  transferred  their 
domicile  into  the  dominions  of  the  neutral 
powers,  before  the  commencement  of  the  war 
in  which  France  was  then  engaged,  and  those 
who,  though  naturalized,  had  since  returned 
into  the  enemy's  country  to  pursue  their  com- 
merce, of  the  rights  they  claimed  as  neutrals. 
They  are  to  be  receiveu  as  dictated  merely  by 
the  policy  of  the  king  and  country  in  which 
they  originated;  and  in  the  instances  in  which 
they  conform  to  the  general  law  of  nations, 
they  only  tend  to  show  that  the  principles  of 
that  law  influenced  the  French  government  in 
the  formation  of  those  ordinances. 

One  of  those  temporary  ordinances  was 
passed  in  1704,  the  other  in  1744.  They  are 
nearly  of  the  same  import,  though  the  ex- 
pression is  somewhat  varied.  They  appear  to 
have  been  intended  to  regulate  the  proceedings 
of  the  prize  courts,  and  to  promulgate  the 
principles  by  which  their  decisions  should  be 
regulated. 

Vattel  (92,  §  213)  observes  that  the  inhabit- 
ants of  a  country,  as  distinguished  from  citi- 
zens, are  strangers  who  are  permitted  to  settle, 
and  stay  in  the  country.  Bound  by  their  resi- 
dence to  the  society,  they  are  subject  to  the 
laws  of  *the  State  while  they  reside  [*3  7 1 
there,  and  they  are  obliged  to  defend  it,  because 
it  grants  them  protection. 

If,  then,  persons  who  have  their  domicile  in 
a  foreign  country,  are  subject  to  contribute  to 
the  exigencies  of  the  state,  by  paying  a  portion 
of  the  public  taxes,  and  obliged  to  defend  it, 
they  can  have  no  pretensions  to  be  considered 
as  neutrals.  They  form  a  part  of  the  efficient 
force  of  the  country  in  which  they  reside,  that 

such  a  speculation ;  and  if  he  confines  his  vessel  ex- 
clusively to  the  enemy's  navigation,  he  is  liable  to 
be  considered  as  an  enemy,  with  respect  to  the  con- 
cerns of  such  vessel.  See,  also,  1  Rob.,  105,  24 ;  2 
Rob.,  322,  et  seq. 

In  the  case  of  Mr.  Johnson  (3  Rob.,  12)  and  of  Mr. 
Millar  (3  Rob.,  27,  The  Indian  Chief),  it  was  decided 
that  the  character  of  an  American  consul  residing 
in  a  foreign  country  would  not  protect  that  of  the 
merchant,  when  united  in  the  same  person ;  and  Sir 
William  Scott  cites  several  cases  before  the  Lords  of 
Appeal,  in  1782, 1784,  and  1797,  where  it  was  so  set- 
tled, after  solemn  argument.  See,  also,  3  Rob.,  38, 
39,  41,  44 ;  4  Rob.,  28,  232,  239 ;  5  Rob.,  379. 

In  Tabbsv.  Bendlelack  (4  Esp.  Gas.,  N.  P.,  108), 
Lord  Kenyon  considered  an  American  residing  with 
his  family  in  England,  and  carrying  on  trade  from 
that  country,  so  far  a  British  subject,  in  regard  to 
belligerents,  that  if  he  warranted  his  ship  to  be 
American,  the  warranty  failed,  and  he  could  not  re- 
cover in  case  of  a  capture. 

On  the  question  of  domicile,  see,  further.  Marsh  v. 
Hutchinson  (2  Bos.  &  Pull.,  236),  and  the  cas  •  of 
Bruce  v.  Bruce,  in  a  note,  p.  229,  and  the  cases  there 
cited. 

JOHNSON'S  CASES,  1. 


1800 


JACKSON,  EX  DEM.  MURRAY  ET  AL  ,  v.  WALSWORTII. 


871 


force  which  is  exerted  to  repel  or  annoy  its 
enemies;  and  it  would  seem  strange  that  in  a 
situation  so  intimately  connected  with  that 
country,  as  to  render  it  difficult  to  distinguish 
them  from  its  subjects,  the  protection  of  neu- 
trals should  be  extended  to  them. 

It  appears  to  me,  from  these  considerations, 
that  the  adjudications  of  the  British  and 
French  courts,  which  have  been  made  on  this 
ground,  during  the  existing  war,  were  well 
warranted  by  the  law  of  nations. 

But  it  has  been  urged,  that  as  Hawley  was  a 
consul  of  the  United  States,  he  is,  as  such,  in 
some  measure  entitled  to  the  protection  of  the 
laws  of  nations. 

The  admission  of  consuls  depends  either 
upon  express  convention  or  the  permission  of 
the  sovereign  in  whose  dominions  they  reside. 
(Vattel,  132.)  But  by  receiving  them,  the 
sovereign  strictly  engages  to  allow  them  all  the 
liberty  and  safety  necessary  in  the  proper  dis- 
charge of  their  functions.  What  personal 
immunities  a  consul  is  particularly  entitled  to 
it  is  not  necessary,  on  the  present  occasion,  to 
consider;  for  whatever  they  may  be,  they  can 
only  be  such  as  to  preserve  his  safety  and  in- 
dependence in  the  discharge  of  those  functions. 
An  exemption  from  imposts  is  not  essential  to 
his  quality  of  consul;  if  he  engages  in  mercan- 
tile speculations,  he  is  of  course  subject  to  all 
the  burdens  which  other  inhabitants,  not  sub- 
jects of  the  country  in  which  he  resides,  are 
liable  to.  If  there  is  any  difference  between 
his  situation  and  that  of  other  strangers,  it 
may,  perhaps,  arise  from  his  being,  as  an 
acknowledged  public  functionary  of  a  foreign 
nation,  exempted  from  personal  service  in  any 
372*]  hostileenterpri.se.  This,  however,  *will 
not  so  effectually  disengage  him  from  the  in- 
terests of  the  society  in  which  he  resides  as  to 
make  him  completely  a  neutral.  His  property 
must  contribute  to  the  support  of  the  war. 

If  he  is  to  be  considered  as  a  subject  of 
Spain,  in  consequence  of  his  having  his  domi- 
cile in  its  dominions,  the  warranty  was  not 
complied  with  in  this  case,  and  of  consequence, 
a  strict  compliance  with  a  warranty  being  re- 
quired, the  policy  is  void. 

On  these  grounds,  I  am  of  opinion  that  the 
plaintiffs  ought  not  to  recover  in  this  cause,  and 
that  judgment  should  be  rendered  for  the  de- 
fendants. 

LEWIS,  J.,  dissented. 
Judgment  for  the  defendants. ' 

Approved— 2  Johns.  Cas.,  477. 
Distinguished— 3  Johns.  Cos.,  50. 
Cited  in— 8  Johns.,  319 ;  7  Wall.,  553. 


JACKSON,  ex  dem.  MURRAY  ET  AT,.  , 
WALSWORTII. 

1.  Absent  and  Absconding  Debtors — Instrument 
Appointing  —  Trustees — Munomer  —  Lapse  of 
Time.  2.  Proceedings  not  AutJwized. 

Where  an  instrument  executed  by  the  Chief 
Justice  of  the  State,  appointing1  trustees  pursuant 
to  the  act  for  relief  against  absent  and  absconding 
debtors,  for  all  the  creditors  of  certain  persons  trad- 

1— .This  Judgment  was  affirmed  in  the  Court  of 
Errors  in  1801. 

JOHNSON'S  CASES,  1. 


ing  together  under  the  firm  of  the  "  American  Iron 
Company,"  and  absent  debtors,  in  mentioning  the 
names  of  the  individuals  composing  the  company, 
stated  some  of  them  to  be  trustees  for  others,  and 
some  as  executors,  &c.,  these  additions  were  con- 
sidered merely  as  words  of  description,  so  as  to  sup- 
port the  validity  of  the  appointment,  and  the  pro- 
ceedings under  the  attachment;  more  especially 
after  a  lapse  of  time,  and  the  acquiscence  of  the 
parties  interested.  The  act  relative  to  absent  and 
absconding  debtors  does  not  authorize  proceedings 
against  persons  acting  as  executors,  trustees,  or  in 
a  representative  character. 

THIS  was  an  sction  of  ejectment.  On  the 
trial  of  the  cause,  a  general  verdict  for 
the  plaintiff  was  taken  by  consent,  subject  to 
the  opinion  of  the  court  on  the  following  case: 
On  the  27th  day  of  February,  1769,  about  18,- 
000  acres  of  land,  of  which  the  premises  in 
question  are  a  part,  were,  by  letters  patent, 
under  the  great  seal  of  the  late  colony  of  New 
York,  granted  to  David  Greame,  Mary  Croffts, 
James  Crawford,  George  Jackson,  John  Elves, 
Arthur  Forrest,  Richard  Willis,  Thomas  Dam- 
pier,  John  Duval,  William  Robertson,  William 
Berry,  Neal  Ward,  Mary  Sleach,  Lucy  Sleach, 
Hutchinson  Mure,  Catharine  Hassenclever, 
*and  Charles  Croffts,  each  of  the  said  [*373 
grantees  to  hold  a  full  and  equal  eighteenth  part 
of  the  said  lands,  as  tenants  in  common,  and 
not  as  joint  tenants;  and  which  land  is  situated 
on  the  north  side  of  the  Mohawk  River,  in  the 
County  of  Herkimer. 

Peter  Goelet,  William  Popham,  and  Robert 
Morris,  three  of  the  lessors  of  the  plaintiff  in 
this  cause,  claimed  a  right  to  recover  the  prem- 
ises in  question,  by  virtue  of  an  instrument 
in  writing,  made  on  the  29th  September,  1788, 
by  Richard  Morris,  Esq.,  then  Chief  Justice 
of  the  State  of  New  York,  which  instrument 
was  recorded  in  the  office  of  the  Secretary  of 
this  State,  on  the  5th  May,  1794,  and  is  in  the 
words  and  figures  following,  to  wit : 

"  To  all  to  whom  these  presents  shall  come, 
oV  may  in  any  wise  concern,  I,  Richard  Mor- 
ris, Esq.,  Chief  Justice  of  the  State  of  New 
York,  send  greeting :  Know  ye,  that  pursuant 
to  an  Act  of  the  Legislature  of  the  State  of 
New  York,  entitled,  ' '  An  Act  for  relief 
against  absconding  and  absent  debtors," 
passed  the  4th  April,  1-786,  and  by  virtue  of 
the  power  and  authority  to  me  given  in  and  by 
the  said  act,  I  have  nominated  and  appointed, 
and  do  by  these  presents  nominate  and  appoint, 
Peter  Goelet,  of  the  City  of  New  York,  mer- 
chant, Robert  Morris  and  William  Popham,  of 
the  said  city,  Esqs.,  to  be  trustees  for  all  the 
creditors  of  David  Greame,  George  Jackson, 
Arthur  Forrest,  Richard  Willis,  the  Rev. 
Thomas  Dampier,  John  Elves,  and  Richard 
Willis,  aforesaid,  in  trust  for  Mary,  the  wife 
of  William  Croffts,  John  Elves,  in  his  own 
right,  Patrick  Crawford  and  Gilbert  Meason, 
executors  of  James  Crawford,  deceased, 
Hutchinson  Mure,  Robert  Mure,  and  Richard 
Atkinson,  joint  partners,  John  Duval,  Will- 
iam Robertson,  Neal  Ward,  Mary  Sleach, 
Lucy  Sleach,  William  Berry,  Peter  Hassen- 
clever, and  Charles  Croffts,  late  partners  with 
Andrew  Seatou  (who  is  become  a  bankrupt), 
under  the  style  or  firm  of  Hassenclever,  Seaton 
&  Croffts;  afso  the  said  Andrew  Seaton,  Will- 
iam Robertson,  Miles  Nightingale,  and  Rich- 
ard Willis,  as  assignees  of  the  estate  and 
effects  of  the  said  Andrew  Seaton,  under  the 

857 


373 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


said  commission  of  bankruptcy,  and  the  said 
Peter  Hassenclever,  in  bis  own  right,  late  part- 
374-*]  *ners  and  joint  dealers  in  trade,  under 
the  name,  firm  and  description  of  the  Ameri- 
can Iron  Company,  or  Ringwood  Company, 
and  absent  debtors,  against  whose  estates,  real 
and  personal,  an  attachment  hath  been  duly 
issued,  pursuant  to  the  said  act,  and  such 
other  proceedings  had  as  in  and  by  the  said 
act  are  directed;  and  I  do  hereby,  as  far  as  in 
me  lies,  authorize  and  empower  the  said  Peter 
Goelet,  Robert  Morris,  and  William  Popham, 
to  execute  all  the  powers  given  to  such  trustees 
in  and  by  the  .said  act.  In  witness  whereof,  I, 
the  said  "Richard  Morris,  have  hereunto  set  my 
hand  and  seal,  the  29th  September,  1788. 

"RICHARD  MORRIS." 

It  was  agreed  that  if  the  court  should  be  of 
opinion  that  Peter  Goelet,  Robert  Morris,  and 
William  Popham,  three  of  the  lessors  of  the 
plaintiff,  have  not,  by  virtue  of  the  said  instru- 
ment, a  right  to  recover  any  part  of  the  prem- 
ises in  question,  then  the  said  verdict  should 
be  set  aside,  and  judgment  as  in  case  of  non- 
suit be  entered  against  the  plaintiff;  and  in 
case  the  court  should  be  of  opinion  that  the 
said  lessors  of  the  plaintiff  are,  by  virtue  of 
the  said  instrument,  entitled  to  recover  any 
part  of  the  premises  in  question,  less'than  the 
whole,  then,  in  that  case,  the  verdict  should  be 
amended  conformably  to  such  opinion. 

Messrs.  Pendleton,  Harison,  and  Burr,  for 
the  plaintiffs. 

Messrs.  Cody  and  Riggs  for  the  defendant. 

LANSING,  Ch.  J.,  delivered  the  opinion  of  the 
court: 

The  inquiry  in  this  case  is  confined  to  two 
questions: 

1.  Were  the  proceedings  against  the  Ameri- 
can Iron  Company  valid?  and  if  they  were, 

2.  What  part  of  the  land  in  question  vested 
in  the  trustees  by  virtue  of  the  appointment 
under  which  they  claim? 

The  appointment  purports  to  be  of  trustees 
for  all  the  creditors  of  David  Greame  and 
others,  naming  the  other  persons  composing 
the  company,  among  whom  are  John  Elves  and 
Richard  Willis,  in  trust  for  Mary,  the  wife  of 
William  Croffts,  Patrick  Crawford  and  Will- 
iam Meason,  executors  of  James  Crawford, 
375*]  Robert  Mure,  and  Richard  *Atkinson, 
joint  partners  with  Andrew  Seaton,  who  is 
become  bankrupt,  under  the  style  and  firm  of 
Hassenclever,  Seaton  &  Croffts,  and  Andrew 
Seaton, William  Robertson,  Miles  Nightingale, 
and  Richard  Willis,  as  assignees  of  the  estate 
and  effects  of  the  said  Andrew  Seaton,  under 
the  said  commission  of  bankruptcy;  after 
which  a  general  descriptibn  is  added,  "  late 
partners  and  joint  dealers  in  trade,  under  the 
name,  firm  and  description  of  the  American 
Iron  Company,"  or  "  Ringwood  Company." 

We  think  that,  considering  the  long  time 
which  has  elapsed  since  the  appointment  of 
trustees  of  the  estate  of  the  American  Iron 
Company,  the  acquiescence  of  the  members  of 
that  company  in  those  proceedings,  and  that 
the  important  interests  which  were  stated  and 
admitted,  might  be  devested  if  the  appoint- 
ment should  be  deemed  invalid,  every  intend- 
358 


ment,  consistent  with  the  rules  of  law,  is  to  be 
made  in  its  support. 

The  statute  respecting  absent  debtors  does 
not  warrant  proceedings  against  heirs,  execu- 
tors, trustees,  or  others  claiming  merely  by 
right  of  representation.  If,  therefore,  either 
from  an  improper  combination  of  persons  or 
interests  in  the  process,  it  became  voidable  or 
nugatory  as  to  some  of  the  parties,  it  might  be 
a  question  how  far  it  was  valid  as  to  others. 

If  all  the  parties  mentioned  in  the  appoint- 
ment, as  interested  in  their  own  right,  together 
with  the  persons  described  as  being  represent- 
ed by  others,  had  formed  a  copartnership,  the 
survivors  of  this  copartnership,  as  to  all  per- 
sonal contracts  and  interests,  would  represent 
the  whole.  If  other  persons  succeeded  to  the 
right  of  some  of  the  original  copartners,  and 
interested  themselves  in  the  concerns  of  the 
firm,  whatever  description  they  might  think 
proper  to  assume,  they  were  personally  respon- 
sible for  the  copartnership  debts,  as  much  as  if 
they  had  originally  composed  a  part  of  the 
firm. 

*The  introduction  of  the  names  in  [*376 
the  former  case  of  a  set  of  men  who  claimed  a.s 
representatives  of  the  deceased  copartners, 
might  present  an  incongruous  case;  but  such 
an  one  as  obviously  did  not  vary  substantially 
the  interests  of  the  parties  whose  property  was 
affected  by  the  attachment;  their  names  might 
well  be  considered  in  a  process  certainly  not 
analogous  to,  or  to  be  tested  by  the  common 
law  forms,  as  surplusage,  and  we  think  they 
ought  to  be  so.  There  are,  therefore,  strong 
reasons  for  considering  these  additions  as 
merely  descriptive  of  the  persons,  independent 
of  the  aid  given  to  that  construction,  from  the 
lapse  of  time  and  the  acquiescence  of  the  par- 
ties affected  by  the  proceedings. 

We  are,  therefore,  of  opinion  that  they  are 
valid  on  this  ground. 

The  next  question  is,  how  is  the  title  to  the 
land  in  controversy  made  out  under  this  ap- 
pointment? 

The  letters  patent  were  granted  to  David 
Greame  and  seventeen  others,  for  each  one,  an 
undivided  eighteenth  part  of  the  tract  therein 
described,  including  the  premises  in  question, 
as  tenants  in  common. 

Of  the  patentees,  the  names  of  Mary  Croffts, 
James  Crawford,  Catherine  Hassenclever,  and 
Mary  Elizabeth  Hassenclever,  are  not  inserted 
in  the  appointment  of  the  trustees.  In  that 
appointment,  John  Elves  and  Richard  Willis 
are  described  as  holding  in  trust  for  Mary,  the 
wife  of  William  Croffts:  but  the  identity  of 
the  patentee  and  debtor  cannot  be  inferred 
from  this,  nor  can  the  privity  between  his  es- 
tate and  that  alleged  to  be  vested  in  the  trust- 
ees, be  deduced  from  it. 

Patrick  Crawford  and  Gilbert  Meason  are 
described  as  executors  of  James  Crawford; 
but  this  could  neither  affect  or  pass  his  right 
as  a  patentee.  So  that  there  are  four  patentees, 
whose  title  could  not  have  vested,  by  the  ap- 
pointment, in  the  trustees. 

*To  the  remainder,  or  fourteen  [*377 
undivided  eighteenth  parts,  the  plaintiff  has 
maintained  his  right  of  recovery. 

The  court  are,  therefore,  of  opinion  that  the 

verdict  ought  to  be  modified,  conformably  to 

the  agreement  of  the  parties,  by  entering  it  for 

JOHNSON'S  CASES,  1. 


1800 


THE  UNITED  INSURANCE  COMPANY  v.  LENOX. 


877 


that  proportion  of  the  premises  for  the  plaint- 
iff, and  for  the  remainder  for  the  defendant. 

Judgment  accordingly. 

Distinguished— 1  N.  Y.,  333. 

Cited  iu— 13  Johns.,  207 ;  9  Wend.,  468 ;  1  Barb.,  151. 


THE   UNITED  INSURANCE   COMPANY 
LENOX. 

Marine  Insurance — Abandonment — Freight 
Earned. 

Where  a  ship  is  abandoned  to  the  insurer,  who  ac- 
•cepts  the  abandonment,  and  the  voyage  is  after- 
wards performed,  and  freight  earned,  the  insurer  is 
•entitled  to  the  freight  earned  subsequent  to  the 
.abandonment,  or  pro  rata. 

Affirmed  in  the  Court  of  Errors  in  1801. 
Citations— 2  Emerigon,  219,  221;  2  Valin,  59;  2  Burr., 
.*82 ;  3  Caines,  16 ;  1  Johns.,  333 ;  3  Johns.,  49. 

THIS  was  an  action  for  money  had  and  re- 
ceived. Plea,  the  general  issue.  It  was 
tried  at  the  last  July  circuit,  in  the  city  of 
New  York,  when  a  verdict  was  found  for  the 
plaintiffs  for  $1,167,  subject  to  the  opinion 
of  the  court  on  the  following  case : 

The  ship  Josiah  Collins  was  insured  by  the 
plaintiffs,  at  and  from  Bangor,  in  Wales,  to 
New  York.  She  sailed  on  the  voyage  in- 
sured, and  after  being  ten  days  at  sea,  was 
forced,  by  stress  of  weather  and  the  injuries 
she  had  received,  to  bear  away,  and  put  into 
Rivadeo,  in  Spain.  The  assured,  upon  hear- 
ing that  the  ship  was  at  Rivadeo,  abandoned 
her  to  the  plaintiffs,  who  accepted  the  aban- 
donment and  paid  a  total  loss.  After  the 
jibandonment,  and  before  the  acceptance,  the 
assured  also  caused  an  insurance  to  be  made 
on  the  freight  of  the  ship,  for  which  he  paid 
the  premium.  The  ship  was  repaired  at  Riv- 
adeo, prosecuted  her  voyage,  and  arrived  at 
New  York  with  the  greater  part  of  her  cargo. 
After  her  arrival,  the  assured  was  appointed 
the  agent  of  the  ship,  and  in  consequence 
thereof,  the  defendant,  in  his  behalf,  received 
for  freight  the  amount  of  the  sum  for  which 
the  verdict  was  taken,  which  remained  in  his 
hands  for  the  benefit  of  the  party  entitled 
thereto. 

•378*]  *0n  this  case,  the  question  submit- 
ted to  the  opinion  of  the  court  was  whether 
the  plaintiffs  were  entitled  to  the  whole,  or 
-any,  and  to  what  part  of  the  sum  received  for 
freight  by  the  defendant. 

Messrs.  Troup  and  Harison  for  the  plaintiffs. 
Mr.  B.  Livingston  for  the  defendant. 

RADCLIPP,  J.  In  our  law,  freight  is  con- 
sidered as  a  distinct  subject  of  insurance.  It 
is  never  deemed  to  be  included  in  a  policy, 
-either  on  a  ship  or  cargo.  The  different  in- 
terests which  form  the  subjects  of  insurance 
are  regarded  as  several  in  their  nature,  and 
independent  of  each  other.  From  this  single 
•consideration,  I  think  it  follows,  that  an  in- 
surer upon  a  ship  can  in  no  event  be  liable  for 
;any  damage  or  loss  sustained  by  the  freight  or 
-JOHNSON'S  CASES,  1. 


cargo  which  he  did  not  insure,  and  e  converso, 
in  case  of  the  loss  of  the  ship,  he  can  in  no 
event  gain  by  means  of  the  freight  or  cargo. 

The  effect'of  an  abandonment  is  merely  to 
substitute  the  insurer  in  the  place  of  the  in- 
sured. It  bears  no  analogy  to  a  sale,  which  is 
an  original  and  absolute  contract,  and  at  once 
ascertains  and  fixes  the  rights  of  the  parties. 
An  abandonment  is  no  contract,  but  the  exer- 
cise of  a  right  derived  from  a  previous  con- 
tract contained  in  the  policy.  Its  operation 
must,  therefore,  be  regulated  by  the  nature  of 
the  act,  and  the  just  construction  of  the  policy. 
Considered  in  this  light,  I  can  discover  noth- 
ing in  support  of  the  plaintiff's  claim  to  recov- 
er what  he  did  not  insure.  Indeed,  the  rule 
appears  to  be  sound  and  invariable  that  on  the 
one  hand  the  insured  can  never  recover  more 
than  an  indemnity  for  his  loss,  and  on  the  oth- 
er, the  insurer,  on  an  abandonment,  can  never 
be  entitled  to  receive  more  than  the  subject  he 
insured.  The  plaintiffs  insured  the  ship  only, 
and  they  received  the  premium  for  that  insur- 
ance; they  never  could  be  liable  for  any  other 
loss  than  that  sustained  by  the  ship,  and  of 
course  cannot  be  entitled  to  claim  anything  be- 
yond the  value  of  the  ship  at  the  end  of  the  voy- 
age, for  the  performance  of  which  they  have 
*undertaken  by  the  policy,  and  for  [*379 
which  they  have  been  paid.  To  give  them 
more  would  be  to  give  them  a  compensation 
without  a  risk — something  for  nothing. 

On  accepting  the  abandonment,  the  insurers 
stepped  into  the  place  of  the  insured,  and  by 
substitution,  acquired  the  same  rights,  and  be- 
came subject  to  the  same  duties  in  relation  to 
all  concerned.  It  is  true  they  became  the 
owners  of  the  ship,  but  they  could  only  take 
her  cum  onere,  subject  to  the  situation  in 
which  she  was  placed,  and  the  engagements  of 
the  voyage  they  had  insured,  and,  of  course,  to 
the  rights  of  all  parties  concerned  in  the  ad- 
venture. Their  premium  was  the  adequate 
consideration  for  this.  In  like  manner,  the 
insurer  upon  the  cargo,  in  case  of  an  abandon- 
ment, takes  it  subject  to  any  burthen  that  may 
exist,  and  to  the  rights  of  all  parties.  He  is 
bound  to  pay  the  freight,  if  any  be  due,  and 
to  contribute  to  all  necessary  expenses,  as  the 
owner  would  have  done.  So,  also,  the  insurer 
upon  freight,  under  similar  circumstances,  is 
liable  to  contribute  to  a  general  average,  and 
to  submit  to  all  proper  deductions;  and  in  either 
of  those  cases,  the  insurer,  after  an  abandon- 
ment, can  claim  no  more  than  what  remains 
of  the  subject  he  has  insured.  This  was  well 
illustrated  by  the  case  stated  on  the  argument, 
that  the  ship  may  belong  to  one  person,  the 
freight  to  another,  and  the  cargo  to  a  third. 
Suppose,  in  that  case,  the  insured  upon  the 
ship  to  abandon  to  the  underwriters,  could 
they,  by  any  construction,  be  justly  entitled  to 
the* freight  which  originally  was,  and  contin- 
ued to  be  the  property  of  another?  They 
plainly  could  not,  and  it  exemplifies  the  inde- 
pendent nature  of  those  different  subjects  of 
insurance,  and  places  them  in  their  true  light. 
To  treat  them  differently,  by  connecting  and 
blending  them  together,  would  lead  to  uncer- 
tainty and  confusion,  and  render  it  impossible 
to  form  a  consistent  and  uniform  rule  on  the 
subject. 

The  circumstance  that  the  insured,  in  the 

359 


379 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


present  case,  is  the  owner  of  both  ship  aiid 
freight,  can  make  no  difference.  If  they 
are  distinct  interests,  it  is  immaterial  whether 
38O*]  *lhey  belong  to  one  or  to  different  per- 
sons. The  whole  adventure  of  a  voyage  (ship, 
freight  and  cargo)  may,  and  frequently  does 
belong  to  the  same  person,  but  I  believe  it 
was  never  imagined  to  follow  from  thence  that 
an  abandonment  of  the  one  could  affect  the 
other.  The  rules  of  law  must  be  fixed  and 
uniform,  and  cannot  depend  on  such  contin- 
gencies. 

The  only  authorities  on  the  subject  are  col- 
lected from  the  French  law  (2  Emerig.,  219, 
221,  who  cites  Roccus),  and  appear  to  me  inap- 
plicable to  our  own.  They  regard  the  freight 
as  accessory  to  the  ship,  and  in  pursuance  of 
the  maxim  that  every  accessory  follows  its  prin- 
cipal, they  hold  that  an  abandonment  of  the 
ship  carries  with  it  the  right  to  the  freight. 
The  application  of  this  maxim  in  the  French 
law,  seems  to  result  from  an  express  ordinance 
of  Louis  XIV.  (2  Val.,  59),  by  which  it  is  de- 
clared that  freight  is  not  an  insurable  interest. 
So  far  from  its  being  considered  a  distinct  ob- 
ject of  insurance,  as  with  us,  the  policy  of 
their  law  does  not  permit  it  to  be  insured  at 
all.  -In  practice,  however,  the  freight,  with 
them,  although  not  insured  eo  nomine,  is  usu- 
ally added  to  the  value  of  the  ship,  and  blend- 
ed in  the  same  policy.  It  therefore  naturally 
follows  that  an  abandonment  on  such  a  policy 
would  transfer  the  title  to  the  freight, 
as  well  as  to  the  ship,  and  they  may  with 
propriety,  in  their  law,  be  considered  as 
attached  to  and  inseparable  from  each 
other.  But  with  us  it  is  not  so;  the  freight  is  not 
an  accessory;  it  is  in  itself  a  principal,  and  treat- 
ing it  as  such,  a  different  rule  ought  to  prevail. 

I  am  therefore  of  opinion  that  the  plaintiffs 
are  not  entitled  to  recover  any  part  of  the 
freight,  and  that  it  belongs  to  the  person  who 
would  have  been  entitled  to  it  if  the  voyage 
had  been  performed  without  any  impediment. 

KENT,  J.  It  does  not  appear  to  be  a  settled 
point  in  the  English  law,  what  is  the  operation 
of  an  abandonment  upon  freight.  There  is  no 
case  that  I  have  met  with  in  which  the  point 
came  into  discussion,  as  it  respected  the  insurer. 
381*]  *In  Luke  v.  Lyde  (2  Burr. ,  882)  a  suit 
was  sustained  by  the  owner  of  the  vessel,  not- 
withstanding his  abandonment,  against  the 
shipper  for  a  ratable  freight  earned  previous 
to  the  abandonment.  But  in  that  case  the 
right  of  freight,  as  between  the  insurer  and  in- 
sured, was  not  determined,  nor  did  it  come 
into  view.  The  whole  attention  of  the  court 
appears  to  have  been  directed  to  the  liableness 
of  the  shipper;  and  whether  the  plaintiff  re- 
covered for  himself,  or  as  trustee  for  the  in- 
surer, or  what  would  have  been  the  opinion  of 
the  court  if  the  insurer  and  the  plaintiff  could 
have  interpleaded  before  them  in  order  to  de- 
termine to  which  of  them  the  freight  so  due 
belonged,  we  cannot  Jearn  from  the  case. 

The  present  question  seems,  therefore,  to  be 
res  Integra,  and  it  must  be  determined  from  the 
consideration  of  the  nature  of  abandonment, 
and  from  the  application  of  known  and 
analogous  principles  in  the  law. 

The  freight  in  the  present  case  belonged  to 
the  insured,  who  owned  the  ship,  and  who 
MO 


abandoned  her.  We  are  not,  therefore,  to  ex- 
amine what  would  be  the  operation  of  an 
abandonment  of  the  ship,  if  the  ship  should  at 
the  time  belong  to  a  different  person.  Here 
the  same  person  was  owner  of  both  ship  and 
freight. 

Abandonment  is  a  cession  of  the  right  of  the 
thing  insured.  If  accepted,  it  is  equivalent  to 
an  absolute  sale  and  delivery  of  the  property, 
and  the  insurer  stands  in  the  place  of  the  in- 
sured, and  is  entitled  to  all  the  advantages  of 
that  situation.  He  must,  consequently,  become 
entitled  to  the  freight  subsequently  earned,  for 
freight  is  incident  to  the  ownership  of  the  ves- 
sel, and  follows  it  as  closely  as  rent  does  the  re- 
version. All  the  subsequent  charges  of  the 
voyage  must  be  borne  by  the  insurer,  and,  as 
he  takes  the  burden,  he  ought  likewise  to  reap 
the  advantage.  And  upon  principles  equally 
strong,  the  insurer  must  be  entitled  to  the 
freight  earning  or  accruing  at  the  time  of  the 
i  abandonment,  in  like  manner  as  if  a  person  sell 
I  or  mortgage,  devise  or  surrender  the  land,  after 
the  crop  sown,  or  if  he  assign  the  reversion  be- 
fore the  rent  becomes  *payable,  the  [*382 
eiriblemtnte  in  the  one  case,  and  the  rent  in  the 
other,  will  pass  with  the  laud.  If  any  portion 
of  the  freight  had  already  become  due,  the 
same  would  undoubtedly  remain  with  the  in- 
sured, and  not  be  affected  by  the  abandonment. 
But  the  growing  freight  must  pass  with  the 
ship,  for  want  of  a  precise  and  definite  rule  of 
apportionment.  The  case  of  a  voyage  partly 
performed,  and  broken  or  diverted  by  the 
perils  of  the  sea,  is  not  susceptible  of  an  ac- 
curate adjustment  of  a  ratable  freight.  And 
although  instances  may  be  supposed,  in  which 
few  difficulties  would  arise,  yet  the  rules  of 
commercial  law  ought  to  be  general  and  per- 
manent, capable  of  being  ascertained  with  cer- 
tainty, and  of  being  applied  with  precision. 

Freight  is  with  us  a  distinct  insurable  inter- 
est, and  this  opinion  has  no  tendency  to  ren- 
der it  less  so.  But  although  a  distinct,  it  is 
so  far  a  qualified  interest,  when  belonging  to 
the  same  person  who  owns  the  ship,  that  if  he 
abandons  the  one  he  must  be  considered  as 
voluntarily  relinquishing  the  other.  The  in- 
surer is  substituted  for  him  by  his  own  act,, 
and  succeeds  to  all  his  rights  as  owner  of  the- 
ship.  Freight  may  be  a  distinct  subject  of  in- 
surance without  losing  in  other  respects  its 
quality  as  an  incident.  It  is  not  necessary  that 
(it  should  be  detached  from  its  principal,  be- 
Vond  what  is  requisite  to  render  it  insurable. 
It  must  still,  in  a  great  degree,  be  considered 
as  merely  appurtenant  to  the  ship,  and  if  dis- 
tinctly insured,  it  is  very  questionable  whether 
the  owner  can  preserve  his  claim  against  the 
insurer  of  the  freight  if  he  abandon  the  ship.' 

In  the  case  before  us,  the  freight  must  be 
considered  as  almost  wholly  earned  subse- 
quently to  the  abandonment,  and  if  any  por- 
tion of  it  was  earned  before,  there  was  none 
due  at  the  time.  The  freight  was  merely  earn- 
ing, and  the  right  to  it  was  inchoate,  and  not 
absolute,  which  it  could  only  have  been  at  the 
delivery  of  the  cargo,  upon  the  completion  of 
|  the  voyage. 

I  am  therefore  of  opinion  that  the  plaintiffs 


>49. 


1.— But  see  3  Caines,  16 ;  1  Johnson,  433 ;  3  Johnsoiv 


JOHNSON'S  ('ABES,   1 .. 


1800 


THE  UNITED  INSURANCE  COMPANY  v.  LENOX. 


are  entitled  to  judgment  for  the  whole  sum 
found  by  the  verdict. 

383*]  *BENSON,  J.  Previous  to  an  imme- 
diate consideration  of  the  question  in  this  cause, 
I  would  state  "that  if  a  freighted  ship  be- 
comes accidentally  disabled  on  its  voyage  (with- 
out the  fault  of  the  master)  the  master  has  his 
option  either  to  refit  it  (if  it  can  be  done  within 
a  convenient  time)  or  to  hire  another  ship  to 
carry  the  goods  to  the  port  of  delivery.  If  the 
merchant  disagrees  to  this,  and  will  not  let 
him  do  so,  the  master  will  be  entitled  to  the 
whole  freight  of  the  full  voyage.  If  the  ship 
is  so  disabled  that  the  master  cannot  carry  the 
goods  in  her,  or  if  he  cannot  find  a  ship  to 
carry  them  to  the  port  of  delivery,  he  shall 
still  be  paid  his  freight,  in  proportion,  how- 
ever, only  to  what  he  has  performed  of  the 
voyage;  but  the  merchant  may  abandon  all  the 
goods,  and  then  he  is  excused  freight."  This 
is  the  language  of  Lord  Mansfield,  in  the  case 
of  Luke  etal.  v.  Lyde  (Burr.,  882),  and  here  as 
well  as  there,  by  the  merchant  is  intended  the 
freighter  and  owner  of  the  goods,  and  by  the 
master,  his  principal  or  constituent,  also  the 
owner  of  the  ship.  From  this  doctrine,  con- 
sidered as  premises,  I  deduce  these  conse- 
quences, that  although  the  ship  cannot  carry 
the  goods,  and  though  the  master  cannot  find 
another  to  carry  them,  yet  that  he  may,  never- 
theless, retain  them  until  he  is  paid  the  freight, 
and  that  if  the  merchant  refuses  to  pay  it,  on 
the  goods  being  tendered  to  him,  he  shall  be 
deemed  to  have  abandoned  them;  and  if  he 
take  the  goods  out  of  the  hands  of  the  master 
(and  whether  on  a  formal  tender  of  them,  or 
otherwise,  is  not  material)  without  paying  the 
freight,  the  law  will  imply  a  promise  by  him 
to  pay  what  may  have  accrued  of  it;  but  if  the 
goods  shall  have  come  to  him  by  a  voluntary 
delivery  only,  he  may,  in  such  case,  rebut  the 
implication  by  proof  in  fact,  that  there  was 
another  and  express  contract,  respecting  the 
freight,  between  him  and  the  master,  at  the 
time  of  the  delivery  of  the  goods,  and  in  con- 
sequence of  which  he  accepted  them,  or  that 
the  master  then  waived  it. 

These  appear  to  me  to  be  the  whole  of  the 
relative  rights  and  duties  of  merchant  and 
384*]  master  requisite  to  be  *noticed,  and  1 
will  only  subjoin,  as  connected  with  the  con- 
sideration of  them,  in  reference  to  the  present 
case,  that  I  do  not  think  the  case  above  cited 
ought  to  be  received  as  deciding  further  than 
that  the  merchant  may  render  himself  liable  on 
the  implied  axsumpsit  I  have  mentioned,  to  pay 
the  freight,  and  as  prescribing  a  rule  to  ascer- 
tain the  proportion  or  rate  of  it.  It  is  true 
that  the  suit  there  was  by  the  master,  the  as- 
sured of  the  ship,  and  he  had  abandoned,  and 
the  assurer  had  accepted  her;  both  the  court 
and  counsel,  however,  seem  to  have  been  prin- 
cipally, if  not  wholly,  occupied  in  examining 
merely,  whether  the  merchant,  inasmuch  as 
the  goods  had  been  delivered  to  him  at  a  place 
to  which  she  had  come  before  the  full  voyage 
was  performed,  was  still  liable  to  pay  freight 
for  them?  It  was  held  that  he  was,  "because 
it  was  not  owing  to  any  fault  in  the  master 
that  the  ship  had  come  to  the  place  where  the 
goods  were  so  delivered,  and  when  he  took  the 
goods  he  did  not  require  the  master  to  find 
JOHNSON'S  CASES,  1. 


another  ship  to  carry  them  to  the  port  of  de- 
livery." And  a  rule  for  the  apportionment  of 
the  freight  is  thereupon  given;  but  the  further 
question,  whether  the  freight  was  to  be  deemed 
as  having  accrued  for  the  benefit  of  the  as- 
sured or  of  the  assurer  on  the  ship,  was  scarce- 
ly, if  at  all,  brought  into  view,  much  less  dis- 
cussed and  determined.  Indeed,  the  reason 
for  the  adjudication,  as  quoted,  shows  most 
manifestly  the  point  intended  to  be  adjudged, 
so  that  it  does  not  appear  that  the  interfering 
claims  of  the  assured  and  the  assurer  to  t  he- 
freight  have  ever  fully  and  distinctly  occurred, 
or* been  submitted,  until  in  the  present  case. 

The  question  on  which  these  respective 
claims  depend,  I  conceive  to  be,  whether,  when 
a  ship  shall  be  abandoned  to  the  assurer,  and 
be  accepted  by  him,  the  freight  she  was  earn- 
ing at  the  time  of  the  accident,  in  consequence 
of  which  she  was  abandoned,  does  not  also 
pass  with  her  to  the  assurer.  On  this  question, 
my  opinion  is  in  favor  of  the  assurer,  and  I 
shall  very  briefly  state  my  reasons  for  this 
opinion. 

*The  right  to  the  freight  is  not  ex-  [*38i> 
tinguished  by  the  abandonment  of  the  ship, 
and  if  it  does  not  pass  to  the  assurer  it  must 
still  subsist  in  the  assured,  and  if  the  latter, 
then  the  assurer  does  not,  by  the  abandonment, 
acquire  a  perfect  or  absolute,  but  only  an  im- 
perfect or  modified  right  in  the  ship.  He 
takes  her  subject  to  a  right  in  the  assured  to 
as  much  of  the  freight  as  can  by  any  means, 
reasonably  practicable  by  the  assurer,  still  be 
eventually  made,  even  as  for  the  full  voyage. 
The  law  will  consider  the  right  of  the  assured 
to  the  freight  as  the  end,  and  will  necessarily 
give  him  ever}'  requisite  mean  to  it,  compre- 
hending the  instrumentality  of  the  assurer, 
which,  if  he  withhold,  the  law  will  then  further 
give  to  the  assured  a  remedy  against  him  by 
suit,  for  the  nonfeasance.  The  right  and  its 
remedy,  as  deduced  from  it,  are,  in  my  con- 
ception, correlative,  the  one  necessarily  im- 
plying the  other;  for,  to  suppose  aright  in  one 
person,  as  reserved  in  law  to  a  possible  event- 
ual benefit,  and  to  suppose,  at  the  same  time, 
that  the  benefit  may  depend  wholly  on  the 
volition  of  another,  whether  it  shall  ever  come 
to  exist,  appears  to  me  to  be  a  legal  solecism. 
Thus,  to  exemplify  the  result  in  the  case  under 
consideration,  however,  the  plaintiffs  might 
have  calculated  it  most  eligible  for  them  to  sell 
the  vessel  at  Rivadeo  for  what  she  would  fetch, 
and  to  have  sent  instructions  there  for  that 
purpose,  they  would  have  been  prevented  from 
exercising  this  kind  of  free  agency;  auy  cal- 
culation of  the  last  loss  upon  the  whole,  al- 
though ever  so  just  and  advisable,  would  not 
have  served  as  an  excuse,  which  must  have 
been  of  a  nature  to  have  answered  for  all  the 
other  underwriters,  however  numerous  or  va- 
riously circumstanced  they  might  have  been 
otherwise,  it  would  have  been  indispensable 
on  the  plaintiffs  to  have  refitted  the  ship  so 
as  to  bring  the  goods  to  New  York,  in  order 
that  the  freight  on  them  might  be  received  by 
the  assured.  This  would  be  an  instance  of 
putting  the  burden  on  one  for  the  advantage 
of  another,  without  parallel;  and  it  may  easily 
be  conceived  to  *happen  that  assurers,  ]j*38<> 
rather  than  subject  themselves  to  such  a  hard- 
ship, would  refuse  to  accept  an  abandonment, 

361 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


however  justly  the  assured  might  be  entitled 
to  make  it,  and  who  would  also  be  obliged  to 
persist  in  it,  in  order  to  his  recovery  for  a  to- 
tal loss;  so  that  the  property  becoming  thus 
derelict,  would  inevitably  become  utterly  lost 
between  them,  when  possibly  by  the  seasona- 
ble interposition  of  either,  a  considerable  por- 
tion of  it  might  have  been  saved. 

These  considerations  appear  to  me  sufficient 
to  show  that  the  supposed  right  in  the  assured 
to  the  freight,  after  an  abandonment  of  the 
ship,  can  never  be  made  to  consist  with  right 
reason;  and  the  least  reflection  will  suggest 
that  I  have  not  pursued  the  case  into  many 
other  consequences  or  questions  which  may 
take  place.  I  will  state  one  only,  and  also  in 
reference  to  what  might  have  happened  in  the 
present  instance.  Suppose  that  the  ship  had 
been  lost  on  the  passage  from  Rivadeo  to  New 
York,  and  as  there  would  not  then  have  been 
A  freight,  out  of  which  the  plaintiffs  could  re- 
imburse the  sum  they  might  have  advanced 
for  refitting  the  ship,  could  they  have  recovered 
it  from  the  assured?  If  not,  there  the  hard- 
ship of  an  assurer's  case  will  appear  to  be  ex- 
treme. 

The  mistake  on  this  subject  I  conceive  to  be 
in  supposing  that  as  the  ship  and  freight  may, 
in  the  first  instance,  be  insured  as  distinct 
interests,  they  continue  as  distinct  interests  to 
every  other  purpose  throughout,  until  the  event 
either  of  the  loss,  or  of  the  safety  of  the  freight, 
shall  have  happened;  without  distinguishing 
that  the  ship  is  the  principal,  or  subject,  or 
thing  which  is  to  produce  the  freight,  and  that 
when  the  assured  abandons  the  ship  to  the 
assurer,  he  transfers  thereby  to  him  his  power 
over  the  ship,  as  the  principal,  and  with  it  his 
power  over  the  freight,  the  accessory  or  inci- 
dent; he  transfers  his  power  over  the  cause, 
«nd,  consequently,  his  right  to  the  eventual 
«ffect,  if  any.  These  interests  may  be  likened 
to  an  interest  in  the  land,  and  the*  emblements. 
By  a  special  contract,  the  land  may  be  trans- 
387*]  ferred,  and  the  emblements  *may  be  re- 
served, otherwise  they  will  pass  with  it.  If 
the  owner  dies  intestate,  the  lands  descend  to 
his  heir,  but  the  emblemcnts  go  to  the  personal 
representatives,  and  the  law  accordingly  gives 
them  a  power  over  the  land.  They  may  enter 
on  it  to  preserve,  promote,  gather,  "and  remove 
the  crop.  Suppose  the  vendor  of  land  was, 
by  a  special  contract,  to  insure  to  the  vendee 
that  the  land,  if  sold,  should  always  sell  for  a 
certain  price;  so  that  the  vendee  might  at  any 
time  abandon  the  land  to  the  vendor  at  that 
price;  if  he  abandoned  it  while  a  crop  was 
growing  on  it,  and  if  the  vendor  should  accept 
it,  it  cannot  be  doubted  but  that  the  vendor 
<the  assurer)  wbuld,  and  as  under  the  original 
contract  of  insurance,  be  entitled  to  the  crop, 
equally  as  if  he  had,  on  a  general  or  ordinary 
contract  of  purchase  and  sale,  repurchased 
and  become  repossessed  of  the  land.  In  short, 
and  which  is  the  foundation  of  my  opinion,  I 
conceive  that  by  the  abandonment  of  a  ship  by 
the  assured,  and  the  acceptance  of  her  by  the 
assurer,  the  property  in  her  passes  as  fully  and 
absolutely  as  it  would  on  a  sale  and  delivery 
of  her.  As  a  consequence  from  this,  it  un- 
doubtedly follows  that  an  assured,  if  he  aban- 
dons, or  in  any  other  manner  transfers  the 
property  and  possession  of  the  ship,  before 


notice  of  the  event,  in  consequence  of  which 
the  freight  is  incontrovertibly  lost,  he  will  be 
deemed  to  have  relinquished  any  insurance  he 
may  have  made  on  the  freight.  If  he  means 
to  save  his  insurance  on  the  freight,  he  must, 
as  it  were,  stick  to  the  wreck  of  the  ship  to  the 
last.1 

I  am  therefore  of  opinion  that  the  plaintiffs 
are  entitled  to  recover  the  whole  freight. 

LEWIS,  J.  In  the  examination  of  the  ques- 
tion presented  for  consideration  in  this  cause, 
it  is  extremely  difficult  to  discover  either  prin- 
ciples or  precedents  that  will  afford  satisfac- 
tory grounds  for  a  just  decision.  Embarrass- 
ments arise  on  either  side.  To  decide  against 
the  plaintiffs  appears  inequitable,  since  we 
should  deprive  them  of  the  earnings  of  the  ship, 
which,  after  the  abandonment,  became  their 
property.  On  the  other  hand,  if  *we  [*388 
say  that  the  plaintiffs  must  recover,  the  in- 
surer on  freight,  who,  it  is  to  be  presumed, 
has  paid  the  amount  to  the  owner,  and  has  a 
just  claim  on  the  subject  for  his  re-imburse- 
ment,  will  be  injured.  A  loss  must  certainly 
fall  on  one  of  two  parties,  equally  innocent, 
and  having  equal  claims.  It  is  to  be  regretted 
that  the  court  are  not  of  one  opinion  on  this 
occasion,  for  it  is  a  case  in  which  it  is  of  more 
importance  that  the  rule  should  be  fixed  and 
certain  than  what  such  rule  should  be.  When 
all  parties  know  the  extent  of  the  hazard  they 
are  to  run  there  will  be  no  cause  for  complaint, 
nor  ground  for  any  objections  of  injustice. 

The  case  of  Luke  v.  Lyde  is  the  only  one  to 
be  found  in  the  books  that  looks  to  the  ques- 
tion now  before  the  court;  but  it  does  not  by 
any  means  reach  the  present  case.  As  far, 
however,  as  that  case  goes,  I  consider  myself 
bound  by  it.  Thus  much  is  established  by 
that  case:  that  the  owner  of  the  ship  is  entitled 
to  freight  pro  rata  itineris,  to  the  point  at  which 
the  voyage  is  broken  up,  and  his  right  to  aban- 
don accrues.  Where  the  freight  is  insured, 
the  insurer  of  the  freight  steps  into  his  place; 
subject,  however,  to  all  the  consequences  of 
his  right  to  abandon  the  ship,  which  is  still  re- 
served to  him.  At  the  time  the  right  to  aban- 
don arises,  the  freight  up  to  that  period  be- 
comes due  and  demandable.  The  freight  that 
subsequently  accrues  must  follow  the  destiny 
of  the  ship  as  an  accessory.  It  is  objected  to 
the  authority  of  this  case  that  the  only  point  in 
it  was,  whether  freight  was  payable,  not  to 
whom  it  was  to  be  paid.  I  do  not  conside*- 
this  objection  as  well  founded,  for  we  cannot 
presume  that  the  owner  would  have  had  judg- 
ment for  the  freight  had  it  been  due  to  the 
underwriters. 

It  is,  perhaps,  to  be  wished  that  our  law  on 
this  subject  was  similar  to  that  of  France, 
where  freight  is  not  allowed  to  be  a  distinct 
subject  of  insurance;  but  the  owner  to  cover 
his  freight  adds  it  to  the  value  of  the  ship.  In 
England  and  in  this  country  it  is  otherwise; 
and  freight,  being  a  distinct  subject  of  insur- 
ance, the  doctrine  *of  abandonment  [*38J) 
and  the  benefit  of  salvage  must  attach  to  it,  as 
far  as  the  nature  of  the  subject  will  permit. 
That  they  cannot  to  the  same  extent  as  in  poli- 


1.— But  see  Livingston  v.  Columbian  Insurance 
Company,  3  Johnson,  49. 

JOHNSON'S  OASES,  1. 


1800 


BKITT  ET  AL.  v.  VAN  NOKDEN. 


889 


cies  on  ships  or  goods,  will,  I  think,  be  mani- 
fest from  the  following  cases. 

Should  the  insurer  on  freight,  in  a  case  cir- 
cumstanced like  the  present,  be  entitled  to  the 
freight  after  a  peril  has  occurred  that  author- 
izes an  abandonment  of  the  ship,  he  could 
have  a  right  to  insist  (if  the  ship  be  repairable) 
that  the  insurers  on  the  vessel  should  repair 
her,  and  permit  her  to  proceed  on  the  voyage. 
And  should  they  refuse,  he  would  have  a 
right  of  action  against  them.  Should  he  be 
owner  of  the  ship  also,  and  so  his  own  insurer 
as  to  freight,  this  absurdity  would  follow — 
that  he  would  have  to  controvert  and  deny 
what  as  owner  of  the  ship  he  had  asserted  and 
relied  on,  namely,  her  inability  to  prosecute 
the  voyage.  Should  the  ship  be  so  disabled  as 
to  be  irreparable,  and  another  vessel  be  pro- 
cured to  transport  her  cargo  to  the  port  of  dis- 
charge, her  insurer  would  be  obliged  to  pay 
the  hire  of  such  vessel,  while  the  owner  of  the 
first  ship  would  be  entitled  to  the  freight. 
Thus  the  insurer  of  the  ship  would  become 
the  insurer  of  the  freight  also,  without  any 
consideration  for  the  risk,  or  any  engagement 
for  that  purpose. 

My  opinion,  therefore,  is  that  the  freight  in 
this  case  ought  to  be  apportioned,  and  that 
the  plaintiffs  should  recover  so  much  only  as 
was  earned  subsequently  to  the  peril  incurred 
that  caused  the  abandonment. 

LANSING,  G h.  J.,  was  of  the  same  opinion. 

The  opinions  of  the  judges  being  thus 
<livided,  Benson,  J.,  and  Kent,  J.,  being  in 
favor  of  the  plaintiffs'  claim  for  the  whole 
freight,  agreed  with  Lansing,  Ch.  J.,  and 
Lewis,  ,/.,  in  giving  judgment  for  the  plaint- 
iffs, for  the  amount  of  the  freight  earned  pro 
rata  intineris  ;  and  judgment  was  given  ac- 
cordingly. 

Judgment  for  tJie  plaintiffs  for  the  freight  pro 
rata. 

Affirmed— 2  Johns.  Cos.,  443. 

Approved— 30  N.  Y.,  253. 

Cited  in— 1  Caines,  578 ;  9  Johns.,  190. 

39O*]  *N.  B.— The  court  said  that  if  the 
plaintiffs  should  elect  still  to  proceed  for  the 
whole  freight,  they  would  direct  the  verdict  to 
be  set  aside,  and  grant  a  new  trial,  in  order  that  a 
special  verdict,  or  an  exception  might  be 
taken  to  the  opinion  of  the  judge  who  might 
try  the  cause,  so  that  the  question  might  be 
brought  before  the  Court  for  the  Correction  of 
Errors;  and  in  that  case,  the  costs  should  abide 
the  event  of  the  suit.1 


BRITT  ET  AU  v.  VAN  NORDEN. 

Special  Bail — Filing — Nune  pro  tune — Costa. 

Where  the  attorney  of  the  defendant  gave  notice 
of  special  bail  before  judgment,  but  the  bail  was 
not  actually  filed,  it  was  ordered  to  be  filed  mine 
pro  tune,  and  that  the  attorney  of  the  defendant 
pay  costs. 

1. — The  case  was  afterwards,  by  consent  of  par- 
ties, put  into  the  form  of  a  special  verdict,  and  a 
writ  of  error  was  brought  into  the  Court  for  the 
Correction  of  Errors,  where,  in  February,  1801,  the 
judgment  of  the  court,  as  above  stated,  for  the 
freight  earned  subsequent  to  the  abandonment,  or 
pro  rata  itineris,  was  affirmed. 

JOHNSON'S  CASES,  1. 


IN  November  last,  the  defendant's  attorney 
gave  notice  to  the  plaintiff's  attorney  that 
special  bail  was  filed  in  this  cause;  and  the 
plaintiffs,  relying  upon  the  information,  and 
not  intending  to  object  to  the  bail,  proceeded 
to  enter  up  judgment  in  January  Term  last, 
but  afterwards  discovered  that  special  bail  was 
not  filed  until  the  24th  of  January. 

Mr.  Hopkins,  for  the  plaintiffs,  now  moved 
that  the  bailpiece  filed  in  January  be  consider- 
ed as  filed  on  the  first  day  of  November  pro- 
ceeding. 

Mr.  Woods,  contra. 

Per  Curiam.  This  irregularity  in  practice 
is  not  to  be  countenanced.  Let  the  plaintiff 
take  his  rule,  with  costs  to  be  paid  by  the  at- 
torney for  the  defendant. 


Rule  granted. 


*BURR  «.  SKINNER. 


[*391 


Commission  —  Notice  after  Notice  for  Trial  — 
Costs. 

If  the  defendant  neglects  to  give  notice  of  a  mo- 
tion for  a  commission  until  after  the  cause  is 
noticed  for  trial,  he  must  pay  the  costs  of  the 
notice  for  trial. 

THE  issue  in  this  cause  was  joined  in  the 
vacation,   and  the  defendant  put  off  the 
trial  on  an  affidavit  and  notice  of  a  motion 
to  be  made  at  the  next  term  for  a  commission. 

Mr.  Boyd,  for  the  plaintiff,  now  moved  that 
the  defendant  should  pay  the  costs  of  the  no- 
tice for  trial. 

Mr.  Pendleton,  contra. 

Per  Curiam.  If  the  defendant  intends  to 
sue  out  a  commission,  he  ought  to  give  notice 
of  it  before  he  receives  a  notice  of  trial,  or 
within  a  reasonable  time  after  issue  is  joined, 
according  to  the  circumstances  of  the  case, 
and  such  notice  will  stay  the  proceeding*. 
But  if  he  waits  until  he  receives  notice  of  trial 
before  he  gives  notice  of  his  intention  to  ap- 
ply for  a  commission,  he  must  pay  the  costs  to 
that  time. 

Rule  granted. 

Cited  in— 1  Wend.,  284;  2  Wend.,  648;  6  How.  Pr., 
115;  Code  Rep.  N.  S.,  407. 


GRAVES  9.  HASSENFRAT8. 

Service — Declaration — No  Appearance. 

Where  no  attorney  appears  for  the  defendant,  the 
service  of  a  copy  of  the  declaration,  by  putting  it 
up  in  the  office,  with  a  notice  to  plead  in  twenty 
days,  is  sufficient. 

THE  declaration  in  this  cause  was  filed  on 
the  28th  of  January,  and  a  copy  thereof, 
with  the  notice  to  plead,  was  served,  by  affix- 
ing the  same  in  the  clerk's  office.  The  de- 
fault was  entered  on  the  19th  of  February, 
after  the  expiration  of  twenty  days,  no  at- 

988 


391 

torney  having  been  employed  by  the  defend- 
ant. 

A  motion  was  now  made  to  set  aside  the  de- 
fault, on  the  ground  that  as  no  attorney  was 
employed,  the  copy  of  the  declaration  should 
have  been  put  up  in  the  clerk's  office  forty 
days  before  the  default  was  entered,  accord- 
ing to  the  8th  rule  of  January  Term,  1799. 

392*1  *Per  Curiam.  The  8th  rule  of  Jan- 
uary Term,  1799,  is  applicable  only  to  the 
case  where  an  attorney  is  employed  by  the 
defendant,  but  neither  lives  in  town,  nor  has 
an  agent  there.  The  rule  must  be  denied. 

Rale  refused. 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


JACKSON,  ex  dem.  BUTLER  ETAI,., 
DITZ. 

Ejectment — Death  of  One  Lessor — Affidavit  of— 
Amendment. 

On  affidavit  of  the  tenant  in  ejectment  that  one 
of  the  lessors  of  the  plaintiff  was  dead,  at  the  com- 
mencement of  the  suit,  the  demises  from  such  les- 
sor were  ordered  to  be  struck  out  of  the  declara- 
tion. 

MR.  HOFFMAN,  Attorney-General,  for  the 
defendant,  on  an  affidavit  that  Butler,  one 
of  the  lessors  of  the  plaintiff,  was  dead,  when 
the  suit  was  commenced,  moved,  previous  to 
entering  into  the  consent  rule,  that  the  first 
and  second  count  in  the  declaration,  in  which 
demises   were    laid  from  Butler,   should    be 
struck  out. 
Mr.  Riggs,  contra. 

Per  Curiam.  The  evidence  of  the  death  of 
Butler  is  sufficient,  prima  fade,  to  put  the 
burden  of  proof  upon  the  plaintiff  to  show 
that  he  is  alive,  and  as  he  has  not  done  so,  we 
are  of  opinion  that  the  demises  by  Butler  should 
be  struck  out  of  the  declaration.  Both  the 
time  and  manner  of  the  application  are  proper. 

Rule  granted. 
Cited  in— 3  Wend.,  153. 


QOURLEY  T.  SHOEMAKER. 

Change  of  Venue  —  Material   Fact  —  Material 
Witness. 

To  change  the  venue  in  a  cause,  it  is  not  enough 
that  material  witnesses  reside  in  another  county, 
but  the  party  must  show  that  there  is  some  ma- 
terial fact  happening  in  the  county  to  which  he 
wishes  to  remove  the  venue. 

A  MOTION  was  made  to  change  the  venue 
L\.  in  this  cause,  which  was  an  action  of  OS- 


NOTE. — Change  of  venue. 

See  note  to  Bentley  v.  Weaver,  ante,  340. 

Convenience  of  witnesses.  See  Du  Boys  v.  Frank,  3 
Caines,  95 ;  Spencer  v.  Hulbert,  2  Caines,  374 :  Ross  v. 
Lown,  8  Johns.,  354;  Duryee  v.  Orcott,  9  Johns.,  348; 
Anon.,  1  Hill,  668;  Anon.,  3  Wend.,  425;  Benedict  v. 
Hibbard,  5  Hill,  509  ;  Hartman  v.  Spencer,  5  How. 
Pr.,  135;  Anon.,  7  Cow.,  102;  Austin  v.  Hinkley,  13 
How.  Pr.,  576;  People  v.  Hayes,  7  How.  Pr.,  248; 
Wood  v.  Bishop,  5  Cow.,  414:  Carew  v.  Bank,  2 
How.  Pr.,  148;  Freeman  v.  King.  3  How.,  Pr.,  10; 
Mumford  v.  Caminonn.3Caines.139;  Williams  v.  Fel- 
lows, 9  Wend.,  451 ;  Hull  v.  Hull,  1  Hill,  671. 

See,  also,  General  Rules  of  Practice  (N.  Y.),  47  and 
48,  pages  Ifi6, 1ST,  158,  159  (1880). 

•M 


sumpsit  for  goods  sold  and  delivered,  on  the 
usual  affidavit. 

Per  Curiam.  It  is  not  sufficient  to  change 
the  venue  to  state  merely  that  material  wit- 
nesses reside  in  the  county  to  which  the  party 
wishes  to  remove  a  cause;  it  ought  to  be  add- 
ed that  evidence  will  be  given  of  some  ma- 
terial fact  happening  there. 

Rule  refused. 


•CRYGIER  t>.  LONG.         [*393 

Cause  of  Action  not  Due — Pleading — Objection. 

Where  the  defendant  was  sued  on  a  note  before-  it 
was  due,  and  put  in  bail  and  pleaded  in  chief,  it 
was  held  that  it  was  too  late  afterwards  to  make 
the  objection.  . 

THIS  was  an  action  of  assumpsit  on  a  prom- 
issorv  note.  The  defendant  was  arrested 
on  the  20th  of  August,  1799,  by  virtue  of  a 
capias  ad  respondendum,  tested  in  July  Term, 
and  returnable  in  October  Term.  The  note 
on  which  the  suit  was  commenced  did  not  be- 
come due  until  the  21st  of  August,  and  was 
payable  on  the  24th. 

A  verdict  was  taken  for  the  plaintiff,  sub- 
ject to  a  case  containing  the  above  facts. 

Mr.  Hawes  for  the  defendant. 
Mr.  Evertson,  contra. 

Per  Curiam.  If  a  person  be  arrested  before 
the  debt  is  due,  he  should  apply,  in  the  first 
instance,  or  to  a  judge  at  his  chambers,  to  be 
discharged,  and  not  put  in  bail  and  plead 
to  the  action.  The  defendant,  in  this  case, 
having  filed  bail  and  pleaded  in  chief,  come* 
too  late  to  make  this  application. 

Rule  refused. 

Distinguished— 8  Cow.,  205. 

Cited  in— 2  Johns.  Cas.,  225 ;  3  Wend.,  172 ;  2 E.  D.  S., 
76 ;  3  Code  Rep.,  171. 


PERCIVAL  v.  JONES. 

Point  Reserved— Special  Verdict. 

A  point  reserved  by  the  judge  at  N.  P.  is  like  a 
special  verdict,  and  the  plaintiff  must  prepare  the 
case  and  open  the  argument. 

THE  court  decided  that  where  a  point  is  re- 
served by  the  judge  at  a  circuit  or  the  sit- 
tings, it  is  the  nature  of  a  special  verdict,  and 
the  counsel  for  the  plaintiff  is  to  prepare  the 
case  and  open  the  argument. 

Cited  in— Col.  &  C.,  372 ;  1  Caines,  99 ;  2  Caines,  108 ; 
38  Ind.,  308. 


*DILL  T.  WOOD. 


[*394 


Cost* 


-Notice   of   Trial — Failure — Objection    1o- 
Defective  Process. 

Costs  were  granted  for  not  proceeding  to  trial 
according  to  notice,  though  the  defendant's  objec- 
tion to  the  jury  process  was  the  reason  why  the 
cause  was  not  brought  on. 

JOHNBOS'S  CASKS,  1. 


1800 


BIUD  ET  AL.  v.  SANDS. 


394 


OWMAN,    for  the  defendant,    moved  for  I  be  given,  by  the  first  day  of  the  next  term,  or 


costs,  because  the  plaintiff  had  neglected 
to  bring  the  cause  to  tfial  at  the  last  circuit, 
pursuant  to  his  notice. 

Mr.  Elmendorf,  contra,  objected  that  the 
reason  why  the  cause  was  not  tried,  was  that 
when  the  cause  was  called  the  defendant's 
counsel  made  an  objection  to  the  jury  process, 
which  was  admitted  to  be  void. 

Per  Curiam.  The  defect  of  the  jury  process 
was  owing  to  the  mistake  of  the  plaintiff's 
attorney,  and  the  defendant  was  under  no 
obligation  to  come  to  trial  on  such  pro- 
cess, nor  had  the  plaintiff  any  right  to  re- 
quire it  of  him.  The  defendant  must  take 
his  rule. 

Rule  granted. 


be  nonsuited.  He  contended  that  though  the 
view  is  granted  at  the  instance  of  the  tenant, 
the  demandant  is  bound  to  sue  out  the  writ. 
(He  cited  Booth,  40.) 

Per  Curiam.     Take  your  rule. 
Mule  granted. 


BIRD  ET  AL.  «.  SANDS. 

Reference — Absence  of  Material  Witness — 
Postponement. 

On  the  affidavit  of  the  defendant  of  the  absence 
of  a  material  witness,  who  had  gone  abroad,  the 
meeting1  of  the  referees  in  the  cause  was  postponed 
for  two  months. 

TITORTMAN,  for  the  defendant,   moved  to 
VV      postpone   the    meeting  of  the  referees 
in  this  cause  until  the  return  of  a  witness  from 
abroad,  who  was  expected  in  two  months. 

Mr.  Pendleton,  contra,  objected  that  the 
cause  had  been  at  issue  more  than  two  years, 
and  the  defendant  had  not  taken  out  a  com- 
mission; and  had  refused  to  join  a  commission 
sued  out  by  the  plaintiffs  in  January,  1798,  to 
take  the  examination  of  the  same  witness. 

Per  Curiam.  The  delay  in  this  cause  is  not 
owing  to  the  defendant,  but  to  the  plaintiffs. 
The  cause  is  now  ready  to  come  before  the 
referees,  and  this  motion  is  to  be  considered 
as  the  first  application  to  put  off  a  trial,  on 
account  of  the  absence  of  a  material  witness. 
The  power  given  by  the  act  to  the  defendant 
to  sue  out  a  commission  in  his  favor,  and  his 
395*]  omission  to  do  it,  cannot  *vary  the 
ordinary  practice.  The  defendant  may  have 
a  rule  to  put  off  the  meeting  of  the  referees 
for  two  months,  unless  the  witness  should  re- 
turn sooner. 

Rule  granted,. 
Cited  in— 30  Johns.,  476. 


EARL  v.  LEFFERTS. 

Consolidation  Rule — Judgment — Costs — Fine. 

Under  a  consolidation  rule  after  judgment  in  one 
cause,  the  defendants  in  the  other  causes  have 
eight  days  to  pay  the  money,  after  judgment  and 
taxation  of  costs ;  and  if  the  judgment  is  rendered 
in  Albany,  and  the  defendants  live  in  New  York, 
they  have  fourteen  days,  and  so  vice  versa ;  but  the 
plaintiff  may,  for  his  own  security,  enter  up  judg- 
ments in  the  other  causes  immediately,  but  the 
costs  are  to  be  deducted  if  the  money  is  paid  in 
time. 

A  CONSOLIDATION  rule  has  been  entered 
in  this  and  several  other  causes,  and  a 
judgment  having  been  entered  in  one  of  the 
causes,  a  question  now  arose  whether  the  plaint- 
|  iff  might    enter  up  judgment    in  the   other 
causes  immediately. 

Per  Curiam.  The  defendants  in  the  other 
causes  may  have  eight  days  to  pay  the  money 
after  judgment  in  the  cause  which  has  been 
tried,  and  taxation  of  the  costs  in  all  other 
causes.  The  plaintiff  may,  however,  pro- 
ceed immediately  *to  perfect  his  judg-  [*3JK> 
ment,  for  his  better  security,  but  if  the 
defendants  pay  the  money  within  the  eight 
days,  they  shall  be  exempted  from  the  costs 
of  entering  up  such  judgments.  Where  the 
judgment  is  rendered  at  Albany,  and  the 
defendants  live  in  New  York,  and  vice  versa, 
they  shall  be  entitled  to  fourteen  days,  within 
which  to  pay  the  money;  but  if  pay- 
ment is  not  made  within  the  time  allowed, 
or  if  the  plaintiff  does  not  choose  to  enter  his 
judgment  until  after  the  time  has  expired,  he 
may  then  enter  it  nunc  pro  tune,  and  have  his 
full  costs. 


SCOFIELD  ET  ux.  9.  LODIE. 

Writ  of  Right — Demand  of  View — Nonsuit. 

Where  the  tenant  in  a  writ  of  right  demands  a 
view,  it  is  the  duty  of  the  demandant  to  sue  out  the 
writ  of  view,  and  if  he  does  not,  he  will  be  non- 
•suited. 

THE  tenant  in  this  cause  at  a  previous  term 
demanded  a  view,  but  no  writ  for  that 
purpose  had  been  sued  out  by  the  demandant. 
Mr.  Munro  now  moved  that  the  demandant 
sue  out  the  writ  of  view,  and  cause  view  to  ! 
JOHNSON'S  CASES,  1. 


STANSBURY,    Assignee  of  the  Sheriff,  &c. , 


DURELL. 

1.  Order  of  Court — Further  Order  at  Cham- 
bers. 2.  Stay  of  Proceedings — Costs — Tends r 
of  Costs.  3.  Special  Bail — Justification. 

After  the  order  of  the  court  in  a  cause1,  a  further 
order  of  a  judge,  at  his  chambers,  on  the  same 
matter,  is  irregular,  When  the  proceedings  in  a 
cause  are  stayed  on  payment  of  costs,  it  is  the  duty 
of  the  defendant  to  seek  the  plaintiff  and  tender  the 
costs.  Special  bail  need  not  justify  unless  required. 

THE  defendant,  at  the  Iftst  October  Term, 
obtained  a  rule  to  stay  the  proceedings  on 
the  bail  bond,  no  person  appearing  to  oppose 
the  motion.  At  the  last  January  Term, 
application  was  made  to  vacate  the  rule 
of  the  preceding  term  on  the  ground  of 
a  want  of  notice;  and  because  one  of  the 
plaintiffs  was  not  truly  named  in  the  bail- 

865 


39« 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


piece  which  had  been  filed  in  the  original 
cause,  and  the  bail  had  not  justified.  The 
court  ordered  that  the  cause  should  be  opened 
and  be  considered  in  the  same  situations  at  the 
commencement  of  the  last  term,  and  that 
proceedings  in  the  suit  on  the  bail-bond  be 
stayed  on  payment  of  costs,  the  bail  justify- 
ing, if  required,  the  name  in  the  bailpiece  to 
be  corrected,  and  the  defendant  to  confess 
judgment  in  the  original  suit. 

The  defendant's  attorney,  supposing  that 
the  order  of  the  court  extended  no  farther 
than  to  vacate  the  rule  of  October  Term, 
applied  to  a  judge  during  the  last  vacation, 
and  obtained  an  order  generally  to  stay  all 
proceedings  to  this  term,  which  was  regularly 
served  on  the  plaintiff's  attorney,  who,  con- 
sidering it  as  irregular,  proceeded  in  the  bail- 
bond  suit. 

• 

3O7*]  *Mr.  Riggs,  for  the  defendant,  now 
moved  to  set  aside  all  the  proceedings  since 
the  last  term,  as  being  contrary  to  the  judge's 
order,  and  that  all  proceedings  on  the  bail- 
bond  be  stayed  on  the  terms  offered  at  the  last 
term. 

Mr.  8.  Jones,  Jun.,  contra. 

Per  Curiam.  As  all  the  proceedings  had 
been  stayed  at  the  last  term,  upon  certain  con- 
ditions, those  conditions  should  have  been  first 
complied  with  before  the  defendant  could  be 
entitled  to  the  benefit  of  the  rule;  and  it  was 
certainly  irregular  to  apply  to  a  judge  at  his 
chambers  for  any  further  order.  It  was  the 
duty  of  the  defendant  to  have  sought  the 
plaintiff  and  tendered  the  costs.  But  as  there 
appears  to  have  been  some  misapprehension  of 
the  rule  at  the  last  term,  proceedings  shall  now 
be  stayed  on  the  same  conditions  ap  at  the  last 
term,  and  on  payment  of  all  subsequent  costs. 

Rule  granted  accordingly. 


MARSTON0.  LAWRANCE  AND  DAYTON. 

1.  Plea — Former  Suit  Pending — Entry  of  Nil 
Capiat — Reply — Costs.  2.  Id. — Abatement — 
Verification. 

Where  the  defendant  pleads  another  action  pend- 
ing, the  plaintiff  may  enter  a  nil  caplat  per  breve,  in 
the  first  suit,  before  a  replication  to  the  plea  in 
abatement,  and  that  without  leave  of  the  court  or 
payment  of  coste. 

Citations— Comyns  Abat.,  I.,  11, 14. 
366 


THIS  was  an  action  on  a  promissory  note,  by 
the  indorsee  against  the  indorsers.  The 
defendants  pleaded  in  abatement  a  former  suit 
by  the  same  plaintiff,  against  them,  on  the 
same  note  to  which  he  had  pleaded  in  abate- 
ment, that  one  Francis  Child  was  a  partner, 
and  ought  to  have  been  joined  with  them, 
which  suit  was  pending  at  the  commencement 
of  the  present  action,  and  is  still  pending.  Rep- 
lication, nul  tiel  record,  and  issued. 

It  appeared  that  on  the  13th  of  December, 
1799,  after  receiving  the  plea  in  abatement,  a 
discontinuance  was  entered  by  the  plaintiff  in 
the  first  suit;  that  the  present  suit  was  com- 
menced before  October  Term,  the  declaration 
filed  the  28th  of  December,  and  the  plea  in 
abatement  received  the  31st  of  December.  On 
the  13th  of  January,  1800,  a  nil  capiat  per  breve 
was  entered  in  the  first  cause,  and  on  the  16th 
of  January,  the  replication  was  filed  in  the 
present  suit,  and  issue  joined  thereon. 

*  Mr.  Hanson,  for  the  plaintiff ,  stated  [*398 
the  question  to  be,  whether  the  discontinuance 
of  the  former  suit  must  be  entered  before  the 
new  suit  is  commenced  or  at  any  time  before  the 
replication  of  nul  tiel  record  was  filed.  He 
contended  that  the  discontinuance,  being  mat- 
ter of  right,  might  be  entered  at  any  time  be- 
fore replication.  (He  cited  1  Cromp.,  188; 
Barnes,  257;  1  Leon.,  105;  Impey's  K.  B.,  p. 
169;  1  Sellon,  304.) 

Mr.  Pun-,  for  the  defendants,  contended 
that  after  a  plea,  the  plaintiff  cannot  discon- 
tinue without  leave  of  the  court. 

Mr.  Harison,  in  reply,  insisted  that  no  leave 
was  necessary  in  any  case  where  there  was  not 
room  for  the  court  to  impose  terms  or  con- 
ditions on  the  defendant,  which  was  the  case 
here. 

Per  Curiam.  It  is  sufficient  if  the  nil  capiat 
per  breve  be  entered  at  any  time  before  repli- 
cation in  the  second  suit.  The  cases  cited 
show  that  a  discontinuance  may  be  entered  at 
any  time  before  plea  pleaded  in  the  second 
suit,  without  leave  and  without  costs.  In  a 
plea  of  abatement,  the  defendant  must  verify 
his  whole  plea.  (Comyns  Abat.,  I.,  11).'  If  hie 
does  not,  he  must  answer  over,  and  where  the 
plea  is  triable  by  record,  there  may  be  a  judg- 
ment of  re&pondeas  ouster,  as  well  as  where  the 
trial  is  by  certificate  or  inspection.  Comyn* 
Abat.,  I.,  14). 

Judgment  of  respondeas  ouster. 

Cited  in— 16  Wend.,  638;  10  N.  Y.,  501 ;  3  How.  Pr., 
416;  10  How.  Pr.,  86. 

JOHNSON'S  CASES,  1 . 


[END  OF  APRIL  TERM.] 


SUPREME  COURT  OF  JUDICATURE 


STATE   OF   NEW   YORK, 


JULY  TERM:,  IN  THE  YEAR  isoo. 


399*]  *  JACKSON  ex  dem.  CULVERHOUSE, 

•v. 
BEACH. 

1.  Alien — Release  to,  by  Trustee — Naturalization. 
2.  TitU  in  State— Office  Found.  3.  Natu- 
ralization— Retroactive. 

A  conveyed  land  to  B  in  trust  for  C  who  was  an 
alien.  C  afterwards,  and  before  any  office  found, 
became  duly  naturalized,  and  B  released  the  estate 
held  in  trust  by  him.  It  was  held  that  the  convey- 
ance to  C  was  valid.  No  title  in  case  of  alienism, 
vests  in  the  people  of  the  State,  until  after  office 
found.  Naturalization  has  a  retroactive  effect,  and 
confirms  the  former  title. 

Citations— Coke,  53 ;  Powell  on  Devises,317 ;  7  Term 
R.,  398 ;  1  Bac.  Abr.,  81,133 ;  2  Black.  Com.,  249, 250 ;  Co. 
Litt.,  8a:  Ibid.,  129  a;  4  Black.  Com.,  381,  482;  Shop. 
Touch.,  82;  Cowp.,  599;  2  Wilson,  275. 

THIS  was  an  action  of  ejectment.  At  fthe 
trial  of  the  cause  at  the  last  circuit  in  the 
city  of  New  York,  the  following  facts  were 
either  proved  or  admitted:  One  Obadiah 
Wells,  being  seized  of  the  premises  in  question, 
on  the  8th  August,  1792,  conveyed  the  same 
to  one  William  Cogdill,  who,  on  the  14th  May, 
1793,  conveyed  the  premises  to  one  John  8. 
Hunn,  by  deed,  as  follows: 

"  This  indenture,"  &c. 

"  Whereas  it  was  lately  agreed  by  and  be- 
tween the  said  William  Cogdill  and  William 
Culverhouse,  at  present  of  the  city  and  county 
aforesaid,  but  late  of  the  island  of  Great  Britain, 
that  the  said  William  Cogdill  should,  for  the 
sum  of  £100  current  money  of  the  State  of  New 
York,  release,  convey,  and  confirm  in  fee-simple 


unto  the  said  William  Culverhouse,  or  such 
other  person  or  persons  as  he  should  appoint, 
all  and  singular  the  lot  of  ground  hereafter 
mentioned,  bounded,  and  described,  and  that 
free  and  clear,  and  *f reely  and  clearly,  [*4OO 
discharged  of  and  from  all  incumbrance* 
whatsoever,  except  one  certain  mortgage  exe- 
i  cuted  by  Obadiah  Wells,  late  owner  of  the 
premises  hereinafter  mentioned,  unto  the 
commissioner  or  commissioners  of  the  loan  of- 
fice of  the  State  of  New  York,  upon  this  lot, 
together  with  other  lots;  £71  of  the  said  mort- 
gage being  agreed  to  be  upon,  and  to  be  paid 
by  the  proprietor  or  owner  of  the  said  lot  here- 
in to  be  conveyed;  which  £71  is  agreed  be- 
tween the  said  Cogdill  and  Culverhouse,  shall 
be  a  part  of  the  said  purchase  money,  and  to 
be  paid  and  discharged  by  the  said  William 
Culverhouse,  not  having  as  yet  resided  two 
whole  years  within  the  State,  'is,  by  the  laws 
thereof,  barred  from  holding  real  estate  there- 
in until  the  expiration  of  the  said  two  years, 
and  until  he  hath  taken  the  oath  of  riaturali/a- 
tion  agreeable  to  the  laws  of  the  State  of  New 
York,  to  remedy  which  .  inconvenience,  the 
said  William  Culverhouse  hath  appointed 
John  S.  Hunn  to  take  the  title  of  the  said  lot 
from  the  said  William  Cogdill;  but  in  trust  for 
the  only  use,  benefit,  and  behoof  of  him,  the 
said  William  Culverhouse,  his  heirs  and  as- 
signs. Now,  this  indenture  witnesseth,  that 
the  said  William  Cogdill,  in  pursuance  of  the 
aforesaid  agreements;  and  also  for  and  in  con- 
sideration of  the  said  sum  of  £100  to  him  in 
hand  paid,  or  secured  to  be  paid  by  the  said 
William  Culverhouse,  at  and  before  the 
ensealing  and  delivery  of  these  presents,  the 


NOTE.— Aliens,  their  rights  as  to  real  property. 

By  purchase  an  alien  can  take  and  hold  against  all 
the  world  except  the  State,  and  against  the  State 
until  office  found.  Fairfax  v.  Hunter,  7  Cranch, 
603 ;  Orr  v.  Hodgson,  4  Wheat.,  453 ;  Gouveneur  v. 
Robertson,  11  Wheat.,  332 ;  Smith  v.  Zaner,  4  Ala., 
99 ;  Scanlan  v.  Wright,  13  Pick.,  523 ;  Bradstreet  v. 
Supervisors,  13  Wend.,  546 ;  Munro  v.  Merchant,  28 
N.  Y.,  9;  Jackson  v.  Lunn,  3  Johns.  Cas.,  109;  Lar- 
reau  v.  Davignon,  5  Abb.  Pr.,  N.  S.,  307;  Fox  v. 
Southack,  12  Mass.,  143 ;  People  v.  Conklin,  2  Hill,  68 ; 
Wadsworth,  v.  Wadsworth,  12  N.  Y.,  376 ;  Jones  v. 
McMaster,  20  How.  (U.  S.),  8 ;  Jackson  v.  Adams,  7 
Wend.,  367 ;  Halstead  v.  Com'rs  of  Lake,  56  Ind.,  303 ; 

JOHNSON'S  CASES,  1. 


People  v.  Snyder,41  N.  Y.,397 ;  1  McCord  (S.  C.  Ch.),  370. 

See  Priest  v.  Cummings,  20  Wend.,  338. 

By  descent  an  alien  cannot  take  lands.  He  has  no 
inheritable  blood.  See  note  to  Jackson  V.  Lunn,  3 
Johns.  Cas.,  109. 

Naturalization,  its  effect  on  alien's  right  to  hold 
real  property.  See  Sutliff  v.  Forgey,  1  Cow.,  89; 
Vaux  v.  Nesbit,  1  McCord  (S.  C.  Ch.),  370;  Heney  v. 
Brooklyn  Benevolent  Society,  39  N.  Y.,  333;  People 
v.  Conklin,  2  Hill,  68. 

Disabilities  of  aliens  are  affected  in  most  of  the 
States  by  statutes.  For  a  summary  of  the  statutory 
provisions,  see  1  Wash.  Real  Prop., pp.  74,  75  (4th  Ed.). 

See  N.  Y.  Rev.  Stot.  (7th  Ed.),  pp.  2,164-2,174. 

*  307 


400 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1800 


receipt  whereof  is  hereby  acknowledged,  hath 
granted,  bargained,  sold,  aliened,  released,  con- 
veyed and  confirmed,  and  by  these  presents 
doth  grant,  bargain,  seal,  alien,  reraise,  release, 
•convey  and  confirm  unto  the  said  John  S. 
Hunn*  in  his  actual  possession  now  being,  and 
to  his  heirs  and  assigns  forever,  all,"  &c. 

On  the  12th  January,  1795,  Culverhouse,  the 
lessor  of  the  plaintiff,  was  duly  naturalized; 
and  on  the  26th  February  following,  Hunn, 
the  trustee  named  in  the  above  mentioned  deed, 
for  the  consideration  of  ten  shillings,  released 
to  him  by  deed  the  estate  so  held  in  trust. 
4O1*]  *The  words  used  in  the  release  were: 

"John  S.  Hunn  hath  remised,  released,  and 
forever  quitclaimed,  and  by  these  presents  doth 
remise,  release,  and  forever  quitclaim  unto  the 
said  William  Culverhouse,  and  to  his  heirs  and 
assigns,  all  the  right,  title,  interest,  property, 
possession,  claim  and  demand  of  him,  the  said 
John  S.  Hunn,  his  heirs  and  assigns,  of,  in, 
and  to  all,  &c.,  and  the  reversion  and  rever- 
sions, remainder  and  remainders,  rents,  issues, 
and  profits  thereof,  of  him,  the  said  John  S. 
Hunn,  his  heirs  and  assigns.  To  have  and  to 
hold  all  and  singular  the  right,  title  and  inter- 
est of  him,  the  said  John  S.  Hunn,  his  heirs 
and  assigns,  of,  in,  and  to  the  above  described 
premises  and  appurtenances,  unto  him,  the 
said  William  Culverhouse,  forever." 

It  was  admitted  that  the  lessor  of  the  plaint- 
iff was  never  in  the  actual  possession  of  the 
premises,  which  were  vacant.  After  the  release 
from  Hunn  to  Culverhouse,  the  present  action 
was  brought  to  recover  the  possession.  No 
office  had  been  found,  nor  any  proceedings  in- 
siituted  in  behalf  of  the  people  of  this  State. 

Messrs.  Hamilton  and  Riker  for  the  plaintiff. 
Mr.   Wbrtman,  contra. 

Per  Curiam.  It  does  not  lie  with  the  de- 
fendant to  object  to  the  alienism  of  the  lessor 
of  the  plaintiff;  for  the  interest  granted  to 
'Culverhouse  was  not  forfeited  so  as  to  vest  the 
title  in  the  people  of  the  State-,  until  after  office 
found  (Co.,  53,  Page's  case;  Powell  on  Devises, 
317;  7  T.  R,  398;  1  Bac.  Abr.,  81,  133);  and 
until  then  he  was  competent  to  hold  the  land 
against  third  persons.  Even  if  the  defendant 
could  make  this  objection,  yet  the  lessor  of  the 
plaintiff  having  been  naturalized,  that  naturali- 
zation has  a  retroactive  effect,  so  as  to  be 
deemed  a  waiver  of  all  liability  to  forfeiture, 
and  a  confirmation  of  his  former  title  (2  Bl. 
Com..  249,  250;  Co.  Lit*.,  8  a;  Ibid,  129  a;  4 
Bl.  Com.,  381,  482.)  Whether  the  convey- 
ance to  Hunn,  therefore,  be  considered  as  vest- 
ing the  estate  in  Culverhouse,  by  force  of  the 
statute  of  uses,  or  not,  it  is  immaterial  to  in- 
quire, provided  the  deed  from  Hunn  to  Cul- 
verhouse was  sufficient  to  vest  the  legal  estate. 
As  this  release  recites  the  trust,  and  was  for 
4O2*]  *the  further  consideration  of  ten  shil- 
lings, we- think  it  a  good  conveyance.  The 
words  are  sufficient  to  raise  a  use  in  favor  of 
Culverhouse,  and  the  consideration  ought  to 
determine  the  effect  of  a  deed  more  than  the 
formal  words  used  in  it.  A  release  may  oper- 
ate as  a  grant  (Shop.  Touch.,  82;  Cowp.,  599; 
2  Wilson,  275),  and  vice  verm.  Where  the  in- 
tent of  the  parties  appears  to  have  be*en  to  pass 
the  estate,  courts  are  inclined  to  give  effect  to 
86S  » 


that  intent  as  far  as  possible.  In  the  present 
case  the  intent  is  obvious,  and  the  deed,  in 
judgment  of  law,  may  be  considered  as  a  bar- 
gain and  sale.  Again,  as  no  adverse  posses- 
sion appears  to  have  existed  at  the  time  (and  it 
is  not  to  be  presumed),  it  may  be  inferred  that 
the  possession  accompanied  the  deed;  and  the 
release  may  be  made  effectual  by  considering 
it  as  a  grant,  or  that  possession  went  with  it, 
as  circumstances  may  require. 

Judgment  for  tJie  plaintiff. 

Distinguished— 3  Johns.  Cas.,  120. 
Cited  in— 4  Wend.,  67;  7  Wend.,  368 ;  16  Wend.,  638  ; 
28  Barb.,  661 ;  7  Leg.  Obs.,  194., 


DOE  T.  ROE. 

1.  New  Trial  —  Newly  Discovered  Evidence  —  Is»ue 
Out  of  Chancery.  2.  Evidence  —  Deed  Not 
Ackno^eledgcd  —  Record  —  Copy. 

On  an  affidavit  of  newly  discovered  evidence,  a 
new  trial  was  granted,  on  an  issue  out  of  the  Court 
of  Chancery.  A  paper  purporting  to  be  the  record 
of  a  deed,  and  not  duly  acknowledged,  is  a  nullity, 
and  not  admissible  in  evidence,  either  as  a  record  or 
as  a  copy  of  a  deed. 


was  a  feigned  issue,  directed  out  of 
-L  the  Court  of  Chancery,  and  tried  before 
Mr.  Justice  Kent,  at  the  Circuit  in  New  York, 
on  the  24th  of  July,  1799.  The  issue  was, 
"whether  a  certain  deed  alleged  by  the  said 
Richard  Roe  to  have  been  made,  executed, 
and  delivered  by  one  Cornelius  Cozine,  the 
elder,  deceased,  in  his  lifetime,  whereby  he 
did  give  and  grant,  bargain,  sell,  release,  and 
convey  unto  his  two  sons,  Cornelius  Cozine, 
the  younger,  and  Balm  Johnson  Cozine,  and 
their  heirs  and  assigns,  all  that  certain  tract 
of  land,  &c.,  at  Bloomingdale,  was  made,  exe- 
cuted, and  delivered,  or  not." 

On  the  trial,  the  following  facts  appeared: 
Cornelius  Cozine  the  elder  was  in  possession, 
and  reputed  to  be  the  owner  of  the  farm  in 
question.  Some  years  before  his  death,  he 
removed  to  the  city  of  New  York,  where  he 
chiefly  resided,  until  his  death  in  1765.  When 
he  removed  *to  the  city,  his  wife  and  [*4O«5 
daughter  and  his  two  sons  above  named  re- 
mained on  the  farm,  which  he  occasionally 
visited.  His  wife  died  during  the  American 
war,  and  his  two  sons,  Cornelius  and  Balm, 
after  the  removal  of  their  father,  continued  to 
reside  on  the  farm,  and  to  cultivate  it  as  their 
own,  until  his  death. 

One  of  the  witnesses  testified  that  he  had 
h'eard  Cornelius  Cozine  the  elder  declare  that 
the  farm  belonged!  to  his  said  sons,  and  that  he 
was  sorry  that  they  had  not  made  a  better  use 
of  it.  Cornelius  Cozine  the  younger  died  in 
1773,  and  Balm  Johnson  Cozine  died  -during 
the  American  war,  and  they  both  continued 
in  possession  of  the  farm  until  their  deaths  re- 
spectively. In  1771,  B.  F.  Cozine  built  a 
dwelling-house  on  the  farm,  and  about  the 
year  1773,  he  caused  a  barn  to  be  built  upon  it. 

The  counsel  for  the  defendant  then  offered 

in  evidence  the  original  record  of  a  deed  pur- 

porting to  bear  date  the  23d  of  April,  1759,  and 

to  have  been  duly  executed  by  Cornelius  CO- 

JOHNSON'S  CASES.  1. 


GOELET   V.    M'KlNSTRY. 


403 


zine,  the  elder,  to  his  two  sons  above  men- 
tioned, by  which,  in  consideration  of  £1,000, 
he  conveyed  the  farm  in  question  to  them,  as 
joint  tenants  in  fee-simple.  The  deed  ap- 
peared to  have  been  recorded  in  the  office  of 
the  Clerk  of  the  City  and  County  of  New 
York,  on  the  application  of  Cornelius  Cozine, 
of  Bloomingdale,  on  the  10th  December, 
1761,  in  consequence  of  the  following  proof 
and  certificate  indorsed  thereon,  to  wit: 

"City  of  New  York,  ss.  Thomas  Clement, 
of  the  city  of  New  York,  scrivener,  maketh 
oath  that  he  wrote  the  within  instrument  as  a 
clerk,  and  was  present  and  saw  the  within- 
named  Cornelius  Cozine,  Sen.,  sign,  seal  and 
deliver  the  within  instrument  as  his  act  and 
deed,  for  the  uses  therein  mentioned,  and  that 
he  saw  at  the  same  time,  the  within-named 
Nathaniel  Holmes  and  Henry  Green  sign  their 
names  as  witnesses  thereto,  in  the  presence  of 
the  said  Cornelius  Cozine,  and  also  of  this  de- 
ponent, and  further  this  deponent  saith  not. 
"  Thomas  Clement , 

"Sworn,  9th  December,  1761,  before  me, 
' '  William  Smith. " 

4O4*]  *"Be  it  remembered,  that,  on  the  9th 
day  of  December,  in  the  year  of  our  Lord 
1761,  personally  appeared  before  me,  William 
Smith,  one  of* His  Majesty's  council  for  the 
province  of  New  York,  the  above-named 
Thomas  Clement,  of  the  city  of  New  York, 
scrivener,  and  made  the  affidavit  above  men- 
tioned; and  I,  having  perused  the  within  in- 
strument, and  finding  therein  no  erasures  or 
interlineations,  do  allow  the  same  to  be  re- 
corded, and  to  take  effect,  as  the  law  requires. 
" WILLIAM  SMITH." 

The  original  deed  was  not  produced,  and 
the  defendant's  counsel  said  that  they  could 
give  no  particular  account  of  it;  and  the  judge 
refused  to  let  the  above  record  be  read  to  the 
jury,  in  evidence  of  the  deed  alleged  to  have 
been  made,  executed,  and  delivered  by  Cor- 
nelius Cozine  the  elder  to  his  two  sons  above 
named,  unless  some  proof  could  be  given  of 
the  loss  of  the  original  deed :  and  a  verdict  was 
thereupon  found  for  the  plaintiff. 

On  a  case  made,  containing  the  above  facts, 
and  also  on  affidavits  of  the  discovery  of  new 
and  material  evidence  since  the  trial,  a  motion 
was  now  made  to  set  aside  the  verdict,  and 
for  a  new  trial. 

The  affidavits  stated,  that  one  Forman,  the 
father  of  the  deponent,  had  in  his  possession, 
hefore  the  late  war,  several  papers  belonging 
to  Cornelius  Cozine,  and  Balm  F.  Cozine,  and 
among  them  a  deed,  said  to  be  from  Cornelius 
Cozine  the  elder  to  his  two  sons,  for  the  farm 
at  Bloomingdale,  which  were  lodged  with  the 
said  Forman  for  safe  keeping,  and  were  kept  in 
a  wooden  box;  that  a  number  of  the  papers 
were  destroyed  by  the  rats  having  eaten 
through  the  box,  and  that  three  or  four 
years  ago,  the  top  of  the  box  was  off; 
that  having  searched  the  box  the  day  before, 
and  made  diligent  inquiry  in  the  family,  no 
papers  belonging  to  the  Cozines  could  be 
found. 


Messrs.  Hamilton,  Hanson,  and  Ogilvie,  for 
the  plaintiff. 
JOHNSON'S  CASES,  1.  N.  Y.  REP.,  BOOK  1. 


Messrs.  Pendleton  and  Troup  for  the  defend- 
ant. 

Per  Curiam.  (Absent,  the  Chief  Justice.) 
As  it  is  suggested  that  further  light  can  be 
thrown  on  the  case,  and  *new  evi-  [*4O5 
dence  appears  to  have  been  discovered,  we 
think,  without  expressing  any  opinion  on  the 
merits  of  the  case,  that  a  new  trial  ought  to  be 
granted  on  the  payment  of  costs.  We  con- 
sider the  paper  offered  at  the  trial  and  rejected 
as  a  nullity,  and  wholly  inadmissible;  it  is 
neither  a  record,  nor  a  copy  of  a  deed. 

New  trial  granted.1 

Cited  In— 20  Wend.,  429;  12  Barb.,  387;  3  Wood  &  M., 
356. 


GOELET  «.  M'KlNSTRY. 

Partnership — Purchase — Action  Against  Sur- 
vivor — Allegations. 

If  one  of  the  two  partners  in  trade  purchase  goods 
for  both,  and  one  of  them  dies,  an  action  of  indebit- 
atus  assumpsit  may  be  brougnt  against  the  sur- 
vivor, without  taking  notice  of  the  partnership,  or 
the  death  of  one  and  the  survivorship  of  the  other. 

Citation— Comb.,  383. 

THIS  was  an  action  of  assumpsit  for  goods 
sold  and  delivered  to  the  defendant.  The 
cause  was  tried  at  the  last  circuit  in  the  city  of 
New  York,  when  a  verdict  was  found  for  the 
plaintiff,  for  $430.85,  with  liberty  for  the 
plaintiff  to  alter  the  verdict  to  $234.92,  in  case 
the  court  should  be  of  opinion,  on  the  follow- 
ing facts,  that  the  plaintiff  was  not  entitled  to 
the  full  amount  of  the  verdict. 

The  plaintiff  gave  in  evidence  an  account 
for  goods  sold  and  delivered  to  the  defendant 
alone,  which,  with  the  interest,  amounted  to 
$234.92. 

He  then  offered  in  evidence  another  account 
for  goods  sold  and  delivered  by  him  to  the  de- 
fendant and  one  Hatch,  as  partners. 

It  was  proved  that  Hatch  was  dead,  and  that 
the  defendant  had  since  acknowledged  the  ac- 
count to  be  just,  and,  after  striking  the  bal- 
ance, had  promised  to  pay  it.  This  balance, 
when  added  to  the  sum  due  on  the  separate 
account  of  the  defendant,  made  the  amount 
found  by  the  verdict. 

The  declaration  stated  that  the  defendant 
alone  was  indebted,  without  taking  notice  of 
the  partnership  between  him  and  Hatch,  or  that 
Hatch  was  dead,  and  that  the  defendant  had 
survived. 

*Mr.  Troup,  for  the  plaintiff,  cited  [*4O6 
Comb.,  383;  2  Term  Rep.,  479. 

Per  Curiam.  The  case  of  Hyatt  v.  Hare 
(Comb.,  383),  is  in  point.  It  was  there  de- 
cided that  "  if  there  be  two  partners  in  trade, 
and  one  of  them  buy  goods  for  them  both,  and 
the  other  dieth,  the  survivor  may  be  charged 
by  indebitatus  assumpsit  generally,  without 
taking  notice  of  the  partnership,  or  that  the 


1.  The  original  suit  is  still  pending  in  the  Court  of 
Chancery. 


24 


369 


406 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


other  is  dead  and  he  survived."  This  is  not 
only  reasonable,  but  well  settled  law.  The 
plaintiff  must  have  judgment. 

Jadgmentfor  the  plaintiff. 

Cited  in— 15  Wend.,  318 ;  3  McLean,  167. 


LA  PLACE  t>.  AUPOIX. 

1.   Trover — Defendant's  Admission.     2.  Ibid. — 
Demand. 

If  the  defendant  admits  that  he  had  the  goods  of 
the  plaintiff,  and  that  they  are  lost,  this  is  sufficient 
evidence  of  a  conversion  to  maintain  trover,  with- 
out showing  a  demand  and  refusal.  A  demand  of 
payment  or  satisfaction  generally,  for  the  goods,  is 
a  sufficient  demand. 

Citations— 1  Esp.t  Cases,  31 ;  4  Term  R.,  260 ;  1  Burr., 
393. 

THIS  was  an  action  of  trover  for  a  quantity 
of  indigo.  Plea  not  guilty.  The  cause 
was  tried  at  the  last  circuit  before  Mr.  Chief 
Justice  Lansing.  The  plaintiff  gave  in  evi- 
dence a  written  note,  without  date,  from  the 
defendant  to  the  plaintiff,  in  the  words  follow- 
ing: 
"  Sir  and  Friend, 

•'  You  may  rely  on  my  diligence  to  make 
the  most  of  your  indigo,  of  which  you  have  a 
cask  and  six  barrels  and  a  half,  weighing  nett 
1,373  pounds.  I  will  hold  the  proceeds  to 
your  orders  when  collected." 

A  witness  deposed  that  he  was  present  at  a 
conversation  between  the  plaintiff  and  the  de- 
fendant, before  the  commencement  of  the 
present  action,  in  which  the  plaintiff  demanded 
the  money  for  his  indigo ;  that  the  defendant 
said  that  the  goods  were  lost,  and  that  the  in- 
surance was  not  yet  settled;  that  the  plaintiff  re- 
plied he  had  not  authorized  the  defendant  to 
sell  them,  or  to  make  insurance.  The  wit- 
ness understood  from  the  conversation  that  the 
property  had  been  delivered  to  the  defendant 
in  the  island  of  Hispaniola,  and  had  been 
shipped  to  the  United  States;  and  that  the  in- 
surance had  been  made  in  England,  but  was 
not  yet  paid. 

4O7*]  *The  counsel  for  the  defendant  in- 
sisted that  the  plaintiff  had  failed  in  his  proof, 
and  that  a  verdict  ought  to  be  given  for  the 
defendant. 

The  judge  observed  to  the  jury  that  in  a  case 
of  this  nature  it  was  necessary  to  prove  a  de- 
mand of  the  goods  specifically,  unless  there 
was  evidence  of  their  having  been  converted 
into  money;  and  that  where  there  was  such 
evidence,  proof  of  a  demand  of  payment,  and 
refusal,  was  sufficient  to  establish  a  conver- 
sion; that  although  he  was  inclined  to  think 
that  the  plaintiff  had  not  produced  such  evi- 
dence, nor  supported  his  action,  he  thought 
the  equity  of  the  case  was  on  his  side;  and  that 
if,  therefore,  the  jury  were  satisfied  that  the 
property  in  question  had  been  turned  into 
cash  at  the  time  of  the  demand  of  payment, 
they  might  then  consider  the  refusal  as  suffi- 
cient proof  of  conversion,  and  find  a  verdict 
for  the  plaintiff. 

The  jury  found  for  the  plaintiff  accordingly, 
for  the  full  amount  of  the  indigo. 
370 


A  motion  was  now  made  to  set  aside  the 
verdict  and  for  a  new  trial. 

Messrs.  A.  Bleecker  and  Hopkins  for  the 
plaintiff. 

Mr.  B.  Livingston  for  the  defendant. 

Per  Curiam.  The  defendant  in  this  case 
admitted  that  he  had  the  goods  in  question,  and 
that  he  had  lost  them.  This  is  sufficient  evi- 
dence of  a  conversion;  it  would  have  been 
idle  to  make  a  formal  demand  of  goods,  after 
the  defendant  had  declared  that  they  were  lost. 
Besides,  the  plaintiff  demanded  payment  and 
satisfaction  generally,  and  that  was  sufficient. 
(Thompson  v.  Shirley  and  Body,  1  Esp.,  Cases, 
31;  4  Term  Rep.,  260;  1  Burr.,  393.) 

Rule  refused. 

Cited  in-6  Wend.,  607 ;  48  N.  Y.,  495 ;  5  Barb.,  564 ; 
Hemp.,  19. 


*MACKAY       [*4O8 

v. 
RHINELANDER,  HARTSHORNE  ET  AL. 

1.  Marine  Insurance — Misrepsentatwns — length 
of  voyage — Question  for  jury.  2.  Agent  — 
Witness —  Competency. 

If  a  vessel  be  represented  as  out  "about  nine 
weeks,"  when  in  fact  she  has  been  out  ten  weeks 
and  four  days,  it  is  not  a  material  misrepresenta- 
tion, provided  the  latter  period  be  within  the  usual 
time  of  the  voyage ;  and  whether  it  be  so  or  not.  is 
a  question  of  tact  for  the  jury  to  decide.  An  agent 
of  the  insured  who  applied  to  the  broker  to  have 
the  policy  effected,  like  all  agents,  is  a  competent 
witness,  ex  necessitate. 

THIS  was  an  action  on  a  policy  of  insurance 
made  upon  the  brig  called  the  Leonard, 
on  a  voyage  from  Boston  to  Surinam.  The 
cause  was  tried  at  the  last  November  Circuit 
in  the  city  of  New  York,  before  Mr.  Justice 
Radcliff.  The  interest  of  the  plaintiff,  and  the 
loss  of  the  vessel  by  capture  and  condemna- 
tion were  proved,  and  that  the  usual  prelimin- 
ary proofs  had  been  given.1 

1. — These  preliminary  proofs,  and  the  practice  of 
requiring  evidence  of  their  having  been  exhibited 
to  the  insurer  before  the  commencement  of  the  ac- 
tion, originated  from  a  particular  clause  inserted  in 
the  New  York  policies  that  "  the  loss  is  to  be  paid  in 
thirty  days  after  the  proof  thereof." 


NOTE.— Marine  insurance,  representation. 

Representation  is  an  affirmation  of  some  material 
fact,  extrinsic  to  the  policy,  or  an  allegation  which 
would  lead  the  mind  to  the  same  conclusion.  3 
Kent  Com.,  282 ;  Livingston  v.  Md.  Ins.  Co.,  7  Cranch, 
506 ;  1  Parsons  Marine  Ins.,  402,  et  seq. 

Distinguished  from  warranty  in  that  warranty  is 
inserted  in  the  policy,  must  be  Strictly  complied 
with,  and,  to  effect  policy,  need  not  be  material. 
Macdowall  v.  Eraser,  1  Doug.,  280 ;  Pawson  v.  Wat- 
son, Cowp.,  785;  DeHahn  v.  Hartley,  1  T.  R.,  343 ; 
Callaghan  v.  Atlantic  Ins.  Co.,  1  Edw.  Ch..  64;  Suck- 
ley  v.  Delaneld,  2  Caines,  222  ;  1  Parsons'  Marine  Ins., 
408 ;  Augusta  Ins.  Co.  v.  Abbott  12  Md.,  348;  Mis- 
representation, if  material,  avoids  the  policy. 
Fitsherbert  v.  Mather,  1  T.  R.,  13;  Columbian  Ins. 
Co.  v.  Lawrence,  2  Pet.,  25 ;  Lewis  v.  Eagle  Ins., 
Co.,  10  Gray,  508;  17  Wend.,  a5fl;  Hazzard  v.  N.  E. 
Mar.  Ins.  Co.,  8  Pet..  557;  Dennistown  v.  Lilie,  3 
Bligh.,  202;  Macdowall  v.  Fraser.l  Doug.,  260;  Au- 
gusta Ins.  Co.,  v.  Abbott,  12  Md.,  348. 

The  test  of  materialitu  is  not  whether  the  fact 
could  or  did  effect  the  risk,  but  whether  it  would 

JOHNSON'S  CASES,  1.. 


1800 


MACKAY  v.  RHINELANDER,  HAKTSHORNE,  ET  AL. 


408 


The  insurance  was  effected  pursuant  to  a 
written  order  for  that  purpose,  dated  the  9th 
August,  1798,  and  which  stated  the  vessel  as 
having  been  out '  'about  nine  weeks. "  A  witness 
stated  that  it  was  represented,  at  the  time  the 
policy  was  underwritten,  that  the  nine  weeks 
were  to  be  computed  from  the  3d  August, 
1798,  and  that  this  was  so  admitted  by  the 
plaintiff  in  a  case  containing  the  facts  agreed 
to  be  submitted  to  referees. 

The  Leonard  sailed  from  Boston  on  the  21st 
May,  1798,  for  Surinam,  and  was  captured  on 
the  21st  June,  and  sent  into  Cayenne,  and 
there  condemned  as  prize.  Several  merchants 
and  shipmasters  were  sworn  as  witnesses,  some 
of  whom  stated  their  opinion  to  be  that  the 
difference  between  nine  weeks,  and  ten  weeks 
and  four  days,  on  such  a  voyage  was  material, 
and  would  enhance  the  risk;  and  that  a  vessel 
out  ten  weeks  was  out  of  time,  the  usual 
passage  from  Boston  to  Surinam  being  from 
twenty-five  to  forty  days,  and  home,  from 
twenty-five  to  thirty-five  days;  others  stated 
that  the  passage  from  Boston  to  Surinam  was 
from  thirty -five  to  sixty  and  ninety  days; 
one  witness  testified,  that  he  had  known 
passages  of  four  and  five  months. 
4O9*]  *The  agent  of  the  plaintiff  who  pro- 
cured the  insurance  was  offered  as  a  witness, 
to  prove  the  order  given  to  the  broker,  and 
what  representations  were  made.  He  was 
objected  to  as  interested  in  showing  that  he 
had  followed  his  instructions;  but  this  objec- 
tion was  overruled  by  the  judge.  The  wit- 
ness stated  that  when  he  first  applied  to  the 
broker,  he  gave  him  a  letter  of  the  plaintiff, 
dated  the  3d  Angust,  1798,  in  which  he  stated 
the  vessel  to  be  out  about  nine  weeks;  that  the 
written  order  was  afterwards  given  to  the 
broker,  and  the  word  "about"  was  interlined 
in  it  after  advice  of  the  loss  was  received;  that 
the  representation  to  the ,  defendants  was  that 
the  vessel  had  been  out  about  nine  weeks. 

The  judge  charged  the  jury,  that  the  word 
"about,"  as  used  in  the  representation,  was 
of  an  indefinite  meaning,  and  not  capable  of  a 
precise  determination:  but  ought  to  be  con- 
strued according  to  the  subject  to  which  it 
applied,  the  voyage  insured ;  that  to  have 
reference  to  the  time  within  which  the  vessel 
might  probably  be  heard  of,  in  order  to  deter- 
mine whether  she  was  so  far  out  of  time  as  to 
increase  the  risk,  would  be  too  nice  a  calcula- 
tion; that  he  thought  the  weight  of  evidence 
in  favor  of  the  fact  that  the  vessel  had  not,  at 
the  time  the  policy  was  underwritten,  been  out 
beyond  the  usual  term  of  such  a  voyage;  and 
that,  therefore,  the  difference  between  nine 


weeks,  and  ten  weeks  and  four  days,  was  not 
so  material  to  the  risk  that  it  ought  to  vacate 
the  policy.  The  jury  found  a  verdict  for  the 
plaintiff. 

A  motion  was  now  made  to  set  aside  the  ver- 
dict, and  for  a  new  trial. 

1.  Because  of  the  misdirection  of  the  judge. 

2.  Because  the  agent  of  the  plaintiff  was  an 
inadmissible  witness. 

3.  Because  the  verdict  was  against  evidence. 

Messrs.  Hamilton  and  Evertson  for  the 
plaintiff. 

Mr.  Harison  and  Mr.  8.  Jones,  Jun.,  for  the 
defendants. 

*Per  Curiam.  The  representation  [*41O 
that  the  vessel  was  out  about  nine  weeks, 
when,  in  fact,  she  had  been  out  ten  weeks  and 
four  days,  was  not  material,  as  no  fraud  was 
pretended,  since  it  appeared  that  a  passage  of 
ten  weeks  and  four  days  was  within  the  usual 
period  of  a  voyage  from  Boston  to  Surinam; 
because  no  more  presumption  of  loss  could 
arise  in  the  one  case  than  in  the  other,  and  the 
only  use  in  stating  the  time  is  to  enable  the 
insurer  to  estimate  the  risk.  Now  whether 
ten  weeks  and  four  days  would  be  within  the 
usual  time  was  a  fact  for  the  jury  to  deter- 
mine, according  to  the  weight  of  evidence. 
From  this  view  of  the  case,  it  is  unnecessary 
to  examine  the  meaning  and  effect  of  the 
word  "  about,"  used  in  the  representation  to 
the  insurers.  The  cause  has  been  submitted 
to  the  jury  on  the  weight  of  evidence,  and  not 
considering  the  verdict  as  against  evidence, 
we  are  not  disposed  to  disturb  it. 

The  agent  of  the  plaintiff,  Mr.  Codman,  like 
all  other  agents,  was  a  competent  witness,  ex 
necessitate. 

We  are  therefore  of  opinion  that  the  de- 
fendants must  take  nothing  by  their  motion. 

Rule  refused. 

N.  B.  The  plaintiff  in  this  cause  having  died 
after  the  verdict,  and  subsequent  to  the  time 
the  judgment  might  have  been  entered  on  the 
return  of  the  postea,  had  it  not  been  .suspended 
by  a  case  made  for  a  motion  for  a  new  trial, 
the  court  ordered  the  judgment  to  be  entered 
for  the  plaintiff  nunc  pro  tune,  as  of  the  term 
subsequent  to  the  verdict. 

Cited  in-4  N.  Y.,  348 ;  67  N.  Y.,  202 ;  4  Barb.,  524 ;  8 
How.  Pr.,  246;  52  How.  Pr.,  161 ;  9  Abb.,  22;  2  Hilt, 
319. 


reasonably  affect  the  insurers  opinion.  Seaman  v. 
Fonereau,  Strange,  1183;  Farmers  Ins.  Co.  v. 
Snyder,  16  Wend.,  481 ;  Ely  v.  Hallett,  2  Caines,  59 ; 
Lynch  y.  Dunsford,  14  East,  495. 

Question  of  materiality,  in  general,  for  the  juri/. 
N.  Y.  Firemen  Ins.  Co.  v.  Waidon,  12  Johns.,  513; 
Livingston  v.  Delafleld,  1  Johns.,  522 ;  Barnewall  v. 
Church,  1  Caines,  236 ;  Farmers  Ins.  Co.  v.  Snyder, 
above  cited ;  Livingston  v.  Md.  Ins.  Co.,  6  Cranch, 
274?  Md.  Ins.  Co.,  v.  Ruden,  6  Cranch,  338;  M'Lan- 
ahan  v.  Universal  Ins.  Co.,  1  Pet.,  170. 

Representations  as  to  the  future.  Dennistown  v. 
Lilie,  3  Bligh.,  202;  Bowden  v.  Vaughn,  10  East., 
415;  Rice  v.  N.  E.  Mar.  Ins.  Co.,  4  Pick.,  439;  Alston 
v.  Mechanics  Mutual  Ins.  Co.,  4  Hill,  329 ;  Bryant  v. 
Ocean  Ins.  Co.,  22  Pick.,  200 ;  Whitney  v.  Haven,  13 
Mass.,  172 ;  Hubbard  v.  Glover,  3  Camp.,  313. 

Duty  of  assured  to  state  rumors.    Lynch  v.  Hamil- 

JOHNSON'S  CASES,  1. 


ton,  3  Taunt.,  36;  Lynch  v.  Dunsford,  14  East.,  494; 
Ely  v.  Hallett,  2  Caines,  57. 

Usage  as  modifying  insurance  contracts.  Mc- 
Gregor v.  Ins.  Co.,  1  Wash.,  C.  C.,  39;  Hone  v. 
Mutual  Safety  Ins.  Co.,  1  Sandf .  Super.,  137 ;  Mutual 
Safety  Ins.  Co.  v.  Hone,  2  N.  Y.,  235;  Mercantile 
Ins.  Co.  v.  State  Ins.  Co.,  25  Barb.,  319 ;  Rankin  v. 
Am.  Ins.  Co.,  1  Hall,  616;  Mobile  Marine  Dock  Mut- 
ual Ins.  Co.  v.  McMillan,  27  Ala.,  77;  Columbian 
Ins.  Co.  v.  Catlett,  12  Wheat.,  383;  Taunton  Copper 
Co.  v.  Merchants  Ins.  Co.,  22  Pick.,  108;  Winsor  v. 
Dillawav,  4  Met.,  221;  Hazzard  v.  N.  E.  Mar.  Ins. 
Co.,  8  Pet.,  557. 

Particular  representations  held  material  or  other- 
wise. In  addition  to  cases  already  cited,  see  Alsop 
v.  Coit,  12  Mass.,  40 ;  Kirby  v.  Smith,  1  B.  &  Aid.,  672 ; 
Irvin  v.  Sea.  Ins.  Co.,  22  Wend.,  380 ;  Williams  v. 
Delafleld,  2  Caines,  329. 

371 


411 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1800 


411*]  *ANDREWS  v.  BEECKER. 

Assignment— Bond — Release  —  Notice  —  Plead- 
ings. 

Where  the  obligor  of  a  bond,  after  notice  of  its 
being  assigned,  took  a  release  from  the  obligee,  and 
then  pleaded  it  to  an  action  brought  by  the  assignee 
in  the  name  of  the  obligee,  and  tne  plaintiff  replied 
the  prior  assignment,  the  replication  was  held  good, 
and  the  release  was  considered  as  a  mere  nullity. 

THIS  was  an  action  of  debt,  on  a  bond  dated 
14th  January,  1799,  conditioned  to  execute 
a  certain  deed  therein  mentioned. 

The  defendant  pleaded  a  release  given  to 
him  by  the  plaintiff,  dated  the  23d  September, 
1799,  of  all  suits,  debts,  bonds,  &c.  The  plaint- 
iff replied  that  on  the  18th  January,  1799,  he 
assigned  the  bond  to  Adams  &  Parish,  of 
which  the  defendant  had  due  notice.  To  this 
replication  there  was  a  general  demurrer  and 
joinder. 

Mr.  Woods,  in  support  of  the  demurrer. 
Mr.  Riggs,  contra.  • 

Per  Curiam:  The  replication  is  clearly 
good.  A  release  after  the  assignment  of  the 
bond  and  notice  to  the  defendant  is  a  nullity, 
and  ought  not  to  be  regarded.  As  the  demur- 
rer does  not  appear  to  be  frivolous,  the  defend- 
ant may  withdraw  it  on  payment  of  costs,  and 
rejoin. ' 

Approved— 11  Johns.,  49 ;  13  Johns.,  22. 

Cited  in— 2  Johns.  Gas.,  260 ;  3  Johns.,  426 ;  5  Johns., 
194 ;  8  Johns.,  154 ;  15  Johns.,  407 ;  17  Johns.,  292  ;  19 
Johns.,  97 ;  6  Hill,  239 ;  47  How.  Pr.,  244,  445. 


412*]        *POST  v.  VAN  DINE. 

Attachment  —  Sforiff—Bail  —  Tender  of    Money 
—  Costs. 

Where  the  defendant  tendered  the  money  during 
court,  having  put  in  bail,  which  was  excepted  to, 
and  the  plaintiff  did  not  ask  for  a  trial,  the  court 
refused  to  fix  the  sheriff  by  an  attachment. 


capias  in  this  cause  was  returnable  at 
1.  the  last  April  Term.  The  declaration  was 
filed  de  bene  esse,  on  the  6th  of  May.  On  the 
llth  of  June  the  plaintiff  received  notice  of 
special  bail,  and  on  the  13th  excepted  to  the 
bail.  The  rule  for  bringing  in  the  body  of 
the  defendant  having  expired  on  the  llth  of 
July,  the  plaintiff  refused  to  accept  of  addi- 
tional bail,  unless  they  would  justify.  On  the 
same  day  notice  of  second  bail  was  given  to 


the  plaintiff,  and  an  offer  was  made  by  the 
defendant  to  deposit  a  sum  of  money  to  the 
full  amount,  as  security.  Two  persons  were 
then  put  in  as  bail,  with  a  notice  of  justifica- 
tion on  the  19th  of  July,  but  they  now  jus- 
tified in  open  court.  The  defendant  also 
made  an  affidavit  of  merits. 

A  motion  was  now  made  in  behalf  of  the 
plaintiff  for  an  attachment  against  the  sheriff, 
on  the  ground  that  where  a  trial  is  lost,  an  at- 
tachment will  be  issued  to  stand  as  security. 
( 1  Sellon,  214;  4  Term  Rep.,  352.) 

Mr.  Eacker  for  the  plaintiff. 
Mr.  Walton  for  the  defendant. 

Per  Curiam.  There  was  no  time  at  the 
last  circuit  to  try  a  junior  cause,  so  that,  in 
truth,  no  trial  has  been  lost.  The  defendant 
having  sworn  to  merits,  and  as  he  tendered, 
on  the  llth  of  July,  the  full  amount  in  money 
as  security,  which  was  refused,  and  as  bail 
has  since  justified,  we  think  the  motion  ought 
to  be  denied,  but  on  payment  by  the  sheriff  of 
the  costs  of  the  rule  to  show  cause,  and  of  this 
motion. 

Rule  refused. 


*ST AFFORD  0.COLE  AND  SPAULD-  [*413 
ING. 

Service — By  Mail — Affidavit  of  Evidence 

If  the  defendant's  attorney  swears  that  he  sent  a 
plea  to  the  plaintiff's  attorney  by  mail,  the  court 
will  presume  it  was  received,  unless  the  contrary  be 
made  to  appear. 

TUDGMENT  in  this  case  had  been  entered 
J  by  default,  for  want  of  a  plea,  though  a 
plea  was  sent  by  the  mail,  and  the  attorney 
for  the  defendant  swore  that  he  believed  it 
was  received  by  the  plaintiff's  attorney. 

Mr.  Riker,  for  the  defendant,  now  moved  to 
set  aside  the  judgment  for  irregularity. 
Mr.  Wortman,  contra. 

Per  Curiam.  The  defendant's  attorney 
swears  that  he  sent  the  plea  by  mail,  and  that 
he  believes  it  was  received;  and  as  this  is  not 
denied  by  the  plaintiff's  attorney,  though  he 
had  a  copy  of  the  affidavit  some  days  before 
making  his  counter-affidavit,  we  will  presume 
that  the  plea  was  received.  The  judgment 


1.  The  above  is  the  only  note  of  the  case  that 
could  be  found,  and  the  reasons  of  the  court  are 
not  fully  stated.  The  principle,  however,  has  been 
more  than  once  recognized  by  this  court.  ( Wardell 
v.  Eden,  1  John.,  531,  note,  Littlefteld  v.  Storey,  3 
John. )  Some  difference  appears  to  have  existed  in 
the  English  courts  on  the  question.  In  Bauerman 
v.  Radenius  (7  Term  Rep.,  663),  Mr.  Erskine  cites  a 
case  brought  by  a  nominal  plaintiff,  for  persons 
beneficially  interested,  for  whom  he  was  a  trustee, 
in  which  the  defendant  produced  a  release  from 
the  plaintiff,  and  Lord  Mansfield  held  it  conclusive: 
and  Lord  Kenyon,  in  the  ease  then  before  the 
court,  seems  to  consider  himself  as  bound  by  the 
strict  rules  of  law  to  admit  the  declarations  and 
acts  of  the  plaintiff  on  the  record,  to  defeat  the 
action,  though  the  plaintiff  appeared  to  be  a  mere 
trustee  for  third  persons.  And  in  the  case  of  Craib 
et  ux  v.  D'Aeth  (7  Term  Rep.,'670  ),  the  Court  of 

372 


King's  Bench  admitted  the  doctrine  to  be  so  settled. 
But  the  Court  of  C.  B.  in  the  east!  of  Legh  v.  Legh 
( 1  Bos.  &  Pull.,  447 ),  decided  in  conformity  with  the 
above  opinion  in  Andrews  v.  Beecker,  and  certainly 
in  a  manner  more  agreeable  to  equity  and  common 
sense.  Courts  of  law  having  recognized  assign- 
ments of  choscs  in  action,  are,  in  justice,  bound  to 
protect  the  rights  of  the  assignees,  as  much  as  a 
court  of  equity,  though  they  may  still  require  the 
action  to  be  brought  in  the  name  of  the  assignor. 
They  have,  in  numerous  instances,  of  late  years, 
taken  notice  of  trusts,  and  it  would  be  absurd  to 
turn  the  party  around  to  another  court,  upon  a 
mere  formal  objection.  (1  Term  Rep.,  621;  4  Term 
Rep.,  340,  341.)  The  English  courts  have  felt  and 
expressed  their  indignation  at  the  attempt  of  a 
mere  nominal  plaintiff  in  ejectment,  to  defeat  the 
rights  of  persons  beneficially  interested.  (Payne  v. 
Rogers,  Doug.,  406 ;  1  Salk.,  260.) 

JOHNSON'S  CASES,  1. 


1800 


BOARDMAN   AND   HUNT  V.    FOWLER,    MANUCAPTOR,    ETC. 


413 


must  be  set  aside,  on  payment  of  costs  by  the 
plaintiff's  attorney  himself. 

Rule  granted. 
Cited  in— 10  Wend.,  635 ;  11  How.  Pr..  484. 


BOARDMAN  AND  HUNT  *>.  FOWLER, 
Manucaptor,  &c. 

1.  Sickness  of.    2.  Bail — Excuse — Surrender — 
Deputization. 

The  sickness  of  bail  was  admitted  as  a  good  ex- 
cuse for  not  surrendering;  the  principal  within  the 
eight  days.  Special  bail  may  depute  another  to 
•nake  the  surrender,  ex  necessitate. 

A  MOTION  was  made  in  behalf  of  the 
defendant,  to  stay  the  proceedings  on  the 
recognizance  of  bail,  and  for  leave  to  enter 
an  exoneretur  on  the  bail  piece. 

It  appeared  that  the  defendant  was  arrested, 
in  this  suit,  on  the  17th  of  April;  that  he  fell 
sick  on  the  21st  of  April,  and  continued  ill  for 
ten  days;  and  the  principal  was  surrendered 
on  the  26th,  by  an  agent  of  the  defendant,  he 
being  unable  to  attend  for  that  purpose. 

It  was  objected  that  the  surrender  was  not 
made  within  eight  days  after  the  return  of  the 
capias  against  the  bail,  and  that  the  surrender 
was  made  by  an  agent  of  the  bail,  who  could 
not  depute  another  to  take  the  principal. 

4 1 4*]  *Per  Curiam.  The  sickness  of  the  de- 
fendant was  a  sufficient  excuse  for  not  making 
the  surrender  within  the  eight  days.  It  appears 
by  a  certificate  of  the  sheriff,  that  the  princi- 
pal surrendered  himself,  and  we  are  to  pre- 
sume that  it  was  done  voluntarily,  so  there  is 
no  room  for  the  objection  as  to  an  agent ;  but  if 
that  were  a  question  now  to  be  decided,  we 
are  inclined  to  think  that  special  bail  may,  ex 
necessitate,  depute. 

Rule  granted. 

Cited  in-4  Johns.,  310 ;  7  Johns.,  153 ;  5  Cow.,  26 ;  30 
How.  Pr.,  20 ;  10  Abb.,  380 ;  12  Abb.,  84 ;  16  Wall.,  371. 


KEMBLE  «.  FINCH 

Ejectment— Second  Declaration —  Waiver. 

The  service  of  a  second  declaration  in  ejectment, 
by  the  plaintiff's  agent,  though  without  his  knowl- 
edge, is  a  waiver  of  the  first. 

A  DECLARATION  in  ejectment,  in  this 
cause,  was  served  on  the  tenant  in  pos- 
session, who  soon  after  quitted,  and  another 
tenant  came  into  possession,  when  a  person 
acting  as  the  agent  of  the  plaintiff  served  a 
second  declaration  on  the  new  tenant.  This 
was  done  without  the  knowledge  of  the  plaint- 
iff's attorney,  who  proceeded  under  the  first 
declaration,  and  took  judgment  against  the 
casual  ejector.  A  motion  was  now  made  to 
set  aside  the  judgment,  and  all  subsequent 
proceedings. 
JOHNSON'S  CASES,  1. 


Per  Curiam.  By  the  service  of  a  new 
declaration  by  the  plaintiff's  agent,  though 
without  the  "  knowledge  of  his  attorney : 
the  first  declaration  and  service  were  waived. 
The  plaintiff  may,  at  any  time,  stay  or  waive 
his  own  proceedings,  and  his  acts  must  bind 
him.  Let  the  proceedings  in  the  first  cause  be 
set  aside  and  the  lessor  of  the  plaintiff  pay  the 
costs  of  this  application. 

Rule  granted. 


*LEFFERTS  v.  BYRON. 


[*415 


Amendment  of  Declaration — Service. 

Where  a  declaration  has  been  served  with  oyer, 
and  the  declaration  is  afterwards  amended,  and  a 
copy  of  the  amended  declaration  served  on  the 
defendant,  a  new  oyer  need  not  be  delivered. 

THE  declaration  with  oyer  in  this  cause,  was 
served  on  the  defendant's  attorney.  The 
declaration,  being  afterwards  discovered  to  be 
incorrect,  was  amended,  and  served  de  no'co, 
without  a  new  oyer.  The  defendant's  attorney 
refused  to  receive  the  amended  declaration, 
without  a  new  oyer,  and  the  plaintiff  proceeded 
and  entered  a  default. 

Mr.   T.    L.    Ogden,  for  the  defendant,  now 
moved  to  set  aside  the  default. 
Mr.  Hopkins,  contra. 

Per  Curiam.  There  was  no  necessity  for 
serving  a  new  oyer  with  the  amended  declara- 
tion, the  first  being  correct.  The  motion  must 
be  denied. 

Rule  refused. 


COLVIN  D.  MORGAN. 

Privilege — Member  of  Assembly. 

A  member  of  the  assembly  is  not  entitled  to  his 
privilege  after  he  has  reached  home,  though  within 
the  fourteen  days. 

Citation— Rev.  Laws  of  N.  Y.,  Vol.  I.,  p  133. 

THE  defendant  in  this  cause  moved  to  be 
discharged  from  the  arrest,  on  the  ground 
that,  being  a  member  of  the  Assembly,  he  was 
arrested  within  fourteen  days  after  leaving  the 
Legislature,  but  he  did  not  state  whether  he 
bad  reached  his  home  or  not,  at  the  time  of 
the  arrest. 

Per  Curiam.  If  the  defendant  arrived  at  his 
tiome  within  the  fourteen  days,  and  before 
the  arrest,  the  reason  of  his  privilege,  and,  of 
ourse  the  privilege  itself,  ceased.  (Rev.  Laws 
of  N.  Y.,  vol.  1.,  p.  133.)  As  the  defendant 
does  not  state  where  he  was  at  the  time  he  was 
arrested,  the  motion  must  be  denied  with  costs. 


Rule  refused. 
Cited  in-2  Johns.  Cas.,  222. 


373 


416 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1800 


416*]  *!N  THE  MATTER  OF  WILLIAMS,  an 
Insolvent  Debtor. 

Imprisoned   Debtors — Non-resident    Creditors — 
Notice. 

In  proceedings  under  the  "Act  for  the  relief  of 
debtors,  with  respect  to  the  imprisonment  of  their 
persons,"  creditors  residing  out  of  the  State,  as  it 
respects  notice,  are  to  .be  considered  as  not  to  be 
found. 

A  N  application  was  made  in  behalf  of  the 
i\.  insolvent,  who  was  in  prison,  that  he 
might  be  discharged  under  the  "Act  for  the 
relief  of  debtors,  with  respect  to  the  impris- 
onment of  their  persons." 

It  was  objected,  1.  That  notice  had  not  been 
served  on  a  particular  creditor  residing  in  the 

374 


State  of  Massachusetts,  nor  an  affidavit  made 
that  he  could  not  be  found. 

2.  That  the  sum  for  which  the  prisoner  was 
charged  in  execution  was  not  mentioned  in  his 
petition. 

3.  That  the  inventory  purports  to  be  an  in- 
ventory of  his  real  and  personal  estate,  when, 
in  fact,  no  real  estate  was  mentioned  in  it. 

Per  Curiam.  All  the  objection  s  are  frivolous. 
A  person  residing  out  of  the  State,  as  to  the 
service  of  a  notice  under  the  act,  is  to  be  con- 
sidered as  not  to  be  found. 

Rule  granted. 


The  Chief  Justice  was  absent  during  the 
whole  of  this  terra,  on  account  of  extreme  sickness 
in  his  family. 

JOHNSON'S  CASES,  1. 


[END  OF  JULY  TERM.] 


CASES   ADJUDGED 


IN  THE 


Court  for  the  Trial  of  Impeachments 

AND  THE 

CORRECTION    OF   ERRORS,* 


FROM 


FKBRTJA-RY,    1798,    TO 


,    18OO. 


417*]  *HERMAN  LE  EOT,  WILLIAM 
BAYARD,  AND  GERRIT  BOON,  Appel- 
lants, 

v. 

LEWIS  VEEDER,  MICHAEL  GALLIN- 
GER,  HANS  GALLINGER,  LODOWICK 
SNYDER,  JOHN  SNYDER,  NICHOLAS 
SHAFER,  PETER  RUPERT,  JOHN 
HOWELL,  MICHAEL  RUSSEL,  AMOS 
ANSLEY,  GEORGE  STAM,  MATTHIAS 
LINK,  JOHN  SMITH,  AND  JOHN  FIMS, 
Respondents. 

1.  Injunction — Lost  or  Destroyed  Title  Deeds — 
Sufficiency  of  Affidail.  2.  Pleading — Illegal 
Contract.  3.  Demurrer — Charging  Champerty 
and  Maintenance.  4.  Bill  of  Discovery  and 
Relief — Demurrer —  Want  of  Equity — Remedy 
at  Law.  5.  Cost*  on  Reversal— Separate  De- 
murrers. 6.  Court  of  Equity — Rules  Govern- 
ing. 

Where  a  bill  is  filed  by  several  complainants, 
praying-  an  injunction  and  seeking  relief  on  account 
of  title  deeds  which  are  lost,  an  affidavit  of  one  of 
the  complainants,  that  "he  had  been  informed  and 
verily  believed,  and  hoped  to  prove,  that  the  deeds 
in  question  did  exist,  and  were  lost  or  destroyed  in 
the  manner  mentioned  in  the  bill,"  is  sufficient. 
Whether  a  plea  that  a  contract  relative  to  land  to  be 
patented  is  illegal,  because  it  contravened  the  royal 
instruction  (prior  to  the  American  Revolution)  re- 
straining the  patents  for  lands  to  a  certain  quantity 
to  each  patentee,  is  a  valid  plea,  entered 

It  seems  that  a  demurrer  to  a  bill,  charging  that 
the  defendants  claimed  land  by  conveyances  from 
persons  out  of  possession  and  praying  a  discovery 
of  that  fact,  because  it  might  subject  the  defendant 


to  the  penalties  of  the  act  for  buying  pretended 
titles,  would  be  bad,  unless  it  appears  that  the 
answer  would  show  that  the  defendant  knew  of  the 
vendors  being  out  of  possession,  and  of  a  subsisting 
adverse  possession. 

If  a  complainant  be  properly  before  the  court  for 
a  discovery,  and  at  the  same  time  prays  relief,  a 
general  demurrer  to  the  bill  for  want  of  equity,  or 
because  the  plaintiff  has  a  fit  and  adequate  remedy 
at  law,  is  bad  unless  it  is  manifest  on  the  face  of  the 
complainant's  bill,  that  no  discovery  or  proof  can 
possibly  make  his  case  a  proper  subject  of  equitable 
jurisdiction. 

Where  several  defendants  in  chancery  put  in 
separate  demurrers,  on  which  separate  decrees 
were  given,  this  court  on  the  reversal  of  those 
decrees  on  appeal,  obliged  each  respective  respond- 
ent to  pay  to  the  appellants  his  costs  on  the  appeal 
for  each  respective  decree  so  reversed. 

Citations— Nelson,  78;  1  Vern.,  180;  1  Vern.,  247;  2  P. 
Wins.,  541 ;  3  Atk.,  132 ;  1  Vesey,  345 ;  Free,  in  Chan., 
536;  2  Brown's  Chan.,  Rep.,  280;  Id.  309;  4  Id.  480;  1  Atk., 
450;  2  Atk.,  389;  1  Ves.,  248;  Munro  v.  Allaire. 

rpHE  appellants  (the  complainants  in  the 
JL  court  below)  exhibited  their  bill  in  chancery 
against  the  respondents  and  sixteen  other  de- 
fendants, therein  named,  in  which  they  set 
*forth,  that  governor  Sir  Henry  Moore,  [*418 
on  the  2d  February,  1768,  purchased  from  the 
native  Indians  a  tract  of  land,  containing  25,000 
acres,  then  in  the  County  of  Albany,  but  now  in 
the  County  of  Montgomery,  for  the  use  of  Peter 
Lewis,  Moses  Ibbit,  Peter  Lewis,  Jun.,  Samuel 
Runyons,  Peter  Millar,  Lucas  Veeder,  Peter 
Frederick,  Stephen  Hipp,  Michael  Russel,  Peter 
Fiax,  Leonard  Crutzenbergen,  Michael  Gal- 
linger,  Andries  Snyder,  Nicholas  Shafer, 
George  Hipp,  Johannes  West,  Adam  Rupert, 
Francis  Beard,  George  Keep,  George  Stam, 
Lawrence  Eaman,  Matthias  Link,  Thomas 


*  By  the  32d  article  of  the  constitution  of  the  State  of  New  York,  this  court  is  to  consist  of  the  "Presi- 
dent of  the  senate  for  the  time  being,  the  senators,  Chancellor,  and  judges  of  the  Supreme  Court,  or 
the  major  part  of  them;  except  that  when  an  impeachment  shall  be  prosecuted  against  the  Chancellor, 
or  either  of  the  judges  of  the  Supreme  Court,  the  person  so  impeached  shall  be  suspended  from  exer- 
cising his  office  until  his  acquittal:  and  in  like  manner,  when  an  appeal  from  a  decree  in  equity  shall 
be  heard,  the  Chancellor  shall  inform  the  court  of  the  reasons  of  his  decree,  but  shall  not  have  a  voice 
in  the  final  sentence;  and  if  the  cause  to  be  determined  shall  be  brought  up  by  writ  of  error,  on  a 
question  of  law,  on  a  judgment  of  the  Supreme  Court,  the  judges  of  that  court  shall  assign  the  reasons 
of  such  judgment,  but  shall  have  no  voice  for  its  affirmance  or  reversal."  (A  court  for  the  trial  of  an 
impeachment  has  never  yet  been  held.) 

JOHNSON'S  CASES,  1.  37» 


418 


COURT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1800 


Morgan,  Joseph  Mordaunt,  and  John  Timms, 
who,  thereupon,  petitioned  for  a  patent,  which 
issued  to  them  accordingly,  on  the  28th 
February,  thereafter;  that  in  consideration  of 
money,  and  other  valuable  considerations  (not 
known  to  the  complainants)  paid, delivered,  or 
performed  by  the  late  Sir  William  Johnson, 
of  the  said  county,  to  the  said  petitioners,  and 
in  consideration  that  he  promised  to  pay  all 
the  office  and  other  fees  on  issuing  the  patent, 
it  was  agreed  between  Sir  William  Johnson 
and  the  petitioners  that  when  the  patent 
should  be  made  to  them,  they  would  receive 
the  same  in  trust  for  him,  and  that  when  the 
title  should  become  vested  in  them  by  the  pat- 
ent, they  would  convey  to  him;  that  Sir  William 
Johnson  accordingly  paid  the  fees,  amounting 
to  upwards  of  60W. ;  "that  shortly  after  the 
issuing  of  the  letters  patent,  by  which  the  title 
419*]  *to  the  said  tract  of  land  became  vested 
in  the  grantees  therein  named,  and  during  the 
course  of  the  year  in  which  the  said  letters 
patent  issued,  the  grantees  in  the  said  letters 
patent  named,  being  then  in  possession  thereof, 
and  seized  of  the  same,  by  virtue  of  the  grant 
made  to  them  by  the  letters  patent  aforesaid, 
they  the  said  grantees  in  the  said  letters  patent 
named,  in  pursuance  of  their  said  agreement 
with  the  said  Sir  William  Johnson,  did,  in 
consideration  of  the  sums  of  money,  or  other 
valuable  consideration,  paid,  delivered,  or 
performed  by  the  said  Sir  William  Johnson  to 
the  said  grantees,  in  the  said  letters  patent 
named  respectively,  and  in  consideration  of 
the  said  Sir  William  Johnson's  having  paid,  or 
agreed  to  pay,  all  the  office  and  other  fees 
which  became  payable,  and  did  accrue  on 
issuing  the  said  letters  patent  as  aforesaid,  in 
execution  and  discharge  of  their  said  agreement 
with  the  said  Sir  William  Johnson  before 
mentioned,  by  good  and  sufficient  deeds  and 
conveyances,  in  the  law,  for  that  purpose, 
respectively  grant,  release  and  convey  unto  the 
said  Sir  "VV  illiam  Johnson,  in  fee-simple,  the 
whole  of  the  said  25,000  acres  of  land,  in  the 
said  letters  patent  mentioned  and  described; 
by  virtue  of  which  conveyances,  and  imme- 
diately, or  in  some  short  time  after  the  execu- 
tion thereof,  the  said  Sir  William  Johnson 
took  possession  of  the  whole  of  the  said  25,000 
acres  of  land,  and  caused  the  same  to  be  ( 
surveyed,  and  trees  standing  on  the  boundary 
lines  thereof  to  be  marked,  showing  and 
designating  the  bounds  of  the  land:"  That  Sir 
William  Johnson,  on  the  llth  June,  1772,  for 
3751.,  conveyed  a  parcel  containing  10, 000  acres, 
to  Lord  A.  Gordon,  the  boundary  line  of  which 
appears  also  to  have  been  according  to  a  sur- 
vey made  for  the  purpose;  that  shortly  after 
he  conveyed  another  parcel  containing  2,000 
acres  to  John  Kelly;  that  by  his  will  of  the 
27th  January,  1774,  he  devised  the  remaining 
13,000  acres  to  his  two  brothers  and  four 
sisters,  and  directed  his  executors  to  sell  the 
same,  and  the  moneys  to  be  equally  divided 
between  the  devisees;  and  that  shortly  there- 
after he  died;  that  Lord  A.  Gordon,  on  the 
42O*]  25th  *  May,  1787,  conveyed  the  tract 
of  10,000  acres  to  R.  and  I.  Watts,  who,  on  the 
5th  December,  1792,  conveyed  it  to  the  com- 
plainants, Le  Roy  and  Bayard,  for  5.000J. ; 
that  R.  and  I.  Watts,  as  attorneys  to  the 
executors  of  Sir  William  Johnson,  on  the  13th 
376 


November,  1792,  conveyed  the  tract  of  13,000 
acres  to  the  same  complainants;  that  convey- 
ances were  afterwards  executed,  and  acts 
done,  which  were  set  forth  in  the  bill,  to  vest  in 
the  complainant  Boon,  his  third  of  the  lands, 
and  for  confirming  the  title  in  the  three  com- 
plainants ;  "that  some  time  after  the  death  of 
Sir  William  Johnson,  and  in  the  early  part  of 
the  late  war  between  the  United  States  and 
Great  Britain,  Sir  John  Johnson,  the  son,  and 
one  of  the  executors  of  the  last  will  and  testa- 
ment of  Sir  William  Johnson,  having  in  his 
custody  sundry  title  deeds  and  papers,  which 
belonged  to  the  estate  of  the  late  Sir  William 
Johnson,  among  which  were  the  deeds  or  in- 
struments, and  evidences  of  conveyance,  or 
conveyances,  from  the  several  patentees  or 
grantees,  in  the  aforesaid  letters  patent  named, 
to  the  said  Sir  William  Johnson,  of  the  said 
25,000  acres  of  land  in  the  letters  patent  afore- 
said mentioned,  for  the  purpose  of  guarding 
against  the  loss  of  those  papers,  or  for  some 
other  purpose,  buried  the  whole  of  the  said 
papers  in  the  earth,  where  they  remained  for 
some  years,  exposed  to  moisture,  and  other 
injuries,  after  which  the  said  papers,  or  such 
of  them  as  remained  or  could  be  found,  were 
taken  up,  but  were  so  much  injured  and  de- 
faced as  to  be  altogether  illegible,  by  which 
means,  all  the  deeds,  or  written  evidences,  of 
the  conveyances  of  the  said  25,000  acres  of 
land,  from  the  said  patentees  or  grantees,  in 
the  said  letters  patent  named,  to  the  said  Sir 
William  Johnson,  were  either  lost  or  destroyed, 
or  by  some  other  accident  are  now  wholly  out 
of  the  power  of  the  complainants  to  produce:" 
That  nine  of  the  defendants  named  in  the  bill, 
endeavoring  to  avail  themselves  of  the  destruc- 
tion or  loss  of  the  conveyances  from  the 
patentees  to  Sir  William  Johnson,  and  claiming 
either  as  original  patentees  themselves,  or  by 
purchase,  devise  or  descent  from  some  of  the 
original  patentees,  *and  confederating  [*421 
with  the  other  twenty-one  defendants,  had 
commenced  a  suit  in  ejectment  in  the  Supreme 
Court,  against  Boon,  to  recover  part  of  the 
lands,  being  the  only  one  of  the  appellants  who 
resided  on  the  land;  that  the  defendants  pre- 
tended that  they  claimed  title  in  consequence 
of  sales  to  them  by  the  original  patentees,  or 
by  persons  deriving  title  under  the  original 
patentees,  and  that  the  persons  at  the  time  of 
the  sale  were  seized  and  actually  possessed 
of  the  land,  whereas  the  persons,  if  any,  were 
not,  at  the  time  of  the  sale,  in  any  manner,  in 
possession  of  the  land.  On  these  allegations, 
the  bill  prayed  as  usual  that  the  defendants 
might  answer,  and  discover  and  set  forth  their 
title,  and  whether  the  persons  under  whom 
they  claim  title  were  ever  in  possession  of  the 
land;  that  the  lessors  of  the  plaintiff  in  the  suit 
in  ejectment  might  be  enjoined  from  proceed- 
ing therein,  that  the  complainants  might  be 
quieted  in  their  possession,  and  for  further 
relief. 

Boon  was  the  only  one  of  the  appellants 
whose  affidavit  was  annexed  to  the  bill,  and  it 
substantially  verified  every  allegation  in  the 
bill:  that  part  of  it  which  relates  to  the  con- 
veyances from  the  patentees  to  Sir  William 
Johnson,  and  the  destruction  of  them,  is  as 
follows: 

"  And  the  said  deponent  hath  also  been  in- 
JOHNSON'S  CAPES,  1. 


1800 


HERMAN  LEROY,  ETC.,  v.  WILLIAM  BAYARD,  ETC. 


421 


formed,  and  doth  verily  believe  and  hopeth  to 
be  able  to  prove,  that  shortly  after  the  making 
of  the  said  grant  to  the  said  petitioners,  they 
did  respectively  convey  and  release  all  their 
right,  title  and  interest  respectively  in  the  tract 
of  land  thereby  granted  to  the  said  Sir  William 
Johnson,  in  the  said  bill  of  complaint  named; 
that  the  said  Sir  William  Johnson  did  actually 
pay  the  office  and  the  other  fees  attending  the 
obtaining  the  said  letters  patent  for  the  said 
tract  of  land,  amounting  to  £600  and  upwards; 
that  he,  sometime  in  the  year  1769,  did  take 
possession  of  the  said  tract  of  land  by  causing 
the  same  to  be  surveyed,  and  trees  standing  on 
the  boundary  lines  thereof  to  be  marked,  show- 
ing and  designating  the  bounds  of  the  said 
lands;  and  he  hath  also  been  informed  and 
doth  verily  believe  that  the  deeds  of  convey- 
ance and  release  above  stated  to  have  been 
422*]  made  and  executed  by  *the  patentees 
aforesaid,  to  the  said  Sir  William  Johnson, 
were  destroyed  in  the  manner  in  the  said  bill 
of  complaint  mentioned."  There  was  no  affi- 
davit by  the  other  two  complainants. 

To  this  bill  some  of  the  defendants  answered; 
and  fourteen  of  them  (the  respondents  in  this 
appeal)  separately  filed  general  demurrers,  and 
set  forth  the  following  causes  of  demurrer: 

1.  That  the  complainants  ought,  according 
to  the  course  of  proceeding  and  the  rules  of 
the  court,  to  have  made  affidavit,  and  annexed 
the  same  to  their  bill,  that  they  had  not  in 
their  power  the  deed  or  deeds  whereof  they 
seek  a  discovery  in  this  court. 

2.  That  the  agreement  suggested  in  the  bill 
to  have  been  made  between  the  said   Peter 
Lewis    and    his   associates,    in  the  said    bill 
named,  and  the  said  Sir  William  Johnson,  to 
obtain  a  grant  of  the  said  lands  to  the  use  of 
the    said    Sir    William  Johnson  was  illegal, 
and,  therefore,  is  not  entitled  to  the  aid  of  the 
court. 

3.  That  the  complainants  charge  by  their 
bill  that  the  defendants  hold  under  a  convey- 
ance executed  by  some  person  or  persons  hav- 
ing a  pretended  title  to  the  lands,  and  pray  a 
discovery  of  such  title,  which  discovery,  if  the 
suggestions  in  the  bill  are  true,  would  subject 
the  defendants  to  a  grievous  penalty. 

4.  For  that  the  scope  of  the  said  bill  is  to  dis- 
cover the  defendants'  title  to  the  said  lands  and 
to  quiet   the  complainants  in  the  possession 
thereof   before   the  complainants  have  estab- 
lished their  title  by  a  trial  at  law. 

5.  That  it  appears  from  the  complainants' 
own  showing  in  their  said  bill,  that  they  claim, 
or  pretend  title  to  the  lands  in  the  bill  men- 
tioned, under  sundry  conveyances  in  the  bill 
set  forth,   which  is  matter  merely  triable  at 
law,    and  touching  which  the  complainants 
may  easily  ascertain  their  title  on  the  trial  of 
the  actions  of  ejectment  brought  by  the  defend- 
ants at  law. 

6.  That  the  bill  contained  no  equity. 
423*]      *The  Chancellor  allowed  all  the  sev- 
eral demurrers  and  ordered   the  bill  of  the 
complainants  as  to  each  of  the  defendants  to  be 
dismissed  with  costs.     From  this  decree  the 
complainants    brought    their    appeal  to    this 
court. 

Messrs.  Hamilton  and  Biggs  for  the  appel- 
lants. 
JOHNSON'S  CASES,  1. 


Messrs.  E.  Livingston  and  Van  Vechten  for 
the  respondents. 

BENSON,  J.  In  a  case  otherwise  properly 
cognizable  in  a  court  of  law,  if  the  plaintiff  for 
want  of  a  writing,  the  evidence  of  his  right,  is 
obliged  to  sue  in  equity,  it  is  a  rule  there  that 
he  must  verify  on  oath  the  allegation  that  the 
writing  is  lost,  or  in  the  possession  of  the 
defendants.  This  rule  is  founded  on  the  same 
reason  as  the  rule  in  courts  of  law,  in  cases  of 
pleas  to  the  jurisdiction,  foreign  pleas,  and 
claims  of  cognizance,  and  is  intended  only  to 
prevent  a  change  or  transfer  of  jurisdiction, 
without  due  cause  shown,  arising  from  facts 
proved  on  oath,  and  does  not  diminish  or 
deprive  the  defendant  of  any  real  advantage  of 
defence;  so  that  proof,  not  absolutely  positive 
and  conclusive,  but  less  precise  and  full,  will 
be  sufficient.  In  order  to  confine  the  rule  to 
its  mere  object,  if  the  bill  is  for  discovery 
only,  or  if  it  is  for  a  general  discovery  of  all 
writings  in  the  possession  of  the  defendant 
(Nels.,78;  1  Vern.,  180;  Id.,  247;  2  P.  Wins. 
541;  3  Atk.,  132;  1  Ves.,  345),  whatsoever  they 
may  be,  it  is  to  be  supposed  that  the  plaintiff 
hath  no  particular  knowledge  of  them,  but  yet 
that  some  writings  of  some  kind  in  which  he 
is  interested  and  relative  to  the  property  he 
seeks  to  recover,  do  exist,  and  are  in  the  pos- 
session of  the  defendant  (Free,  in  Chan.,  536), 
in  these  cases  the  allegation  of  the  loss  of  the 
papers,  or  that  they  are  in  the  possession  of  the 
defendant,  need  not  be  on  oath.  Until  some 
decisions  in  England  within  ten  years  past  (2 
Brown's  Chan.  Rep.,  280;  Id.,  319;  4  Brown's 
Chan.  Rep.,  480),  it  has  always  been  held,  as  it 
is  expressed  in  the  books,  that  "  a  demurrer 
being  bad  in  part,  must  be  overruled,"  for  it  is 
not  like  a  plea,  which  may  be.  allowed  in  part, 
but  a  demurrer  void  in  part,  is  void  in  toto,  and 
cannot  be  separated  (1  Atk.,  450;  2  Atk.,  389). 
"  A  general  demurrer  to  the  whole  bill,  if  there 
is  any  part  of  the  bill  to  which  the  defendant 
ought  to  put  in  an  answer,  the  demurrer  being 
entire,  must  be  overruled  "  (1  Ves. ,  248) ;  a 
a  demurrer,  if  defective  in  part  is  bad  for  the 
whole,  *for  it  cannot  be  split.  [*424 
Although  the  decisions  of  the  English  courts 
are  deservedly  of  great  authority,  yet  the  rea- 
sons in  the  cases  alluded  to,  the  supposed  hard- 
ship on  a  defendant,  if  he  cannot  avoid  the 
expense  of  taking  a  copy  of  a  long  bill,  if  there 
chances  to  be  a  right  to  a  discovery;  thereby 
making  the  only  question  to  be,  whether  the 
plaintiff  should  be  put  to  the  expense  of  a  new 
bill,  or  the  defendant  of  a  new  demurrer,  are 
not  convincing;  for  if  the  defendant,  instead 
of  a  general  demurrer  to  the  whole  bill,  will 
demur  particularly  to  each  separate  or  distinct 
part  or  matter  to  which  he  may  suppose,  "  he 
ought  not  to  put  in  an  answer,"  the  demurrer 
may  be  overruled  as  to  some  parts  or  matters, 
and  allowed  as  to  others,  and  the  defendant, 
among  other  costs,  may  be  decreed  the 
expense  of  so  much  of  the  copy  of  the  bill  to 
which  the  demurrer  was  allowed,  so  that  there 
will  not,  in  that  respect,  be  any  hardship  on 
him.  It  may  be  also  stated  that  other  means 
within  the  powers  of  the  court  to  correct  the 
mischief,  if  it  prevails,  of  filing  bills  of  an 
undue  length,  containing  matters  which  the 
defendant  ^mght  not  to  answer,  may  easily  be 

377 


424 


COURT  OF  ERRORS.  STATE  OF  NEW  YORK. 


1800 


devised,  preferable  to  merely  turning  the  such  as  a  conscience  rightly  informed  cannot 
plaintiff  round,  and  subjecting  him  to  the  I  approve;  but  this  principle  is  not  applicable  to 
delay  and  expense  of  a  new  bill.  My  conclu-  j  the  present  case.  The  supposed  illegality  of 
sion,  therefore,  is,  that  there  does  not  appear  I  the  agreement  between  the  original  patentees 
sufficient  reason  to  change  an  established  and  j  and  Sir  William  Johnson,  consists  in  its  being 
approved  practice,  and  consequently,  if  there  |  in  contravention  of  the  instruction  from  the 
**-'  *•'"  '  —»-»-*.  -i- -  king  to  the  governor,  restraining  the  patents 


are  any  matters  in  the  bill  to  which  the 
defendants  ought  to  have  put  in  an  answer, 
the  demurrer  being  general,  and  to  the  whole 
bill,  it  must  be  overruled  in  the  whole.  This 
leads  to  an  examination  of  the  several  causes 
of  demurrer. 

First :  The  defendants  object  to  the  proof  as 
arising  from  the  affidavit  oif  the  complainant 
Boon.  1.  That  there  is  only  the  oath  of  one 
whereas  there  ought  to  be  an  oath  by  each  of 
the  complainants.  2.  That  the  oath  ought 
not  only  to  state  the  destruction  of  the  sup- 
posed writings,  but  also  that  the  deponents 


for  lands  to  a  quantity  not  exceeding  1,000 
acres  to  each  patentee.  The  futility  of  this 
regulation  was  soon  discerned,  and  the  instruc- 
tion was  for  near  half  a  century  before  the 
patent  mentioned  in  the  bill  issued,  considered 
altogether  as  a  dead  letter,  and  the  compliance 
with  it  a  mere  matter  of  form ;  but  even  con 
ceding  that  the  legality  of  an  agreement  similar 
to  the  one  supposed  to  have  taken  place  be- 
tween the  patentees  and  Sir  William  Johnson, 
might  be  made  a  question;  yet  that  could  only 
be  the  case  where  the  agreement  was  before  the 


have  them  not  in  their  own  possession ;  and,  3.  i  Indian  purchase;  because,  immediately  on  the 
That  the  deponen*  doth  not  swear  from  his  j  purchase,  the  king,  in  whose  name  these  pur- 
own  knowledge,  but  from  the  information  of  chases  were  always  made,  became  a  trustee  for 
oihers.  Here  I  state  that  the  proof  of  the  the  persons  to  whose  use  they  were  made;  and 


425*]  allegation*  of  the  loss  of  the  writing 
is  restricted  to  the  oath  of  the  party,  in  exclu- 
sion of  the  oath  of  a  stranger,  and,  therefore, 


the  trust,  possibly  on  artificially  legal  princi- 
ples, might  have  been  limited  to  a  quantity  not 
exceeding  the  rate  of  1,000  acres  to  each  per- 


if  the  circumstances  of  the  case  are  such  as  |  son.  The  several  ceslni qut  Iruxte,  however,  had 
that  it  is  to  be  presumed  the  party  cannot  I  an  equitable  interest  in  their  respective  shares, 
know  the  facts  from  his  own  knowledge,  he  which  they  could  legally  assign,  and  agree  to 


must  then,  from  necessity,  be  admitted  to  tes- 


vest  the  title  at  law  in  the  assignees  on  the  is- 


tify  from  credible  information,  or,  in  other    suing  of  the  patent;  and  as  it  does  not  appear 
words,  from  the  hearsay  of  others.      When-    when  the  agreement,  in  the  present  instance, 


ever  the  law  admits  hearsay  testimony,  the 
fact  is  thereby  as  competently  proved  and 
established,  as  if  the  person  giving  testimony 


was  made,  whether  before  or  after  the  Indian 
purchase,  the  illegality  of  it  cannot  come  under 
consideration  on  the  defendant's  demurrer.  It 


was  to  testify  from  his  own  knowledge.  And  I  was  a  matter  of  which  they  could  avail 
whenever  a  "person  swears  from  the  credible  I  themselves  by  plea  only,  with  the  requisite 
information  of  others,  it  not  only  implies  that  averments  supplying  the  uncertainty  of  the 
he  hath  inquired  to  an  extent,  and  in  a  manner  bill,  as  to  the  time  when  the  agreement  was 
to  produce  a  rational  belief  that  the  fact  is  as  |  made. 

he  testifies  it  to  be,  but  it  also  excludes  the  Third.  The  answer  which  has  been  given 
supposition  that  he  hath  any  reason  even  to  to  the  third  cause  of  demurrer  is  that  it  was 


not  requisite  for  the  defendants,  in  answering 
the  bill,  to  declare  either  that  *there 


suspect  it  to  be  otherwise.     A  distinction  is  to 
be  taken  between  the  cases  where  the  writing 

is  so  lost  only,  as  that  it  cannot,  for  the  pres-  j  was  an  adverse  possession,  or  if  there  was,  that 
ent,  be  found,  and  is  supposed  still  to  exist,  \  the  defendants  knew  it;  but  that  it  would  have 
and  the  cases  where  the  writing  is  wholly  de-  i  been  sufficient  if  they  had  simply  admitted 
stroyed,  and  therefore  supposed  not  to  exist.  !  that  their  vendors  were  not,  at  the  time  of  the 
Though  in  some  of  the  former  cases,  it  maybe  j  purchase  by  them,  the  tenants  in  possession; 
proper,  in  order  to  guard  against  evasion,  to  '  because,  whether  the  possession  was  vacant,  or 
require  the  party  to  swear  also,  that  he  hath  j  whether  it  was  adversely  held  by  others,  and 
not  himself  the  writing  in  his  possession,  yet !  if  the  latter,  whether  the  defendants  knew  it, 
in  the  latter  cases,  it  would  be  altogether  a  |  whichever  might  have  been  the  fact,  was 


useless  accumulation  of  proof;  for  it  would  be 
to  require  proof  of  another  proposition  of 
fact,  which  follows  as  a  necessary  logical  con- 


wholly  immaterial.  This  answer,  it  must  be 
owned,  is  far  from  being  unsatisfactory;  at  the 
same  time,  the  principle  that  a  man  is  not  held 


sequence  from  one  already  proved.  Assum- !  to  accuse  himself  is  so  estimable  that  we  can 
ing  it,  therefore,  and  which  I  think  cannot  be  I  not  be  too  cautious  in  admitting  distinctions  or 
questioned,  that  the  present  case  is  one  of  j  qualifications  of  it;  and,  therefore  (especially 
those  in  which  proof,  from  the  information  or  as  the  discovery  sought  for  in  this  instance  is 
hearsay  of  others,  is  to  be  received,  then  the  of  a  fact  altogether  useless  in  the  complainant's 
fact  of  the  destruction  of  the  supposed  con-  case)  I  should  have  supposed  it  more  safe,  if  a 
veyances  from  the  original  patentees  to  Sir  |  particular  demurrer  had  been  put  in  to  that 
William  Johnson,  is  duly  and  competently  j  part  of  the  bill,  to  have  allowed  it,  and  have 
proved;  and,  consequently,  the  affidavit  of  the  i  ordered  the  allegation  and  interrogatory,  which 
complainant  Boon  alone  is  sufficient,  so  that  i  the  demurrer  supposes  to  be  exceptionable,  to 
the  first  cause  of  demurrer  fails.  be  struck  out  of  the  bill. 


Second.  It  must  be  admitted  that  there  can- 
not be  a  more  sound  or  salutary  principle  than 
42O*1  tne  one  on  which  *the  second  cause  of 


I  shall  consider  the  three  last  causes  of  de- 
murrer together;  for  I  am  inclined  to  think 
that  they  might  all  have  been  shown  under  the 


demurrer  proceeds,  that  a  court  of  equity  should  j  last  general  cause  of  demurrer;  they  being  es- 
always  withhold  its  aid  and  countenance  from  I  sentially  the  same,  amounting  to  a  denial  that 
a  suitor  whose  conduct  appears  in  any  part '  the  court  ought  to  grant  a  relief,  supposing  all 
878  JOHNSON'S  CASES,  1. 


1800 


WILLIAM  LAIGHT,  ETC.,  v.  JOHN  MORGAN,  ETC. 


427 


the  allegations  in  the  bill  to  be  confessed, 
which  is  only  saying,  in  other  words,  that  there 
is  a  want  of  equity.  It  is  ordinarily  premature 
wholly  to  dismiss  a  bill  on  a  demurrer  for  this 
general  cause,  unless  the  complainant's  case  is, 
from  his  own  showing,  radically  such  that  no 
discovery  or  proof  can  possibly  make  it  a 
proper  subject  of  equitable  jurisdiction.  Such 
was  the  late  case  of  Munro  etal.  v.  Allaire  (Feb- 
ruary, 1796),  decided  in  this  court,  where  the 
complainant  came  to  have  a  purchase  of  lands 
perfected  and  confirmed  to  him,  the  supposed 
ale  being  made  by  trustees  under  a  will ;  and 
he  being  one  of  the  trustees  did  not  allege  him- 
self also  a  cestui  que  trust,  or  one  of  the  legatees 
to  whom  the  money  arising  from  the  sale  was 
to  be  paid,  and  that  he,  although  a  trustee, 
428*]  was  obliged  to  purchase,  *in  order  to 
avoid  the  loss  to  himself,  as  a  cestui  que  trust, 
by  a  sale  at  a  less  price;  for  it  is  to  be  re- 
marked that  a  defendant  doth  not  forego,  or 
waive  a  single  advantage  as  to  the  merits,  or 
the  point  whether  the  complainant  has  equity, 
by  not  demurring.  He  may  equally  insist  on  the 
same  matters,  by  way  of  answer,  which  he 
might  have  done  by  demurrer;  and  if  he  should 
even  admit  them  in  the  answer,  he  may  still 
avail  himself  of  them  in  argument  on  the  final 
hearing  of  the  cause. 

My  opinion,  therefore,  is  that  the  bill  ought 
to  have  been  retained,  and  that  the  Court  of 
Chancery  should  have  reserved  itself  on  the 
question  whether  the  complainants  were  en- 
titled to  any,  or  what  relief,  until  all  the  proofs 
arising  from  the  answers  of  the  defendants,  or 
otherwise,  had  come  in;  and  consequently,  that 
the  several  decrees  allowing  the  respective  de- 
murrers of  the  respondents,  and  dismissing  the 
appellants'  bill,  ought  to  be  reversed.  The  re- 
spondents have  not  only  put  in  separate  de- 
murrers, but  they  have  also  proceeded  separate- 
ly to  decrees.  How  far,  or  by  what  means,  a 
court  of  chancery  ought  to  restrain  and  regu- 
late the  right  of  defendants  to  sever  in  their 
defense,  so  as  to  prevent  them  from  availing 
themselves  of  it,  solely  to  vex  the  complainant, 
are  matters  on  which  I  forbear  to  give  any 
opinion  here,  because  it  is  unnecessary.  We 
can  only  declare  and  establish  what  shall  be 
the  consequences  of  an  unnecessary  severance, 
if  there  should  afterwards  be  an  appeal,  and 
a  judgment  of  reversal  for  the  complainant. 
This  may,  in  some  measure,  prevent  the  abuse 
alluded  to.  My  opinion,  therefore,  is  that  each 
respective  respondent,  on  the  present  appeal, 
be  decreed  to  pay  to  the  appellants  for  their 
costs  on  the  appeal,  a  sum  to  the  same  amount 
which  would  have  been  decreed  to  be  paid  by 
them  all  jointly,  if  they  had  joined  in  demurrer 
in  the  court  below. 

The  majority  of  the  court,  concurring  in  this 
opinion,  it  was  thereupon  ordered,  adjudged 
429*]  and  decreed  *that  the  several  decrees 
of  the  Court  of  Chancery,  allowing  the  separ- 
ate demurrers  of  the  respondents  respectively 
to  the  bill  of  complaint  of  the  appellants  against 
the  respondents,  and  the  other  defendants  in 
the  bill  named,  and  directing  the  said  bill,  as  it 
respected  each  of  the  respondents,  to  be  dis- 
missed, be  reversed;  and  further,  that  the  re- 
spondents severally  pay  to  the  appellants  the 
sum  of  thirty  dollars,  for  their  costs  on  this 
appeal,  in  respect  to  each  respective  decree  so 
JOHNSON'S  CASES,  1. 


reversed,  and  that  the  cause  be  remitted  to  the 
Court  of  Chancery,  and  that  such  further  pro- 
ceedings there  be  had  thereupon,  as  well  for 
the  execution  of  this  judgment,  order  and  de- 
cree, as  otherwise,  as  shall  be  agreeable  to 
equity  and  justice. 

Judgment  of  reversal. ' 

Followed— Post  432. 

Cited  in— 3  Johns.  Ch.,  471 ;  3  Paige,  251 ;  5  Paige,  149 ; 
10  Barb.,  137.    See  1  Caines  Cas.,  i ;  2  Caines  Cas.,  175. 


WILLIAM  LAIGHT,  JOHN  JACOB  ASTOR, 
AND  PETER  SMITH,  Appellant*, 

v. 

JOHN  MORGAN  (who  was  Impleaded  with 
JONATHAN  DANFORTII.  and  Thirty-three 
others),  Respondent. 

1.  Bill  in  Equity — Perpetuate  Testimony — Estab- 
lish Title — Quiet  Possession — Affidavit  Nec- 
essary. 2.  Id. — Discovery — Title  Deeds — Lost 
or  Defaced — Demurrer.  3.  Id. — Discovery 
and  Relief — Good  in  Part — Practice. 

Where  a  bill  seeks  to  perpetuate  the  testimony  of 
aged  and  infirm  witnesses ;  or  where  a  bill  seeks  to 
have  a  title  established,  and  the  possession  quieted, 
an  affidavit  of  the  facts  on  which  such  application 
is  founded,  is  necessary.  Where  a  bill  seeks  a  dis- 
covery as  to  title  deeds  lost  or  defaced,  which  does 
not  require  an  affidavit ;  and  also  to  perpetuate  the 
testimony  of  witnesses,  a  general  demurrer  to  the 
whole  bill,  for  want  of  an  affidavit,  is  bad.  Where 
a  bill  is  filed  for  discovery,  and  also  for  relief,  the 
bill  being  good  for  the  one  object,  without  affidavit, 
though  not  for  the  other,  it  will  be  retained  as  for 
the  sound  part,  and  the  defendant  ought  to  answer 
to  the  part  which  is  good,  and  demur,  if  he  think 
proper,  to  the  other. 

Citations— 1  Johns.  Cas.,  417 ;  1  P.  Wms.,  117 ;  3  Id., 
77 ;  Id.,  150 ;  2  Atk.,  157 ;  1  Vesey,  248 ;  1  Atk.,  450. 

THE  appellants  filed  their  bill  of  complaint 
in  the  Court  of  Chancery  against  the  re- 
spondent and  the  other  parties,  stating,  among 
other  things,  that  on  the  25th  of  March,  1768, 
George  III.,  by  letters  patent,  granted  unto 
Michael  Byrn,  and  seventeen  others,  in  fee,  a 
tract  of  land  in  the  then  County  of  Albany, 
containing  18,000  acres;  that  on  the  8th  of  May, 
1770,  the  same  king  granted  in  fee  unto  the 
late  Sir  William  Johnson,  deceased,  and  twenty- 
five  other  persons,  another  tract  of  land  in  the 
same  county,  containing  25,000  acres;  that  all 
the  patent  fees  and  *other  expenses  at-  [*43O 
tending  the  issuing  of  the  letters  patent  for  the 
said  tracts,  were  paid  solely  by  the  said  Sir 
William  Johnson;  that  the  names  of  the  other 
patentees  were  inserted  (herein  for  his  benefit, 
and  with  the  express  intention  on  their  parts  of 
releasing  to  him  their  several  proportions  of 
the  said  several  tracts;  that  the  said  patentees 
did  accordingly,  in  the  year  1770,  convey,  by 
sufficient  deeds  unto  the'said  Sir  William  John- 
son, in  fee,  their  interest  in  the  several  tracts 
aforesaid;  that  Sir  William  Johnson  caused  the 
same  to  be  surveyed  as  his  own  property,  and 
at  his  own  expense. 
The  appellants  then  deduced  in  their  bill  a 

1.— This  report  is  taken  from  a  manuscript  of  Mr. 
Justice  Benson. 

379 


430 


COURT  OF  ERRORS,  STATE  OP  NEW  YORK. 


1800 


regular  title  to  themselves  to  the  said  two 
tracts  of  land,  from  the  executors  of  Sir  Wil- 
liam Johnson,  who  had  power  to  sell  the  same. 
The  bill  then  stated  that  during  the  American 
war,  the  deeds  executed  by  the  said  patentees, 
together  with  other  papers  of  Sir  William 
Johnson,  were  for  greater  safety  put  into  an 
iron  chest  and  buried  in  the  earth,  whereby 
the  said  deeds  were  so  mouldered  and  spoileu, 
as  to  have  become  entirely  illegible,  and  inca- 
pable of  proof  in  the  usual  way;  that  after  it 
became  known  that  the  deeds  were  thus  in- 
jured, several  persons  who  originally  settled 
on  part  of  the  said  lands  under  Sir  William 
Johnson,  and  particularly  the  defendants, 
availing  themselves  thereof,  now  hold  the  same 
against  the  appellants,  either  without  any  title 
at  all,  or  by  title  derived  from  the  said  paten- 
tees, after  they  had  released  to  Sir  William 
Johnson;  that  they  had  commenced  two  ac- 
tions of  ejectment  in  the  Supreme  Court 
against  two  of  the  defendants  to  their  bill,  to 
recover  such  part  of  the  premises  as  is  in  their 
possession,  which  actions  were  at  issue;  that 
many  of  the  witnesses  who  could  prove  these 
matters  lived  out  of  the  State,  and  were  old, 
infirm,  and  not  likely  to  live  long;  that  other 
material  witnesses  who  lived  within  the  State 
were  likewise  very  aged,  infirm,  unable  to 
travel,  and  not  likely  to  live  long. 

The  appellants  then  prayed  that  John  Mor- 
gan, and  the  other  defendants  to  -their  bill, 
431*J  might  be  decreed  to  deliver  *to  them 
the  quiet  possession  of  such  part  of  the  said 
lands  as  were  occupied  by  them,  and  that  they 
might  have  their  witnesses  examined,  touching 
the  execution  of  the  deeds  aforesaid,  and  touch- 
ing their  loss,  spoiling  or  destruction,  in  order 
to  perpetuate  their  testimony,  and  that  they 
might  be  otherwise  relieved,  as  the  nature  of 
their  case  might  require. 

To  this  bill  John  Morgan  and  each  of  the 
other  defendants  demurred  separately,  and 
each  assigned  the  same  causes  of  demurrer, 
which  were  as  follows: 

1.  Because  there  is  no  affidavit    that   the 
complainants  had  not  in  their  power  the  deeds 
whereof  they  seek  a  discovery. 

2.  Because  no  affidavit  is  annexed  to  the 
bill  of  the  age  of  the  witnesses  whose  testi- 
mony is  wanted. 

3.  Because  the  bill  prays  to  perpetuate  testi- 
mony, and  for  general  relief,  both  of  which 
cannot  be  joined  in  one  bill. 

4.  Because  it  appears  that  the  parties  exe- 
cuting the  releases  to   Sir  William  Johnson 
were  at  the  time  out  of  possession,  and  that 
the  same  are  therefore  void. 

5.  Because  the  bill  charges  the  defendants 
with  holding  under  persons  having  a  pretended 
title,  which  discovery  would  subject  them  to 
a  grievous  penalty. 

6.  Because  the  scope  of  the  bill  is  to  dis- 
cover the  defendant's  title,  and  to  quiet  the 
complainants  in  their  possession,  before  the 
latter  have  established  their  title  by  a  trial  at 
law. 

7.  Because  the  complainants  claim  title  under 
sundry  conveyances  mentioned  in  their  bill, 
which  is  a  matter  merely  triable  at  law,  and 
which  may  be  established  by  the  actions  of 
ejectment  which  they  have  brought. 

The  chancellor  allowed  the  demurrer,  and 
380 


ordered,  adjudged  and  decreed  that  the  said 
bill,  as  to  the  respondent  John  Morgan  should 
be  dismissed,  with  costs  to  be  taxed:  Similar 
decrees  were  also  separately  made  as  to  each 
of  the  other  thirty-four  defendants;  from  this 
decree  the  complainants  appealed  to  this  court. 

*Mr.  Burr,  for  the  appellants,  cited  [*432 
Mitford's  pleadings,  52,  53,  113;  Mosely,  192; 
Free,  in  Chan.,  536;  3  P.  Wms.,  77";  1  P. 
Wms.,  117;  4  Bro.  C.  C.,  299;  2  Eq.  Cas.  Ab., 
13,  259,  280;  1  Vesey,  248,  249;  1  Vern.,  49;  3 
Atk.,130;  2  Bro.  C.'C.,  281,  319;  3  P.  Wms., 
150;  2  Atk.,  157. 

Mr.  Spencer,  for  the  respondents,  cited  1 
Vern.,  180,  247;  1  Chan.  Ca.,  11;  2  P.  Wms., 
541;  3  Atk.,  77,  117;  2  Vent.,  366;  3  Atk., 
439;  Hind.,  24,  36;  1  Vern.,  308,  441;  1  Atk., 
571;  2  Atk.,  391,  484;  Prec.  in  Chan.,  531;  4 
Bro.  C.  C.,  480;  Hind.,  149. 

KENt,  J.  The  bill  of  complaint  in  this  cause 
appears  to  have  had  three  objects,  viz. : 

1.  To  obtain  a  discovery  of  facts  from  the 
defendants. 

2.  To  perpetuate  testimony. 

3.  To  obtain  specific  relief. 

Upon  the  demurrer  to  the  whole  bill,  there 
were  seven  causes  of  demurrer  assigned. 

The  three  last  causes  were  assigned  in  the 
same  words,  in  the  similar  case  of  Le  Roy  and 
others  v.  Veeder  and  other*  (Ante,  p.  417),  de- 
cided at  the  last  session  of  this  court;  and  by 
that  decision,  they  are  to  be  deemed  as  having 
been  overruled.  The  fourth  cause  of  demurrer 
was  abandoned  by  the  counsel  for  the  respond- 
ents, upon  the  argument,  as  untenable.  If  the 
third  cause  be  not  equally  so,  it  is,  perhaps, 
not  material  in  the  present  case,  since,  as  I 
shall  presently  show,  the  decision  of  this  cause 
finally  depends  upon  the  single  point,  viz. :  If 
any  part  of  the  bill  requires  an  answer,  is  a 
demurrer  to  the  whole  bill  good? 

I  confine  myself,  therefore,  to  the  considera- 
tion of  these  two  questions,  as  arising  out  of 
the  two  first  causes  of  demurrer. 

1.  To  what  objects,  if  any,  in  the  bill,  was 
an  affidavit  requisite? 

2.  If  not  for  every  object,  is  a  demurrer  to 
the  whole  bill,  for  the  want  of  such  adffidavit, 
maintainable? 

1st.  The  bill  alleges  the  loss  of  papers  ma- 
terial to  the  complainants'  title,  and  seeks  a 
discovery  concerning  *them  from  the  [*433 
defendants.  This  is  a  matter  within  the  ordin- 
ary and  proper  jurisdiction  of  a  court  of  equity, 
and  so  far,  it  is  conceded,  that  the  bill  did  not 
require  an  affidavit.  The  bill  further  seeks 
for  the  examination  de  bene  esse,  of  witnesses 
who  are  alleged  to  be  aged  or  infirm,  or  resi- 
dent abroad;  and  for  this  purpose  I  conceive 
that  an  affidavit  was  requisite,  by  the  practice 
of  the  court  (1  P.  Wms.,  117;  3  P.  Wms.,  77), 
stating  generally  the  age,  infirmity,  and  place 
of  residence  of  the  witnesses;  and  as  no  affi- 
davit of  this  kind  was  put  in,  during  any  stage 
of  the  cause,  a  demurrer  to  that  part  of  the  bill 
might  have  been  good.  The  bill  finally  prays 
to  have  the  title  of  the  complainants  to  two 
tracts  of  land  established,  and  quiet  possession 
given  them.  This  is  a  matter  properly  of  legal 
jurisdiction,  and  relievable  by  the  courts  of 
common  law;  and  for  this  reason,  I  deem  an 
JOHNSON 'B  CASES.  1. 


1800 


Louis  LE  GTJEN  v.  ISAAC  GOTJVERNEUR  AND  PETER  KEMBLE. 


433 


affidavit  to  the  truth  of  the  material  facts  stated 
in  the  bill,  to  have  been  requisite. 

It  appears  to  me  to  be  an  established,  as  well 
as  a  reasonable  and  fit  rule,  that  whenever  a 
bill  seeks  to  transfer  to  chancery  a  question 
properly  cognizable  by  the  courts  of  law,  the 
facte  rendering  such  a  change  of  jurisdiction 
proper,  must  be  verified  by  oath,  so  that  a 
suitor  shall  not,  upon  mere  suggestion  or  pre- 
text, break  in  upon,  and  disturb  the  settled 
boundaries  of  the  courts  of  justice. 

As,  therefore,  the  bill,  in  respect  to  one  ob- 
ject, the  discovery,  did  not  require  an  affidavit, 
and  in  respect  to  the  other  two  objects,  to  wit, 
the  examination  of  witnesses,  and  the  relief, 
it  did  require  one,  it  leads  me  to  consider, 

2.  The  question,  whether  a  demurrer  to  the 
whole  bill,  for  the  want  of  such  affidavit,  be 
good. 

It  is  an  established  and  convenient  rule  of 
pleading  in  chancery,  that  the  defendant  may 
meet  a  complainant's  bill  by  several  modes  of 
defense.  He  may  demur  to  one  part,  answer 
to  another,  plead  to  a  third,  and  disclaim  to  a 
fourth  part  of  a  bill.  If,  therefore,  a  bill  seeks 
a  discovery  of  a  matter  which  is  proper,  and 
likewise  seeks  a  discovery  of  other  matter 
which  is  not  proper,  as  for  instance,  matter 
434*]  *which  would  charge  the  defendant 
with  a  crime,  the  defendant  must  answer  to 
the  proper,  and  may  demur  to  the  improper 
question  put  to  him,  or  he  may  answer  to  the 
proper  questions,  taking  no  notice  of  the  resi- 
due. So  if  a  bill,  as  in  the  present  case,  seeks 
for  discovery,  and  also  for  relief,  consequent 
upon  such  discovery,  the  bill  being  good  for 
the  one  object,  without  affidavit,  and  not  for  the 
other,  the  defendant  ought  to  meet  the  sound 
part  of  the  bill  by  answer,  and  be  left  to  his 
own  option  whether  he  will  demur  or  not  to 
the  other  part.  (3  P.  Wms.,  150;  2  Atk.,  157.) 

I  do  not  find  any  authoritative  rule  declar- 
ing, that  if  a  bill  be  bad  in  part  only,  and  good  in 
other  parts,  the  whole  bill  thereby  becomes  viti- 
ated, and  will  be  dismissed  on  a  general  demur- 
rer. The  settled  rule  is  most  assuredly  otherwise, 
and  a  bill  combining  discovery  and  relief,  with- 
out affidavit,  though  liable  to  demurrer  as  to  the 
relief  sought,  shall,  nevertheless,  be  retained 
and  supported,  for  the  purpose  of  discovery. 
<1  Vesey,  243;  1  Atk.,  450.)  A  different  rule 
would  be  very  inconvenient,  and  unnecessarily 
grievous.  To  support  a  demurrer  to  a  whole 
bill,  when  part  of  it,  had  such  part  been  separ- 
ate and  distinct,  whould  have  required  an 
answer,  is  to  send  a  party  back  to  travel  the 
same  ground  over  again,  with  much  expense 
and  loss  of  time,  and  to  no  useful  purpose. 
He  must  file  the  same  bill  anew,  with  the 
omission  only  of  the  exceptionable  prayers, 
and  repeat  the  former  process  for  bringing  the 
defendant  into  court,  who,  when  he  arrives, 
will  be  in  no  better  situation  than  he  was  be- 
fore, since  the  same  answer  which  might  have 
been  sufficient,  and  the  same  consequences 
which  would  have  been  produced  at  first,  must 
follow  on  the  answer  to  the  second  bill. 

I  am  accordingly  of  opinion,  that  the  de- 
murrer, which  instead  of  being  confined  to  the 
exceptionable  parts  of  the  bill,  went  to  the 
whole  of  it,  ought  to  have  been  overruled, 
and,  consequently,  that  the  decree  of  the  court 
of  chancery  allowing  the  demurrer  of  the  re- 
JOHNSON'S  CASES,  1. 


spondents,  and  dismissing  the  bill  of  the  appel- 
lants, must  be  reversed. 

*This  being  the  unanimous  opinion  [*435 
of  the  court,  it  was  thereupon  ordered  and  ad- 
judged, that  the  decree  of  the  Court  of  Chan- 
ceiy  be  reversed.  And  it  was  further  ordered, 
that  the  respondent  pay  to  the  appellants  their 
costs  in  prosecuting  their  appeal,  to  be  taxed, 
&c. 

Judgment  of  reversal l 

Cited  in— 3  Johns.  Ch.,  471;  4  Johns.  Ch.,  290, 297;  5 
Johns.  Ch.,  186;  6  Johns.  Ch.,  346;  5  Paige,  149;  9 
Paige,  584;  10  Barb.,  137;  9  Pet.,  658;  1  Bald.,  409,  415. 


*LOUIS  LE  GUEN,  Appellant,  [*436 

ISAAC  GOUVERNEUR  AND  PETER  KEM- 
BLE,  Respondents. 

1.  Judgmenl — Final  as  to  what  Matters.  2.  Ex- 
ceptions to  the  Rule — Counter  demands — Eject- 
ment— Laches — Neglect.  3.  Applicability  to 
Other  Courts.  4.  Illustration — Defences.  5. 
Jurisdiction — Question  of  Fraud.  6.  Fraud 
— Knowledge  of— Failure  to  Plead — No  Re- 
lief. 7.  Sill  of  Review.  8.  Appeals  from 
Court  of  Chancery.  9.  Id. — House  of  Lords 
— Power  and  Practice.  10.  Chancellor — Dis- 
cretionary Pmcer — Questions  of  Fact.  11.  Re- 
versal on  Appeal — Costs — Damages. 

Where  a  party  to  a  suit  at  law  has  knowledge  of  a 
fraud  or  other  matter  of  defence,  in  time  to  avail 
himself  of  it  at  the  trial  at  law,  and  he  neglects  to 
do  so,  he  cannot  afterwards,  obtain  relief  in  a  court 
of  equity  against  a  judgment  at  law,  on  the  ground 
of  such  fraud  or  matter  of  defence,  that  he  might 

(1)  Mr.  Chief  Justice  Lansing,  though  he  concurred 
in  the  above  judgment  of  the  court,  on  the  ground 
that,  the  defendants  being  trustees,  the  Court  of 
Chancery  had  proper  jurisdiction  in  the  cause,  and 
so  no  affidavit  was  necessary;  yet  he  was  of 
opinion,  that  a  bill  for  discovery  and  relief,  without 
an  affidavit,  was  a  nullity,  and  that  a  general  de- 
murrer to  the  whole  bill  would  be  good. 

Though  the  rule  in  England  was  formerly  as  above 
decided  by  the  court,  yet  a  different  rule  seems  to 
have  been  laid  down  by  Lord  Thurlow,  in  1798,  after 
much  consideration,  in  the  case  of  Price  v.  James  (2 
Bro.  C.  C.,  318),  and  which  has  been  since  recognized 
and  adhered  to  by  their  courts  of  equity. 

In  the  case  of  Rootham  and  others  v.  Dawson  (3 
Anst.,  859),  a  bill  was  filed  for  the  discovery  of  the 

I  contents  of  a  lost  bond,  and  prayed  for  payment  of 
what  was  due  upon  it,  and  that  a  new  bond  might 
be  executed.  The  defendant  demurred,  for  want  of 
an  affidavit ;  and  the  demurrer  was  allowed. 

In  Loker  v.  Rolle  (3  Vesey,  Jun.,  7),  it  was  decided, 
that  where  the  complainant  is  entitled  to  a  discovery, 
but  goes  on  and  prays  relief  to  which  he  is  not  en- 
titled, or  which  he  might  have  at  law,  it  is  good 
ground  of  demurrer,  and  the  defendant  is  not  bound 
to  answer ;  and  for  that  cause  a  demurrer  was  al- 
lowed. (See  also  3  Ves.,  Jun.,  343). 

In  the  case  of  Hodgkin  v.  Longden  (8  Vezey,  2), 
though  it  was  admitted  that  the  rule  was  formerly 
otherwise,  Lord  Eldon  observed,  that  Lord  Thurlow 
had  decided,  that  a  general  demurrer  will  hold, 
though  the  plaintiff  is  entitled  to  discovery,  if  not 

'••  entitled  to  relief,  on  the  ground,  that  the  discovery 
being  asked  for  the  purpose  of  entitling  the  plaint- 
iff to  the  relief,  if  the  plaintiff  was  not  entitled  to 
the  relief,  he  should  not  have  the  discovery,  which 
was  asked  for  the  purpose  of  obtaining  that  relief. 

;  And   this,    though  contrary   to  the  old  rule,    was 

'  recognized  by  Lord  Eldon,  who  said,  however,  that  it 

;  did  not  preclude  the  defendant  from  demurring  as 
to  the  relief,  and  answering  as  to  the  discovery. 
(See  also  2  Vesey,  Jun.,  459.  514.  6  Vesey,  Jun.,  773. 

i  2  Bro.  C.  C.,  280.  319.    4  Bro.  C.  C.,  480). 

I . 

NOTE.— See  classified  table  of  citations  at  the  end 
of  above  important  case  (Le  Guen  v.  Gouverneur) 
showing  its  authority  upon  each  subject  considered. 

381 


436 


COURT  OF  ERRQRS,  STATE  OF  NEW  YORK. 


1800 


have  set  up  at  the  trial,  but  is  forever  concluded  by 
the  judgment.  On  an  appeal  from  an  interlocutory 
order  of  the  Court  of  Chancery,  directing  an  issue 
to  be  tried  at  law,  this  court  will  hear  and  decide 
upon  the  whole  merits  of  the  cause.  The  chancel- 
lor, though  he  has  power  to  award  an  issue  to  ascer- 
tain the  truth  of  facts  which  appear  doubtful  to 
his  mind,  may,  nevertheless,  if  he  thinks  proper,  de- 
cide for  himself  on  the  facts,  according  to  nis  dis- 
cretion. 

Where  a  judgment,  order,  or  decree  of  a  court  be- 
low is  reversed,  on  an  appeal  to  this  court,  the  ap- 
pellant is  entitled  only  to  his  costs  in  the  court  be- 
low, up  to  the  time  or  the  order  or  judgment  of  that 
court,  and  cannot  recover  costs  or  damages  on  the 
appeal. 

Citations— Prec.  in  Cha.,  221 ;  3  Atk.,  224 ;  1  Vern., 
176;  2  H.  Black.,  414;  7  Terra  R.,  289;  2  Cas.  in  Cha., 
95 ;  Cha.  Rep.,  243 :  2  Burr.,  1009 ;  1  Atk.,  298 ;  2  Vern., 
146, 378 ;  Prec.  in  Cha.,  233 ;  3  Bl.  Com.,  431 ;  2  P.  Wm., 
156,  220 ;  1  Burr.,  396, 480, 482 ;  2  Ves.,  Jun.,  295 ;  Park., 
303 ;  1  Burr.,  396 ;  1  Eq.  Cas.  Ab.,  176 ;  1  Vez.,  434 ;  2 
Vez.,  576;  3  Atk.,  35;  2  Atk.,  178;  1  Bro.  P.  C.,  57;  2 
Bro..  405,  415;  3  Bro.,  180,  218;  4  Bro.,  582;  5  Bro.,  387, 
454,  478 ;  6  Bro.,  468 ;  7  Bro.,  1,  208 ;  Laws  of  N.  Y.,  vol. 
1,  Nov.  23, 4783 ;  2  Ves.,  42, 554 ;  2  Atk.,  450, 295 ;  3  Atk., 
516 ;  2  Ves.,  56 ;  2  Burr.,  1009 ;  7  Term  R.,  269 ;  2  Black., 
414,  415 ;  3  Bl.  Com.,  454 ;  1  Eq.  Cas.  Abr.,  81,  pi.  4, 299 ; 
2  Cas.  Abr.,  176 ;  2  Atk.,  178 ;  3  Atk.,  35 ;  1  Ves.,  434 ;  3 
P.  Wms.,  371 ;  3  Atk.,  ,35 ;  3  Atk.,  223 ;  1  Id.,  293 ;  Prec. 
in  Ch.,  221 ;  3  P.  Wms.,  426;  2  Wash.  R.,  258,  270,  272, 
275 ;  Yelo.,  202 ;  2  Mod.,  100 ;  12  Mod.,  515 ;  Park.,  303 ; 
Milf ord,  125 ;  2  Forb.,  155 ;  2  Atk.,  395 ;  2  Vez.,  256 ; 
Barnard  Ch.  Rep.,  100 ;  1  P.  Wms.  673 ;  1  Wood.,  232, 
240,  241 ;  1  Bro.  P.  C.,  58 ;  2  Bro.  P.  C.,  408 ;  3  Bro.  P. 
C.,  183, 186 ;  4  Bro.  P.  C.,  575, 585 ;  5  Bro.  P.  C.,  454, 487 ; 
«  Bro.  P.  C.,  469 ;  7  Bro.  P.  C.,  222,  423 ;  Colics  Cases, 
49 :  2  Vesey,  Jun.,  528,  529 ;  1  Strange,  617 ;  1  Ansthu- 
ther,  180,  183 ;  1  Salk.,  252 ;  1  Bro.  P.  C.,  578 ;  2  Bro.  P. 
C..  165. 

ON  the  13th  of  April,  1795,  the  respondents, 
as  factors  of  the  appellant,  sold  to  Isaac 
Lopez,  M.  Lopez,  Jun.,  and  Abraham  Rivera, 
merchants,  under  the  firm  of  Gomez,  Lopez 
and  Rivera,  about  600  bales  of  cotton,  at  37£ 
cents  per  pound,  and  12,000  weight  of  indigo, 
of  the  Isle  of  France,  at  two  dollars  per  pound, 
amounting  to  $122,415.36;  for  which  the  pur- 
chasers gave  their  promissory  notes,  payable 


in  one  year,  with  interest  after  60  days.  A 
written  contract,  by  direction  of  the  appellant, 
was  entered  into  between  the  respondents  and 
the  purchasers,  and  among  other  conditions  of 
the  contract,  it  was  stipulated,  that  the  pro- 
ceeds of  the  articles  in  France,  or  elsewhere, 
should  be  first  applied  towards  the  payment  of 
the  purchase  money;  and  further,  that  the  re- 
spondents "might  have  it  in  their  option  to  re- 
ceive the  whole  or  a  part  of  the  amount  of  said 
notes,  at  Havre  de  Grace,  or  at  any  other  port, 
the  ship  carrying  the  property  for  the  pur- 
chasers, might  discharge  at  in  Europe." 
'  A  few  days  after,  the  goods  were  shipped  on 
board,  and  the  vessel  sailed  for  Havre  de 
Grace,  in  France,  where  she  arrived  about  the 
1st  July,  1795,  from  thence,  by  direction  of 
Gomez,  who  was  on  board,  she  sailed  to  Ham- 
burgh, and  there  landed  the  goods,  which  were 
afterwards,  by  order  of  Gomez,  reshipped  to 
London,  and  there  sold. 

*The  appellant  made  repeated  ap-  [*437 
plications  to  the  respondents,  or  their  agents, 
to  make  election  to  receive  the  purchase  money 
out  of  the  proceeds  of  the  articles  in  Europe, 
and  to  give  an  authority,  by  which  the  appel- 
lant might  receive  the  surplus  thereof,  after 
the  respondents  had  retained  a  sufficient  sum 
to  indemnify  them  for  all  their  advances  and 
responsibilities  on  account  of  the  appellant. 
The  respondents  declining  to  follow  this  di- 
rection and  to  make  the  election,  the  appellant 
considered  them  as  having  thereby  substituted 
themselves  in  the  place  of  the  purchasers,  and 
become  liable  for  the  purchase  money,  and 
thereupon  brought  an  action  at  law  in  the  Su- 
preme Court,  and  obtained  a  final  judgment 
against  the  respondents  for  the  amount. 

A  writ  of  error  was  afterwards  brought  by 
the  respondents  to  this  court,  to  reverse  that 
judgment,  when  it  was  affirmed. (a) 


(a)  The  following  report  of  the  cause  in  the  Su- 
preme Court,  may  be  found  useful,  and  will  throw 
some  additional  light  upon  the  above  case : 

SUPREME  COURT— JANUARY  TERM,  1797. 


LE  GUEN  v.  GOUVERNEUR  AND  KEMBLE. 

This  was  an  action  of  assumpstf .  The  declaration 
contained  two  counts.  The  first  count  was  on  a 
special  agreement  as  follows : 

Louis  Le  Guen  complains  of  Isaac  Gouverneur  and 
Peter  Kemble,  in  custody,  &c.  for  that  whereas  the 
said  Isaac  Gouverneur  and  Peter  Kemble,  on  the 
the  13th  April,  1795,  were,  and  long  before  had  been,  ] 
and  ever  since  have  been,  and  now  are,  merchants  j 
and  factors,  to  wit,  at  the  city  of  New  York,  at  the  ! 
first  ward  of  the  said  city,  in  the  county  of  New  | 
York,  and  during  all  that  time,  have  carried  on  there 
the  business  of  factors  under  the  firm  of  Governeur 
&  Kemble,  and  as  such  factors  have  been  used  to  re- 
ceive from  divers  persons,  goods,  wares,  and  mer- 
chandise, to  be  sold  and  disposed  of  upon  the  account  I 
of  such  persons  respectively,  and  the  same  goods,  j 
wares,  and  merchandise,  to  sell  and  dispose  of  upon  i 
such  account,  in  consideration  of  certain  rates  of  i 
commission  or  factorage  to  them  allowed  upon  the  ! 
amounts  of  the  sales  by  them  made  of  such  goods,  j 
wares,  and  merchandise,  according  to  the  usage  and 
custom  of  the  business  of  factors  aforesaid,  in  the  i 
city  aforesaid.    And  whereas  the  said  Louis,  on  the  j 
said  13th  day  of  April,  in  the  year  aforesaid,  at  the  ' 
city,  ward,  and  county  aforesaid,  was  possessed  of  i 
257,129  pounds  of  cotton  wool,  and  12,99o  pounds  of  : 
indigo,  as  of  his  own  proper  goods  and  chattels ;  and  ' 
he  the  said  Louis  being  so  thereof  possessed,  it  was 
then  and  there  agreed  by  and  between  the  said  Louis 
and  the  said  Isaac  Gouverneur  and  Peter  Kemble, 

382 


that  the  said  Louis  should  deliver  the  said  cotton 
wool  and  indigo  to  the  said  Isaac  Gouverneur  and 
Peter  Kemble,  to  be  by  them  sold  and  disposed  of 
upon  his  account,  and  that  they  the  said  Isaac  Gou- 
verneur and  Peter  Kemble  should  sell  and  dispose 
of  the  same  upon  his  said  account,  and  should  ad- 
vance and  pay,  or  become  bound  as  sureties,  for  the 
freight,  duties,  and  all  other  lawful  and  reasonable 
charges  and  expenses  of  and  concerning  the  said 
cotton  wool  and  indigo,  and  for  so  doing  should  be 
allowed  a  commission  of  2  1-2  per  cent,  upon  the 
amount  of  the  sales  thereof,  and  such  further  com- 
mission as  according  to  the  course  of  their  agency 
therein,  and  the  usage  of  merchants  and  factors  in 
the  city  aforesaid,  in  the  like  cases,  they  might  be 
entitled  to  have,  as  a  reward  for  their  pains  and 
trouble  therein.  And  whereas  the  said  Louis,  in 
pursuance  of  that  agreement,  afterwards,  that  is  to 
say,  the  same  day  and  year  aforesaid,  at  the  city, 
ward,  and  in  the  county  aforesaid,  delivered  the  said 
cotton  wool  and  indigo  to  the  said  Isaac  Gouverneur 
and  Peter  Kemble,  to  be  by  them  sold  and  disposed 
of  as  aforesaid ;  and  the  said  Isaac  Gouverneur  and 
Peter  Kemble  then  and  there  received  the  said  cot- 
ton wool  and  indigo,  to  sell  and  dispose  of  the  same 
as  aforesaid.  And  whereas  the  said  Isaac  Gouver- 
neur and  Peter  Kemble,  after  the  delivery  to  them 
of  the  said  cotton  wool  and  indigo,  to  wit,  the  same 
day  and  year  af  oresaid,  at  the  city,  ward,  and  in  the 
county  aforesaid,  sold  and  disposed  of  the  said  cot- 
ton wool  and  indigo,  by  the  description  of  "upwards 
of  600  bales  of  cotton  in  the  gross  weight,"  and 
"about  12,000  weight  of  the  Isle  of  France  indigo," 
to  Abraham  R.  Rivera,  Isaac  Gomez,  Jun.  and  MoseB 
Lopez,  of  the  city  aforesaid,  merchants,  for  the  ac- 
count of  the  said  Louis  Le  Gunn,  upon  the  terms  and 
conditions  following,  to  wit,  that  they  the  said  Abra- 
ham R.  Rivera,  Isaac  Gomez,  Jun.  and  Moses  Lopez 
should  pay  to  them  the  said  Isaac  Gouverneur  and 
Peter  Kemble  for  the  said  cotton  wool,  by  the  de- 

JOHNSON'B  CASES,  1. 


1800 


Louis  LE  GUEN  v.  ISAAC  GOUVERNEUU  AND  PETER  KEMBLE. 


488 


438*]  *Before  the  trial  at  law,  two  of 
the  purchasers,  (the  other  refusing  to  join),  on 
the  llth  October,  1796,  filed  a  bill  in  chan- 
cery against  the  appellant,  the  respondents, 
430*]  *and  Lopez,  the  other  purchaser,  pray- 
ing relief,  on  the  ground  of  fraud  in  the  sale; 
alleging,  that  the  appellant  had  represented 
the  cotton  as  of  the  growth  of  the  Isle  of 

scription  aforesaid,  at  and  after  the  rate  of  three 
shillings  current  money  of  the  State  of  New  York, 
for  each  pound  thereof ;  and  for  the  said  indigo  by 
the  description  aforesaid,  at  and  after  the  rate  of 
sixteen  shillings  of  like  current  money  aforesaid 
for  each  pound  thereof;  and  towards  that  pay- 
ment should  make  and  deliver  to  the  said 
Isaac  Gouverneur  and  Peter  Kemble  their 
joint  notes  in  writing,  commonly  called  prom- 
issory notes,  thereby  promising  to  pay  to  them 
the  said  Isaac  Gouverneur  and  Peter  Kemble,  or 
their  order,  twelve  months  after  date,  the  amount 
of  the  said  cotton  wool  and  indigo,  at  the  rates  and 
prices  aforesaid,  with  interest  thereon  for  the  term 
of  ten  months,  at  and  after  the  rate  of  six  pounds 
for  every  hundred  pound  for  a  year,  and  should 
cause  the  said  cotton  wool  to  be,  on  or  before  the 
25th  May,  next  ensuing,  laden  on  board  a  certain 
ship  called  the  White  Fox,  then  being  in  the  port  of 
the  said  city  of  New  York,  to  be  carried  in  the  said 
ship  to  Havre  de  Grace,  in  France,  or  Hamburgh, 
in  Germany,  in  parts  beyond  the  seas,  one  or  both 
of  the  said  places,  to  the  intent  to  sell  and  dispose 
of  the  same  there ;  and  should  also  cause  the  said 
cotton  wool  and  indigo  to  be  fully  covered  by  in- 
surance, and  the  policy  or  policies  of  such  insurance 
should  deposit  with  the  said  Isaac  Gouverneur  and 
Peter  Kemble,  by  way  of  collateral  security  towards 
securing  the  payment  of  the  said  notes,  in  case  of 
the  loss  of  the  said  cotton  wool  and  indigo  in  the 
voyage  aforesaid ;  and  in  case  of,  and  after  the  land- 
ing of  the  said  cotton  wool  and  indigo  in  some  for- 
eign port,  should  cause  the  certificates,  documents, 
and  proofs  required  by  the  laws  of  the  United 
States,  to  ascertain  the  said  landing,  in  order  to  the 
obtaining  of  the  drawback  of  the  duties  thereupon 
allowed  by  the  said  laws,  to  be  forwarded  and  sent 
to  the  said  Isaac  Gouverneur  and  Peter  Kemble 
to  the  end  that  they,  the  said  Isaac  Gouverneur  and 
Peter  Kemble,  might  obtain  the  said  drawback  for 
their  benefit ;  and  also  should  cause  to  be  applied 
the  proceeds  of  the  sales  of  the  said  cotton  wool 
and  indigo  in  France,  or  elsewhere,  as  soon 
as  the  monies  arising  therefrom  could  be  remitted 
and  received  in  the  said  city  of  New  York,  towards 
the  payment  of  the  notes  aforesaid,  to  abate  the 
growing  interest  thereon  from  the  time  or  times  of 
and  in  proportion  to  such  payment,  but  that  never- 
theless the  said  Isaac  Gouverneur  and  Peter  Kem- 
ble, should  have  a  right  to  elect  to  receive  the  whole 
or  any  part  of  the  amount  of  the  said  notes,  at 
Havre  de  Grace  aforesaid,  or  any  other  port  in  Eu- 
rope where  the  said  ship  might  discharge  the  said 
cotton  wool  and  indigo,  to  be  paid  by  the  said  Abra- 
ham R.  Rivera,  Isaac  Gomez,  J  un.  and  Moses  Lopez, 
to  them  the  said  Isaac  Gouverneur  and  Peter  Kem- 
ble, or  their  agent,  out  of  the  proceeds  of  the  sales 
of  the  cotton  wool  and  indigo,  together  with  a  pre- 
mium thereupon,  at  and  after  the  rate  of  five 
pounds  for  every  hundred  pounds  thereof,  for 
receiving  the  same  in  Europe,  and  to  be  paid  in 
coin,  that  is  to  say,  in  Spanish  milled  dollars,  at  and 
after  the  rate  of  100  cents  lawful  money  of  the 
United  States  for  each  dollar,  or  in  French  crowns 
at  and  after  the  rate  of  110  cents  of  like  money 
aforesaid  for  each  crown :  and  that  the  said  Isaac 
Gouverneur  and  Peter  Kemble,  when  advised  of 
such  payment  or  payments,  should  make  endorse- 
ments thereof  upon  the  said  notes,  which  said  sale 
and  disposition,  upon  the  terms  and  conditions 
aforesaid,  are  expressed  in  and  appear  by  a  certain 
agreement  in  writing,  the  date  wnereof  is  the  afore- 
said 13th  April,  in  the  year  aforesaid,  made  by  and 
between  the  said  Abraham  R.  Rivera,  Isaac  Gomez, 
.Tun.,  and  Moses  Lopez  of  the  one  part,  and  the  said 
Isaac  Gouverneur  and  Peter  Kemble  of  the  other 
part,  and  now  in  the  possession  of  the  said1  Isaac 
Gouverneur  and  Peter  Kemble,  whereby  also  the 
said  parties  for  the  true  performance  thereof,  bind 
themselves  each  unto  the  other  in  the  penal  sum  of 
20,000  dollars :  and  the  said  Louis  doth  aver,  that  the 
said  sale  and  disposition  were  made,  and  the  said 
agreement  therefore  entered  into  by  the  said  Isaac 
Gouverneur  and  Peter  Kemble,  by  the  immediate 

JOHNSON'S  CASES,  1. 


*France,  whereas  it  was  in  truth  of  the  [*44O 
growth  of  Surat;  and  the  indigo  as  of  two  de- 
scriptions, Flotang  and  Violet  Copper,  when  a 
small  part  only  was  of  one  of  those  descrip- 
tions, *and  the  remainder  of  different  [*441 
kinds,  and  that  the  appellant  had  produced 
samples  agreeing  with  his  representation;  that 
the  articles  proved  to  be  of  inferior  quality  to 

direction,  and  with  the  immediate  privity  and  con- 
sent of  the  said  Louis,  and  that  all  and  singular  the 
matters  and  things  in  and  by  the  said  writing- 
agreed  to  be  performed  to  the  said  Isaac  Gouver- 
neur and  Peter  Kemble,  and  particularly  that  the 
right  by  them  thereby  reserved,  to  elect  to  receive 
the  whole  or  any  part  of  the  amount  of  the  said 
notes,  at  Havre  de  Grace  aforesaid,  or  any  other 
port  in  Europe,  where  the  said  ship  should  discharge 
the  said  cotton  wool  and  indigo,  together  with  the 
said  premium  of  five  per  cent.,  were  intended  for 
the  special  benefit  and  advantage  of  the  said  Louis, 
subject  only  to  the  lien  and  right  of  the  said  Isaac 
Gouverneur  and  Peter  Kemble,  to  have  and  receive 
the  general  balance  of  their  account  with  the  said 
Louis,  and  to  be  secured  for  and  concerning  such 
further  and  other  claims  and  demands,  as  they 
might  and  should  be  entitled  to  and  have,  by  reason 
of  their  agency  and  undertakings,  for  and  on  be- 
half of  the  said  Louis,  as  his  factors,  to  wit,  at  the 
city,  ward,  and  in  the  county  aforesaid :  And  the 
said  Louis  doth  also  aver,  that  afterwards,  and  be- 
fore the  aforesaid  25th  day  of  May,  in  the  year 
aforesaid,  that  is  to  say,  on  the  24th  day  of  May,  in 
the  year  aforesaid,  at  the  city,  ward,  and  in  the 
county  aforesaid,  the  said  cotton  wool  and  indigo 
were  by  the  said  Abraham  R.  Rivera,  Isaac  Gomez, 
Jim.  and  Moses  Lopez,  laden  on  board  the  ship  afore- 
said, then  being  in  the  port  of  the  said  city  of  New 
York,  and  the  said  ship  with  the  said  cotton  wool 
and  indigo  on  board,  forthwith  thereafter  set  sail 
from  the  said  port  of  the  said  city  of  New  York,  to 
proceed  on  her  said  voyage  immediately  to  the  port 
of  Havre  de  Grace  aforesaid ;  by  reason  whereof, 
they,  the  said  Isaac  Gouverneur  and  Peter  Kemble 
were  in  duty  bound  to  pursue  the  direction  and  re- 
quest of  the  said  Louis,  as  touching  the  exercise  of 
the  right,  so  as  aforesaid  reserved,  to  receive  the 
whole  or  any  part  of  the  amount  of  the  notes  afore- 
said at  Havre  de  Grace  aforesaid,  or  at  any  other 
port  in  Europe,  where  the  said  ship  should  discharge 
the  said  cotton  wool  and  indigo,  together  with  the 
said  premium  thereupon,  that  is  to  say,  within  the 
limit  and  to  the  extent  of  the  sum  which  would  be 
due  to  the  said  Louis,  upon  the  amount  of  the  said 
notes,  after  reserving  and  deducting  thereout  so- 
much  as  would  be  necessary  and  sufficient  to  satisfy 
the  said  Isaac  Gouverneur  and  Peter  Kemble  for 
the  general  balance  of  their  account  aforesaid,  and 
also  to  secure  them  for  and  concerning  such  further 
and  other  claims  and  demands,  as  they  might  and 
should  be  entitled  to  and  have,  by  reason  of  their 
agency  and  undertakings  for  and  on  behalf  of  the 
said  Louis,  as  his  factors;  and  were  also  in  duty 
bound,  upon  the  request  and  direction  of  the  said 
Louis,  to  give  to  the  said  Louis,  power  and  authori- 
ty to  receive  from  the  said  Abraham  R.  Rivera, 
Isaac  Gomez,  Jun.,  and  Moses  Lopez,  the  residue 
of  the  amount,  of  the  said  notes,  after  such  deduc- 
tion and  reservation  as  aforesaid,  together  with  the 
said  premium  thereupon,  at  Havre  de  Grace  afore- 
said, or  at  any  other  port  in  Europe,  where  the  said 
ship  should  discharge  the  said  cotton  wool  and  in- 
digo, out  of  the  said  proceeds  of  the  sales  thereof : 
And  in  consideration  thereof,  they,  the  said  Isaac 
Gouverneur  and  Peter  Kemble,  afterwards,  to  wit, 
on  the  same  25th  day  of  May,  in  the  year  aforesaid, 
at  the  city,  ward,  and  in  the  county  aforesaid,  un- 
dertook, and  then  and  there  f  aithf  ully  promised  the 
said  Louis,  to  exercise  the  right  so  as  aforesaid  re- 
served, within  the  limit  and  to  the  extent  aforesaid, 
pursuant  to  his  request  and  direction,  and  to  give 
to  him.  if  by  him  requested  and  directed,  the  power 
and  authority  aforesaid ;  and  the  said  Louis  in  fact 
saith.  that  afterwards,  to  wit,  on  the  same  25th  day 
of  May,  in  the  year  aforesaid,  and  often  afterwards, 
at  the  city,  ward,  and  in  the  county  aforesaid,  he 
requested  and  directed  the  said  Isaac  Gouverneur 
and  Peter  Kemble  to  elect  to  receive  the  amount  of 
the  said  notes,  or  at  their  option,  so  much  thereof 
as  would  be  due  to  the  said  Louis,  after  deducting 
and  reserving  so  much  as  would  be  necessary  and 
sufficient  to  pay  and  satisfy  the  said  Isaac  Gouver- 
neur and  Peter  Kemble,  for  the  general  balance  of 

38S 


442 


COURT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1800 


442*]  *thosc  for  which  they  were  sold,  and 
brought  in  London,  $20,000  less  than  they 
would  have  done,  had  they  been  of  the 
description  and  quality  represented. 
443*]  *The  appellant,  in  his  answer  to  this 
bill,  on  the  23d  Februarv,  1797,  fully  and  pos- 
itively denied  all  the  allegations  of  the  com- 
plainants on  which  the  charge  of  fraud 

their  account  aforesaid,  and  also  to  secure  them  for 
and  concerning1  such  further  and  other  claims  and 
demands,  as  they  might  and  should  be  entitled  to, 
and  have,  by  reason  of  their  agency  and  undertak- 
ings, for  and  on  behalf  of  the  said  Louis,  as  his  fac- 
tors, at  Havre  de  Grace  aforesaid,  or  at  any  other 
port  in  Europe,  where  the  said  ship  should  discharge 
the  said  cotton  wool  and  indigo,  out  of  the  said  pro- 
ceeds of  the  sales  thereof ;  and  after  such  deduction 
and  reservation  made,  to  give  to  the  said  Louis 
power  and  authority,  to  receive  from  the  said  Abra- 
ham R.  Rivera,  Isaac  Gomez,  Jun.  and  Moses  Lopez, 
the  residue  of  the  amount  of  the  said  notes,  to- 
gether with  the  said  premium  thereupon,  at  Havre 
He  Grace  aforesaid,  or  at  any  other  port  in  Europe, 
where  the  said  ship  should  discharge  the  said  cotton 
wool  and  indigo,  out  of  the  said  proceeds  of  the 
sale*  thereof :  And  the  said  Louis  further,  in  fact 
sjvith,  that  after  such  deduction  and  reservation  as 
aforesaid  made,  there  would  remain  due  to  him,  the 
said  Louis,  as  for  the  residue  of  the  amount  of  the 
said  notes,  a  large  sum  of  money,  to  wit,  the  sum  of 
£70,000  current  lawful  money  of  the  State  of  New 
York,  of  which  the  said  Isaac  Gouverneur  andPeter 
Kemble  then  and  there  had  notice :  Nevertheless, 
the  said  Isaac  Gouverneur  and  Peter  Kemble,  not 
regarding  their  said  promise  and  undertaking,  ac- 
cording to  their  duty  as  the  factors  of  the  said  Louis, 
,«o  as  aforesaid  made,  but  contriving,  and  fraudu- 
lently intending,  craftily  and  subtilly  to  deceive 
and  defraud  the  said  Louis  in  this  behalf,  although 
often  requested  and  directed  thereunto  as  aforesaid, 
have  not  elected  to  receive  the  said  amount  of  the 
said  notes  or  any  part  thereof,  at  Havre  de  Grace 
aforesaid,  or  any  other  port  in  Europe,  where  the 
said  ship  should  discharge  the  said  cotton  wool  and 
and  indigo,  nor  have  tney  jjiven  to  him,  the  said 
Louis,  the  power  and  authority  so  as  aforesaid  by 
him  requested  of  them,  as  they  ought  to  have  done, 
but  have  wholly  refused  so  to  do,  &c. 

The  second  count  was  for  money  had  and  re- 
ceived to  the  use  of  the  plaintiff.  The  plaintiff  con- 
cluded with  demanding  damages  to  £70,000.  The 
defendants  pleaded  non  (Wtumpyit. 

The  cause  was  first  tried  in  March,  1797,  at  the  cir- 
cuit held  in  the  city  of  New  York,  before  Mr.  Justice 
Lewis,  when  a  verdict  was  found  for  the  defend- 
ants, on  the  first  count.  In  April  term  following,  a 
motion  was  made  on  behalf  of  the  plaintiff  to  set 
aside  the  verdict  and  for  a  new  trial,  which  was 
elaborately  argued  by  the  counsel  on  both  sides.  A 
new  trial  was  granted  by  Hobart,  J.,  Lansing,  J., 
and  Benson,  J.,  against  Yates,  Ch.  J.,  and  Lewis,  J., 
who  dissented. 

.  The  new  trial  was  at  bar,  when  the  jury  found  a 
special  verdict,  and  the  following  are  the  material 
facts  which  it  contained : 

On  the  13th  of  April,  1795,  Le  Guen  was  the  owner 
of  sundry  goods  and  merchandise,  to  wit,  of  687 
bales  of  cotton,  and  24  casks  and  38  cases  of  indigo, 
which  before  that  time  had  been  placed  by  him  in 
the  hands  of  Gouverneur  &  Kemble,  as  his  factors 
and  agents,  to  sell  and  dispose  of  the  same  for  his 
best  advantage,  and  upon  the  commission  usually 
allowed  to  such  factors  and  agents  for  the 
transaction  of  such  business.  By  the  inter- 
vention and  express  consent  and  direction 
of  Le  Guen,  Gouverneur  &  Kemble,  as  his 
factors  or  agents,  on  the  13th  of  April,  1795,  sold 
the  said  goods  and  merchandise*  to  Isaac  Gomez, 
Jun.  and  Moses  Lopez,  copartners  in  trade,  under 
the  firm  of  Gomez  &  Lopez,  and  to  one  Abraham  R. 
Rivera,  upon  the  terms  and  conditions  contained  in 
a  certain  contract  made  between  Gouverneur  & 
Kemble,  Gomez  &  Lopez,  and  Rivera,  which  was 
produced  in  evidence,  and  is  as  follows : 

"Whereas  Gomez  &  Lopez,  and  Abraham  R. 
Rivera,  have  agreed  with  Gouverneur  &  Kemble,  to 
take  upon  themselves  the  charter  of  the  Hamburgh 
ship  White  Fox,  Captain  Haberstrok,  on  the  same 
terms  which  were  made  with  Mr.  Dohrman.  for  her 
to  proceed  from  the  port  of  New  York  to  Havre  de 
Grace  and  Hamburgh,  for  the  consideration  of  two 
thousand  pounds  sterling,  payable  in  London,  con- 


*was  founded.  On  the  9th  May  fol-  [*444 
lowing,  the  respondents  put  in  their  answer  to 
the  bill,  declaring  that  they  did  not  know  that 
the  appellant  had  practised  any  fraud  or  mis- 
representation *in  the  sale,  and  on  the  [*445 
20th  June  following,  Lopez, the  other  purchaser, 
put  in  his  answer,  which  agreed  in  substance 
with  that  of  the  appellant,  and  exculpated 

ditioned  that  there  shall  be  fifty  running  days  al- 
lowed to  load  and  unload  the  said  ship,  and  that 
I  every  day  over  and  above  that  time  the  ship  may  be 
|  detained,  demurrage  of  five  pounds  sterling  per  day 
[  shall  be  allowed  for  such  detention.    And  whereas 
they,  the  said  Gomez  &  Lopez,  and  Abraham  R. 
Rivera,  do  further  agree  to  purchase  (and  load  in 
S  the  said  vessel)  from  the  said  Gouverneur  &  Kem- 
!  ble,  upwards  of  600  bales  of  cotton  in  the  gross 
j  weight,  at  three  shillings  New  York  currency  per 
1  pound,  and  about  12,000  weight  of  Isle  of  France  in- 
digo, at  sixteen  shillings  said  currency,  the  net  pro- 
ceeds payable  in  their  joint  notes  of  hand  in  this 
city,  twelve  months  after  date,  with  ten  months 
interest  thereon,  at  the  rate  of  six  per  cent,  per  an- 
num, subject  to  the  following  conditions,  viz :  1st. 
That  the  said  Gomez  &   Lopez,  and  Abraham  R. 
Rivera,  will  have  the  property  all  covered  by  in- 
surance,  and  the  policies  for  such  insurance  shall  be 
lodged  with  Gouverneur  &  Kemble,  as  a  collateral 
,  security  for  the  payment  of  the  notes.    2d.    That 
!  whatever  property  may  be  first  received  from  the 
i  sales  of  these  goods  in  France  or  elsewhere,  shall  be 
:  applied  to  the  payment  of  the  notes,  as  soon  as  the 
I  money  can  be  received  and  remitted  here,  to  abate 
!  the  growing  interest,  any  time  within  the  twelve 
|  months.    3d.  Th*>  purchasers  obligate  themselves  to 
return  the  necessary  depositions  and  certificates  of 
the  goods  being  landed  in  a  foreign  country,  to  en- 
'  able  the  said  Gouverneur  &  Kemble  to  recover  the 
drawback  of  the  duties  for  their  benefit,  which  they 
i  the  said  Gomez  &  Lopez  and  Abraham  R.  Rivera  re- 
|  linquish  any  interest  therein,  and  they  engage  the 
said  cargo  of  cotton  and  indigo,  shall  be  on  board  on 
or  before  the  25th  of  May  prorimo.    4th.  That  the 
I  said  Gouverneur  &  Kemble  may  have  it  in  their  op- 
!  tion  to  receive  the  whole  or  a  part  of  the  amount  of 
the  said  notes  at  Havre  de  Grace,  or  at  any  port  the 
ship  may  discharge  at  in  Europe,  which  they,  the 
said  Gomez  &  Lopez  and  Abraham  R.  Rivera  engage 
i  to  pay  them,  the  said  Gouverneur  &  Kemble,  or 
i  their  agent,  out  of  the  proceeds  of  the  sales  of  the 
j  cotton  and  indigo,  together  with  a  premium  of  five 
per  cent,  thereon,  for  receiving  it  in  Europe,  which 
is  to  be  complied  with  in  specie,  either  in  Spanish 
,  dollars  valued  at  100  cents,  or  in  French  crowns  at 
110  cents ;  and  the  said  Gouverneur  &  Kemble,  on 
their  parts,  will  make  indorsements  on  the  notes, 
when  advice  shall  be  received  of  such  payments 
being  made.    For  the  true  performance  of  all  which 
!  covenants  hereunto  subscribed  to,  the  parties  bind 
1  themselves  each  unto  the  other,  in  the  penal  sum  of 
20,000  dollars.    Witness  our  hands  in  New  York,  this 
I  13th  day  of  April,  1795,  and  seals." 

The  cotton  and  indigo  were  on  the  same  day  de- 

I  livered  by  Gouverneur  &  Kemble  to  the  purchasers, 

who,  bef  ore  the  30th  of  May,  1795,  put  them  on  board 

of  the  ship  White  Fox,  having  previously  given 

I  their  notes  to  Gouverneur  &  Kemble  for  £48,966  fe., 

payable  in  12  months. 

The  cotton  and  indigo  were  entered  for  exporta- 
;  tion  at  the  custom-house,  and  Gouverneur  &  Kem- 
'•  ble  received  a  debenture  for  the  sum  of  £4,834  15s., 
j  payable  on  the  15th  day  of  August  in  the  same  year, 
!  and  as  agents  and  factors  of  the  plaintiff,  but  in 
j  their  own  names,  executed  a  bond  to  the  United 
i  States  of  America,  in  the  penalty  of  $12,086.87,  in 
1  the  usual  form,  for  the  landing  of  the  said  cotton 
1  and  indigo  in  some  foreign  country,  and  to  produce 
the  regular  certificates  of  evidence  thereof,  within 
j  12  months  from  the  date  thereof. 

On  the  4th  of  May,  1795,  Gomez.  Lopez,  and  Rivera 
1  chartered  the  ship  White  Fox,  of  the  master,  Died- 
!  erick  Kohne,  from  Now  York  to  Havre  de  Grace, 
and  from  there  to  Hamburgh.    The  charter-party 
was  set  forth,  in  the  special  verdict,  and  was  in  sub- 
I  stance*  as  follows :  That  the  shippers  were  to  pay 
£2,000    sterling   for   the   entire    freight,    in   good 
bills  on  London,  and  an  additional  freight  for  any 
goods  that  might  be  shipped  at  Havre  de  Grace  for 
Hamburgh.    Fiftv  days  were  allowed  for  loading 
and  unloading,  &c.,  and  five  pounds  sterling  de- 
murrage was  to  be  paid  for  every  day  the  vessel 
was  longer  detained. 

JOHNSON'S  CASES,  1. 


1800 


Louis  LE  GUEN  v.  ISAAC  GOUVERNEUR  AND  PETER  KEMBLE. 


446 


•446*]  *him  from  all  the  allegations  of  fraud 
•or  misrepresentation. 

A  few  days  after  the  affirmance  of  the  judg- 
-447*]  ment  in  the  *Supreme  Court,  to  wit,  on 
the  30th  March,  1798,  the  respondents  filed  a  bill 
in  the  Court  of  Chancery  against  the  appellant, 
stating  the  sale  of  the  cotton  and  indigo,  the 
-448*]  *suit  brought  by  Gomez  &  Rivera  in 


chancery,  and  that  they  had  obtained  an  in- 
junction on  the  ground  of  fraud  on  the  part 
of  the  appellant,  and  that  the  suit  remained 


*undetermined;  and  praying 
appellant  might  be  enjoinec 


that  the  [*449 
from  suing  out 


execution  on  the  judgment  obtained  by  him 
against  the  respondents  in  the  Supreme  Court, 
*as  it  would  be  unjust  to  permit  him  [*45O 


On  the  4th  of  May,  1795,  Gouverneur  &  Kemble 
•executed  a  bond  to  the  owner  of  the  vessel,  in  the 


entitled ;  that  I  had  accordingly  engag ed  a  fast  sail- 

, ,  ing  vessel  to  carry  me,  and  that  the  necessary  ar- 

penalty  of  £2,800  sterling,  guaranteeing1  the  due  !  rangements  being  made,  I  should  depart  the  3d  or 
performance  of  the  charter-party  on  the  part  of  4th  instant,  to  give  my  personal  attention  to  the 
Gomez,  Lopez,  and  Rivera ;  and  on  the  28th  of  |  course  of  an  affair  of  primary  importance  to  me, 
the  same  month,  they  executed  a  bond  to  one  Dorh-  ;  and  thereby,  perhaps,  prevent  any  disastrous  con- 


man,  who  had  previously  chartered  the  White  Fox, 
in  the  penalty  of  £1,800  sterling,  guaranteeing  the 
performance  of  a  certain  agreement  relative  to  the 

•charter,  between  Dorhman,  and  Gomez,  Lopez,  and 
Rivera,  on  the  part  of  the  latter. 
After  the  sale  and  delivery  of  the  cotton  and  in- 

•digo,  the  plaintiff,  on  the  30th  of  May,  1795,  wrote 
to  the  defendants  a  letter,  in  which  he  expresses  his 
anxiety  as  to  the  steps  taken  by  them  to  secure  the 
payment  of  the  cotton  and  indigo  sold  to  Gomez, 
Lopez,  and  Rivera,  and  adds,  "it  is  my  wish  and  de- 
sire, 1st.  That  you  insist  on  the  conditions  of  the 
deed  of  sale,  which  relate  to  the  insurance  being 
performed,  and  require  that  the  amount  of  the  sale 
be  entirely  covered,  as  well  as  the  premium,  that  in 

.•all  cases  the  recovery  of  the  insurance  be  sufficient 
for  the  payment  of  what  is  due  to  me.  2d.  That 
you  do  not  give  any  order  for  the  disposal  of  the 
proceeds  of  this  shipment,  without  my  knowledge 

;and  consent,  that  I  may,  if  I  think  proper,  avail  my- 
self of  the  4th  article  of  the  contract,  to  receive  the 
money  in  France  or  Hamburgh  ;  and  that  we  may 
come  to  a  determination  on  this  subject,  be  so 
obliging  as  to  point  out,  and  let  me  know  the  hour 

.and  place  at  wnich  we  may  meet." 

An  interview  took  place  between  the  plaintiff  and 

•  defendants,    on    the    same    day,    in     which     the 
plaintiff  demanded  of  the  defendants  to  suspend  the  , 
departure  of  the  White  Fox,  until  the  insurance 
upon  her  cargo  was  entirely  completed,  to  furnish 
him  with  a  copy  of  the  contract  or  writing,  respect- 
ing the  sale  of  the  cotton  and  indigo,  with  an  au- 
thorization to  receive  in  France  the  amount  of  the 
engagements  of  the  purchasers,  and  to  give  him  an 
extract  of  the  account  of  Gouverneur  &  Kemble, 
that  he  might  pay  it  to  their  entire  satisfaction  and 
discharge ;  to  which  demand  they  replied,  that  the 
sum  wanting  to  complete  the  insurance,  was  not  of 
sufficient  consequence  to  delay  the  departure  of 
the  vessel,  and  that  they  would  provide  for  the  de- 
ficit, and  turning  to  Gomez,  observed  that  it  was 
his  property,  and  that  he  had  a  right  to  depart  with 
the  vessel  when  lie  pleased,  and  that  thev  would,  on 
the  next  Monday,  deliver  to  Le  Guen  his  account 

•  current.    Le  Guen  represented  to  Gouverneur   & 
Kemble,  that  the  proceeds  of  the  cargo  were  spe- 
cially liable  for  the  payment  of  the  money  due  from 
the  purchasers;   that  he  could  not  be  burthened 
with  the  amount  of  the  freight  and  premium  of  in- 
surance, and  demanded  that  the  purchasers  should 
give  security  for  the  payment  of  these  objects,  in- 
dependent of  the  proceeds  of  the  cotton  and  indigo, 
and  that  Gouverneur  thereupon  repeated  to  Gornez, 
that  the  cargo  was  his  property,  and  that  he  could 
dispose  of  it.    The  ship  sailed  on  her  voyage  the 
next  day. 

Gouverneur  &  Kemble  caused  insurance  to  be 


sequences  which  might  otherwise  arise.  These  de- 
sires, intentions  and  expectations,  were  afterwards 
reiterated  by  me,  but  not  being  met  as  I  could  hope, 
I,  on  the  30th  of  May,  wrote  the  letter  Of  which  a 
copy  is  herewith  transmitted,  and  to  which  I  re- 
ceived no  answer.  To  my  surprise,  I  learnt  the 
next  day  that  the  vessel  had  sailed,  and  I  am  this 
moment  ignorant  that  any  adequate  means  have 
been  attempted  to  secure  the  application  of  the  pro- 
ceeds of  the  cargo,  according  to  the  wish  which  I 
communicated,  and  the  right  reserved  to  me  by  the 
contract,  and  I  remain  unfurnished  with  any  docu- 
ments or  means  by  which  I  might  take  the  measures 
that  might  appear  to  me  advisable.  Even  the  pre- 
caution which  I  urged,  of  addressing  to  the  house  of 
Le  Conteulx  &  Co.,  of  Rouen,  an  authenticated  copy 
of  the  contract  of  sale.to  the  end  that  they  might  take 
care  of  my  interest,  was  at  that  time  refused,  and 
as  far  as  I  know,  has  been  omitted.  To  increase  the 
inconvenience  of  my  situation,  I  am  left  with  the 
embarrassment  of  having  on  my  hands  the  vessel  I 
had  hired  to  convey  me  to  Europe,  and  may  be  ex- 
posed to  loss  from  that  source.  In  this  situation,  I 
am  sony  to  be  obliged  to  think  that  your  house  has 
failed  in  observing  towards  me  a  conduct  corre- 
suonding  with  my  rights  and  interest,  and  I  con- 
clude that  it  has  made  itself  responsible  for  whafr- 
ever  losses  may  ensue.  Desirous  of  obviating,  how- 
ever, as  far  as  may  still  be  possible,  eventual  mis- 
fortunes to  any  party,  I  offer  myself  to  co-operate 
with  you  in  concerting,  without  loss  of  time,  such 
measures  as  may  still  be  practicable,  to  give  effect 
to  the  operation,  according  to  the  true  intent,  and 
the  rights  of  each  party.  To  this  end,  we  may  avail 
ourselves  of  such  legal  or  other  advice  as  the  nat- 
ure of  *  he  case  may  render  it  useful.  But  this 
offer  is  made  upon  the  express  condition  that  the 
proposed  co-operation  shall  not  derogate  in  the 
end,  from  any  claim  upon  your  responsibility  for 
consequences  which  may  at  this  time  exist,  and 
that  I  shall  retain  the  same  rights  and  remedies  that 
I  might  have  if  no  such  co-operation  had  taken 
place." 

On  the  same  day,  Gouverneur  &  Kemble  wrote  an 
answer,  as  follows : 

"We  enclose  you  herewith,  an  account  of  sales  of 
the  goods  that  were  placed  in  our  hands,  which  render 
£54,196  11s.  lOd.  for  their  net  proceeds.  We  also 
hand  you  a  statement  of  our  account  current,  and 
when  we  are  in  the  receipt  of  all  the  money  result- 
ing from  the  sales  of  these  goods,  and  the  drawback 
of  the  duties,  there  will  be  coming  to  you  a  balance 
of  £47,544  15s.  6d.  We  further  state,  there  will  be 
coming  to  us  £6.356  2s.  6d.  to  cover  the  present  ad- 
vances, &c.,  besides  which,  we  are  responsible  for 
the  charter  of  the  ship  White  Fox,  in  £3,733  6s.  M. 
on  your  account.  Under  these  circumstances,  we 


made  upon  the  cotton  and  indigo,  from  the  port  of  j  have  grounded  an  objection  to  give  you  an  author- 
New  York  to  two  ports  in  Europe,  at  different  pre-  !  ization  to  receive  the  money  in  France  for  the  sales 
miums,  and  in  their  own  names,  and  paid  the  pre-  of  the  goods,  until  we  are  first  re-imlmrsed  and  made 
miii ins,  amounting  in  the  whole  to  $7,367.  In  the  !  secure.  We  have  no  objection  to  co-operate  with 


policies  was  a  note  as  follows : 
"The  vessel  is  neutral,  and  the  property  warranted 


American,  proof  of  interest  to  be  made  here  only, 
:  and  not  to  be  bound  by  the  adjudication  of  any  for- 
eign court." 
On  the  6th  of  June,  1795,  the  plaintiff  again  wrote 


you  for  the  ultimate  security  of  the  property  upon 
fair  principles  of  justice  and  equity.    In  justice  to 


those  gentlemen  who  have  become  the  purchasers  of 
the  goods,  we  think  proper  to  observe,  that  they  are 
men  of  property  and  fair  characters,  and  that  we  are 

,  _._„, r disposed  to  treat  them  with  a  degree  of  delicacy 

to  the  defendants,  and,  referring  to  their  letter  of  I  throughout   this   unfortunate   transaction,  which 
the  29th  of  May,  he  says  :  "I  requested  that  my  ac-    will  evidently  end  in  a  considerable  loss,  and  prove 
count  with  you  might  be  prepared,  in  order  to  be 
adjusted,  and  that  I  might  be  enabled,  by  the  pos- 
session of  the  notes,  or  some  competent  authoriza- 
tion, and  an  authenticated  copy  of  the  contract  of 
sale,  to  receive  the  sum  which  was  coming  to  me 
out  of  the  proceeds  of  the  cargo,  and  informed  you 
that  it  was  my  intention,  thus  provided  and  enabled, 


to  go  in  person  to  Europe,  to  attend  the  progress  of 
the  affair,  and  receive  the  payment  to  wnich  I  was 


a  gross  deception,  by  their  not  having  a  competent 
knowledge  in  the  article  of  cotton ;  it  would  there- 
fore be  with  reluctance  that  we  should  undertake 
anything  that  might  operate  to  their  prejudice  or 
injury.  Still  we  are  not  unwilling  to  devote  our- 
selves to  vour  interest,  nor  do  we  see  any  reason  for 
all  the  difficulties  and  anxieties  your  imagination  is 
apparently  troubled  with,  without  sustaining  any 
real  cause  of  alarm." 


,  JOHN  SON'S  CASES,  1. 


N.  Y.  REP.,  BOOK  1. 


25 


385 


450 


COURT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1800- 


to  receive  the  money,  until  it  was  ascertained  i 
whether  he  had  been  guilty  of  the  fraud  alleged  j 
by  the  purchasers.  The  bill  concluded  with! 
45 1  *]  *praying  an  injunction  and  relief.  An  i 
injunction  was  accordingly  issued. 

On  the  7th  June,  1798,  the  appellant  put  in  i 
452*]  *his  answer  to  the  bill  of  the  respond-  j 
ents,  in  which  he  set  forth  the  bill  filed  j 
by  Gomez  &  Rivera,  and  his  answer  to ; 
that  bill,  in  which  he  explicitly  denied  every 
allegation  of  fraud. 

453*]  *To  prevent  any  risk  or  inconven-  i 
ience  to  the  appellant,  the  chancellor  or- 1 
dered  the  respondents  to  pay  the  amount  of  the  | 
judgment  into  the  bank  of  New  York;  and  the  j 
454*]  *plaiutiff  was  permitted  to  draw  out,  ' 


unconditionally,  about  $53,000;  the  residue- 
was  received  bv  him,  on  giving  security  to- 
refund,  in  case  it  should  become  necessary,  by 
the  decree  of  the  court. 

*After  publication  had  passed,  the  [*455- 
chancellor,  on  the  1st  March,  1799,  directed 
that  an  issue  should  be  tried  in  the  Supreme 
Court,  to  determine  whether  there  had  been 
*any  fraud  in  the  sale  of  the  cotton  and  [*456- 
indigo,  and  ordered  the  trial  to  be  before  a 
special  jury,  at  the  next  circuit  court  in  the 
County  of  Dutchess. 

*A  previous  question  having  been  re-  [*45  7 
served  by  the  counsel  on  both  sides,  to  be  de- 
terminea  as  preliminary  to  the  trial,  namely,, 
"whether  the  respondents  were  precluded 


The  verdict  then  states,  that  on  the  6th  of  June, 
1795,  Le  Guen  was  indebted  to  Gouverneur  &  Kem- 
ble  in  the  sum  of  £4,795  6s.  2d.,  and  that  the  defend- 
ants held  in  their  hands  a  custom-house  debenture, 
the  property  of  the  plaintiff,  payable  in  August, 
1795,  for  £4,834  15s.  out  of  which  the  defendants 
were  entitled  to  a  commission  of  £60  8s.  lOd.  which 
would,  after  the  receipt  of  the  debenture,  leave  a 
balance  due  by  the  plaintiff  to  the  defendants  of 
£21  3d.,  upon  the  general  balance  of  their  ac- 
count, as  his  factors  and  agents,  and  that  he  con- 
tinued so  indebted  until  and  after  the  month  of 
August,  1795 :  that  Gouverneur  &  Kemble  received 
the  amount  of  the  debenture  when  it  became  due, 
and  the  bonds  which  they  had  entered  into  to  the 
United  States  custom-house,  for  and  on  account  of 
Le  Guen.  were  cancelled  on  the  1st  of  April,  1796. 

That  Gouverneur  &  Kemble  charged  the  premi- 
ums of  insurance  to  Gomez,  Lopez,  and  Rivera,  on 
the  10th  of  June,  in  1795,  and  received  their  joint 
promissory  note  for  the  same,  payable  in  six  months 
from  that  time. 

Several  letters  passed  between  the  parties,  of 
which  the  following  is  extracted  as  the  substance : 

On  the  9th  of  June,  1795,  Le  Guen  writes  to  Gou- 
verneur &  Kemble,  "I  observe  with  regret  that 
(though  you  have  dropped  one  of  the  items  which 
originally  composed  your  claim,  the  premiums  of 
insurance)  you  persist  in  the  idea  of  retaining  ex- 
clusively in  your  command  and  disposition,  the 
whole  of  my  property,  on  the  ground  of  a  lien  upon 
it,  arising  trom  your  agency,  which,  according  to 
your  own  statement,  amounts  to  little  more  than 
one  fifth  of  its  value,  and  adhere  to  your  objection 
to  give  me  an  authorization  to  receive  any  part  of 
it.  It  was  ever  my  intention,  and,  as  I  conceived, 
imported  in  my  original  propositions,  to  provide  for 
your  payment  and  security  to  the  extent  of  your 
just  claims,  as  the  condition  of  the  authorization  I 
demanded  of  you  to  receive  what  was  rightfully 
coming  to  me.  This  was  equally  the  intention  of 
the  co-operation  proposed  by  my  letter  of  the  sixth, 
and  I  continue  disposed  to  enter  into  that  co-opera- 
tion upon  this  principle.  It  is  true,  there  are  sev- 
eral items  in  your  account  about  which  we  differ  in 
opinion,  yet  I  was  and  am  ready  to  make  suitable 
reservations  and  arrangements  towards  a  right  ad- 
justment of  them ;  but  I  cannot  imagine  that  this 
ought  to  have  prevented,  or  ought  now  to  impede 
precautions  and  measures  tending  to  secure  a  due 
application  of  the  proceeds  of  the  cargo,  and  to  put 
me  in  possession  of  the  funds  to  which  I  am  indis- 
putably entitled,  and  according  to  the  election  which 
was  reserved  for  my  benefit  in  the  terms  of  the  con- 
tract. On  this  ground  of  putting  me  in  a  situation 
to  possess,  without  delay,  that  to  which  I  am  indis- 
putably entitled,  and  of  leaving  your  just  and  legal 
claims  upon  the  property,  and  otherwise,  unim- 
paired, I  am  still  willing  to  co-operate.  But  as  I 
conceive  there  were  pretensions  and  omissions  in 
the  first  instance,  which  render  you  responsible  for 
consequences,  as  it  may  now  be  too  late  to  repair 
the  deficiency,  as  every  moment's  delay  increases 
the  risks,  I  still  make  the  offer  of  co-operation,  on 
condition  of  holding  you  in  the  same  state  of  re- 
sponsibility in  which  you  were  prior  to  that  offer. 
At  the  same  time,  it  will  be  explicitly  understood, 
that  in  acceding  to  the  co-operation  on  this  condi- 
tion, you  do  not  incur  any  new  or  additional  re- 
sponsibility. With  this  explanation,  I  urge  an  im- 
mediate and  positive  answer,  whether  you  will  con- 
cur in  an  arrangement  on  this  base.  Moments  are 
precious.  That  which  might  be  useful  now,  may 


quickly  become  useless  by  procrastination."  IThe- 
nature  of  the  co-operation  will  be  an  after  consider- 
ation. The  terms  to  be  settled  between  us,  accord- 
ing to  our  mutual  opinions,  and  the  advice  we  may 
mutually  take." 

To  this  letter  Gouverneur  &  Kemble  replied,  on 
the  10th  of  June,  1795 :  "It  is  not  our  wish  to  throw 
any  embarrassments  in  your  way,  but  the  magni- 
tude of  our  claims,  and  our  engagements  in  your- 
behalf,  render  it  proper  that  we  proceed  with  cau- 
tion. To  stop  the  ship  until  the  insurance  was  com- 
pleted, was  not  in  our  power.  Messrs.  Gomez,  Lo- 
pez, and  Rivera,  stipulated  to  make  insurance,, 
but  this  might  be  done  as  well  after  as  before  the 
vessel  sailed ;  and  if  neglected  altogether,  it  would 
amount  to  a  breach  of  contract  only,  for  which  the 
vessel  could  not  be  detained.  With  respect  to  the 
premium  for  insurance  paid  by  us,althougb  we  omit- 
ted it  in  our  last  account,  we  do  not  assent  to  the 
force  of  your  objection  to  the  payment  of  it.  The 
insurance  being  effected  for  your  benefit  and  so- 
j  curity,  it  is  more  reasonable  that  you  should  run  the 
hazard  of  recovering  back  the  premium  than  we,, 
who  act  only  as  agents.  To  remove,  however,  every 
impediment  to  a  settlement,  and  manifest  a  spirit  of 
accommodation,  this  charge  has  been,  for  the  pres- 
ent,dropped.  We  cannot  forbear  remarking,  that  not- 
withstanding your  solicitude  to  obtain  the  author- 
ization in  question,  you  constantly  uphold  a  claim 
upon  us  for  certain  consequences,  without  point- 
ing out  in  what  manner  we  may  have  rendered  our- 
selves responsible.  Although  we  are  not  conscious- 
of  any  act  which  can  give  you  this  claim,  and  are 
therefore  easy  on  this  head,  yet  you  cannot  but  per- 
ceive the  impropriety  of  our  admitting  that  we  have 
incurred  this  responsibility,  which  we  should  do, 
were  we  to  come  to  a  settlement  upon  the  terms 
proposed  by  you.  As  to  our  lien  on  the  notes,  and 
other  documents  relating  to  this  transaction,  we 
never  had  any  doubt  of  our  right  to  withhold  them,, 
and  also  to  refuse  you  any  authority  to  act,  until 
the  whole  of  our  demand  was  satisfied,  and  we  sat- 
isfactorily secured  against  contingent  claims.  In- 
deed, as  the  contract  is  in  our  name,  and  we  are 
bound  under  a  penalty  of  $20,000  to  endorse  on  the- 
notes,  which  are  also  in  our  favour,  the  pa_ymente>- 
as  they  are  made,  we  might  insist  (were  we  disposed, 
as  you  insinuate,  to  create  difficulties)  upon  all 
the  moneys  passing  through  our  hands,or  those  of  an 
agent  chosen  by  us,  and  for  that  purpose  keep  pos- 
session of  every  paper  until  the  transaction  was- 
finally  closed.  But  we  are  sincerely  anxious  to  put 
an  end  to  a  controversy  which  did  not  originate 
with  us ;  for  this  purpose,  we  beg  leave  to  refer  you 
to  our  letter  of  the  6th  instant,  in  which  we  were  so- 
expljcit  as  to  the  terms  upon  which  we  were  willing 
to  give  you  the  authority  you  desire,  and  to  co- 
operate with  you,  that  nothing  remains  to  be  added. 
To  give  you,  however,  a  further  proof  of  our  wish 
for  a  speedy  and  amicable  arrangement,  we  are 
willing,  if  these  terms  are  not  agreeable  to  you,  to- 
submit  the  whole  matter  to  arbitration." 

On  the  12th  of  June.  1795,  Le  Guen  writes  to  Gou- 
verneur &  Kemble :  Agreeable  to  the  contents  of 
my  letter  of  yesterday,  I  have  the  honour  to  trans- 
mit you  here  enclosed,  proposals  which  would  set 
aside  all  altercations  respecting  our  respective  pre- 
tensions, until  the  time  when  the  result  of  the  pay- 
ments of  Messrs.  Gomez,  Lopez,  and  Rivera  shall  Ixi 
known,  saving  the  settlement  of  our  accounts,  which 
might  take  place  immediately.  If  your  desire  for 
.  an  arrangement  is  as  sincere  as  that  which  actuates- 
!  me,  I  flatter  myself  that  you  will  acquiesce  in  those 

JOHNSON'S  CASES,  1. 


1800 


Louis  LE  GUEN  v.  ISAAC  GOUVERNEUR  AND  PETER  KEMBLE. 


458 


458*]  *by  the  antecedent  circumstance,  from 
insisting  on   the  alleged  fraud  as  a  ground 
of  relief,"  the  chancellor  decided  that  they 
were     not     precluded,     and    confirmed    the 
459*]  *order  for  the  trial  of  the  issue.  From  ! 
this  order,  the  present  appeal  was  entered  to  j 
this  court. 

The  evidence  given  in  the  Court  of  Chancery 
46O*]  on  the  part  *of  the  respondents,  was  in 

proposals ;  proposals  agreeable  to  the  fairest  princi- 
ples of  justice.  As  moments  are  precious,  I  earnest- 
ly desire  that  you  will  favour  me  with  an  immediate 
answer. 

"Exposition  of  the  claims  of  Messrs.  Gouverneur 
&  Kemble,  according-  to  the  account  current,  and 
the  post  scriptum  that  follows : 

1st.  £6,256  2s.  6d.  Balance  in  their  fa- 
vour, exhibited  by  the  drawback, 
which  will  be  paid  them  by  the  cus- 
toms, in  the  term  of  three  months,  £4,834  15  0 

Their  commission  of  receiving1 
and  paying,  charged  in  Messrs. 
Gouverneur  &  Kemble's  account 
on  £53,597  11s.  5d.  at  2  1-2  per  cent., 
which,  according  to  the  regulations 
of  the  chamber  of  commerce,  ap- 
pears due  only  on  the  returns  from 
this  State  to  any  part  of  the  United 
States,  ------  1,339  18  9 

A  deficiency  of  about  7,200  Ib.  of 
sugar,  of  Mr.  Beares'  parcel,  and 
which  ought  to  be  made  good  to 
me, -  -  370  0  0 


£6,544    13    9 

which  would  present  an  overplus, 
exclusive  of  my  other  claims  upon 
sundry  charges,  the  missing  of  two 
bales  of  cotton,  &c. 

3d.  £3,733  6s.  8d.  Their  guarantee  for 
the  amount  of  the  freight,  assent- 
ing to  the  freight  being  paid  out  of 
the  first  proceeds  of  the  cargo,  (sav- 
ing my  claim  on  whoever  it  may 
concern)  this  guarantee  becomes 
void,  or  nearly  so. 

"From  this  exposition,  it  appears  that  all  the 
claims  of  Messrs.  Gouverneur  &  Kemble  ought  to 
be  confined  to  that  arising  from  the  bond  they  have 
given  at  the  customs,  for  the  due  return  of  the  cer- 
tificates of  the  landing  of  the  said  goods  in  a  foreign 
port,  amounting  to  $12,086.87.  Desirous  of  disposing 
of  my  property,  and  being  determined  to  make  use 
of  the  right  which  has  been  reserved  to  me,  in  the 
2d  and  4th  articles  of  the  contract  of  sale  made  to 
Messrs.  Gomez,  Lopez,  and  Rivera,  enabling  me  to 
receive  part  of  their  obligations,  or  the  whole  of 
their  amount  in  France,  I  decide  on  making  the  fol- 
lowing proposals  to  Messrs.  Gouverneur  &  Kemble, 
which  will  convince  them  of  my  dispositions  to  come 
to  an  arrangement : 

1st.  To  give  me  an  authenticated  copy  of  the  con- 
tract of  sale,  and  an  authorization  to  receive  $100,- 
000,  in  part  of  the  obligations  of  Messrs.  Gomez, 
Lopez,  and  Rivera,  out  of  the  proceeds  of  the  cargo, 
after  the  freight  shall  have  been  paid,  and  immedi- 
ately after  that  payment  only,  enabling  me  fully  to 
receive  that  sum. 

2d.  To  keep  at  their  disposal  the  balance  of  the 
above-mentioned  obligations,  amounting  to  $22,- 
415.37,  for  their  bond  to  the  customs,  saving  to 
myself  the  disposal  of  this  balance  when  the  landing 
certificates  are  arrived,  and  after  the  final  settle- 
ment of  our  account. 

3d.  To  drop,  for  the  present,  all  altercations,  re- 
specting the  responsibility  which  I  have  a  right  to 
exercise  against  Messrs.  Gouverneur  &  Kemble,  if 
the  delay  of  the  necessary  dispositions  in  France 
should  be  productive  of  some  injury  to  me,  in  the 
recovery  of  the  obligations  of  the  purchasers  of  my 
goods." 

To  this  letter  and  the  proposals,  Gouverneur  & 
Kemble,  on  the  same  day,  replied  as  follows: 
"  Desirous  as  we  are  of  coming  to  an  accommoda- 
tion with  you,  we  cannot,  consistent  with  a  regard 
to  our  own  security,accede  to  the  propositions  which 
accompanied  your  favour  of  this  date.  We  deem 
ourselves  entitled  to  a  re-imbursement  out  of  the 
first  proceeds  of  the  cotton  and  indigo.  If,  there- 

JOHNSON'S  CASES,  1. 


substance  as  follows:  That  the  appellant  in  his 
conversations  with  Gomez,  Lopez,  and  Rivera, 
represented  the  cotton  as  of  the  growth  of  the 
Isle  *of  France,  and  the  indigo  as  of  two  [*40 1 
qualities,  Flotang  and  Violet  copper;  and  that 
he  produced  samples  agreeing  with  this  repre- 
sentation; that  the  purchasers  wished  to  delay 
*the  conclusion  of  the  bargain  for  a  few  [*46& 
days,  in  order  that  they  might  examine  thear- 

fore,  we  authorize  you  to  receive  $100,000,  it  may  ex- 
haust the  whole  of  the  proceeds,  in  which  case  our 
security  will  be  considerably  diminished,  as  we 
could  have  recourse  only  to  Messrs.  Gomez,  Lopez, 
and  Rivera,  on  their  notes,"  &c. 

On  the  15th  June,  Le  Guen  again  writes:  "I  bad 
hoped  that  my  propositions  would  have  appeared  to 
you  entirely  reasonable,  or  at  least,  that  you  would 
have  made  me  such  others  in  return  of  a  specific 
nature,as  you  did  yourselves  approve.  But  instead 
of  this,  you  merely  refer  me  to  your  former  prop- 
ositions, of  which  I  know  not  of  any,  except 'a 
reference  to  arbitration.  I  am  obliged  to  conclude 
still  more  firmly  than  heretofore,  that  it  is  your  de- 
termination at  all  events  to  retain  my  whole  prop- 
perty  in  your  disposition,  till  the  final  winding 


election  which  was  reserved  by  the  terms  of  the  con- 
tract, to  receive  the  money  coming  to  me,  iu 
Europe,  and  disappointing  all  the  measures  pro- 
jected on  that  basis.  I  protest  once  more  against 
this  mode  of  proceeding,  and  all  the  consequences 
of  it;  and  I  demand,  for  the  last  time,  that  you 
forthwith  furnish  me  with  an  authenticated  copy 
of  the  contract  of  sale,  and  with  a  competent 
authorization  to  receive,  at  the  port  of  discharge, 
whatever  sum  shall  remain  of  the  proceeds  of  fru 
goods  sold  on  my  account,  to  Messrs.  Gomez,  Lopez, 
and  Rivera,  after  deducting  and  reserving  at  your 
disposal,  such  sum  as  shall  be  completely  sufficient 
to  cover  you  for  the  general  balance  of  your  ac- 
count, and  for  all  that  you  have  made  yourselves 
accountable  for  on  my  account,  also  for  the  com- 
missions you  claim  as  well  on  the  receipt  as  on  the 
sale,  and  even  for  damages,  in  case  of  protest  of  the 
bill  of  exchange  to  be  drawn  for  the  freight  or  char- 
ter money.and  for  insurance  of  the  money  which  you 
claim,  to  cover  you  for  your  advances  and  responsi- 
bilities to  the  United  States.  This,  nevertheless,  is 
not  to  be  understood  as  a  final  admission  of  any 
claims  on  your  part,  which  may  not  be  according  to 
law,  and  the  usage  of  trade ;  but  as  a  preliminary 
arrangement  for  your  eventual  security." 

On  the  same  day,  Gouverneur  &  Kemble  sent  the 
following  answer:  "  Upon  reviewing  our  late  cor- 
respondence, we  cannot  but  think  that  we  have 
manifested  every  disposition  to  bring  the  contro- 
versy between  us  to  a  speedy  and  amicable  deter- 
mination. We  have  offered,  and  again  repeat  the 
proposal,  that  we  will  deliver  into  your  hands  all  the 
papers  and  notes  which  regard  this  transaction 
without  delay,  upon  your  giving  us  satisfactory 
security  in  this  country,  to  pay  us  in  a  reasonable 
time  our  commission,  and  such  sums  as  we  may  have 
disbursed,  or  made  ourselves  responsible  for,  on 
your  account,  and  also  sufficiently  secure  us  against 
the  payment  of  such  sum  s  as  we  may  eventually  be 
called  upon  by  reason  of  pur  interference  in  this 
business.  When  it  is  considered  that  we  have  a 
right  to  insist  upon  an  immediate  payment  of  the 
balance  of  our  account,  as  the  condition  of  our  de- 
livering1 up  these  papers,  you  cannot  deem  this 
proposition  unreasonable.  We  are  certainly  not 
obliged  to  receive  payment  in  France,  especially  at 
a  time  when  so  many  difficulties  attend  getting 
money  from  that  country:  and  were  we  to  accede 
to  the  terms  held  out  by  your  favour  of  this  date, 
we  should  be  obliged  to  wait  the  event  of  an  appli- 
cation for  the  money  to  Messrs.  Gomez,  Lopez,  and 
Rivera,  in  France,  before  we  could  have  recourse 
to  you.  Much  more  has  already  been  said  upon  this 
subject  than  was  necessary:  to  conclude,  we  con- 
ceive ourselves  entitled  to  keep  all  the  securities  we 
have  at  present,  and  were  we  disposed  to  be  litigious, 
we  might,  even  now,  apply  to  you  in  a  judicial  way 
for  the  payment  of  our  demand.  This  being  our 
situation,  we  have  no  hesitation  in  rejecting1  your 
offers  of  this  day  as  inadmissible.  If  you  are  so 
solicitous  of  having  authenticated  copies  of  the  con- 
tract, and  an  authorization  to  receive  the  money, 
we  are  willing  to  give  them  upon  the  terms  herein- 


462 


COUIIT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1800 


tides,  but  the  appellant  objected,  saying  the 
delay  was  unnecessary,  as  he  would  warrant 
46&*]  *the  articles,  and  if  allowed,  the  draw- 
back would  be  lost,  as  the  time  for  exportation  j 
with  that  privilege  was  nearly  expired;  that  j 
the  purchasers  were  ignorant  of  the  nature  j 
4(>4*]  *of  the  articles,  but  relying  on  the  j 
promise  of  the  appellant  to  execute  a  warranty,  i 
they  concluded  the  bargain  without  further ' 


examination,  and  left  the  shipment  of  the 
*articles  to  the  direction  of  the  appel-  [*46»5 
lant;  that  the  appellant  and  a  person  who  was  his 
broker,  produced  letters  from  France  stat- 
ing, that  cotton  like  the  sample  exhibited 
*was  worth  there  from  a  dollar  to  a  [*46<> 
dollar  and  a  half  a  pound,  and  indigo  five  dol- 
lars a  pound ;  that  it  was  discovered  in  Lon- 
don, that  the  cotton  was  of  the  growth 


before  mentioned,  or  upon  any  other  terms  which 
three  indifferent  gentlemen  shall  point  out." 

On  the  IKth  June,  1795.  Le  Guen  again  writes, 
among1  other  things:  I  "  confine  myself  to  demand- 
ing of  you,  without  delay,  an  authenticated  and 
certified"  copy  of  the  contract  of  sale  made  with 
Messrs.  Gomez,  Lopez,  and  Rivera,  and  to  declaring 
to  you,  that  inasmuch  as  you  have,  by  the  circum- 
stances which  preceded  the  departure  of  th^cargo, 
and  in  addition  thereto,  by  refusing  to  comply  with 
all  the  propositions  and  demands  1  have  made  to  you 
since,  entirely  deranged  my  plans,  and  deprived  me 
of  the  power  of  commanding  my  funds  in  France, 
and  of  all  the  advantage  from  the  employment  of 
them  there,  I  hold  you  responsible,  and  shall  insist 
upon  your  responsibility  for  all  losses,  damages  and 
disad vantages  which  may  ensue,  including  an  in- 
demnification for  the  derangement  of  the  measures 
I  had  adopted  for  proceeding  in  person  to  France, 
to  possess  myself  of  my  property." 

On  the  17th  October,  Gouverneur  &  Kemble,  in  a 
letter,  observe:  "That  unfortunate  adventure  of 
Mr.  Gomez,  as  we  were  well  aware  of,  is  like  to  turn 
to  a  ruinous  account.  After  waiting  some  time  at 
Havre,  he  has  been  obliged  to  expose  it  to  further 
risks  and  expenses,  by  proceeding  to  Hamburgh  for 
a  market." 

On  the  7th  December,  1795,  Gouverneur  &  Kemble 
write:  "  As  a  vessel  will  snil  in  a  day  or  two  for 
Hamburgh,  we  take  the  liberty  to  inform  you,  that 
we  are  willing,  if  it  will  meet  your  approbation,  to 
authorize  the  American  consul  residing  at  that  port, 
or  any  other  gentleman  we  can  mutually  agree 
upon,  to  receive  from  Messrs.  Gomez,  Lopez,  and 
Rivera,  payment  on  account  of  their  notes,  agreea- 
ble to  the  fourth  article  of  their  contract  with  us. 
If  you  deem  any  other  authority  necessary,  we  will 
have  no  objection  to  join  in  it,  if  the  same  shall  be 
consistent  with  our  safety  and  security.  As  Mr. 
Gomez  is  at  Hamburgh  with  the  cargo,  it  is  probable 
such  authority  will  find  him  there,  and  that  he  will 
IK-  disposed  to  treat  with  our  agent  upon  fair  and 
equitable  terms.  The  money  we  propose  to  remain 
in  the  consul's  hands,  subject  to  our  draft,  or  sub- 
ject to  your  own  order;  provided  you  will  either 
pay.  or  give  us  good  security,  for  our  demands 
against  you.  In  case  of  any  difficulty  in  adjusting 
our  account,  we  will  submit  the  same  to  the 
monthly  committee  of  the  chamber  of  commerce.or 
to  any  other  indifferent  persons." 

To  this,  Le  Guen,  on  the  9th  December,  replied: 
"  You  are  perfectly  apprised  of  the  ground  on  which 
I  conceive  myself  to  stand.  I  have  made  a  contract 
upon  a  definite  price,  and  I  have  legal  advice  upon 
which  I  rely,  that  you  are  my  guarantee  in  case  of 
disastrous  consequences ;  looking  to  your  responsi- 
bility, I  feel  tranquil  for  the  event,  and  cannot  be 
expected  to  abandon  or  weaken  so  good  a  ground. 
With  this  saving,  which  I  make  once  for  all.  as  to 
what  I  now  add,  or  may  hereafter  say  upon  the  sub- 
ject, I  reply  to  your  first  letter,  that  I  think  it  would 
be  for  the  interest  of  all  concerned,  that  the  pro- 
ceeds of  the  cargo  in  Hamburgh  should  be  paid  into 
the  hands  of,  and  deposited  with  some  person  or 
house  of  unquestionable  responsibility.  Not  being 
acquainted  with  the  mercantile  standing  of  the 
American  consul,  I  can  say  nothing,  but  I  have  en- 
tire confidence  in  either  of  the  houses  of  Messrs. 
Bernherd  &  Nootnagal,  Lubbert  &  Dumas,  and 
Matthuson  &  Silem. 

On  the  llth  December,  Gouvneur  &  Kemble  again 
write:  "  Under  a  conviction  that  it  is  your  wish  that 
we  may  assume  a  discretion  which  may  eventually 
render  us  liable,  we  think  proper  to  inform  you, 
that  we  shall  not  empower  any  nouse  in  Europe  to 
receive  any  payment  on  the  notes  we  hold,  without 
an  express  authority  from  you  in  writing  for  that 
purpose.  Unless  we  receive  explicit  directions 
from  you  on  that  head,  we  shall  think  it  our  duty 
to  wait  until  the  money  is  remitted  to  this  country, 
or  until  we  receive  advice  that  it  is  placed  in  Europe, 
so  as  to  be  commanded  by  us  without  any  risk." 

On  th<-  .same  day,  Le  Guen  writ'js:  "  I  entirely  ap- 

888 


i  prove  of  the  idea  that  if  the  deposit  be  made  with 
j  either  of  the  houses  I  have  indicated,  or  with  anv 
other  we  may  agree  upon,  I  wilj  take  the  risks  of  it 
to  the  extent  of  the  sum  deposited,  and  it  shall  in 
no  wise  be  deemed  to  implicate  you  in  any  new 
responsibility.  But  I  consent  to  "this  only  on  the 
ground  that  I  cannot  obtain  from  you  an  authori- 
zation to  receive  the  proceeds  myself,  which  I 
should  prefer,  and  if  obtained,  would  immediately 
depart  for  Hamburgh.  The  sum  1  shall  receive  will 
be  in  deduction  for  the  one  I  claim,  preserving  at 
the  same  time,  all  my  right  for  the  remaining  bal- 
ance, which  I  mean  to  maintain  in  either  case." 

To  this,  Gouverneur  &  Kemble,  on  the  same  day, 
answered:  "  We  are  ready  to  execute  the  necessary 
powers  to  either  of  the  houses  which  you  mention 
in  your  letter  of  the  9th  inst.,  in  such  form  as  our 
counsel  shall  jointly  agree  upon,  for  the  purpose  of 
receiving  the  proceeds  of  the  cargo  sold  to  Messrs. 
Gomez,  Lopez,  and  Rivera,  in  this  case  it  is  under- 
stood, that  you  secure  us  for  all  our  claims,  and 
against  all  the  contingent  demands  which  may  be 
made  against  us  on  account  of  our  agency,  which, 
!  in  case  of   any  dispute,  shall  be  immediately   ad- 
;  justed,  if  you  agree,  by  the  monthly  committee  of 
•  the  chamber  of  commerce,  or  by  any  three  mer- 
i  chants  we  can  fix  upon." 

On  the  36th  December,  Le  Guen  writes:  "I  have 

i  been  favoured  with  your  letter  of  the  33d  inst., 

!  therewith  enclosed  a  co)py  of  the  one  of  the  32d 

inst.,  which  you  wrote  to  Messrs.  Lubbert  &  Dumas, 

in  Hamburgh,  I  am  surprised  you  do  not  notice 

concern- 


power, 

ig  to  my  letter  of  the  19th  inst.  that  as 
you  are  unwilling  to  agree  with  my  proposal  to  di- 

|  vide  the  deposit  between  two  houses,  I  consent  that 
it  be  paid  into  the  hands  of  Messrs.  Lubbert  &  Du- 

'  mas ;  as  the  deposit  is  at  my  risk,  I  expect  that  it 
will  not  be  disposed  of,  in  any  case,  without  my 
consent." 

On  the  3d  January,  1798,  Gouyerneur  &  Kemble 
write :  "That  they  are  in  possession  of  the  informa- 
tion respecting  the  operations  of  Mr.  Gomez  in 
England,  which  makes  it  necessary  that  the  power 
should  go  forward  to  Messrs.  Smiths  &  Atkinson,  of 
London,  instead  of  Messrs.  Lubbert  &  Dumas,  of 
Hamburgh,  which  is  prepared  ready  for  the  pur- 
pose, and  they  will  take  care  to  forward  it ;  that  it 
is  probable,  from  their  information,  that  the  prop- 
erty will  be  removed  from  Hamburgh  to  London ; 
that  part  of  the  cotton  was  actually  on  its  way. 
They  will,  therefore,  pursue  the  necessary  steps  to 
touch  as  much  of  the  money  as  can  be  done  in  Eu- 
rope, not  doubting  of  his  approbation." 

To  which  Le  Guen,  on  the  6th  January,  answered : 
"Though  I  will  not  disapprove  of  any  measures  you 
may  take  to  secure  the  proceeds  of  the  cargo  for 
whomsoever  it  may  concern,  yet  it  must  be  under- 
stood, that  I  assume  no  special  risk  upon  the  sub- 
ject, and  that  I  look  more  and  more  to  your  event- 
ual responsibility.  The  going  with  the  cargo  from 
the  port  of  discharge  at  Hamburgh,  to  London, 
changes  essentially  the  nature  and  effect  of  the  con- 
tract." 

On  the  35th  March,  1798,  Gouverneur  &  Kemble 
write  to  Le  Guen,  that  "they  transmit  to  him  there- 
with, the  copy  of  a  letter  they  have  just  received 
from  Mr.  Gomez,  relative  to  the  cotton  and  indigo 
sold  to  Gomez,  Lopez,  and  Rivera.  An  extract  of  a 
letter  relative  to  it,  from  Messrs.  Smiths  &  Atkinson, 
of  London ;  and  that  after  he  has  perused  them  at- 
tentively, they  would  be  glad  to  receive  his  direc- 
tions respecting  it,  if  he  wishes  anything  to  be  done 
on  their  parts." 

To  which  Le  Guen,  on  the  38th  March,  replies :  "I 
have  received  your  note  of  the  35th  inst.  with  copies 

]  of  letters  of  the  5th  and  6th  of  January  last,  from 

1  Mr.  Gomez,  and  Messrs.  Smiths  &  Atkinson.    In  an- 
swer, I  refer  you  to  mine  to  you,  of  the  6th  January 
last ;  and  have  only  to  add,  that  situated  as  the 
affair  is,  I  have  no  directions  to  give." 
The  verdict  then  states,  that  by  the  custom  of 

JOHNSON'S  CASES,  1. 


1SUO 


Louis  LE  GUEN  v.  ISAAC  GOUVERNEUR  AND  PKTER  KEMBLE. 


467 


4r<$7*]  *of  Surat,  and  the  indigo  of  fivediffer- 
-  ent  kinds,  a  small  quantity  only  being  of 
the  qualities  represented;  that  in  consequence 
of  this  discovery,  Gomez,  who  was  present, 
•468*]  *abaudoned  the  articles  to  the  agents 
of  the  correspondents  in  London;  that  the 
cotton  sold  for  seventeenpence  sterling,  and  the 
indigo  at  four  shillings  and  sixpence,  and  five 
•460*]  *shillings  a  pound;  but  had  they  been 

Normandy,  in  which  province  the  port  of  Havre  de 
Grace  is  situated,  the  vendor  of  a  cargo  of  (roods 
and  merchandises  has  a  privilege  or  lien  upon  the 
cargo,  for  the  price  of  it,  until  it  is  sold  by  the  pur- 
chaser, and  actually  delivered  to  another  person. 
And  that  in  consequence  of  such  lien  or  privilege, 
such  vendor,  if  he  thinks  himself  in  danger  of  losing 
his  security,  may  apply  to  the  consular  tribunals 
for  redress,  and  that  such  tribunals,  proceeding:  up- 
on principles  of  equity  and  good  conscience,  would 
interpose  to  prevent  the  removal  of  such  cargo  by 
the  purchaser  to  another  place,  unless  upon  good 
security  being  given  to  the  vendor,  it  appeared  that 
it  would  thereby  be  subjected  to  great  danger  or 
deterioration,  and  this,  even  if  there  was  a  clause  in 
the  contract  of  sale  allowing  the  going  to  another 
port ;  but  that  in  the  hist  case  very  strong  proof 
would  be  required  that  the  purchaser  was  in  real 
danger  of  suffering  by  the  removal ;  that  Louis  Le 
(luen  always  was,  and  yet  is,  a  citizen  of  France ; 
that  Gouverneur  &  Kemble  did  not,  at  any  time 
previous  to.  the  1st  December,  1795,  elect  to  receive 
the  proceeds  of  the  said  cotton  and  indigo  at  the 
port  of  discharge,  nor  to  give  to  the  said  Louis  Le 
<  Juen  any  authorization  to  receive  the  proceeds  of 
the  said  cotton  and  indigo  in  Europe,  or  any  part 
thereof,  and  did,  on  or  about  the  22d  December 
aforesaid,  elect  to  receive  the  said  proceeds  at  Ham- 
burgh, and  afterwards  did,  on  the  2d  January,  1796, 
elect  to  receive  the  said  proceeds  at  London ;  that 
in  the  month  of  June,  179o,  a  demand  was  made  by 
the  plain  ti  11',  of  the  defendants,  for  an  authorization 
to  receive  from  the  said  Gomez,  Lopez,  and  Rivera, 
agreeably  to  the  terms  of  the  contract  aforesaid,  at 
the  port  in  Europe,  where  the  said  ship  White  Fox 
should  <lischarge  her  said  cargo  of  cotton  and  indigo, 
such  sum  or  sums  of  money  as  should  be  due  to  the 
plaintiff  on  account  of  the  same,  after  deducting 
therefrom  and  leaving  subject  to  the  control  of 
the  defendants,  a  sum  sufficient  to  re-imburse  them 
for  the  balance  due  the  defendants  on  the  adjust- 
ment of  their  accounts,  and  also  a  sufficient  sum  to 
indetnify  the_  defendants  against  engagements  they 
had  entered  into  on  account  of  the  plaintiff,  in  the 
course  of  their  said  agency,  with  which  demand  the 
defendants  refused  to  comply ;  that  the  defendants, 
when  the  said  demand  was  made,  offered,  and  pro- 
posed to  resign  all  the  papers,  notes  and  other  docu- 
ments relating  to  the  said  agency  into  the  hands  of 
the  plaintiff,  and  give  him  a  competent  authoriza- 
tion to  conduct  the  said  business,  on  the  plaintiff's 
paying  to  the  defendants  the  balance  of  their  ac- 
count, and  on  the  plaintiff's  securing  the  defendants 
in  this  country  against  any  engagements  they  might 
have  entered  into,  or  responsibilities  to  which  they 
had  exposed  themselves,  in  consequence  of  their 
agency,  with  which  offers  and  proposals  the  plaintiff 
neglected  and  refused  to  comply ;  but  whether  by 
reason  of  the  premises  the  said  Isaac  Gouverneur 
and  Peter  Kemble  became  liable  to  the  said  Louis 
Le  Guen,  as  is  stated  in  the  first  count  of  the  decla- 
ration, the  said  jurors  are  ignorant,  and  they  pray 
the  advice  of  the  court  in  the  premises :  And  if  the 
court  shall  be  of  opinion,  that  the  said  Isaac  Gouv- 
erneur and  Peter  Kemble,  by  reason  of  the  said 
premises,  have  made  themselves  liable  to  pay  the 
plaintiff  the  amount  agreed  on  by  the  said  contract 
as  the  price  of  the  said  cotton  and  indigo,  then  the 
said  jurors  do  say,  upon  their  said  oath,  that  the  said 
Isaac  Gouverneur  and  Peter  Kemble  did  undertake 
and  promise,  in  manner  and  form  as  the  said  Louis 
Le  Guen  hath,  in  and  by  the  first  count  of  his  said 
declaration  above  alleged ;  and  they  assess  the  dam- 
ages of  the  said  Louis  Le  Guen,  by  reason  thereof, 
over  and  above  his  costs  and  charges  by  him  about 
his  suit  in  that  behalf  expended,  to  $119,302.66, 
and  for  those  costs  and  charges  to  six  cents; 
but  if  the  said  court  shall  be  of  opinion  that  the 
said  Isaac  Gouverneur  and  Peter  Kemble  did  not, 
by  reason  of  the  premises,  become  liable  as  afore- 
said, then  the  said  jurors  find,  that  the  said  Isaac 
Gouverneur  and  Peter  Kemble  did  not  undertake 
and  promise,  in  manner  and  form  as  the  said  Louis 

JOHNSON'S  CASES,  1. 


of  the  qualities  represented,  the  former 
would  have  sold  for  three  shillings  and  three- 
pence, and  the  latter  for  eleven  shilling  or  eleven 
*shillings  and  sixpence  sterling  a  [*47O 
pound;  that  after  the  omission  of  the  war- 
ranty in  the  contract  of  sale,  application  was 
made  to  the  appellant  to  have  it  inserted,  which 
*he  declined,  alleging  as  a  reason,  the  [*47  1 
controversy  between  him  and  the  respondent'-, 

|  Le  Guen  hath,  in  and  by  the  said  first  count  of  his 

•  said  declaration,  above  alleged. 

Messrs.  Burr,  Harlgon,  and  Ham  (Unit,  for  the 
|  plaintiff. 

Jfessra.  Cozlne,  Peiuttetnn,  and  B.  Liringston,  for 
j  the  defendants. 

LANSING,  J.    This  action  was   brought   by  'tho 
plaintiff,  against  the  defendants,  as  his  factors,  sub- 
j  stantially— 

1.  For  not  electing,  pursuant  to  his  instructions, 
I  to  receive  the  proceeds  of  certain  parcels  of  cotton 

•  and  indigo  in  Europe ;  and, 

j  2.  For  not  giving  to  the  plaintiff  authority  to  iv- 
i  ceive,  at  the  port  of  discharge,  so  much  of  the  pr;>- 
;  ceeds  of  the  sales  of  such  cotton  and  indigo  as  iv- 
i  mained,  after  deducting  a  sum  sulficient  to  cover 
!  the  defendants  for  the  general  balance  of  their  ac- 
i  count,  and  other  claims  and  responsibilities,  in  con- 
j  sequence  of  their  agency. 

This  action,  in  its  consequences  affecting  private 
1  interests  of  great  magnitude,  has  been  strenuously 
j  contended  between  the  parties,  in  every  stage  of  its 

•  progress  which  would  admit  of  urging  their  adverse 
!  and  totally  irreconcilable  pretensions. 

In  the  ardor  of  controversy,  they  have,  however, 
I  conceded  these  points,  whicn,  without  their  con- 
l  cession,  would  not  admit  of  a  doubt — That,  in  ordi- 
i  nary  cases,  a  factor  is  bound  to  comply  with  the  in- 
I  structions  of  his  principal,  in  the  disposition  of  the 
|  subject  entrusted  to  his  care ;  that  the  f actor  has  a 
lien  on  it,  for  all  his  advances,  commissions  and  re- 
sponsibilities ;  and  that  he  is  not  compellable  to  part 
with  the  subject  or  its  production,  if  not  converted 
into  cash,  until  those  demands  are  completely  satis- 
fied ;  for,  if  the  subject  is  converted  into  cash,  the 
reason  for  pledging  the  whole,  for  the  security  of 
the  factor,  ceases ;  as,  by  retaining  the  sum  he  is 
entitled  to,  or  responsible  for,  he  can  incur  no 
farther  risk  of  failing  in  an  ultimate  satisfaction. 

No  doubt  could  arise  respecting  the  application  of 
,  these  principles  to  this  case,  while  the  subject  re- 
;  mained  to  be  disposed  of  in  the  ordinary  mode  of 
j  sale,  at  the  place  at  which  it  appears  both  parties 
originally  contemplated  a  disposition  of  the  subject. 
But  the  parties  having  by  a  contract,  to  which 
they  all  assented,  made  an  arrangement  to  convey 
the  subject  to  Europe,  their  situation  was  by  that 
means  varied  as  to  the  local  exercise  of  their  re- 
spective rights ;  and  which,  I  take  it,  by  that  con- 
tract, they  reciprocally  agreed  to  modify,  so  as  to 
carry  it  into  effect  in  all  its  parts,  preserving  their 
mutual  relations  and  rights,  as  principals  and  fac- 
tors. 

The  questions  which  arose  on  the  contract  were : 
1st.  Whether  the  defendants  were  bound  to  elect 
to  receive  the  proceeds  of  the  subject  of  factorage 
in  Europe. 

3d.  Whether  the  plaintiff  had  a  right  to  exact 
payment  of  the  surplus  from  the  defendants  in 
Europe,  after  satisfying  the  whole  amount  of  their 
commissions,  advances  and  responsibilities ;  and, 

3d.  If  the  defendants  were  bound  to  make  such 
election,  and  were  subject  to  make  such  payment, 
what  ought  to  be  the  measure  of  damages? 

As  to  the  first  point,  the  subject  of  factorage  was 
evidently  entrusted  to  the  defendants  for  the  benefit 
of  the  plaintiff :  his  interest  was  the  primary  object 
to  be  attended  to  in  the  conduct  of  his  factors,  and 
every  instruction  given  by  him,  not  incompatible 
with' their  rights,  it  was  their  duty  to  conform  to 
and  carry  into  effect.  The  election  reserved  to  the 
defendants  by  the  contract  with  Gome;.,  Lopez,  and 
Rivera,  must  of  necessity  l>e  considoivd,  as  for  his 
benefit  and  emolument,  and  as  inseparably  incident 
to  the  trust  confided  to  them ;  for  .very  disposition 
of  the  subject,  pursuant  to  the  in:  tructionsof  their 
principal,  could  only  be  for  his  advantage  exclu- 
sively; unless  some  positive  contract  detract* -d 
from,  or  made  a  different  modification  of  his  inter- 
ests. From  the  most  attentive  examination  of  the 
contract  given  in  evidence  ut  the  trial,  I  could  dis- 

889 


471 


COURT  OK  ERRORS,  STATE  OF  NEW  YORK. 


1800 


but  said  that  it  should  be  done  soon;  that  all  answer  on  oath,  denying  all  the  allegations  of 
the  partners  were  concerned  in  and  privy  to  fraud,  and  that  there  were  any  representations 
472*]  *the  purchase;  that  the  market  price  I  of  fraud  as  stated  by  the  witnesses  of  the  re- 
in New  York,  at  the  time,  for  Surat  cotton,  spondents,  *was  relied  on.  It  also  ap-  [*474 
was  22  cents  a  pound,  and  for  Copper  indigo,  I  peared  to  be  confirmed  by  the  evidence  of 
94  cents  a  pound.  j  Moses  Lopez,  one  of  the  purchasers,  and  Abra- 

473*]    *On  the  part  of  the  appellant,  his  |  ham  Gomez,  Jun. 


cover  no  traits  in  it,  to  satisfy  my  mind  that  it  was 
the  intent  of  the  parties  that  this  obvious  principle 
should  be  departed  from.  The  reservation  of  the 
rights  of  election  to  receive  the  proceeds  of  the  cot- 
ton and  indigo,  either  at  New  York  or  in  Europe, 
and  the  premium  to  be  received  by  the  defendants, 
if  they  should  elect  to  receive  in  Europe,  were,  in 
my  opinion,  clearly  intended,  and  ought  to  enure 
solely  for  the  benefit  of  the  plaintiff ;  if  so,  the  de- 
fendants could  not,  after  consenting1  to  export  the 
subject,  avoid  a  compliance  with  the  instruction  of 
their  principal  as  to  the  exercise  of  the  right  of 
election,  without  violating  their  duty. 

As  to  the  second  point,  it  appeared  to  me,  that 
though  the  defendants  were  not  compellable  to  part 
with  the  subject  confided  to  them  as  factors,  to  be 
disposed  of  at  New  York,  so  as  to  permit  its  expor- 
tation, without  being  satisfied  for  the  whole  amount 
of  their  commissions,  advances  and  responsibilities ; 
yet,  that  by  assenting  to  the  exportation,  they  vir- 
tually stipulated  to  exercise  the  rights  they  had  ac- 
quired, as  factors,  at  the  port  of  discharge  in 
Europe ;  by  that  means  relinquishing  the  locality  of 
their  agency,  and  consenting  to  leave  it  at  large, 
and  thus  attaching  their  rights  and  duties  to  the 
subject,  to  be  exerted  and  exercised  at  whatever 
place  it  might  be  transmitted  to,  in  pursuance  of 
the  contract,  to  which  they  were  parties,  and  thus 
placing  themselves  in  the  same  situation,  and  pre- 
serving the  same  relations  at  the  port  of  discharge, 
as  they  were  placed  in,  and  as  subsisted  between 
them  at  New  York,  previous  to  the  arrangement 
contemplated  by  the  contract. 

If  this  is  a  legal  and  consistent  exposition  of  the 
contract,  it  would  result,  that  though  the  defend- 
ants might  retain  the  control  of  the  property  of 
their  principal,  either  personally  or  by  substitution 
of  others,  whom  they  supposed  trustworthy,  and 
for  whose  conduct  they  were  content  to  be  responsi- 
ble, until  it  was  converted  into  money ;  yet  the  in- 
stant it  was  so  converted  in  their  hands,  or  in  those 
of  their  agent,  it  was  their  duty,  after  retaining  the 
amount  of  their  commissions,  advances  and  re- 
sponsibilities, to  pay  the  surplus  to  the  plaintiff,  at 
such  port  of  discharge,  if  he  should  require  it :  and 
that  as  their  agency  was  indispensable  to  enable  the 
plaintiff  to  avail  himself  of  nis  rights,  under  the 
contract  in  question,  by  becoming  parties  to  it,  they 
expressed  their  readiness  to  do,  and  submitted  to  the 
obligation  of  doing  everything  in  their  power,  which 
could  l>e  reason  ably  expected  from  them  as  factors, 
to  facilitate  the  arrangement  they  had  acceded  to,  so 
as  to  produce  consequences  most  advantageous  to 
their  principal,  not  impairing  their  own  rights. 
I  «In  this  case  the  contract  was  made  with,  and  in 
the  names  of  the  defendants ;  the  plaintiff  must  rely 
upon  their  agency,  or  on  authority  received  from 
them,  to  enable  him  to  exert  any  power  in  con- 
troling  the  destination,  or  obtaining  any  part  of 
the  proceeds  of  the  subject ;  if  they  refused  their 
aid  to  effect  both  or  either  of  these  Objects, 
they  were  unattainable  by  the  plaintiff.  I 
hold  that  he  had  a  right  to  exact  from  the  defend- 
ants this  aid,  so  far  as  to  enable  him  to  receive  the 
surplus  of  the  proceeds  of  the  subject,  after  satisfy- 
ing the  demands  of  the  defendants  at  the  port  of 
discharge— that  their  refusal  to  authorize  nim  to 
receive  such  surplus,  WHS  a  violation  of  their  trust, 
which  amounted  to  full  evidence  of  an  intent  to 
convert  the  whole  to  their  own  use,  regardless  of 
the  interests  or  instructions  of  their  principal ;  and 
that  for  such  violation  they  became  liable,  as  in 
cases  where  the  factor  had,  contrary  to  the  instruc- 
tions of  his  principal,  credited,  or  credited  for  a 
longer  jxTiod  than  that  limited  by  such  instructions. 
In  l>oth  these  cas<*  it  has  been  held,  that  the  giving 
such  credit  is  evidence  of  a  disposition  by  the  factor 
on  his  own  account,  and  that  he  is  answerable  for  the 
amount  in  his  principal,  whatever  may  be  the  result 
of  such  sales. 

In  giving  this  opinion,  I  lay  out  of  the  ease,  as 
totally  inapplicable  to  its  real  merits,  the  various 
propositions  reciprocally  made  and  rejected  by  the 
parties;  as  propositions  made  bv  one  party,  to 
which  the  other  was  not  obliged  to  accede,'  they 

390 


could  not  influence  a  decision  on  the  questions 
which  arose  in  the  cause.  The  demand  made  by  the 
plaintiff,  in  his  letters  of  the  15th,  of  June,  is  such  a 
one.  as  I  think  he  had  a  right  to  exact  a  compliance 
with,  and  that  the  refusal  on  the  part  of  the  de- 
fendants to  comply  with  it,  was,  in  effect,  a  derelic- 
tion of  the  relation  in  which  they  had  placed  them- 
selves as  factors  to  the  plaintiff,  of  which  he  might 
avail  himself,  to  hold  them  accountable  for  the 
whole  subject,  by  substitution,  instead  of  Gomez, 
Lopez,  and  Rivera. 

As  to  the  third  point. 

All  the  facts  respecting  this  transaction  in  Eu- 
rope, were  of  a  nature  incapable  of  being  developed 
in  the  course  of  legal  investigation  here,  till  several 
months  after  the  vessel  sailed  from  New  York.  The 
plaintiff's  right  of  action,  however,  accrued  upon 
the  refusal  of  the  defendants  to  comply  with  his 
demand.  If  we  depart  from  the  subject,  and  do  not 
consider  its  value  as  settled  by  the  contract  to 
which  the  defendants  were  parties,  I  know  of  none 
to  which  a  resort  could  be  had  for  the  measures  of 
damages ;  and  I  have,  since  this  cause  was  first  pre- 
sented for  my  determination,  sought  it  «with  a  con- 
siderable degree  of  solicitude,  arising  from  the  im- 
portant consequences  of  that  opinion,  as  affecting 
the  plaintiffs.  I  could  not,  however,  satisfy  myself, 
that  any  other  measure  could  be  resorted  to  on  this 
occasion ;  and  if  the  withdrawing  the  subject  from 
control  of  the  principal,  if  assuming  an  absolute 
and  uncontrolled  disposition  of  it,  amounted  to  a 
conversion  of  the  propertv  of  the  principal  by  the 
factors  to  their  own  use,  the  amount  of  the  sales  to 
Gomez,  Lopez,  and  Rivera,  deducting  the  amount 
of  the  defendants'  demand,  appears  to  me  to  pre- 
sent not  only  a  reasonable,  but  the  only  rule  of 
damages  in  this  case. 

I  am  therefor  of  opinion  that  the  plaintiff  is  en- 
titled to  judgment. 

BENSON,  J.  The  question  in  this  cause  is,  whether 
the  trust  which  the  defendants  took  on  themselves 
for  the  plaintiff  was  such  as  that  he  had  a  right  to 
demand  from  them  what  he  did  demand,  in  his  let- 
ter of  the  15th  of  June,  1795.  The  facts  from  whicU 
this  right  is  to  arise,  are  those  on^y  which  preceded 
the  31st  May,  inclusive,  being  the  day  on  wnich  the 
ship  sailed,  with  the  cotton  and  indigo  on  board. 
None  of  the  subsequent  facts,  or  matters  found  by 
the  verdict,  have  varied  or  in  any  manner  affected 
the  trust,  as  it  then  was,  and  are,  therefore,  no  fur- 
ther material  or  useful  to  be  considered,  than  as 
some  of  them  may  serve,  in  the  nature  of  circum- 
stantial proof,  to  give  a  more  full  and  distinct 
knowledge  of  the  preceding  facts.  Hence  it  will  IK? 
perceived,  that  the  question  does  not  depend  on  the 
law  of  principal  and  factor,  as  to  the  rights  of  the 
latter  to  retain.  The  rules  of  law  on  this  subject, 
generally,  are  acknowledged  to  be,  that  the  factor 
has  a  right  to  retain  the  property  of  the  principal 
until  his  legal  demands  against  him  are  paid ;  that 
however  small  the  amount  of  the  demands,  and 
however  great  the  amount  of  property  may  be,  the 
factor  is  not  bound  to  deliver  up  any  parcel  of  the 
property,  but  may  retain  the  whole ;  that  he  hath  a 
right  to  retain,  not  only  until  he  shall  be  re-imbursed 
such  sums  as  he  may  nave  paid,  but  also  until  there 
shall  be  deposited  with  him  a  sum,  competent  to 
answer  whatever  he  may  have  become  liable  to  pay 
on  account  of  his  principal,  as  well  contingently  as 
absolutely ;  and  that  he  is  not  held  to  accept  of  a  se- 
curity of  any  kind  instead  of  a  deposit,  nor  a  de- 
posit of  goods  instead  of  a  deposit  of  money ;  but 
these  rules  being  applicable  to  cases  only  where  the 
principal  demands  the  property  to  be  delivered  up 
to  him,  are  inapplicable  to  the  present  case,  in  which 
the  principal,  so  far  from  demanding  to  have  the 
property,  or  any  part  of  it,  delivered  up  to  him,  de- 
mands only  a  mean  to  enable  him  to  receive  in  an- 
other and  distant  place,  where  the  same  is  payable  by 
the  vendees  of  the  property,  "the  sum  which  may 
remain  after  the  factors  shall  have  deducted  and  re- 
served at  their  disposal,  a  sum  completely  sufficient 
to  cover  them  for  the  general  balance  of  their  ac- 
count, however  claimed."  According  to  this  state- 

JOHNSON'S  CASES,  1 . 


1800 


Louis  LE  GUEN  v.  ISAAC  GOUVERNEUR  AND  PETER  KEMBLE. 


475 


47o*]  *It  appeared  further,  that  the  first 
-application  for  the  purchase  was  made  to 
•Gouverneur,  one  of  the  respondents,  in  con- 
sequence of  an  advertisement  in  the  gazette  of 
476*]  *the  9th  March,  1795,  stating  "600 
bales  of  cotton  to  be  sold  by  the  respondents, 


good  speculation  for  France;"  that  when  the 
*bargain  was  concluded,  no  persons  [*4  7  7 
were  present,  except  the  purchasers  and  the 
appellant,  and  A.  Gomez,  Jun. ;  that  no  means 
were  used  by  the  appellant  to  prevent  a  free  ex- 
amination *bf  the  articles;  that  Gouv-  [*478 


•011  favorable  terms,  which   they  offered  as  a  j  erneur,  one  of  the  respondents,  told  Lopez  and 


ment  of  the  question,  it  will  also  be  perceived,  that 
to  seek  for  particular  rules,  or  for  adjudications 
precisely  and  throughout  apposite  to  it,  would  be 
fruitless  and  unnecessary;  and  that  for  a  decision  on 
it,  there  must  be  a  reliance  wholly  on  judgment  or 
•discernment,  in  applying  to  the  case,  in  its  peculiar 
.and  appropriate  circumstances,  the  universal  maxim 
that  with  the  end  the  means  also  must  be  intended 
to  be  granted.  In  this  view  of  the  controversy,  and 
of  the  grounds  on  which  it  rests,  it  necessarily  di- 
vides itself  into  the  following  inquiries :  1st.  Is  the 
•stipulation  in  the  4th  article  of  the  contract,  reserv- 
ing an  option  to  the  vendors  to  receive  the  whole, 
or  any  part  of  the  consideration  money  for  the 
.goods,  in  Europe,  in  preference  to  leaving  it,  to  be 
receivable  in  this  country,  to  be  adjudged  to  have 
been  intended  for  the  interest  or  benefit  of  the 
plaintiff,  the  principal,  instead  of  being  for  the  in- 
terest or  benefit  of  the  defendants,  the  factors  or 
substitutes ;  or  in  other  words,  is  the  interest  or  ben- 
efit of  the  plaintiff,  so  to  be  separated  from,  or  par- 
amount to,  any  interest  or  benefit  of  the  defend- 
ants, as  to  be  deemed  the  end  to  have  been  intended 
to  be  answered  by  that  stipulation 't  If  so,  then, 
.2*1.  Was  what  the  plaintiff  demanded  from  the  de- 
fendants, in  his  letter  to  them  of  the  15th  June,  1795, 
A  fit  and  reasonable  mean  to  that  end? 

With  respect  to  the  first  of  these  questions,  it  would 
appear  to  me  that  a  mere  statement  of  it  precludes 
the  necessity  of  proof,  or  demonstration  of  the 
truth  of  the  affirmative ;  if  the  stipulation  specified 
Jn  the  question,  is  for  the  interest  or  benefit  of  the 
•defendants,  I  do  not  see  a  reason  for  not  supposing 
every  other  stipulation  in  the  contract  equally  so. 
I  cannot  even  imagine  a  rule  or  test  by  which  the 
stipulations  intended  for  the  interest  or  benefit  of 
the  party  principal  are  to  be  discriminated  from 
those  which  were  intended  for  the  interest  or  ben- 
efit of  the  party  factors ;  so  that  the  reasoning,  as  I 
view  it,  to  prove  that  the  stipulation  under  consid- 
eration was  for  the  interest  or  benefit  of  the  def  end- 
suits,  must  terminate  in  a  conclusion  that  the  whole 
contract  was  intended  for  their  interest  and  benefit. 
The  sale  of  the  goods,  the  persons  to  whom,  and  the 
terms  on  which  they  were  sold,  were  by  the  "ex- 
press direction"  of  the  plaintiff;  the  defendants  ac- 
cept of,  and  submit  to  the  direction ;  they  are  mere  | 
instruments  to  effect  what  he  had  determined  was  i 
for  his  own,  not  for  their,  interest  and  benefit.  The 
.•sale  was  of  the  residue  of  the  cargo  of  the  ship  Cleo- 
patra, received  by  the  defendants,  to  be  sold  on  ac- 
count of  the  plaintiff ;  had  the  defendants  a  differ- 
ent or  a  greater  interest  or  benefit  in  the  last  sale 
than  they  had  in  the  preceding  sales  ?  In  their  ac- 
counts their  commissions  are  the  only  interest  or 
benefit  they  claim.  On  a  calculation  of  whose  profit 
or  advantage  is  it  to  be,  to  elect  having  the  consid- 
eration money  for  the  goods  made  payable  in  Eu- 
rope, instead  of  leaving  it  to  be  payable  in  this 
•country?  Was  it  to  be  on  a  calculation  of  profit  or 
.advantage  to  the  defendants?  To  whose  use  was 
the  premium,  or  in  effect,  additional  price,  of  five  per 
cent,  on  the  goods  to  be,  in  the  event  of  the  option 
to  receive  the  money  in  Europe,  to  the  use  of  the 
defendants  or  to  the  use  of  the  plaintiff.  Most  cer- 
tainly to  the  use  of  the  latter ;  and  that  considera- 
tion alone  appears  to  me  to  furnish  an  argument  de- 
cisive on  the  point.  I  will  only  add,  that  the  truth 
of  the  proposition,  that  the  sale  in  question,  and 
•every  term  and  condition  of  it,  is  to  be  considered 
*&  intended  for  the  interest  or  benefit  of  the  plaint- 
iff, primary  to,  and  exclusive  of,  any  interest  or  ben- 
efit to  the  defendants,  except  their  commissions,  is 
.so  evident,  to  my  mind,  that  it  is  not  without  diffi- 
culty that  I  can  persuade  myself  that  I  have  rightly 
understood  the  defendants'  counsel,  when  I  suppose 
they  meant  to  contend  for  anything  different  from 
•or  contrary  to  it. 

With  respect  to  the  second  question  also,  I  think 
the  truth  is  not  less  obvious,  and  that  it  ought  al- 
most to  suffice,  merely  to  state,  that  to  suppose  the 
right  to  elect  to  have  the  money  receivable  in  Europe 
should  be  reserved  for  the  interest  or  benefit  of  the 
plaintiff,  and  consequently,  that  the  defendants  were 
bound,  in  virtue  of  their  trust,  to  exert  this  right  for 

JOHNSON'S  CASES,  1. 


him,  whenever  he  should  require  them,  and  that 
they  should,  at  the  same  time,  nave  a  right  to  refuse 
to  enable  him  to  receive  the  balance  there,  but  to 
withhold  it  from  him,  until,  after  having  been  re- 
ceived there  by  them,  or  their  agent,  it  should  be 
remitted  to  this  country,  is  to  suppose  two  rights  in 
one  and  the  same  subject,  claimed  by  opposite  par- 
ties against  each  other,  and  which  can  never  be  made 
to  consist  together.  Where  was  the  inconvenience 
or  grievance  of  which  the  defendants  could  com- 
plain, if  the}'  were  to  be  held  to  pay  the  plaintiff  his 
balance  in  Europe  ?  The  business  of  receiving  the 
money  from  the  vendees  of  the  goods,  of  making 
out  and  settling  the  account  with  the  plaintiff,  and 
paying  him  the  balance,  could  have  been  done  by  an 
agent ;  not  so  conveniently  to  the  defendants,  it  may 
be  admitted,  as  if  done  in  this  country ;  but  was  the 
inconvenience  of  doing  these  acts  by  another  instead 
of  themselves,  or  abroad,  at  a  seaport  in  Europe, 
instead  of  at  home,  such  as  the  law  must  intend  the 
hazard  of  it  not  to  have  been  within  the  trust  or 
agency?  Surely  the  law  must  intend  the  reverse. 
Waiving,  however,  the  general  intendment  of  law, 
it  might  still  be  asked,  what  would  be  the  particular 
intendment  in  this  case,  from  the  express,  and  as  it 
were,  special  provision  in  the  contract,  that  the 
money,  if  the  option  should  be  to  receive  it  abroad, 
should  be  payable  also  to  the  agents  of  the  defend- 
ants ?  The  objections  to  the  demand  of  the  plaintiff 
for  an  authorization  to  receive  his  balance  in  Eu- 
rope, as  declared  by  the  defendants  themselves  in 
their  letter,  in  answer  to  the  demand,  are,  "that  they 
were  not  obliged  to  receive  payment  in  France,  es- 
pecially at  a  time  when  so  many  difficulties  attend- 
ed getting  money  from  that  country,  and  that  if 
they  were  to  accede  to  the  terms  held  out  by  the 
plaintiff,  they  would  be  obliged  to  wait  the  event  of 
an  application  for  the  money  to  the  vendees  of  the 
goods,  before  they  could  have  recourse  to  the  plaint- 
iff for  the  payment  of  their  account." 

I  have  already  expressed  my  opinion,  that  the 
plaintiff  had  a  right  to  demand  from  the  defendants 
to  declare  an  option  to  receive  the  money  in  Europe ; 
and  it  is  only  requisite  further  to  state,  that  this 
right  of  the  plaintiff  could  never  depend  on  a  greater 
or  less  degree  of  difficulty,  if  any,  to  the  defendants, 
in  getting  their  portion  of  the  money,  their  commis- 
sions and  disbursements,  from  that  country;  and 
further,  that  if  the  defendants  had  at  any  time 
brought  a  suit  against  the  plaintiff,  or,  as  they  have 
expressed  it,  "had  recourse  to  him,  or  applied  to  him 
in  a  judicial  way,"  for  the  payment  of  their  demand, 
it  is  not  possible  that  he  could  have  availed  himself 
of  the  authorization  from  them  to  receive  his  bal- 
ance in  Europe,  to  any  possible  purpose  of  defence 
whatever.  Let  the  fact  that  the  defendants  had 
furnished  him  with  the  authorization,  and  on  the 
terms  as  contained  in  his  letter,  be  put  in  the  form 
of  a  plea,  and  it  will  instantly  be  discovered  to  be 
scarcely  better  than  a  nullity. 

The  remaining  question  is,  as  to  the  rule  by  which 
the  jury  have  assessed  the  damages,  and  which,  from 
the  record,  appears  to  have  been  "the  amount  agreed 
on  by  the  contract,  as  the  price  of  the  cotton  and 
indigo."  Damages,  whether  the  assessment  of  them 
is  by  the  court,  as  their  immediate  act,  or  by  refer- 
ence to  a  jury,  are  to  be  according  to  definite  rules ; 
but  where  there  can  be  no  definite  rule  in  the  case, 
as,  for  instance,  where  exemplary  or  implied  dam- 
ages would  be  warranted,  still  the  assessment  is  not 
to  be  wholly  without  rule ;  it  is  to  be  according  to 
legal  discretion  or  arbitrament.  The  case  of  a  re- 
turned protested  bill  of  exchange,  is  a  case  of  a  defi- 
nite rule ;  the  damages  are  to  be  20  per  cent,  on  the 
amount  of  the  bill,  with  interest  from  the  time  of 
the  notice  of  the  protest,  without  any  inquiry,  and, 
consequently,  without  any  addition  or  diminution, 
in  consideration  that  the  plaintiff  has  or  has  not  sus- 
tained more  or  less,  or  any  special,  or,  indeed,  any 
actual  damage  whatever.  Suits  in  trover  and  in 
trespass  for  carrying  away  goods,  are  also  so  far 
cases  of  definite  rule,  as  that  the  damages  are  to  be 
at  least  the  value  of  the  goods  at  the  time  of  the 
conversion  or  trespass,  or  in  other  words,  at  the  time 
when  the  right  of  action  accrued,  without  regard  to 

391 


478 


COURT  OF  ERRORS,  STATE  OP  NEW  YORK. 


1800 


Rivera  that  the  cotton  was  from  the  Isle 
of  France,  of  the  description  of  Aumude 
479*]  *cotton,  producing  a  sample,  and  ask- 
ing for  it  three  shillings  or  three  shillings  and 
sixpence  a  pound,  with  the  advantage  of  the 
drawback;  that  Rivera  informed  his  partner, 
48O*]  *Gomez,  of  the  result,  and  showed  him 


the  sample;  that  Gouverneur  told  them  that 
there  was  a  quantity  of  indigo  which  must  go 
with  the  cotton,  and  showed  samples,  demand- 
ing *eighteen  shillings  a  pound;  the  [*481 
indigo  was  stated  to  be  of  the  Isle  of  France- 
Gomez  said  that  he  understood  that  Amoude 
cotton  was  the  same  as  Surat.  but  that  he  had 


any  subsequent  deterioration,  however  casual.  I 
state  at  least  the  value  of  the  goods,  for  the  dam- 
ages may  be  made  to  exceed  that  amount,  where  the 
withholding  or  taking  the  goods  was  aggravatedJy 
injurious.  The  case  now  before  the  court  is  within 
the  reason,  and,  therefore,  within  the  rule,  in  the 
cases  of  trover  and  trespass.  I  have  already  men- 
tioned such  of  the  rights  of  the  factor  as  can  have 
any  relation  to  the  questions  between  the  present 
parties.  I  now  briefly  state  his  duty  generally  to  be, 
that  he  is  to  follow  the  orders  of  his  principal,  and 
for  a  breach  of  the  orders  he  is  to  answer  in  dam- 
ages to  his  principal ;  if  the  breach  is  merely  partial, 
and  as  to  certain  parcels  or  particulars  only,  he 
shall  not  be  held  to  answer  further  than  as  to  such 
parcels  or  particulars ;  but  if  the  breach  is  such  as 
to  involve  the  whole  of  the  property  entrusted  to 
him.  he  shall  then  be  held  to  answer  for  the  value 
of  the  whole" of  the  property,  and  as  such  value  was, 
at  the  time  the  breach  of  orders  took  place  ^  and 
if  the  property  consisted  in  credits,  to  answer  to 
the  amount  or  the  credits,  and  the  principal  may 
from  that  moment  abandon  to  him  the  whole  of  the 
property.  Whenever  the  principal,  in  order  to  a 
suit  against  the  factor  for  not  delivering  up  the  prop- 
erty when  ordered  or  required,  tenders  a  sum  for 
commissions  and  other  demands,  the  principal 
tenders,  and  the  factor  refuses  at  their  peril  re- 
spectively; for  if  it  should  appear  that  the  sum 
tendered  was  sufficient,  the  principal  will  recover 
the  value  of  the  property  at  the  time  of  the  tender; 
and  the  rule  was  the  same  whenever  the  factor  re- 
fuses to  do  an  act  which  the  principal  was  entitled 
to  demand,  and  which  effects  the  whole  of  the 
property  of  the  principal.  If  such  are  the  duties  of 
the  factor,  and  if  such  is  the  measure?  of  the  dam- 
ages or  retribution  to  the  principal  for  his  injury, 
where  these  duties  have  been  violated  or  departed 
from,  the  conclusion,  that  the  damages  were  duly 
assessed  in  the  present  suit,  is  obvious. 

I  conclude  with  remarking,  that  the  controversy 
between  the  parties  may  be  satisfactorily  resolved 
in  this  as  its  cause,  that  the  defendants  have  ac- 
cepted an  agency,  and  bound  themselves  to  execute 
it  in  a  foreign  country,  if  their  principal  should  at 
any  time  elect  it,  as  most  for  his  benefit,  without 
previously  calculating  and  providing  for  their  own 
profit  and  security,  if  it  should  then  come  in  com- 
petition with  his:  and  that  afterwards,  when  too  late, 
under  apprehensions,  either  mistaken  or  founded, 
and  as  to  the  justness  of  the  remark,  it  is  immaterial 
which,  of  danger  or  disadvantage  of  some  kind, 
they  refuse  to  execute  it,  unless  they  can  have 
every  benefit  both  of  profit  or  security,  and  even 
convenience,  equally  as  if  they  were  to  execute  it 
at  home. 

My  opinion  accordingly  is,  that  the  plaintiff  is  en- 
titled to  judgment. 

HOBART,  J,,  declared  himself  to  be  of  the  same 
opinion. 

YATES,  Ch.  J.,  and  LEWIS,  J.,  dissented. 
Judgment  for  the  plaintiff. 

On  this  judgment,  the  defendants  brought  a  writ 
of  error  into  the  Court  for  the  Correction  of  Errors, 
and  it  was  there  contended,  on  the  part  of  the  de- 
fendants, that  the  judgment  ought  to  be  reversed, 
for  the  following  reasons: 

1.  Because  no  good  cause  of  action  is  stated  in 
the  plaintiff's  declaration,  the  principal  averment  of 
which  is  directly  contrary  to  a  written  contract 
under  seal,  and  most  probably,  contrary  to  the  sense 
and  meaning  of  the  parties  to  the  suit.    The  aver- 
ment alluded  to  is,  that  the  right  to  receive  pay- 
ment in  Europe,  out  of  the  proceeds,  was  intended 
for  the  special  benefit  of  the  plaintiff.    It  is  an  es- 
tablished rule  of  law,  that  no  averment  shall  be  ad- 
mitted, to  contradict  a  deed  under  seal. 

2.  Because  the  jury  have  not  found  that  this  right 
was  for  the  special  benefit  of  the  plaintiff.    The 
court,  therefore,  cannot  presume  that  this  was  the 
case,  especially  as  it  is  opposed  to  another  part  of 
392 


I  the  verdict,  which  states,  that  the  contract,  as  itap- 
i  pears  by  the  record,  was  made  by  the  intervention 
I  and  express  consent  and  direction  of  the  plaintiff; 
!  and  being  an  averment  essential  to  the  plaintiff's 
recovery,  it  ought  to  have  been  proved  as  any  other 
1  fact,  and  might  have  been  proved  as  such,  it  it  had 
j  really  been  the  case,  by  producing  an  agreement  in 
i  writing  for  that  purpose  from  the  defendants. 

3.  Because  it  is  repugnant  to  every  rule  of  con- 
struction, to  admit  any  interpretation  of  a  written 
contract,  directly  opposed  to  the  letter  of  it.    To 

i  receive  the  money  in  Europe,  might  have  been  a 
principal  inducement  to  the  defendants'  lending 
''  their  names  to  this  transaction.  Whether  it  was  so- 
|  or  not,  it  is  sufficient  to  say,  that  by  the  terms  of 
!  the  contract,  they  are  to  have  the  election,  and  they 
;  are  to  appoint  an  agent  to  receive  the  money. 

4.  Because  no  good  consideration  is  stated  for  the 
;  promise  alleged  to  be  made  by  the  defendants  in  the 

first  count  of  the  declaration.    It  is  said  that  it  was- 
|  their  "  duty  to  pursue  the  direction  and  request  of 
the  plaintiff,  touching  the  exercise  of  this  right," 
;  and  that  in  consideration  of  this  duty,  they  agree  so- 
;  to  do.    The  consideration  here  stated,  is  subsequent 
to  the  sale,  and  precludes  every  idea  of  an  antece- 
dent agreement,  on  the  part  of  the  defendants,  to- 
pursue  such  direction  and  request;  such  agreement 
is  not  even  pretended  to  exist.    To  determine  that 
it  was  their  duty  so  to  do,  the  court  must  first  get 
rid  of  the  contract,  which,  so  far  from  imposing  it 
as  a  duty  on  them,  left  it  at  their  option  to  make 
the  election,  or  not,  as  they  pleased,  and  left  to  them 
I  alone,  and  not  to  the  plaintiff,  the'  choice   of  an 
i  agent.    The  words  of  the  contract  are,  "they  may,. 
1  at  their  option,  receive,"  &c. 

I  5.  Because  the  declaration  is  altogether  uncer- 
i  tain  and  contradictory.  In  one  part  it  avers  that- 
i  the  right  to  receive  the  proceeds  in  Europe  was  for 
i  the  advantage  of  the  plaintiff,  subject  only  to  the 
!  lien  and  right  of  the  defendants,  to  have  and  re-- 
•  ceive  the  general  balance  of  their  account,  and  to  be 
!  secured  for  such  other  claims  and  demands  as  they 
i  might  and  should  be  entitled  to  and  have,  by  reason 
j  of  their  agency  for  the  plaintiff.  Thus  admitting,. 
I  without  any  qualification,  and  in  its  fullest  lati- 
|  tude,  the  lien  for  which  the  defendants  contend, 
i  But  by  another  averment  it  is  stated  that  the- 
1  defendants  were  bound  to  give  him  an  authority  to- 
|  receive  these  proceeds,  after  certain  reservations- 
i  and  deductions,  that  is,  as  he  explains  it,  after 
!  leaving  in  the  hands  of  Gomez,  Lopez,  and  Rivera,  a 
sum  sufficient  to  satisfy  the  defendants  for  their 
general  balance  and  claims.  Which  two  averments- 


are   directly   repugnant   to   each   other,    the   one 

"  the  ot" 
lien. 


admitting,  and  tne  other  destroying  every  idea  of  a 


6.  The  declaration  is  uncertain  in  another  respect, 
and,  therefore,  also  bad.    The  plaintiff  avers  that 
he  requested  the  defendants  to  elect  to  receive  the 
proceeds  of  the  property,  or  so  much  as  would  be  due 
to  him,  after  certain  reservations  and  deductions. 
But  it  does  not  appear  what  was  the  amount  of 
those  reservations  and  deductions ;  on  the  contrary, 
it  results  from  the  verdict,  that  these  very  sums- 
were  matters  in  dispute  between  the  parties.    It 
became,  therefore,  impossible  to  give  the  authority 
in  the  way  it  was  demanded. 

7.  The  declaration  is  defective  in  another  respect : 
the  action  being  brought  for  a  refusal  to  give  the 
plaintiff  a  power  to  receive  the  price  of  the  cotton 
and  indigo  in  Europe,  after  certain  reservations,  it 
was  necessary  to  aver,  as  the  very  gist  of  the  action, 
that  the  property  was  sold  in  Europe.    This  aver- 
ment is  neither  found  in  the  declaration,  nor  is  tin- 
want  of  it  supplied  by  any  part  of  the  verdict:  and 
unless  such  sale   took   place,    the   power  became 
nugatory,  and  no  damage  could  ensue  from  a  ref  usa  I 
to  give  it. 

8.  The  declaration  is  also  bad,    because   all  the 
inferences  and  deductions  made  by  the  plaintiff  in 
the  first  count,  an-  contrary  to  the   known  and 
established  laws  which  govern  relations  between 
principals  and  factors. 

9.  But  if  the  plaintiff's  construction  of  the  con- 
tract be  just ;  if  the  right  to  receive  the  proceeds  in 

JOHNSON'S  CAPES,  1. 


1800 


Louis  LE  GUEN  v.  ISAAC  GOUVERNEUR  AND  PETER  KEMBLE. 


482 


482*]  *no  personal  knowledge  of  the  article,  I  prices  to  be  as  mentioned  by  Gouverneur;  that 
and  relied  on  the  representation  of  Gouverneur,  !  *the  cotton  was  delivered  from  the  [*484 
one  of  the  respondents,  who  assured  him  !  store  of  the  respondents,  where  it  was  weighed 
that  the  indigo  would  probably  sell  in  France  !  and  might  have  been  examined. 
483*]  *for  three  dollars,  and  the  cotton  for  |  Several  witnesses  testified  that  Amoude  was 
one  dollar  a  pound;  that  A.  Gomez  showed  a  i  the  best  *Surat  cotton,  and  the  differ-  [*48£> 
price  current  from  France,  which  stated  the  [  ence  between  it  and  that  of  the  Isle  of  France 


Europe  was  reserved  for  his  special  benefit,  it  does 
not  at  all  weaken  the  defendants'  defence ;  because, 
us  factors,  they  had  a  valid  lien,  or  a  right  to  hold 
all  the  notes  and  securities  of  the  plaintiff  in  their 
hands,  and  also  to  keep  at  their  control  and  dis- 
posal the  price  of  the  goods,  until  actually  received 
by  them  or  their  agent,  not  only  as  a  security  for 
the  general  balance  due  to  them,  but  for  all  their 
incidental  charges  and  advances,  and  also  for  their 
indemnification  against  all  engagements  and 
responsibilities  which  they  had  come  under  on  the 
plaintiff's  account.  They  had  also  in  virtue  of  this 
lien,  a  right  to  refuse  the  plaintiff  possession  of  any 
of  the  papers,  and  every  facility  towards  obtaining 
his  money,  until  it  was  actually  received  by  them, 
or  their  agent,  in  Europe,  or  until  they  were  paid 
their  advances,  and  satisfactorily  indemnified 
against  every  claim,  however  contingent  or  re- 
mote. 

The  doctrine  of  the  court  below  was,  that  they  had 
a  right  to  insist  on  actual  payment,  not  only  for 
their  balance,  but  for  every  eventual  engagement 
whatsoever. 

The  following  is  a  summary  of  the  advances  and 
responsibilities  of  Messrs.  Gouverneur  &  Kemble, 
on  the  15th  June,  1795 : 

1.  Mr.  Le  Guen  owed  them  a  balance  of  -  £4,795     6    3 

2.  They  had  executed  a  bond  to  the 

United  States,  for  the  landing  of 
cotton  and  indigo  abroad,  in  the 
penalty  of  ------  4,834  15  0 

3.  They  had   executed  two   bonds   to 

guarantee  the  payment  of  the 
freight,  the  two  penalties  of  which 
were,  in  our  currency  -  8,141  0  0 

4.  They  were  bound  for  the  true  per- 

formance of  their  covenants  with 
Gomez,  Lopez  and  Rivera,  in  the 
penalty  of  -  .  -  -  -  8,000  0  0 

5.  They  had  paid  for  insurance      -       -    2,946    16    0 


Total 


-£28,717    17    3 


10.  Because  the  defendants'  lieu,  if  any  they  had, 
which  is  admitted  by  the  declaration,  extended  to 
the  whole  subject,  not  to  a  portion  or  residue  of  it, 
as  it  is  pretended ;  and,  therefore,  they  were  not 
bound  to  listen  to  any  proposal,  however  plausible, 
which  in  the  smallest  degree  impaired  their  security. 
A  lien  is  defined  to  be,  "That  hold  or  tie  which  a  man 
has  upon  goods,  or  other  things  in  his  custody,  or 
on  the  price  of  goods  in  the  hands  of  buyers,  and  by 
which  he  has  a  right  to  retain  them  until  he  is  paid 
what  is  due  to  him,  and  also  the  sums  for  which  he 
may  have  become  surety  for  his  principal."    This  is 
the  only  true  and  natural  definition  of  a  lien  ;  a  lien 
in  the  qualified  and  restrictive  sense  of  the  plaintiff, 
was  never  heard  of  until  this  suit.    If  a  single  au- 
thority, out  of  any  book  whatever,  can  be  produced 
in  support  of  this  novel  and  unheard  of  doctrine,  the 
defendants  will  abandon  this  ground  of  their  de- 
fence, as  desperate  and  untenable. 

The  Supreme  Court  in  this  cause,  admitted  that  a 
factor  may  retain  for  his  disbursements  and  re- 
sponsibilities entered  into  on  account  of  his  princi- 
pal ;  and  the  plaintiff  admits,  that  by  his  proposal  of 
the  loth  June,  it  was  implied,  that  the  defendants 
should  be  paid  and  indemnified,  as  a  condition  on 
which  only  he  was  to  receive  the  authorization  re- 
quired. 

It  is  also  contrary  to  the  understanding  of  the 
plaintiff,  as  expressed  in  his  letters. 

11.  If  the  defendants  had  this  lien,  they  say  they 
were  not  bound  to  accede  to  any  one  of  the  offers  of 
the  plaintiff.    These  offers  will  be  examined  at  large 
in  the  argument  on  their  part,  and  it  will  t>e  shown, 
that  every  one  of  them  went  to  the  total  destruction 
of  their  lien  as  factors. 

12.  But  if  the  defendants'  lien  was  only  of  the  par- 
tial kind  admitted  in  one  part  of  the  plaintiff's  dec- 
laration, they  contend  that  all  his  offers  were  inad- 
missible, as  any  one,  if  acceded  to,  would  have  put 
it  in  the  plaintiff's  power  to  have  defeated  the  op- 
eration of  it  altogether,  even  within  the  limits  he 
admitted  it  to  exist. 

JOHNSON'S  CASES,  1. 


13.  The  defendants  maintain  that  there  is  nothing 
in  this  transaction  which  differs  it  from  the  common 
cases  of  principals  and  factors.    If  any  clauses  were 
inserted  in  this  contract  of  sale  for  the  benefit  of  the 
principal,  is  not  this  the  case  in  every  sale  by  a  fac- 
tor?   Have  not  all  such  sales  in  view,  as  a  primary 
object,  the  principal's  benefit?    But  was  it  ever  be- 
fore heard,  that  the  particular  terms  of  the  sale,  or 
the  mode  or  place  of  payment,  controlled  the  lien 
of  the  factor  who  negotiated  it  ?  Suppose  the  plaint- 
iff had  wished  to  receive  his  money  in  Lapland  or 
Peru,  would  it  not  be  absurd  to  say  that  the  defend- 
ants would  also  be  bound  to  follow  the  purchasers 
to  those  countries?    Would  it  not,  on  the  contrary, 
be  a  strong  reason  for  their  insisting  on  payment 
here,  before  they  gave  their  principal  any  authority 
to  receive  what  was  coming  to  him  abroad.    The 
truth  is,  the  terms  of  a  contract  between  a  factor 
and  purchaser  have  nothing  to  do  with  the  rights  of 
the  former  as  against  the  principal.    Innumerable 
and  various  as  such  contracts  must  have  been  in  this- 
country  and  in  Europe,  such  a  proposition  was  never 
heard  of  before.    Here  again  the  defendants  require 
but  one  solitary  legal  authority  in  support  of  this 
doctrine,  and  they  will  give  up  the  controversy.    A 
lien  is  a  right  so  attached  to  and  inherent  in  a  fac- 
tor, as  to  be  paramount  to  every  claim  of  his  prin- 
cipal.   It  is  a  right  conferred  on  him  by  law,  not 
depending  on  the  will  of  the  principal.    No  agree- 
ment is  necessary  to  give  it  efficacy,  no  mode  in 
which  the  principal  may  choose  to  vend  his  goods, 
no  way  in  which  he  may  fix  the  payment,  no  country 
to  which  the  purchasers  may  be  going,  no  nation  of 
whicn  the  principal  may  be  a  citizen,  no  inconven- 
ience to  which  he  may  be  exposed,  no  terms  for 
his  benefit  which  may  be  ingrafted  into  the  contract 
of  sale,  can  alter,  diminish,  or  destroy  those  rights 
to  which  his  factor  becomes  entitled,  according  to 
the  usage  of  trade,  the  moment  he  steps  forward  in 
that  capacity  to  assist  in  or  lend  his  name  to  the 
sale.    Doubts  and  perplexities,  incessant  and  end- 
less as  the  nature  of  contracts,  would  result  from  a 
contrary  doctrine,  in  the  place  of  that  simple  mid 
uniform  rule  which  now  prevails.    At  present,  every 
merchant  knows  he  has  a  lien  or  hold  on  the  goods 
of  his  employer,  for  the  balance  of  his  account  and 
his  collateral  undertakings.    It  matters  not  whether 
he  is  directed  to  take  notes  payable  at  Havre  de 
Grace,  or  at  the  bank  of  New  York ;  his  lien  in  either 
case  is  precisely  the  same.    In  the  former  case,  in- 
deed, the  lien  of  an  American  factor  should  be  more 
highly  favored  and    protected,  because  his    risk, 
where  payment  is  to  be  madeabroad.  is  considerably 
enhanced. 

14.  But  if  the  defendants  were  bound  to  receive 
payment  in  Europe,  and  to  pursue  the  purchasers 
thither,  they  contend  that  their  lien  extended  to  the 
whole  price  of  the  goods  in  that  country,  and  that 
they  were  not  bound  to  give  a  power  to  the  plaint- 
iff to  receive  any  part  of  these  proceeds  until  they 
were  actually  received  by  an  agent  of  their  appoint- 
ing, in  whose  hands  they  might  make  the  reserva- 
tions and  deductions  which  the  plaintiff  allows  they 
were  entitled  to. 

15.  If  the  defendants  had  no  lien  whatever,  they 
were  not  bound  to  give  the  plaintiff  the  authority 
he  demanded,  without  an  indemnity,which  has  never 
been  offered. 

1st.  Because  the  contract,  being  in  the  name  of 
the  defendants,  and  containing  a  heavy  penalty,  no 
suit  could  be  brought  upon  it,  but  in  their  name :  if, 
then,  they  had  given  the  plaintiff  the  authority  he. 
asked,  and  when  he  asked  it,  and  he  had  abused  it. 
they  might  have  exposed  themselves  to  the  penalty 
of  the  contract,  or  at  least  to  an  action  of  covenant 
for  damages.  That  he  might  have  abused  it,  appears 
from  what  is  stated  to  be  the  custom  of  Normandy. 

2d.  They  were  not  bound  to  give  the  authority 
until  a  sale,  because  the  property,  being  warranted 
American,  and  the  plaintiff  being  a  French  citizen. 
such  authority,  in  wise  of  discovery,  would  have  ex- 
posed the  cargo  to  capture  and  condemnation,  and 
thus  have  vitiated  the  policies  which,  in  case  of  loss, 
were  the  defendants'  only  security.  If  by  such  an 
act  the  defendants  had  exposed  the  cargo,  the  pur- 

m 


485 


COURT  OK  ERRORS,  STATE  OF  NEW  YORK. 


1800 


too  striking  to  be  mistaken;  ami  that  the 
•external  appearance  of  the  bales  showed  it  to 
48€>*]  be  Surat*cotton,  and  that  some  of  them 
were  opened.  There  was  various  other  evi- 
dence, in  corroboration  of  what,  is  here  stated, 
which  it  is  unnecessary  to  detail. 
4-87*]  *Three  questions  were  raised  by  the 


counsel  for  the  appellant,  for  the  consideration 
of  the  court. 

1.  Whether,  inasmuch  as  previous  to  the  trial 
at  law,  *between  the  appellant  and  re-  [*488 
spondents,  they  had  full  notice  of  the  pretended 
fraud,  by  the  bill  exhibited  by  Gomez  and  Ri- 
vera, they  were  not  bound,  if  they  meant  to 


•chasers  also  would  have  had  a  claim  on  them  for 
damages. 

16.  The  plaintiff  ought  not  to  recover,  because,  if 
the  defendants  have  been  guilty  of  a  neglect  or 
breach  of  duty,  the  plaintiff  sustained  no  injury, 
and,  therefore,  is  not  entitled  to  any  damages.  The 
jury  refer  it  to  the  court  to  say,  whether  the  defend- 
ants have  made  themselves  liable  to  pay  the  amount 
agreed  on  by  the  contract,  as  the  price  of  the  prop- 
erty. This  sufficiently  shows,  whatever  arguments 
maybe  urged  to  the  contrary,  what  rule  the  jury 
observed  in  assessing  the  damages,  and  precludes 
every  idea  of  any  special  injury.  From  the  whole 
verdict,  it  manifestly  appears  that  none  was  proved 
or  sustained. 

Every  action  on  the  case,  ex  contractv,  is  brought 
to  recover  a  ''pecuniary  satisfaction  for  the  damage 
sustained."  It  does  not  follow,  that  an  injury  is  the 
necessary  consequence  of  every  misconduct  in  a 
factor.  Cases  can  and  will  be  put,  in  the  course  of 
the  argument,  to  illustrate  this  position,  and  even 
to  show  that  a  principal  may  sometimes  be  benefit- 
ed by  a  palpable  breach  of  orders  in  the  factor ;  in 
which  case,  it  would  be  absurd  to  say  that  the  latter 
should  make  him  any  compensation.  That  in  an 
action  on  the  case,  grounded  on  contract,  the  plaint- 
iff is  entitled  to  a  compensation  commensurate  only 
with  the  damage  actually  sustained,  is  one  of  those 
self-evident  legal  axioms,  which  almost  precludes 
the  possibility  of  demonstration;  cases,  nowever, 
numerous,  and  in  point,  will  be  produced. 

The  following  are  the  words  of  Sir  William  Black- 
stone  on  this  subiect : 

"A  promise  is  in  the  nature  of  a  verbal  covenant,  i 
and  wants  nothing  but  the  solemnity  of  writing  and  i 
sealing  to*  make  it  absolutely  the  sarne.  If,  there-  i 
fore,  it  be  to  do  any  explicit  act,  it  is  an  express  I 
contract  as  much  as  any  covenant,  and  the  breach  | 
of  it  is  an  equal  injury.  The  remedy,  indeed,  is  not  ! 
exactly  the  same,  since,  instead  of  an  action  of  cove-  j 
nant,  there  only  lies  an  action  upon  the  case,  for  I 
what  is  called  the  undertaking  of  the  defendant;  | 
the  failure  of  performing  which,  is  the  wrong  or  ' 
injury  done  to  the  plaintiff,  the  damages  whereof  a  j 
jury  are  to  estimate  and  settle.  As  if  a  builder  ; 
promises  to  build  a  house,  and  fails,  the  party  has 
an  action  on  the  case  against  the  builder  for  this ; 
breach  of  his  express  promise,  and  shall  recover  a 
pecuniary  satisfaction  for  the  injury  sustained  by 
the  delay."  (3d  vol.,  p.  157.) 

"Every  one  who  undertakes  any  office,  employ-  ; 
ment,  trust  or  duty,  contracts  with  those  who  era-  i 
pjoy  or  entrust  him  to  perform  it  with  integrity,  j 
•diligence  and  skill,  and  if  by  his  want  of  either  • 
of  those  qualities,  any  injury  accrues  to  indi- 
viduals, they  have,  therefore,  their  remedy  in  ' 
•damages,  by  a  special  action  on  the  case.  If  an  offi-  i 
•cer  or  the  public  is  guilty  of  neglect  of  duty,  or  a  ! 
palpable  breach  of  it,  as  if  the  sheriff  does  not  exe- 
•eute  a  writ,  or  willingly  makes  a  false  return*  in  both  i 
•cases,  the  party  aggrieved  shall  have  an  action  on  j 
the  case,  for  damages  to  be  assessed  by  a  jury.  If  a  i 
sheriff  suffers  a  prisoner,  during  the  pendency  of  a 
suit,  to  escape,  he  is  liable  to  an  action  on  the  case.  • 
An  attorney  who  betrays  the  cause  of  his  client,  by  ' 
which  it  miscarries,  is  liable  to  an  action  on  the  case  i 
for  a  reparation  to  bis  injured  client."  (p.  363.) 

In  actions  of  covenant,  in  which  he  has  likened  a  : 
special  action  on  the  case,  the  same  author  remarks,  • 
the  proceedings  set  forth  with  precision,  the  cove-  ! 
nant,  the  breach  and  the  loss  which  has  happened 
thereby,  whereupon  the  jury  will  give  damages  in  < 
proportion  to  the  injury  sustained  by  the  plaintiff,  ; 
and  occasioned  by  such  breach  of  the  defendant's 
contract."    (p.  150.) 

Professor  Wooddeson  also,  in  his  view  of  the  law,  ' 
declares  that  such  actions  are  for  the  breach  of  a  : 
promise,  "to  recover  pecuniary  satisfaction  for  the 
damage  thereby  sustained."    If  the  court  can  bring 
"thejnselves  to  believe,  contrary  to  the  whole  tenor 
of  the  verdict,  that  the  plaintiff  has  sustained  dam- 
age by  our  negligence  or  default  in  not  giving  him 
a  power  to  receive  the  proceeds  of  certain  property 
in  Europe,  which  certainly,  if  they  ever  existed,  fell 
far  short  of  the  amount  of  the  notes ;  if,  we  say,  the 


court  can  possibly  bring  themselves  to  believe  that 
the  defendants  are  liable,  and  that  the  plaintiff  has 
actuall3'  suffered  damage  to  the  amount  of  the  notes, 
then  and  then  only  can  they  affirm  this  judgment — 
their  undertaking  being,  as  stated  on  record,  and  as 
implied  by  law,  not  to  pay  a  certain  specific  sum, 
but  the  damages  which  may  have  accrued  to  their 
employer  by  their  default,  with  which  damages  the 
amount  of  the  notes  has  no  connection. 

Even  in  actions  on  the  case  for  a  deceit,  although 
ever  so  gross  a  fraud  be  practiced,  it  is  necessary 
that  some  injury  be  sustained,  or  no  action  will  lie ; 
the  rule  in  this  case  being,  and  it  has  been  settled 
for  centuries  past,  in  England,  that  "  fraud,  without 
damage,  gives  no  cause  of  action."  In  such  cases, 
says  Wooddeson,  "it  is  necessary  to  remember  that 
the  ground  of  complaint  be,  that  there  be  actual 
detriment  injuriously  sustained."  If  this  be  the 
case,  in  actions  where  fraud  has  been  practiced,  how 
much  more  strongly  does  the  rule  apply  in  actions 
on  the  case,  where  misconduct  or  negligence  only, 
and  no  fraud,  is  alleged ;  where  difference  of  opin- 
ion on  a  point  of  duty,  but  no  willful  deception,  has 
occasioned  a  controversy  between  the  parlies. 

17.  Because    the  rule  of  damage   contended  for 
in   the   present    case   is   directly   opposed   to   the 
plaintiff's  declaration.    The  action  is  brought  for 
the  defendants'  refusal  to  give  an  authority  to  the 
plaintiff  to  receive  "  the  proceeds  "  of  certain  prop- 
erty in  Europe,  after  certain  deductions.    He  then 
avers,  and  which  averment  was  material,  that  after 
such  deduction,  there  would  remain  due  to  him  a 
large  sum  of  money.    But  why  make  the  averment, 
if  the  defendants  became  responsible  to  pay  the 
whole  amount  of  the  notes,  the  moment  they  re- 
fused this  authority,  whether  the  property  was  ever 
sold  in  Europe  or  not?    For  the  decision  of  the 
Supreme  Court  warrants  the  strange  principle,  that 
the  defendants  would  have   been    liable   for  this 
enormous  sum,  even  if  the  property  had  been  sunk 
or  captured,  the  moment  it  left  the  wharf ;  in  which 
case,  it  is  evident  that  the  plaintiff  would  have  been 
injured  by  crossing  the  ocean  in  quest  of  a  prop- 
erty which,  as  to  him,  no  longer  existed. 

On  a  close  examination  of  the  special  verdict,  and 
the  evidence  stated  in  it,  nothing  appeared  to 
enable  the  court  to  judge  whether  the  property 
was  sunk  at  sea,  burnt  in  port,  or  sold  at  the  best 
market  in  Europe  ;  they  refused  to  admit  evidence 
to  enlighten  them  on  this  point.  If  the  vessel  had 
sunk  the  day  after  she  left  New  York,  which  may 
have  been  the  case,  for  aught  that  appears  to  the 
contrary,  the  plaintiff's  security  was  in  his  policy  of 
insurance,  which  it  was  agreed  should  be  made  for 
that  express  purpose ;  but  the  decision  of  the  court 
inverts  this  rule:  their  language  is,  that  whether 
the  property  was  sunk,  burnt,  or  sold  at  a  high 
price,  in  all  events,  the  plaintiff  is  to  be  paid  the 
whole  amount  by  the  defendants,  and  they  are  to 
look  to  the  purchasers  and  underwriters  for  their 
re-imbursement. 

18.  Because,  this  being  an  action  on  the  case,  for  a 
misconduct  in  the  defendants,  as  factors,  it  would 
be  no  bar  to  a  new  suit  against  them  for  money  had 
and  received,  when  the  price  of  this  property  is 
recovered,  if  ever  that  be  the  case,  from  the  pur- 
chasers.   The  plaintiff's  counsel  have  taken  care, 
therefore,  to  let  it  appear  by  the  verdict  that  no 
evidence  was  given  in  the  present  action  on  the 
count  for  money  had  and  received ;  thus,  after  pay- 
ing £50,000  to  a  man  who  has  not  been  injured  by 
their  act  a  single  cent,  they  may  hereafter  be  com- 
pelled, in  an  action  which  is  now  pending  against 
them  by  the  plaintiff  in  the    Supreme   Court,  to 
refund  to  him  the  sum    which    may  be  actually 
received  by  them  from  the  purchasers.    The  sum 
recovered  in  this  action  must  be  as  a  compensation 
for  the  special  damage  sustained  by  the  agent's 
default,  which  cannot  deprive  the  principal  of  his 
right  to   receive  the  real  amount  of  sales  of  his 
property,  or  the  whole  sum,  if  they  are  able  to  pay, 
on  the  notes  of  the  purchasers ;  nay,  nothing  can 
prevent  his  compelling  the  agents  to  surrender  him 
those  notes  for  prosecution,  either  before  or  after 
the  termination  of  this  suit. 

JOHNSON'S  CASES,  1. 


1800 


Louis  LE  GUEN  v.  ISAAC  GOUVERNEUR  AND  PETER  KEMBLE. 


489 


489*]  *avail  themselves  of  that  defence,  to  do 
it  upon  that  trial,  and,  consequently,  whether 
they  were  not  precluded  from  urging  it  to 
impeach  the  judgment  against  them. 
49O*]  *2.  If  not  precluded,  whether,  from 
the  nature  of  the  testimony  in  the  cause,  it 
was  proper  that  there  should  be  an  issue  to  be 
tried  by  a  jury.  • 

491*]      *3.   Whether  this  court,  being  regu- 
larly in  possession  of  the  cause,  with  all  the 


evidence,   will  not  decide  the  whole  contro- 
versy between  the  parties. 

Messrs.  Hamilton,  llarvton,  and  Burr,  for 
the  appellant. 

Messr*.  B.  Livingston,  Troup,  and  Gowoerneiir 
Morris,  for  the  respondents. 

RADCLIFF,  J.  The  appellant  in  this  cause 
formerly  recovered  a  judgment  in  the  Supreme 


Such  strange  inconsistencies  will  ever  be  the  con- 
sequence of  a  departure  from  plain  and  known 
rules. 

19.  To  place  in  a  more  striking:  view  the  illegality 
of  the  judgment,  as  it  respects  the  damages,  let  us 
again  recur  to  the  nature  of  the  action.  It  is 
brought  for  an  injury  the  plaintiff  is  presumed  to 
have  received  by  the  refusal  to  grant  him  a  certain 
authority.  Hence,  if  he  had  been  injured  at  all,  he 
ought  to  have  recovered  something  as  damages, 
over  and  above,  and  independent  of  the  price  of  the 
property,  because  the  price  he  was  always  entitled 
to,  when  it  came  into  the  hands  of  the  defendants, 
whether  they  had  been  guilty  of  a  misconduct  or 
not ;  so  that,  if  this  judgment  is  to  conclude  the 
parties,  and  Gomez,  Lopez,  and  Rivera  were  soly- 
•ent,  the  defendants  pay  no  damages  at  all  for  their 
misconduct,  and  the  plaintiff  is  compelled  by  their 
act  to  receive  his  money  in  this  country,  without 
even  the  five  per  cent,  premium,  or  any  other 
•equivalent  for  the  disadvantage  which  is  imposed 
upon  him  by  the  defendants.  This  shows  both  that 
the  judgment  is  not  conclusive  between  the  parties, 
and  that  factors,  by  substituting  themselves  as  pay- 
masters, can  always  compel  the  principal  to  receive 
his  money  where  they  reside,  without  any  compen- 
sation for  their  misconduct,  although  it  be  expressly 
agreed  that  he  shall  receive  it  elsewhere. 

30.  The  only  cases  in  which  a  factor  can  be  liable 
for  the  whole  price  of  the  goods,  are,  where  he  has 
sold  contrary  to  his  instructions,  or  where  he  has 
received  the  whole  property,  or  it  has  been  lost  by 
his  default,  such  as  releasing  the  debt  to  the  pur- 
chasers, or  neglecting  to  prosecute  for  it  when  due ; 
but  even  here,  he  would  be  permitted  to  go  into 
circumstances,  to  induce  the  jury   to  give  other 
and  less  damages.    At  any  rate,  the  factor  would  be 

.  liable  for  the  real  value  of  the  goods  only,  not  for 
any  nominal  or  ideal  value  at  which  they  might 
have  sold  on  credit,  or  by  deception.  In  the  present 
•case,  it  is  not  pretended  that  any  part  of  the  prop- 
erty or  its  price  has  been  lost  by  our  default,  but  only 
that  the  plaintiff  has  been  injured  by  not  receiving 
the  proceeds  of  4t,  after  certain  reservations,  in 
Europe.  Suppose  these  proceeds,  after  the  reserva- 
tions mentioned,  had  only  amounted  to  $100,  and 
it  will  be  shown,  presently,  that  they  did  not 
amount  even  to  that  sum,  will  this  court  say 
that  it  is  possible  any  man,  by  refusing  to  give 
another  a  power  to  receive  $100  in  Europe,  could 
injure  the  latter  to  the  amount  of  £50,000,  or  sub- 
stitute himself  to  the  person  who  was  to  pay  that 
sum  ?  •  This  would  be  saying,  in  other  words,  that 
£40  in  Europe  are  worth  £50,000  in  this  country. 
This  would  be  turning  a  special  action  on  the  case 
into  a  penal  one ;  it  would  be  inflicting  a  fine  by  way 
of  punishment  on  the  defendants,  instead  of  com- 
pensating the  plaintiff  for  the  real  injury  which  he 
might  have  received.  The  truth  is,  it  matters  not 
in  what  country  money  is  to  be  paid ;  the  party 
failing,  wherever  he  be  sued,  must  pay  the  sum 
only  with  interest.  Bills  of  exchange  alone  form 
an  exception. 

31.  It  was  said  on  the  trial,  that  the  default  of  the 
•defendants   extended   to   the   whole   subject,  and 
that,  therefore,  there  could  be  no  other  criterion  of 
damages  than  the  whole  property.    This  is  not  just, 
as  an  argument.    In  point  of  fact  it  is  untrue,  and 
directly   against   the   record.      It    is   not    correct 
reasoning,  because  a  default  may  often  take  place 
as  to  the  whole  subject,  and  yet  the  factor  not  be 
liable  for  the  whole  sum.    If  an  insurance  broker  is 
directed  to  make  insurance  on  property  for  $100,- 
•000,  and  neglect  so  to  do,  he  is  certainly  responsible, 
but  for  what  ?    If  the  vessel  arrived  safe,  he  would 
be  liable  for  nothing ;   if  lost,  he  would  be  liable 
•only  for  the  actual  value  of  the  property.    Other 
•cases  will  be  mentioned  in  the  argument. 

But  it  is  untrue,  in  point  of  fact,  that  the  default 
here,  extended  to  the  whole  subject.  The  defend- 
ants are  sued  for  not  giving  the  plaintiff  an  authority 

JOHNSON'S  CASES,  1. 


to  receive  in  Europe  the  proceeds  of  the  cargo, 
after  keeping  at  their  disposal  a  sum  sufficient  to 
pay  and  guarantee  them  against  certain  claims. 
To  these  proceeds,  then,  after  the  reservation,  and 
no  farther,  did  the  default  extend. 

Admitting,  however,  for  a  moment,  that  the 
agents  in  this  case  became  liable  for  the  whole 
amount  of  the  subject.  By  the  subject  must  be 
meant  that  precise  object,  to  which  the  authoriza- 
tion related.  What  was  that  ?  The  authority  de- 
manded was,  "to  receive  whatever  sum  shall 
remain  of  the  goods  sold,"  after  deducting  certain 
sums.  The  defendants  refuse  this  authority. 
What,  then,  is  the  subject  ?  Certainly  the  proceeds 
in  Europe,  and  not  the  amount  of  the  notes. 
Nevertheless,  the  court  did  not  require  the  plaintiff, 
and  refused  to  permit  the  defendants  to  prove 
what  the  amount  of  those  proceeds  were.  To  show 
that  this  argument  is  correct,  let  us  suppose  that  the 
authorization  had  been  given ;  the  defendant  admits 
that  in  such  case  he  could  only  have  been  entitled 
to  receive  by  it  in  Europe  the  balance  of  the  pro- 
ceeds, after  deducting  certain  sums.  Withholding 
the  authorization  was,  therefore,  in  effect  only 
withholding  that  balance,  whatever  it  was.  Hence 
it  is  clear,  that  to  receive  the  balance  of  the  pro- 
ceeds in  Europe,  was  the  subject  of  the  demand, 
and  the  refusal.  This  was  the  subject  of  the  con- 
troversy, and  the  subject  for  which  the  defendants 
were  liable,  if  for  anything.  What  the  amount 
was,  does  not  appear.  It  will  be  remembered,  that 
the  defendants  offered,  but  were  not  permitted  to 
show  it;  a  tolerable  estimate,  however,  may  be 
formed. 

Gomez,  when  at  Hamburgh,  expected  to  lose  sixty 
per  cent.  All  agree  that  the  markets  were  bad, .and 
the  speculation  ruinous.  Deduct  sixty  per  cent, 
from  £48,966,  the  price  of  the  cotton  and  indigo,  and 
there  will  remain,  rejecting  fractions,  only  £18,588. 
The  defendants'  advances  and  liabilities  on  the  15th 
June,  1795,  were  £38,718  17s.  3d.  Thus,  then,  the  pro- 
ceeds, if  any  there  were,  fell  short  of  what  the 
plaintiff  was  willing  to  leave  at  our  disposal,  the 
sum  of  £10,131  17s.  3d.  Where,  then,  were  the 
moneys  which  the  plaintiff  was  to  have  received? 
How  is  the  defendants'  default  as  to  the  whole  sul>- 
ject  made  out,  when  it  applied,  if  at  all,  to  an  object 
which  had  no  existence  ? 

33.  It  was  also  contended  on  the  trial,  that  the 

price  of  the  property  being  fixed  and  ascertained. 

every  other  measure  of  damage  was  uncertain,  and 

liable  to  difficulty.    But  are  not  damages  uncertain 

in  their  very  nature?    Why  is  a  jury  summoned, 

i  but  to  render  them  certain?    Is  not  this  the  case  in 

I  actions  of  covenant,  trover,  detinue,  slander,  assault 

I  and  battery,  and  in  every  special  action  on  the  case? 

!  If  in  all  these,  damages  are  uncertain,  why  should 

a  certain  measure  never  before  heard  of.be  applied  to 

I  this  case  ?    Even  if  the  factors  had  sold  of  their  own 

head,  the  price  of  the  property  would  not  form  a 

certain  measure  of  damage.    It  might  not  be  worth 

I  as  much  as  it  sold  for,  and  other  circumstances  of 

i  mitigation  would  be  listened  to.    How  comes  it, 

I  that  the  plaintiff's  counsel  have  not  stated  in  his 

|  declaration,  that  by  reason  of  their  default,  the  de- 

'  fendants  "became  liable,  and  assumed  to  pay  to  the 

I  plaintiff  the  amount  of  the  notes?"    The  truth  is, 

!  that  such  an  extravagant  idea  never  occurred  to 

I  them.    With  all  their  talents,  they  did  not  dare  to 

i  hazard  a  declaration  in  such  form ;  and  yet  such  a 

i  declaration  would  have  been  good,  or  this  judgment 

!  must  be  bad. 

Notwithstanding  all  this  pretended  uncertainty, 
i  which  is  always  more  or  less  the  case,  never  did  an 
!  easier  or  more  familiar  measure  for  ascertaining 
I  damages  present  itself  than  in  this  ease.  The  de- 
fendants refuse  to  give  the  plaintiff  an  order  to  re- 
;  ceive  the  proceeds  of  certain  property  in  Europe. 
!  Where,  then,  lies  the  difficulty  of  ascertaining  their 
i  amount  ?  They  either  do,  or  do  not  exist :  if  they 
;  do  not,  there  could  be  no  injury :  if  they  did,  their 


491 


COURT  OF  ERRORS,  STATK  OF  NEAV  YORK. 


1800 


Court  against  the  respondents,  which,  on  a 
writ  of  error,  was  here  affirmed.  Since  that 
period,  the  respondents  have  filed  a  bill  in 
chancery,  alleging  a  fraud  in  the  contract  for 
the  sale  of  certain  parcels  of  cotton  and  indigo, 
for  the  amount  or  value  of  which  they  were 
held  liable  by  that  judgment,  and  they  claim 


relief  on  the  ground  of  this  fraud.  It  is  tin- 
necessary  to  be  more  particular  in  stating  the 
different  proceedings  on  this  much  litigated 
controversy,  as  they  are  fully  in  the  possession 
of  the  court.  It  will  be  sufficient  to  premise, 
that  the  present  appeal  is  from  an  order  of  the 
chancellor,  by  which  it  was  decreed  that  the 


amount  might  easily  be  known ;  the  defendants 
offered  to  ascertain  it.  This  sum,  with  interest, 
after  large  deductions,  should  have  been  the  utmost 
extent  of  the  recovery. 

23.  From  the  reasoning  in  the  last  article,  it  also 
appears  that  the  Supreme  Court  did  wrong  in  reject- 
ing the  testimony  offered  by   the   defendants,  to 
show  that  there  was  no  special  damage.    In  actions 
on  the  case,  every  circumstance  which  can  assist 
the  jury  in  forming'  an  estimate  of  the  extent  and 
nature  of  the  injury,  ought  to  be  admitted.    The 
action  is  with  propriety  termed  a  special  action  on 
the  case;  that  is,  the  defendant  is  to  recover  ac- 
cording to  all  the  circumstances  of  his  case.    If  the 
wrong  be  complains  of  has  been  attended  with  any 
injury,  he  recovers  accordingly :  if  not,  he  recovers 
nothing,  or  only  nominal  damages.    Thus  in  actions 
on  the  case,  for  escapes  against  sheriffs,  and  for 
misconduct  in  attorneys,  they  are  not  bound,  the 
sheriffs,  to  pay  the  whole  sum  due  to  the  plaintiff  in 
the  original  suit,  nor  the  attorney,  the  whole  sum 
due  to  the  client.    This  will  be  exemplified  by  sev- 
eral strong  cases.    The  court,  on  such  occasions, 
after  the  default  is  established,  permit  the  defendant 
to  prove  every  circumstance  which  may  tend  to 
.show  either  that  the  party  has  not  been  injured,  or 
to  an  inconsiderable  degree.    Yet  all  this  was  denied 
TO  the  defendants  here :  They  are  able,  if  permitted, 
and  would  have  proved,  if  their  evidence  had  not 
been  overruled,  most  conclusively,  that  their  re- 
fusal to  give  the  power  in  question,  had  not  only 
worked  no  injury  to  the  plaintiff,  but  had  proved 
beneficial  to  him. 

24.  Because,  by  rejecting  the  testimony,  which  is 
made  the  ground  of  the  bill  of  exceptions,  the  court 
precluded  the  defendants  as  factors  from  every  de- 
fence, which  the  purchasers  themselves  might  have 
availed  themselves  of.    A  man  is  not  always  held  tq 
pay  the  price  agreed  upon :  Thus  the  purchasers 
may,  and  no  doubt   will,  in  the  action   brought 
against  them  on  their  notes,  endeavour  to  prove,  in 
avoidance  of  the  contract  altogether,  that  they  were 
grossly  deceived  and  imposed  upon  in  the  purchase 
of  this  cotton  and  indigo ;  that  they  were  warranted 
of  qualities  very  different  from  the  truth.    If  they 
make  out  this  proof,  nothing  is  clearer  than  that 
they  will  be  relieved  against  the  payment  of  these 
notes :  or  that  they  will  have  only  to  pay  the  real 
value  of  the  property.    How  iniquitous,  then,  may 
be  the  result?    Gomez,  Lopez  and  Rivera  may  have 
a  verdict  against  the  factors,  on  the  ground  of  fraud 
or  deception,  and  yet  the  latter  may  be  compelled 
to  pay  the  whole  amount.    If  in  both  cases  there  be 
special  verdicts,  it  is  to  be  hoped  they  will  be  pub- 
lished together ;  they  will  reflect  singular  credit  on 
the  judicial  annals  of  this  country.    If  any  fraud 
was  practised,  as  is  contended  by  the  purchasers,  it 
was  by  the  plaintiff  himself,  who  negotiated  the 
sale ;  and  yet.  as  the  notes  are  in  the  names  of  the 
defendants,  the  relief  will  be;  against  them :    Thus 
may  innocent  factors  be  punished  for  the  fraud  of 
their  principal. 

The  case  of  a  horso  which  was  sold  for  a  barley 
corn  a  nail,  doubling  every  nail,  is  well  known ;  the 
animal,  at  that  rate,  came  to  500  quarters  of  barley ; 
the  jury,  however,  ga%'e  only  eight  pounds,  which 
was  his  real  value.  Yet  if  the  sale  had  been  made 
by  the  intervention  of  a  factor,  and  ho  committed  a 
single  mistake  or  default,  he  must  pay  the  contract 
price,  however  exorbitant  or  unconscionable  that 
may  be.  Thus,  if  the  plaintiff  had  sold  a  single  horse 
for  as  much  as  he  was  to  have  had  for  the  cotton 
and  indigo,  no  one  can  doubt  but  that  the  purchaser 
would  have  been  relieved  against  so  hard  a  bargain. 
Vet  if  the  proceeds  of  the  horse  were  to  be  paid  in 
Europe,  and  his  agent  should  refuse  him  an  order  to 
receive  the  proceeds,  which  in  all  probability  would 
not  exceed  100  guineas,  nothing  could  exempt  him, 
if  this  judgment  be  affirmed,  from  paying  to  his 
principal  the  last  farthing  of  the  contract  price. 
For  aught  that  appears,  the;  purchase  of  the  cotton 
and  indigo  was  almost  as  hard  a  bargain.  To  lose 
£HO,000,  as  may  fairly  be  inferred  from  the  verdict, 
the  purchasers  did,  WHS  no  trifle. 

25.  There  is  no  evidence,  nor  is  th«  fact  found, 

396 


that  "after  certain  deductions  and  reservations, 
there  would  remain  due  to  the  plaintiff,  for  the  res- 
idue of  the  amount  of  the  said  notes  a  large  sum  of 
money,"  which  is  another  material  averment  in  his 
declaration,  and  ought  to  have  been  proved.  It  i» 
true,  that  it  is  stated  there  would  be  due  a  residue 
on  the  amount  of  the  notes ;  but  this,  like  several 
other  allegations  in  the  declaration,  is  inaccurate. 
The  purchasers  being  only  bound,  as  appears  from 
the  contract,  to  pay  the  notes  as  far  as  the  proceeds 
extended,  the  plaintiff  could  not  demand,  nor  the 
defendants  give  a  power  to  receive  any  moneys  be- 
yond the  amount  of  these  proceeds.  It  should, 
therefore,  have  been  stated,  that  "there  would 
remain  due  to  the  plaintiff  in  Europe,  for  the  residue 
of  the  proceeds  of  the  said  cotton  and  indigo,  a  large 
sum,"  &c.;  of  this,  there  was  no  proof. 

26.  The  consideration  stated  in  every  declaration, 
ought  to  be  some  certain  act,  matter  or  thing,  by 
which  the  defendant  may  be  benefited,  or  the  plaint- 
iff incur  some  trouble  or  inconvenience,  that  is, 
either  a  damage  to  the  plaintiff,  or  an  advantage  to 
the  defendant.    The  declaration  ought  also  to  aver, 
that  the  plaintiff  has  on  his  part  fulfilled  the  terms- 
on  which  the  promise  was  made,  or  that  he  has 
offered  to  fulfil  them,  and  shown  that  readiness  and 
willingness  to  do  it,  which  the  law  requires.    Ta 
apply  this  law ;  the  consideration  stated  in  the  pres- 
ent declaration,  is,  that  the  defendants  were  to  be 
allowed  "a  commission  of  2J£  per  cent,  upon  the 
amount  of  the  sales,  and  such  other  commission  as 
the  course  of  tlnjir  agency  and  the  usage  of  trade 

,  might  entitle  them  to."  But  in  no  part  of  the 
I  declaration  is  it  averred,  that  this  commission  was- 
paid  or  tendered  to  them,  although  it  is  evident 
from  the  declaration  itself,  that  this  payment  was 
considered  by  the  plaintiff  as  a  condition  precedent 
to  his  receiving  the  authority  in  question;  nor  is 
there  any  proof  to  supply  the  want  of  this  essential 
averment. 

27.  Another  very  material  and  essential  part  of 
the  plaintiff's  declaration  is  not  only  without  proof, 
but  the  testimony  and  finding  of  the  jury  complete- 
ly and  entirely  disprove  it.    The  declaration  states, 
that  the  plaintiff  requested  the  defendants,  "to  elect 
to  receive  the  amount  of  the  notes,  or,  at  their 
option,  so  much  as  would  be  due  to  him,  after  de- 
ducting and  reserving  thereout  certain    sums    at 
Havre  de  Grace,  or  at  any  other  port  in  Europe, 
where  the  ship  should  discharge,  out  of  the  proceeds 
of   the  property;   and   after   such   deduction  and 

!  reservation  made,  to  give  him  power  and  authority 
'  to  receive  from  the  purchasers  the  residue  of  the 
said  notes  out  of  the  proceeds."    It  might  be  in- 
ferred from  this,  that  no  authority  to  receive  the 
residue  was  required  until  after  this  election  was 
made,  and  Gomez,  Lopez  and  Rivera  had  actually 
paid    to   the   defendants,    or   to   their   agent,    the 
j  moneys  which  were  to  be  thus  deducted  and  re- 
!  served.    The  correspondence  between  the  parties, 
I  all  the  proposals  of  the  plaintiff,  the  finding  of  the 
jury,  and  the  several  times  of  making  his  demand  of 
I  the  authority  in  question,  evidently  show,  that  the 
I  reservation  to  be  made  was  not  out  of  the  proceed* 
|  when  actually  paid  to  the  agent  of  the  defendants, 
|  but  that  this  sum,  which,  by  the  bye,  was  never 
i  ascertained  between  the  parties,  was  to  be  left  in 
the  hands  of  the  purchasers,  subject  to  the  order  of 
the  defendants. 

The  plaintiff's  first  request  is  to  "have  an  author- 
isation to  receive  in  France,  the  amount  of  the  en- 
gagements of  the  purchasers,"  without  any  reser- 
vation whatever  to  the  defendants.  He  next 
demands  an  authenticated  copy  of  the  contract, 
with  an  authority  to  receive,  after  payment  of  the 
freight,  100,000  dollars.  It  would  have  been  fortu- 
nate for  all  parties,  if  the  property  had  only  pro- 
duced half  of  this  sum.  He  lastly  demands  an 
authenticated  copy  of  the  contract,  with  a  complete 
authorization  to  receive  whatever  sum  shall  remain 
of  the  proceeds  of  the  goods  (not  of  the  amount  of 
the  notes,  as  artfully  stated  in  the  declaration,  and 
from  which  the  proofs  so  essentially  vary)  sold  to 
Gomez,  Lopez,  and  Rivera,  after  deducting  and  re- 
serving at  the  disposal  of  the  defendants,  certain 
JOHNSON'S  CASKP.  1. 


1800 


Louis  LE  GUEN  v.  ISAAC  GOUVERNEUR  AND  PETEK  KEMBLE. 


491 


recovery  at  law  did  not  preclude  the  respond- 1  presents  itself  for  our  examination,  is,  whether 
cuts  from  seeking  relief  in  equity,  against  the   the  recovery  at  law  precluded  the  relief  sought 


fraud  which  is  alleged;  and  which  order  also 

confirmed  a  former  order  made  in  the  cause, 

directing  an  issue  at  law  to  try  the  matter  of 

fraud. 

•4J)2*]      *The  first  question,  therefore,  which 


sums  for  their  indemnification ;  nor  is  there  any 
proof  in  the  whole  verdict,  that  he  ever  requested 
them  to  make  the  election  which  he  stated  in  his 
declaration ;  although  it  abundantly  appears,  that 
the  election  to  receive  the  proceeds  in  Einx>pe  was 
made  by  the  defendants,  and,  for  anything  that  is 
found  to  the  contrary »  without  eifect. 

Again — the  time  of  making  the  request,  explains 
the  ideas  of  the  plaintiff.  The  last  demand  was  only 
fifteen  days  after  the  departure  of  the  White  Fox. 
How  could  the  defendants  make  the  election  in  so 
abort  a  time,  before  it  was  possible  it  could  be  known 
where  the  property  would  be  sold  ?  Were  they  to  send 
to  every  port  of  Europe  ?  It  is  plain,then,that  instead 
of  their  making  an  election  pursuant  to  the  right 
reserved  to  them,  the  plaintiff  wanted  an  authority 
and  the  contract,  to  pursue  the  purchasers  and  get 
the  whole  of  the  property  from  them.  This  appears 
further,  from  the  pains  he  has  taken  to  establish  on 
record,  the  customs  of  Normandy.  It  is  difficult  to 
see  any  connection  between  these  customs  and  a 
power  to  receive  the  proceeds.  It  was  the  property 
he  was  in  pursuit  of,  and  not  a  balance  of  the  pro- 
ceeds. There  is  a  material  variance,  too,  between 
his  declaration  and  his  letter  of  the  15th  June.  In 
the  former  he  says,  he  asked  for  an  authority  to  re- 
ceive immediately  from  Gomez,  Lopez,  and  Rivera ; 
but  in  his  letter,  he  artfully  demands  a  power  to  re- 
ceive at  the  port  of  discharge,  without  saying  from 
whom ;  this  variance  is  deemed  essential  and  fatal. 
The  court  below  were  inconsistent  in  the  admission 
of  testimony.  The  plaintiff  was  permitted  to  prove 
the  custom  of  Normandy,  with  a  view,  no  doubt, 
of  inducing  the  jury  to  believe  that  he  had  been  in- 
jured by  not  receiving  the  authority  demanded,  and 
yet  the  defendants  were  not  permitted  to  show  any 
thing  in  mitigation.  If  the  rule  be  just,  that  they, 
ipxo  facto,  the  very  instant  the  default,  if  any,  took 
place,  put  themselves  into  the  place  of  the  purchas- 
ers, without  the  possibility  of  protecting  themselves 
against  such  an  enormous  penalty,  and  that  the 
price  of  the  article  was  the  only  rule  of  damage,  the 
court  should  have  excluded  this  testimony  al- 
together. 

The  court  rejected  the  testimony  offered  on  the 
part  of  the  defendants  that  no  damage  had  been  sus- 
tained, on  the  ground,  that  the  law  in  this  case  hav- 
ing fixed  the  amount  of  the  damages  to  a  precise 
•definite  sum,  it  could  be  neither  more  nor  less ;  it 
was,  therefore,  improper  to  receive  evidence  to  show 
that  a  less,  or  any  particular  damage  was  sustained. 
They  admitted  this  evidence  on  the  part  of  the 
plaintiff,  to  show  that  he  had  sustained  particular 
Damage,  and  refused  it  to  the  defendants.  The 
court  have,  therefore,  certainly  been  in  an  error  in 
admitting  one,  or  refusing  the  other. 

It  is  true  that  the  custom  of  Normandy  makes 
considerably  in  favor  of  the  defendants,  as  it  dis- 
covers the  plaintiff's  true  object,  and  the  injury  he 
contemplated  doing  to  them,  by  taking  the  whole 
property  under  the  pretence  of  a  lien,  into  his  own 
hands.  The  defendants  have  a  right,  however,  to 
complain  of  its  admission,  as  being  directly  contrary 
to  the  rule  which  the  court  enforced  with  respect 
to  them.  If  circumstances  of  aggravation  were  ad- 
mitted on  the  one  side,  surely  matters  in  mitigation 
ought  to  have  been  received  on  the  other. 

28.  That  the  rule  of  damage  was  erroneous  may  be 
further  illustrated  from  actions  which  are  brought 
•on  contracts  containing  penalties.  If  it  be  an  action 
of  debt  for  the  penalty,  at  might  be  said  that  the 

Earty  lias  ascertained  the  sum  he  is  to  pay  for  the 
reach  of  his  contract,  and  that  every  other  rule  is 
uncertain.  Yet  every  one  knows  that  the  actual 
damage  sustained  is  all  that  the  plaintiff  can  event- 
ually recover,  and  that  this  must  be  ascertained  by 
a  jury.  Let  us  admit  as  strong  a  case  as  can  be  put 
for  the  plaintiff.  Suppose  the  defendants  imme- 
diately after  making  the  sale  to  Gomez,  Lopez  and 
Rivera,  had  covenanted,  under  the  penalty  of  £50,- 
000  to  give  the  plaintiff,  in  the  course  of  a  week,  au- 
thority to  receive  the  proceeds  in  Europe,  and  that 
they  had  no  demand  whatever  against  him.  They, 
however,  refuse,  without  assigning  any  reason  what- 
ever, to  give  such  authority.  In  an  action  of  debt 

JOHNSON'S  CASES,  1. 


in  equity.     If  it  did,  the  decision  of  this  point 
will  put  an  end  to  the  cause;  if  not,  there  are 
other  questions  which  will  remain  to  be  ex- 
amined. 
The  general  principle,  that  the  judgment  or 

i  for  the  penalty,  or  in  action  of  covenant,  the  penalty 
;  would  be  disregarded,  and  the  rule  of  damage  would 
be  the  injury  actually  sustained ;  that  is,  the  amount 
of  the  proceeds,  with  interest.    Shall  they,  then,  be 
;  in  a  worse  situation,  because  they  did  not  comply 
'  with  an  implied  promise,  and  refused  to  give  an  au- 
i  thority  in  a  case  where,  to  say  the  least,  it  was 
i  doubtful  whether  the  plaintiff  was  entitled  to  re- 
ceive one,  and  where  they  assigned,  at  least,  a  plaus- 
ible reason  for  their  refusal,  and  could  certainly  not 
have  complied,  without  very  imminent  hazard  to 
themselves? 

29.  The  finding  of  the  jury,  as  it  respects  the  dam- 
ages, is  illegal,  and,  therefore,  the  judgment  ought 
to  be  reversed.  Instead  of  assessing  them  as  is  cus- 
tomary, they  refer  it  to  the  court,  whether  the  con- 
tract price  snail  be  the  rule.  If  the  court  be  of  that 
opinion,  then  they  find  such  a  sum.  While  attaint* 
were  in  force,  such  a  verdict  would  not  have  been 

Eermitted,  as  the  party  must  have  been  deprived  of 
is  remedy  against  them  for  excessive  damages; 
for  no  attaint  would  lie  on  a  verdict,  where  the 
quantum  of  damage,  as  well  as  the  law,  were  re- 
ferred to  the  court.    It  is  a  dangerous  innovation  on 
established  precedents.     Assessing  of  damages  is 
emphatically  the  duty  of  jurors.    Referring  it  in 
this  way  to  the  court,  if  not  a  violation  of  trust,  is 
destroying  those  barriers  between  the  provinces  of 
courts  and  juries,  in  the  preservation  of  which  sep- 
arate and  distinct,  consists  the  great  excellence  of 
I  this  mode  of  trial.     This  is  at  once  surrendering 
I  their  prerogatives,  in  which  the  party  has  an  inter- 
I  est  not  to  be  defeated  by  pusillanimity,  or  a  mis-' 
!  taken  deference  for  the  opinion  of  others.    They 
are  to  inquire  what  injury  the  party  has  sustained, 
not  to  leave  the  quantum  to  be  determined  by  the 
court.    If  jurors  are  thus  permitted  to  evade  ad- 
!  justing  the  very  object  for  which  they  are  convened, 
!  their  attendance  may  as  well   be  dispensed  with 
I  altogether,  as  a  useless  expense,  and  questions  of 
i  damages  as  well  as  of  law  be  at  once  submitted  to 
;  the  court.    If  this  honorable  court  shall  think  the 
plaintiff  entitled  to  recover,  but  that  the  jury  have 
neglected,  from  a  diffidence  in  their  own  judgment, 
to  exercise  that  discretion  respecting  the  damages, 
with  which  they  are  peculiarly  entrusted,  they  may, 
and  no  doubt  will,  order  a  venire  facias  de  novo  in 
order  to  admit  further  light,  and  to  have  the  ques- 
tion of  damage  definitively  settled  by  the  proper 
tribunal.    It  is  much,  however,  in  favour  of  the  de- 
fendants, that  the  jury  have  expressed  no  opinion 
against  them,  either  as  to  their  liability,  or  to  its 
extent.    It  would  have  been  impossible  to  induce  a 
jury  of  merchants  to  subscribe  to  so  dangerous  a 
doctrine.    It  is  a  matter  of  public  notoriety,  and 
ought  to  be  mentioned,  that  the  first  jury,  who  were 
selected  from  the  most  respectable  merchants  in  the 
community,  determined  that  the  defendants  had 
:  incurred  no  responsibility  whatever. 

Lastly.  The  judgment  ought  to  be  reversed,  be- 
cause it  is  an  attempt  to  punish  the  defendants  for 
I  the  insolvency  of  the  purchasers,  without  a  particle 
i  of  proof  that  they  have  in  any  degree  contributed 
]  to  such  insolvency.  Although  their  failure  is  not 
i  stated  on  the  record,  it  may  be  fairly  inferred  from 
I  the  plaintiff's  conduct.  Why  look  to  the  defend- 
ants for  the  contract  price  of'the  cotton  and  indigo, 
and  that  in  so  questionable  a  form  of  action,  if  the 
purchasers  were  able  and  liable  to  pay?  An  action 
on  their  notes  would  be  more  certain  and  expedi- 
tious. The  buyers  must  then  be  either  unable  to 
pay,  or  have  good  reasons  for  resisting  payment.  If 
their  bankruptcy  cannot  be  attributed  to  the  de- 
fendants, why  should  they  become  their  substitutes? 
If  the  buyers  have  a  defence,  the  defendants  ought 
in  no  event  to  be  answerable  for  any  part.  The 
plaintiff's  motive  to  this  suit  also  appears  from  the 
time  of  its  being  brought.  If  he  really  intended  to 
recover  damages  for  the  actual  injury  sustained  by 
our  default,  why  not  immediately  abandon  to  the 
defendants  the  whole  property,  and  commence  the 
action  without  delay?  Instead  of  this,  he  waits 
more  than  a  year  to  discover  how  the  speculation 
would  tr-rminate.  If  the  issue  had  been  prosperous, 
and  the  buyers  had  stood  their  ground,  no  recourse 

397 


492 


COURT  OF  ERRORS,  STATE  OF  NEW  YORK. 


decree  of  a  court  possessing  competent  juris- 
diction, shall  be  final  as  to  the  subject  matter 
thereby  determined,  is  conceded  on  both  sides, 
and  can  admit  of  no  doubt.  The  principle, 
however,  extends  farther.  It  is  not  only  final 
as  to  the  matter  actually  determined,  but  as  to 
every  other  matter  which  the  parties  might 


litigate  in  the  cause,  and  which  they  might 
have  had  decided.  (Prec.  in  Chan.,  221;  3. 
Atk.,  224;  1  Vern.,  176;  2  H.  Black.,  414;  7 
Term  Rep.,  269;  2  Cas.  in  Chan.,  95;  Chan. 
Rep.,  243;  2  Burr.,  1009.)  The  reasons  in 
favor  of  this  extent  of  the  rule,  appear  to  me 
satisfactory;  they  are  founded  in  the  expedi- 


would  have  been  had  to  the  defendants;  and  yet 
their  liability  and  its  extent  were  precisely  the  same, 
whether  the  purchasers  were  able  to  pay  or  not.    It 
was  a  liability  for  the  "disastrous  consequences,"  as  , 
the  plaintiff  well  expresses  it,  occasioned  by  our  de-  , 
fault,  not  a  liability  to  pay  the  amount  of  the  notes. 
This  preposterous  notion  never  occurred  to  him.  • 
Let  him  point  out  a  single  disastrous  consequence  i 
occasioned  by  the  defendants,  and  they  will  com-  : 
pensate  him  an  hundred  fold. 

After  all  that  will  or  can  be  said  on  the  subject,  j 
into  what  narrow  limits  may  its  real  merits  be  com-  i 
pressed?    It  is  a  dispute  between  a  principal  and  his 
factors.    The  former  complains  or  not  being-  fur-  j 
nished  with  a  power  to  receive  the  proceeds  of  cer-  ; 
tain  property  in  Europe,  or  in  other  words,  certain  ; 
monies.    The  factors  say:  "We  have  a  lien  on  all  i 
your  papers,  and  on  the  price  of  your  goods,  for  our  j 
advances  and  responsibilities.   This  lien  the  law  gave  j 
us  the  moment  the  sale  was  made.    As  these  ad-  I 
vanees  are  very  considerable,  we  only  ask  you  to  , 
secure  us  in  this  country,  and  you  shall  have  every  ; 
thing  you  want."    This  lien  is  not  a  chimera  of  the  '< 
factors'  own  brain.    The  principal  himself  admits  i 
it,  but  insists,  that  as  the  property  was  to  be  paid  for 
in  Europe,  as  far  as  the  proceeds  »xtended,  the  f ac-  \ 
tors  were  bound  to  take  payment  there  also,  and  to  ! 
look  to  a  portion  of  these  proceeds,  in  the  hands  of  j 
the  purchasers,  for  their  indemnification.    In  sup- 
port of  this  perfectly  novel  idea  of  a  qualified  lien,  j 
the  court  are  apprised,  that  not  a  single  authority  | 
from  any  book  will  be  produced.    The  principal's  ; 
counsel  will    rely  upon   nice   and   subtle  distinc-  j 
tions,  which  splendid  talents  will  readily  suggest, 
and  upon  a  train  of  reasoning  so  refined,  as  to  re-  j 
quire  faculties  equal  to  their  own,  to  be  able  fully  i 
to  comprehend.    The  factors,  in  opposition  to  such  ! 
a  limited  lien,  assert,  "That  it  is  of  no  importance  to 
them,  upon  wh_at  terms  the  principal  sold  his  prop- 
erty, or  where  it  was  to  be  paid  for.    That  the  rights 
of  factors  are  clearly  defined  by  law,  that  they  never 
before  heard,  that  some  factors  had  one  kind  of  lien, 
and  others  a  different  one,  or  that  the  liens  of  f  ac-  j 
tors  vary  according  to  the  contract  between  them 
and  the  purchasers ;  but  granting,  say  they,  that  our 
lien  was  thus  restricted,  and  that  we  were  bound  to  j 
go  to  Europe  for  payment,  we  insist  that  we  had  a  ; 
right  to  keep  the  whole  property  under  our  con-  J 
trol,  until  actual  satisfaction  in  that  country,  and  ' 
not  to  look  only  to  a  remnant  of  it,  which  might  be  \ 
wasted  by  the  purchasers,  or  wrested  from  them  by  : 
the  principal  himself.    If  neither  happened,  and  the 
buyers  by  misfortunes  become  insolvent,  our  se-  j 
curity  will  be  much  impaired,  as,  in  such  case,  our 
dividend  on  their  estate  would  not  pay  our  demand." 

On  the  question  of  damages,  the  controversy  is.  if 
possible,  yet  more  simple.    The  principal  brings  his 
action  for  damages,  or  a  compensation  for  an  actual  ; 
injury,  which  he  alleges  he  has  sustained  by  a  breach  i 
of  duty  in  his  factors.    The  factors  say,  "if  we  have 
been  guilty  of  a  breach  of  duty,  it  has  been  attended 
with  no  loss  or  damage  whatever  to  our  employer, 
and  that,  therefore,  he  is  not  entitled  to  any  recom-  ! 
pense   or   equivalent   whatever."     The   principal,  ! 
knowing  that  he  had  sustained  no   loss,  and,  of  j 
course,  that  he  could  not  prove  anv,  abandons  the  ; 
attempt  (for  his  counsel  certainly  had  in  view  the  ; 
necessity  of  proving  special   damage,  when  they  , 
drew  the  declaration),  and  insists  upon  the  defend-  i 
ants  paying  the  whole  sum  which  the  purchasers  had 
contracted  to  give.    The  factors,  to  this  extravagant  i 
pretension,  oppose  this  plain  answer.  "If,"  say  they,  j 
''we  erred,  in  not  giving  you  an  authority  to  receive  j 
these  proceeds,  surely  their  amount,  with  interest, 
can  be  all  which  you  are  entitled  to  from  us.    It 
matters  not  where  your  money  was  to  be  paid ;  if 
we  were  engaged  by  bond  to  pay  you  a  certain  sum 
on  the  royal  exchange  of  London,  and  we  fail,  you 
can  only,  if  you  sue  us  in  America,  make  us  pay  the 
same  amount,  with  interest,  here.    Why  then  did 
you  not  show  the  amount  of  these  proceeds?    This 
would  have  been  easy.    One  of  the  purchasers,  and 
the  very  person  who  sold  the  property  in  Europe, 
was  attending  the  trial.    Nay,  why  did  you  not  per- 
mit us  to  show  their  amount  ?    What  possible  reason 

398 

* 


can  be  assigned  for  your  solicitude  to  keep  out  of 
view  these  proceeds,  other  than  that  they  were  so- 
inconsiderable,  that  you  wished  the  court  and  jury 
to  be  kept  in  ignorance  of  them  ?  For  aught  that 
appears  on  record,  the  property  never  was  sold  in 
Europe ;  if  so,  how  are  you  injured  ?  Why  should 
we  take  the  place  of  the  buyers?  Did  we  guarantee 
their  responsibility?  Did  you  not  sell  the  property 
to  them  yourself?  If  they  have  failed,  who  occa- 
sioned their  bankruptcy  ?  Was  it  not  brought  upon 
them  by  the  extravagant  price  they  were  to  give 
for  these  articles?  If  they  have  been  ruined  by  no 
agency  on  our  part,  why  are  we  to  make  good  their 
engagements?  Show  us  that  any  loss  whatever  has 
been  occasioned  by  us,  and  you  shall  be  compensated 
to  the  utmost  farthing." 

On  the  part  of  the  plaintiff,  it  was  contended,  that 
the  judgment  of  the  Supreme  Court  ought  to  be 
affirmed  for  the  following  reasons : 

1.  That  every  contract  made  by  a  factor  for  the 
sale  of  goods,  is  for  the  benefit  of  his  principal,  and 
forms  a  contract  between  the  principal  and  the  pur- 
chaser ;  and  that  every  contract  made  by  a  factor 
for  his  own  benefit,  with  the  property  of  the  prin- 
cipal, is  a  violation  of  his  duty,  and  a  fraud  against 
the  principal. 

2.  That  every  factor  is  bound  generally  to  obey 
the  orders  of  his  principal,  and  particularly  to  use 
his  endeavours  to  carry  into  effect  any  contract  by 
him  made  for  the  benefit  of  his  principal. 

3.  That,  therefore,  if  a  contract  should  stipulate 
an  advantage,  to  depend  on  an  election  to  be  made, 
that  election  being  itself  a  privilege  or  benefit,  is  to 
be  exercised  for  the  principal,  and  is  subject  to  his 
control  and  direction. 

4.  That  in  the  present  case,  the  right  of  election  to 
receive  the  purchase  money  in  Europe,  was  a  right 
which  the  defendants  ought  to  have  exercised  for 
the  benefit  of  their  principal,  according  to  his  di- 
rection and  request,  especially  as  he  was  thereby  to 
receive  a  premium  or  advance  of  price  of  five  per 
cent.,  equal  to  $6,120.31. 

a.  That  this  position  and  inference  are  the  more 
obvious  in  the  present  case — Because,  the  factors 
could  neither  have  stipulated  for,  nor  exercised  such 
a  right  without  the  consent  of  their  principal.  Be- 
cause, the  contract  was  made  by  the  intervention 
and  express  direction  of  the  plaintiff.  Because,  it 
was  his  avowed  object  to  transfer  bis  property  to 
France,  of  which  country  he  was  a  native  and  citi- 
zen. Because,  at  Havre  de  Grace,  to  which  port  the 
ship  was  bound,  he  would  have  had  a  lien  on  the 
property,  which  would  have  enabled  him  to  have 
taken  precautions  important  to  his  security ;  and, 
because  it  is  absurd  to  suppose  that  all  these  advan- 
tages could  be  defeated,  at  the  mere  pleasure  of  the 
factors,  and  in  defiance  of  the  direction  of  the  prin- 
cipal. 

6.  That  the  acknowledged  lien  which  a  factor  has 
on  the  property  entrusted  to  him  for  his  advances 
and  responsibilities,  can  form  no  objection  to  the 
demand  of  the  plaintiff  in  the  present  case.  Be- 
cause, 

That  lien,  like  every  other  right,  is  liable  to  be 
modified  or  abolished,  by  the  agreement  of  the  par- 
ties, either  express  or  implied ; 

That  it  is  not  in  its  nature  local,  but  depends 
wholly  on  the  place  of  payment ; 

That  the  defendants,  by  becoming  parties  to  a  con- 
tract for  the  benefit  of  the  plaintiff,  containing  a 
right  of  election  to  receive  in  foreign  parts  the 
moneys  to  arise  from  the  proceeds,  virtually  agreed 
to  give  effect  to  this  right,  and  to  exercise  this  lien 
at  the  place  of  payment ; 

That  if  payment  had  been  positively  stipulated  at 
Havre  or  Hamburgh,  no  doubt  could  have  arisen 
but  that,  after  reserving  enough  to  cover  their 
advances  and  responsibilities,  they  would  have  been 
obliged  to  pay  the  overplus  there  to  the  plaintiff; 
and  in  such  case,  to  have  contended  that  they  would 
have  had  a  right  to  bring  back  the  whole  amount  of 
the  sales  to  New  York,  at  his  expense  and  risk,  to 
cover  themselves  for  a  sum  which  might  not  amount 
to  ofne  thousandth  part  of  it,  would  be  an  absurdity 
too  glaring  to  be  endured;  that  a  right  of  election 

JOHNSON'S  CASES,  1. 


1800 


Louis  LE  GUEN  v.  ISAAC  GOUVERNEUR  AND  PETER  KEMBLE. 


492 


ence  and  propriety  of  silencing  the  contentions 
of  parties,  and  of  accomplishing  the  ends  of 
justice,  by  a  single  and  speedy  decision  of  all 
their  rights.  It  is  evidently  proper  to  prescribe 
some  period  to  controversies  of  this  sort;  and 
what  period  can  be  more  fit  and  proper  than 
that  which  affords  a  full  and  fair  opportunity 
to  examine  and  decide  all  their  claims?  This 
extent  of  the  rule  can  impose  no  hardship.  It 
requires  no  more  than  a  reasonable  degree  of 
vigilance  and  attention;  a  different  course 
might  be  dangerous,  and  often  oppressive.  It 
might  tend  to  unsettle  all  the  determinations  of 
law,  and  open  a  door  for  infinite  vexation. 

This  reasoning  is  founded  in  good  sense,  and 
supported  by  the  weight  of  authority.  It  is 
equally  applicable  to  the  Court  of  Chancery 
as  to  any  other  court.  It  is  true,  some  ancient 
precedents  have  been,  and  more  of  them  may, 
perhaps,  be  found  to  oppose  this  doctrine,  but 
they  appear  to  have  originated  at  a  period 
when  the  limits  of  the  respective  courts  of 
equity  and  of  law,  in  England,  were  imper- 
fectly ascertained,  and  when  the  extreme 
rigor  of  the  latter  drove  suitors  to  seek  re- 
dress from  their  judgments,  in  the  more  liberal 
conduct  of  the  former.  The  Court  of  Chan- 
cery availed  itself  of  this  disposition  in  the 

to  receive  in  a  foreign  port,  brings  the  matter  to 
the  same  issue;  when  that  election  was  made,  the 
foreign  port  became  the  place  of  payment,  and 
there  only  could  the  lien  of  the  factors  be  exercised; 

That  it  is  an  invariable  maxim  in  law,  that  he  who 
agrees  to  an  end  agrees  to  the  means.  The  defend- 
ants might  have  refused  to  enter  into  the  contract, 
on  such  terms  but  having  assented,  having  executed 
the  contract  they  were  bound  not  to  impede  the  per- 
formance of  it ; 

That  the  defendants  could  have  given  the 
authority  required  of  them  by  the  plaintiff,  in  so 
special  a  form,  and  with  such  co-operation  of  an 
agent  named  by  themselves,  as  would  have  secured 
to  them  the  full  benefit  of  their  lien; 

And  lastly,  it  will  be  demonstrated,  that  upon  the 
construction  contended  for  by  the  defendants,  they 
and  their  agents  may  keep  the  whole  property  in 
their  hands  forever. 

With  respect  to  the  measure  and  amount  of  dam- 
ages, for  the  plaintiff,  it  will  be  contended, 

1.  That  the  rules  of  law  prescribe  the  measure  of 
damages,  in  all  cases  in  which  they  are  not  merely 
contingent.    Thus,  in  promissory  notes,  and  other 
liquidated  demands,  the  legal  interest  on  foreign 
bills  is  20  per  cent.,  and  on  inland  bills  5  per  cent.; 
without  any  inquiry  into  the  special  damage  which 
the  party;  may  have  actually  sustained. 

Thus,  in  actions  of  trover,  however  slight  the 
damage,  the  party  is  compelled  to  pay  the  whole 
value  of  the  subject  of  which  he  hath  made  an  im- 
proper use.  Thus,  finally,  in  every  case  of  a  factor 
or  trustee,  the  damages  are  invariably  the  whole 
value  of  the  property  which  may  have  been  affected 
by  his  neglect  or  misconduct;  as,  in  a  case  of 
acknowledged  authority,  if  a  factor  be  instructed 
to  sell  at  a  credit  of  thirty  days,  and  he  sell  at  a 
credit  of  thirty-one,  he  is  instantly  liable  for  the 
value  of  the  whole,  although  the  purchaser  prove 
insolvent  within  the  thirty  days;  because  a  viola- 
lation  of  his  duty  relating  to  the  whole.  If  he  had 
sold  a  part  only,  he  would,  in  like  manner,  have 
been  liable  for  that  part.  So  if  a  trustee  be  directed 
to  put  out  money  on  real  property,  and  lends  it  on 
personal  security,  however  competent,  he  is  in- 
stantly answerable  pei-sonally  for  the  whole.  No 
inquiry  is  made  or  would  be  allowed  as  to  the  actual 
or  probable  damage  sustained;  the  factor  and  the 
trustee  are  deemed  to  have  taken  the  responsibility 
upon  themselves. 

2.  That  the  application  of  this  obvious  principle  is 
peculiarly  necessary  in  the  present  case,  because  of 
the  impossibility  of  ascertaining  or  calculating  the 
events  which  may  have   affected   the  views   and 
interests  of  the  parties ;  that  if  the  plaintiff  should 
prove  on  the  one  part  that  he  could  nave  made  half 
a  million  of  dollars  by  the  receipt  of  his  money  in 
Havre,    and  by  his  presence  in  aiding  the  sales, 

JOHNSON'S  CASES,  1. 


courts  of  law,  and  assumed  an  unlimited 
power  of  revising  their  decisions.  *This  [*493 
power  was  resisted,  but  without  success,  till  the 
courts  of  law  relaxed  their  severity,  and 
adopted  more  just  and  liberal  principles  on 
almost  every  subject,  and  particularly  on  the 
subject  of  granting  new  trials.  Since  that 
period,  the  boundaries  of  the  different  courts 
have  became  better  established  and  understood 
(1  Atk.,  293),  and  their  decisions  are  mutually 
respected,  as  conclusive  on  the  matters  over 
which  they  exercise  jurisdiction.  These  ob- 
servations are  intended  rather  to  account  for 
some  of  the  ancient  cases  (2  Vern.,  146,  240, 
378,  and  Counters  of  Gairwbwmigh'tf  case  at 
the  Rolls;  Prec.  in  Cha.,  233),  which  have  been 
produced  by  the  counsel,  than  as  immediately 
applicable  to  the  question  before  us.  I  con- 
sider, therefore,  the  rule  in  the  extent  I  have 
mentioned,  as  firmly  established  by  the  mod- 
ern authorities,  and  founded  in  propriety.  If 
so,  the  only  inquiry  is,  whether  the  respond- 
ents, under  the  circumstances  of  the  case, 
would  have  been  admitted  to  make  a  defence 
on  the  trial  at  law,  on  the  ground  of  the  fraud 
which  they  now  allege. 

It  is  not  to  be  doubted,  but  that  courts  of 
law  and  equity  have  a  concurrent  jurisdiction 

could  have  also  insured  a  profit  to  Gomez  &  Co.,  and 
the  defendants,  on  the  other  part,  should  prove, 
that  they  had  reason  to  believe  that  a  better 
market  could  be  had  at  Hamburgh,  a  court  ought 
to  pronounce,  as  has  been  done  by  the  Supreme 
Court,  that  all  such  proof  would  be  irrelevant,  and 
could  tend  only  to  introduce  confusion  and  uncer- 
tainty ;  the  only  object  of  inquiry  being,  have 
the  defendants  neglected  or  disobeyed  the  orders  of 
their  principal?  If  so,  does  their  neglect  or  mis- 
conduct relate  to  the  whole  or  a  part  only  of  the 
property;  if  to  the  whole,  they  are  liable  for  the 
whole ;  if  to  a  part,  for  that  part  only.  No  other 
evidence  was  admissible  to  extinguish  or  mitigate 
the  damages,  but  that  the  price  in  the  sale  wa* 
fraudulent ;  that  the  property  had  been  lost  before 
the  default;  that  the  principal  had  released  the 
whole  or  part,  or  had  been  wholly  or  partially  com- 
pensated; neither  of  which  points  was  in  any  sort 
attempted  to  be  proved. 

3.  That  a  default,  which  gives  a  right  of  action, 
necessarily  carries  with  it  the  rule  of  compensation 
or  damages,   as  an  incident,    and   which   cannot, 
therefore,  in  any  degree  depend  on  future  events- 
and  contingencies. 

4.  That  as  the  default,  ID  the  present  instance, 
related  to  the  whole  property,  and  defeated  the 
essential  part  of  the  sale,  the  defendants  thereby 
substituted  themselves  to  the  purchasers,  and  took 
upon  themselves  the  risk  of  future  contingencies: 
That  the  amount  for  which  the  property  sold  is  the 
proper  and  only  standard  of  value  and  of  damages; 
and  that  on  any  other  principle  there  could  be  no 
rule  of  damage  in  the   present  case;   the  events 
which  took  place  subsequently  to  the  default  offer- 
ing only  a  field  for  vague  and  unlimited  conjecture. 

5.  That  in  the  cases  mentioned  under  the  first 
head,  and  in  many  others,  the  law  fixes  the  rule  of 
damages,  which  will  regulate  and  control  the  ver- 
dict of  a  jury;  that  when  the  parties  agree  to  the 
value,  this  value  is  the  rule;  that  where  an  agent, 
by  his  assumption  or  default,  puts  himself  in  the 
place  of  another,  with  whom  he  has  settled  the 
value,  the  value  so  settled  shall  govern  as  against 
him. 

6.  That,  consequently,  the  amount  for  which  the 
goods  were   sold   to   Gomez,    Lopez    and   Ilivera. 
together    with    five    per   cent,    for    receiving   in 
Europe,  is  the  principal  sum  for  which  the  defend- 
ants became  liable,  for  their  default. 

On  the  15th  of  March,  1798,  the  Court  of  Errors 
delivered  their  opinions,  when  it  appeared  that  a 
majority  of  the  court*  were  for  affirming  the  judg- 
ment of  the  Supreme  Court. 

Judgment  affirmed. 

*There  were  28  for  affirming,  and  5  for  reversing. 

399 


COUUT  OK  EKHOKS,  STATK  OF  NEW  YORK. 


1800 


011  the  question  of  fraud.  (8  Black.  Com., 
431;  2  P.  Wms.,  156,  220:  1  Burr.,  896,  480, 
382;  2  Vcs.,  Jun.,  295.)  Considering  the  re- 
poudcuts,  according  to  the  former  decision  of 
this  court,  as  completely  substituted  with  re- 
gard to  the  appellant  in  the  place  of  the  pur- 
chasers, they  became  responsible  to  him  to  the 
same  extent  in  which  Gomez,  Lopez,  and 
Rivera  were  liable,  by  the  original  contract; 
it  follows,  that  they  acquired  all  the  rights  of 
Gomez,  Lopez,  and  Rivera,  and,  of  course, 
could  avail  themselves  of  the  same  defence. 
(Park,  303.)  We  have  seen  the  latter  actually 
making  the  defence  of  fraud  at  law,  on  the 
trial  of  the  notes.  It  was  equally  competent 
for  the  respondents  to  make  that  defence,  on 
the  trial  against  them.  Whether  that  defence 
would  apply  to  the  whole  action,  or  to  the 
amount  of  the  damages  only,  cannot  be  ma- 
terial, nor  can  it  be  considered  as  a  point 
merely  collateral  to  the  issue  between  the 
parties.  In  every  action  of  this  sort,  the 
amount  of  the  damages  to  be  recovered,  as 
well  as  the  right  of  recovery,  is  a  point  im- 
mediately in  litigation,  with  respect  to  which 
•494*]  the  parties  are  supposed  to  be  *equally 
prepared,  and  must  be  equally  concluded.  To 
consider  the  damages  as  distinct  from  the 
right  of  action,  or  collateral  to  it,  and  on  this 
ground  to  review  the  judgment  of  another 
court,  would  destroy  the  effect  of  the  rule.  It 
often  happens  that  the  amount  of  damages 
constitutes  the  principal  question  between  the 
parties,  and  in  every  case,  the  whole  merits  of 
the  cause  must  be  re-examined  to  judge  of 
their  propriety;  and,  thus,  in  another  form, 
the  merits  would  again  become  the  subject  of 
legal  investigation. 

It  is,  however,  admitted,  that  cases  in  which 
there  are  no  laches  or  neglect,  form  exceptions 
to  the  rule.  Thus,  where  a  party  has  no  no- 
tice of  a  defence  to  which  he  is  entitled,  or 
can  make  it  appear,  that  material  evidence  has 
been  subsequently  discovered,  which  would 
probably  support  that  defence,  and  alter  the 
determination,  he  ought  not  to  be  concluded. 
But  in  these  cases,  it  is  incumbent  on  him  to 
show  a  reasonable  ground  to  presume  that  he 
has  not  been  guilty  of  negligence,  as  in  the 
first  instance  that  he  was  ignorant  of  his  de- 
fence, or  in  case  of  the  discovery  of  new  evi- 
dence, that  he  had  used  due  diligence,  and 
could  not  obtain  it.  Without  this  restriction, 
it  would  be  in  vain  to  say,  that  he  is  ever  pre- 
cluded, for  the  pretence  of  new  matter  or  new 
evidence,  when  a  party  is  dissatisfied  with  a 
former  determination,  would  always  be  made. 

In  the  present  instance,  it  cannot  be  pre- 
tended, that  the  respondents  had  no  knowledge 
of  the  charge  of  fraud.  If  their  own  testi- 
mony is  to  be  credited,  their  agents,  Smith  & 
Atkinson,  in  London,  had  notice  of  the  fraud, 
if  any  existed,  as  early  as  October,  1795;  for 
the  property  was  at  that  time  abandoned  to 
them,  on  the  very  principle  that  there  was  a 
fraud  in  the  contract,  notice  of  which  must 
have  been  conveyed  to  their  principals.  But 
independent  of  this,  both  parties  had  express 
notice  of  the  fraud,  long  before  the  trial  at 
law.  The  bill  filed  by  Gomez  and  Rivera,  to 
which  they  were  parties,  together  with  Lopez, 
was  founded  wholly  on  this  charge.  It  was, 
495*]  therefore,  completely  within  their  own 
400 


knowledge,  and  for  aught  that  appears,  the 
evidence  of  the  fraud,  if  any  existed,  was  as 
completely  in  their  power.  If  it  did  exist,  the 
legal  presumption  is,  that  they  had  the  proofs 
in  their  power,  for  a  party  is  never  presumed 
to  be  ignorant  or  incapable  of  evincing  the 
truth  of  his  cause.  If  the  fact  be  so,  it  is  in- 
cumbent on  him  to  show  it,  in  order  to  excuse 
the  apparent  neglect,  and  support  his  claim  to 
an  exception  in  his  favor.  The  manner  in 
which  it  is  to  be  shown  must  always  depend 
on  the  particular  circumstances  of  the  case. 
In  the  present  instance,  there  is  no  proof,  nor 
any  circumstance  in  my  recollection,  from 
which  it  can  be  reasonably  inferred  that  the 
respondents  could  not,  with  proper  diligence, 
have  possessed  themselves,  on  the  trial  at  law, 
of  the  same  evidence  they  have  since  offered, 
and  I  believe  it  is  not  even  alleged  in  their 
bill.  Under  these  circumstances,  I  think  it 
would  be  unsafe  and  improper,  in  any  court, 
to  open  a  controversy  already  determined,  on 
the  loose  conjecture  that  they  might  not  have 
had  the  evidence  in  their  power. 

It  has  also  been  urged,  that  the  respondents 
were  surprised  by  the  recovery  at  law.  If 
they  were  in  reality  surprised,  it  was  not  by  a 
matter  of  evidence,  or  a  question  of  fact,  but 
by  a  principle  of  law  which  was  determined 
against  them.  It  would  be  contrary  to  first 
principles,  to  admit  a  mistake  or  ignorance  of 
the  law  to  excuse  a  neglect.  If  the  respond- 
ents had  been  surprised  by  other  means,  as  by 
artifice  practiced  by  their  adversaries,  or  by 
testimony  which  they  could  not  reasonably  be 
prepared  to  meet,  the  case  would  stand  on 
different  grounds.  It  is  this  kind  of  surprise 
only,  which  I  apprehend  is  considered  at  law, 
as  material  on  a  motion  for  a  new  trial.  Such 
was  the  case  cited  from  Burrow  (Bright  v. 
Ei/nou,  1  Burr.,  396),  where,  in  assigning  the 
reasons  for  a  new  trial,  the  court,  among 
other  things,  say,  that  the  attention  of  the  jury 
had  been  artfully  drawn  from  the  fraud  (the 
principal  point  in  the  cause),  to  the  heinous 
charge  of  forgery  alone.  The  verdict  of  the 
jury  was  there  traced  to  the  act  and  manage- 
ment of  one  *of  the  parties,  and  not  to  [*4JM> 
any  neglect  or  default  of  the  other.  The 
fraud  was  actually  in  evidence,  and  the  sur- 
prise related  to  the  proof  of  a  fact  in  contro- 
versy between  the  parties.  It  will  also  be  recol- 
lected, that  the  principal  ground  for  granting 
a  new  trial  in  that  case,  was  the  want  of  an 
express  direction  from  the  court  on  the  ques- 
tion of  fraud.  In  the  present  case,  there  is  no 
pretence  of  any  such  artifice,  nor  was  there 
any  allegation  of  fraud  at  the  trial,  and  judg- 
ing from  the  evidence  alone,  the  silence  of  the 
respondents  at  law  on  the  subject  of  fraud,  if 
it  did  really  exist,  can  only  be  imputed  to 
their  own  inattention  or  neglect. 

If  we  examine  into  the  practice  of  the  Court 
of  Chancery  (1  Eq.  Cas.  Ab.,  176;  1  Vez.,  434; 
2  Vez.,  576;  3  Atk.,  35;  2  Atk.,  178),  we  shall 
find  it  has  adopted  the  same  rule,  with  regard 
to  its  own  determinations;  and  it  is  not  pre- 
tended that  that  court  will  exercise  a  different 
control  over  the  judgments  of  other  courts, 
than  over  its  own  decrees.  The  cases  of  bills 
of  review  in  that  court,  are  analogous  on  this 
point;  and  the  same  principles  have  been 
adopted  and  established  by  repeated  decisions. 
JOHNSON'S  CASES,  1. 


1800 


Louis  LE  GUEN  v.  ISAAC  GOUVERNEUR  AND  PETER  KEMBLE. 


496 


Thus  Lord  Hardwicke,  with  regard  to  bills  of 
review,  says,  "there  are  always  two  points 
proper  to  be  attended  to  on  a  petition  for  that 
purpose ;  1.  To  show  that  the  new  matter 
upon  which  such  bills  is  sought,  has  come  sub- 
stantially and  materially  to  the  knowledge  of 
the  party  or  his  agent,  since  the  time  of  the 
decree  in  the  former  cause,  or  since  such  time 
as  he  could  have  used  it  to  his  benefit  in  the 
former  cause  ;  2.  That  it  is  probable  such  new 
matter  is  relevant.  Again,  it  is  held,  that  for- 
getfulness  or  negligence  of  parties  under  no 
incapacity,  is  no  foundation  for  a  bill  of  re- 
view; and  matter  already  settled,  or  which 
might  have  been  put  in  issue,  and  settled  in 
the  original  cause,  shall  never  be  drawn  into 
examination  on  a  bill  of  review." 

In  every  light,  therefore,  in  which  this  sub- 
ject can  be  seen,  whether  we  view  it  as  con- 
sidered by  courts  of  law,  with  regard  to  their 
own  determinations,  or  by  courts  of  equity, 
with  regard  to  their  own  decrees,  or  in  rela- 
tion to  the  interference  of  the  latter  with  the 
497*]  judgments  of  the  former,  *the  same 
rules  and  the  same  principles  appear  to  prevail. 
On  the  first  question,  I  am,  therefore,  of  opin- 
ion, that  if  any  fraud  existed,  it  was  com- 
petent to  give  it  in  evidence,  on  the  trial  at 
law;  that  it  was  the  duty  of  the  respondents 
so  to  do,  if  they  had  notice  of  the  fraud;  that 
they  had  such  notice,  and  for  anything  that 
appears,  had  the  evidence  in  their  power  as 
fully  as  at  any  subsequent  period,  and  of 
course,  that  they  are  precluded  by  their  neg- 
lect, and  cannot,  now,  avail  themselves  of  this 
defence. 

This  may,  perhaps,  be  deemed  a  severe  ap- 
plication of  the  rule,  the  mmmumjm  between 
the  parties;  but  I  have  sought  with  solicitude 
to  discover  a  principle  on  which  I  could  with 
propriety  depart  from  it;  and  in  every  shape 
in  which  I  have  been  able  to  turn  the  question, 
insuperable  objections  have  occurred.  It  still 
remained  a  question  of  principle  on  the  one 
hand,  and  of  feeling  on  the  other.  The  mag- 
nitude of  the  property  in  question,  alone  can 
furnish  no  guide.  It  may  and  ought  to  have 
weight,  in  cases  of  doubt  or  difficulty,  but  when 
principles  are  plain,  it  cannot,  of  itself,  be 
made  a  ground  of  relief.  It  is  incapable  of 
any  certain  criterion;  in  its  nature  nothing  can 
be  more  vague;  and  if  adopted,  instead  of  le- 
gal rules  and  legal  discretion,  we  must  be  gov- 
erned by  the  fluctuating  and  arbitrary  notions 
of  magnitude  which  may  be  applied  to  every 
particular  case. 

I  have  dwelt  more  minutely  on  the  prelim- 
inary question,  not  only  because  it  appears  to 
me  sufficient  to  decide  the  cause,  but  because 
it  involves  a  principle  which  I  think  of  the 
first  importance  to  the  safe  and  effectual  ad- 
ministration of  justice.  Nothing  would  ap- 
pear to  me  more  dangerous  in  the  conduct  of 
our  courts,  and  more  productive  of  endless 
litigation,  than  to  open  with  facility  their  sol- 
emn determinations.  If,  in  the  instance  be- 
fore us,  we  should  be  of  opinion  that  there  is 
no  foundation  for  the  charge  of  fraud,  it 
would,  in  itself,  furnish  a  strong  example  to 
show  the  danger  of  renewing  a  controversy 
498*]  *already  decided,  and  the  ease  with 
which  new  plans  of  defence  may  be  invented, 
and  even  supported  by  witnesses. 
JOHNSON'S  CAPES,  1.  N.  Y.  REP.,  BOOK  1. 


But  there  are  other  points  in  the  cause, 
which  appear  to  me  to  render  it  capable  of  an 
easy  determination.  Admitting  the  fraud  to 
be  open  for  examination,  the  appeal  is  also 
from  that  part  of  the  order  which  directs  an 
issue  at  law.  Here  it  is  proper  to  notice,  that 
after  the  original  order  for  an  issue  was  made, 
the  parties  agreed  to  submit  to  the  court  of 
chancery  the  question,  whether  the  respond- 
ents were  precluded,  by  the  trial  at  law,  as 
preliminary  to  the  order  for  an  issue?  By 
this  agreement,  I  consider  the  order  for  an 
issue  as  having  been  suspended,  until  the  de- 
cision on  the  question  thus  previously  made. 
The  order  was  then  confirmed  and  rendered 
complete,  and  the  appeal  from  this  confirma- 
tory order  being  strictly  in  time,  brings  up 
the  question  directly  as  to  the  propriety  of  the 
issue.  Independent  of  this,  I  think  there  can 
be  no  doubt,  that  by  an  appeal  from  any  inter- 
locutory or  final  decree,  all  the  proceedings 
in  the  cause  anterior  to  the  decree,  are  neces- 
sary to  be  presented  to  this  court,  and  proper 
for  its  determination.  It  may  frequently  be- 
come indispensible  to  reverse,  alter,  or  modify 
the  previous  proceedings,  in  order  to  make 
them  consistent  with  the  decree  to  be  here 
pronounced.  All  antecedent  matter  is,  there- 
fore, necessarily  before  the  court,  and  subject 
to  its  control.  I  have  also  no  doubt  that  this 
court  may  proceed  farther,  if  it  appear  that 
the  merits  are  fully  in  its  possession,  and  de- 
termine finally  between  the  parties.  That 
such  is  the  power,  and  frequently  the  prac- 
tice of  the  House  of  Lords,  in  England,  is  evi- 
dent, from  the  cases  which  have  been  cited. 
(1  Bro.,  P.  C.,  57;  2  Bro.,  405,  415;  3  Bro., 
180,  218;  4  Bro.,  582;  5  Bro.,  387,  454,  478; 
6  Bro.,  468;  7  Bro.,  1,  208.)  On  similar  ap- 
peals, they  affirm,  reverse,  or  alter  the  order 
for  an  issue,  and  sometimes  proceed  to  dismiss 
the  bill,  or  otherwise  decree  on  the  merits. 
The  power  of  this  court  is  the  same  in  this 
respect.  I  can  see  nothing  in  our  constitu- 
tion or  laws  to  restrain  it.  The  constitu- 
tion simply  directs  the  court  to  be  instituted, 
and  the  act  of  the  legislature  organizing  the 
*court,  declares  its  powers  in  very  [*499 
ample  terms.  (Laws  of  N.  Y.,  vol.  1.,  Nov. 
23,  1784.)  The  words  are,  that  this  court 
shall  have  power  "to  reverse,  affirm,  or  alter 
such  sentence,  judgment,  decree  or  order,  and 
to  make  such  other  order  or  decree  thereon,  as 
equity  and  justice  shall  require."  These  terms 
are  sufficiently  comprehensive  to  authorize  a 
final  decree,  nor  shall  we  thereby  assume  orig- 
inal jurisdiction.  An  original  jurisdiction  is 
that  which  takes  cognizance  of  a  suit  ab 
origine.  In  this  case,  the  propriety  of  making 
a  final  decree  arises  out  of  the  appeal  itself, 
which  brings  before  us  the  whole  merits  of 
the  cause.  The  idea  that  we  have  not  the 
constitutional  lights  of  the  chancellor's  reasons, 
with  respect  to  the  merits,  is  rather  an  objec- 
tion of  form.  In  fact,  we  have  his  opinion 
substantially  on  the  subject.  He  has  told  us 
that  he  has 'doubts  on  the  question  of  fraud; 
that  the  evidence  is  not  satisfactory;  and  that 
he  wants  further  testimony  to  inform  his  con- 
science. At  least,  such  is  the  language  of  the 
decree,  for  otherwise,  it  could  have  been  of  no 
use  to  order  a  trial  at  law.  If,  therefore,  we 
are  of  opinion  that  the  testimony  in  the  cause 
26  401 


499 


COURT  OF  ERRORS,  STATK  OF  NEW  YORK. 


1800 


is  decisive,  either  for  or  against  the  fraud,  and 
that  it  ought  not  to  be  sent  to  a  jury,  what  es- 
sential lights  can  we  expect  to  receive,  by 
sending  it  back  for  the  chancellor's  decision? 
We  may  place  him  in  a  delicate  situation,  and 
oblige  him  to  decree  on  the  evidence,  as  it 
stands,  but  we  cannot  compel  him  to  alter  his 
opinion,  or  remove  his  doubts.  We  can,  there- 
fore, expect  no  real  benefit  from  such  a  pro- 
ceeding, and  I  cannot  imagine  that  the  consti- 
tution intended  so  idle  a  ceremony.  Indeed, 
the  position  that  this  court  has  not  the  power 
to  make  a  final  decree,  in  cases  like  the 
present,  supposes  a  'defect  of  jurisdiction, 
which  ought  not  to  be  admitted  without  evi- 
dent necessity.  The  power  appears  to  me  es- 
sential to  a  court  of  appeal  in  the  last  re- 
sort, and  I  have  no  doubt  that  it  is  vested 
here. 

The  propriety  of  the  order  for  an  issue,  and 
of  this  court  proceeding  to  a  final  de- 
cree, are  questions  depending  on  the  nat- 
ure and  force  of  the  testimony.  It  is  true, 
5OO*]*that  in  some  specific  cases,  it  is  the  com- 
mon course  of  the  court  of  chancery  to  direct 
an  issue  at  law;  but  even  in  those  cases  it  de- 
pends on  the  practice  of  the  court  merely,  and 
and  the  chancellor  has  still  the  power  of  de- 
ciding for  himself,  without  an  issue.  In  gen- 
eral, the  ordering  of  issues  depends  on  the 
application  of  sound  legal  discretion  to  the 
circumstances  of  the  case.-  (2  Vez.,  42,  554; 
2  Atk.,  450,  295;  3  Atk.,  516;  2  Vez.,  56.)  It 
is  a  power  in  its  nature  indefinite,  and  inca- 
pable of  being  reduced  to  fixed  rules.  The 
chancellor  is,  constitutionally,  the  judge  both 
of  law  and  fact.  Whether  the  institution  of 
such  a  court  be  expedient  or  wise,  is  not  now 
the  subject  of  inquiry.  Its  power  is  estab- 
lished, and  the  trial  by  jury  is  there  unknown. 
However  excellent  that  mode  of  trial  may  be, 
it  is  not  the  right  of  any  party  seeking  his  re- 
medy in  that  court  to  demand  it.  It  ought 
regularly  to  proceed  from  the  chancellor  him- 
self, to  inform  his  own  conscience,  where  the 
evidence  is  insufficient  for  that  purpose;  and 
even  with  respect  to  him,  it  is  not  a  power  to 
be  exercised  at  pleasure,  and  depending  on  ar- 
bitrary discretion.  In  a  government  of  laws, 
no  such  discretion  can  exist,  and  although  no 
precise  rules  can  be  given,  it  is  sufficiently 
certain,  that  if  the  evidence  be  doubtful,  and 
from  the  nature  of  the  question,  or  from  the 
testimony  already  given,  it  appears  that  further 
lights  may  be  obtained,  it  would  then  be  prop- 
er to  require  further  proof;  and  the  chancellor 
may  direct  it  to  be  taken,  either  in  his  own 
court  by  new  examinations,  or  send  the  ques- 
tion for  trial  at  law.  But  on  the  other  hand, 
if  the  evidence  be  satisfactory  or  decisive  in 
favor  of  either  party,  the  rights  of  such  party 
ought  not  again  to  be  hazarded  before  another 
tribunal,  and  the  chancellor  ought  to  decide. 
Possessing  the  power,  it  would  become  his 
duty,  for  the  power  and  duty  of  a  court  are 
concurrent,  and  inseparable. 

On  the  subject  of  the  evidence,  I  shall  not 
trouble  the  court  with  many  remarks.  It  has 
been  discussed  for  several  days,  and  to  ex- 
amine it  in  all  its  parts,  might  occupy  our 
attention  as  many  more.  Every  member  must, 
5O1*1  I  *think,  have  formed  a  decided  opin- 
ion, without  much  difficulty.  With  respect 
402 


to  myself,  I  shall  only  say,  that  notwithstand- 
ing the  contrariety  of  some  of  the  witnesses, 
relative  to  the  fraud,  the  internal  circumstan- 
ces of  the  case,  and  the  conduct  of  all  the 
parties  concerned,  satisfactorily  show,  that  the 
pretended  fraud  could  not  exist.  The  natural 
course  of  the  transaction  speaks  invincibly, 
and  carries  to  my  mind  a  full  conviction.  If 
this  opinion  on  the  evidence  be  right,  the  order 
for  the  issue  was,  of  course,  improper.  The 
verdict  of  a  jury  cannot  enlighten,  but  if  con- 
trary to  the  evidence,  may  hereafter  embarrass 
the  cause.  It  cannot  possibly  be  of  use,  but 
must  be  injurious,  to  send  the  parties  through 
another  course  of  litigation,  and  finally,  per- 
haps, be  obliged  to  decide  between  them  under 
circumstances  less  favorable  to  truth  and  an 
equitable  result.  These  reasons  equally  apply 
to  induce  us  to  pronounce  a  final  decision  in 
the  cause.  Possessing  the  power,  I  think  it 
our  duty  to  exercise  it,  and  put  the  controversy 
at  rest.  I  am,  therefore,  of  opinion,  on  the 
several  grounds  I  have  mentioned,  that  the  or- 
der for  an  issue  ought  to  be  reversed,  and  the 
bill  of  the  respondents  be  directed  to  be  dis- 
missed. 

KENT,  J.  This  cause  presents  three  ques- 
tions for  the  consideration  of  the  court. 

1.  Does  the  judgment  at  law  in  favor  of  the 
appellant,  bar  the  respondents  from  maintain- 
ing their  present  suit? 

2.  If  not,  yet  was  this  a  case  proper  for  an 
issue  at  law? 

3.  If  an  issue  at  law  ought  not  to  have  been 
directed,  shall  this  court  now  finally  decide  be- 
tween the  parties,  the  merits  being  fully  before 
us,  and  if  so,  how  shall  we  decide? 

After  the  opinion  which  has  already  been 
delivered  (by  Mr.  Justice  Radcliff),  and  in 
which  I  concur,  it  might,  perhaps,  be  sufficient 
to  refer  generally  to  that  opinion,  as  expressive 
of  my  own.  But  in  a  cause  of  so  much  ex- 
pectation, and  of  so  much  magnitude  to  the 
parties,  it  may  not  be  altogether  useless  to  go 
over  the  same  ground,  and  briefly  to  declare 
my  own  view  01  the  subject. 

*1.  Every  person  is  bound  to  take  [*5O2 
care  of  his  own  rights,  and  to  vindicate  them 
in  due  season,  and  in  proper  order.  This  is  a 
sound  and  salutary  principle  of  law.  Ac- 
cordingly, if  a  defendant  having  the  means  of 
defence  in  his  power,  neglects  to  use  theni, 
and  suffers  a  recovery  to  be  had  against  him 

3  a  competent  tribunal,  he  is  forever  preclud 
.     (2   Burrows,  1009;  7   Term  Rep.,  269;  2 
Hen.  Black.,  414,  415.) 

The  only  cases  which  I  can  recollect,  as 
forming  exceptions  to  this  general  rule  are, 

1.  The  case  of  mutual  dealings  between  the 
parties,  where  the  defendant  omits  to  set  off 
his  counter  demand,  and  may  still  recover  it 
in  a  cross  action ;  and 

2.  The  case  of  an  ejectment,  in  which  the 
defendant  neglecting  to  bring  forward  his  title, 
is  not  precluded  by  the  recovery  against  him 
from  availing  himself  of  it  in  a  new  suit. 

The  general  rule  is  intended  to  prevent  liti- 
gation, and  to.  preserve  peace;  and  were  it 
otherwise,  men  would  never  know  when  they 
might  repose  with  security  on  the  decisions  of 
courts  of  justice;  and  judgments  solemnly  and 
deliberately  given,  might  cease  to  be  revered, 
JOHNSON'S  CASES,  1. 


1800 


Louis  LE  GUEN  v.  ISAAC  GOUVERNEUR  AND  PETER  KEMBLE. 


502 


as  being  no  longer  the  end  of  controversy  and 
the  evidence  of  right. 

The  principle  prevails  both  in  courts  of  law  ! 
and  of  equity.  In  bills  of  review  which  are 
brought  before  the  same  tribunal  to  review  a 
former  decree,  it  is  a  settled  maxim  of  equity, 
that  no  evidence  or  matter  in  the  knowledge 
of  the  party,  and  which  he  might  have  used  in 
the  former  suit,  shall  be  the  ground  of  a  bill 
of  review.  (3  Bl.  Com.  ,454;  1  Eq.,  Cas.  Abr., 
81;  pi.  4,  299;  2  Cas.  Abr.,  176;  2  Atk.,  178;  3 
Atk.,  35;  1  Vez.,  434;  3  P.  Wms.,  371.) 

"Unless  this  relief,"  says  Lord  Ch.  Talbot 
(3  P.  Wms.,  371),  "  was  confined  to  new  matter 
proved  to  have  been  discovered  since  the  trial, 
it  might  be  made  use  of  as  a  method  for  a  vex- 
atious person  to  be  oppressive,  and  for  the 
cause  never  to  be  at  rest."  "  A  notice  of  the 
5O3*]  matter,  even  to  the  party's  *counsel  or 
agent,"  observes  Lord  Hard wicke  (3  Atk.,  35), 
' '  is  notice  to  the  party,  and  sufficient  to  repel 
the  new  suit,  for  otherwise,  there  would  be  no 
end  of  suits." 

I  have  mentioned  the  observations  of  these 
great  men,  because  the  reason  of  the  rule  is 
laid  down  by  them  in  plain  terms,  and  receives 
the  more  authority,  as  coming  from  two  of  the 
most  distinguished  characters  that  have  presi- 
ded in  the  English  courts  of  equity. 

Not  only  bills  of  review  are  denied,  but,  in 
pursuance  of  the  same  principle,  a  court  of 
chancery  never  relieves  against  a  verdict  at 
law,  on  the  ground  of  its  being  contrary  to 
equity,  unless  the  defendant  below  was  ignor- 
ant of  the  fact  at  the  trial,  or  it  could  not  have 
been  admitted  as  a  defence.  (3  Atk.,  223;  1 
do.,  293;  Prec.  in  Chan.,  221;  2  P.  Wms.,  426; 
2  Washington's  Rep.,  258,  270,  272,  275.) 

This  being  the  general  doctrine  in  the  books, 
and  the  reason  of  it.  I  do  not  regard  any  soli- 
tary case  (2  Vern.,  147;  Prec.  in  Chan^,  233) 
that  may  be  found  to  the  contrary,  as  having 
any  force  to  shake  it.1 

It  remains  to  apply  these  principles  to  the 
present  case. 

The  suit  at  law  of  the  appellant  against  the 
respondents,  was  a  special  action  on  the  case, 
for  a  breach  of  their  duty  as  factors,  in  refus- 
ing to  elect  to  receive  the  amount  of  the  notes 
in  Europe,  and  to  give  the  appellant  the  requi- 
site authority  for  that  purpose.  In  conse- 
quence of  this  default  the  respondents  became, 
in  respect  to  the  extent  of  the  remedy,  substi- 
tuted in  the  place  of  Gomez,  Lopez  and  Ri- 
vera,  and  responsible  for  the  amount  of  the 
property.  The  breach  of  duty  reached  to  the 
whole  prqperty,  and  the  principal  had  a  right 
to  abandon  it  to  them,  and  to  regard  them  as 
appropriating  the  whole  to  themselves.  (Yelv. , 
202;  2  Mod.,  100;  12  Mod.,  515.)  This  was  the 
amount  of  the  decision  in  the  suit  at  law. 
5O4*]  *Placed  in  the  situation  of  Gomez, 
Lopez  and  Rivera,  and  subject  to  their  burden, 
the  respondents  took,  of  course,  their  advan- 
tages, and  succeeded  to  the  same  means  of  de- 
fence. This  is  an  universal  principle  of  law 
and  justice. 


1.— Equity  only  relieves  after  a  verdict  at  law, 
when  effectual  cognizance  cannot  be  taken  at  law, 
as  in  complicated  accounts,  or  where  a  verdict  is  ob- 
tained by  fraud,  &c.,  and  not  where  the  party  omit- 
ted to  avail  himself  of  his  legal  defence.  1  Schoales 
&  Lef  roy,  305. 

JOHNSON'S  CASES,  1. 


The  respondents  were,  accordingly,  compe- 
tent to  set  up  as  a  defence  in  the  suit  at  law, 
the  fraud  alleged  in  the  present  action,  and 
there  was  nothing  in  the  form  of  the  action 
which  precluded  them  from  doing  it. 

If  a  factor  neglects  to  make  insurance  for 
his  principal,  he  is  responsible  for  his  default, 
in  a  like  action  on  the  case.  Both  the  actions 
are  of  the  same  kind,  and  arising  ex  delicto. 
In  such  a  suit,  the  factor  may  set  up  fraud, 
deviation,  or  any  other  defence  which  the 
underwriter  could  have  made,  had  insurance 
been  effected.  (Wilkinxon  v.  Coverdale,  Park, 
303.)  This  is  a  case  sufficiently  analogous  to 
be  a  direct  authority  in  the  present  instance. 
The  respondents  were  sufficiently  apprised  of 
the  allegation  of  fraud,  and  that  it  was  con- 
templated by  Gomez,  Lopez  and  Rivera,  as  a 
defence  against  the  notes.  They  were  informed 
of  this  by  the  bill  previously  exhibited  by 
Gomez  and  Rivera  in  the  court  below,  against 
the  parties  in  the  present  suit,  stating  the 
charge  of  fraud  in  the  sale  of  the  goods.  This 
was  sufficient  to  put  the  respondents  on  inquiry; 
whereas  nothing  is  shown  from  which  we  can 
conclude  that  they  actually  made  any  inquiry, 
or  took  a  single  step  to  possess  themselves  of 
the  means  of  that  defence.  All  the  testimony 
now  produced  was,  for  anything  that  appears 
to  the  contrary,  equally  within  their  power 
then,  as  now,  and  yet  no  effort  was  made  to 
produce  it.  The  respondents  did  not  even  ask 
Gomez,  Lopez  and  Rivera  for  their  proofs,  or 
call  on  them,  as  they  had  a  right  to  do,  for 
their  own  indemnity  and  safety,  by  a  bill  of 
interpleader,  to  come  forward  and  make  good 
their  allegation.  (Mitford,  125.)  They  were 
guilty  of  gross  and  palpable  neglect,  in  thus 
slumbering  upon  this  ground  of  defence,  and 
must  now  be  precluded  from  setting  it  up  as  a 
cause  of  equitable  relief,  against  the  verdict. 
It  is  *crassa  negligentia,  if  a  party  does  [*5O5 
not  seek  after  a  thing  of  which  he  is  apprised, 
and  in  law  amounts  to  a  notice.  So  whatever 
is  sufficient  to  put  a  party  on  inquiry,  is  good 
notice  in  equity.  (2  Fonb.,  155.) 

If  I  am  not  mistaken  in  the  principles  which 
I  have  laid  down,  their  application  to  the  case 
before  us  is  direct  and  "  pointed,  and  they 
operate  with  irresistible  and  conclusive  ef- 
ficacy to  produce  this  result. 

The  attention  of  the  respondents  upon  the 
trial  at  law,  was,  no  doubt,  occupied  in  de- 
fending themselves  on  another  ground,  and, 
probably,  they  concluded  that  the  ground 
which  they  took  was  stable  and  competent. 
This,  however,  makes  no  difference  in  the 
case.  The  law  imposes  it  on  every  man  to 
know,  at  his  peril,  the  strength  of  his  claim, 
and  the  soundness  and  extent  of  his  defence. 
It  indulges  him  even  to  make  as  many  separate 
pleas  or  kinds  of  defence  as  he  may  deem 
material,  provided  it  be  done  in  due  season. 
In  the  instance  before  us,  there  can  be  no  just 
pretext  for  surprise.  The  respondents  had 
sufficient  knowledge  of  the  charge  of  fraud, 
and  had  they  made,  as  they  were  bound  to  do, 
due  inquiry  and  ordinary  efforts,  they  could 
have  obtained  the  proofs.  But  they  had  chosen 
to  abide  by  one  species  of  defence,  and  to 
waive  another,  and  like  other  litigants  in 
similar  cases,  they  must  be  concluded  by  their 
election. 

403 


505 


COURT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1800 


I  am,  accordingly,  of  opinion,  on  the  first 
point,  that  the  bill  ought  to  have  been  dis- 
missed, and,  consequently,  that  the  decree  is 
wrong. 

This  opinion,  if  correct,  puts  an  end  to  the 
cause.  But  as  other  members  of  the  court 
may,  perhaps,  think  differently  on  this  point, 
I  am  willing  briefly  to  examine  the  other  ques- 
tions which  have  been  raised  and  submitted 
for  consideration. 

2.  The  second  point  stated  is  this ;  supposing 
the  respondents  not  precluded  by  the  judge- 
ment at  law,  was  it  proper,  in  this  case,  to 
have  ordered  an  issue  to  be  tried  by  a  jury? 
pOG*]  *The  question  on  the  order  for  an 
issue,  I  consider  regularly  before  us,  as  the 
decree  in  the  month  of  May,  declaring  that  the 
respondents  were  not  barred,  and  from  which 
the  appellant  has  appealed,  repeated  and  con- 
firmed the  order  for  an  issue,  which  had  been 
previously,  but  conditionally  given,  and  the 
chancellor  in  assigning  his  reasons,  and  the 
counsel  in  their  argument,  have  considered  that 
order  as  open  for  examination  in  this  court. 

It  is  the  undoubted  jurisdiction  of  the  Court 
of  Chancery  to  decide  both  on  the  law  and  on 
the  fact.  This  power  it  has  always  possesed 
and  exercised.  But  in  cases  of  doubt  and 
difficulty,  that  court  is  in  the  habit  of 
calling  for  aid  and  information  from  abroad. 
If  an  important  question  of  law  arises  in 
the  course,  of  the  cause  before  the  Court  of 
Chancery  in  England,  it  is  the  practice  of 
that  court  to  ask  for  assistance  from  the 
courts  of  law,  either  by  associating  one 
or  more  of  the  judges  with  the  chancellor,  in 
the  hearing  of  the  cause,  or  what  is  more 
usual,  by  stating  a  case  and  directing  it  to  be 
argued  in  one  of  the  courts  of  law,  and  to  be 
returned  with  a  certificate  of  the  opinion  of  the 
court  on  the  question  submitted.  This  opinion 
when  received  is  merely  for  information,  and 
the  chancellor  may  or  may  not  follow  it,  as 
he,  upon  consideration,  shall  deem  meet.  (2 
Vesey,  Jun.,  528,  529.)  It  is  in  like  manner 
the  practice  of  that  court,  and  of  our  court  of 
chancery  also,  to  apply  for  aid  to  the  courts  of 
common  law  when  the  truth  of  the  fact 
litigated  is  doubtful,  and  attended  with  difficul- 
ties. This  the  court  does,  not  by  asking  the 
opinion  of  the  court  of  law,  but  by  directing  a 
feigned  issue  to  be  tried  by  a  jury.  And  the 
verdict  of  a  jury  upon  the  fact,  like  the  opin- 
ion of  the  judges  upon  the  law,  is  merely  to 
inform,  and  not  to  control  the  judgment  of 
the  court  of  equity  upon  the  question  before 
it.  It  will  be  easy,  therefore,  to  perceive,  that 
ordering  an  issue  must  always  depend  upon 
sound  discretion,  to  be  cautiously  and  diligently 
exercised,  according  to  the  circumstances  of 
each  particular  case.  Instances  are  common  in 
which  the  Court  of  Chancery  has  decided  for  it- 
5O7*]  self  in  the  first  instance,  although  *there 
was  evidence  of  weight  on  both  sides.  (2 
Atk.,  295;  2  Vesey,  256';  Barnad.  Ch.  Rep.  100; 
Colles's  Cases,  49.)  And  where  an  issue  has 
been  ordered,  the  House  of  Lords,  in  equity, 
have  frequently  on  appeal  reversed  the  order, 
because  the  truth  of  the  fact  was  sufficiently 
ascertained  without  it,  and,  sometimes,  where 
one  or  more  verdicts  have  been  actually  taken, 
it  has  decided  the  cause  in  opposition  to  them. 
(1  Bro.  P.  C.,  58.) 
404 


If  the  testimony  be  so  contradictory,  as  that 
the  truth  cannot  be  discovered  with  certainty 
and  it  becomes  requisite  to  judge  merely  on 
the  credibility  of  witnesses,  such  an  instance 
presents  a  case  very  proper  and  necessary  for 
an  issue  at  law.  But  in  the  present  case,  I 
perceive  no  difficulty,  and  of  course  think 
there  was  no  necessity  for  a  jury.  We  can 
decide  upon  "the  allegation  of  fraud  with  great 
certainty;  and  indeed  the  testimony  never  could 
have  authorized  and  supported  "a  verdict  in 
favor  of  the  respondents.  This  cause,  then, 
ought  to  have  been  decided  in  the  court  below, 
without  the  useless  delay  and  expense  of  a  trial 
at  law. 

3.  This  brings  me  to  consider  the  third  ques- 
tion in  the  case,  viz. :  that  having  the  merits 
before  us,  shall  we  not  decide  finally  between 
the  parties? 

I  cannot  bring  my  mind  to  doubt  of  the 
authority  of  this  court.  It  is  the  settled  rule 
of  the  House  of  Lords,  in  England,  upon  ap- 
peals, always  to  give  such  a  decree  as  the  court 
below  ought  to  have  given.  This  is  the  great 
and  leading  maxim  in  their  system  of  appellate 
jurisprudence,  and  instances  are,  accordingly, 
very  frequent,  in  which  the  lords,  on  appeals 
from  interlocutory  orders  in  chancery,  have 
reversed  the  order,  and  decided  finally  on  the 
merits.  (1  P.  Wms.,  673;  1  Woodd.,  232,  240, 
241;  1  Bro.  P.  C.,  58;  2  Bro.  P.  C.,  408;  3  Bro. 
P.  C.,  183,  186;  4  Bro.  P.  C.,  575,  582;  5  Bro. 
P.  C.,  454,  487;  6  Bro.  P.  C.,  469;  7  Bro.  P. 
C.,  222,  423.) 

Their  power  on  appeals  is  exercised  with 
great  latitude  in  dismissing  the  bill,  or  model- 
ling the  relief,  or  granting  *it  con-  [*5O8 
ditionally,  as  may. best  answer  the  ends  of 
justice,  and  the  exigencies  of  the  case. 

Our  system  of  jurisprudence  is  borrowed 
from  the  English  system,  and  in  all  its  great 
outlines,  as  well  as  in  its  subordinate  parts,  is 
happily  modelled  after  that  admirable  monu- 
ment of  the  experience  and  wisdom  of  ages. 
.Without  some  very  explicit  and  peremptory 
limitation,  imposed  by  statute,  I  should  have 
concluded,  as  a  matter  of  course,  that  this 
court  possessed  appellate  powers,  correspond- 
ing with  the  jurisdiction  of  the  House  of  Lords; 
I  am  presuaded  that  it  was  the  intent  of  the 
act  instituting  this  court,  to  give  us  the  same 
ample  and  uncircumscribed  authorities,  for  we 
are  "  authorized  and  required,  on  appeals  from 
any  decree  or  order  of  the  Court  of  Chancery, 
finally  to  determine  the  same,  and  all  matters 
concerning  it;  and  to  reverse,  affirm,  or  alter 
the  decree  or  order,  and  to  make  such  other 
decree  or  order  therein,  as  equity  or  justice 
shall  require." 

The  law,  in  the  light  in  which  I  view  it,  ap- 
pears to  be  a  wise  and  salutary  provision.  No 
person  doubts,  but  that  an  appeal  will  lie  upon 
an  interlocutory  order  of  the  Court  of  Chancery 
directing  an  issue.  Upon  such  an  appeal,  the 
whole  testimony,  and  the  whole  merits  must 
come  up.  The  cause  must  have  been  ripe  for 
hearing,  and  the  chancellor  must  have  heard 
it,  and  have  carefully  examined  the  proofs, 
before  he  could  have  determined  that  the 
testimony  raised  such  doubts  m  his  mind  as 
to  render  it  fit  in  him  to  waive  his  own  un- 
doubted right  to  decide  on  the  facts,  and  to 
send  the  parties  to  another  forum  for  trial. 
JOHNSON'S  CASES,  1. 


1800 


Louis  LE  GUEN  v.  ISAAC  GOUVERNEUR  AND  PETER  KEMBLE. 


508 


Upon  the  appeal  the  court  must  likewise  re- 
view the  whole  merits;  it  must,  in  fact,  decide 
on  the  merits,  before  it  can  judge  of  the  fitness 
or  untitness  of  the  order  for  an  issue ;  and  if 
it  should  be  of  opinion  that  the  cause  was  too 
clear  to  admit  of  a  reasonable  doubt,  and  yet 
was  under  the  necessity  of  remanding  it,  to 
receive  the  ceremony  of  a  previous  decision  in 
the  court  below,  it  would  answer  no  other  pur- 
pose, but  to  maintain  for  a  year  longer,  an 
irritating  litigation.  It  would  be  sending  the 
5O9*]  *cause  back  upon  a  fruitless  and  op- 
pressive errand,  and  when  it  returns,  at  the  end 
of  the  year,  with  the  parties  more  angry  and 
more  exhausted,  and,  with  a  large  accumula- 
tion of  expense  and  vexation,  it  must  terminate 
in  the  same  result  then,  as  it  ought  to  now.  I 
can  hardly  persuade  myself  that  the  construc- 
tion of  our  law  can  be  a  reasonable  one,  which 
requires  such  a  nugatory  act,  and  which  leads 
to  consequences  so  mischievous. 

Possessing  the  authority  to  decide  finally,  I 
think  we  ought  to  exercise  it  in  this  instance. 
I  assume  it  as  a  fact,  and  one  on  which  we  are 
bound  judicially  to  act,  that  all  the  proofs  are 
before  us;  that  no  new  or  further  proof  is 
behind  and  since  discovered;  that  the  cause  is 
as  ripe  here  as  it  was  in  the  court  below,  for 
ultimate  decision;  and  if  we  are  persuaded  in 
our  own  minds,  that  the  facts  before  us  can 
never  support  the  allegation  of  fraud,  we 
ought  to  say  so,  and  put  an  end  to  the  conten- 
tion. 

I  have  thus  carefully  examined  all  the  ques- 
tions of  law  which  have  arisen  in  the  course 
of  the  cause.  I  forbear  to  recapitulate  the 
facts.  They  must  be  familiar  to  every  mem- 
ber of  this  court,  and  every  member  of  the 
court  is  as  competent  to  judge  of  those  facts  as 
myself.  I  will  only  observe,  that  in  viewing 
the  written  documents,  and  examining  the 
intrinsic  circumstances  and  internal  evidence 
of  the  transaction,  the  truth  strikes  my  mind 
with  great  clearness  and  force.  The  whole 
complicated  charge  of  fraud  appears  to  me  to 
be  absurd,  inconsistent  and  incredible;  and  I 
should  never  be  brought  to  yield  my  con- 
victions to  any  verdict  that  might  happen  to 
establish  it,  with  such  slight  materials,  and  on 
so  frail  a  foundation. 

My  opinion,  therefore  is,  on  the  merits  as 
well  as  on  the  first  point  of  law,  that  the 
decree  of  the  Court  of  Chancery  ought  to  be 
reversed  and  the  bill  dismissed. 

BENSON,  J.,  was  of  the  same  opinion. 

LEWIS,  J.,  was  of  opinion  that  the  decree 
ought  to  be  affirmed. 

51O*]  *LANSING,  Ch.  J.  The  questions 
which  have  been  raised  in  the  argument  of  this 
cause,  are, 

1.  Whether  the  respondents  are  now  pre- 
cluded from  insisting  on  the  fraud,  admitting 
that  it  had  been  practiced? 

2.  Whether  the  preponderancy  of  proof,  on 
either  side,  was  such  as  to  impose  it  on  the 
Chancellor  to  determine  between  the  parties, 
without  seeking  to  inform  his  conscience  by 
awarding  an  issue? 

3.  Whether  this  court,  being  possessed  of 
JOHNSON'S  CASES,  1. 


the  cause,  on  an  appeal  from  an  interlocutory 
order,  can  decide  finally? 

The  general  principle  that  a  point  deter- 
mined by  a  court  of  competent  jurisdiction, 
shall  be  conclusive  against  all  parties  who 
were  in  a  situation  to  controvert  it,  is  so  well 
established  as  to  leave  no  doubt  in  my  mind. 
The  reasons  which  have  already  been  given 
are  such,  as  in  my  opinion  are  sound,  and 
clearly  establish  both  the  legality  and  the 
utility  of  the  rule. 

The  respondents  were  sued  for  witholding 
the  production  of  the  sales  of  certain  quanti- 
ties of  cotton  and  indigo  from  the  appellant, 
who  had  entrusted  them  with  the  disposition 
of  those  commodities,  as  his  factors,  and  a 
judgment  was  rendered  against  them  for  the 
amount  of  the  value  ascertained  by  the  con- 
tract of  sale.  The  cotton  and  indigo,  now  the 
subject  of  controversy,  are  the  same  which 
the  respondents  in  the  former  action  had  with- 
held. 

As  fraud  vitiates  every  contract,  and  as,  if 
the  fraud  was  actually  committed,  it  was  com- 
petent to  the  respondents  to  have  shown  it,  in 
destruction  of,  or  in  mitigation  of  damages  in 
that  action,  the  strict  rule  of  law  would,  as 
they  neglected  the  opportunity,  preclude  them 
from  alleging  it  now,  as  a  reason  for  opening 
the  question;  for  if  the  respondents  could 
have  shown  that  they  were  precluded  on 
account  of  the  fraud,  from  recovering  the 
whole  or  any  part  of  the  amount  of  the  sales 
from  Gomez,  Lopez  and  Rivera,  they  would 
have  *been  permitted  to  avail  them-  [*511 
selves  of  that  circumstance,  at  least  to  vary 
the  measure  of  damages,  and  it  is  not  now 
contended  that  it  ought  to  have  a  different 
effect.  There  are,  however,  points  in  this 
cause  which  would  incline  my  mind  to  con- 
sider this  as  an  exception  to  the  general  rule. 
The  object  to  which  the  attention  of  the  par- 
ties was  exclusively  drawn  in  the  former 
action  was  the  substitution.  It  appears  that 
though  there  was  some  notice  that  a  fraud  of 
this  kind  was  attributed  to  the  appellant,  the 
charge  was  not  matured.  The  facts  on  which 
the  evidence  of  its  existence  rested,  were  dis- 
covered in  Europe.  The  knowledge  of  that 
evidence,  it  appears,  was,  in  a  great  measure, 
confined  to  Gomez,  Lopez  and  Rivera,  and 
their  agents.  The  knowledge  of  the  respond- 
ents, as  acquired  from  their  own  observation, 
did  not  extend  to  it.  The  positive  denial  of 
the  appellant  that  it  had  existed,  must  have 
confirmed  them  in  the  opinion  that  the  impu- 
tation was  unfounded;  and  this  denial  must, 
if  fraud  existed,  have  been  an  unwarrantable 
artifice,  calculated  to  confirm  the  respondents 
in  the  impressions  they  had  received  from 
their  own  observations;  and  though  I  cannot 
admit  that  a  new  principle  was  devised  to 
govern  the  former  case,  the  result  of  the  trial, 
it  was  obvious,  operated  as  a  surprise  on  the 
respondents;  and  if  a  fraud  had  been  commit- 
ted, the  appellant's  measures  for  concealment 
were  persevered  in  to  the  last  moment.  All 
these  circumstances  would  have  mingled  in 
the  consideration  of  the  court,  if  an  applica- 
tion had  been  made  for  a  new  trial.  I  think 
these  considerations  may  well  operate  to  con- 
stitute this  case  an  exception  to  the  general 
rule;  but  from  my  impressions  as  to  the  sec- 

405 


511 


COURT  OK  ERRORS,  STATE  OF  NEW  YORK. 


1800 


ond  question,  a  determination  of  the  first  is 
not  essential  to  a  decision  on  the  merits  of  this 
appeal. 

Having  examined  the  answers  of  the  par- 
ties, the  depositions,  letters  and  other  papers 
exhibited  in  the  cause,  I  am  fully  persuaded 
that  the  allegation  of  fraud  is  totally  unsup- 
ported; that  it  cannot  consist  with  the  rela- 
tions of  the  witnesses  produced  to  support  it, 
1512*]  and  that  in  every  stage  of  *the  transac- 
tion it  carries  its  own  refutation  with  it. 
I  have,  therefore,  no  hesitation  in  saying  that 
I  am  perfectly  convinced  that  no  fraud  existed. 

With  this  general  declaration  I  had  intended 
to  dismiss  this  part  of  the  subject,  as  it  is  a 
question  of  fact  not  involving  any  legal  prin- 
ciples and,  therefore,  not  peculiarly  my  duty 
to  enter  into  a  discussion  of  it,  and  as  every 
member  of  this  court  has  had  an  opportunity 
of  examining  and  determining  for  himself; 
but  as  a  difference  in  opinion  exists,  on  the 
nature  of  the  evidence,  and  as  some  members 
of  the  court  may  consider  it  as  of  that  doubt- 
ful complexion  which  may  render  it  a  fit  sub- 
ject for  the  determination  of  a  jury,  it  is  prop- 
er, as  explanatory  of  the  general  conclusion 
I  have  drawn  from  the  evidence  and  from  a 
respect  to  the  opinion  of  those  gentlemen  with 
whom  I  differ,  in  a  cursory  manner,  to  state 
the  impressions  the  several  parts  of  the  testi- 
mony have  made  on  my  mind.  It  may,  how- 
ever, not  be  amiss  to  premise  that  whether  the 
warranty  was  promised  to  be  reduced  to  writ- 
ing, whether  it  was  actually  so  reduced  or 
whether  it  depended  on  a  verbal  allegation 
that  the  commodities  sold  were  of  a  particular 
description,  would  not  materially  vary  the 
result.  Fraud  might  be  inferred  by  a  less 
direct  process,  or  less  certain  data,  and  the 
evidence  of  its  existence  might,  from  those 
circumstances,  be  susceptible  of  a  different 
modification;  but  the  fact  being  once  estab- 
lished that  the  sale  was  fraudulent,  it  would, 
in  any  of  those  cases,  as  effectually  destroy 
the  benefits  acquired  by  the  party  guilty  of  the 
fraud,  as  if  the  warranty  was  reduced  to  writ- 
ing. The  evidence,  therefore,  respecting  the 
warranty  is  no  further  material  than  as  it 
affords  a  mean  to  test  the  consistency  of  the 
witnesses  in  giving  their  testimony  relative 
to  it. 

Hester  Gomez  and  Mary  Wright  testify  that 
in  several  conversations  the  appellant  asserted 
that  the  cotton  was  of  the  growth  of  the  Isle 
of  France,  and  the  indigo  to  be  of  two  quali- 
ties, Flotang  and  Violet  Copper. 

Abraham  Massias  gives  the  same  relation  as 
to  the  allegation  of  the  appellant,  and  adds  that 
513*]  Gomez,  Lopez  and  *Rivera,  wished  to 
delay  the  conclusion  of  the  bargain  for  a  few 
days,  for  the  purpose  of  examining  the  arti- 
cles; that  the  appellant  objected  to  delay 
because  the  drawback  would  be  lost,  and 
offered,  by  way  of  obviating  the  difficulty,  to 
warrant  the  quality  of  the  articles.  With 
this  relation  the  deposition  of  Samuel  Lopez 
corresponds. 

Without  resorting  to  the  testimony  of  the 
witnesses,  with  whom  they  have  been  particu- 
larly contrasted,  I  shall  proceed  to  examine 
the  other  evidence  in  the  cause. 

It  appears  that  an  advertisement  was  pub- 
lished by  Gouverneur  &  Kemble.  describ- 
406 


ing  the  cotton  as  Amoude,  which  is  the 
best  kind  of  Surat  cotton;  that  this  was  con- 
tinued for  a  considerable  time  ;  that  after  the 
intermission  of  a  few  weeks,  another  adver- 
tisement was  published  by  them,  offering  the 
cotton  for  sale,  and  as  affording  a  great  spec- 
ulation for  France. 

Some  time,after  the  publication  of  the  sec- 
ond advertisement,  the  respondents  informed 
the  appellant  that  an  offer  had  been  made  for 
the  cotton  at  three  shillings  a  pound,  by  three 
persons. 

William  Dickson,  a  person  conversant  with 
cotton,  declares,  that  in  February,  1795,  he 
offered  three  shillings  and  six  pence  for  the 
cotton,  and  eighteen  shillings  for  the  indigo, 
for  a  person  who  had  freighted  his  ship,  the 
Astrea,  but  that  it  was  refused,  because  suffi- 
cient money  could  not  be  paid  down,  and 
because  the  appellant  insisted  on  retaining  the 
drawback;  that  he  had  before  examined  the 
cotton  in  bales,  and  saw  some  of  the  boxes  of 
indigo  opened  long  before  the  offer  to  pur- 
chase. 

Whether  the  offer  alluded  to  in  the  respond- 
ents' letter  was  that  of  Gomez,  Lopez  and 
Rivera,  or  of  three  other  persons,  is  of  little 
importance.  The  offer  must  have  been  made 
from  the  inspection  of  the  bales,  or  samples 
furnished,  or  representations  made  by  the 
respondents,  and  if  those  samples,  or  repre- 
sentations, or  that  inspection,  dictated  the 
offer  of  three  shillings  a  pound,  it  is  a  strange 
argument  that  the  representation  of  the 
respondents  and  *bf  the  appellant  [*514 
must  have  been  of  the  same  import,  or  that 
the  quality  of  the  cotton  corresponded  with 
the  description  given  of  it  by  the  appellant, 
or  they  could  never  have  produced  similar 
effects,  for  the  price  of  Isle  of  France  cotton, 
compared  to  that  of  Surat,  we  find,  by  the 
concurrent  testimony  of  all  the  witnesses,  to 
be  in  the  proportion  of  nearly  two  to  one, 
during  all  the  fluctuation  of  the  prices  of 
those  articles. 

Two  or  three  witnesses  swear,  and  respect- 
ing this  there  appears  to  be  no  controversy, 
that  the  mode  of  packing  of  the  Surat  cotton  is 
essentially  different  from  that  of  the  Isle  of 
France;  that  it  is  so  striking  to  persons  con- 
versant in  the  trade  in  that  commodity,  as  to 
enable  them  to  determine  of  which  of  these 
two  places  it  is  the  production,  merely  from 
the  external  appearance  of  the  bales. 

If  Massias  and  Samuel  Lopez  are  to  be 
credited,  the  attention  of  Gomez,  Lopez  and 
Rivera,  was  early  awakened  to  the  quality 
of  the  articles  they  intended  to  purchase. 
They  wished  to  delay  the  contract  a  few  days, 
to  enable  them  to  have  a  particular  examina- 
tion made  before  they  closed  it,  and  one  of 
them  describes  the  particular  object  they  had 
in  view  in  requesting  the  delay;  the  expecta- 
tion that  a  person  in  whose  skill  they  had 
confidence,  would  arrive  from  Philadelphia. 
The  contract  describes  the  articles  sold,  as 
upwards  of  600  bales  of  cotton,  and  about 
12,000  weight  of  indigo;  but  from  the  ac- 
counts of  sales  rendered  by  the  respondents, 
I  it  appeared  that  the  quantity  of  each  was  accu- 
rately ascertained,  by  weighing  them  before 
they  were  shipped,  during  which  process, 
another  opportunity  was  afforded  for  inspect- 
JOHNSON'S  CASES,  1. 


1800 


Louis  LE  GUEN  v.  ISAAC  GOUVERNEUR  AND  PETER  KEMBLE. 


514 


ing  them,  better  than  could  possibly  have 
been  had  during  the  time  they  remained  in 
store.  If  the  fraud  was  really  practiced,  as 
alleged,  abundant  means  were  presented  for 
detection,  especially  as  the  indications  of  a 
different  quality  from  the  production  of  the 
Isle  of  France  were  so  discernible.  But  to 
this  it  is  answered,  that  Gomez,  Lopez  and 
Rivera  depended  upon  the  warranty  with  im- 
plicit confidence.  JVIassias,  however,  testifies 
that  the  omission  of  it  in  the  contract  was 
515*]  discovered  ^several  days  before  the 
vessel  sailed,  and  that  application  was 
made  to  the  appellant  to  insert  it;  that  he  de- 
clined, alleging  the  difference  which  subsisted 
between  him  and  the  respondents,  as  a  reason 
for  not  correcting  the  omission.  It  does  not 
appear  that  any  application  was  made  to  the 
respondents  on  the  subject,  though  it  was  well 
knpwn  that  they  had  entered  into  the  written 
contract,  and  retained  it  in  their  hands;  and 
Massias  states  that  very  detention  as  a  circum- 
stance that  led  to  the  discovery,  as  the  respon- 
dents declined  furnishing  the  appellant  with  a 
copy  of  the  contract. 

These  circumstances  are  of  a  nature  not 
easily  to  command  a  tolerable  share  of  credit. 
That  Gomez,  Lopez  and  Rivera  should  be 
disposed  to  delay  a  contract  of  such  immense 
importance  to  them,  for  the  purpose  of  taking 
so  common  a  precaution  as  to  procure  a  skilful 
person  to  inspect  the  commodities  they  intend- 
ed to  purchase,  has  nothing  extraordinary  in 
it;  but  that  they  should  be  totally  diverted 
from  that  object  by  the  stipulation  for  a  war- 
ranty by  a  stranger,  and  to  forget  to  exact  the 
evidence  of  his  having  made  it,  is  so  repugnant 
to  the  ordinary  mode  of  conducting  business, 
as  to  require  a  more  satisfactory  account  than 
the  witnesses  produced  have  given. 

All  the  witnesses  who  attest  to  the  prices 
are  persons,  as  far  as  we  know,  of  unim- 
peached  characters,  excepting  so  far  as  the 
matters  they  relate  may  detract  from  their 
credibility. 

They  state  that  the  prices  of  cotton  of  the 
production  of  the  Isle  of  France,  to  be  about 
double  to  that  of  Surat.  Four  witnesses  swear 
that,  during  the  year  1795,  the  prices  of  Isle  of 
France  cotton  were  from  5s.  to  6s.  a  pound, 
and  St.  Dominigo  from  2s.  6d.  to  3s.  3d. 

Mr.  Murray  alone  mentions  the  Isle  of 
France  cotton  to  be,  in  the  spring  of  1795,  at 
3*.  and  Surat  at  Is.  10r7.  a  pound.  This  varies 
the  proportion  of  the  prices  in  some  degree. 

I  can  have  no  doubt,  from  this  view  of  the 
proof,  that  Surat  cotton  was  worth,  estima- 
516*]  ting  it  at  the  market  price,  *about  3s. 
a  pound,  in  the  month  of  April,  as  there  is  no 
proof  of  a  reduction  in  the  price  of  that  article 
before  that  time. 

The  indigo,  in  my  apprehension,  affords, 
from  the  course  of  the  transaction,  equally 
strong  evidence  that  what  was  testified  with 
respect  to  the  warranty,  and  the  circumstan- 
ces attending  the  deception,  alleged  to  be 
practiced  in  its  sale,  is  equally  unfounded. 

The  indigo  was  put  up  at  the  Isle  of  France, 
at  least  before  it  was  shipped  at  that  place  on 
board  the  Cleopatra.  It  is  not  pretended 
that  the  packages  in  which  it  was  imported 
were  changed  ;  if  they  were,  as  it  is  clearly  in 
proof  that  immediately  upon  its  arrival  it  was 
JOHNSOK'S  CASES,  1. 


committed  to  the  care  of  the  respondents,  it 
must  have  been  done  with  their  privity,  or 
under  their  direction.  This  also  is  not  pre- 
tended; but  Isaac  Gomez,  whose  correctness 
or  integrity  has  not  been  questioned,  and  who 
does  not  appear  to  have  any  connection  with 
the  parties,  or  the  matters  in  controversy, 
declares  that  he  examined  the  indigo  in  1794  ; 
that  he  discovered  it,  as  far  as  he  had  exam- 
ined, to  consist  of  three  qualities,  which  he 
valued  at  8s.,  10s.,  and  12s.  a  pound,  and  that 
the  appellant  interrupted  his  examination  be- 
fore he  had  gone  through  the  whole.  Massias 
and  Samuel  Lopez  declare,  that  upon  the 
opening  of  the  indigo,  it  was  discovered  that 
there  was  a  layer  of  good  indigo,  correspond- 
ing with  the  samples,  on  the  top  of  the  boxes 
and  casks,  and  that  the  remainder  was  of  an 
inferior  quality.  If,  however,  the  indigo  was 
not  repacked,  the  same  surfaces  must  have 
been  presented  which  were  prepared  in  the 
Isle  of  France,  and  exhibited  in  New  York, 
and  hence  the  deception  must  at  least  have 
continued  till  the  arrival  of  the  indigo  at 
London;  but  we  find,  though  the  selection  of 
samples  was  made  with  so  little  attention  as 
not  to  have  attracted  the  particular  notice  of 
Massias  or  Samuel  Lopez,  that  they  were  of  four 
or  five  different  qualities.  Messias  says  posi- 
tively that  there  were  five. 

*If  these  samples  had  been  taken  [*517 
from  the  surface,  the  indigo,  in  the  interior 
parts  of  the  packages,  must  at  least  have  pro- 
duced an  additional  kind,  respecting  which 
both  those  witnesses  are  silent.  If  they  had 
gone  below  the  surface,  the  persons  engaged 
in  the  selection  of  the  samples  must  have  dis- 
covered the  deception,  the  instant  they  pene- 
trated to  that  of  an  inferior  quality. 

If  it  had  been  so  discovered,  it  is  not  possi- 
ble that  Gomez,  so  materially  affected  in  his 
interest  by  the  fraud,  would  have  remained 
silent  on  the  subject;  but  that  he  advised  his 
partners  of  it  from  London,  has  not  even  been 
suggested. 

Isaac  Gomez,  Jun.,  in  his  letters  to  Gomez  & 
Lopez,  from  Hamburg,  stated  that  .the  mar- 
kets were  low  at  that  place;  that  though  there 
were  imaginary  prices,  "there  were  no  pur- 
chasers; that  London  afforded  the  best  mar- 
ket, but  that  at  Hamburg  he  must  sustain  a 
loss  of  60  per  cent,  on  the  adventure. 

In  his  letter  of  the  21st  of  September,  from 
London,  the  amount  of  loss  is  not  stated,  but 
it  is  said,  there  is  an  appearance  of  great  loss. 
If  this  observation  applied  to  the  real  quality 
of  the  cotton,  Surat,  his  statement  was  correct, 
that  a  heavy  loss  was  probable;  but  if  it  ap- 
plied to  cotton  of  the  production  of  the  Isle  of 
France,  all  the  proof  we  have  in  the  cause 
leads  to  the  conclusion,  that  instead  of  a  con- 
siderable loss,  it  must  have  yielded  a  handsome 
profit.  The  conclusion,  to  my  mind,  is  irre- 
sistible, that  Gomez  knew  the  quality  of  the 
cotton,  before  the  21st  day  of  September,  the 
date  of  his  first  letter  from  London.  Massias 
and  Samuel  Lopez  concur,  that  the  discovery 
was  first  made  on  the  production  of  the  sam- 
ples to  Smith  &  Atkinson,  at  London. 

An  argument  made  use  of  by  one  of  the 
counsel  on  the  part  of  the  appellant,  appeared 
to  me  to  have  great  weight;  and  that  was,  that 
if  the  fraud  was  contemplated  in  India,  and 

407 


517 


COURT  OP  ERRORS,  STATE  OF  NEW  YORK. 


1800 


the  packages  deliberately  prepared  for  the  ex- 
press purpose  of  deception,  the  warranty  attrib- 
uted to  the  appellant  must  unavoidably  operate 
518*]  to  defeat  the  purpose,  *and  expose  the 
appellant  to  inevitable  detection,  without  a  pos- 
sibility of  being  benefited  by  it,  and  the  con- 
sequences of  a  detection  would  more  immedi- 
ately attach  to  him,  as  it  was  not  doubted  but 
he  was  sincere  in  his  intention  to  follow  the 
cargo  to  its  port  of  delivery.  These  could  not 
well  consist  together,  unless  we  suppose  the 
appellant  to  be  as  ignorant  as  the  witnesses 
represent  him  to  be  artful  and  designing. 

It  appears  that  Isaac  Gomez,  Jun.,  arrived  in 
London  some  time  in  the  month  of  September, 
1795;  that  on  the  21st  of  that  month  he  wrote 
a  letter  to  Moses  Lopez,  in  which  he  expresses, 
in  very  strong  terms,  the  concern  he  felt  on 
account  of  the  ruinous  consequences  of  the 
speculation;  proposes  to  devise  expedients,  by 
repeated  investments,  to  replace  the  loss, 
but  gives  not  the  remotest  intimation  of  a 
fraud,  nor  does  the  possibility  of  repelling  the 
effects  of  the  imposition  appear  to  be  contem- 
plated as  a  resource  to  avert  the  ruin  he  seems 
so  solicitious  to  avoid. 

Tested  by  these  circumstances,  the  relations 
given  by  the  witnesses  on  the  part  of  the  re- 
spondents, have  little  weight  with  me;  nor  is 
it,  in  my  opinion,  necessary,  in  order  to  dis- 
credit them,  to  call  in  the  aid  of  the  testimony 
given  on  the  part  of  the  appellant.  If  no  wit- 
nesses had  been  examined  on  his  part,  I  should 
not  have  been  able  to  resist  the  conviction 
which  the  mere  circumstances  I  have  cur- 
sorily mentioned  impress  on  my  mind. 

There  is  another  point  of  light  in  which  this 
matter  may  be  considered,  and  which  would 
direct  my  mind  to  the  same  conclusion,  if 
those  circumstances  were  less  strong,  and  that 
is  the  oath  of  Moses  Lopez. 

The  association  of  several  persons  for  com- 
mercial purposes,  is  derived  to  us  from  the 
law  of  merchants.  It  supposes  a  unity  of 
persons  and  a  unity  of  interests,  represented 
by  the  name  which  they  elect  to  designate 
their  firm.  It  is  evident,  that  with  a  set  of 
men  so  associated,  the  dictates  of  policy  and 
justice  must,  of  necessity,  require,  that  the  act 
519*]  of  every  copartner  of  the  firm,  in  *all 
matters  relating  to  their  common  concerns, 
should  be  considered  as  the  act  of  the  whole. 
If  that  were  not  the  case  collusive  separa- 
tions, or  artful  appearances  of  enmity  might 
be  held  out  to  serve  their  purposes,  at  the  ex- 
pense of  those  with  whom  they  had  dealings. 
This  unity  of  persons  and  of  interests,  and  all 
the  consequences  derived  from  that  doctrine, 
they  are  strictly  and  rigorously  held  to  at 
law.  I  know  of  no  instance  where  it  has  been 
held  otherwise,  and,  in  a  court  of  law,  it  does 
not  lie  in  the  mouth  of  the  firm  to  disavow  the 
acts  or  declarations  of  the  persons  constitut- 
ing it.  In  chancery,  the  rule  is  somewhat 
different;  it  admits  of  the  exception  of  a  col- 
lusion between  any  of  them  and  a  stranger,  to 
the  prejudice  of  the  firm;  but,  to  separate 
their  interests,  the  collusion  is  not  to  be  col- 
lected from  remote  intendments,  from  an  exist- 
ing enmity,  and,  in  my  opinion,  not  even  from 
an  express  avowal  of  either  of  the  copartners, 
unless  coupled  with  acts  or  declarations  of  the 
person  with  whom  he  is  charged  to  collude. 
408 


I  can  discover  nothing  in  the  conduct  of  the 
appellant  from  which  a  collusion  can  be 
rationally  inferred  between  him  and  Moses 
Lopez.  If  no  such  collusion  exists,  his  decla- 
rations simply  (and  here  they  were  volun- 
tarily made  under  the  solemnity  of  an  oath), 
must  be  considered  as  those  of  one  of  the  par- 
ties in  interest,  under  the  contract,  and  operate 
accordingly. 

It  is  said  that  Moses  Lopez,  so  early  as  the 
28th  of  May,  1795,  transferred  his  share  in  the 
cotton  ana  indigo,  to  Isaac  Gomez,  Jun. ,  and 
hence  it  was  inferred  that  his  relation  as  to 
this  transaction  was  changed;  but  though  he 
parted  with  his  share,  he  remained  liable  on 
his  contract,  for  it  was  essentially  necessary  to 
have  the  approbation  of  the  appellant,  in  order 
to  dissolve  the  engagement  subsisting  on  the 
contract. 

In  a  case  thus  circumstanced,  I  cannot  dis- 
cover what  good  consequence  can  possibly  be 
obtained  by  referring  it  to  a  jury,  to  determine 
on  the  fraud.  If  they  should  give  a  verdict 
in  favor  of  the  respondents  on  that  ground,  I 
*should  think  that  it  ought  to  be  set  [*52O 
aside  as  against  evidence.  Issues  are  always 
awarded  in  chancery,  not  at  the  instance  of 
either  of  the  .parties,  but  from  the  volition  of 
the  chancellor.  This,  however,  is  to  be  exer- 
cised in  sound  discretion,  and  if  circumstances 
occur  which  give  a  controling  preponder- 
ance of  testimony  on  either  side,  it  is  his 
duty  to  decide  according  to  such  pre- 
ponderance. On  this  I  had  some  doubt,  but  I 
am,  upon  reflection,  convinced  that  it  is  his 
duty  to  do  so,  and  that  if  he  does  not,  but  re- 
fers it  to  a  jury,  it  will  warrant  an  appeal.  A 
reference  to  a  jury  may  increase,  but  cannot 
remove  embarrassments.  It  is  not  one  of 
those  cases  which  requires  a  jury  to  pass  upon 
the  matter  to  inform  the  conscience.  The 
conscience  has  already  taken  a  direction  from 
which  it  cannot  be  diverted,  and  the  trial  of 
an  issue  can  have  no  other  effect  than  to  de- 
volve the  responsibility  of  the  decision  on  the 
jury,  if  their  opinion  agrees  with  that  of  the 
chancellor.  If  it  does  not,  he  will,  of  course, 
by  ordering  a  new  trial,  conform  the  verdict  to 
his  own  opinion.  This  would,  in  its  effect,  be 
a  nugatory  process.  It  is  such  a  one  as,  I 
think,  ought  not  to  receive  the  sanction  of 
this  court. 

The  third  question  appears  to  present  a 
point  of  much  importance  to  the  jurispru- 
dence of  the  State.  I  am  satisfied  that  the 
doctrine  which  has  been  laid  down,  showing 
that  the  powers  of  this  court  extend  to  the 
final  decision  of  this  cause,  on  the  present  ap- 
peal, is  such  as  will  fully  justify  our  pro- 
nouncing a  final  decision.  It  is  not  necessary 
to  determine  how  far  it  would  be  proper  for 
this  court  to  exercise  a  jurisdiction  which 
might  be  considered  as  original,  in  contradis- 
tinction to  appellate.  The  constitution  of  this 
court  is  not  calculated,  and  its  members  are 
too  numerous  for  the  exercise  of  the  decretal 
powers  of  a  court  of  chancery,  in  the  first  in- 
stance. The  clashing  of  opinions,  insepara- 
ble from  numerous  bodies,  must,  in  many 
cases,  produce  a  less  harmonious  result  than 
that  originating  from  the  decision  of  a 
single  person,  in  matters  of  so  multifarious  a 
kind,  as  a  chancery  *cause  not  unfre-  [*521 
JOHNSON'S  CASES,  1. 


1800 


Louis  LE  GUEN  v.  ISAAC  GOUVERNEUR  AND  PETER  KEMBLE. 


521 


quently  presents.  This  inconvenience  is 
avoided,  by  confining  the  exercise  of  the 
powers  of  the  court  to  matters  strictly  Appel- 
late. 

But  though  this  reasoning  appears  to  me 
very  cogent,  it  is,  I  think,  not  applicable  to 
this  case.  The  powers  of  this  court,  as  exer- 
cised in  dismissing  the  bill,  arise  from  the 
subject.  If  this  court  decide  against  the  order 
for  the  issue,  it  must  be  on  the  ground  that 
it  is  so  clear  as  to  render  it  unnecessary  for  the 
information  of  the  conscience  of  the  court  to 
send  it  to  a  jury.  It  amounts  to  a  declaration 
that  the  respondents  have  not  sustained  their 
bill;  if  so,  and  it  is  remitted  to  the  court  of 
chancery,  what  other  effect  can  it  have,  than 
merely  to  send  it  through  its  different  stages 
in  that  court  to  a  final  decree,  to  produce  the 
same  effect  which  a  dismission  of  the  bill 
would  have  here?  The  conscience  of  the 
chancellor  will  not  be  better  informed,  when 
he  becomes  again  possessed  of  the  cause,  than 
he  was  before  the  appeal;  and  if  the  opinion 
of  this  court  is  to  be  conclusive  upon  him,  as 
it  will  be,  if  it  is  expressed,  he  will  formally 
pronounce  a  decree  conformably  to  it.  If  he 
decides  on  the  evidence,  and  decides  in  favor 
of  the  respondents,  we  shall  have  another  ap- 
peal on  that  ground,  and  must  ultimately  pro- 
nounce the  same  decree  which,  I  think,  it  is 
now  incumbent  on  the  court  to  do,  that  the 
respondents'  bill  be  dismissed. 

I  refrain  from  saying  anything  further  on 
the  subject  of  the  trial  between  the  respond- 
ents and  Gomez,  Lopez,  and  Rivera,  than 
that,  as  it  was  between  parties  with  whom  the 
appellant  had  no  connection,  it  cannot  affect 
his  interests. 

The  fact  was,  that  the  two  parties  adverse 
to  each  other  in  the  cause,  were  united  in  a 
common  opposition  to  the  appellant;  that  their 
interests  might  be  combined  to  conclude  him. 
The  appellant  was  not  obliged  to  confide 
his  interests  to  them  farther  than  he  has 
done.  His  connection  with  the  respond- 
ents was  dissolved.  It  might,  if  he  had 
united  himself  with  the  respondents,  have  in- 
directly *affected  his  interests.  He  [*522 
was  not  bound  to  do  it,  and  the  manner  of 
conducting  the  trial  on  the  part  of  the  re- 
spondents was  not  calculated  to  give  him  any 
strong  inducement  to  the  measure. 

I  therefore  repeat,  that  I  think  this  does 
not  vary  the  situation  of  the  parties;  and  that 
the  bill  of  the  respondents  ought  to  .be  dis- 
missed. 

A  majority  of  the  court  were  also  of  opinion, 
that  the  order  of  the  chancellor,  complained 
of,  should  be  reversed,  and  the  bill  of  the  re- 
spondents dismissed. 1 

After  the  court  had  pronounced  their  de- 
cision, 

Mr.  Burr,  for  the  appellant,  moved  for  costs 
and  damages  to  be  assessed  against  the  re- 


1. — Clinton,  S.,  and  Gold,  S.,  were  of  the  same 
opinion  as  the  Chief  Justice.  Five  of  the  Senators 
concurred  with  Lewis,  J.,  in  the  opinion  that  the 
decree  ought  to  be  affirmed,  and  Spencer,  S.,  was 
for  affirming,  except  as  to  the  order  for  an  issue,  and 
that  the  cause  should  be  remitted  to  chancery. 

The  Reporter  regrets  that  he  has  not  been  able  to 
procure  the  opinions  delivered  by  those  who  differ- 
ed from  the  majority  of  the  court ;  but  they  have 
got  into  other  hands,  or  are  now  lost  or  mislaid. 

JOHSSON'S  CASES,  1. 


spondents.  He  contended,  that  as  the  charge 
of  fraud  had  been  found  wholly  groundless, 
the  appellant  ought  to  be  indemnified  for  the 
interest  of  the  debt,  which  had  accrued,  and 
for  all  his  expenses  over  and  above  the  taxable 
costs.  He  cited  2  Burr.,  1086,  1087;  1  Bro. 
P.  C.,  464,  578;  2  Bro.  P.  C.,  576;  3  Bro.  P. 
C.,  70,  81. 

Mr.  Hoffman  (Attorney-General),  for  the  re- 
spondents, on  the  other  hand,  insisted,  that 
costs  and  damages  are  never  allowed  on  de- 
crees of  reversal,  and  for  dismissing  the  bill. 
He  cited  1  Bro.  P.  C.,  181,  591;  2  Bro.  P.  C., 
15,  286,  398,  404,  456;  3  Bro.  P.  C.,  366;  4 
Bro.  P.  C.,  152,  227;  5  Bro.  P.  C.,  466;  6 
Bro.  P.  C.,  27,  480,  492;  7  Bro.  P.  C.,  59, 110, 
303,  373,  432.  He  said,  that  only  one  case 
could  be  found  of  costs  allowed  on  reversing 
a  decree,  which  was  that  of  2  Bro.  P.  C.,  165, 
and  that  only  allowed  the  costs  of  the  pro- 
ceedings in  the  court  below;  that  when  the 
judgment  of  the  supreme  court  was  affirmed  in 
error  in  1798,  the  interest  was  allowed  on  the 
judgment  down  to  *the  time  of  affirm-  [*523 
ance,  and  the  whole  money  was  paid  into  the 
bank  in  thirty  days  thereafter. 

The  court  took  time  to  consider  of  the  ap- 
plication, and  on  the  28th  February, 

Mr.  Justice  Benson  delivered  the  unanimous 
opinion  of  the  court,  on  the  question,  in  sub- 
stance, as  follows: 

I  have  looked  into  all  the  cases,  and  I  find 
this  to  be  the  rule  on  the  subject  of  costs  in 
error. 

1.  That  if  judgment  be  given  in  the  court 
below  against  the  plaintiff  and  he  bring  error, 
and  the  judgment  in  the  court  below  be  re- 
versed, he  recovers  only  the  costs  of  the  action 
below,  because  the  court  of  errors  gives  such 
judgment  as  the  court  below  ought  to  have 
given,  and  none  other;  and  it  would  be  un- 
reasonable to  compel  a  person  in  case  of  a  re- 
versal, to  pay  costs  for  the  error  of  the  court 
below.     The  cases  are  express  and  decisive. 
(1  Strange,  617;    1  Anstruther,    180,    183;    1 
Salk.,  262.) 

2.  If  the  plaintiff  below   recover,  and  the 
defendant  below  bring  error  and  reverse  the 
judgment,   he  obtains  no  costs,  unless  it  be 
the  costs  of  the  court  below  up  to  the  judg- 
ment. 

All  the  cases  cited  by  the  counsel  for  the 
appellant,  apply  to  the  costs  of  the  action  be- 
low. There  is  not  a  single  instance  where 
costs  of  the  writ  of  error  or  appeal  were  given, 
on  reversing  the  judgment  or  decree  below, 
for  that  would  be  making  the  defendant  in 
error  pay  for  the  wrong  judgment  or  decree 
of  the  court  below.  The  case  in  1  Bro.  P.  C., 
578,  has  the  appearance  of  an  exception,  but 
it  is  not  one,  for  there,  on  the  reversal,  costs 
were  given  conditionally,  that  the  respondents 
on  paying  the  costs  of  the  appeal,  might  bring 
the  cause  again  to  a  hearing  in  the  court  be- 
low. The  case  in  2  Bro.,  165,*  which  the 
*  Attorney-General  thought  against  [*524 
him,  is~not  so ;  for  in  that  case,  on  reversing 


2.— The  references  to  Brown's  Parliamentary 
Cases  are  to  the  first  edition.  In  the  second  edition, 
published  by  Mr.  Tomlins,  there  is  a  new  arrange- 
ment of  the  cases,  to  which  the  references  to  the 
first  edition  are  not  applicable.  The  difference  will 
be  seen  in  a  table  annexed  to  vol.  8,  p.  333. 

409 


COURT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1800 


the  decree  and  dismissing  the  respondent's 
bill,  he  was  ordered  to  pay  to  the  appellant 
the  costs  of  the  proceedings  in  the  court  below; 
and  that  was  doing  no  more  than  giving  such 
a  decree  as  the  court  below  ought  to  have  given. 
In  the  present  case,  therefore,  we  are  of 
opinion,  that  the  respondents  should  pay  to 
the  appellant  the  costs  only  of  the  proceed- 
ings in  the  court  below,  up  to  the  time  that 


Following  are  cases  in  which  the  foregoing 
F;IS  cited,  so  indexed  as  to  show  to  what  partic 


'particular 
pi 'int. 

Judgment  of  court  of  competent  jurisdiction,  effect, 
eatamA.  Approved— 9  Paige,  630;  5  N.  Y.,  364;  2 
Biirb.,  597 ;  7  Barb.,  242.  Discussed— 5  Denio..  29 :  2 
Johns.  Cas.,  156.  Distinguished— 14  Johns..  77 :  9  N. 
Y.,  35;  82  N.  Y.,  559;  52  Barb.,  646;  12  Abb.  Pr.,  N. 
S..  293.  Cited  as  authority— 9  Johns.,  245;  2  Cow., 
137;  1  Johns.  Ch.,  51,  98,  466;  1  Paige  47;  3  N.  Y., 
522 ;  59  N.  Y.,  216 ;  70  N.  Y.,  11 ;  13  Barb.,  161 ;  15  Barb., 
68;  31  Barb.,  537;  34  Barb.,  156;  43  Barb.,  319;  50 
Barb.,  393 ;  46  How.  Pr.,  145 ;  60  How.  Pr.,  Ill ;  1  Abb. 
Pr.,  106:  5  Sand.  Super.,  147;  40  Mich.,  511;  50  Ind., 
420;  27  Ohio  St.,  238 ;  28  Ohio  St.,  601;  1  Biss.,  234. 
Cited— 17  Johns.,  400;  49  N.  Y.,  116;  11  Barb.,  157; 
9  Leg.  ODS.,  306 ;  4  How.,  U.  S.,  223 ;  2  Abb.  N.  C.,  204. 

410 


the  order  for  an  issue  was  made  absolute. 

It  was  thereupon  ordered,  adjudged  and  de- 
creed, that  the  order  of  His  Honor  the  Chan- 
cellor be  reversed;  and  that  the  bill  of  the  re- 
spondents be  dismissed,  with  the  costs  in  the 
court  of  chancery;  and  it  was  further  ordered, 
that  each  party  pay  his  own  costs  on  the  appeal. 

Judgment  of  reversal. 

Appellate  court,  what  it  will  consider  and  what  de- 
cree tt  u'i'H  render.  Approved— 5  Cow.,  735 ;  8  Wend., 
232.  Distinguished— 7  Paige,  91.  Cited  as  authority 
—18  Johns.,  560;  34  N.  Y.,  582;  32  How.  Pr.,  47;  2 
Abb.  Pr.,  N.  S.,  27 ;  6  Daly,  269.  Cited— 2  Lans.,  383. 

Costa  on  appeal.  Approved— 3  Johns.,  553.  Cited 
as  authority— 2  Wend.,  224.  Cited— 12  Johns..  58; 
8  Daly,  246. 

New  trial.    Cited  as  authority— 11  Wend.,  234. 

Court  of  chancery,  duty  to  decide  on  facts.  Cited 
as  authority— 6  Johns.  Ch.,  257. 

Judgment  of  court  not  of  competent  jurisdiction. 
Cited-11  Hun.,  324. 

Res  judicata.    Cited— 4  Hill,  656. 

Factor's,  rexpontribttitu  for  breach  of  order*.  Cited 
—20  Wend.,  337 ;  65  Barb.,  328. 

Factor's  right  to  seU.    Distinguished— 45  Ind.,  119. 

JOHNSON'S  CASES,  1. 


[END  OF  THE  CASES  IN  ERROR.] 


REPORTS  OF  CASES  ADJUDGED 


THE 


Supreme  Court  of  Judicature 


OF   THE 


From  January  Term  1799,  to  January  Term  1803,  Both  Inclusive, 


TOGETHER   WITH    CASES    DETERMINED   IN   THE 


COURT  FOR  THE  CORRECTION  OF  ERRORS 


DURING  THAT   PERIOD. 


BY  WILLIAM  JOHNSON, 

Counselor  at  Law. 


Legum  interpretes,  judices :  legum  denique  idcirco  omnes  servi  sumus,  nt  liberi 

esse  possumus. — CICERO. 


VOLUME     II. 


CONTAINING  THE  OASES  FEOM  OCTOBER  TEEM  1800,  TO  OCTOBER  TERM  1801 

INCLUSIVE. 


NAMES 


JUDGES  OF  THE  SUPREME  COURT  OF  JUDICATURE 


OF   THE 


STATE   OF    NEW  YORK, 


DURING   THE   TIME 


OF  THE  SECOND  VOLUME  OF  THESE  REPORTS. 


JOHN  LANSING,  Esq.,  Chief  Justice,  resigned  on  being  appointed  Chancellor, 

October  28,  1801. 

MORGAN  LEWIS,  Esq.,  appointed  Chief  Justice,  October  28,  1801. 
EGBERT  BENSON,  Esq.,  resigned  March,  1801. 
JAMES  KENT,  Esq. 
JACOB  RADCLIFF,  Esq. 


JOSIAH  OGDEN  HOFFMAN,  Esq.,  Attorney-General. 


CASES   ADJUDGED 


IN  THE 


SUPREME  COURT  OF  JUDICATURE 


OF  THE 


STATE  OF  NEW  YORK, 


IN 


OCTOBER    TERM,    IN    THE    YEA.R    18OO. 


TIJNNO  AND  COX  v.  LAGUE. 

1.  Bill  of  Exchange — Demand — Notice — Protest 
— Agent's  Duty.  2.  Id. — Time  of  Notice. 
3.  Id. — Excuse — Epidemic — Time. 

Where  an  agent  receives  a  bill  in  order  to  obtain 
payment,  he  must  send  notice  of  non-acceptance 
and  non-payment,  with  the  protests,  to  the  remitter, 
whose  duty  it  is  to  give  immediate  notice  to  the 
drawer.  If  the  agent  himself  undertakes  to  give 
notice  to  the  drawer,  it  will  be  sufficient,  if  it  be 
.given  as  soon,  as  under  the  circumstances  of  the 
case,  it  could  have  been  received  from  the  holder. 
The  prevalence  of  a  malignant  fever  in  the  city  of 
New  York,  was  held  a  sufficient  excuse  for  not 
.giving  notice  until  November  of  a  protest  of  non- 
payment made  in  September. 

Citations-5  Burr.,  2870;  ITerm  R.,  714;  Kyd.,76,  79. 

THIS  was  an  action  of  assumpsit  against  the 
defendant,  as  drawer  of  a  bill  of  exchange, 
dated  at  Jeremie,  April  29,  1798,  on  Malloby  & 
Durand,  of  New  York,  in  favor  of  the  plaint- 
iffs, for  $4,866.76,  payable  sixty  days  after 
sight.  On  the  llth  of  July,  1798,  the  bill  was 
presented  to  the  drawees,  and  protested  for 
non-acceptance,  and  on  the  12th  September, 
it  was  protested  for  nonpayment. 


At  the  trial,  R.  Lenox,  a  witness,  testified 
that  he  was  an  agent  for  the  plaintiffs,  who 
reside  in  South  Carolina,  and  received  the  bill 
from  them;  that  the  defendant,  after  drawing 
the  bill,  came  to  New  York,  and  the  witness, 
on  the  first  opportunity,  gave  him  notice  of 
the  non-acceptance,  which  was  shortly  before 
the  8th  August;  that  the  witness  afterwards 
removed  with  his  family  into  the  country,  on 
account  *of  the  yellow  fever,  which  pre-  [*2 
vailed  in  the  city,  and  in  November,  imme- 
diately after  his  return,  gave  notice  of  the 
nonpayment  to  the  defendant. 

It  appeared  that  the  defendant  was  a  married 
man,  and  had  a  house  in  New  York;  that  he 
went  to  St.  Domingo  on  business,  and  returned 
to  New  York  about  the  first  of  August,  where 
he  afterwards  constantly  and  publicly  resided. 

A  verdict  was  taken  for  the  plaintiffs  for  the 
amount  of  the  bill,  with  interest  and  damages, 
subject  to  the  opinion  of  the  court,  on  the 
point  whether  due  notice  had  been  given  to 
the  drawer  of  the  non-acceptance  and  nonpay- 
ment of  the  bill. 

Mr.  Troup  for  the  plaintiff. 
Mr.  Harison  for  the  defendant. 


NOTE.— Negotiable  instruments,  notice  of  non-ac- 
ceptance and  non-payment,  diie  diligence,  duties  of 
agents. 

Failure  to  give  notice ;  what,  aside  from  acts  of  par- 
ties, will  excuse. 

Prevalence  of  malignant  disease.  Tunno  v.  Lague, 
supra ;  1  Parsons,  Notes  &  Bills,  460,  531 ;  Edwards 
on  Bills,  492;  Story  on  Bills,  sec.  308;  Daniels  on 
Neg.  Inst's.,  sec.  1086.  See  Roosevelt  v.  Woodhull, 
Anth.,  a5;  N.  Y.  Rev.  Stat.  (7th  Ed.),  p.  2343. 

Unavoidable,  overwhelming  accident.  Hylton  v. 
Shepherd,  6  East,  16 ;  Windham  Bank  v.  Norton,  22 
Conn.,  213 ;  Text  books  above  cited ;  Bisrelow's  Bills 
&  Notes,  374. 

Such  military  occupation  or  disturbance,  riot,  in- 
surrection, etc.,  as  virtually  stops  all  business,  any 
ordinary  disturbance  being  insufficient.  Polk  v. 
Spinks,  5  Cold.,  431 ;  Apperson  v.  Union  Bank,  4 
Cold.,  446 ;  Patence  v.  Townley,  2  Smith's  Rep.,  221. 

War  or  public  interdiction  of  intercourse  between 
country  of  holder  and  that  of  indorser  of  maker. 
Griswold  v.  Waddington,  16  Johns.,  438 ;  Woods  v. 
Wilder,  43  N.  Y.,  164;  House  v.  Adams,  48  Pa.  St., 
261 ;  U.  S.  v.  Grossmeyer,  9  Wall.,  75 ;  The  William 

JOHNSON'S  CASES,  2.         N.  Y.  REP.  ,  BOOK  1. 


Bagley,  5  Wall.,  377 ;  Scholefleld  v.  Eichelberger,  7 
Pet.,  586;  Bank  v.  Gunnell,  26  Gratt.,  131;  Hopkirk 
v.  Page,  2  Brock.,  20.  See,  however,  Leathers  v. 
Com.  Ins.  Co.,  2  Bush  (Ky.),  298 :  Union  Nat'l  Bank 
v.  Marr,  6  Bush  (Ky.),  615. 

Death  of  maker  or  indorser,  duty  of  holder.  See 
Magruder  v.  Bank,  3  Pet.,  87 ;  S.  C.,  7  Pet.,  287 ; 
Gower  v.  Moore,  25  Me.,  18 ;  Caunt  v.  Thompson,  7 
Com.  B.,  400;  Hale  v.  Burr,  12  Mass.,  86;  Oriental 
Bank  v.  Blake,  22  Pick.,  208 ;  Merchants'  Bank  v. 
Birch,  17  Johns.,  25 ;  Burrill  v.  Smith,  7  Pick.,  291. 

Death  of  holder.  See  White  v.  Stoddard,  11  Gray, 
258;  Bigelow's  Bills  &  Notes,  378. 

When  impediment  cease*,  duty  to  give  notice  re- 
vives. Morgan  v.  Bank,  4  Bush  (Ky.),  82 ;  Peters  v. 
Hobbs,  25  Ark.,  67 ;  Burden  v.  Smith,  44  Miss.,  552 ; 
Tardy  v.  Boyd,  26  Gratt.,  631;  Farmers'  Bank  v. 
Gunnell,  26  Gratt.,  139. 

As  to  what  constitutes  due  diligence,  see  note  to 
Stewart  v.  Eden,  2  Caines,  121  (this  edition). 

As  to  duties  of  banks  ami  other  collection  agents, 
see  Allen  v.  Suydam,  20  Wend.,  331 ;  Allen  v.  Bank, 
22  Wend.,  215. 


27 


417 


SUPREME  COURT,  S^ATE  OF  NEW  YORK. 


1800 


Per  Guriam.  The  holder  of  a  bill  of  ex- 
change is  bound  to  use  due  diligence  to  give 
notice  of  non-acceptauce,  as  well  as  of  nonpay- 
ment, to  the  drawer  or  indorser  whom  he 
intends  to  charge.  (5  Burr.,  2670;  1  Term 
Rep.,  714;  Kyd.,  76,  79.)  Had  Lenox  been 
the  real  holder,  he  ought  to  have  given  notice 
of  the  non-acceptance  to  the  drawer  before  the 
8th  August,  either  at  his  dwelling-house,  or  if 
his  residence  was  not  known,  to  have  sent  it  to 
Jeremie,  where  the  bill  was  drawn.  The  prev- 
alence of  the  yellow  fever  would  have  been  a 
sufficient  excuse  for  a  delay  of  notice  of  non- 
payment until  November,  as  there  was  a  stop 
to  all  business  in  the  city.  But  Lenox  was  an 
agent  of  the  holder,  and  his  duty  extended  no 
further  than  to  give  notice  to  his  principal  of 
the  non-acceptance  and  nonpayment,  and  to 
transmit  the  requisite  protests,  in  order  that 
the  holder  might  give  notice  to  the  drawer.1 
As  the  drawer  here  had  notice,  before  he  could 
possibly  have  received  it  from  the  remitter  of 
the  bill,  he  cannot  complain. 

If  the  agent  undertakes  to  give  notice,  it  will 
be  good  if  it  be  given  as  early  as  it  could  have 
3*]  been  received  from  *the  holder.  It  would 
.be  too  rigorous  to  require  more  of  an  agent 
in  such  a  case.  If  the  agent  does  not  use  due 
diligence  in  sending  information  to  the  holder 
of  the  non-acceptance  or  nonpayment,  the  latter 
may,  perhaps,  suffer  for  the  negligence  of  his 
agent.  The  plaintiffs  are  entitled  to  judg- 
ment. 

Judgment  for  tlie  plaintiffs. 
Cited  in— 2  Hall,  120. 


LANSING  0.  FLEET, 

1.  Escape — /Sheriff's  Voluntarily  Suffering — 
Retaking — Autliority.  2.  Id. — Legal  Control 
— Assent  of  Prisoner — Collusion.  3.  Volun- 
tary Return.  4.  Negligent  Escape.  5.  Es- 
cape— Remedies — Plaintiff*' *  Election.  6.  Id. 
— Common  Law  in  Relation  to. 

Where  a  defendant  is  taken  in  execution  and  the 
sheriff  suffers  the  prisoner  voluntarily  to  escape,  he 
cannot  afterwards  retake  or  detain  him,  without  a 
new  authority  from  the  plain  tiff;  nor  will  the  volun- 
tary return  or  assent  of  the  prisoner  prevent  his 
liability  for  the  escape.  After  a  voluntary  escape, 
the  sheriff  cannot  lawfully  retake  or  detain  a  pris- 
oner, though  he  may  after  a  negligent  escape. 

1.  See  Haynes  v.  Bifks,  3  Bos.  &  Pull.,  599. 


Citations.— 1  Roll.  Abr.,  901,  902;  1  Lev.,  211;  1  Sid.r 
330;  1  Show.,  174;  2  Ion.,  21;  2  Mod.,  136;  Hob.,  202;  15 
Jac.,  1;  11  Vin.,  26,  pi.,  8;  2  Lev.,  132;  2  Lev.,  109,  132; 
6  Mod.,  183;  3  Com.  Dig.,  647  E.;  2  Wils.,  294;  Skinn., 
282;  Bro.,  tit.,  Escape  pi.,  12,  45;  2  Leon.,  96;  2  Leon., 
118;  2  Mod.,  159;  T.  Jones,  21;  1  Sid.,  330;  1  Vent.,  269; 
1  Show.,  169;  1  Salk.,  271;  3  Co.,  52,  56;  5  Term  R.,  25; 
1  Show.,  169;  3  Keb.,  453;  3  Co.,  72  b.  n.  3;  Dyer.  322;  1 
Roll.  Abr.,  921;  T.  Jones,  21;  Roll.,  902,  s.  8;  11  Vin.v 
326;  3  Co.,  52;  2  Lev.,  189. 

THIS  was  an  action  of  debt,  brought  by  the 
plaintiff,  as  late  sheriff  of  the  city  and 
County  of  New  York  against  the  defendant, 
one  of  his  deputies,  on  his  bond  of  indemnity, 
for  an  escape.  The  cause  was  tried  at  the 
July  circuit,  in  1799,  before  Mr.  Justice 
Benson. 

At  the  trial,  the  following  facts  appeared  in 
evidence:  On  the  8th  May,  1798,  a  ca.  sa. 
issued  on  a  judgment  in  this  court  in  favor  of 
William  Journey  against  John  B.  Hicks,  which 
was  delivered  to  Merritt,  one  of  the  deputies 
of  the  plaintiff,  who,  on  the  same  day,  arrested 
Hicks,  and  voluntarily  suffered  him  to  go  at 
large,  after  he  had  been  in  his  custody  about 
an  hour,  and  Hicks  continued  at  large  until 
10  o'clock  in  the  morning  of  the  10th  May, 
when  Merritt  retook  him  on  the  same  execution, 
but  Hicks  was  afterwards  seen  at  large  on  the 
evening  of  the  same  day.  The  defendant 
afterwards  arrested  Hicks  on  the  same  execu- 
tion, and  he  escaped  by  running  away  from 
the  defendant,  but  not  while  on  the  way  to 
prison.  The  plaintiff  paid  the  amount  of  the 
execution  to  Journey. 

Merritt  was  offered  as  a  witness  on  the  part 
of  the  plaintiff,  but  he  was  objected  to  by  the 
defendant's  counsel.  The  judge,  however, 
overruled  the  objection;  and  the  witness  testi- 
fied that  he  was  in  a  room  with  Hick  on  the 
8th  May,  *and  had  the  execution,  but  he  [*4 
did  not  consider  Hicks  as  in  his  custody  on 
that  day,  and  suffered  him  to  remain  at  large; 
that  on  the  10th  May,  he  arrested  Hicks,  and 
by  his  request,  delivered  him,  with  the  execu- 
tion, to  the  defendant,  who  consented  to 
receive  him;  that  the  defendant  told  the  wit- 
ness that  he  went  with  Hicks  to  several  places, 
which  consumed  considerable  time,  when 
Hicks  made  his  escape,  and  the  witness  after- 
wards saw  him  at  large. 

A  verdict  was  taken  for  the  plaintiff,  subject 
to  the  opinion  of  the  court  on  the  above  case. 

The  cause  was  argued  at  the  last  term  by 
Mr.  Riggs,  for  the  plaintiff,  and  Mr.  C.  1. 
Sogert  for  the  defendant. 

RADCLIFF,  J.  The  fact  that  Hicks  consent- 
ed to  the  second  arrest  on  the  10th  May,  does 


NOTE.— Escape. 

What  constitutes  an  escape,.  McMichael  v.  Rapelye, 
4  Ala.,  383 ;  Nail  v.  State,  34  Ala.,  262 ;  Freeman  v. 
Davis,  7  Mass.,  200;  Clap  v.  Cofran,  7  Mass.,  98:  Bur- 
roughs v.  Lawder,  8  Mass.,  373 ;  Cargill  v.  Taylor,  12 
Mass.,  319;  Day  v.  Brett,  6  Johns.,  22;  Van  Slyck  v. 
Taylor,  9  Johns.,  146;  Palmer  v.  Hatch,  9  Johns.,  329; 
Kellogg  v.  Gilbert,  10  Johns.,  220. 

IfTiat  does  not.  Commonwealth  v.  Alden,  14 
Mass.,  388 ;  Wool  v.  Turner,  10  Johns.,  420 ;  Martin  v. 
Wood,  7  Wend.,  132 ;  Hempstoad  v.  Weed,  20  Johns., 
64;  Wickelhausen  v.  Willett,  12  Abb.  Pr.,  319;  21 
How.  Pr.,  40;  10  Abb.  Pr.,  164. 

"\roluntaru  and  negligent  escapes,  distinction.  Lit- 
tlefleld  v.  Brown,  1  Wend.,  398 ;  Lockwood  v.  Mer- 
cereau,  6  Abb.  Pr.,  206.  See  also  Warburton  v. 
Wood,  6  Mo.,  8;  State  v.  Eriekson,  32  N.  J.  L.,  421; 

418 


Bolton  v.  Cumming_s,  25  Conn.,  410;  Skinner  v, 
White.  9  N.  H.,204;  Olmstead  v.  Raymond,  6  Johns., 
62;  Wheeler  v.  Bailey,  13  Johns.,  366;  Loosey  v. 
Orser,  4  Bosw.,  391.  • 

After  voluntary  escape  of  prisoners  confined  on 
final  civil  process,  sheriff  cannot  retake.  Butler  v. 
Washburn,  25  N.  H.  (5  Fost.),  251 ;  Clark  v.  Cleve- 
land, 6  Hill,  344;  Jackson  v.  Hampton,  6  Ired.  (N.  C.) 
L.,  34;  Thompson  v.  Lockwood,  15  Johns.,  256.  Con- 
tra if  prisoner  confined  on  mesne  process.  Arnold 
v.  Steeves,  10  Wend.,  514;  Bronson  v.  Noyes,  7 
Wend.,  188 ;  Commonwealth  v.  Sheriff,  1  Grant  (Pa.) 
Cas.,  187 ;  Stone  v.  Woods,  5  Johns.,  182. 

After  negligent  escape  sheriff  can  retake.  Butler 
v.  Washburn,  25  N.  H.  (5  Fost.),  251 ;  Colley  v.  Mor- 
gan, 5  Ga.,  178. 

JOHNSON'S  CASES,  2. 


1800 


LANSING  v.  FLEET. 


not,  I  think,  solely  depend  on  the  express 
testimony  of  Merritt.  The  circumstance  that 
on  that  day  he  was  in  the  actual  custody  of 
Merritt,  and  also  of  the  defendant,  without 
any  resistance,  on  the  ground  of  their  want  of 
authority  to  hold  him,  is  alone  presumptive 
evidence  that  he  had  submitted  to  that  arrest. 
As  there  is  nothing  to  countervail  this  pre- 
sumption, the  objection  against  the  competency 
of  Merritt  as  a  witness,  appears  to  me  unim- 
portant and  unnecessary  to  be  considered. 

The  principal  question  is,  whether,  after  the 
voluntary  escape  suffered  by  Merritt,  and  the 
subsequent  arrest  of  Hicks,  consented  to  by 
him,  it  was  lawful  to  detain  him  as  a  prisoner? 
If  it  was  lawful,  then  it  was  the  duty  of  the 
defendant  to  detain  him,  and  he  would  be 
liable  to  the  sheriff  for  the  second  escape.  If 
it  was  not  lawful,  the  second  arrest  must  be 
deemed  a  nullity,  and  the  defendant  in  that 
case  would  not  be  liable. 

It  ought  to  be  observed  that  this  is  a  question 
between  the  sheriff  and  his  deputy  only,  by 
which  the  interest  of  the  plaintiff,  in  the 
original  suit,  cannot  be  affected.  The  general 
rules  on  the  subject  of  escapes,  so  far  as  they 
respect  the  right  of  recaption  by  the  plaintiff 
and  the  sheriff,  appear  to  be  well  settled. 
5*]  *1.  In  case  of  a  negligent  escape,  both 
the  plaintiff  and  the  sheriff  have  a  right  to  re- 
take the  prisoner,but  the  plaintiff  may  elect  to 
proceed  against  the  sheriff,  who  will  be  liable 
to  him,  unless  by  fresh  pursuit  he  retakes  the 
prisoner,  before  action  brought. 

2.  In  case  of  a  voluntary  escape,  the  plaint- 
iff may  also  retake  the  prisoner,  but  the  sher- 
iff cannot;  and  the  prisoner  may  resist    any 
attempt  by  him  for  that  purpose.    (1  Roll. 
Abr.,  901,  902;    1  Lev.,  211;     1  Sid.,  380;    1 
Show.,  174;  2  John.,  21;  2  Mod.,  136.) 

3.  If  the  sheriff  let  the  prisoner  go  by  the 
consent  of  the  plaintiff,  neither  he  nor  the 
plaintiff  can  retake  him. 

Neither  of  these  positions  extend  to  the  case 
of  a  voluntary  escape,  and  a  subsequent  vol- 
untary return  or  submission  of  the  prisoner. 
The  right  of  the  plaintiff,  however,  is  un- 
doubted, that  he  may  elect  his  remedy,  either 
against  the  prisoner  or  the  sheriff,  notwith- 
standing the  free  return  of  the  former,  and 
his  submission  to  the  arrest,  for  as  between  the 
plaintiff  and  the  sheriff,  nothing  can  purge  a 
voluntary  escape.  The  sheriff,  in  all  events, 
continues  liable  to  him,  unless  he  choose  to 
relinquish  his  responsibility  and  pursue  his 
remedy  against  the  prisoner.  It  is  in  this 
sense,  and  in  relation  to  the  sheriff  only,  that 
the  authoities  are  to  be  understood,  when 
they  say  that  a  voluntary  escape  cannot  be 
purged. 

It  is  also  proper  to  remark  that  neither  the 
present  question,  nor  any  of  the  rules  that  have 
been  mentioned,  depend  on  the  statute  of  8  and 
9  Wm.  III.,  which  has  been  adopted  here,  and 
was  cited  on  the  argument.  The  plaintiff,  be- 
fore that  statute,  in  all  cases  of  negligent  or 
voluntary  escapes,  had  a  right  to  retake  the 
prisoner,  and  the  statute  thus  far  is  in  affirm- 
ance only  of  the  common  law.  It  enacts 
that  if  the  prisoner  escape,  by  any  ways  or 
means  howsoever,  the  creditor  may  retake  him 
by  any  new  writ,  or  sue  forth  any  other  execu- 
tion. The  only  material  alteration  made  by 
JOHNSON'S  CASES,  2. 


the  statute  is  that  the  creditor  may  also  have 
a  remedy,  by  any  other  species  of  execu- 
tion. 

It  appears  to  me  essential  to  the  rights  of 
the  plaintiff  that  the  sheriff  should  be  permitted 
to  hold  a  prisoner  who  voluntary  returns  and 
submits  to  a  legal  process,  although  after  a  vol- 
untary escape.  He  cannot  hold  him  with  a 
view  *to  his  own  indemnity,  because,  by  [  *6 
being  accessory  to  the  escape,  he  violated  the 
duty  of  his  office,  and  forfeited  all  right  to  the 
aid  of  the  law.  He  is  thereby  made  liable  to 
the  plaintiff  for  the  whole  amount  of  his  de- 
mand, and,  with  respect  to  him,  may  be  com- 
pletely substituted,  in  point  of  responsibility, 
for  the  prisoner.  But  he  is  the  substitute, 
only  at  the  election  of  the  plaintiff.  The  latter 
is  not  bound  to  look  to  the  sheriff.  He  may 
continue  his  remedy  against  the  prisoner,  and 
retake  him  by  new  process,  or,  if  already  in 
jail,  suffer  him  to  remain,  and  admit  him  in 
execution  on  the  former  process.  If  the  pris- 
oner be  already  in  jail,  on  a  voluntary  return, 
and  nothing  be  done  to  determine  the  plaint- 
iff's election  to  substitute  the  sheriff,  it  follows, 
of  course,  that  the  prisoner  is  again  in  execu- 
tion at  the  suit  of  the  plaintiff.  No  act  of  the 
plaintiff  is  necessary  to  that  end.  The  parties 
are  restored  to  their  former  situation,  unless 
the  plaintiff  elect  to  proceed  against  the  sher- 
iff; and  until  that  be  done,  it  must  be  lawful 
in  the  sheriff  to  detain  the  prisoner. 

This  appears  to  be  a  natural  and  equitable 
course  in  relation  to  all  concerned.  It  gives 
to  the  plaintiff  a  complete  redress,  against  both 
the  sheriff  and  the  defendant,  and  effectually 
places  the  remedy  against  both  in  his  power. 
It  must  be  very  important  to  his  rights  that 
the  prisoner  should  thus  be  deemed  to  be  in 
execution,  for  he  may  have  good  reasons  to 
elect  to  pursue  his  remedy  against  him;  but  if 
the  sheriff  has  not  the  power  to  hold  him,  this 
remedy  must  again  be  defeated,  unless  the 
plaintiff  be  able  to  retake  him  by  new  process. 
In  fact,  it  would  lead  to  the  position  that  the 
plaintiff  can,  in  such  case,  have  no  remedy 
against  the  prisoner  but  by  a  new  writ,  which 
is  not  warranted  by  the  cases  jon  the  subject. 
As  it  respects  the  defendant  himself,  no  injury 
is  done.  His  imprisonment  is  the  consequence 
of  his  own  act,  by  which  he  ought  to  be  con- 
cluded; and  there  is  no  reason  why  the  law 
should  interpose  to  exempt  him  from  it.  He 
is  no  more  an  object  of  favor  or  entitled  to  re- 
lief than  the  sheriff  is  entitled  to  the  aid  of 
the  law  to  compel  his  return.  With  regard  to 
the  sheriff,  the  responsibility  he  incurs  is  a 
sufficient  restraint.  Beyond  this  the  *rigor[  * 7 
of  the  law  ought  not  to  extend.  Neither  pol- 
icy nor  justice  demands  it.  It  would  place 
him  in  a  worse  condition  than  the  prisoner 
himself,  for  whose  responsibility  alone  he  is 
bound  to  answer.  I  therefore  think  that  the 
detention  of  a  prisoner,  under  such  circum- 
stances, ought  to  be  deemed  lawful,  for  the 
benefit  of  the  plaintiff,  and  in  furtherance  of 
his  remedy.  If  lawful,  it  was  the  duty  of  the 
sheriff,  and,  of  course,  of  his  deputy,  in  this 
instance,  to  detain  him.  As  between  the  sher- 
iff and  his  deputy,  it  was  also  material,  for  by 
suffering  him  again  to  escape,  the  sheriff  was 
deprived  of  the  benefit  of  the  plaintiff's  elec- 
tion to  hold  the  prisoner  in  execution,  so  far 

410 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


as  his  continuing  in  custody,  afforded  the  op- 
portunity and  the  means  of  making  it. 

The  authorities  on  the  subject,  I  believe,  will 
be  found  not  only  to  support  the  sheriff's 
right  thus  to  detain  a  prisoner^  but  to  impose 
it  on  him  as  a  duty,  and  if  he  neglect  to  do  it, 
make  him  liable  as  for  a  second  escape.  I 
admit  there  is  one  case,  that  of  the  sheriff  of 
Essex,  decided  and  reported  by  Oh.  J.  Hobart 
(Hob.,  202;  15  Jac.,  1),  which  is  opposed  to 
this  doctrine.  It  was  there  ruled  that  by  a 
voluntary  escape  the  execution  was  so  utterly 
discharged  that  if  the  prisoner,  afterwards, 
voluntary  returned  and  contined  in  jail  till  the 
time  of  a  new  sheriff,  and  was  then  again  suf- 
fered to  escape,  the  new  sheriff  was  not  liable, 
even  though  the  plaintiff  allowed  the  prisoner 
so  to  return  and  submit  to  the  execution. 
But  this  case  has  been  repeatedlv  overruled, 
or  denied  to  be  law.  (1  Roll.  Abr.,  901,  902, 
B;  10  Car.,  1;  11  Vin.,  26,  pi.  8,  S.  C.  In 
Viner  it  is  if  he  return.)  1st.  By  a  case  in 
Roll.  Abr.  .where  it  was  resolved  that  if  A  be 
in  execution  at  the  suit  of  B  and  escape  with 
the  consent  of  the  sheriff,  and  afterwards  he 
return,  or  the  sheriff  retake  him,  and  keep  him 
in  prison,  he  shall  again  be  in  execution  to  B, 
for  although  B  may  bring  an  action  against 
the  sheriff  for  this  voluntary  escape,  yet  this 
is  at  his  election,  and  it  may  be  that  the  sher- 
iff is  incompetent  to  make  a  recompense.  2d. 
By  Ch.  J.  Hale,  in  James  v.  Pierce.  (2  Lev., 
132;  27  Car.,  II.)  In  that  case  there  was  a 
voluntary  escape  from  the  warden  of  the  Fleet, 
and  a  voluntary  return  of  the  prisoner.  A 
new  warden  was  appointed  and  a  second  es- 
cape permitted.  It  was  resolved  that  an  ac- 
8*  ]  tion  lay  against  *the  new  warden;  and  it 
is  there  held  that  the  plaintiff  might,  at  his 
election,  take  the  prisoner  to  be  in  execution, 
and  charge  the  new  warden  for  the  last  escape 
or  admit  him  to  be  out  of  execution,  and 
charge  the  old  warden.  3d.  By  the  case  of 
Lenthalv.  Lenlhal  (2  Lev.,  109;  26  Car.,  II.), 
where  there  was  a  voluntary  escape  from  the 
marshal,  and  a  voluntary  return.  The  mar- 
shal died,  and  the  office  descended  to  his  son, 
who  again  suffered  a  voluntary*  escape,  and  it 
was  resolved  by  the  whole  court,  after  con- 
sidering the  cases  above  cited  from  Hob.  and 
Roll.,  that  the  action  well  lay  against  the  son 
for  a  second  escape. 

Again,  in  the  case  of  Grant  v.  Southers, 
(6  Mod.,  183;  3  Anne.)  Grant  had  been  in 
custody  of  the  former  marshal,  who  volunta- 
rily allowed  him  to  escape.  Grant,  afterwards, 
came  voluntarily  and  returned,  and  being 
found  in  custody  by  the  succeeding  marshal, 
was  detained  by  him;  upon  which  Grant 
brought  an  action  of  false  imprisonment 
against  the  new  marshal.  The  court  granted 
an  imparlance  till  the  next  term,  but  at 
the  same  time,  affirmed  that  it  was  lawful 
to  detain  him,  and  that  to  suffer  him  to  go  at 
large  would  be  an  escape  in  the  second  mar- 
shal. 

It  appears  that  Comyns,  whose  name  adds  a 
sanction  to  these  authorities,  had  the  same 
view  of  the  law  on  this  subject.  In  his  Di- 
gest (3  Com.  Dig.,  647,  E\  he  says,  "If  a 
person  escapes,  and  afterwards  returns  to  the 
prison,  the  plaintiff  may  admit  him  in  execu- 
tion, although  he  has  a  remedy  against  the 

420 


sheriff."  And  again  ( Ibid.),  '"so  though  the 
escape  was  voluntary  by  the  jailer  and  with- 
out the  plaintiff's  consent." 

From  the  tenor  of  these  cases,  it  appears 
that  the  prisoner  is  considered  to  be  again,  of 
course,  in  execution,  at  the  suit  of  the  plaintiff, 
unless  the  latter  evinces  his  intention  to  aban- 
don that  remedy  by  proceeding  against  the 
sheriff  for  the  escape.  It  is  certain  that  it  is 
not  necessary  for  him  to  take  out  a  new 
writ  against  the  prisoner,  but  may  admit  him 
to  be  in  execution  on  the  former  process.  This 
is  the  express  language  of  several  of  the  cases. 
The  plaintiff  may,  both  by  common  law  and 
the  statute,  take  out  such  writ;  but  it  would 
be  absurd  to  compel  him  to  do  it  when  his 
*case  does  not  require  it.  Generally,  [*O 
however,  a  new  process  might  be  necessary ; 
for  the  sheriff  has  no  right  to  retake  the  debtor 
without  it,  and  his  voluntary  return  is  seldom 
to  be  expected. 

The  circumstance  that  in  most  of  the  cases 
which  have  been  mentioned,  the  question  as 
to  the  legality  of  the  prisoner's  detention  has 
arisen  on  a  second  escape  suffered  by  a  subse- 
quent sheriff,  is,  in  my  opinion,  immaterial  to 
its  merits.  The  case  from  Rolle  is,  however, 
not  that  of  description.  It  was  there  decided 
in  relation  to  the  same  sheriff.  But  it  cannot 
be  important.  If  the  imprisonment  was  orig- 
inally unlawful,  it  cannot  be  made  lawful  by 
the  change  of  keepers.  The  rights  of  the 
plaintiff,  or  the  power  of  the  sheriff,  or  the 
personal  liberty  of  the  defendant,  cannot  de- 
pend on  a  circumstance  like  this.  It  must 
be  obvious,  too,  that  the  question  can  seldom 
arise,  except  where  there  is  a  change  of  the 
sheriff;  for  with  respect  to  the  same  sheriff  a 
second  escape  cannot  be  material  when  he  is 
equally  liable  for  the  first. 

There  is,  I  believe,  no  subsequent  case  which 
contradicts  this  doctrine,  unless  that  of  Raven- 
scroftv.  Eyles  (2  Wils.,  294)  be  so  considered. 
That  was  a  voluntary  escape  on  mesne  process, 
and  a  voluntary  return  by  the  prisoner.  The 
plaintiff  proceeded  to  judgment,  but  not  to 
execution,  and  then  sued  the  warden  for  the 
previous  escape.  The  question  submitted  to 
the  court  was  whether  the  plaintiff,  having 
proceeded  to  judgment,  could^  maintain  his 
action?  The  court  determined  'that  he  could, 
and  in  reasoning  on  the  subject,  they  say  that 
it  being  a  voluntary  escape,  the  jailer  could 
not  afterwards  retake  and  detain  him  for  the 
same  matter;  that  the  plaintiff  might  retake 
him  by  an  escape  warrant,  but  had  his  option 
to  proceed  as  he  pleased,  either  to  judgment 
and  execution  against  him,  or  against  the 
warden;  and  yet  they  add  that  the  prisoner 
was  no  longer  in  jail  at  the  plantiff's  suit;  and 
although  the  plaintiff  might  lawfully  proceed 
to  judgment,  he  could  not  charge  him  in  exe- 
cution. This  case  appears  to  me  obscure  and 
contradictory,  unless  *the  court  intended  P1O 
to  be  understood  that  the  plaintiff,  in  order  to 
charge  him  in  execution,  was  obliged  first  to 
retake  him  (although  already  in  jail)  by  an 
escape  warrant.  If  so,  the  remedy  by  an  es- 
cape warrant  being  founded  on  the  statute  of 
Anne  (1  Anne,  ch.  6),  which  is  not  adopted 
here,  can  have  no  application  to  the  present 
case.  The  case  of  Key  and  Brtggs  (Skinn., 
582),  there  cited  to  be  in  point,  does  not  sup- 
JOHJJSON'S  CASES,  2. 


I  SOU 


LANSING  v.  FLEET. 


10 


port  that  position;  and,  besides,  this  mode  of 
redress  by  the  plaintiff,  questionable  as  it  may 
be,  was  not  connected  with  the  matter  sub- 
mitted to  the  consideration  of  the  court.  It 
was  sufficient  for  the  purpose  of  that  decision 
to  declare  that  after  a  voluntary  escape  on 
mesne  process,  the  plaintiff,  although  he  pro- 
ceeded to  judgment,  might  still  maintain  his 
action  against  the  warden.  I  think,  therefore, 
this  case  does  not  bear  with  any  weight  on  the- 
present  question. 

On  the  whole,  I  am  of  opinion,  both  on 
principle  and  the  authorities  on  the  subject, 
that  the  second  arrest  being  submitted  to  by 
Hicks,  was  lawful,  and,  of  course,  that  his 
subsequent  detention  by  the  defendant  was 
equally  lawful;  that  the  interest  of  the  plaint- 
iff was  materially  concerned  in  keeping  Hicks 
in  custody,  and  that  it  does  not  lie  in  the 
mouth  of  this  defendant  to  excuse  himself  by 
the  previous  default  of  Merritt,  whose  delin- 
quency cannot  purge  his  own ;  and,  of  course, 
that  his  suffering  the  second  escape  was  a 
breach  of  his  bond  of  indemnity,  and  render- 
ed him  liable  to  this  action. 

KENT,  J.     The  question  is,  whether,  upon 
the  facts  stated  in  the  case,  the  defendant  is  | 
responsible  to  the  plaintiff  upon  his  bond. 

By  the  common  law,  as  understood  before 
and  during  the  reign  of  Elizabeth,  a  volun- 
tary escape  of  a  prisoner  in  execution,  com- 
pletely and  forever  discharged  him  from  the 
debt,  so  that  neither  the  plaintiff  nor  sheriff 
could  retake  him  for  the  same  demand.  (Bro., 
tit.  Escape,  pi.  12,  and  45;  Linacre  and  Rhode's 
case,  2  Leon.,  96;  Philips  and  Stone's  case,  2 
Leon.,  118.)  Thelawwasafterwardschanged.or 
understood  differently,  and  there  were  repeat- 
1 1*]  ed  decisions  *in  the  reigns  of  Charles  II. 
arid  of  William  and  Mary,  that,  after  a  volun- 
tary escape,  the  party  was  entitled  to  new  pro- 
cess against  the  debtor,  and  was  not  confined 
exclusively  to  his  remedy  against  the  sheriff, 
who  might,  perhaps,  be  unable  to  indemnify 
him.  (2  Mod.,  136;  T.  Jones,  21;  1  Sid.,  330;  j 
1  Lev.,  211;  1  Vent.,  269;  1  Show.,  169;  1  Salk.,  | 
271.)  The  statute  of  8  and  9  Wm.  III.  (ch.  | 
27),  gave  the  party  the  like  remedy  of  further  j 
process  against  the  debtor's  person,  as  well  as  j 
of  process  against  his  property,  after  a  volun-  j 
tary  escape;  and  it  was,  therefore,  in  part, 
declaratory  of  the  law,  as  antecedently  re- 
ceived and  established.  But  neither  the  decis- 
ions previous  to  the  statute,  nor  the  statute 
which  pursued  and  sanctioned  them,  im- 
paired the  plaintiff's  right  of  action  against 
the  sheriff,  or  gave  the  sheriff  any  authority 
to  retake  the  prisoner  upon  the  original  pro- 
cess. The  law  in  that  respect  continued  the 
same  as  before,  that,  after  a  volunary  escape, 
the  authority  of  the  sheriff  over  the  prisoner  is 
gone,  and  he  cannot  retake  or  detain,  without 
new  authority  from  the  plaintiff .  (3  Co.,  52, 
56;  Hob.,  202;  2  Wils.,  295;  5  Term  Rep.,  25; 
1  Sid.,  330;  1  Show.,  169;  1  Vent.,  369.)  Some 
of  the  cases  speak  of  a  prisoner  upon  a  volun- 
tary return,  after  a  voluntary  escape,  as  again 
in  execution;  but  it  will  appear,  upon  an  ex- 
amination of  those  cases,  that  they  all  termi- 
nate in  this  conclusion,  that  he  is  to  be  deemed 
so,  at  the  election  of  the  plaintiff,  and  for  his 
benefit,  and  not  at  the  election  of  the  sheriff. 
JOHNSON'S  CASES,  2. 


It  was  said,  arguendo,  in  the  case  of  James  \. 
Pierce  (1  Vent,,  269;  3  Keb.,  453),  and  seems 
to  have  been  agreed  to  by  the  court,  that  al- 
though the  plaintiff  may  elect,  yet,  until  he 
makes  his  election,  the  prisoner  cannot  be  said 
to  be  in  execution;  and  Hale,  in  giving  the 
opinion  of  the  court,  said  that  if  the  prisoner 
should  bring  trespass  against  the  jailer  for 
being  detained  after  a  volunary  escape,  the 
jailer  could  not  defend  himself.  The  same 
doctrine  was  laid  down  in  the  case  of  Eaten- 
scroftv.  EyUs(2  Wils.,  294);  and  Ch.  J.  Wil- 
mot  observed  that  a  prisoner,  when  voluntarily 
suffered  by  the  jailer  to  escape,  is  instantly  at 
large,  and  that  the  jailer  cannot  retake  and 
detain  him  for  the  same  matter,  and  that, 
although  *he  voluntarily  returns,  he  is  not  [*  1 2 
a  prisoner  at  the  plaintiff's  suit,  even  if  he  is 
locked  up  every  night.  All  the  improve- 
ments, since  the  reign  of  Elizabeth,  upon  the 
law  of  voluntary  escapes,  have  been  made  for 
the  exclusive  benefit  of  the  plaintiff;  none  of 
them  have  been  intended  to  relieve  the  sheriff 
in  any  respect  from  the  consequences  of  his 
tort. 

The  only  case  that  looks  like  a  qualification 
of  the  law,  as  I  have  stated  it,  is  that  of  a 
voluntary  escape  and  return,  and  continuance 
in  prison  until  the  succession  of  anew  sheriff. 
In  that  instance  it  is  decided  (2 Lev.,  109,  132; 
6  Mod.,  182;  contra,  Hob.,  202)  that  the  new 
sheriff  is  bound  to  detain  the  prisoner,  and  is 
liable  for  his  escape,  because  the  plaintiff  has 
his  election  to  consider  him  again  in  execution. 
If  this  be  a  legal  distinction,  the  reason  of  it 
may  be  that  the  prisoner  comes  regularly,  and 
by  color  of  law,  to  the  custody  of  the  new 
sheriff,  which  is  sufficient  to  justify  him  to 
detain.  The  new  sheriff  is  charged  with  the 
custody  of  all  prisoners  delivered  over  by  his 
predecessor,  or  that  are  in  jail,  if  his  pred- 
ecessor die  in  office;  and  the  books  accord- 
ingly say  (3  Co.,  72,  b,  n.  3)  that  no  mischief 
arises  to  a  new  sheriff,  if  he  keep  all  the 
prisoners  well  until  he  hath  perfect  notice  of 
all  the  executions.  The  cases  assign  as  one 
reason  for  the  right  of  action  against  the  new 
sheriff,  that  the  plaintiff  is  never  to  be  with- 
out a  remedy;  and  if  the  old  sheriff  be  dead, 
his  right  of  action  against  him,  being  personal, 
is  dead  also  (Dyer,  322;  1  Roll.  Abr.,  921;  T. 
Jones,  21);  or  if  the  plaintiff  had  affirmed  the 
prisoner  in  execution,  during  the  time  of  the 
former  sheriff,  then  all  remedy  against  him 
would  equally  have  ceased.  In  these  instan- 
ces, unless  the  successor  was  responsible  for 
all  the  prisoners  turned  over  to  him,  the  plaint- 
iff might  be  left  remediless. 

The  conclusion  which  I  draw  from  a  re- 
view of  the  numerous  cases  upon  this  subject, 
and  from  whicB  I  have  endeavored  to  extract 
the  substance,  results  in  these  propositions: 

*lst.  That  after  voluntary  escape,  the  [*13 
sheriff  who  permitted  the  escape  cannot  retake 
or  detain  the  prisoner  without  authority  from 
the  plaintiff.  That  all  his  legal  control  over  the 
prisoner  ceases  by  his  own  wrong,  and  no  act 
of  his,  and  no  assent  of  the  prisoner,  with 
whom  he  must  be  deemed  in  collusion,  can 
help  him.  The  law  will  not  help  a  sheriff  to 
retake  or  detain  a  prisoner  after  a  voluntary, 
although  it  may  after  a  negligent  escape.  This 
rule  is  extremely  sound  in  principle,  and  salu- 

421 


13 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


tary  in  its  tendency,  to  prevent  any  collusion 
between  the  sheriff  and  his  prisoners,  and  to 
secure  to  the  public  the  faithful  and  vigorous 
execution  of  process. 

2d.  That  the  plaintiff  shall  never  suffer 
for  the  sheriff's  default.  The  law  is  active  to 
help  him,  and  accordingly  gives  him  his  elec- 
tion to  charge  the  sheriff,  or  to  pursue  the  de- 
fendant with  fresh  process;  and  if  the  defend- 
ant has  voluntarily  put  himself  in  prison  again, 
instead  of  fresh  process,  which  would  be  use- 
less, he  may  detain  him,  by  affirming  him  to 
be  again  in  execution.  And,  as  all  the  au- 
thority of  the  sheriff  over  the  prisoner,  subse- 
quent to  a  voluntary  escape  must  be  derived 
from  the  act  of  the  plaintiff,  it  follows  that 
until  such  fresh  process  is  received,  he  cannot, 
in  the  one  case,  retake,  and,  that  until  notice 
is  given  of  the  plaintiff's  election  to  hold,  he 
cannot,  in  the  other  case,  detain  the  prisoner. 
There  is  no  evidence  of  any  such  election  in 
the  case  before  the  court.  The  sheriff  must 
be  considered  as  having  paid  the  debt,  by  rea- 
son of  the  first  escape,  and  he  was  not  injured 
by  the  act  of  the  present  defendant,  who  had 
no  lawful  authority  to  detain  the  prisoner. 
Whether  Hicks  was,  or  was  not,  voluntarily  in 
custody  a  second  time,  is,  therefore,  imma- 
terial, and  judgment  ought  to  be  rendered  for 
the  defendant. 

BENSON,  J.  The  plaintiff  was  sheriff,  and 
the  defendant  and  Merritt  were  his  deputies. 
Merritt  having  Hicks  in  custody  on  execution, 
voluntarily  suffered  him  to  escape.  Hicks 
was,  afterwards,  voluntarily  in  the  custody  of 
14*]  the  defendant,  *and,  as  intended,  on  the 
execution,  and  he  then  escaped  from  the  de- 
fendant. The  plaintiff  has  since  paid  to  the 
party  the  amount  of  the  execution,  and  has 
thereupon  brought  the  present  suit  against  the 
defendant  on  his  bond  of  indemnity,  and  a 
verdict  has  been  taken  for  him,  subject  to  the 
opinion  of  the  court  on  the  question  whether 
the  defendant  could  lawfully  have  detained 
Hicks? 

The  law  on  this  question  is  conceived  to  lie 
within  a  very  narrow  compass.  "If  A  be  in 
execution  at  the  suit  of  B  and  escape  with  the 
consent  of  the  sheriff,  and  afterwards  the 
sheriff  retakes  him,  and  keeps  him  in  prison, 
he  shall  be  in  execution  to  B,  for  although  B 
may  bring  an  action  against  the  sheriff  for  this 
voluntary  escape,  yet  that  is  at  his  election, 
and  the  party  in  execution  shall  not  by  his 
own  wrong  put  B  to  his  action  against  the 
sheriff,  contrary  to  his  will,  and  it  may  be  that 
the  sheriff  is  not  able  to  give  him  recompense. 
So  adjudged  on  an  audita  querela  by  A  against 
B  brought  on  this  surmise."  (Roll.,  902,  s.  8.) 
In  the  same  case,  as  found  in  another  book,  it 
is  said  that  A  "returned  to  the  prison."  (11 
Vin.,  326.) 

"If  the  prisoner  escape  of  his  own  wrong, 
the  sheriff  may  take  him,  and  keep  his  body 
under  custody  till  he  hath  agreed  with  him,  or 
may  have  an  action  on  the  case  for  his  tortious 
escape,  and  he  shall  never  have  an  audita 
querela  against  the  sheriff;  but  it  is  otherwise 
when  he  escapes  with  the  consent  of  the  jailer, 
for  then  he  cannot  take  him  again;  and  in  such 
case  he  shall,  for  his  discharge,  have  an  audita 
qutrefa."  (3  Coke,  52.) 
422 


If  the  defendant  will  return  and  remain  in 
prison  until  a  new  sheriff  is  made,  and  be  then 
turned  over  to  the  new  sheriff,  he  shall  be.  so 
far  in  execution  as  that  if  he  should  escape 
again,  the  plaintiff  may  have  his  election; 
either  to  take  him  to  have  been  in  execution, 
and  charge  the  new  sheriff  for  the  last  escape, 
or  admit  him  have  been  out  of  execution,  and 
charge  the  old  sheriff;  for,  perhaps,  the  old 
sheriff  may  not  be  responsible,  or  may  be  dead; 
and  because  it  would  be  mischievous  if  the 
new  sheriff  might  excuse  himself  by  saying 
that  the  defendant  was  not  a  prisoner,  and  so 
he  could  not  detain  him;  for  sheriffs  permit 
prisoners  *in  execution  to  go  out  on  [*15 
security,  and  when  they  are  sued  they  plead  a 
retaking  on  fresh  suit,  and  so  the  prisoners  go 
out  and  return  at  their  pleasure,  and  if  the  new 
sheriff  may,  notwithstanding  he  had  the  defend- 
ant actually  in  prison,  excuse  himself  in  this 
way,  that  the  old  sheriff  permitted  a  voluntary 
escape,  all  the  creditors  of  the  prisoner  who 
was  put  there  in  the  time  of  the  old  sheriff 
would  be  defrauded;  for  it  will  be  very  easy 
for  the  new  sheriff  to  prove  a  voluntary 
escape  by  the  old  sheriff,  when  it  might  not 
have  been  in  the  power  of  the  creditor  to  have 
proved  it  to  have  been  voluntary."  (2  Lev., 
189,  132.) 

"Although  the  escape  is  voluntary,  yet  debt 
(on  the  judgment)  will  lie  against  the  party 
who  escapes,  and  a  scire  facias  will  also  lie  on 
it  against  him."  (1  Vent.,  269.) 

"On  an  escape  against  the  will  of  the  sheriff, 
either  the  plaintiff  or  the  sheriff  may  retake. 
On  an  escape  with  the  consent  of  the  sheriff, 
the  plaintiff  only  hath  remedy  to  take,  and  not 
the  sheriff."  (1  Show.,  177.)  The  law  in  refer- 
ence to  the  point  or  question  in  the  present 
case,  as  collected  from  these  authorities,  ap- 
pears to  be. 

1st.  That,  as  it  relates  to  the  plaintiff,  there 
is  no  difference  whether  the  escape  is  voluntary 
or  tortious,  and  that  he  has  the  same  remedies 
in  the  former,  as  in  the  latter  case:  either  he 
may  take  out  new  process,  or,  if  the  defendant 
should  be  in  custody  without  new  process,  he 
may  then,  as  it  would  seem,  by  some  other  act, 
affirm  him  still  to  be  in  execution,  or  he  may 
bring  an  action  of  debt  on  the  judgment;  or 
revive  it  by  scire  facias;  or  bring  an  action  for 
the  escape  against  the  sheriff;  and  without  be- 
ing liable  to  an  audita  querela,  in  the  mean- 
time, before  he  shall  have  elected  between 
these  several  remedies.  But 

2d.  That  as  it  relates  to  the  sheriff,  there  is 
a  difference  in  the  two  cases;  for  that  where 
the  escape  is  tortious  the  sheriff  has  every  req- 
uisite remedy;  either  he  may  retake  the  de- 
fendant, and  detain  him,  till  he  is  indemnified; 
and  also,  being  in  the  meantime  liable  to  an  aud- 
ita, querela;  or,  he  may  elect  not  to  retake  him, 
but,  to  bring  an  action  against  him  for  the 
escape;  on  the  contrary,  where  the  escape  is 
*voluntary  he  has  no  remedy;  he  cannot,  [*16 
without  new  process  by  the  plaintiff,  retake  the 
defendant,  and  even  if  the  defendant  should 
voluntarily  return  into  custody,  yet  he  cannot, 
unless  the  plaintiff  will  affirm  him  to  be  in  exe- 
cution, detain  him,  and  if  he  should  so  detain 
the  defendant,  an  audita  querela  will  lie  against 
him. 

3d.  If  the  defendant,  however,  shall  be  in 
JOHNSON'S  CASKS,  2. 


1800 


THE  EXECUTORS  OF  VAX  RENSSELAER  y.  THE  EXECUTORS  OP  PLATNER. 


16 


prison  when  a  new  sheriff  shall  happen  to  come 
into  office,  and  be  turned  over  to  the  new  sheriff, 
that  the  new  sheriff  has  then  a  right  to  detain 
him;  and  the  reason  with  the  law  for  implying 
this  right  in  the-new  sheriff,  is  for  the  sake  of 
the  correlative  duty  which  would  then  be  im- 
plied in  him,  to  detain  the  defendant,  in  order 
thereby  not  only  to  give  the  plaintiff  an  addi- 
tional surety  in  the  event  of  a  second  escape, 
but  also  to  prevent  the  fraud  to  which  he 
would  otherwise  be  exposed;  so  that  it  is  in- 
tended for  the  advantage  and  safety  of  the 
plaintiff,  and  not  for  any  emolument  or  other 
benefit  to  the  new  sheriff,  and  certainly  not  for 
any  remedy  to  the  old  sheriff.  Indeed,  the 
law  cannot,  consistently  with  itself,  interpose 
for  the  sheriff,  when  there  has  been  a  voluntary 
escape;  for  the  escape  being  to  be  imputed  to 
him  as  his  own  fault,  it,  is  fit  he  should  be  left 
to  suffer  the  consequences  of  it.  It  remains  to 
be  noticed  that  the  defendant  reserved  a  ques- 
tion as  to  the  evidence  of  the  fact,  whether, 
when  Hicks  came  into  his  custody,  he  came 
voluntarily;  but  if  the  law  is,  as  has  been 
stated,  that  the  defendant,  in  whatever  manner 
he  might  have  acquired  the  custody  of  Hicks, 
without  new  process  by  the  party,  could  not 
lawfully  have  detained  him,  then  the  fact 
itself  is  immaterial,  and,  consequently,  the 
consideration  of  the  evidence  of  it  may  tie 
omitted.  I  am  therefore  of  opinion  that  there 
must  be  judgment  for  the  defendant. 

LEWIS,  J.,  was  of  the  same  opinion. 

LANSING,  Ch.  J.,  being  related  to  the  plaint- 
iff, gave  no  opinion. 

Judgment  for  the  defendant. 

Reviewed— 1  Wend.,  403. 

Cited  in— 15  Johns.,  259;  23  Hun.,  419;  6  Abb.,  207. 


1  7*]  *THE  EXECUTORS  OF  VAN  RENS- 
SELAER 

The  EXECUTORS  OP  PLATNER. 

1.  Annual  Rent  Reserved — Death  of  Testator — 
Rent  Subsequently  Accrued — Covenants — Re- 
covery. 2.  Several  Counts — Some  Bad — Dam- 
ages Entire — Discrimination.  3.  Covenants — 
Action  on.  4.  Damages  Claimed — Greater  than 
appears  to  be  due  by  Declaration — Verdict 
— Presumption. 

Where  R.  granted  and  demised  land  to  P.  and  his 
heirs,  executors  and  administrators,  reserving  an 
annual  rent,  which  P.,  for  himself,  his  heirs,  execu- 
tors and  administrators,  covenanted  to  pay  on  the 
first  day  of  May  in  each  year,  it  was  held  that  the 
executors  of  R.  could  not  recover  rent  which  ac- 
•crued  subsequent  to  the  death  of  their  testator;  ali- 
ter,  for  rent  due  previous  to  the  testator's  death. 

It  seems  that  an  action  of  covenant  will  lie  against 
the  executors  of  the  lessee,  on  such  a  covenant, 
though  the  land  had  passed,  by  act  of  law  into  other 
hands. 


NOTE. — Rent  accruing  after  death  of  decedent  goes 
tn  heir.  Wright  v.  Williams,  5  Cow.,  501 :  Van  Rens- 
selaer v.  Hays,  19  N.  Y.,  68;  Fay  v.  Holloran,  35 
Barb.,  295;  Hunter  v.  Hunter,  17  Barb.,  25.  See 
Marshall  v.  Moseley,  21  N.  Y.,  280. 

Id.  before  death,  of  decedent,  to  executor  or  admin- 
istrator. N.  Y.  Rev.  Stat.  (7th  Ed.),  2295. 

JOHNSON'S  CASES,  2. 


Citations— 2  Lev.,  57;  Poph.,  209;  Cro.  Car.,  569,  629, 
490;  5  Com.,  tit.  Pleader,  ch.  84,  p.  376  &c.;  Doug., 
703;  1  Ld.  Raym.,  329;  2  Ld.  Raym.,  1382;  Aud.,  246; 
Carth.,  96;  Cro.  Jac.,  522;.  Cro.  Car.,  *188;  1  Sid.,  402; 
Hob.,  188;  Salk.,  309;  3  Mod.,  26;  1  Wils.,  4;  2  Burr., 
1190,  1195, 1197;  1  H.  Bl.,  444;  4  Term  R.,  98;  1  Ball. , 
307;  3  Mod.,  326;  Cro.  Car.,  522;  2  Burr.,  1190,  1196;  Co. 
Litt.,  162  a.  Statute  32,  H.  VIII.,  ch.  37;  1  Vent.,  175; 
2  Keb.,  831;  2  Bac.  Abr.,  539;  1  Ld.  Raym.,  246;  Carth., 
96:  Sh..  1094. 

THIS  was  an  action  of  covenant.  By  an 
indenture,  made  the  12th  January,  1774, 
John  Van  Rensselaer  granted  and  demised 
to  Jacob  Plainer,  his  heirs  and  assigns  a  farm 
in  Claverack,  in  the  County  of  Columbia, 
to  have  and  to  hold,  &c.,  unto  the  said 
Jacob  Plainer,  his  heirs,  executors,  adminis- 
Iralors  and  assigns,  forever,  yielding  and 
paying,  &c.,  and  the  grantee  for  himself,  his 
heirs,  executors  and  admin  islrators,  covenant- 
ed lo  pay  Ihe  renl.  Plainer  died  in  1775,  and 
Van  Rensselaer  on  22d  February,  1783,  having 
made  his  will  on  the  20th  February,  1783. 
The  present  suit  was  by  the  execulors  of  Van 
Rensselaer,  lo  recover  Ihe  renl  due  from  Ihe 
Isl  May,  1774,  lo  Ihe  1st  May,  1783. 

A  verdict  having  been  found  for  the  plaint- 
iffs, Mr.  Spencer,  for  the  defendants,  moved 
in  arrest  of  judgmenl  on  Iwo  grounds. 

1st.  Because  no  action  lies  against  execu- 
tors for  renl  which  accrued  after  the  death  of 
the  teslator,  who  was  lenanl  in  fee. 

2d.  That  the  execulors  of  Van  Rensselaer 
have  recovered,  quasi  execulors,  for  renl  due 
subsequenl  lo  Ihe  death  of  Ihe  testator. 

Mr.  Emott  for  the  plainliffs. 

RADCLIFF,  J.  This  is  an  aclion'of  cove- 
nanl,  for  renl  due  lo  Ihe  leslalor  of  the  plaint- 
iffs, which  accrued  on  an  estate  in  fee,  subse- 
quent to  the  death  of  Ihe  def  endanls'  testa- 
lor.  A  molion  has  been  made  in  arresl  of 
judgmenl  on  Iwo  grounds. 

Isl.  That  the  plaintiffs  have  claimed  and 
recovered  rent,  which  accrued  subsequent  to 
the  death  of  their  testalor. 

2d.  Thai  Ihe  recovery  is  for  renl  which  ac- 
crued subsequenl  to  Ihe  death  of  the  defend- 
ants' leslator. 

*As  to  the  first,  there  is  no  doubt  that  [*18 
where,  in  an  action  of  covenant,  or  in  any  ac- 
lion sounding  in  damages,  the  plaintiff  claims 
more  damages  than  on  the  face  of  his  declara- 
tion appears  to  be  due,  it  will  not  vitiale,  es- 
pecially afler  verdicl  (2  Lev.,  57;  Poph.,  209; 
Cro.  Car.,  569,  629,  499;  5  Com.  tit.  Pleader, 
ch.  84,  p.  376,  &c.),  for  the  amount  of  the  dam- 
ages being  ascertained  by  the  jury,  it  is  lo  be 
presumed  Ihey  were  assessed  according  lo  Ihe 
proof.  Il  is  then  a  subject  of  evidence,  and 
of  compulation  as  to  amount  only,  within  the 
plaintiff's  righl  of  action,  and  properly  within 
the  province  of  a  jurv.  But  where  several 
counts  or  causes  of  aclion  are  staled,  and  any 
one  of  Ihem  is  bad,  and  Ihe  damages  enlire, 
Ihe  rule  is  settled,  in  civil  cases,  lhal  Ihe  court 
cannol  discriminate,  or  give  judgmenl  for  Ihe 
whole.  (Doug.,  703.)  So  where  Ihe  righl  of 
aclion  accrues  periodically,  or  depends  on 
time,  if  the  plaintiff's  declaration  embraces  a 
period  for  which  he  cannot  be  entilled  to  re- 
cover, and  Ihe  damages  are  enlire,  il  is  equally 
oul  of  Ihe  power  of  Ihe  courl  to  distinguish 
the  good  from  the  bad,  or  to  give  judgment 
for  the  whole.  (1  Ld.  Raym.,  329;  2  Ld. 

423 


18 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1800 


Raym.,  1382;  And.,  246;  Carth.,  96.)  The 
time,  in  such  cases,  is  material,  and  consti- 
tutes a  part  of  the  cause»of  action,  and  there- 
fore cannot  be  rejected  as  surplusage.  In  the 
present  case  the  plaintiffs  as  executors,  have 
claimed  one  year's  rent  which  fell  due  on  an 
estate  in  fee,  subsequent  to  the  death  of  their 
testator.  It  not  being  a  case  of  apportion- 
ment, they  clearly  cannot  recover  for  any  part 
of  the  year's  rent.  It  is,  however,  demanded 
in  the  declaration,  as  a  distinct  and  substan- 
tive cause  of  action,  and  the  damages  are  en- 
tire. The  objection,  therefore,  on  the  face  of 
the  record,  I  think  is  fatal  to  the  plaintiffs' 
action;  but  if  it  can  appear  from  the  judge's 
notes  on  the  trial  that  the  plaintiffs  claimed 
and  recovered  for  the  previous  rent  only,  ac- 
cording to  the  modern  and  more  liberal  prac- 
tice of  our  courts,  I  am  inclined  to  allow  the 
verdict  to  be  altered  or  amended,  agreeable  to 
the  truth  of  the  case. 

2d.  As  to  the  second  objection,  the  authori- 
ties are  numerous  and  decisive  that  this  action 
will  lie  on  an  express  covenant,  against  the 
lessee  and  his  executors,  &c. ,  though  the  breach 
be  committed  while  a  third  person  is  in  posses- 
19*]  *sion,  and  is  recognized  as  tenant  by  the 
lessor.  (Cro.  Jac.,  522;  Cro.  Car.,  188;  1  Sid., 
402;  Hob.,  188;  Salk.,  309;  3  Mod.,  326;  1 
Wils.,  4;  2  Burr.,  1190,  1195,  1197;  1  H.  Bl., 
444;  4  Term  Rep.,  98;  1  Dall.,  307.)  The  les- 
see continues  liable,  and  also  his  executors,  to 
the  extent  of  their  assets,  on  the  ground  of  the 
express  covenant,  so  long  as  a  privity  of  con- 
tract remains.  That  privity  exists  in  the 
present  instance;  the  covenant  is  express,  and 
the  same  rule  must  be  deemed  to  apply.  I  am 
therefore  of  opinion,  if  the  verdict  can  be 
amended,  that  the  defendants  take  nothing  by 
their  motion,  otherwise,  that  the  judgment  be 
arrested. 

KENT,  J.  Two  questions  were  raised  at  the 
argument  in  support  of  the  motion: 

1st.  That  no  action  lies  against  the  execu- 
tors for  rent  accrued  subsequent  to  the  death 
of  their  testator. 

2d.  If  it  did,  that  the  executors  of  Van 
Rensselaer  have  recovered,  quasi  executors, 
rent  accruing  since  their  testator's  death. 

With  respect  to  the  first  question,  it  appears 
to  me  from  an  examination  of  the  cases,  to  be 
a  settled  rule  that  covenant  will  lie  on  a  cov- 
enant in  deed  against  a  lessee,  notwithstand- 
ing a  third  person  be  at  the  time  the  actual 
tenant,  and  the  lessor  has  recognized  him  as 
such;  and  against  his  executors,  notwithstand- 
ing he  may  have  assigned  in  his  lifetime,  and 
the  rent  accrues  subsequent  to  his  death.  The 
reason  given  for  the  rule  is  this,  that  the  priv- 
ity of  contract  of  the  testator  is  not  deter- 
mined by  his  death,  and  the  executor  shall  be 
charged  with  all  his  contracts,  so  long  as  he 
has  assets.  (3  Mod.,  326.)  In  another  case 
(Cro.  Jac.,  522),  it  is  said  that  in  covenants  en 
fait,  a  covenantor  and  his  executors  are  always 
chargeable,  and  that  the  executors  are  not 
chargeable  by  reason  of  the  privity  of  con- 
tract, but  by  reason  of  the  covenant.  But, 
though  some  cases  may  differ  in  assigning  the 
reason  of  the  rule,  they  all  concur  in  the  rule 
itself.  There  is  no  instance,  however,  that  I 
have  met  with,  of  a  case  exactly  like  the 
424 


present,  where  the  covenant  for  rent  was  upon 
an  estate  in  fee.  They  are  all  upon  terms 
for  years,  and  it  seems,  accordingly,  to 
be  severe  to  apply  the  rule  to  the  present 
case;  for  here  the  executors  or  the  personal 
*estate  receive  no  consideration  for  the  [*2O 
payment  of  the  rent,  since,  on  the  death  of 
Plainer,  the  estate  must  have  descended  to  the 
heirs-at-law. 

In  answer  to  this  objection,  I  observe  that 
the  responsibility  of  the  executors  to  pay  rent, 
accruing  subsequent  to  their  testator's  death, 
is  not  placed  upon  the  ground  that  they  have 
the  fund  in  hand,  but  upon  the  ground  of  the 
express  covenant  of  their  testator,  from  which 
no  act  that  he  can  do  will  discharge  him,  or 
discharge  them,  so  long  as  they  have  assets. 
There  is  a  strong  case  to  this  effect.  Enyif  Ex- 
ecutor v.  Donniitthorm's  Executors  (2  Burr., 
1190).  It  was  a  suit  in  covenant  for  rent,  on 
a  joint  lease  to  the  testator  of  the  defendant, 
and  a  third  person,  and  the  testator  died,  even 
before  the  commencement  of  the  term,  so  that 
the  whole  term,  and  the  benefit  of  it,  survived 
to  the  other  lessee.  It  was  a  lease  for  fifty 
years,  and  the  same  objection  was  made  that 
I  have  suggested.  "It  looks  very  odd,"  said 
Mr.  Ju»tice  Denniston  (2  Burr..  1196),  "that 
when  one  of  the  lessees  dies,  and  the  interest 
STirvives  to  the  longest  liver  of  them,  yet  the 
other's  representatives  should  be  bound  by  the 
covenants,  though  no  benefit  remains  to 
them." 

However,  on  further  consideration,  the 
court  were  unanimously  of  opinion  that  the 
plaintiff  was  entitled  to  recover  for  rent  sub- 
sequent to  the  death  of  the  defendant's  testa- 
tor, although  the  estate  was,  by  act  of  law, 
cast  into  the  hands  of  another.  The  recovery 
was  founded  upon  the  express  covenant,  and 
not  upon  a  charge,  resulting  from  the  benefit 
of  enjoying  the  land. 

As  to  this  suit,  so  far  as  it  respects  the  right 
of  the  plaintiffs,  two  points  arise  for  inquiry: 
whether  they  can  recover,  in  an  action  of  cov- 
enant, rent  in  arrear  at  their  testator's  death, 
and  if  so,  then  whether  they  can  recover  rent 
due  subsequent  to  his  death. 

1st.  It  is  said  that  at  common  law,  ex- 
ecutors had  no  remedy  for  rent  in  arrear 
in  the  lifetime  of  their  testator,  because 
they  could  not  represent  their  testator,  as 
to  any  contracts  relating  to  the  freehold. 
(Co.  Litt.,  162,  a.)  This  was  remedied 
*by  the  statute  of  32  H.  VIII.  (ch.  37),  [*21 
which  gave  them  a  remedy  by  distress,  and  by 
the  action  of  debt.  It  ought  to  be  observed 
that  both  these  remedies  are  founded  on  the 
privity  of  estate,  and  that  when  the  books  say 
that  executors  had  no  remedy  at  common  law, 
they  must  be  understood  to  mean  none  result- 
ing from  that  privity. 

I  have  no  doubt  they  were  always  entitled 
to  a  remedy  on  an  express  covenant  for  rent, 
for  that  was  a  personal  contract,  independent 
of  the  freehold,  as  much  so  as  if  the  testator 
had  given  a  bond  for  the  rent,  payable  by  in- 
stallments. 

We  find  cases  in  which  executors  have  been 
allowed  to  bring  an  action  of  covenant,  on  a 
covenant  contained  in  deed,  although  the  same 
was  connected  and  run  with  the  freehold.  (1 
Vent,,  175;  2  Keb.,  831;  2  Bac.  Abr.,  539.> 
JOHNSON'S  CASES,  2. 


1800 


THE  DEVISEES  OF  VAN  RENSSELAER  v.  THE  EXECUTORS  OF  PLATNER. 


This  was  not  a  suit  for  rent,  and  yet,  equally 
with  the  present  suit,  it  came  within  the  reason 
of  the  objection  to  suits  at  common  law,  by 
executors  for  arrearages  of  rent,  to  wit,  that 
they  could  not  represent  their  testator  as  to  any 
contracts  relating  to  the  freehold.  I  conclude, 
therefore,  that  where  there  is  an  express  cove- 
nant for  rent,  the  executor  is  not  confined  to  the 
statute  remedies  by  distress  and  debt,  but  may 
resort  to  a  common  law  remedy  on  the  cove- 
nant.1 

2d.  As  to  the  second  point,  it  is  equally 
clear  that  the  executor  can  only  go  for  rent  due 
and  payable  at  his  testator's  death,  where  the 
rent,  as  in  the  present  case,  goes,  on  the  testa- 
tor's death  to  his  heirs.  The  rent  here  was 
payable  yearly,  on  the  1st  May  in  each  year, 
and  this  not  being  a  case  of  apportionment,  in 
respect  to  time,  it  is  certain  that  the  executors 
have  declared  for  one  year's  rent  more  than 
they  were  entitled  to.8  This  claim  being  a 
substantial  ground  of  action,  and  material  to 
the  damages,  and  the  damages,  by  the  verdict 
22*]  being  entire,  the  judgment  *must  be 
arrested,  unless  we  have  sufficient  matter  by 
which  we  can  intend  that  no  damages  were 

fiven  for  the  claim  of  the  last  year's  rent.  (1 
,d.  Raym.,  329and246;  Garth.,  96;  Sh.,  1094.) 
But  no  such  matter  is  shown;  on  the  contrary, 
it  appears  by  the  judge's  notes  that  damages 
were  given  for  the  last  year,  and,  of  course, 
the  judgment  must  be  arrested.3 

BENSON,  J. ,  and  LEWIS,  J. ,  were  of  the  same 
opinion. 

LANSING,  Ch.  J.  This  is  an  action  of  cove- 
nant for  the  recovery  of  rent. 

A  motion  has  been  made  in  arrest  of  judg- 
ment. 

Because,  it  appears  that  the  plaintiffs  claim 
as  executors,  and  have  recovered  rent  accrued 
after  the  death  of  their  testator. 

The  plaintiffs  declare  on  an  indenture,  made 
between  John  Van  Rensselaer  and  the  defend- 
ants' testator,  by  which  the  former  granted  in 
fee  to  the  latter,  certain  lands,  reserving  an 
annual  rent,  payable  on  the  first  day  of  May  in 
every  year.  It  contains  a  covenant,  by  which 
the  grantee  binds  himself,  his  heirs,  executors, 
administrators  and  assigns,  to  the  payment  of 
the  rent. 

The  declaration  states  that  John  Van  Rensse- 
laer, the  plaintiffs'  testator,  died  seized  of  the 
rent  on  the  20th  day  of  February,  1783,  and 
that  the  last  year's  rent  became  due  on  the  first 
day  of  May,  1783. 

The  18th  sec.  of  the  statute  respecting  rents, 
which  re-enacted  the  4th  sec.  of  the  37th  chap- 
ter of  the  statute  of  32  Hen.  VIII.,  does  not 
touch  this  case;  that  statute  is  intended  merely 
to  enable  the  executors,  in  the  cases  mentioned 
in  it,  to  sustain  an  action  of  debt  for  the  re- 
covery of  rent,  which  they  were  not  competent 
to  recover  at  common  law. 


1.— See  1  Saund.,  241,  b.  note  5,  6. 

2. — As  to  apportionment  of  rent,  see  Woodf all's 
Tenant's  Law,  248,  et  sea;  10.  Co.,  128;  1  Salk.,  65;  1  P. 
Wms.,  392;  2  P.  Wins.,  176,  501;  Laws  of  N.  Y.,  llth 
seas.,  ch.  36,  sec.  27  (vol.  1.,  p.  144.) 

3.  Where  matter  is  insensible  or  void,  and  not  of 
the  gist  of  the  action,  the  court  will  intend  that  no 
damages  were  given  for  it.  1  Str.,  1094, 245;  Cro.  Jac., 
664,  665;  1  Ld.  Raym.,  146,  976;  Willes,  443;  2  Saund., 
171,  O,  note  1;  2  Johns.  Kep.,  283,  442. 

JOHNSON'S  CASES,  2. 


*But  this  action  is  founded  on  ac  [*23 
express  covenant,  and  the  executors  of  the 
testator  only  representing  his  personal  interests, 
must  necessarily  deduce  their  right  to  recover 
from  the  testator  personally,  and  cannot  sus- 
tain their  action  on  their  privity  of  estate, 
which  devolved  on  the  heir  or  devisee  of  the 
testator. 

It  is,  therefore,  clear  that  the  executors  can- 
not go  for  rent  accrued  after  the  testator's 
death;  but  they  may  well  sustain  a  suit  for  the 
rent  accrued  previous  to  the  death  of  their 
testator. 

The  grant  on  which  the  rent  is  reserved  is 
dated  the  12th  day  of  January,  1774. 

The  first  rent  is  payable,  by  the  terms  of  the 
grant,  on  the  first  day  of  May,  1774,  and  the 
rent  accruing  thereafter,  on  the  first  day  of 
May  in  every  year. 

The  plaintiffs'  testator  is  averred  to  have 
died  on  the  22d  day  of  February,  1783. 

The  plaintiffs  declare  for  nine  years  rent, 
and  in  the  declaration  is  contained  a  particular 
specification  of  the  several  years  for  which  the 
rent  remained  unpaid.  The  last  year's  rent 
claimed,  is  alleged  to  have  become  payable  on 
the  first  day  of  May,  1783. 

Introductory  to  this  specification  in  the 
plaintiffs'  declaration,  is  an  averment,  that  from 
the  first  day  of  May,  1774,  to  the  first  day  of 
May,  1783,  inclusive,  the  rent  remained  un- 
paid; thus  excluding  the  first  year's  rent,  pay- 
able on  the  first  of  those  days,  and  including 
one  year  which  did  not  become  payable  till 
after  the  plaintiffs'  testator's  death. 

The  inconsistency  between  the  general  aver- 
ment and  the  particular  specification  might  be 
considered  as  cured  by  the  verdict,  but  the  in- 
troduction of  a  claim  to  damages  on  a  sub- 
stantive cause  of  action,  which  cannot  be  sus- 
tained after  a  general  verdict,  it  is  laid  down 
as  settled,  is  good  cause  for  arresting  judgment. 

It  was  suggested,  in  the  course  of  the  argu- 
ment, that  "the  court  ought  to  infer  that  the 
plaintiffs'  recovery  was  limited  to  the  right 
they  proved  on  the  trial. 

*It  appears,  however,  upon  recurring  [*24r 
to  the  notes  of  the  judge. who  presided  at  the 
trial,  that  damages  were  given  for  ten  years' 
rent.  This  mtendrnent  cannot,  therefore,  be 
admitted. 

Upon  the  whole,  I  am  of  opinion  that  the 
judgment  in  this  case  must  be  arrested. 

Judgment  arrested. 

Distinguished— 19  N.  Y.,  18. 

Cited  in— 26  N.  Y.,  564;  35  Barb.,  296;  7  How.,  23. 


THE  DEVISEES  OF,  VAN  RENSSELAER 


THE  EXECUTORS  OF  PLATNER. 

Annual  Rent  Reserved — Action  of   Covenant — 
Rent  in  Arrear. 

Where  an  estate  in  fee  is  granted,  reserving  annual 
rent,  the  devisees  of  the  grantor  cannot  maintain 
covenant  against  the  executors  of  the  grantee  or 
tenant  in  fee,  for  rent  in  arrear. 

NOTE.— See  preceding  case  and  note. 


24 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


37, 
Cro 

THE  facts  in  the  present  case  were  similar  to 
those  in  the  preceding,  except  that  the 
devisees  claimed  only  from  the  1st  of  May, 
1783,  or  subsequent  to  the  death  of  the  devisor. 
The  motion  in  arrest  of  judgment  was  argued 

2  Mr.  Spencer,  for  the  defendants,  and  Mr 
nott,  for  the  plaintiffs. 

LANSING,  Ch.  J. ,  delivered  the  opinion  of  the 
court: 

This  is  an  action  of  covenant  for  rent. 

The  defendants  have  moved  in  arrest  of 
judgment.  « 

1st.  Because  the  plaintiffs  cannot  legally  sus- 
tain this  action  as  devisees,  and, 

2d.  Because  the  defendants  are  not  liable, 
the  estate  on  which  the  rent  is  charged  having 
passed  to  the  heir. 

Neither  the  statute  of  31  Hen.  VIII.  (ch.  1) 
or  32  Hen.  VIII.  (c.  37),  re-enacted  among  the 
revised  laws  of  this  State,  apply  to  this  case. 
<L.  N.  Y.,  11  sess.,  ch.  7;  11  sess.,  ch.  36,  sec. 
13.)  The  former  applying  only  as  to  the  per- 
sons against  whom  a  remedy  is  provided,  to 
the  executors,  administrators,  and  assigns,  of 
lessees  for  lives  or  for  years;  the  latter  to  rents 
accrued  in  the  time  of  the  testator,  or  intestate. 
It  must,  therefore,  depend  upon  the  express  cov- 
enant of  the  parties,  whether  this  action  is 
sustainable. 

25*]  *The  covenant  imports  that  Jacob  Plai- 
ner, the  defendants'  testator,  for  himself,  his 
heirs  executors,  administrators  and  assigns,  cov- 
enanted, &c.,  to  and  with  John  Van  Rensselaer, 
the  plaintiffs'  testator,  his  heirs,  executors,  ad- 
ministrators and  assigns,  to  pay  the  rent. 

As  long  as  both  parties  were  in  full  life,  this 
covenant  bound  the  defendants'  testator  to  pay. 
If  he  died,  from  the  terms  of  the  contract  the 
grantor  might  charge  the  heir  or  executor,  at  his 
election,  on  the  personal  contract  of  their 
ancestor  or  testator;  but  when  both  the  con- 
tracting parties  were  dead,  their  representa- 
tives must  either  claim  or  be  liable  on  the 
privity  of  contract,  or  on  the  privity  of 
estate  subsisting  between  them. 

In  the  case  of  Brett  v.  Cumberland  (Cro.  Jac., 
521),  the  distinction  between  the  operation  of 
covenants  in  deed  and  in  law  is  clearly  taken.  It 
was  an  action  of  covenant,  by  an  assignee  of  a 
reversion  against  the  executor  of  a  lessee  for 
life,  on  a  covenant  for  repairs.  The  court 
had  resolved  that  the  clause  in  the  lease  on 
which  this  question  arose,  was  a  covenant  in 
deed,  in  contradistinction  to  a  covenant  in 
law.  And  the  action  was  held  to  be  maintain- 
able on  the  statute  32  Hen.  VIII.  (c.  34),  "for 
that  by  the  express  words  of  the  statute  it 
runs  along  with  the  land,  and  notwithstanding 
the  assignment,  the  covenantor  and  his  exe- 
cutor are  always  chargeable;  for  the  executors 
are  not  chargeable  by  reason  of  the  privity  of 
contract,  but  by  reason  of  the  covenant  itself; 
and  by  the  express  words  of  that  statute  such 
remedy  as  the  lessor  might  have  against  the 
lessee  or  his  executors,  the  assignee  shall  have 
against  them,  it  being  a  covenant  in  deed 
which  runs  with  the  land;  but  it  is  otherwise 
of  a  covenant  in  law,  which  is  only  created  by 
the  law,  or  of  a  rent  which  is  created  by  rea- 
436 


i  son  of  the  contract,    and  is  by  reason  of  the 
|  profits  of  the  land,    wherein  none  is  longer 
chargeable  with  them  than  the  privity  of  the 
estate  continues  with  them." 

*From  the  words  of  our  statute,  as  [*2O 
well  as  the  preamble  of  the  English  statute, 
which  has  been  re-enacted  with  some  altera- 
j  tions,  adapting  it  to  the  circumstances  of  this 
state,  but  which  alterations  do  not  change  the 
objects  to  which  it  is  applied,  it  appears  that 
the  remedy  was  only  intended  to  be  applied  to 
estates,  in  legal  contemplation,  capable  of 
being  transmitted  through  the  personal  repre- 
sentatives. This  rent  is  a  fee-farm  rent  (Harg. 
Co.  Litt.,  145,  b,  n.  5),  or  rent-charge;  it  is 
perpetual.  The  rent  is  real  estate;  and  so, 
certainly,  is  the  estate  out  of  which  it  issues; 
the  rent  and  the  land  granted  are  equally  trans- 
missible to  the  heirs  of  the  persons  seized. 

If  the  statute  does  not  apply,  then  this  is  a 
case  at  common  law,  and  stronger  than  that 
to  which  the  statute  intended  to  apply  a  reme- 
dy. In  those  instances  certain  reversions  were 
vested  in  the  heir  of  the  grantor;  here  the  re- 
version is  only  contingent.  If  the  covenant 
descends  with  the  land,  it  must  equally 
descend  with  the  rent  issuing  out  of  the  land; 
and  if  so,  the  personal  representatives  cannot, 
after  the  death  of  the  parties,  and  for  rents 
accruing  after  the  death  of  both,  either  main- 
tain or  be  subject  to  an  action. 

On  the  privity  of  contract,  the  defendants 
cannot  be  liable*  to  the  plaintiffs,  because  they 
are  not  legally  competent  to  represent  the  mere 
personal  rights  of  their  testator,  arising  from 
the  contract. 

They  cannot  otherwise  represent  him  than 
as  the  rights  of  the  testator  devolve  upon 
them;  but  those  being  merely  taken  as  devi- 
sees, they  are  strictly  confined  to  the  real 
estate. 

If  they  claim  against  the  defendants'  deduc- 
ing their  title  by  the  devisee,  they  must  claim 
on  the  principle  that  the  common  ligament, 
the  estate  charged,  unites  them  in  interest,  as 
privies,  with  the  defendants;  but  is  not  pre- 
tended that  the  executors  hold  the  .estate  or 
have  any  interest  in  it,  and  on  this  ground  the 
action  is  not  attempted  to  be  sustained.1 
*We  are,  therefore,  of  opinion  that  the  [*27 
plaintiffs'  claim  is  radically  and  incurably 
defective,  and  that  the  judgment  ought  to  be 
arrested. 

Judgment  arrested. 

Distinguished— 19  N.  Y.,  80. 

Cited  in-26  N.  Y.,  564;  32  Barb.,  465;  1  Bradf.,  54. 


CASE  v.  SHEPHERD. 

1.  Justice — Proceedings  of— After  Certwrari — 
Dispossession — Coram  non  judice — Liability 
for  Trespass.  2.  Entry  —  Ouster  —  Damages 
— Mesne  Profits — Trespass. 

Where  a  justice,  after  a  certlorarl  from  this  court 
was  delivered  to  him,  proceeded  to  try  the  issue  of 
traverse  on  an  indictment  under  the  act  to  prevent 
forcible  entries  and  detainers,  and  the  defendant 

1.— See  1  Saund.,  241,  n.  5 ;  H.  Dyer,  309,  o;  Co.  Lit., 
215,  a;  Cro.  Eliz.,  863;  3  Term,  393. 

JOHNSON'S  CASES,  2. 


1800 


KELLY,  WIDOW,  v.  HARRISON. 


27 


being  found  guilty,  the  writ  of  restitution  was 
issued,  and  the  defendant  turned  out  of  possession, 
it  was  held  that  the  proceedings  of  the  justice, 
after  the  certiorari,  were  coram  non  judice,  and 
void,  and  that  the  justice  was  liable  to  an  action  of 
trespass. 

Where  an  entry  is  followed  by  an  ouster,  the 
party  can  recover  damages  only  for  the  mere  tres- 
pass or  entry;  but  if  he  makes  a  re-entry  and  lays 
his  action  with  a  cnntinuanda,  he  may,  then,  recov- 
er damages  for  the  mesne  profits  or  subsequent 
acts,  as  well  as  for  the  trespass. 

Citations— Cro.  Car.,  361 ;  1  Salk.,  353;  11  Sess.,  ch. 
2,  sec.  4;  Com.  Rep.,  81;  2  Bl.  Rep.,  1145,  1085; 

1  Burr.,  596,  603 ;  8  Co.,  114, 131 ;  Str.,  710,  993 ;  Cowp., 
040,  647;  1  Ld.  Raym.,  454,  468,  470;  1  Ld.  Raym.,  693; 

2  Salk.,  639 ;  2  Ld.  Raym.,  975,  977 ;  1  Deon.,  303,  319 ; 
13  Co.,  600 ;  3  Bl.  Com.,  210 ;  Co.  Litt.,  275. 

THIS  was  an  action  of  trespass  qua,re  claus- 
umfregit,  for  treading  down  the  plaint- 
iff's grass,  and  cutting  and  carrying  away 
wheat,  rye,  oats,  &c.,  from  his  close,  &c. 
Plea,  not  guilty.  The  cause  was  tried,  at  the 
Rensselaer  Circuit,  before  Mr.  Justice  Benson. 

The  defendant  was  a  justice  of  the  peace; 
and  in  July,  1797,  the  plaintiff  was  indicted 
before  him,  under  the  act  to  prevent  forcible 
entries  and  detainers.  The  plaintiff  pleaded 
to  the  indictment,  but  before  the  trial  of  the 
traverse,  he  obtained  a  certiorari  from  this 
court  to  remove  all  the  proceedings,  which  he 
delivered  to  the  defendant,  who,  notwithstand- 
ing, proceeded  to  try  the  issue,  on  which  the 
present  plaintiff  was  found  guilty.  The  de- 
fendant thereupon  issued  a  warrant  of  restitu- 
tion, in  the  usual  form,  to  the  sheriff  of  the 
county,  by  virtue  of  which  the  plaintiff  was 
turned  out,  and  one  Bull  put  into  possession 
of  the  premises. 

The  plaintiff  offered  to  prove  that,  at  the 
time  Bull  was  put  into  possession,  there  were 
28*]  crops  of  wheat  and  rye,  *growing  on 
the  premises,  which  were  reaped  by  him  and 
converted  to  his  own  use.  The  defendant 
objected  to  this  testimony,  but  the  objection 
was  overruled  by  the  judge  and  the  evidence 
admitted.  The  plaintiff  proved  that  Bull 
reaped  about  200  bushels  of  rye,  and  400 
bushels  of  wheat,  and  the  jury,  thereupon, 
found  a  verdict  for  the  plaintiff  for  $265  dam- 


A  motion  was  made  to  set  aside  the  verdict, 
and  for  a  new  trial. 

Mr.  Emott  for  the  plaintiff. 

Mr.  Woodworth  for  the  defendant. 

Per  Curiam.  There  can  be  no  doubt  that 
the  delivery  of  the  certiorari  to  the  justice 
superseded  his  powers,  and  rendered  all  subse- 
quent proceedings  before  him  coram  nonjudice, 
and  void.  (Cro.  Car., 261;  1  Salk.,  352.)  The 
act  requiring  bail  in  certain  cases  (11  sess.,  ch. 
2,  sec.  4)  upon  certioraris,  does  not  apply  to 
the  case  of  an  indictment  before  a  justice, 
under  the  statute  of  forcible  entry  and  detainer; 
for  it  is  not  a  judgment  or  order  within  the 
meaning  of  the  act. 

As  the  magistrate  holds  a  court  of  a  special 
and  limited  jurisdiction,  and  proceeded  after 
his.  power  was  taken  away  by  the  certiorari,  he 
became  a  trespasser,  and  is  liable  as  such. 
(Com.  Rep.,  81;  2  Bl.  Rep.,  1145,  1035;  1 
Burr.,  596,  602;  8  Co.,  114,  121;  Str.,  710,  993; 
Cowp.,  640,  647;  1  Lord  Raym.,  454,  468, 
470.) 
JOHNSON'S  CASES,  2. 


The  only  question,  therefore,  is  as  to  the 
extent  of  the  damages  to  be  recovered,  or 
whether  the  defendant  is  to  be  made  responsi- 
ble for  the  consequential  damages  of  the 
ouster. 

In  this  case  the  trespass  is  laid  with  a  contin- 
uando;  but  the  distinction  as  to  the  amount  of 
damages  to  be  recovered  in  this  action,  is  this; 
after  an  ouster,  you  can  only  recover  for  the 
simple  trespass  or  the  first  entry;  for,  though 
*where  there  is  an  ouster,  every  subse-  [*29 
quent  act  is  a  continuance  of  the  trespass,  yet 
in  order  to  entitle  the  plaintiff  to  recover  dam- 
ages, for  the  subsequent  acts,  there  must  be  a 
re-entry.  But  after  a  re-entry  he  may  lay  his 
action  xwith  a  continuando,  and  recover  mesne 
profits,  as  well  as  damages,  for  the  ouster. 
(1  Lord  Raym., 692;  2  Salk.,  639;  2  Lord 
Raym.,  975,977;  ILeon.,  302,319;  13  Co., 
600;  Menville's  case;  3  Black  Com.,  210;  Co. 
Litt.,  257.)  The  present  suit  was  commenced 
before  any  re-entry  by  the  plaintiff ;  he  is, 
therefore,  entitled  to  recover  damages  for  the 
first  entry  only,  or  single  trespass,  and  not 
for  the  crops.  There  must  be  a  new  trial, 
with  costs  to  abide  the  event  of  the  suit. 

New  trial  granted. 

Discussed— 16  Wend.,  41. 

Cited  in— 8  Wend.,  466 ;  13  Wend.,  666;  19  Id.,  509; 
3  Cow.,  309 ;  6  Hill,  331 ;  25  Hun.,  438 ;  1  Barb.,  177 : 
14  Id.,  99. 


KELLY.  Widow.  «.  HARRISON. 

1.  Naturalization — Alien  Wife — Dower  Eight — 
Time  of  Seizin  —  Revolutionary  War.  2. 
Division  of  Empire — Forfeiture. 

K.,  a  native  of  Ireland,  removed  to  New  York  in 
1760,  where  he  continued  to  reside  until  his  death,  in 
1798.  He  left  a  wife  in  Ireland,  at  the  time  he  re- 
moved from  that  country,  having  been  married  in 
1750.  His  wife  was  a  native  off  Ireland,  having 
never  left  the  country,  but  continued  a  subject  of 
the  King  of  Great  Britain.  It  was  held  that  the 
wife  of  K.,  being  an  alien,  could  recover  dower  of 
those  lands  only  of  which  K.  was  seized  before  the 
American  Revoluti9n,  or  the  4th  of  July,  1776,  and 
not  of  those  he  acquired  after  that  period. 

Citations-Black  Com.,  131;  Co.  Litt.,  31;  7  Co.,  37 
b.;  Kirby  Rep.,  143;  7  Co.,  30. 

THIS  was  an  action  of  dower.  The  cause 
was  tried  before  Mr.  Justice  Radcliff ,  on 
the  18th  of  November,  1799,  when  a  verdict 
was  found  for  the  demandant,  subject  to  the 
opinion  of  the  court,  on  a  case  containing  the 
following  facts: 

The  marriage  of  the  demandant,  seizin  and 
death  of  her  husband  were  admitted.  ^The 
demandant  and  her  husband,  John  Kelly, 
were  born  in  Ireland,  where  they  were  mar- 
ried in  the  year  1750.  About  the  year  1760, 
John  Kelly 'came  to  the  city  of  New  York, 
where  he  resided  at  the  commencement  of 
and  during  the  American  revolution,  and  con- 


NOTE.— Aliens,  who  are,  effect  of  alienage.  Com- 
pare citations  at  end  of  case ;  Jackson  v.  Beach,  1 
Johns.  Cas.,  399,  and  note  in  this  edition ;  Dawson  v. 
Godfrey,  4  Cranch,  331 ;  Fairfax  v.  Hunter,  7  Cranch, 
603 ;  Blight  v.  Rochester,  7  Wheat.,  535. 

427 


29 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1800 


tinned  to  reside  in  the  State  of  New  York, 
until  his  death,  which  happened  in  the  autumn 
of  the  year  1798.  The  demandant  is  a  sub- 
ject of  the  King  of  Great  Britain,  having 
3O*]  *continued  to  reside  in  Ireland  from 
her  birth  to  the  present  time. 

Messrs.  B.  Livingston  and  D.  A.  Ogdtn,  for 
the  demandant,  cited  Plowden,  as  to  alienage, 
21,  26,  27,  81,  82,  119;  1  Vent.,  417;  1  P. 
Wms.,  127;  7  Co.,  54,  Calvin's  case;  Kirby's 
Rep.,  413;  Bract.,  427;  Stat.  7  and  10  Anne, 
Treaty  of  Peace  of  1803  (5  and  6  art.);  Treaty 
of  Amity  in  1794  (9  art,);  Molloy,  238;Goldsb., 
29;  5  Co.,  Page's  case;  Moore,  4;  Dyer,  282; 
7  Term  Rep.,  398. 

Messrs.  Troup  and  Hanson  for  the  defend- 
ant, cited  1  Bac.  Abr.,  tit.  Alien  (B)  and  (C). 

RADCLIFP,  J.  It  appears  that  John  Kelly 
was  a  subject  of  Great  Britain  previous  to  the 
Revolution;  that  he  resided  at  that  time  in  the 
city  of  New  York,  and  continued  to  reside  in 
this  State  until  his  death  in  1798.  His  widow, 
the  present  demandant,  has  always  resided  in 
Ireland,  and  continued  a  British  subject.  She, 
had,  therefore,  antecedent  to  the  Revolution,  a 
capacity,  in  the  event  of  her  husband's  death, 
to  take  and  demand  her  dower.  The  question 
is,  whether  by  the  Revolution  she  is  deprived 
of  that  right.  If  the  case  had  been  silent  as 
to  her  continual  residence  abroad,  it  might 
have  been  presumed  that  her  condition  fol- 
lowed that  of  her  husband;  but  she  is  express- 
ly stated  to  be  a  British  subject,  and  always  to 
have  remained  in  Ireland.  I  think  the  validi- 
ty of  her  claim,  therefore,  depends  on  the  gen- 
eral question,  how  far  the  rights  of  individuals 
with  regard  to  property  are  affected  by  the 
Revolution.  The  treaties  between  the  United 
States  and  Great  Britain  do  not  appear  to  me 
to  reach  this  case.  The  one  of  1783  merely 
forbids  all  forfeitures  and  confiscations  on 
either  side,  and  that  of  1794  provides  that  the 
subjects  and  citizens  of  both  nations,  holding 
lands  in  the  territories  of  the  other,  may  sell, 
devise  and  dispose  of  them  at  their  pleasure, 
and  shall  be  entitled  to  all  legal  remedies,  &c. 
These  provisions  seem  only  to  relate  to  rights 
that  are  vested  and  *complete.  The  in-  [*31 
terest  now  claimed  was  not  vested  either 
at  the  time  of  the  Revolution,  nor  at  the 
date  of  either  of  those  treaties,  and  is,  there- 
fore, to  be  considered  as  independent  of 
them. 

In  general,  the  severance,  or  revolutions  of 
empire,  I  think,  ought  not  to  affect  the  rights 
of  individuals  with  regard  to  property,  and  it 
does  not  appear  to  me  material  whether  that 
right  be  contingent  or  absolute.  It  is  suffi- 
cient that  it  had  a  commencement  or  incep- 
tion, and  actually  attached  to  a  specific  sub- 
ject. In  the  present  case,  the  demandant,  by 
her  intermarriage  with  John  Kelly,  had,  pre- 
vious to  the  Revolution,  acquired  a  right, 
eventually,  in  case  of  his  death,  to  be  en- 
dowed of  the  estate  of  which  he  was  then 
seized.  The  right  was  thus  far  acquired,  and 
although  dependent  on  the  contingency  of  her 
surviving  him,  she  ought  not  to  be  deprived 
of  it  by  the  circumstance  that  a  revolution  in- 
tervened before  the  contingency  happened. 
428 


Until  the  period  of  the  Revolution,  she,  there- 
fore, had  a  capacity  and  a  right  to  be  endowed 
at  his  death  of  the  lands  of  which  he  was  then 
seized,  and  had  been  seized  during  the  cover- 
ture, and  that  right  must  be  deemed  to  con- 
tinue. I  think,  however,  it  ought  not  to  be 
extended  beyond  that  period,  and  applied  to 
lands  subsequently  acquired.  At  the  revolu- 
tion she  became  an  alien,  and  her  husband  an 
American  citizen.  The  independence  of  this 
country,  by  creating  a  new  sovereignty,  neces- 
sarily had"  that  effect  (Black  Com.,  131;  Co. 
Lit.,  31).  The  general  principle,  therefore, 
that  an  alien  cannot  be  endowed,  seems  to  be 
properly  applicable  to  all  lands  which  her  hus- 
band acquired  in  the  character  of  an  Ameri- 
can citizen.  This  qualification  of  her  claim 
will  not  affect  any  right  which  had  actually  at- 
tached at  the  period  of  the  Revolution,  and 
such  rights  only  are  we  bound,  by  the  policy 
and  justice  of  the  case,  to  maintain.  She  had 
it  in  her  power  to  pursue  the  condition  of  her 
husband,  and  entitle  herself  to  the  like  claim 
in  his  subsequent  estate.  Not  having  done 
this,  she  must  be  deemed  to  have  continued  a 
British  subject,  and  ought  from  that  period  to 
be  restricted  to  her  rights  as  such. 

*I  am,  therefore,  of  opinion  that  the  [*32 
demandant  is  entitled  to  judgment,  in  respect 
to  those  lands  only  of  which  her  husband  was 
seized  before  the  Revolution,  to  wit,  on  the 
4th  of  July,  1776. 

KENT,  J.  The  demandant  must  be  consid- 
ered as  an  alien.  She  was  not  in  fact  a  resi- 
dent of  the  United  States  at  the  Declaration  of 
Independence,  nor  do  I  perceive  that  she  can 
be  considered  a  resident  by  construction  of 
law.  If  she  had  been  here  previously,  and 
was  at  the  time  absent,  animo  redeundi,  or 
although  she  had  never  resided  in  America^ 
yet  if  we  could  collect  from  the  case  that  the 
separation  between  her  and  her  husband  was 
intended  to  be  temporary  merely,  and  that,  in 
the  year  1776,  she  really  meditated  a  removal 
here,  and  afterwards  effected  it,  or  was  pre- 
vented by  inevitable  accident,  in  such  cases  I 
might,  perhaps,  be  disposed  to  consider  the 
residence  of  her  husband,  constructively,  as 
her  residence.  But  the  case  before  us  will  not 
justify  any  such  intendment.  Her  husband 
had  left  her  six  years  previous  to  our  inde- 
pendence, and  the  separation  continued  until 
his  death  in  1798.  The  inference  from  these 
facts  must  be  that  there  was  a  permanent 
separation,  by  agreement  of  the  parties,  and 
not  being  a  resident  within  the  United  States 
in  July,  1776,  either  in  fact  or  in  law,  nor 
naturalized  since,  she  is  an  alien. 

Being  an  alien,  the  next  point  that  arises  in 
the  case  is,  how  far  she  can  support  her  claim 
of  dower. 

I  admit  the  doctrine  to  be  sound  (Calvin's 
case,  7  Co.,  27  b;  Kirby's  Rep.,  413)  that  the 
division  of  an  empire  works  no  forfeiture  of  a 
right,  previously  acquired,  and  as  a  conse- 
quence of  it,  that  all  the  citizens  of  the  United 
States  who  were  born  prior  to  our  independ- 
ence, and  under  the  allegiance  of  the  King  of 
Great  Britain,  would  be  still  entitled  in  Great 
Britain  to  the  rights  of  British  subjects.  But 
the  rule  will  not  apply,  e  conxerso,  that  British 
subjects  have  with  us  the  privileges  of  citi- 
JOIINSON'S  CASES,  2. 


1800 


KELLY,  WIDOW,  v.  HARRISON. 


32 


zens;  and  for  this  evident  reason,  that  the 
sovereignty  of  the  United  States  was  created 
33*1  by  the  act  of  independence,  and  *there 
could  be  no  previous  right  acquired  in  respect  to 
it,  and  consequently  none  to  lose,  nor  could  it 
include  any  persons  other  than  residents  at  the 
time  within  its  jurisdiction.  The  Revolution, 
accordingly,  left  the  demandant  where  she 
was  before,  and  impaired  no  right  she  then  en- 
joyed. She  is  entitled  now  to  dower  in  all 
lands  of  which  she  would  have  been  dowable 
had  her  husband  died  at  that  time.  But  being 
an  alien  she  cannot  since  have  acquired  rights 
of  property  which  aliens  are  not  permitted  to 
acquire;  and  to  render  her  dowable  of  lands 
purchased  by  her  husband  subsequent  to  July, 
1776,  is  to  vest  her  with  a  right  not  then 
vested. 

By  marriage,  she  was  capable  of  being 
endowed  of  lands  purchased  by  her  husband 
at  any  time  during  the  coverture.  But  the 
right  could  not  attach  till  the  land  was 
purchased,  and  I  distinguish  between  the 
capacity  to  acquire  and  the  vested  right.  The 
Revolution  took  away  the  one,  and  did  not  im- 
pair the  other. 

I  am  of  opinion,  therefore,  that  if  the  lands 
of  which  dower  is  now  claimed  were  owned 
by  the  demandant's  husband  on  the  4th  July, 
1776,  she  is  entitled  to  dower,  otherwise  not. 

BENSON,  J.,  concurred. 

LANSING,  Ch.  J.  It  has  already  been  stated 
that  the  only  question  which  arises  in  this 
cause  is,  whether  the  demandant  is  capable  of 
taking  as  tenant  in  dower. 

It  was  admitted  in  argument  that  the  de- 
mandant, prior  to  the  Declaration  of  Independ- 
ence, had  a  capacity  to  take  as  such. 

In  determining  this  question,  I  do  not  think 
it  necessary  to  enter  into  a  minute  considera- 
tion of  the  effects  which  the  separation  of  the 
United  States  from  Great  Britain  had  on  the 
situation  of  the  subjects  of  that  crown,  inhabit- 
ing its  dominions,  beyond  those  States,  as  re- 
spects their  rights  in  them,  prior  to  the  Revolu- 
tion. 

34*]  *I  think,  however,  neither  justice, 
sound  sense,  nor  the  just  interpretation  of 
the  authorities  submitted  to  our  consideration, 
or  such  as  I  have  had  an  opportunity  of  ex- 
amining with  a  view  to  this  question,  impose 
it  upon  the  court  to  decide  on  principles 
analogous  to  those  which  influenced  the  decis- 
ions of  the  English  courts  in  the  several  stages 
in  which  they  acquired  or  lost  their  continental 
possessions. 

The  event  most  analogous  in  English  history 
to  the  separation  of  the  United  States  from 
Great  Britain,  is  that  of  the  loss  of  Normandy. 
The  Normons  claimed  England  by  conquest, 
and,  however  much  it  may  be  affected  to  be 
disguised,  actually  exercised  the  most  rigorous 
rights  derived  from  that  source;  and  though  in 
process  of  time  Normandy  became  only  a 
secondary  object  to  the  successors  of  William 
the  Conquerer,  it  might  justly  be  considered 
as  the  superior  or  ruling  State,  as  long  as  the 
rights  of  sovereignty  of  both  countries  were 
concentered  in  the  same  person. 

Their  sovereign,  however,  remained  in  Eng- 
JOHNSON'S.  CASES,  2. 


land.  Upon  the  separation  of  those  States,  it 
appears  from  7  Co. ,  20,  that  it  was  held  there 
that  all  such  lands  as  any  Norman  had,  either 
by  descent  or  purchase,  escheated  to  the  king, 
for  their  treason  in  revolting  from  their  liege 
lord  and  sovereign.  This  was  on  the  principle 
of  a  rebellion  against  their  feudal  chief;  but 
the  dictates  of  policy  must,  obviously,  have 
exclusively  influenced  an  opinion  so  extremely 
rigorous  and  unjust,  as  to  define  the  treason 
by  territorial  limits,  and  to  subject  the  Nor- 
mans, however  diversified  their  cases  might  be, 
in  consequence  of  their  promoting  or  assisting 
the  separation,  to  an  indiscriminate  loss  of 
property. 

This  case  cannot,  therefore,  be  admitted  as 
of  any  weight  in  forming  a  rule  Jiere. 

In  all  the  other  instances  presented  in  Eng- 
lish history,  the  countries  lost  or  acquired  were 
merely  in  right  of  the  crown.  The  principle  is 
universally  admitted  in  all  the  authorities  that 
birth  in  its  locality  is  the  test  of  subjection.  A 
person  under  the  allegiance  of  that  crown  has  a 
community  of  rights  as  a  subject,  and  owes 
allegiance  to  *it  as  such.  The  object  to  [*35 
which  that  allegiance  attached  continues  to 
exist;  and  a  new  modification  of  the  forms  of 
government,  as  respected  its  executive,  would 
not  be  permitted  to  vary  its  application. 

But  the  present  case  appears  under  a  some- 
what different  aspect.  The  United  States 
formed  a  portion  of  the  British  dominions,  but 
had  no  constitutional  influence  on  the  national 
will;  the  colonies  were  confessedly  subordinate. 
Among  them  were  found  no  objects  to  which 
allegiance,  as  derived  from  the  previously 
existing  government,  could  attach.  I  merely 
hint  at  this  distinction,  as  I  do  not  mean  to 
pursue  or  give  any  opinion  on  it.  It  is  im- 
portant, but  the  manner  in  which  I  contemplate 
the  subject,  does  not  lead  me  to  a  particular 
investigation  of  its  tendency. 

It  is  admitted  that  the  demandant  once  had 
a  capacity  to  take.  Her  .husband  obtained  the 
right  of  acquiring  and  holding  real  estate  in 
this  State  until  his  death.  There  is  no  pre- 
tence that  the  long  separation  between  them  is 
to  be  attributed  as  a  fault  to  her.  She  must, 
therefore,  in  legal  intendment,  be  considered 
as  under  the  control  of  her  husband.  It  does 
not  appear  that,  as  to  him,  she  has  done  any 
act  to  forfeit  her  dower.  Her  residence 
in  Ireland,  in  legal  construction,  must 
have  been  dictated  by  her  husband;  and  her 
domicile,  constructively,  is  that  of  her  hus- 
band. 

I  am,  therefore,  of  opinion  that  she  is 
entitled  to  recover,  whether  the  seisin  of  her 
husband  of  the  land  of  which  she  claims 
her  dower  was  before  or  after  the  Revolu- 
tion. 

LEWIS,  J.,  was  of  the  same  opinion. 


Judgment  for  tfie  demandant  for  dower  in 
lands  of  which  her  husband  was  seized  prior  to 
tlie  Revolution. 


Distinguished— 5  Denio.  550. 

Cited  in— 3  Johns  Cos.,  Ill:  20  Johns,  324 ;  7  Wend., 
368:  16  Id.,  627;  3  Hill,  81;  3  Denio,  231;  2  N.  Y.,  250; 
1  Keyes,  364;  8  Barb.,  259;  9  Id.,  50. 

429 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


36*]  *LOOMIS  AND  TILLINGHAST 

SHAW. 

Marine  Insurance — Separate  Policies  on  Goods 
and  Profits  —  Capture  —  Partial  Return — 
Abandonment — Entitled  to  Pro  Rata  Loss  on 
Profits. 

Goods  were  insured  from  New  York  to  Havre, 
and  a  separate  policy  was  also  made  on  the  profits. 
The  vessel  was  captured  and  carried  into  London, 
and  the  goods  libeled  there.  Five  eighths  of  the 
goods  were  restored  to  the  insured,  who  received 
and  appropriated  them  to  their  own  use.  The 
insured  abandoned  to  the  insurers  on  the  policy 
on  the  profits,  as  for  a  total  loss.  The  insured 
claimed  and  recovered  an  average  loss  of  three 
eighths  only  on  the  goods.  It  was  held  that  they 
were  entitled  only  to  a  partial  loss  of  three  eighths 
on  the  profits.. 

THIS  was  an  action  on  a  policy  of  insurance 
on  the  profits  of  the  goods  laden  on  board 
the  ship  Favourite,  on  a  voyage  from  New 
York  to  Havre.  The  ship  and  goods  were 
captured  by  a  British  cruiser,  and  carried  into 
London,  and  libeled  in  the  Court  of  Admiralty 
there.  Five  eighths  of  the  goods  were  restored 
to  the  plaintiffs,  and  were  accepted  by  them, 
and  appropriated  to  their  own  use;  and  the  re- 
maining three  eighths  were  detained  in  court, 
but  whether  condemned  or  not,  did  not  appear. 
By  the  capture,  the  voyage  to  Havre  was 
broken  up,  and  none  of  the  goods  ever  reached 
France.  Under  the  policy  on  the  cargo,  the 
plaintiffs  claimed  and  recovered  an  average  loss 
of  three  eighths  only.  They  abandoned  to  the 
defendant,  and  the  question  on  this  policy  was 
referred  to  referees,  who  reported  in  favor  of 
the  plaintiffs  as  for  a  total  loss.  The  point 
now  submitted  to  the  court,  by  consent,  was 
whether  the  plaintiffs  are  entitled  to  a  total  or 
partial  loss  only,  and  the  report  was  to  be  con- 
firmed or  modified  accordingly. 

Mr.  B.  Livingston  for  the  plaintiff. 

Mr.  Harison  for  the  defendant. 

RADCLIFF,  J.,  delivered  the  opinion  of  the 
court: 

The  plaintiffs  are  entitled  to  recover  a  partial 
loss  only.  Profits  are  necessarily  incidental 
and  subject  to  the  final  disposition  of  the  goods 
on  which  they  are  expected  to  accrue.  The 
plaintiffs  in  the  present  Case  have  actually  re- 
ceived five  eighths  of  the  goods,  and  appro- 
priated the  proceeds  to  their  own  use.  Whether 
they  yielded  any  profit,  or  sold  at  a  loss,  does 
not  appear;  and  it  is  not  material,  since  the 
plaintiffs  chose  to  accept  them  at  London,  and 
take  the  benefit  of  the  market  there.  They 
are,  therefore,  at  most,  entitled  to  an  average 
loss  of  three  eighths  only. 
37*]  *Let  the  report  of  the  referees  be  re- 
duced, and  judgment  be  entered  accordingly. 

Cited  in— 3  Johns.  Cas.,  43. 


JACKSON,  EX  DEM.  GIFFORD, 

SHERWOOD. 

Hoosick  Patent — Boundaries. 

The  boundaries  of  Hoosick  patent  are  to  be  taken 
according  to  the  survey  and  map  made  for  the 
partition  thereof  in  1754.  See  2  Caines,  177. 

NOTE.— Insurance  on  vrofits.  See  note  to  Abbott 
v.  Lebor,  8  Johns.  Cas.,  39.  See,  also,  3  Caines,  345 ;  1 
Johns.,  433. 

430 


HPHIS  was  an  action  of  ejectment.  The  cause 
J-  was  tried  at  the  last  Kensselaer  Circuit  be- 
fore Mr.  Justice  Benson. 

The  plaintiff  claimed  under  a  patent  from  the 
State,  dated  the  14th  August,  1786,  to  William 
Shepherd  and  Joshua  Mercereau,  and  deduced 
a  regular  title  by  deed  to  the  lessor  for  one 
tenth  and  one  eighth  parts  of  the  lands  in  the 
patent. 

The  lands  in  the  patent  to  Shepherd  and 
Mercereau,  are  bounded  on  the  north  by  the 
south  bounds  of  another  patent,  called  the 
Hoosick  patent,  granted  the  28th  July,  1688, 
in  which  the  boundaries  are  described  as  fol- 
lows: "  All  that  tract  of  land,  with  its  appur- 
tenances, situate,  lying  and  being  above 
Albany,  on  both  sides  of  a  certain  creek,  called 
Hoosick,  beginning  at  the  bounds  of  Shackook, 
and  from  thence  extending  to  the  said  creek, 
to  a  certain  fall  called  Quiquek,  and  from  the 
said  fall  upwards  along  the  creek  to  a  certain 
place,  called  Nachawickquack,  being  in 
breadth  on  each  side  of  the  said  creek  two 
English  miles,  that  is  to  say,  two  English  miles 
on  the  one  side  of  the  said  creek,  and  two 
English  miles  on  the  other  side  of  the  said  creek, 
the  whole  breadth  being  four  English  miles, 
and  is  in  length  from  the  bounds  of  Shackpok 
aforesaid,  to  the  said  place,  called  Nachawick- 
quack." 

It  was  admitted  that  if  the  premises  in  ques- 
tion were  not  included  in  the  boundaries  of 
the  Hoosick  patent,  then  the  plaintiff  was 
entitled  to  recover;  but  if  they  were  so  in- 
cluded, then  the  plaintiff  must  fail. 

*The  plaintiff  produced  a  witness  who  [*38 
testified  that  all  the  premises  in  question  were 
within  the  distance  of  two  miles  from  some 
part  of  Hoosick  Creek,  so  that  if  the  south 
boundary  of  Hoosick  patent  is  two  miles  from 
any  part  of  the  creek,  the  premises  in  question 
are  included  in  the  Hoosick  patent;  but  if  the 
south  boundary  of  the  Hoosick  patent  is  to 
run  two  miles  distant  from  and  parallel  with, 
a  line  running  equidistant  from  two  lines, 
both  parallel  with  the  general  course  of  the 
creek,  the  one  on  the  north  side  thereof,  so  as 
just  to  touch  the  creek  at  its  extreme  windings 
northerly,  and  the  other  on  the  south  side  of 
the  creek,  so  as  just  to  touch  the  creek  in  its 
extreme  windings  southerly,  allowing  the  said 
lines  to  be  extended  in  length  as  far  only  as 
they  could  be  extended  in  a  straight  line  with- 
out crossing  the  creek  (and  which  was  the 
mode  taken  by  the  patentees  of  Hoosick  to 
reduce  the  boundaries  of  the  patent  to  a  cer- 
tainty, on  making  a  partition  thereof),  then 
the  premises  in  question  would  not  be  includ- 
ed in  the  Hoosick  patent,  but  would  be  part 
of  the  patent  to  Shepherd  and  Mercereau, 
under  which  the  plaintiff  claims. 

The  defendant  insisted,  first,  that  the  prem- 
ises in  question  were  part  of  the  Hoosick 
patent.  Second,  that  if  they  were  not  in- 
cluded within  the  bounds  of  that  patent,  still 
the  lessors  of  the  plaintiff  had  been  so  long  out 
of  the  possession  of  the  premises  that  they 
were  not  entitled  to  recover. 

The  defendant  proved  that  every  part  of  the 
premises  in  question  were  less  than  two  miles 
distant  from  the  Hoosick  Creek;  that  about 
seventeen  years  ago  there  was  a  line  of  marked 
trees  which  then  was,  and  ever  since  has  been, 
JOHNSON'S  CASES,  2. 


1800 


JACKSOX,  EX  DEM.  GIFFORD,  v.  SHERWOOD. 


38 


universally  reputed  the  south  bounds  of  the 
Hoosick  patent,  which  line  then  appeared  to 
have  been  marked  twenty  years  prior  to  that 
time;  that  this  line  included  the  premises  in 
question  as  part  of  the  Hoosick  patent;  and 
that  it  then  was,  and  ever  since  has  been,  the 
39*]  general  reputation  of  the  county,*  that 
the  premises  in  question  were  parcel  of  lot  No. 
46  in  the  patent  of  Hoosick. 

As  to  the  second  ground  of  objection,  the 
defendant  proved  that  persons  claiming  to  hold 
under  one  Van  Ness,  had  been  in  possession  of 
lot  No.  46  about  fifty  years;  that  on  account 
of  the  small  number  of  inhabitants  in  that 
vicinity,  there  was  no  general  reputation  as  to 
the  south  of  the  lot  No.  46,  farther  back  than 
about  seventeen  years.  It  appeared  that  the 
Van  Ness  mentioned,  was  Hendrick  Van 
Ness,  one  of  the  patentees  of  the  Hoosick 
patent. 

There  was  no  evidence  that  the  lessor,  nor 
any  of  the  persons  under  whom  he  claimed, 
had  ever  been  in  possession  of  the  premises  in 
question ;  but  the  defendant  had  been  in  pos- 
session of  the  premises  ever  since  they  were 
inclosed  and  prior  to  the  patent  to  Shepherd 
and  Mercereau. 

A  map  of  the  partition  of  Hoosick  patent 
was  made  in  1754,  and  lot  No.  46  was  one  of 
the  lots  into  which  the  patent  was  divided. 
This  map  was  produced  in  evidence.  Two 
surveyors  were  produced  as  witnesses,  who 
testified  that  different  modes  were  taken  by 
different  surveyors,  for  reducing  to  certainty 
the  boundaries  of  lands  described  in  the  man- 
ner the  bounds  were  described  in  the  Hoosick 
patent,  and  that  in  the  opinion  of  the  wit- 
nesses, the  mode  adopted  to  ascertain  the 
boundaries,  in  order  to  make  the  said  parti- 
tion, was,  under  the  circumstances,  as  equita- 
ble and  as  practicable  as  any  other. 

The  judge  charged  the  jury  that  as  the  pat- 
entees of  Hoosick  patent  had  elected  that 
mode  of  ascertaining  the  boundaries  of  their 
patent,  they,  and  all  persons  claiming  under 
them,  were  concluded  by  it.  The  jury  found 
a  verdict  for  the  plaintiff. 

A  motion  was  made  to  set  aside  the  verdict 
and  for  a  new  trial,  which  was  argued  by 
Messrs.  Bliss  and  Woodwarth  for  the  defend- 
ant, and  Mr.  Emott  for  the  plaintiff. 

4O*]  *RADCLIFF,  J.  The  plaintiff  claims 
under  a  patent  granted  to  Shepherd  and  Mer- 
cereau, in  the  year  1786,  and  derives  his  title 
by  sundry  mesne  conveyances  from  those  pat- 
entees. It  appears  that  neither  he  nor  those 
under  whom  he  claims  were  ever  in  possession 
of  the  premises  in  question,  but  that  the 
defendant  has  possessed  them,  under  an  oppo- 
site title,  ever  since  they  were  inclosed  or  cul- 
tivated, and  for  a  long  time  previous  to  the 
date  of  the  patent.  During  all  this  period, 
therefore,  the  possession  was  held  adverse  to 
the  plaintiff's  title,  and  although  the  govern- 
ment might  be  considered  as  competent  to 
grant  its  right,  when  reduced  to  a  chose  in 
action,  it  was  not  competent  for  the  grantees 
to  convey  it  to  another.  The  subsequent  con- 
veyances under  which  the  plaintiff  claims  were 
void,  as  founded  on  maintenance,  and  could 
not  pass  the  title.  This  principle  alone  opposes 
a  bar  to  the  plaintiff's  recovery. 
JOHNSON'S  CASES,  2. 


2.  From  the  testimony  of  the  cause  and  an 
examination  of  the  map,   which  was  in  evi- 
dence at  the  trial,  and  accompanies  the  case,  it 
appears  that  all  the  premises  in  question  lay 
within  two  miles  of  the  Hoosick  River.    They 
are,  therefore,  on  the  most  rigorous  construc- 
tion, within  the  patent  of  Hoosick,  which,  be- 
ing the  elder  patent,  must  first  be  satisfied. 

3.  If  we  admit  the  location   made  by  the 
proprietors  of  the  Hoosick  patent  in  1754  to  be 
conclusive,  the  premises  are  equally  within  it. 
This  will  also  appear  from  an  inspection  of 
the  map  and  the  modes  of  survey  there  adopt- 
ed.     On  every  ground,  therefore,  I  think  the, 
plaintiff  cannot  recover. 

The  case  presented  to  the  court  is,  however, 
obscure,  and,  in  some  respects,  apparently  in- 
consistent. It  may,  at  least,  be  said  that  there 
are  not  sufficient  facts  to  enable  us  to  decide 
with  safety  on  the  rule  which  ought  now  to 
prevail  in  establishing  the  boundaries  of  the 
Hoosick  patent.  Independently  of  the  location 
made  by  the  patentees  and  the  possessions  held 
under  it,  the  original  construction  of  its  bound- 
aries might  be  attended  with  some  difficulty. 
The  *plain  and  obvious  mode  to  satisfy  [*4 1 
the  terms  of  the  grant,  would  be  to  give  them 
the  extent  of  two  miles  on  each  side  of  the 
Hoosick  River,  conformable  to  all  its  windings, 
if  that  be  practicable.  Several  other  modes 
have  been  suggested  and  analogies  between 
this  and  other  cases  attempted,  which  appear 
either  arbitrary  in  themselves,  or  too  loose  and 
uncertain  to  furnish  a  rule  for  decision. 
Boundaries  of  a  similar  description  have,  I 
believe,  in  many  instances,  either  been  settled 
by  accommodation,  or  established  by  a  length 
of  possession  and  the  acquiescence  of  all  pa  r- 
ties.  But  there  is  not  sufficient  evidence  be- 
fore us  of  the  possessions  on  the  exterior  lin  es 
of  this  patent,  under  the  location  of  1754,  to 
proceed  on  that  ground,  or  of  the  notoriety  of 
that  location,  to  ascertain  how  far  those  lines 
had  acquired  a  prior  reputation,  as  to  the 
boundaries  of  Hoosick,  antecedent  to  the  pat- 
ent of  1786.  If  those  lines  and  the  possessions 
in  conformity  to  them,  had,  previous  to  that 
period,  been  generally  known  and  understood 
to  form  the  boundaries  of  Hoosick,  it  might  be 
a  fair  construction  of  the  subsequent  statute 
to  limit  its  northern  extent  by  the  reputed 
boundaries  of  Hoosick.  They  might  then  be 
considered  as  the  boundaries  de  facto,  which 
both  government  and  the  subsequent  patentees 
had  in  view.  But  I  think  enough  does  not 
appear  to  determine  generally  the  question  on 
either  of  those  patents,  and  I,  therefore,  in  the 
present  case,  confine  myself  to  the  points  first 
mentioned,  and  am  of  opinion  that  the  verdict 
ought  to  be  set  aside  and  a  new  trial  granted. 

KENT,  J.  1.  It  appears  that  the  lessor  of 
the  plaintiff  claims,  by  mesne  conveyances, 
under  the  patent  of  1786 ;  and  that  at  the  time  of 
those  conveyances,  the  premises  must  have 
been  held  adversely  by  the  defendant,  so  that 
nothing  passed  by  the  deeds.  This  objection, 
however,  would  only  serve  to  turn  the  plaint- 
iff round  to  a  new  suit,  in  the  name  of  the 
persons  from  whom  he  derives  his  title,  and 
would  not  answer  the  expectations  of  the  par- 
ties, who  Undoubtedly  intended  by  the  [*42 
case  to  bring  the  merits  of  the  controversy  be- 

431 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


fore  the  court.     I  shall  then  proceed  to  con- 
sider it  further. 

2.  It  is  said  that,  under  all  the  circumstances 
of  the  case,  the  party  taking  the  patent   of 
1786,  and  by  which  he  is  bounded  generally  on 
the  patent  of  Hoosick,  ought  to  be  concluded 
by  the  boundaries  of  the  patent  of  Hoosick  as 
they  existed  in  fact  and  by  reputation,  at  the 
date  of  the  last  patent.  It  ought  to  be  observed 
that  the  Hoosick    patent  is  a    very    ancient 
one;  that  the  description  of  its  boundaries  is 
susceptible  of  different  constructions;  that  the 
patentees  in  1754,  by  a  map  of  partition,  located 
those  boundaries;  and  that  the  patent  had  a 
reputed  boundary,  which  included  the  prem- 
ises, at  the  time  of  the  patent  of  1786.     The 
patentee  of  1786  must  be  presumed  to  have 
knowledge  of  the  location  and  map  of  1754, 
and  the  reputation  of  the  boundaries,  as  exist- 
ing since;  and  for  the  sake  of  peace,  and  to 
quiet  possession,  it  becomes  a  reasonable  and 
useful  construction  to  restrict  the  boundary  of 
the  latter  patent  to  the  actual  boundary  of  the 
former.     By  this  construction,  the  words  of 
the  last  patent  can  be  satisfied;  whereas  the 
necessary    consequence    of    the    construction 
set  up  by  the  plaintiff  is  litigation,  by  dis- 
turbing   possessions    held    under    a    location 
long  anterior  to  the  patent.     On  this  ground 
I     think    the    lessor    of     the    plaintiff    has 
failed. 

3.  But  admitting  that  we  ought  now    to 
ascertain  from  the  patent  of    Hoosick  itself 
what  is  its  true  south  boundary,  the  result  in 
my  opinion  is  the  same.      The  natural  and 
easy  construction  of   the  description  of  the 
boundaries  appears  to  me  that  of  lines  paral- 
lel with  the  creek,  at  two  miles  distance  from 
it,  on  each  side,  and  following  the  windings 
of  the  same  as  far  as  they  will  permit,  so  as 
not,  however,  in  any  instance,   to  approach 
nearer  than  two  miles  of  the  main  channel  of 
the  creek.     The  line  must  follow  the  course  of 
the  river,  from  the  place  of  beginning  to  the 
place  of  ending,  and  in  doing  so,  it  is  not  suffi- 
cient to  follow  the  general  course  of  the  creek. 
There  is  nothing  sufficiently  precise  in  that. 
43*]  But  to  follow  the  actual  *course  of  the 
creek,  in  all  its  inflexions,  with  the  exception, 
nevertheless,    of    such    (if    any  there  be)  as 
would  require  a  nearer    approach  than  two 
miles  to  the  creek,  is  to  do  a  thing  capable  of 
mathematical  certainty. 

We  have  something  like  an  analogous  case, 
in  the  northern  boundary  line  of  Massachusetts. 
By  the  charter  of  that  colony,  the  line  ex- 
tended from  three  miles  north  of  the  Merrimac 
River,  to  the  South  Sea.  This  was  determined 
to  extend  to  three  miles  north  of  the  mouth  of  the 
river  (2  Hutch.  Hist,  Mass.,  383,  386,  388;  1 
Doug.  Summarys  421,  422,  423;  3  Belknap 
Hist.  N.  H.,  9),  and  to  run  parallel  with 
the  river,  keeping  three  miles  distant,  and 
pursuing  a  course  similar  to  the  curvature  of 
the  river,  until  it  came  to  such  an  inflexion  at 
Patucket  Falls  as  would,  if  pursued,  be  in- 
equitable and  defeat  other  grants. 

Upon  this  construction  the  plaintiff  fails, 
for  it  is  stated  in  the  case  that  all  the  premises 
lie  within  two  miles  from  some  part  of  the 
creek.  So  that  upon  either  of  these  three 
grounds,  I  am  of  opinion  that  the  verdict  must 
be  set  aside. 
432 


BENSON,  J.,  and  LEWIS,  J.,  concurred. 

LANSING,  Ch.  J.  On  the  motion  on  the 
part  of  the  defendant  to  set  aside  the  verdict 
in  this  cause,  it  was  stated, 

1.  That  the  premises  were  included  in  the 
Hoosick  patent. 

2.  That  the  plaintiff  had  been  so  long  out  of 
possession  that  he  was  not  entitled  to  recover. 

As  connected  with  the  first  point,  the  posi- 
tion laid  down  by  the  judge  that  the  patentees, 
having  elected  the  mode  exhibited  in  the  map 
for  ascertaining  the  boundaries,  were  con- 
cluded by  it,  and  all  claiming  against  them 
were  also  concluded,  demands  a  primary  con- 
sideration, for  if  this  can  stand  the  test  of  ex- 
amination, it  is  needless  to  inquire  what  were 
the  real  boundaries  of  the  patent. 

*That  such  a  location  of  an  ancient  [*44 
date,  known  and  acknowledged  by  the  pro- 
prietors of  the  adjoining  patents,  for  a  long 
series  of  years,  or  tacitly  acquiesced  in,  by 
permitting  the  settlements  and  possessions  to 
define  its  lines,  ought  to  be  respected,  and 
under  certain  circumstances,  admitted  to  con- 
clude the  parties  interested,  I  do  not  mean  to 
question,  but  I  cannot  discover  any  ingredi- 
ents requisite  to  produce  this  effect  in  the 
present  case. 

All  that  appears  from  the  case  respecting 

the  map  is,  that  it  had  been  proved,  "  that  a 

map  of  partition  of  the  patent  of  Hoosick  was 

made  in  the  year  1754,  and  that  lot  No.  46 

I  was  one  of  the  lots  into  which  the  patent  was, 

j  in  that  partition,  divided." 

It  is,  then,  a  naked  fact  that  a  map  of  par- 
i  tition  was  made  in  the  year  1754.     It  does  not 
i  appear  to  have  been  publicly  known,  nor  does 
I  it  appear  that  the  possessions  of  the  proprie- 
tors who  compiled  that  map  were  co-extensive 
with  the  lots  laid  out.     But  it  is  proved  that 
persons  claiming  to  hold  under  one  Van  Ness, 
had  been  in  possession  of  lot  No.  46  about 
fifty  years.     That  as  far  back  as  seventeen 
years  ago,   and   ever  since,  the  premises  in 
question  have  been   uninterruptedly  reputed 
by  that  neighborhood  to  be  parcel  of  lot  No. 
I  46 ;  and  it  is  added  that  the  defendant  had 
been  in  possession  of  the  premises,  ever  since 
they  were  inclosed  or  cultivated. 

This  map,  if  it  ought  to  be  considered  as 
concluding  the  parties  in  interest,  could  not 
possibly  affect  the  rights  of  strangers  in  the 
first  instance.  The  making  a  map  of  a  tract 
of  land  is  a  process  of  daily  occurrence.  To 
include  in  it  a  greater  extent  of  lands  than 
fair  construction  will  warrant,  is  not  uncom- 
mon. But  as  ex-parte  acts  they  are  of  little 
avail. 

This  map  is  so  far  from  concluding,  that  it 
cannot  be  admitted  in  evidence  to  the  prej- 
udice of  strangers  to  the  transaction.  But  a 
uniform  and  long  continued  acquiescence,  as 
well  on  the  part  of  the  parties  making  it  as  on 
those  intrusted  in  repelling  encroachments  on 
the  adjoining  tracts,  might  have  stamped  it 
with  a  higher  degree  of  verisimilitude.  It 
would  then  have  assimilated  with  a  usage. 
*It  would  have  formed  part  of  the  evi-  [*45 
dence,  if  not  of  its  existence,  at  least  of  its 
origin,  and  the  substantive  objects  distinguish- 
ing the  boundaries,  by  continuing  to  be  re- 
spected as  the  termini,  would  have  reflected  a 
JOHNSON'S  CASES,  2. 


]800 


JACKSON,  EX  DEM.  GIFFORD,  v.  SHERWOOD. 


45 


•credit  on  the  map  which  it  was  destitute  of 
before.  If  not  so  corroborated,  the  lapse  of 
time  which  has  intervened  from  its  construc- 
tion, in  my  opinion,  can  add  nothing  to  its 
effective  qualities. 

I  therefore  conclude  that  the  map  derives 
no  aid  from  extrinsic  circumstances;  and,  in- 
trinsically, nothing  is  to  be  collected  from  it, 
as  affecting  persons  not  parties  to  it. 

If  the  map  does  not  conclude,  then  we  are 
compelled  to  resort  to  the  patent  of  Hoosick, 
to  determine  the  question  between  the  parties. 

In  giving  a  construction  to  that  patent,  I 
differ  from  the  opinion  given  by  the  surveyors 
who  have  been  examined  on  the  trial  respect- 
ing it.  As  a  question  which  has  produced  a 
variety  of  sentiments  among  persons  most 
conversant  in  subjects  of  this  kind,  I  feel  some 
degree  of  diffidence  on  the  occasion,  but  as  I 
have  formed  an  opinion,  I  consider  it  my 
•duty  to  express  it.  And  I  do  this  with  the 
less  repugnance,  because  as  my  opinion  does 
not  accord  with  that  of  my  brethren  on  this 
point,  they  having  pursued  the  subject  in  a 
different  course,  it  may  afterwards  be  de- 
liberately considered  and  tested,  if  it  should 
again  become  an  object  of  controversy. 

The  patent  is  described  as  extending  be- 
tween two  points  on  the  Hoosick  Creek,  more 
than  twenty  miles  from  each  other,  the  pre- 
cise distance  it  is  not  material  to  ascertain;  it 
then  proceeds,  "  being  in  breadth,  on  each 
side  of  the  said  creek,  two  English  miles,  that 
is  to  say,  two  English  miles  on  the  one  side  of 
the  said  creek,  and  two  English  miles  on  the 
•other  side  of  the  said  creek,  the  whole  breadth 
being  four  English  miles." 

After  attentively  considering  this  subject,  it 
appears  to  me  that  the  location  of  this  patent 
ought  to  be  made  by  lines  running  parallel  to 
the  creek,  at  the  distance  of  two  miles  from  it; 
such  lines  to  be  so  constructed  as  to  conform 
46*]  *to  the  sinuosities  of  the  creek,  and 
-equidistant,  on  both  sides  from  it. 

That  a  conformation  may  exist  which  would 
not  admit  of  this  construction  of  bounds  des- 
cribed as  in  this  case,  I  can  easily  conceive 
and  readily  admit.  But  I  take  it,  the  court  are 
not  required  to  give  a  rule  applying  to  every 
possible  conformation.  As  well  might  it  be 
required  to  lay  down  a  rule,  equally  applica- 
.able  to  the  inscription  of  a  circle,  and  the  con- 
struction of  a  square.  If  the  rule  will  prop- 
erly apply  to  all  cases  similarly  circum- 
stanced, with  the  present,  it  is  all  that  is  nec- 
essary. 

To  exemplify  this  construction,  suppose 
three  concentric  equidistant  circles,  corres- 
pond to  one  of  the  curves  of  the  creek,  such 
curve  forming  a  segment  of  the  middle  .cir- 
cle, to  be  drawn.  It  is  evident  that  radii 
emanating  from  their  common  centre  to  the 
circumference  of  the  exterior  circle,  will  di- 
vide all  the  circles  into  proportions  of  equal 
relative  dimensions  as  compared  with  the  cir- 
cumference of  the  circle  of  which  they 
are  respectively  segments.  But  the  rela- 
tive dimensions  of  those  segments,  as  com- 
pared with  each  other,  will  be  greater  in  pro- 
portion as  the  size  of  the  circle  of  which  they 
form  a  portion,  is  increased.  Hence  the 
flexures  on  the  exterior  lines  require  to  be  ex- 
tended on  the  projecting,  and  contracted  on 
JOHNSON'S  CASES,  2.  N.  Y.  REP.,  1 


the  retiring,  curves  of  the  creek;  but  notwith- 
standing this  unavoidable  extension  or  con- 
traction, the  lines  may  preserve  their  equidis- 
tant relation  to  the  creek;  and  the  distance  of 
two  miles  may  be  located  throughout,  be- 
tween it  and  its  corresponding  windings  in 
the  exterior  lines. 

On  the  first  impression,  it  appeared  to  me 
necessary  to  inquire  what  angle  the  line  of  the 
patent  of  Schaghtikoke  formed  with  the  creek, 
at  the  place  of  beginning,  supposing  that 
whether  that  was  obtuse  or  acute,  might 
influence  the  extent  of  the  patent  on  the  creek, 
but  I  am  satisfied  it  ought  not.  The  creek  is 
the  term  to  which  the  extent  exclusively  re- 
lates. The  patent  is  to  extend  two  miles  from 
the  creek,  and  the  obvious  intent  of  the  ex- 
pression, uncontrolled  by  other  circumstances, 
is  that  it  shall  extend  two  miles  from  the 
creek,  measured  at  right  angles  *fromthe[*4  7 
place  of  departure  on  it.  And  if  it  should  be 
objected  that  the  line  of  the  Schaghtikoke  pat- 
ent formed  an  obtuse  angle  on  one  side  and 
an  acute  angle  on  the  other,  from  which  the 
extent  of  the  Hoosick  patent  was  to  progress, 
and  if  that  was  not  assumed  as  the  base,  a 
vacant  angle  would  be  left,  which  was  evi- 
dently not  the  intent  of  the  government,  the 
objection,  in  my  opinion,  may  be  satisfactorily 
obviated  by  commencing  the  exterior  lines  of 
the  patent  on  the  lines  of  the  Schaghtikoke 
patent,  at  the  distance  of  two  miles  from  the 
creek,  measured  at  right  angles  therefrom. 

The  construction  adopted  by  the  framers  of 
the  map  is  not  correspondent  to  the  one  I  sup- 
pose to  be  proper;  it  does  not  give  lines  par- 
allel to  the  creek,  or  parallel  to  each  other. 
In  some  places  it  departs  from  the  creek  con- 
siderably more  than  two  miles,  in  a  few  in- 
stances it  approaches  it,  so  as  to  be  within 
that  distance,  and  the  description  in  the  map 
is  at  variance  with  that  in  the  case. 

It  is  in  proof  that  the  premises  in  question  are 
considerably  within  the  distance  of  two  miles 
from  the  creek,  and  the  only  part  of  the  proof 
that  appears  not  to  be  perfectly  consonant  to 
this  is,  that  the  premises  are  within  two  miles 
of  some  part  of  it. 

From  the  inspection  of  -the  map,  it  seems 
that  the  formation  of  the  creek,  in  that  part 
which  affects  No.  46,  is  such,  that  though  the 
premises  are  within  two  mile.-*  of  some  part  of 
the  creek,  they  may  be  excluded  from  the 
Hoosick  patent,  on  the  construction  I  take  to 
be  the  true  one;  and  as  both  parties  have  re- 
posed themselves  on  its  delineations  as  correct, 
and  confined  themselves  merely  to  controvert 
or  defend  the  principles  on  which  the  patent 
was  located  by  it,  and  they  have  submitted 
the  map  as  part  the  case,  it  is  competent  to  aid 
in  the  decision  of  this  case.  If  this,  therefore, 
were  the  only  point  in  the  cause,  my  opinion 
would  be  for  the  plaintiff. 

The  second  point  is,  that  the  plaintiff 
had  been  so  long  out  of  possession  that  he 
is  not  entitled  to  recover.  If  this  objection 
is  accurately  expressed,  it  is  not  well  taken; 
for  from  the  date  of  the  patent  under  which 
the  plaintiff  *claims,  which  was  in  [*48 
1786,  the  lapse  of  time  could  not  bar 
his  recovery.  But  the  objection,  in  the 
course  of  the  argument,  resolved  itself  into 
another:  that  during  the  time  the  mesne  con- 
28  433 


48 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


veyances  under  which '  the  plaintiff  deduces 
his  title  were  executed,  the  defendant  held 
the  premises  adverse  to  him.  This,  in  my 
opinion,  presents  an  insuperable  bar  to  the  re- 
covery by  the  plaintiff;  for  if  the  premises  in 
question,  as  is  stated  in  the  case,  were  inclosed 
and  cultivated,  a  long  time  prior  to  granting 
the  said  letters  patent,  and  thedefedantwasin 
possession  since  that  time, the  conveyances  exe- 
cuted during  such  possession,  which  appears 
notoriously  to  have  been  adverse,  could  not 
pass  any  estate,  and  of  consequence  cannot 
afford  a  ground  for  recovery. 

There  is  one  other  point,  which  would  lead 
my  mind  to  the  same  conclusion,  and  that  is 
that  the  patent  of  Hoosick  had,  previous  to 
the  granting  the  letters  patent,  under  which 
the  plaintiff  claims,  acquired  an  extent,  as  re- 
spects the  line  in  controversy,  by  reputation, 
and  that  the  bounds  of  the  latter  patent  are 
not  denned  by  ascertained  metes  and  bounds; 
but  its  bounds  generally  refer  and  abut  on  the 
Hoosick  patent. 

This,  I  take  it,  in  legal  intendment,  must 
refer  to  the  reputed  boundaries  only,  as  a  con- 
trary construction,  by  devolving  the  unde- 
fined and  totally  unascertained  rights  of  the 
State  on  the  patentees,  must  introduce  infinite 
confusion  and  litigation. 

I,  therefore,  concur  in  the  opinion  that  the 
verdict  must  be  set  aside. 

New  trial  granted. 
Cited  in-10  Barb.,  182. 


49*] 


'PERCIVAL  e.  JONES. 


1 .  Justice — Issu ing  Body  Execution —  Ten  Pound 
Act — A  utJwrity — Privileged — False  Imprison- 
ment. 2.  Id.  Acting  Ministerially — Under 
Demand — Jurisdiction — Changing  Plaintiff. 

Where  a  Justice  of  the  peace,  under  the  ten  pound 
act,  issued  an  execution  against  the  body  of  a  de- 
fendant who  was  by  law  privileged  from  imprison- 
ment, voluntarily  and  without  the  request  or  au- 
thority from  any  plaintiff,  it  was  held,  that  he  was 
liable  to  an  action  for  false  imprisonment. 

•  Citations— Doug.,  676 ;  3  Wils.,  346 ;  1  Str.,  710 ;  2  Bl. 
Rep.,  1(85;  Cowp.,  640,  647;  2  Wils.,  385,  386. 

THIS  was  an  action  of  trespass,  assault  and 
battery,  and  false  imprisonment.  Plea 
not  guilty.  The  cause  was  tried  before  Mr. 
Justice  Kent,  at  the  last  sittings  in  New  York. 
The  defendant  was  a  justice  of  the  peace  in 
the  County  of  Albany.  A  suit  was  com- 
menced before  him,  in  favor  of  one  Chapin 
against  the  plaintiff  in  the  present  suit,  in 
which  a  judgment  was  recovered  in  favor  of 
Chapin.  After  the  expiration  of  forty  days, 
an  execution  was  issued  by  the  justice  against 
the  goods  and  chattels  of  Percival,  and  in  case 
no  goods  or  chattels  could  be  found,  his  body 
was  directed  to  be  taken,  which  is  the  usual 
form  of  an  execution  against  a  freeholder,  under 
the  act.  He  was  taken,  by  virture  of  the  exe- 
cution, and  imprisoned  for  thirty  days  in  the 
jail  in  the  city  of  Albany.  It  appeared  that 
Percival,  immediately  after  a  judgment  was 
so  obtained  against  him  by  Chapin,  declared  to 
the  justice  that  he  was  not  a  freeholder,  and 
434 


had  a  family  in  Albany,  where  he  was  an  in- 
habitant; which  facts  were  proved  at  the  trial. 
While  he  was  proceeding,  in  the  custody  of 
the  constable,  to  gaol,  he  met  the  defendant, 
and  again  alleged  that  he  was  not  a  freeholder, 
and  was  an  inhabitant  of  Albany,  and  had  a 
family  there,  but  the  defendant  directed  the 
constable  to  commit  him,  according  to  his  pre- 
cept. 

The  jury  found  a  verdict  for  the  plaintiff. 
A  question  was  reserved  by  the  judge,  whether 
if  the  plaintiff  was  not  a  freeholder,  and  had 
a  family,  the  justice  could  be  liable  to  a  suit 
for  issuing  the  execution,  and  whether  the 
present  action  was  the  proper  remedy.  If  the 
court  should  be  of  opinion  that  the  justice  was 
not  liable,  then  a  nonsuit  was  to  be  entered,, 
otherwise,  the  verdict  was  to  stand. 

Mr.  Spencer  for  the  plaintiff. 
Mr.  Riggs  for  the  defendant. 

*Per  Curiam.  By  the  10th  section  of  the  [*5<>- 
act,  commonly  called  the  Ten  Pound  Act,  it  is 
provided  that  the  justice  shall  grant  execution, 
&c.,  against  the  goods  and  chattels,  and  for 
want  of  sufficient  goods  and  chattels,  against 
the  body  of  the  defendant.  By  the  15th  sec- 
tion of  the  Act  for  the  Relief  of  Debtors,  with 
respect  to  the  imprisonment  of  their  persons, 
it  is  declared  that  no  person,  having  a  family, 
not  being  a  freeholder,  should  be  imprisoned 
by  virtue  of  any  execution,  to  be  issued  by 
virtue  of  the-former  act,  and  the  form  of  the 
execution  is  directed  to  be  against  the  goods 
and  chattels  only. 

In  the  present  case  the  plaintiff  was  an  in- 
habitant of  Albany,  having  a  family,  and  not 
a  freeholder.  He  has,  therefore,  been  illegally 
imprisoned.  He  has  sustained  an  injury,  and 
his  remedy  must  be  by  an  action  against  the 
party  or  his  agent  who  issued  the  execution. 
Justices  of  the  peace,  in  making  out  process, 
act  ministerially,  as  distinguished  from  their 
judicial  acts.  They  act  both  as  judge  and  as 
clerk,  and  in  the  latter  capacity  may,  and,  as 
to  executions,  they  generally  do,  act  as  agents 
for  the  party.  Mere  ministerial  officers  who, 
as  such,  issue  or  execute  process,  cannot,  nor 
ought  to  be  responsible  as  long  as  the  court 
from  which  it  issues  has  general  jurisdiction 
to  award  such  process.  But  the  party  who- 
sues  out  the  process  does  it  at  his  peril  and  he 
is  responsible.  (Doug.,  676;  3  Wils.,  346.) 

Some  difficulty  occurred  in  the  construction 
of  the  acts  which  have  been  mentioned,  as  to 
the  power  and  duty  of  a  justice,  in  cases  like 
the  present.  A  defendant  before  him,  under 
such  circumstances,  is  exempted  from  impris- 
onment by  the  provision  contained  in  the  last 
act,  but  no  mode  is  prescribed,  by  which  the 
facts  that  entitle  him  to  this  exception  are  to- 
be  proved  or  ascertained.  No  mode  can  be 
supplied  or  assumed  by  the  justice,  for  he  can 
possess  no  power,  nor  adopt  any  course  of  pro- 
ceeding, by  construction  or  implication.  Yet 
it  is  essential,  that  the  justice,  when  acting 
with  good  faith,  should  be  protected,  for  it 
would  be  intolerable  to  impose  on  him  the 
necessity  of  knowing,  officially,  the  property 
or  circumstances  of  every  person  in  the  com- 
munity. But,  at  the  same  time,  *the  [*5 1 
privilege  of  the  defendant  must  have  its  effect;. 
JOHNSON'S  CASES,  2.. 


1800 


ALLAIRE  v.  OULAND. 


51 


and  this  can  be  done  with  safety  to  the  magis- 
trate in  no  other  way  than  by  considering  the 
execution  as  issuing  at  the  peril  of  the  party 
demanding  it.  If  the  plaintiff  is  not  satisfied 
with  an  execution  against  the  goods  and  chat- 
ties, and  wishes  to  take  the  body  of  the  de- 
fendant, he  must  ascertain  at  his  own  risk, 
that  the  defendant  is  a  freeholder. 

In  courts  of  special  and  limited  jurisdiction, 
the  rule  is  strict  that  the  party  becomes  a  tres- 
passer who  extends  the  power  of  the  court  to 
a  case  in  which  it  cannot  lawfully  be  extended. 
(1  Stra.,  710;  2  Black.  Rep.,  1,035;  Cowp.,  640, 
647;  2  Wils.,  385,  386.) 

While  the  justice  acts  ministerially,  or  as 
clerk  of  the  party,  he  will  be  justified  in  issu- 
ing any  process  within  his  jurisdiction  that 
may  be  demanded  by  the  plaintiff.  But  in 
order  to  charge  the  plaintiff  in  the  suit,  it 
should  appear  that  it  was  really  his  act;  it 
ought  not  to  depend  on  the  general  intend- 
ment  of  the  law,  that  every  writ  or  process  is 
purchased  by  the  party  in  whose  favor  it  issues. 
If  it  appears  to  be  the  officious,  or  voluntary 
act  of  the  justice,  without  any  direct  authority 
for  that  purpose,  an  innocent  plaintiff  ought 
not  to  be  implicated.  In  such  a  case,  the  jus- 
tice assumes  the  responsibility  of  the  measure, 
and  is  liable  for  all  its  consequences.  No  au- 
thority to  the  justice,  or  demand  of  the  plaint- 
iff, is  pretended,  in  the  present  case.  The 
justice  was  told  by  Percival  that  he  was  not  a 
freeholder,  and  when  he  afterwards  met  him 
on  his  way  to  jail,  he  directed  the  constable  to 
obey  the  precept,  and  commit  ffim  to  prison. 
Any  general  presumption  of  authority  in  such 
a  case  must  cease,  and  we  must  conclude  that 
the  justice  acted  voluntarily,  and  took  upon 
himself  the  capacity,  and  consequently  the 
peril,  of  an  agent  of  Chapin.  He  is,  there- 
fore, answerable  to  the  plaintiff.  The  form 
of  the  action  is  proper.  The  plaintiff  has  been 
falsely  imprisoned  by  the  immediate  and  vol- 
untary act  of  the  justice,  and  the  remedy  must 
be  by  an  action  of  false  imprisonment.  The 
court,  are,  therefore,  of  opinion  that  the  plaint- 
iff is  entitled  to  judgment. 

Judgment  for  the  plaintiff . 

Distinguished— 3  Johns.  Gas.,  85;  7  Cow.,  250;  1 
Wend.,  215;  5  Wend.,  299. 

Criticised— 16  Wend.,  42. 

Cited  in— 11  Johns.,  445;  13  Id.,  328;  5  Wend.,  243;  6 
Wend.,  599;  7  Wend.,  91;  8  Wend.,  467,  681;  1  Denio. 
595;  5  Lans.,  259;  6  Lans.,  287;  41  Barb.,  105. 


52*|        *ALLAIRE  v.  OULAND. 

1.  Promise  to  Indemnify — Not  in  Writing — 
Entry  on  Anotlier's  Land — Consideration — 2. 
Id. — Action  Thereon — Allegation — Proof— 3. 
Id.  Id.  —  Surplusage — Proof — 4.  Verdict — 
Cures  Mistake. 

Where  matter  is  stated  in  a  declaration,  which 
might  have  been  struck  out,  on  motion,  as  surplus- 
age, it  need  not  be  proved  at  the  trial. 


Where  A  directed  B,  his  servant,  to  enter  a  cer- 
tain meadow,  which  he  said  belonged  to  him,  but 
which  was,  in  fact,  the  meadow  of  C  and  promised 
to  save  B  harmless,  the  promise  was  held  to  be  an 
original  undertaking,  and  not  necessary  to  be  in 
writing,  and  that  the  act  of  B  in  obeying  such  a 
command  of  A  was  lawful,  and  a  sufficient  consid- 
eration for  the  promise  of  indemnity. 

Where  a  promise,  in  one  of  the  counts  in  a  decla- 
ration, by  reference  to  the  day  in  the  preceding 
count,  was  laid  after  the  breach  assigned;  the  mis- 
take was  held  to  be  cured  by  the  verdict. 

Citations— Doug.,  642,  643;  2  Black.,  1,101;  Cowp.. 
671;  1  Term.  R.,  447;  3  Term.  R.,  531;  4  Term.  R.,  560. 
590,  687;  1  Term.  R.,  235;  12  Mod.,  127;  Doug.,  665;  1 
Term.  B.,  235. 

THIS  cause  came  before  the  court  on  a  writ 
of  error  from  the  West  Chester  Common 
Pleas. 

The  declaration  contained  four  counts.  The 
first  count  stated  that  Ouland  (the  defendant 
in  error),  on  the  10th  September,  1796,  was  a 
hired  servant  of  Allaire,  and  retained  in  his 
service,  and  that  Allaire  was  possessed  of  a 
certain  close  of  salt  meadow,  and  also  of  sixty- 
six  rods  of  meadow,  adjoining  the  salt  meadow 
of  P.  F.  Munro,  in  Mamaroneck,  and  leading 
from  the  said  close  to  the  highway;  that  Allaire 
pointed  out  a  piece  of  salt  meadow,  part  of 
the  said  meadow  of  the  said  Munro,  as  being 
the  said  sixty-six  rods  of  meadow  belonging  to 
him,  the  said  Allaire,  and  affirmed  it  to  be  the 
same,  and  then  and  there  directed  the  said 
Ouland  to  open  a  fence  across  the  said  piece  of 
meadow,  so  pointed  out  as  the  sixty -six  rods  of 
meadow  of  the  said  Allaire,  and  to  pass  through 
the  same  to  the  highway,  and  did  then  and 
there  assume  and  promise  the  said  Ouland,  that 
if  he  would  open  the  said  fence  and  pass 
through  the  said  piece  of  meadow,  so  pointed 
put  to  him,  that  he,  the  said  Allaire,  would 
indemnify  and  save  him,  the  said  Ouland, 
harmless  from  all  suits,  &c. ;  that  he,  Ouland, 
as  the  servant  of  the  said  Allaire,  did,  therefore, 
in  obedience  to  the  direction  and  commands  of 
the  said  Allaire,  as  his  servant,  enter  on  the 
said  piece  of  meadow,  so  pointed  out  to  him, 
and  did  open  the  said  fence  and  pass  through 
the  said  piece  of  meadow  to  the  public  high- 
way, about  the  business-  and  work  of  said 
Allaire,  and  he,  the  said  Ouland,  averred  that 
the  said  piece  of  meadow,  so  pointed  out  by  the 
said  Allaire  as  the  said  sixty -six  rods  belong- 
ing to  the  said  Allaire,  did  not  belong  to  him, 
but,  in  fact,  was  part  of  the  adjoining  meadow 
in  the  tenure  of  the  said  Munro;  that,  after- 
wards, to  wit,  on  the  12th  September,  1796, 
the  said  Munro  sued  out  of  the  Court  of  Com- 
mon Pleas  of  West  Chester  County  a  certain 
*writ,  commonly  called  an  attachment  [*£>3 
of  privilege,  against  the  said  Ouland,  to  answer 
to  the  'said  Munro  in  a  plea  of  trespass  upon 
land,  &c.,  and  such  proceedings  were  there- 
upon had,  that  the  said  Munro,  afterwards,  to 
wit,  in  the  term  of  September,  1797,  by  the 
judgment  of  the  said  court,  recovered  against 
the  said  Ouland,  $36.87  damages,  for  the  said 
trespass,  &c.  And  that  the  said  trespass,  for 


NOTE.— Contract    of    indemnity,    when     original  \  Jones,  30  Ga.,  488 ;  Tindal  v.  Touchberry,  3  Strobh . 

undertaking.    Contract  between  A.  and  B.  that  if  C.  (S.  C.),  L.  177 ;  Aldrich  v.  Ames,  9  Gray,  76 ;  Harrison 

would  enter  D.'sland  and  fish,  B.  would  pay  A.  half  v.  Sawtel,  10  Johns.,  242 ;  Chapin  v.  Merrill,  4  Wend., 

what   D.    might  recover.    It   was   held   that   B.'s  657;  Conkey  v.  Hopkins,  17  Johns.,  113;  Beaman  v. 

undertaking  was  an  original  one.    Marcy  v.  Craw-  Russell,  20  Vt.,  20o ;  Darwin  v.  Smith,  35  Vt.,  69 ; 

ford,  16  Conn.,  549.    See  also  Stark  v.  Raney,  18  Gal.,  Goodspeed  v.  Puller,  46  Me.,  141. 
622 ;  Stocking  v.  Sage,  1  Conn.,  519 ;  Bohannon  v. 

JOHNSON'S  CASES,  2.  435 


53 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


which  the  said  damages  were  so  recovered, 
was  for  the  same  opening  of  the  said 
fence  erected  across  the  said  piece  of 
meadow,  pointed  out  to  the  said  Ouland  by  the 
said  Allaire,  as  for  the  said  meadow  belonging 
to  him,  &c.,  and  for  passing  and  repassin 
through  the  said  piece  of  meadow,  &c.,  ani 
that,  afterwards,  a  ca.  mi.  was  issued  on  the 
same  judgment,  out  of  the  said  Court  of  Com- 
mon Pleas  against  the  said  Ouland,  upon  which 
he  was  arrested  by  the  sheriff,  and  detained  in 
his  custody  twenty-four  hours,  until  he  paid 
and,satisfied  the  amount  of  the  said  judgment, 
and  the  sheriff's  fees  on  the  said  execution, 
<fcc.  The  second  count  was  like  the  first,  stat- 
ing a  recovery  against  Ouland  for  a  second 
trespass  in  a  second  suit  by  Munro.  In  the  third 
count  the  promise  to  indemnify  was  laid  to  be 
made  "on  the  day  and  year  last  aforesaid." 
The  declaration  concluded  in  the  usual  form, 
and  the  defendant  below  pleaded  non  assumpsit. 

At  the  trial  in  the  court  below,  a  bill  of  ex- 
ceptions was  taken.  It  was  proved,  among 
other  things,  that  Ouland,  before  he  put  in  bail 
to  the  suits  of  Munro,  put  in  pleas  of  justifica- 
tion; that  after  bail  was  put  in,  Munro  entered 
a  judgment  by  default,  which  the  court  below, 
afterwards,  refused  to  set  aside.  The  records 
of  recovery  in  both  suits  were  produced,  and 
the  executions,  &j.,  which  were  satisfied.  The 
defendant  below  then  insisted  that  the  plaintiff 
below  must  also  produce  the  writs  of  attach- 
ment of  privilege  mentioned  in  his  declaration, 
which  not  being  done,  he  moved  for  a  nonsuit, 
which  motion  the  court  below  overruled. 

The  following  errors  were  assigned  by  the 
plaintiff  in  error: 

54*]  *1.  That  the  plaintiff  below  was  bound 
to  produce  the  writ  of  attachment  of  privilege, 
as  alleged  in  his  declaration. 

2.  That  the  promise  of  indemnity  ougtit  to 
have  been  in  writing,  it  being  for  the  default 
of  another. 

3.  That  the  promise  was  to  indemnify  for 
an  illegal  act,  and  therefore  void. 

4.  That    no    contract    of    indemnity    was 
proved. 

5.  That  Ouland,  in  the  court  below,  suffered 
a*  judgment  in  the  suit  by  Munro,  to  pass 
against  him,  by  default. 

6.  That  the  promise  was  made   after  the 
trespass  was  committed. 

7.  That  the  third  count  in  the  declaration 
is  bad,  because  the  day  on  which  the  promise 
was  laid  refers  to  the  day  last  mentioned  in  the 
second  court,  which  was  the  6th  November, 
1797,  after  the  injury  or  breach  is  stated  to 
have  happened,  in  September,  1796,  and  that 
the  verdict  being  general  below,  the  judgment 
ought  to  be  reversed. 

Messrs.  Riggs  and  Woods,  for  the  plaintiff  in 
error. 

Mr.  Harison  for  the  defendant  in  error. 

RADCLIFF,  J.  I  shall  examine  the  errors 
assigned  in  the  order  in  which  they  are  stated. 

1.  The  rule  is,  that  what  may  be  rejected  as 
surplusage,  and  which  might  have  been  struck 
out,  on  motion,  need  not  be  proved;  as  where 
the  declaration  contains  impertinent  matter, 
foreign  to  the  cause  of  action ;  but  if  the  very 
ground  of  the  action  be  misstated,  as  if  the 
436 


plaintiff  undertake  to  recite  that  part  of  a  deed 
on  which  the  action  is  founded,  and  it  is  mis- 
recited,  it  will  be  fatal.  (Bristow  v.  Wright, 
Doug.,  642,  643).  In  Savage,  gut  tarn,  v. 
Smith  (2  Black.  Rep.,  1101),  it  was  held  that  if 
a  plaintiff  set  forth  a  judgment  on  which  afi. 
fa.  issued,  although  it  would  have  been  suffi- 
cient to  set  forth  the  fi.  fa.  onlv,  he  shall  be 
held  to  prove  the  judgment,  and  the  difference 
is  there  taken  between  immaterial  and  imperti- 
nent averments;  *the  former  must  be  [*55 
proved,  because  relative  to  the  point  in  ques- 
tion, but  the  latter  need  not. 

So,  in  all  cases  where  the  action  depends  on 
the  proof  of  a  contract,  the  contract  must  be 
proved  as  laid,  for  it  is  the  gist  of  the  action. 
(Cowp.,  671;  1  Term  Rep.,  447;  3  Term  Rep., 
531).  And  a  trivial  variation  in  setting  out  a 
record  or  any  written  instrument,  as  well  as  a 
contract,  has  been  held  to  be  fatal.  (4  Term 
Rep.,  560,  590,  687).  Yet  in  the  case  of  King. 
v.  Peppil(l  Term  Rep.,  235),  the  word  "if," 
in  the  declaration,  in  setting  forth  a  precept, 
was  rejected  as  surplusage,  and  the  record  as 
produced,  without  that  word,  was  admitted  as 
sufficient  to  support  the  declaration.  The  cases 
which  have  been  cited,  so  far  as  they  relate  to 
a  variance  between  the  declaration  and  the 
evidence,  are  not  applicable  to  the  present, 
but  they  serve  to  show  the  principle  on  which 
the  English  courts  have  proceeded.  The 
question  here  is,  whether  the  setting  out  the 
attachment  of  privilege  is  not  mere  surplusage, 
and  irrelative  to  the  ground  of  action.  If  so, 
then,  according  to  the  rule  as  laid  down  by 
Lord  Mansfield  and  Chief  Justice  De  Grey,  it 
need  not  be  proved.  That  it  is  irrelative  and 
mere  surplusage  is,  I  think,  clear.  It  is -imma- 
terial to  the  plaintiff's  title  to  a  recovery, 
whether  a  writ  of  attachment  of  privilege  was 
ever  sued  out  by  Monro.  It  is  not  the  ground 
of  his  action.  The  recovery  or  judgment 
against  him,  and  against  which  the  defendant 
below  promised  to  indemnify  him,  is  the 
gravamen  of  which  he  complains.  This  is 
sufficiently  alleged  in  the  declaration,  without 
reference  to  the  attachment  of  privilege. 

But  if  it  was  necessaiy  to  have  proved  that 
a  writ  of  attachment  of  privilege  did  issue,  I 
think  it  was  sufficiently  proved  by  the  record 
which  was  given  in  evidence.  It  is  stated  that 
P.  J.  Munro,  the  plaintiff  in  the  suit  against 
Ouland,  sued  as  one  of  the  attorneys  of  the 
court,  according  to  the  privileges"  of  such 
attorneys,  used  and  approved,  &c.  This  may 
be  received  as  sufficient  evidence  of  the  writ  of 
attachment  of  privilege,  on  the  same  principle 
that  Holt,  Ch.  J. ,  in  the  case  of  Crawley  v. 
Blewett  (12  Mod.,  127),  *admitted  the  [56 
plea-roll  to  be  sufficient  proof  of  the  bill,  where 
the  party  was  alleged  to  have  been  impleaded 
by  bill. 

2.  The  promise  was  not  to  indemnify  for  the 
default  of- another;  but  was  made  to  the  plaint- 
iff himself,  for  an  act  to  be  done  by  him.  as 
the  servant  of  the  defendant  below.     It  was 
an  original  undertaking,  and  not  a  collateral 
promise. 

3.  The  plaintiff  was  the  servant  of  the  de- 
fendant,   and    obliged    to    obey    his    lawful 
commands,  and  he  commanded  the  plaintiff  to 
enter  into  the  locus  in  quo,  claiming  and  declar- 
ing it  to  be  his  own.     If  this  had  been  true, 

JOHNSON'S  CASES,  2. 


1800 


WHITAKER  v.  CONE. 


56 


the  entry  would  have  been  lawful.  The 
plaintiff,  relying  on  the  truth  of  the  declara- 
tion of  the  defendant,  did  enter.  The  act  on 
his  part,  was,  therefore,  lawful,  and  a  good 
consideration  for  the  promise. 

4.  There  is  no  ground  for  the  fourth  error 
alleged,  for  the  contract  of  indemnity  was 
sufficiently  proved,  by  the  testimony  of  two 
witnesses. 

5.  The  defendant  below  had  notice  of  the 
suits  brought  against  the  plaintiff  by  Munro, 
for  when  the  plaintiff  was  arrested,  he  informed 
the  defendant  of  it,  who  promised  to  enter  bail 
for  him,  and    acknowledged  his  promise  to 
defend  the  suits  and  save  the  plaintiff  harmless. 
The  judgements  by  default  were  obtained,  in 
consequence  of  the  refusal  of  Allaire  to  put  in 
bail  for  Ouland  in  due  season.     Under  these 
circumstances,  I  think  the  defendant  in  error 
did  all  that  could  be  required  of  him,  as  to  the 
defence  of  the  suits,  and  that  it  was  incumbent 
on  the  plaintiff  in  error  to  make  the  defense,  if 
any  was  necessary. 

6.  The  Sixth  error  alleged  is  not  supported 
by  the  fact,  as  appears  from  the  bill  of  excep- 
tions. 

7.  Any  inconsistency  as  to  the  dates  is  now 
immaterial.      The  promise  has  been  proved, 
according  to  the  truth,  to  be  prior  to  the  time 
the  breach  is  stated;  besides,  the  defect  is  cured 
by  the  verdict.1     I  am,  therefore,  of  opinion, 
that  the  judgment  ought  to  be  affirmed. 

57*]  *LANSING,  Oh.  J.,  LEWIS,  J.,  and 
BENSON,  J.,  were  of  the  same  opinion. 

KENT,  J. ,  dissented.  He  observed  that  there 
was  a  valid  cause  of  error  assigned,  to  wit, 
that  the  attachment  of  privilege  mentioned  in 
the  declaration  was  not  produced  at  the  trial; 
that  as  the  plaintiff  below  had  thought  proper 
to  set  it  forth  specially,  he  was  bound  to  pro- 
duce it.  This  was  immaterial  matter,  which 
must  be  proved.  The  distinction  between 
matter  impertinent,  and  matter  immaterial, 
was  well  defined  and  settled,  and  the  rule  re- 
quiring the  latter  to  be  proved,  was  intended 
to  inculcate  the  necessity  of  precision  and 
brevity  in  pleading,  and  to  serve  as  a  rod  over 
the  counsel  who  should  incumber  the  record. 
(Savage  v.  Smith,  2  Black  Rep.,  1101;  Bristow 
v.  Wright  and  Pugh,  Doug.,  665;  and  Neding 
v.Pippel,  1  Term  Rep.,  235.)  The  rule  extended 
to  all  cases  of  records  and  written  contracts. 
The  attachment  of  privilege  was  here  con- 
nected with  the  cause  of  action,  and  it  was 
therefore  not  impertinent,  but  immaterial 
matter,  and  it  was  not  sufficiently  shown  by 
the  record  of  the  judgment,  produced  upon 
the  trial,  because  nothing  in  the  record  neces- 
sarily implied  that  that  species  of  process  had 
been  issued.  For  this  cause,  therefore,  and 
without  examining  the  other  causes  of  error, 
he  was  of  opinion  that  the  judgment  below 
ought  to  be  reversed. 

Judgment  affirmed. 

Distinguished— 9  Cow.,  156;  15  Barb.,  349. 
.     Cited  in— 17  Johns.,  143;  14  N.  Y.,  333;  14  Abb.,  144; 
34  Ohio  State,  24. 

1.— See  Saund,  328,  n.  (1.) 
JOHNSON'S  CASES,  2, 


*WHITAKER  i>.  CONE.         [*58 

1.  Adverse  Possession,  Lands  in  —  Buying  and 
Selling  —  Consideration  —  Promise  —  Mainten- 
ance. 2.  State,  Sale  by  —  Land  in  Possession 
of  Another  State.  3.  Id.—  Contract  of  Sale 
—  Purchase  Money  —  Consideration  —  Validity. 

Where  notes  were  given  for  the  purchase  money, 
on  a  contract  for  the  purchase  and  sale  of  Susque- 
hanna lands,  within  the  jurisdiction  of  Pennsyl- 
vania, under  the  Connecticut  claim  to  those  lands; 
it  was  held  that  the  sale  was  illegal  and  the  consid- 
eration void. 


rPHIS  was  an  action  of  assumpsit.  The  plaint- 
J-  iff  declared  on  two  promissory  notes 
made  by  the  defendant  to  him,  for  $135.61 
each,  dated  the  9th  February,  1796,  one  pay- 
able in  cattle  and  the  other  in  money,  the  1st 
September,  1798.  The  declaration  also  con- 
tained the  money  counts.  The  defendant 
pleaded  non  assumpsit  to  the  2d,  3d  and  4th 
counts,  and  as  to  $135.61  in  the  first  count, 
that  he  did  not  assume,  &c.,  and  payment  as 
to  the  residue.  A  notice  was  subjoined  to  the 
plea,  according  to  the  statute,  that  the  notes  in 
question  were  given  without  consideration, 
and  were  obtained  by  fraud  and  imposition, 
having  been  given  on  the  sale  by  the  plaintiff 
to  the  defendant,  through  the  agency  of  one 
Hunt,  of  Susquehanna  lands,  to  which  neither 
the  plaintiff  nor  Hunt  had  any  title.  The 
cause  was  tried  before  Mr.  Justice  Benson,  at 
the  Columbia  Circuit,  in  October,  1799. 

It  appeared  at  the  trial  that  the  lands  in 
question,  were  certain  lands  in  the  State  of 
Pennsylvania,  claimed  by  the  State  of  Con- 
necticut, called  Connecticut  Susquehanna 
lands.  The  plaintiff  had  by  contract  sold  to 
Hunt  a  township  of  the  said  lands,  and  while 
Hunt  was  in  treaty  with  the  defendant  and 
some  others  for  the  sale  of  the  same  lands  to 
them,  it  was  suggested  that  the  plaintiff  could 
not  fulfil  his  contract  with  Hunt,  on  account 
of  doubts  as  to  the  validity  of  the  Connecticut 
title;  and  the  plaintiff,  who  was  present,  said 
he  had  no  doubt  the  Pennsylvania  title  might 
be  purchased  for  a  trifle;  that  he  had  lately 
received  information  from  the  Susquehanna, 
of  certain  papers  which  had  come  to  light, 


NOTE. — Grant  of  land  held  adversely  to  the  grantor , 
maintainance. 

In  New  York  the  law  is  that  a  deed  of  land  of 
which  the  grantor  is  at  the  time  disseized,  is  void  as 
to  the  disseizor  and  those  holding-  under  him,  but 
valid  as  to  other  parties.  The  title  is  not  extin- 
guished, but  the  grantor  could,  before  the  enact- 
ment of  the  code,  bring1  suit  against  the  disseizor, 
the  beneflt»of  which  would  accrue  to  the  grantee. 
The  grantee  now,  under  the  code,  can  bring-  an  action 
against  the  disseizor  in  the  grantor's  name.  Code 
Civil  Procedure,  449,  1501 ;  Hamilton  v.  Wright,  37 
N.  Y.,  506,  508 ;  Lawber  v.  Kelly,  9  Bosw.,  494 ;  Liv- 
ingstone v.  Proseus,  2  Hill,  526 ;  Williams  v.  Jack- 
son, 5  Johns.,  489 ;  Jackson  v.  Demont,  9  Johns.,  55 ; 
Jackson  v.  Brinckerhqff,  3  Johns.  Cas.,  101. 

A  deed  of  land  held  adversely  to  the  grantor  is  void 
only  as  to  the  party  in  possession  and  claimants 
under  him.  University  v.  Joslyn,  21  Vt.,  52 ;  Park 
v.  Pratt,  38  Vt.,  545;  Den  v.  Geiger,  9  N.  J.  L.  (4 
Hals.),  225 ;  Farnurn  v.  Peterson,  111  Mass.,  151. 

After  such  deed,title  remains  in  the  yranitir  so  he  can 
maintain  an  action  of  ejectment,  and  recovery  will 
enure  to  the  benefit  of  the  grantee.  Wade  v.  Lind- 
sey,  6  Met.,  413;  Betsey  v.  Torrance,  34  Miss.,  138; 
Dearmond  v.  Brooking,  37  Ga.,  5 :  Wilson  v.  Nance, 
11  Humph.,  189. 

What  amstitittes  such  adverse  possession  as  to  ren- 
der deed  of  owner  to  bona  fide  purchaser  void.  Jack- 
son v.  Hill,  5  Wend.,  532 ;  Livingston  v.  Peru  Iron 
Co..  9  Wend.,  511 ;  Winkham  v.  Conklin,  8  Johns.,  230 ; 

437 


58 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


very  favorable  to  the  Connecticut  title;  and 
the'defendant  and  the  others,  encouraged  and 
induced  by  the  plaintiff,  made  the  contract 
with  Hunt  for  the  purchase  of  the  land,  at 
2d.  4s.  Connecticut  currency,  per  acre.*  The 
59*]  defendant  and  the  others  took  up  *the 
notes  given  by  Hunt  to  the  plaintiff,  and 
gave  their  own  notes  to  the  plaintiff,  for  the 
.amount. 

The  lands  were  proved  to  be  situated  within 
the  jurisdiction  of  the  State  of  Pennsylvania; 
and  upon  the  evidence,  the  judge  was  of  opin- 
ion that  the  defendant  had  sufficiently  shown 
a  want  of  consideration.  The  plaintiff  then 
offered  to  prove  that  the  lands  in  question 
were  vacant  and  unsettled,  at  the  time  they 
were  sold  by  Hunt,  and  ttyat  the  lands  con- 
tiguous, were  principally  settled  by  persons 
under  the  Connecticut  title,  and  that  many  of 
these  settlements  were  made  previous  to  the  | 
determination  of  the  question  of  jurisdiction  j 
between  Pennsylvania  and  Connecticut,  but 
the  judge  rejected  the  evidence  as  improper. 
The  plaintiff  submitted  to  a  nonsuit,  with  lib- 
erty to  move  the  court  to  set  it  aside,  and  for 
a  new  trial. 

A  motion  was  made  to  set  aside  the  nonsuit 
and  for  a  new  trial,  which  was  argued  by  Mr. 
W.  W.  Van  Ness,  for  the  plaintiff,  and  Mr.  E. 
Williams  for  the  defendant. 

Per  Curiam.  This  case  comes  within  the 
principle  laid  down  in  the  case  of  Woodwarth 
v.  Dole  el  al.,  decided  in  the  Court  for  the 
Correction  of  Errors,  in  March  last.1  Buying 
and  selling  of  lands  out  of  the  possession  of 
the  vendor,  and  held  adversely  at  the  time,  is 
buying  and  selling  a  pretended  title,  and  is 
not  a  valid  consideration  for  a  promise.  It  is 

1.— This  case  will  be  found  at  the  end  of  the 
volume. 


Orary  v.  Goodman,  22  N.  Y.,  170 ;  Laverty  v.  Moore, 
33  N.  Y.,  658 ;  Hallas  v.  Bell,  53  Barb.,  247 ;  Broiestedt 
v.  South  Side  R.  R.  Co.,  55  N.  Y.,  220 :  Sands  v.  Hughes, 
53  N.  Y.,  295 ;  Thurman  v.  Cameron,  24  Wend.,  87 ; 
Higginbotham  v.  Stoddard,  72  N.  Y.,  94. 

Conveyance  of  lantl  a  part  of  which  was  held  ad- 
versely valid  as  to  remainder.  Goodman  v.  Newell, 
13  Conn.,  75;  Van  Dyck  v.  Van  Buren,  1  Johns.,  346; 
Pickens  v.  Delozier,  2  Humph.,  400. 

The  t/eneral  rule  does  not  apply  to  a  deed  made  by 
cestui  aue  trust,  ousted  by  trustee.  Baker  v.  Whiting, 
3  Sumn.,  475. 

Nor  to  deed  made  under  decree  of  court  by  consent 
of  parties.  Stevens  v.  Palmer,  10  Bosw.,  60 ;  Hanna 
v.  Renf ro,  32  Miss.,  125 ;  Saunders  v.  Groves,  2  J.  J. 
Marsh  (Ky.),  406;  Williams  v.  Bennett,  4  Ired.  (N.C.) 
L.,  122.  See  Smith  v.  Scholtz,  68  N.  Y.,  41 ;  Christie 
v.  Gage,  71  N.  Y.,  189. 

Nor  to  deed  made  in  pursuance  of  valid  contract 
made  when  there  was  no  adverse  possession.  Simon 
v.  Gouge,  W  B.  Mon.,  164 ;  Hale  v.  Darter,  10  Humph., 
92 ;  Doe  v.  Roe,  20  Ga.,  170 ;  Chiles  v.  Conley,  9  Dana 
(Ky.),  385;  McCoy  v.  Willaford,  2  Swan,  642.  See 
Fryer  v.  Rockefeller,  63  N.  Y.,  268. 

Nor  to  deed  by  tenant  in  common  ousted  by  co-ten- 
ant. Bird  v.  Bird,  40  Me.,  398.  Contra,  Wall  v.  Way- 
land,  2  Met.  (Ky.),  156;  Barret  v.  Coburn,  3  Met. 
(Ky.),  510.  » 

As  to  deed*  executed  by  a  State,  see  People  v.  Mayor 
of  N.  Y.,  28  Barb.,  240;  Brady  v.  Begun,  36  Barb., 
533;  Ward  v.  Bartholomew,  6  Pick.,  409;  Merritt 
vt  Gawaer,  2  Cow.,  552;  Klock  v.  Hudson,  3  Johns., 
375:  Baldwin  v.  Ryan,  3  T.  &  C.,  251. 

See  further  upon  the  general  subject,  Appleton  v. 
Edson.  8  Vt.,  239;  Duval  v.  Bibb,  3  Call..  362;  Jack- 
son v.  Todd,  2  Cainos.  183;  Cressinger  v.  Welch,  15 
Ohio,  156 ;  Stewart  v.  M cSwoeney.  14  Wis.,  468 ;  Stoe- 
ver  v.  Whitman.  6  Binn.,  416 ;  Brinley  v.  Whiting,  5 
Pick.,  348;  Tabb  v.  Baird,  3  Call.,  475;  Gibson  v. 
Shearer,  1  Murph.  (N.  C.),  114. 

438 


a  species  of  maintenance  and  void  on  general 
principles  of  law  and  public  policy.  A  sale 
by  one  State  of  lands  within  the  jurisdiction 
and  under  the  adverse  claim  of  another  State, 
must  be  judged  by  the  same  principles  of  law 
as  a  sale  by  an  individual,  since  the  several 
States,  in  respect  to  their  territorial  claims, 
have  submitted  themselves  to  the  cognizance 
of  the  judiciary  of  the  United  States. 

Though  the  sale  was,  formally,  made  by 
Hunt  to  the  defendant,  yet  the  plaintiff  was 
privy  thereto  and  instrumental*  in  effect-[*6O 
ing  it,  and  he  had  previously  conveyed  the 
same  lands,  under  the  same  title,  to  Hunt, 
whose  notes  he  held  for  the  purchase  money, 
and  which  were  delivered  up  in  exchange  for 
the  present  notes.  If  Hunt  was  not  merely 
the  agent  of  the  plaintiff,  in  this  transaction, 
yet  the  plaintiff  received  the  notes,  for  the 
like  consideration,  and  with  full  notice  of  all 
the  circumstances;  he  is,  therefore,  to  be 
affected  by  the  objection  against  the  legality 
of  the  consideration.  The  court  are  therefore 
of  opinion  that  the  motion  ought  to  be  denied. 

LEWIS,  J.,  dissented. 

LANSING,  Ch.  J.,  not  having  heard  the  argu- 
ment of  the  cause,  gave  no  opinion. 

Motion  denied. 

Cited  in— 20  Johns.,  397;  1  Wend.,  438;  8  Wend.,  635; 
5  Denlo,  430;  20  Barb.-,  437. 


JONES  v.  HAKE. 

1.  Note  —  Usurious  Discount.    2.  Broker  —  Wit- 
ness —  Competency. 

A  made  a  note  payable  to  B,  which  was  indorsed 
by  him,  and  C  and  D,  and  sent  by  A  to  E,  a  money 
broker,  in  order  to  raise  money;  and  E  advanced 
the  money  on  the  note,  deducting  a  premium  of 
two  per  cent,  a  month.  In  an  action  brought 
against  B,  the  first  indorser,  by  G,  it  was  held  that 
the  note  was  usurious  and  void;  and  that  E.,  the 
broker,  was  an  admissible  witness  on  the  part  of  the 
plaintiff,  to  prove  that  the  note  had  been  sold  for  no 
more  than  the  legal  interest  to  P. 


was  an  action  of  assumpsit,  on  a  prom- 
JL  issory  note  drawn  by  Charles  Watkins  in 
favor  of  the  defendant,  indorsed  by  him, 
Barber  and  Griffin,  and  Peter  A.  Schenck,  and 
which  note  afterwards  came  into  the  hands  of 
the  plaintiff. 


NOTE. — Usury,  accommodation  paper. 

If  accommodation  paper,  at  its  legal  inception,  he 
sold  for  a  sum  such  that  the  purchaser  receives  more 
than  legal  interest,  the  transaction  in  usurious,  and 
no  remedy  can  be  had  against  the  indorsers.  Catlin 
v.  Gunter,  11  N.  Y.,  368 ;  Corcoran  v.  Powers,  6  Ohio 
St.,  19;  Clark  v.  Loomis,  5  Duer,  468;  Veazae  Bank  v. 
Paulk,  40  Me.,  109;  Bock  v.  Lauman,  24  Pa.  St.,  435; 
Duuscornb  v.  Bunker,  2  Met.,  8;  Van  Schaack  v. 
Stafford,  12  Pick.,  565 ;  Overton  v.  Hardin,  6  Cold., 
370;  Wilkie  v.  Roosevelt,  3  Johns.  Gas.,  66..206;  Will- 
iams v.  Storm,  2  Duer,  52;  Jackson  v.  Fassett,  12 
Abb.  Pr.,  281 ;  33  Barb.,  645 ;  21  How.  Pr.,  279;  Whit- 
ten  v.  Hayden,  7  Allen,  407;  Sylvester  v.  Swan,  5 
Allen,  134 ;  Bennett  v.  Smith,  15  Johns.,  355 ;  Powell 
v.  Waters,  17  Id.,  176;  Bossange  v.  Ross,  29  Barb., 
576 ;  Ahern  v.  Goodspeed,  ?2  N.  Y.,  108.  See  Moffett 
v.  Bickle,  21  Gratt.,  283;  Frank  v.  Longstreet,  44 
Ga.,  185;  Tufte  v.  Shepherd,  49  Me.,  312 ;  Brummell 
v.  Enders,  18  Gratt.,  873;  Morford  v.  Davis,  28  N. 
Y.,  484. 

JOHNSON'S  CASES,  2. 


1800 


JONES  v.  HAKE. 


60 


The  cause  was  tried  at  the  last  sittings  in 
.  New  York,  before  the  Chief  Justice.  The 
defence  set  up  was  that  the  note  was  usurious, 
and  therefore  void. 

It  was  proved  by  a  witness  for  the  defend- 
ant, that  Watkins,  the  maker  of  the  note,  in 
•61*]  order  to  raise  money,  sent  it*to  one  Has- 
kin,  a  money  broker,  who  had  often  obtained 
money  for  him  before. 

When  the  witness  first  took  the  note  to 
Haskin,  it  had  not  been  indorsed  by  Peter  A. 
Schenck.  Haskin  kept  it  a  few  days  and  then 
returned  it  to  the  witness,  telling  him  that  he 
•could  not  get  the  money  on  the  note  as  it  then 
was,  but  that  if  Watkins  would  procure  the 
indorsement  of  Peter  A.  Schenck,  he  (Haskin) 
•could  get  him  the  money,  at  the  rate  of  two 
per  cent,  per  month.  The  name  of  Schenck 
was  obtained  and  the  note  again  taken  to  Has- 
kin, who  then  advanced  a  part  of  the  money, 
and,  shortly  afterwards,  the  residue,  deduct- 
ing at  and  after  the  rate  of  two  per  cent,  per 
month,  as  the  interest  thereof.  It  further  ap- 
peared in  evidence,  that  at  the  time  of  deliver- 
ing the  note  to  Haskin,  the  witness  knew  not 
whether  Haskin  was  the  owner  of  the  money, 
or  acted  as  an  agent  for  another,  but  he  knew 
no  other  person  as  the  lender  of  the  money. 
'The  terms  were  adjusted  solely  with  Haskin. 

The  counsel  for  the  plaintiff  offered  Haskin 
;as  a  witness,  to  prove  that  he,  as  the  broker  of 
Watkins,  had  sold  the  note  in  question  to  one 
Herriman,  at  a  discount,  not  exceeding  legal 
interest;  and  also  offered  Herriman,  who  had 
no  interest  in  the  note,  and  was  released  by  the 
plaintiff;  to  prove  that  he  had  given  a  full 
•consideration  for  it;  but  they  were  both  re- 
jected by  the  judge. 

The  counsel  for  the  plaintiff  contended,  that 
as  Haskin  was  proved  to  be  a  money  broker, 
the  jury  might  consider  him  as  the  broker  of 
Watkins,  for  the  purpose  of  selling  the  note, 
and  that  at  any  rate  it  was  a  sale  of  a  note  and 
not  a  usurious  contract. 

But  the  judge  charged  the  jury  that  under 
the  evidence  before  them,  they  must  consider 
it  as  a  loan,  and  Haskin  as  the  principal;  that 
the  terms  of  the  loan  were  made  by  him,  and 
he  only  was  known  as  the  lender;  that  as  more 
than  seven  per  cent,  per  annum  had  been 
taken,  the  note  was  void,  and  they  must  find 
for  the  defendant. 

The  jury,  nevertheless,  found  a  v erdict  for 
the  plaintiff,  for  the  full  amount  of  the  note, 
with  interest. 

<>2*]      *A  motion  was  made  to  set  aside  the 
verdict,  and  for  a  new  trial. 

Mr.  B.  Livingston  for  the  plaintiff. 
Mr.  Riker  for  the  defendant. 

RADCLIFP,  J.  Considering  this  case  as  de- 
pending upon  the  testimony  admitted  at  the 
trial,  I  am  of  opinion  that  the  verdict  was 
•clearly  against  evidence.  The  note  in  ques- 
tion was  made  by  Watkins,  and  indorsed  by 
the  persons  whose  names  appear  on  it,  for  the 
accommodation  of  Watkins  alone.  No  money 
was  paid,  or  value  given,  by  any  of  the  in- 
dorsers.  If  the  transaction  be  viewed  in  its 
true  light,  it  was  a  contract,  made  through  the 
agency  of  Haskin,  between  Watkins  on  the  one 
JOHNSON'S  CASES,  2. 


part,  and  the  person  who  loaned  the  money, 
and  took  the  note  as  his  security,  on  the  other. 
The  lender  was  in  reality  the  first  holder  of  the 
note,  for  the  value  given,  whatever  that  may 
have  been.  If,  then,  we  admit  no  shift  or  de- 
vice to  evade  the  statute  against  usury,  and 
look  through  the  forms  under  which  the  parties 
intended  to  cover  the  loan,  it  appears  to  me 
there  can  be  no  doubt  but  that  the  contract 
was  usurious,  and  the  note  therefore  void. 

As  to  the  witnesses  offered  by  the  plaintiff,  I 
think  they  were  competent,  and  ought  to  have 
been  admitted.  Haskin  was  the  mere  agent  or 
broker,  and  not  a  party  in  interest,  and 
Herriman  is  expressly  stated  not  to  have  any 
interest  in  the  note,  and  was  also  released  by 
the  plaintiff.  The§e  witnesses  were  offered  to 
disprove  the  usury,  and  were  objected  to  by 
the  defendant  and  rejected  by  the  judge.  It 
has  been  pretended  that  the  objection  coming 
from  the  defendant,  ought  to  conclude  him  as 
to  the  facts  offered  to  be  proved.  But  this  idea 
is  altogether  incorrect.  A  party  has  a  right  to 
avail  himself  of  any  objection  to  the  com- 
petency of  a  witness,  and  if  overruled,  he  has 
still  an  undoubted  right  to  discredit  his  tes- 
timony, or  oppose  it  by  counter  proof. 

*It  has  also  been  urged  that  the  plaint-  [*63 
iff  is  in  possession  of  an  equitable  verdict ;  that 
the  defence  set  up  by  the  defendant,  being 
founded  on  usury,  is  unconscientious,  and  that 
the  court  ought  not  to  interfere  to  relieve  him 
from  a  just  debt.  There  are  cases  in  which 
these  considerations,  if  true,  would  have  their 
weight,  but  whatever  opinion  may  be  enter- 
tained as  to  the  morality  of  such  a  contract,  I 
think  we  are  bound  by' the  statute  to  consider 
it  as  illegal  and  corrupt.  To  treat  it  differently, 
would  contravene  the  declared  sense  of  the 
Legislature,  and  tend  to  defeat  the  operation 
of  an  important  act,  founded  on  considerations 
of  public  policy.  Upon  the  whole,  I  am  of 
opinion  that  the  case  ought  to  be  re-examined 
on  all  the  proofs,  and  for  that  purpose  that  a 
new  trial  should  be  awarded. 

KENT,  J.,  and  BENSON,  J.,  concurred. 

LANSING,  Ch.  J.  I  do  "not  differ  from  the 
opinion  of  the  court  that  Haskin  is  to  be  con- 
sidered as  the  agent  of  Watkins,  and  of  conse- 
quence that  my  exclusion  of  his  testimony  was 
improper.  But  I  cannot  concur  in  the  effects 
ascribed  to  that  opinion. 

If  Haskin  was  the  agent  of  Watkins,  and  he 
passed  the  note  as  such,  the  acts  of  Haskin 
must  be  considered  as  those  of  his  principal, 
and  certainly,  if  he  stands  in  that  relation  only, 
there  is  no  proof  of  usury.  The  secret  trans- 
actions between  a  principal  and  his  agent,  can- 
not influence  the  contract  which  he  makes,  for 
the  benefit  of  his  principal,  with  others. 

Haskin  and  Herriman  were  offered  as  wit- 
nesses on  the  part  of  the  plaintiff,  to  vindicate 
his  contract  from  the  imputation  of  being 
usurious. 

If  this  evidence  had  been  admitted,  it  could 
not  place  the  defendant  in  a  better  situation. 
It  cannot  therefore  be  necessary,  on  the  ground 
assumed  by  the  court,  to  turn  the  plaintiff  over 
to  a  new  trial;  for  if  there  is  now  no  proof  of 
usury,  the  testimony  of  Haskin  *and  [*64 
Herriman,  as  stated  m  the  case,  though  it  may 


64 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1800 


tend  to  destroy  suspicion,  can  never  establish 
any  fact  material  to  the  parties. 

I  am,  therefore,  of  opinion  that  the  motion 
ought  to  be  denied. 

LEWIS,  J.,  was  of  the  same  opinion. 
New  trial  granted. 

Followed— 3  Johns.  Cas.,  68,  209. 

Cited  in-15  Johns.,  56 ;  7  Wend.,  613 ;  10  Paige,  338. 


JACKSON,  ex  dem.  SALISBURY,  ET  AL., 

•c. 
HUYCK, 

Coeyman's  Patent — Boundaries. 

The  south  bounds  of  Coeyman's  patent  are  to  be 
taken  according  to  the  survey  made  by  order  of  the 
proprietors  in  1749. 

THIS  was  an  action  of  ejectment.     The  cause 
was  tried  at  the  Albany  sittings,  in  April, 
1800,  and  a  verdict  taken  for  the  plaintiff,  by 
consent,  subject  to  the  opinion  of  the  court,  on 
the  following  case: 

The  plaintiff  claimed  under  a  patent  to  Salis- 
bury and  others,  dated  the  20th  of  April,  1749, 
and  the  defendant  under  a  patent  to  Coeyman, 
dated  the  36th  of  August,  1714,  the 'south 
boundary  of  which  is  described  as  "beginning 
at  the  mouth  of  Peter  Bronck  his  creek,  and 
thence  up  the  same  until  it  comes  to  Coxsac- 
kie,  and  thence  up  into  the  woods  by  a  due 
west  course,  until  it  is  twelve  English  miles 
distant  from  the  mouth  of  the  said  creek."  In 
1749,  the  proprietors  of  the  patent  to  Coeyman 
employed  a  surveyor  to  survey  their  south 
boundary,  who,  judging  that  the  course  was 
to  be  a  natural  west  course,  or  a  line  proceed- 
ing west,  at  right  angles  from  the  meridian, 
assumed  the  boundary  conformably  thereto, 
and  run  a  magnetic  west  nine  degrees  north, 
which  he  calculated  at  that  time  would  give  a 
natural  west  course,  and  marked  the  trees  in 
the  line  throughout,  and  it  then  became  the 
reputed  south  boundary.  The  north  boundary 
of  the  patent  to  Salisbury  appears  to  have  been 
intended  to  be  the  same  line;  and  the  north 
65*]  *boundaries  of  two  tracts,  in  a  patent 
to  Scott  and  others,  of  the  1st  of  January,  1770, 
are  expressly  bounded  on  it,  where  it  is  de- 
scribed "as  an  old  line  of  trees,  marked  as  the 
south  bounds  of  the  lands  granted  to  Coey- 
man." It  was  admitted  that  if  this  line  is  still 
to  be  adhered  to,  as  the  south  boundary  of  that 
patent,  then  the  premises  in  question  will  be 
included  in  the  patent  to  Salisbury,  which  will 
then,  as  will  also  the  two  tracts  granted  to 
Scott  and  others,  have  the  due  quantity  of 
land,  and  the  plaintiff  will  be  entitled  to  re- 
cover; but  if  it  is  departed  from,  and  the  mag- 
netic west,  as  it  was  in  1714,  the  time  of  the 
patent,  is  to  be  taken  instead  thereof,  then  the 
premises  in  question  will  be  excluded  from  the 
patent  to  Salisbury  and  others;  and  that  patent, 
and  the  two  tracts  granted  to  Scott  and  others 
will  prove  deficient,  and  the  plaintiff  cannot 
recover. 

Mr.  Spencer  for  the  plaintiff. 
440 


Messrs.  Tates  and  Van  Vechten  for  the  de- 
fendant. 

LANSING,  Ch.  J.,  delivered  the  opinion  of 
the  court: 

This  cause  is  brought  before  the  court  on 
a  case  reserved.  It  depends  upon  the  con- 
struction of  the  south  bounds  of  Coeyman's 
patent,  which  is  described  as  running  due  west 
from  the  mouth  of  Coxsackie  Creek. 

It  appears  the  proprietors  of  the  patent  of 
Coeyman  directed  a  survey  of  it  in  the  year 
1749;  that  it  was  made  with  an  allowance  of 
variation  of  nine  degrees,  and  trees  marked 
correspondent  to  the  line  run,  and  that  from 
thence  it  became  the  reputed  south  line  of 
Coeyman's  patent.  How  this  reputation  was 
acquired,  and  under  what  other  circumstances, 
does  not  appear. 

It  further  appears  from  the  case  that  the 
patent  under  which  the  lessors  claim  is  bound- 
ed by  the  south  line  of  Coeyman's  patent;  that 
another  patent,  in  1770,  expressly  recognized 
the  line  run  as  run  for  the  south  line  of  Coey- 
man's *patent,  thus  combining  the  assent  [*66 
of  government  with  the  location  made  by  the 
proprietor. 

After  a  lapse  of  half  a  century,  it  would  be 
injurious  to  the  peace  of  the  community  to- 
suffer  a  boundary,  so  settled,  by  the  express 
assent  of  the  parties  interested  in  correcting 
any  mistake  in  the  survey,  to  be  disturbed. 

The  court  are,  therefore,  of  opinion  that  the 
defendant  must  take  nothing  by  his  motion. 

Rule  refused. 


STAFFORD  «.  VAN  ZANDT. 

Judgment — Variance  from   Referee's  Report — 
Reversal. 

Where  a  cause  in  the  Common  Pleas  had  been  re- 
ferred, and  a  judgment  was  entered  for  99  cents- 
more  than  the  sum  reported  by  the  referees  to  be 
due,  the  judgment,  on  a  writ  of  error,  was  reversed. 

THIS  cause  came  before  the  court;  on  a  writ 
of  error,   from    the    Mayor's    Court    of 
Albany.    ^ 

By  the  record,  it  appeared  that  the  action  in 
the  court  below  had  been  referred  to  referees, 
who  had  reported  a  sum  due  to  the  plaintiff 
below,  who  is  the  defendant  here,  and  that  the 
judgment  in  the  court  below  was  given  for  9& 
cents  more  than  the  amount  reported  to  be  due 
by  the  referees.  This  was  assigned  for  error, 
with  several  other  matters,  which  were  not 
particularly  noticed  by  the  court. 

Mr.  Emott  for  the  plaintiff. 

Mr.  Ten  Brceck  for  the  defendant. 

Per  Curiam.  The  variance  between  the 
sum  reported  by  the  referees  and  the  amount 
of  the  judgment  is  a  fatal  error.  Without  ex- 
pressing an  opinion  on  the  other  points,  let  the 
judgment  for  this  cause  be  reversed. 


JOHNSON'S  CASES,  2, 


1800 


JACKSON,  EX  DEM.  LEWIS  AND  ELY  v.  POWELL. 


67 


67*]  *JACKSON,  ex  dem.  LEWIS  and  ELY, 

v. 
POWELL. 

Costs — Two  Plaintiffs — Resident  and  Non-Resi- 
dent— Death  of  Resident — Judgment. 

Where  there  were  two  plaintiffs  in  a  cause,  one  of 
whom  resided  out  of  the  State,  and  the  other  within 
the  State,  and  the  plaintiff  within  the  State, 
died  pending  the  suit,  and  the  defendant  obtained 
judgment,  it  was  held  that  the  attorney  of  the 
plaintiffs  was  not  bound  to  pay  the  costs. 


JUDGMENT  having  been  rendered  for 
the  plaintiff  in  this  cause, 


A 


Mr.  L.  Elmendorf,  at  the  last  terra,  obtained 
a  rule  on  Mr.  Bowman,  attorney  for  the  plaint- 
iff, to  show  cause  why  he  should  not  be  or- 
dered to  pay  the  costs,  which  were  taxed,  on 
the  ground  that  one  of  the  lessors  of  the  plaint- 
iff was  dead,  and  the  other  resided  out  of  this 
State. 

.  Mr.  Bowman  now  showed  for  cause,  that  al- 
though one  of  the  lessors  was  a  non-resident  at 
the  time  of  commencing  this  suit,  the  other  re- 
sided in  this  State,  and  died  pending  the  suit, 
and  contended  that  this  was  sufficient  to  ex- 
empt an  attorney  from  the  payment  of  costs. 

Per  Curiam,.  If  one  of  the  plaintiffs  be  resi- 
dent within  this  State,  at  the  time  of  com- 
mencing the  action,  the  attorney  is  not  within 
any  rule  of  this  court,  subjecting  him  person- 
ally to  the  payment  of  costs.  After  the  death 
of  the  resident  lessor  in  the  present  case,  the 
defendant  might  have  applied  for  a  rule  to 
stay  proceedings,  until  security  for  the  costs 
was  given.  Having  neglected  this,  he  has  no 
other  remedy  than  to  pursue  the  party  him- 
self, if  he  can  be  found. 

Motion  denied,  with  costs. 


68*]  *FRANKLIN 

THE   UNITED  INSURANCE  COMPANY. 

Commission — Motion  for — Affidavit — Sufficiency 
of. 

The  affidavit  on  which  a  motion  is  made  for  a 
commission  ought  to  state  that  there  are  material 
witnesses  to  be  examined  at  the  place  to  which  the 
commission  is  to  be  directed.  A  general  affidavit 
that  material  evidence  is  to  be  obtained  in  the  cause 
is  not  sufficient. 

MR.  TROUP,  for  the  defendants,  moved  for 
a  commission  to  examine  witnesses  at 
Porto  Bello,  on  a  general  affidavit  that  it  was 
supposed  sufficient  evidence  might  there  be 
obtained. 

Mr.  Burr,  contra. 

Per  Curiam.  The  defendants  have  not 
brought  themselves  within  the  provisions  of 
the  act  on  this  subject.  They  ought  at  least 
to  have  shown  that  material  evidence  exists  in 
the  place  to  which  the  commission  is  to  be 
sent.  It  is  an  application  for  a  commission  to 
hunt  for  testimony. 

Motion  denied. 
Cited  in^4  How.,  461. 
JOHNSON'S  CASES,  2. 


THE  PEOPLE 

v. 
THE  JUDGES  OF  CAYUGA,  &c. 

Mandamus —  Court  of  Common  Pleas  —  Re- 
fusal to  Give  Judgment — Order  to  Show 
Cause. 

Where  a  Court  of  Common  Pleas  refuses  to  give 
judgment  in  a  cause  before  them,  this  court  will  not 
grant  a  mandamus,  until  after  a  rule  to  show  cause 
has  first  been  granted  for  the  purpose. 

MR.  MUMFORD,  on  an  affidavit  stating  that 
a  verdict  had  been  obtained  in  an  action 
depending  in  the  Common  Pleas  of  Cayuga 
County,  on  which  the  court  refused  or  de- 
layed to  give  judgment,  moved  for  a  man- 
damus to  the  judges  of  that  court,  command- 
ing them  to  pronounce  judgment  on  the  ver- 
dict. 

Per  Curiam.  The  practice  adopted  in  such 
case  is  first  to  grant  a  rule  to  show  cause.  On 
showing  cause,  it  is  in  the  discretion  of  the 
court  to  grant  a  peremptory  mandamus  or  not, 
as  the  case  may  require. 

Take  a  rule  to  show  cause. 
Cited  in— 27  N.  Y.,  386:  11  Abb..  124. 


*DEMARET  ux.  [*6*> 

v. 
VAN  ZANDT. 

Commission  —  Motion  for  —  Affidavit  —  Third 
Party. 

An  affiadvit,  on  which  a  mot  ion  is  made  for  acorn- 
mission  to  examine  a  witness,  may  be  made  by  a 
third  person,  not  a  party  to  the  writ. 


0 


N  a  writ  of  right. 


Mr.  Burr,  for  the  defendant,  moved  for  a 
commission  to  examine  a  witness  in  the  State 
of  New  Jersey.  The  affidavit  on  which  he 
grounded  the  motion  was  made  by  a  person 
not  a  party  to  this  suit. 

Mr.  B.  Livingston,  contra. 

Per  Curiam.  Let  the  commission  issue:  the 
affidavit,  although  made  by  a  third  person, 
shows  probable  grounds  to  believe  that  the 
testimony  of  the  witness  may  be  material.  Be- 
sides it  cannot  injure  the  tenant  by  creating 
delay,  for  the  application  is  not  in  time  to  have 
the  effect  of  suspending  the  proceedings  in  the 
suit,  or  of  excusing  the  demandants  for  not 
going  to  trial. 

Rule  granted. 

Cited  in-44How.,  459;  54  How,  507;  4  Abb.  N.  S.. 
253. 


SEALY  v.   SHATTUCK. 

Order    to   Join  in    Error — Lapse   of    Time — 
Waiver. 

Where  a  rule  for  a  joinder  in  error  to  a  tertinrari 
is  obtained,  the  party  must  apply  at  the  next  term 
for  the  effect  of  his  rule;  if  a  term  intervenes,  he 
will  be  presumed  to  have  waived  the  rule. 

441 


<59 


SUPUEME  COURT,  STATE  OF  NEW  YORK. 


1800 


I 


N  error,  on  certiorari,  from  a  justice's  court. 


A  rule  was  long  since  obtained,  by  the 
plaintiff  in  error,  that  the  defendant  join  in 
error  in  twenty  days  after  service  of  notice  of 
the  rule,  or  that  the  plaintiff  be  heard,  ex- 
ptirte.  The  notice  of  the  rule  was  served  in 
July,  1798,  and  the  defendant  had  not  joined 
in  error. 

7O*]      *Mr.  Emott  now  moved  for  a  reversal 
of  the  judgment  below. 

Per  Curiam.  The  plaintiff  ought  to  have 
.applied  for  the  effect  of  his  rule,  at  the  next 
term,  after  notice  of  it  was  proved.  Having 
slept  so  long,  he  must  be  presumed  to  have 
waived  it.  The  motion  must  be  denied. 

Motion  denied. 
Hted  ln-15  How.,  200. 


RUSH  v.  COBBET. 

Commission — Return  of — Diligence — Trial. 

Where  the  party  who  sues  out  a  commission  to 
•examine  witnesses,  does  not  use  due  diliarence  to  get 
it  returned  in  proper  time,  or  the  return  is  not  prop- 
erly made,  the  court  will  permit  the  trial  to  pro- 
ceed, notwithstanding  the  commission. 

A  COMMISSION  to  examine  witnesses  in 
Philadelphia  was  issued  on  the  applica- 
tion of  the  defendant,  and  returned,  but  the 
return  was  stated  to  be  irregular. 

Mr.  Livingston  moved  for  leave  to  proceed 
to  trial  at  the  next  circuit,  and  offered  to 
waive  the  irregularity  in  the  return  of  the 
commission,  and  that  the  same  might  be 
opened,  and  the  defendant  have  the  benefit  of 
the  testimony  taken  under  it. 

Mr.  Riker,  contra. 

Per  Curiam.  Let  the  plaintiff  have  leave  to 
proceed  to  trial.  The  commission  being  taken 
out  on  the  part  of  the  defendant,  it  was  in- 
cumbent on  him  to  have  it  properly  returned, 
and  there  has  been  sufficient  time  for  that 
purpose.  Besides,  the  offer  of  the  plaintiff  to 
waive  the  irregularity  is  fair,  and  cannot 
reasonably  be  refused. 

Rule  granted. 
Cited  in— 2  Johns.,  183. 


71*]      *STEW ART  v.  WILLIAMS. 

Attachment — Sheriff —  Time. 

An  attachment  against  a  sheriff  for  not  bringing 
in  the  body  of  a  defendant,  cannot  be  issued  until 
twenty  days  after  service  of  a  notice  of  a  rule  for 
that  purpose. 

AN  attachment  was  issued  against  the  Sheriff 
of  Delaware  for  not  bringing  in  the  body 
of  the  defendant.  The  rule  for  the  attach- 
ment was  entered  in  less  than  twenty  days 
after  service  of  a  notice  on  the  sheriff  of  the 
previous  rule  to  bring  in  the  body. 
442 


Mr.  Hoffman  moved  to  set  aside  the  attach- 
ment, and  vacate  the  rule  on  which  it  was 
founded,  for  irregularity,  with  costs. 

Per  Curiam.  Let  the  attachment  be  set 
aside,  and  the  rule  be  vacated,  with  costs,  to 
be  paid  by  the  plaintiff.  The  sheriff  was 
entitled  to  twenty  days  notice  of  the  rule  to 
bring  in  the  body. 

JACKSON,  ex  dem.  MARTIN. 

PLA'TT.     •. 

Case  made — Necessary  Papers — Refusal  to  De- 
liver— Order — Stay  of  Proceedings. 

Where,  after  a  verdict,  and  within  the  two  days 
allowed  for  making  a  case,  the  defendant's  attorney 
applied  to  the  plaintiff's  attorney  for  certain  papers 
which  had  been  read  in  evidence,  and  which  were 
necessary  to  be  put  in  the  case,  which  were  refused 
by  the  plaintiff's  attorney,  and  the  defendant's 
attorney  could  not,  for  that  reason,  make  up  the 
case,  the  court  ordered  that  the  plaintiff's  attorney 
furnish  the  papers  to  the  defendant's  attorney,  or  • 
permit  him  to  take  extracts,  and  that  the  proceed- 
ings should,  in  the  meantime,  be  stayed. 

A  FTER  the  trial  of  this  cause,  and  within 
IJL  the  time  allowed  for  making  a  case,  the 
defendant's  attorney  applied  to  the  attorney 
for  the  plaintiff  for  the  inspection  of  certain 
papers  which  had  been  read  in  evidence,  to 
enable  him  to  make  the  case,  and  which  were 
necessary  for  that  purpose.  These  were  re- 
fused, and  the  defendant's  attorney  for  that 
reason  could  not  make  the  case.  Two  orders 
had  been  obtained  from  a  judge  to  stay  the 
proceedings  on  this  *ground,  the  first  of  [*7t2 
which  was  served  on  the  plaintiff's  attorney, 
who,  notwithstanding  the  order,  proceeded  to 
enter  a  judgment  on  the  verdict. 

Mr.  Van  Vechten,  for  the  defendant,  now 
moved  to  set  aside  the  proceedings  subsequent 
to  the  verdict,  with  costs. 

Messrs.  Woodworth  and  Spencer,  contra. 

Per  Curiam.  It  was  improper  in  the  plaint- 
iff's attorney  to  refuse  an  inspection  of  the 
papers,  or  not  to  furnish  sufficient  extracts 
from  them,  to  enable  the  defendant's  attorney 
to  make  the  case.  It  is  therefore  ordered  that 
the  defendant  have  time  to  make  a  case  until 
eight  days  after  the  expiration  of  the  present 
term,  and  that  the  plaintiff's  attorney  furnish 
the  papers  required  for  that  purpose,  or  suffer 
the  defendant's  attorney  to  take  sufficient  ex- 
tracts from  the  same,  and  that  the  proceed- 
ings in  this  cause  remain  in  their  present 
state,  until  the  further  order  of  the  court. 


JANSEN  ET  AL.,  Administrators, 
DAVISON. 

Costs — Refusal  of  Court  Below  to  Give — Admin- 
istrator's Remedy  —  Mandamus —  Writ  of 
Error. 

Where  the  plaintiffs,  who  were  administrators,  in 
a  cause,  in  the  Court  of  Common  Pleas,  recovered 
less  than  $25  damages,  and  that  court  gave  judg- 
ment for  the  damages,  but  not  for  the  costs,  this 
court  refused  to  grant  a  mandamun  to  compel  them 
to  give  judgment  for  the  costs.  The  proper  remedy 
is  by  a  writ  of  error. 

JOHNSON'S  CASES,  2. 


1800 


THE  PEOPLE  v.  COCHKAK. 


72 


A  RECOVERY  was  obtained  in  the  Com- 
mon Pleas  of  Ulster,  in  favor  of  the 
plaintiffs,  in  the  capacity  of  administrators, 
for  a  sum  less  than  $25.  The  court  below 
gave  judgment  for  the  damages,  but  consider- 
ing the  plaintiffs  not  entitled  to  costs,  refused 
to  give  judgment  for  costs. 

Mr.  Oardinier,  for  the  plaintiff,  moved  for  a 
mandamus  to  the  Common  Pleas,  commanding 
them  to  give  judgment  in  favor  of  the  plaint- 
iffs, for  the  costs,  as  well  as  the  damages 
recovered. 

73*]  *Per  Curiam.  This  application  can- 
not be  granted.  The  court  below  have  exer- 
cised their  judgment  on  the  question  of  costs. 
It  was  not,  on  their  part,  a  delay  or  refusal  to 
do  what  appeared  to  them  to  be  right.  If 
they  were  wrong,  it  was  an  error  of  judgment 
merely,  and  the  proper  remedy  is  by  a  writ  of 
error,  which  the  party  is  entitled  to  have  upon 
an  erroneous  judgment,  whether  it  be  in  his 
favor,  or  against  him.  Upon  a  writ  of  error, 
the  court  above  may  not  only  reverse,  but  give 
such  judgment  as  the  court  below  ought  to 
have  given. 

Motion  denied. 
Cited  in— 1  Cow.,  433 ;  18  Wend.,  575. 


THE  PEOPLE  v.  COCHRAN. 

Assault  and  Battery —  Conviction — Motion  for 
Judgment —  Circumstances  not  Shown — Nom- 
inal Fine. 

Where  a  person  had  been  convicted  on  an  indict- 
ment for  an  assault  and  battery,  and  the  Attorney- 
•General  moved  for  judgment,  but  showed  no  cir- 
cumstances attending  the  offense  by  which  the 
«ourt  could  judge  of  the  degree  of  punishment 
which  ought  to  be  inflicted,  a  mere  nominal  fine  was 
imposed. 

THE  defendant  was  indicted  for  an  assault 
and  battery,  at  a  general  sessions  of  the 
peace,  in  the  County  of  Otsego.  He  removed 
the  indictment  into  this  court  by  certiorari, 
and  issue  being  joined  on  the  plea  of  not 
guilty,  it  was  carried  down  to  be  tried  at  the 
last  circuit  in  that  county,  by  nisi  prius.  On 
the  trial,  the  defendant  appeared,  and  was 
convicted  upon  his  own  confession,  in  open 
court. 

The  record  being  returned,  the  Attorney- 
General  moved  for  judgment,  but  neither  he, 
nor  the  prosecutor  offered  any  evidence  in 
aggravation,  nor  the  defendant  in  extenuation 
•of  the  offense. 

Per  Curiam.  No  circumstances  attending 
the  offense  on  either  side  being  shown,  the 
court  have  no  criterion  by  which  to  regulate 
their  discretion  in  fixing  the  punishment. 
We  are  therefore  bound  to  consider  it  as  a 
common  offense;  and,  accordingly,  impose  a 
fine  of  one  dollar. 

74*]     *LANSING,     Ch.    J.,   dissented.      He 
was  of  opinion  that  a  higher  fine  ought  to  be 
imposed. 
JOHNSON'S  CASES,  2. 


JONES  v.  DUNNING  AND  DOE. 

Bail — Proceedings  Against — Irregular — Laches. 

Where  the  proceedings  against  bail  were  irregular, 
but  they  suffered  two  terms  to  elapse,  after  a 
knowledge  of  the  irregularity,  before  they  applied 
to  set  them  aside,  it  was  held  too  late. 

rPHE  defendants  were  sued  as  the  special 
J-  bail  of  A.  B.  In  January  Term  last, 
judgment  was  obtained  against  them;  and  in 
March,  an  execution  issued  thereon.  The 
proceedings  against  them  were  by  writs  of 
scire  facias,  which  were  returned  nihil;  and  it 
appeared,  that  the  second  sdre  facias  had  not 
been  four  days  in  the  sheriff's  office.  On  this 
ground, 

Mr.  Van  Vechten  moved  to  set  aside  all  the 
subsequent  proceedings,  for  irregularity. 
Mr.  Woodworth,  contra. 

Per  Curiam.  There  has  been  a  great  laclie* 
on  the  part  of  the  defendants.  They  must  be 
presumed  to  have  had  actual  notice  of  the 
proceedings  against  them,  at  or  before  April 
Term  last,  for  the  execution  issued  in  March. 
Two  terms  have  since  intervened,  and  they 
now  come  too  late  to  object  to  these  proceed- 
ings. 


Motion  denied. 


Distinguished  in— 34  How.,  383. 
Cited  in— 1  Daly,  300. 


*SCOFFIELD  ET  TJX.  v.  LODER.  {*75 

Writ  of  Eight — Summons — Service — Return — 
Irregularity. 

Where  the  tenant  on  a  writ  of  right,  vouches,  and 
a  writ  of  summons  issues  which  is  irregular  in  its 
service,  or  defective  in  the  return,  an  alias  sum- 
mons will  be  granted  against  the  vouchee. 


0 


N  a  writ  of  right. 


The  tenant  having  vouched  one  Hunter,  a 
writ  of  summons  was  issued,  the  service  of 
which  was  irregular,  or  its  return  by  the 
sheriff  was  defective,  no  proclamation  appear- 
ing to  have  been  made. 

Mr.  Riker,  for  the  demandant,  moved  for 
judgment  against  the  tenant. 

Mr.  Munro,  contra,  applied  for  an  alias 
summons  against  the  vouchee. 

Per  Curiam.  The  tenant  is  entitled  to  an 
alias  summons.  The  insufficient  service  of  the 
first  writ,  or  its  defective  return,  is  not  imput- 
able  to  him,  and  he  ought  not  to  be  placed  in 
a  worse  condition  than  if  nihil  had  been  re- 
turned. Let an  alias  issue. 


Motion  denied. 


443 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


MUNROE  AND  ROE  v.  COLLIN  EASTON. 

1.  Sill  of  Exchange — Accepted — No  Demand — 
Liability  of  Drawer.  2.  Id. — Paid  by  Payee 
Indorser — Discharges — Drawer — Bill  as  Evi- 
dence. 

A  drawer  of  a  bill  which  has  been  accepted,  is  not 
responsible  until  after  a  default  of  the  acceptor, 
and  the  holder  must  use  due  diligence  to  demand 
payment  of  the  acceptor  before  he  can  resort  to  the 
drawer. 

The  indorsee  of  a  bill  of  exchange,  which  had  been 
accepted,  without  demanding  payment  of  the  ac- 
ceptor, or  inquiring1  after  the  drawer,  presented  the 
bin,  when  it  became  due,  to  the  payee  indorser, 
who  paid  it,  and  charged  the  amount  in  his  account 
against  the  acceptor.  The  payee  afterwards  brought 
an  action  against  the  drawer,  for  so  much  money 
paid  to  the  use  of  the  drawer,  and  offered  the  bill  in 
evidence  in  support  of  the  action ;  it  was  held  that 
the  drawer  was  not  liable. 

Citation— 2  Burr.,  674. 

x 

THIS  was  an  action  of  indebitatus  assumpsit, 
for  money  paid,  laid  out  and  expended 
for  the  defendant,  and  for  money  had  and  re- 
ceived by  him  to  the  use  of  the  plaintiff. 

At  the  trial,  in  support  of  his  action,  the 
plaintiff  gave  in  evidence  a  bill  of  exchange, 
dated  the  27th  of  April,  1797,  drawn  by  the 
defendant  on  David  Easton,  of  Philadelphia, 
directing  him  to  pay,  four  months  after  date, 
to  the  plaintiffs,  or  their  order,  $750.  The 
76*]  bill  was  indorsed  by  *the  plaintiffs,  and, 
successively,  by  J.  P.  Mumford,  J.  Lawrence, 
P.  Ludlow,  and  A.  H.  Lawrence.  It  was  ac- 
companied with  a  protest,  in  which  the  notary 
stated  that  at  the  request  of  the  last  indorser, 
he  presented  the  bill  at  the  house  of  the  plaint- 
iffs, the  first  indorsers,  and  demanded  pay- 
ment of  a  clerk  of  the  plaintiffs,  who  answered 
that  the  plaintiffs  were  absent,  and  that  he  had 
no  orders  to  pay  the  bill.  The  notary  was  not 
requested  to  call  on  the  defendant,  nor  did  he 
make  any  inquiries  after  him. 

The  plaintiffs  were  friendly  indorsers  of  the 
bill,  for  the  accommodation  of  the  drawer, 
and  had  no  interest  in  it,  and  they  paid  the 
amount  to  the  holder.  The  bill  was  accepted 
by  the  drawee,  who  resided  in  Philadelphia, 
and  when  the  bill  became  due,  the  defendant 
was  absent,  in  the  West  Indies.  No  demand 
was  made  of  the  acceptor  of  the  bill  when  it 
became  due. 

An  account  current  between  the  acceptor 
and  his  partner,  James  Cavan,  and  the  plaint- 
iffs was  produced,  in  which  the  plaintiffs  had 
charged  the  bill  in  question  to  them;  and  a 
letter  from  the  plaintiffs  to  Easton  and  Cavan, 
inclosing  the  account,  and  requesting  payment 
of  the  balance,  was  also  produced. 

The  jury  found  a  verdict  for  the  plaintiffs, 
contrary  to  the  charge  of  the  judge. 

A  motion  was  made  at  the  last  term  to  set 
aside  the  verdict,  and  for  a  new  trial. 

Mr.  Pendleton  for  the  plaintiffs. 
Messrs.  B.  Livingston  and  Backer,  for  the  de- 
fendant. 

KENT.  ./.,  delivered  the  opinion  of  the  court: 

NOTE.— Negotiable  paper,  what  constitutes  duedtl- 
igence. 

See  note  to  Stewart  v.  Eden,  2  Caines,  121  (this 
edition). 

444 


I  have  always  understood  the  law  to  be  well 
settled,  that  the  drawer  of  a  bill  is  only  respon- 
sible after  a  default  on  the  part  of  the  accept- 
or; and  that  the  holder  must  first  demand  pay- 
ment, or  use  due  dilligence  to  demand  it  of  the 
acceptor,  before  he  can  resort  to  the  drawer. 
(2  Burr.,  674.)  Nothing  of  this  kind  having 
been  done  in  the  present  case,  I  consider  the 
drawer  as  discharged.  No  change  in  the  form 
of  the  *action  can  alter  the  respective  [*77 
rights  of  the  parties  in  relation  to  the  bill. 
This  must  be  considered  as  a  suit  by  the  payee 
of  a  bill  of  exchange  against  the  drawer,  and 
the  law  is  too  well  settled  to  admit  of  a  doubt. 

If  this  was  to  be  considered  on  the  ground 
of  an  equitable  action  for  money  laid  out  and 
expended  to  another's  use,  and  had  no  refer- 
ence to  the  bill,  yet  the  evidence  in  the  case 
shows  that  the  money  was  advanced  for  the 
use  of  the  acceptor,  and  not  of  the  drawer. 
The  letter  and  account  current  of  the  plaintiffs 
is  decisive  proof  against  them. 

The  verdict,  therefore,  ought  to  be  set 
aside,  as  against  law  and  evidence. 

New  tnal  granted. 
Cited  in— 3  Cow.,  262. 


SKIDMORE  &  SKIDMORE  v.  DESDOITY. 

Marine    Insurance — "All  Lawful    Goods  and 
Against  All  Risks." 

In  an  action  on  a  policy  of  insurance  on  all  lawful 
goods,  &c.,  against  all  risks,  it  was  held  that  the  in- 
surance covered  all  goods  lawful  to  be  exported 
from  the  United  States,  though  contraband  of  war, 
and  owned  by  a  subject  of  one  of  the  belligerents. 

Citations— 1  Johns.  Cas.,  1 ;  1  Johns.  Cas.,  337. 

THIS  was  an  action  on  a  policy  of  insur- 
rance,  upon  all  lawful  goods  and  mer- 
chandises, on  board  of  the  schooner  Fox,  from 
New  York  to  New  Orleans,  against  all  risks, 
&c.  Premium,  12  per  cent.  Plea,  the  general 
issue. 

The  plaintiffs  were  British  subjects,  and 
partners  in  trade,  residing  in  the  city  of  New 
York,  and  on  the  31st  of  January,  1799,  put 
on  board  the  Fox,  at  New  York,  a  bale  of 
Russia  sheeting,  of  the  value  of  $475.  The 
vessel  sailed  on  her  voyage,  and  was  captured 
by  a  British  cruiser,  and  carried  into  New 
Providence,  where  the  goods  in  question  were 
condemned,  under  the  name  of  "ticklen- 
burghs,"  as  contraband  of  war,  and  enemy's 
property.  The  plaintiffs,  on  hearing  of  the 
I  condemnation,  abandonded  for  a  total  loss. 

It  appeared  that  the  premium  for  under- 
writing contraband  goods  was  17£  per  cent. 

The  jury  found  a  verdict  for  the  plaintiff. 

*A  motion  was  made  to  set  aside  the  [*78 
verdict,  and  for  a  new  trial,  which  was  argued 

SMr.  Riggs  for  the  plaintiffs,  and  Messrs, 
ndleton  and  Troup,  for  the  defendant. 

Per  Curiam.  In  the  case  of  Seton  et  al.  v. 
L&tc  (1  Johns.  Cas.,  1),  it  was  decided  that  an 


NOTE.— Marine  insurance,  lawful  goods,  contratmnd 
of  war. 

See  Seton  v.  Low  and  note,  1  Johns.  Cas.,  1  (this 
edition). 

JOHNSON'S  CASES,  2. 


1800 


SABLE  v.  HITCHCOCK. 


78 


insurance  on  lawful  goods  extended  to  all 
goods  which  it  was  lawful  by  the  laws  of  this 
country  to  export,  and  that  the  insured  was 
not  bound  to  disclose  to  the  insurer  that  the 
goods  were  of  the  description  of  contraband 
•of  war.  -Whatever  effect  the  difference  of 
premium  might  have,  to  do  away  the  pre- 
sumption that  that  the  insurer  took  upon 
himself  the  risk  of  goods  of  this  description 
without  a  special  disclosure,  the  stipulation  in 
the  policy  that  the  insurance  was  against  all 
risks,  must  remove  all  doubt. 

In  the  case  of  Goix  v.  Knox  (1  Johns.  Gas. , 
337),  it  was  decided  that  an  insurance  against 
all  risks  protects  the  insured  against  every- 
loss  happening  during  the  voyage,  except 
such  as  may  arise  from  the  fraud  of  the  in- 
sured. According  to  these  decisions,  the  pol- 
icy must  be  considered  as  covering  all  goods 
lawful  to  be  exported,  whatever  may  be  their 
quality,  or  whoever  may  be  owner.  We  are, 
therefore,  of  opinion  that  the  plaintiffs  must 
Mve  judgment. 

Judgment  for  the.  Plaintiffs. 
Cited  in— 12  Wend.,  466. 


79*]       *SABLE  t>.  HITCHCOCK. 

Slave  Hired  in  This  State — Constructive  Sale — 
Penalties —  Representatives — Act  of  February 
22d,  1788. 

A,  the  owner  of  a  slave  in  New  Jersey,  removed 
into  this  state  with  the  slave,  and  entered  into  an 
.agreement  with  B  in  this  state,  by  which  he  put 
the  slave  to  service  to  B  until  the  parties  or  their 
executors  should  mutually  agree  to  annul  the  agree- 
ment. This  was  held  to  be  a  sale  of  the  slave,  in 
this  state,  within  the  intent  and  meaning  of  the 
Act  Concerning  Slaves,  passed  the  23d  February,  1788. 
But  such  an  agreement  or  sale,  if  in  the  course  of 
administration,  or  by  persons  acting  in  outre  droit, 
ras  executors,  assignees  of  absent  or  insolvent  debt- 
ors, sheriffs  on  execution,  and  trustees,  would  not 
be  within  the  act,  so  as  to  subject  the  vendors  to  the 
penalty,  or  make  the  slave  free. 

Citation— Colony  Laws,  Vol.  1,  283,  284. 

TNhomine  replegiando.  The  declaration  was 
as  follows:  "City  and  County  of  New 
York,  to  wit:  Joseph  Hitchcock  was  attached 
to  answer  unto  one  Effy  Sable,  of  a  plea 
wherefore  he  took,  and  taken,  kept  the  said 
Effy,  and  whereupon  the  said  Effy,  by  Mr. 
Peter  Jay  Munro,  her  attorney,  complains  that 
the  said  Joseph,  on  the  first  day  of  November, 
in  the  year  of  our  Lord,  1796,  at  the  City  and 
County  of  New  York,  and  at  the  first  ward  of 
the  said  city,  took  the  said  Effy,  and  her 
taken,  kept  until,  &c.,  whereby  the  said  Effy 
saith  she  is  made  worse,  and  hath  damage  to 
the  value  of  2001. ,  and  thereof  she  brings 
suit."  &c. 

Plea.  And  the  said  Joseph,  by  Mr.  James 
Woods,  his  attorney,  comes  and  says,  that  the 
said  Effy  Sable  ought  not  to  be  answered,  be- 
cause he,  the  said  Joseph  saith,  that  the  said 
Effy  Sable,  on  the  fourth  day  of  July,  in  the 
year  of  our  Lord,  1794,  was  a  slave,  belonging 
to  one  Samuel  Ellis,  to  wit,  at  the  city  of  New 
York,  in  the  County  of  New  York;  and  the 
said  Joseph  further  saith  that  the  said  Samuel 
JOHNSON'S  CASES,  2. 


Ellis  made  his  last  will  and  testament  in 
writing,  in  due  form  of  law,  bearing  date  the 
4th  day  of  July,  in  the  year  of  our  Lord,  1794, 
and  thereby  constituted  Simon  Van  Antwerp, 
Elias  Burger,  and  William  Reilly,  executors 
thereof,  to  wit,  at  the  city  and  in  the  county 
aforesaid,  and  the  said  Samuel  Ellis,  after 
making  his  said  last  will  and  testament,  to  wit, 
on  the  10th  day  of  July,  in  the  said  year  of 
pur  Lord,  1794,  died  at  the  city  of  New  York, 
in  the  County  of  New  York,  without  revoking 
or  altering  his  last  will  and  testament,  and 
possessed  of  the  said  Effy  as  his  slave  afore- 
said, and  the  said  Joseph  further  saith  that 
the  said  Simon  Van  Antwerp,  Elias  Burger, 
and  William  Reilly,  took  upon  themselves  the 
execution  of  the  said  last  will  *and  tes-  [*8O 
tament  of  the  said  Samuel  Ellis,  deceased,  to 
wit,  on  the  day  and  year  last  mentioned,  at 
the  city  in  the  county  aforesaid,  and  then  and 
there,  as  the  executors  of  the  said  Samuel  Ellis 
were  possessed  of  the  said  Effy;  and  the  said 
Simon  Van  Antwerp,  Elias  Burger,  and  Will- 
iam Reilly,  by  a  certain  indenture  between 
them,  as  executors  of  the  last  will  and  testa- 
ment of  the  said  Samuel  Ellis  deceased,  of  the 
one  part,  and  the  said  Joseph  Hitchcock  of  the 
other  part,  under  the  hands  and  seals  of  the 
said  parties  respectively,  bearing  date  the  5th 
day  of  September,  in  the  year  of  our  Lord 
1794,  did  place  and  to  service  put,  with  the 
said  Joseph  the  said  Effy  Sable,  to  live  and  re- 
side with  the  said  Joseph,  his  executors,  ad- 
ministrators and  assigns,  as  his  and  their  serv- 
ant, and  to  be  used  and  employed  in  and 
about  the  business  of  the  said  Joseph  or  in  any 
other  way  that  he  the  said  Joseph,  his  execu- 
tors, administrators  and  assigns,  might  think 
proper,  and  so  to  continue,  and  remain,  until 
the  several  parties  to  the  said  indenture,  their 
several  and  respective  executors,  administra- 
tors and  assigns,  should  or  might  mutually 
consent  and  agree,  to  vacate  and  annul  the  said 
indenture,  to  wit,  at  the  city  and  county  afore- 
said; and  the  said  Effy  Sable,  .so  being  placed 
and  to  service  put  with  the  said  Joseph;  and 
the  several  parties  to  the  said  indenture,  not 
having  as  yet  in  any  manner  consented  or 
agreed  to  vacate  and  annul  the  said  indenture, 
the  said  Joseph  by  virtue  thereof  became  and 
still  continues  to  be  entitled  to  the  custody  and 
services  of  the  said  Effy  Sable,  wherefore  the 
said  Joseph,  on  the  said  1st  day  of  November, 
in  the  year  of  our  Lord,  1796,  at  the  city, 
county  and  ward  aforesaid,  took  the  said  Effy 
and  her  taken,  kept  until,  &c.,  as  it  was  law- 
ful for  him  so  to  do,  wherefore  he  prays  judg- 
ment, if  the  said  Effy  Sable  in  this  behalf 
ought  to  be  answered. 

Replication.  And  the  said  Effy  prays  oyer 
of  the  indenture  aforesaid,  and  to  her  it  is  read 
in  these  words,  to'*wit:  "  This  indenture,  [*81 
made  the  5th  day  of  September,  in  the  year  of 
our  Lord,  1794,  between  Simon  Van  Antwerp, 
Elias  Burger,  and  William  Reily,  of  the  city  of 
New  York,  executors  of  the  last  will  and  testa- 
ment of  Samuel  Ellis  deceased,  of  the  one  part, 
and  Joseph  Hitchcock  of  the  said  city,  sail- 
maker,  of  the  other  part,  witnesseth,  that  the 
said  parties  of  the  first  part,  in  consideration 
of  the  sum  of  10s.  current  money  of  the  State 
of  New  York,  to  them,  the  said  parties  of  the 
first  part,  in  hand  paid  by  the  said  Joseph 

445 


81 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


Hitchcock,  at  and  immediately  before  the  en- 
sealing  and  delivery  of  these  presents,  do  place 
and  to  service  put  with  the  said  Joseph  Hitch- 
cock, a  certain  negro  wench  named  Effy,  and 
her  male  child,  late  the  property  of  the  said 
Samuel  Ellis,  deceased,  to  live  and  to  reside 
with  the  said  Joseph  Hitchcock,  his  executors, 
administrators  and  assigns,  as  his  and  their 
servant,  and  be  used  and  employed  in  and 
about  the  business  of  the  said  Joseph  Hitch- 
cock, or  in  any  other  way  that  he,  the  said  Jo- 
seph Hitchcock,  his  executors,  administrators 
or  assigns,  may  think  proper,  and  so  to  continue 
and  remain,  until  the  several  parties  to  these 
presents,  their  several  and  respective  executors, 
administrators  and  assigns,  shall  or  may 
mutually  consent  and  agree  to  vacate  and  annul 
these  presents;  and  the  said  parties  of  the  first 
part,  for  themselves,  their  executors  and  ad- 
minstrators,  do  covenant  and  agree  with  the 
said  Joseph  Hitchcock,  his  executors,  adminis- 
trators and  assigns,  that  the  said  negro,  and 
her  said  male  child,  shall  remain  with  the  said 
Joseph  Hitchcock,  his  executors,  administra- 
tors and  assigns,  in  manner  as  aforesaid,  and 
until  all  the  parties  to  these  presents  as  afore- 
said, shall  mutually  agree  to  annul  and  vacate 
these  presents,  without  any  the  let,  trouble, 
hindrance,  molestation,  or  denial  of  them,  the 
said  parties  of  the  first  part,  their  executors, 
administrators  and  assigns,  or  either  of  them, 
or  any  person  or  persons,  claiming  or  to  claim, 
by,  from  or  through  them,  or  either  of  them; 
and  the  said  Joseph  Hitchcock,  for  himself, 
his  heirs,  executors  and  administrators,  doth 
82*J*covenant  and  grant,  with  the  said  parties 
of  the  first  part,  their  executors,  administra- 
tors and  assigns,  and  every  of  them,  that  during 
all  the  time  aforesaid,  the  said  wench  and  her 
said  male  child,  shall  be  kept,  provided,  and 
maintained  at  the  sole  expense,  charge  and 
trouble  of  him  the  said  Joseph  Hitchcock,  his 
executors,  administrators  and  assigns,  in  such 
way, that  during  all  the  aforesaid  time,  the  said 
parties  to  the  first  part,  their  executors  and  ad- 
ministrators, and  every  of  them,  and  the  es- 
tate of  the  said  Samuel  Ellis  deceased,  shall 
and  may  never  become,  in  any  way  whatsoever, 
chargeable  therewith.  In  witness  whereof," 
&c.,  which  being  read  and  heard,  the  said  Effy 
says  that  she  ought  to  be  answered,  notwith- 
standing anything  by  the  said  Joseph  above, 
in  pleading,  alleged,  because  the  said  Effy 
says  that,  after  the  1st  day  of  June,  in  the  year 
of  our  Lord,  1785,  and  also  after  the  22d  day  of 
February,  in  the  year  of  our  Lord  1794,  the 
said  Samuel  Ellis,  in  his  lifetime,  did  dwell 
and  reside  in  the  State  of  New  Jersey,  out  of 
the  State  of  New  York;  and  that  the  said  Effy, 
then  being  the  slave  of  the  said  Samuel,  was 
held  and  detained  by  the  said  Samuel  as  his 
slave,  within  the  saia  State  of  New  Jersey,  to 
wit,  on  the  day  and  year  last  aforesaid;  and 
that  afterwards,  to  wit,  on  the  same  day  and 
year  last  aforesaid,  the  said  Samnel,  in  his 
lifetime,  did  bring  the  said  Effy  from  the  said 
State  of  New  Jersey  into  the  State  of  New 
York,  to  wit,  to  the  City  and  County  of  New 
York,  and  ward  aforesaid,  and  there  held  her 
as  his  slave,  until  his  death.  And  this  she  is 
ready  to  verify,  wherefore  the  said  Effy  prays 
judgment  and  her  damages,  occasioned  by  the 
taking  and  keeping  of  the  said  Effy,  &c. 
446 


To  this  replication  there  was  a  general  de- 
murrer and  joinder. 

RADCLIFF,  J.  On  these  pleadings,  the  ques- 
tion is,  whether  the  disposition  made  of  the 
plaintiff,  by  the  executors  of  Samuel  Ellis,  to 
the  defendant,  was  a  sale,  within  the  meaning 
*of  the  Act  of  the  22d  February,  1788, '  [*83 
by  which  "  in  order  to  prevent  the  further  im- 
portation of  slaves  into  this  State,"  it  is  enact- 
ed that  if  any  person  shall  sell  as  a  slave  with- 
in this  State,  any  negro  or  other  person  who 
has  been  imported  or  brought  into  this  State, 
after  the  1st  June  1785,  he  shall  be  deemed 
guilty  of  a  public  offense,  and  forfeit  £100, 
and  the  person  so  imported  or  brought  into  this 
State  shall  be  free. 

1.  I  consider  the  disposition  of  the  slave, 
made  by  the  executors,  as  equivalent  to  an 
absolute  sale.     It  was  probably  made  in  the 
manner  expressed  in  the  indenture,  under  an 
apprehension  that  the  condition  of  the  plaint- 
iff came  within  the  description  of  the  act,  and 
with  a  view  to  elude  the  prohibition.     It  gives 
to  the  defendant  a  complete  authority  over  her 
as  his  servant,  and  unlimited  in  its  duration. 
It  is  not  only  unlimited,  at  the  pleasure  of  the 
defendant,  but  irrevocable,  without  the  con- 
sent of  both  parties,  that  is,  without  a  new  con- 
tract, to  rescind  the  old.     This  is,  to  every 
purpose,  a  sale.     Besides,  here  are  no  circum- 
stances to  denote  a  hiring  or  indenting  as  a 
servant,  no  time  for  the  expiration  of  the  in- 
denture, no  right  to  the  return  of  the  slave,  or 
to  demand  payment  for  her  services,  no  subse- 
quent responsibility  on  the  part  of  the  execu- 
tors, for  her  maintenance,  which  was  expressly 
assumed  by  the  defendant.     In  short,  no  title 
or  control  over  her,  was  in  any  shape  retained 
by  the  executors,  who  parted  with  all  their 
property  in  the  slave.     But, 

2.  I  am  of  opinion  that  the  sale  by  the  exe- 
cutors was  not  a  sale  within  the  spirit  of  the 
act.     The  objects  of  the  act  are  sufficiently 
answered,  if  it  be  restrained  in  its  operation  to 
the  ordinary  traffic  or  sale  of  slaves,  brought 
into  this  State,  by  persons  acting  in  their  own 
right,  and  for  their  own  emolument.     It  ought 
not  to  be  deemed  to  apply  to  those  who  act 
involuntarily  for  the  benefit  of  others,  and  in 
performance  of  a  trust  imposed  by  law.     Act- 
ing in  that  capacity,   *they  cannot  be  [*84 
supposed   to  incur  the  guilt  ascribed  to  this 
traffic,  and  ought  not  to  be  liable  for  its  con- 
sequences.    In  all  cases,  therefore,  of  persons 
acting  in  autre  droit,  as  executors,  assignees  of 
absent  or  insolvent  debtors,  sheriffs  on  sales 
by  execution,  and  trustees  on  whom  the  duty 
devolves,  by  the  interposition  of  law,  I  think 
the  act  cannot  apply.     It'  would  be  highly 
injurious  to  creditors  to  extend  it  thus  far,  and 
extremely  embarrassing  to  persons  acting  in 
these  capacities.     What  would  be  their  situa- 
tion and  duty  in  regard  to  such  slaves?    They 
are  not  bound  to  keep  them  as  their  own,  and 
if  kept  as  the  property  of  the  estate  which  they 
represent,  it  would  be  impossible  to  convert 
them  to  any  valuable  purpose,   in  the  execu- 
tion of  the  trust,  or  to  calculate  the  further 
responsibility  which  their  age  or    disability 

1— This  act  comprises  the  several  then  existing 
acts  concerning1  slaves,  and  which  were  passed  prior 
to  the  1st  June,  1785. 

JOHNSON'S  CASES,  2. 


1800 


SABLE  v.  HITCHCOCK. 


84 


might  occasion.  By  selling  them,  they  would 
incur  a  heavy  penalty,  besides  the  forfeiture 
of  the  slaves.  It  would  be  better  the  law 
should  declare  the  property  extinct,  and  anni- 
hilate the  right.  In  the  present  case,  the  re- 
moval of  the  testator  into  this  State,  without  a 
consequent  sale  by  him,  created  no  forfeiture. 
The  property  of  the  slave  continued  lawfully 
in  him;  and,  unless  extinguished  by  his  death, 
was  transmitted  to  the  executors,  and  became 
assets  in  their  hands.  If  so,  they  had  a  right 
to  dispose  of  her  for  the  benefit  of  the  estate  of 
their  testator,  and  the  sale  was  not  within  the 
act. 

I  am,  therefore,  of  opinion  that  there  should 
be  judgment  for  the  defendant. 

KENT,  J.  The  question  raised  by  these 
pleadings  is,  whether  the  act  of  the  executors 
in  placing  the  plaintiff  to  service,  as  stated  in 
the  pleadings,  be  a  sale  within  the  Act  of  the 
22d  February,  1788,  which  declares,  "that  if 
any  person  shall  sell  as  a  slave  within  this 
State,  any  negro  or  other  person,  who  has  been 
imported  or  brought  into  this  State,  after  the 
1st  June,  1785,  such  seller,  his  factor  or  agent, 
shall  be  guilty  of  a  public  offence,  and  shall 
forfeit  £100,  and  the  person  so  imported  and 
sold  shall  be  free." 

85*]  *I  have  no  difficulty  in  considering  the 
deed  set  forth  in  the  replication,  as  amount- 
ing to  a  sale.  A  complete  power  over  the  ser- 
vice and  person  of  the  plaintiff  is  transferred 
to  the  defendant  for  so  long  time  as  he  shall 
please,  which  may  well  include  the  whole  life 
of  the  slave,  and  be,  in  every  respect,  equal  to 
an  absolute  ownership.  A  transfer  depend- 
ing on  the  pleasure  of  the  vendee  is  an  abso- 
lute sale.  The  only  question  that  can  then 
arise  in  this  case,  is,  whether  a  sale  by  execu- 
tors in  the  course  of  administration,  be  such  a 
sale  as  is  contemplated  and  prohibited  by  the 
act? 

This  part  of  the  act,  concerning  slaves,  was 
made,  as  its  preamble  imports,  to  prevent  the 
further  importation  of  slaves  into  this  State;  a 
policy  the  direct  counterpart  to  that  contained 
in  one  of  our  colonial  statutes  (Colony  Laws, 
vol.  1.,  283,  284),  which  declared  that  all  due 
encouragement  ought  to  be  given  to  the  direct 
importation  of  slaves.  In  seeking  the  true 
construction  of  the  act,  we  ought  to  keep 
steadily  in  our  eye,  the  mischief  intended  to 
be  prevented,  which  was  the  foreign  traffic  in 
slaves;  and  the  Legislature  took  a  measure  de- 
cisively calculated  to  destroy  it,  by  forbidding 
any  person,  his  factor  or  agent,  to  sell  any 
slave  so  imported,  or,  in  other  words,  to  use 
him  as  an  article  of  commerce.  The  act  was 
hostile  to  the  importation,  and  to  the  expor- 
tation of  slaves,  as  an  article  of  trade,  not  to 
the  existence  of  slavery  itself;  for  it  takes  care 
to  re-enact  and  establish  the  maxim  of  the 
civil  law,  that  the  children  of  every  female 
slave  shall  follow  the  state  and  condition  of 
the  mother. 

If  we  can  then  fulfil  the  object  of  the  law, 
and,  at  the  same  time,  prevent,  the  rigorous 
penalty  of  the  act  from  working  injustice,  or 
impairing  the  requisite  funds  to  pay  debts.we, 
undoubtedly,  do  all  that  was  within  the  intent 
and  meaning  of  the  provision.  It  appears  to 
me,  therefore,  to  be  the  better  interpretation 
JOHNSON'S  CASES,  2. 


to  consider  sales  made  in  the  ordinary  course 
of  law,  and  which  are  free  from  any  kind  of 
collusion,  as  not  within  the  provision  of  the 
act. 

While  slaves  are  regarded  and  protected  as 
property,  they  ought  to  be  liable  to  an  essential 
consequence  attached  to  *property,  that  [*8O 
of  being  liable  to  the  payment  of  debts.  If  it  is. 
otherwise,  the  debtor  is  possessed  of  a  false 
token,  and  the  creditor  is  deceived.  By  con- 
sidering the  sale  mentioned  in  the  act,  as  con- 
fined to  a  voluntary  disposition  of  the  slave, 
for  a  valuable  consideration,  by  the  owner 
himself,  we  are  enabled  effectually  to  reach 
the  mischief  in  view,  the  importation  of  slaves 
for  gain,  and  we  take  away  every  such  motive 
to  import  them. 

I  cannot  acquiesce  in  the  interpretation, 
that  the  importer  can  sell  for  his  own  life. 
Importations  with  liberty  to  sell  for  the  life 
of  the  importer,  would  go  far  to  revive  and 
animate  this  impolitic  and  unjust  commerce. 
The  tenure  of  the  slave  per  auter  vie,  is, 
indeed,  not  quite  so  valuable  as  for  the  life  of 
the  slave,  but  still  it  would  be  highly  valu- 
able, and  the  commerce  would  be  thrifty. 

Upon  the  death  of  the  importer,  the  slave 
cannot  be  considered  as  free;  nor  do  I  perceive 
that  the  act  gives  color  to  such  a  conclusion. 
If  the  slaves  belong  to  the  estate,  they  must  go 
to  the  executor  as  assets.  He  becomes  their 
master,  and  is  liable  for  their  trespasses,  and 
for  their  maintenance,  if  infirm;  and  it  results, 
inevitably,  that  he  must  be  able  to  sell  them, 
because  he  must  answer  for  them  as  assets. 

For  these  reasons,  I  am  inclined  to  think 
that  slaves  so  imported  may  be  held  as  assets 
by  creditors  on  execution,  and  by  executors, 
in  the  course  of  administration;  and  conse- 
quently, that  judgment  must  be  for  the  de- 
fendant. 

LEWIS,  J.,  concurred. 

BENSON,  J.  (After  stating  the  facts  in  the 
case.)  The  question  is,  whether  a  slave,  so 
imported,  or  brought  into  the  State,  and 
remaining  unsold,  can,  on  the  death  of  the 
master  or  owner,  be  sold  by  his  executor? 

By  the  law  of  this  State,  slavery  may  exist 
within  it.  One  person  can  have  property  in 
another,  and  the  slave  is  part  of  the  good's  of 
the  master,  and  may  be  sold,  or  otherwise 
aliened  by  him;  or  remaining  unaliened,  is,  on 
his  death, *transmissible  to  his  executors;  [*87 
but  by  the  act  under  consideration,  a  slave 
imported  or  brought  in,  after  the  1st  June, 
1785,  is  not  to  be  sold,  as  a  slave,  and  if  the 
slave  should  be  so  sold,"  the  master,  and  every 
other  person  privy  with  him  to  the  sale,  are 
liable  to  a  penalty,  and  the  slave  becomes 
free,  by  force  of  the  sale  itself.  Though 
these  two  effects  of  the  sale  are  distinct,  and 
the  latter,  perhaps,  capable  to  be  considered 
as  beneficial,  yet  as  they  must  necessarily  ever 
be  concomitant,  the  same  sale,  or  act  of  alien- 
ation, always  producing  them  both,  and  at 
the  same  time,  the  entire  clause  or  section  is 
thereby  rendered  penal,  of  strict  interpreta- 
tion, and,  consequently,  constructive  sales  are 
to  be  altogether  excluded. 

It  is  further  to  be  premised,  that  the  dero- 

447 


87 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1800 


gation  from  the  rights  of  the  master,  intended 
by  the  act,  is  such,  that  in  order  to  decide  on 
its  nature  and  extent,  it  will  be  requisite  to 
examine  and  pronounce  on  the  whole  of  the 
residue  of  the  right  of  alienation,  to  be 
deemed  left  in  him,  as  to  a  slave  so  imported 
or  brought  in.  I,  therefore,  state,  1.  That 
so  much  of  the  benefit  intended  to  the  slave, 
as  consists  in  the  chance,  if  it  may  be  so  ex- 
pressed, of  becoming  free,  in  consequence  of 
a  sale,  is  only  to  the  person  imported  or 
brought  in,  as  to  be  distinguished  from  any 
participation  in  it  by  the  issue  of  the  person. 
So  that  where  the  person  is  a  female,  the 
master  has  a  right  to  sell  the  issue,  born  after 
she  shall  have  been  imported,  or  brought  in, 
and  before  she  herself  shall  happen  to  become 
free,  equally  as  he  may  sell  any  other  slave. 

2.  That  the  act  only  prohibits  a  sale,  or  an 
alienation  for  a  valuable  consideration,  as  to 
be  distinguished    from    a  gift,  a   gratuitous 
alienation,  or  for  good  consideration  only,  and 
consequently,  the  master  has  a  right  to  give 
away  the  slave. 

3.  That  the  act  does  not  prohibit  every 
sale,  but  only  such  sales  where  the  slave  is 
sold  as  a  slave,   to  become  the  slave  of  the 
buyer,  and  where  the  whole  of  the  estate  or 
interest    of    the  master   is   intended  to  pass 
to  the  buyer,  without  any  reversion  in  the 

-JS8*]  master.  It  must  be  a  sale  in  *fee,  as  to  be 
distinguished  from  a  sale  for  a  term  depending 
on  a  limitation  of  time,  either  contingent  or 
definite,  when  the  sale  is,  as  it  were,  to  expire, 
and  the  slave  again  to  revert  to  the  master; 
but  it  being  obvious  that  if  the  master  may 
sell  for  a  term,  and  be  unrestrained  as  to  the 
limitation  of  it,  that  he  may  then,  by  the  mere 
form  of  the  sale,  prevent  the  slave*  from  the 
benefit  of  the  act,  the  law  will,  therefore,  im- 
plicitly supply  the  limitation,  and  which  can 
be  no  other  than  the  life  of  the  master  him- 
self. 

4.  As  the  consequence  from  the  two  last 
propositions,  the  master  has  a  right  to  sell  for 
his  own  life,  or  for  any  other  uncertain  term, 
or  for  a  term  of  ytars;  and  where  the  sale  is 
for  any  other  term  than  the  life  of  the  master, 
if  it  should  not  happen  to  expire  by  its  own 
limitation  in  his  lifetime,  it  will  expire  on  his 
death,  and  be  good  for  his  life.     In  short,  he 
has  an  estate  or  interest  for  his  own  life  only, 
in  the  slave;  and  if  the  slave  shall  have  been 
given  away  by  the  master,  and  by  his  donee 
or  any  other,  and  so  by  donee  to  donee,  each 
will,  in  like  manner,  have  an  estate  or  interest 
for  his  own  life  in  the  slave. 

This  exposition  appears,  on  the  whole,  to 
satisfy  the  act,  preferably  to  any  other  which 
has  occurred;  for  let  it  suffice  to  state  one  con- 
sequence only,  should  the  slave  be  adjudged 
transmissible  to  the  executor,  namely,  that 
the  goods  of  the  testator  coming  to  the  execu- 
tor, subject  to  a  power  and  trust  to  sell  them, 
he  may  sell  the  whole  of  them  (and  he  must 
sell  a  portion  of  them,  if  wanted,  to  raise 
moneys  for  the  payment  of  debts  and  pecuni- 
ary legacies);  and  it  not  being  possible  to  de- 
duce or  conceive  his  life,  or  any  other  given 
time,  as  the  limitation  of  a  term  for  which 
only  he  may  sell,  he  may  therefore  sell  in 
perpetuity,  and  if  so,  then  there  may  be  a 
sale  of  a  slave,  as  a  slave,  and  neither  the  seller 
448 


be  liable  to  the  penalty,  nor  the  slave  be  free, 
which  is  contrary  to  the  express  provision  of 
the  act. 

For  these  reasons,  I  am  of  opinion  that  the 
plaintiff  is  entitled  to  judgment. 

*LANSING,  Ch.  J.,  not  having  heard  [*89 
the  argument  in  the  cause,  gave  no  opinion. 

Judgment  for  the  defendant. l 

Affirmed-  Post  488. 
Explained— 11  Johns.,  68, 
Cited  in-17  Johns.,  299. 


FISH  v.  FISHER. 

Slave — Hired  in  this  State — Constructive  Sale — 
Act  of  February  22d,  1788 — Freedom. 

Where  a  slave,  aged  twenty-five  years,  ran  away 
from  his  master  in  New  Jersey,  and  came  to  New 
York,  and  his  master  came  to  New  York  and  there 
entered  into  an  agreement  by  which  he  let  the  slave 
to  a  person  in  New  York  for  twenty  years,  for  the 
consideration  of  $225 ;  giving  full  power  to  correct, 
imprison  and  exercise  all  the  authority  over  the 
slave  which  the  master  could  lawfully  do;  it  was 
held  to  be  an  importation  and  sale  within  ihis  State, 
within  the  meaning  of  the  Act  of  22d  of  February, 
1788,  concerning  slaves,  and  that  the  slave  was, 
therefore,  free.- 

Citation— Act  of  February  22d,  1788. 

JN  homine  replegiando.  This  cause  came 
before  the  court  on  a  special  verdict.  The 
material  facts  it  contained  are  as  follows: 

The  plaintiff  was  the  slave  of  one  Van 
Voorst,  who  resided  at  Bergen,  in  the  State  of 
New  Jersey.  He  ran  away  from  his  master, 
and  came  to  tb,e  city  of  New  York.  Van 
Voorst  came  to  New  York  on  the  26th  01 
February,  1795,  and  entered  into  an  agree- 
ment with  the  defendant,  under  his  hand  and 
seal,  by  which,  for  the  consideration  of  $225, 
he  let  the  plaintiff,  who  was  twenty-five  years 
of  age,  to  the  defendant  for  twenty  years,  with 
authority  to  correct,  imprison,  and  exercise  all 
such  lawful  authority  over  him,  as  he  (Van 
Voorst)  himself  before  that  time  might  do. 
The  defendant,  who  lived  in  New  Yoijk,  then 
took  the  plaintiff  into  his  custody. 

The  cause  was  argued  by  Messrs.  Harison 
and  Munro  for  the  plaintiff,  and  by  Mr.  Evert- 
son  for  the  defendant. 

Two  questions  were  raised  for  the  consider- 
ation of  the  court: 

1.  Whether  the  plaintiff  was  to  be  consider- 
ed as  a  slave  imported  or  brought  into  this 
State,  within  the  meaning  of  the  4th  section 
of  the  Act  concerning  slaves,  passed  the  22d 
of  February,    1788.      (Greenleaf's  ed.  Laws, 
vol.  2.  p.  85.)    If  so,  then, 

2.  Whether  the  letting  to  hire,  in  the  present 
case,  was  a  sale  of  the  plaintiff,  as  a  slave, 
within  the  meaning  of  the  act. 

*RADCLIFF,  J.  By  the  Act  of  the  22d  [*9O 
of  February,  1788,  in  order  "to  prevent  the 
further  importation  of  slaves  into  this  State," 
it  is  enacted  that  if  any  person  shall  sell  as  a 
slave  within  this  State  any  negro  or  other  per- 
son who  has  been  imported  or  brought  into 
this  State  after  the  1st  June,  1785,  he  shall 
be  deemed  guilty  of  a  public  offence,  and  for- 

1.— This  judgment  was  afterwards  (1802)  affirmed, 
in  the  Court  for  the  Correction  of  Errors. 

JOHNSON'S  CASES,  2. 


1800 


RUTGERS  KT  AL.  v.  LUCET. 


90 


feit    100£.,    and    the    person  so  imported  or 
brought  into  this  State  shall  be  free. 

1.  The  first  question  is,  whether  the  slave 
was  brought  into  this  State  within  the  mean- 
ing of  the  act. 

2.  Whether  the  letting  to  hire,  as  above 
.stated,  was  a  sale  within  the  act.  * 

With  respect  to  the  first  question,  although 
the  preamble  of  the  act  seems  to  apply  to  the 
•case  of  foreign  importation  only,  yet  by  the 
enacting  clause  it  manifestly  extends  to  all 
•cases  of  slaves  in  any  way  brought  into  this 
State.  Here  the  slave  eloped  from  his  master. 
He  certainly  could  not  be  said  to  be  brought 
into  this  State,  if  the  master,  instead  of  re- 
•claiming  him,  had  not  sanctioned  his  coming 
by  the  subsequent  disposition  of  him  to  the 
defendant.  He  thereby  made  the  change  of 
the  residence  of  the  slave  his  own  act,  and 
the  slave,  by  the  consent  of  his  master,  be- 
•came  domiciliated  here.  This  is  the  same,  in 
effect,  as  bringing  him,  in  the  first  instance, 
and  I  think  equally  within  the  mischief  con- 
templated by  the  Legislature.  If  we  should 
adopt  a  different  construction,  it  would  be 
•easy  for  masters  having  the  absolute  control 
of  their  slaves  to  evade  the  prohibition,  by 
suffering,  or  tempting  them  to  escape  into  this 
State,  and  thus,  by  a  new  mode,  introduce  a 
fraudulent  traffic,  contrary  to  the  intent  of 
the  act.  The  act,  it  is  true,  is  highly  penal, 
and  ought,  therefore,  when  it  operates  upon 
the  offender,  to  be  construed  strictly;  but  it  is 
also  in  favor  of  personal  liberty,  and  to  this 
•end,  when  it  operates  upon  the  offense  only, 
ought  to  be  liberally  expounded. 

2.  I  think  the  letting  of  the  slave  to  the  de- 
fendant was  a  sale,  designed  to  be  in  evasion 
of  the  act.  It  has  all  the  characters  of  a  sale, 
instead  of  a  letting  for  hire.  The  considera- 
tion is  equivalent  to  the  ordinary  value  of  a 
9i*]  slave.  *It  is  a  sum  in  gross,  without 
any  annual  or  other  periodical  reservation  or 
payment,  for  services  to  be  performed,  and 
without  any  deduction,  in  case  of  the  death  or 
disability  of  the  slave.  The  term  of  service  is 
twenty  years,  by  a  slave  advanced  to  the  age 
of  twenty-five,  a  period  beyond  the  ordinary  cal- 
culation of  such  a  life,  and  the  power  granted 
over  the  slave  is  absolute  and  irrevocable.  All 
these  circumstances  plainly  indicate  that  the 
intent  was  to  cover  a  sale,  in  evasion  of  the 
act. 

I  am,  therefore,  of  opinion,  on  both  points, 
that  the  plaintiff  is  entitled  to  judgment. 

KENT,  J.  I  am  also  of  opinion  that  the 
•case  of  a  slave  running  away  from  his  master 
into  this  State,  and  followed  by  the  act  of  the 
master  here  in  selling  him  within  the  State,  is 
to  be  considered  as  a  constructive  bringing  in- 
to the  State,  within  the  purview  of  the  act. 
The  subsequent  sale  by  the  master  gives  a 
sanction  to  the  act  of  the  slave,  and  may  be 
deemed  evidence  of  his  assent.  We  may  con- 
sider the  act  as  intending  to  prevent  not  only 
a  traffic  in  slaves,  but  the  increase  of  them 
from  abroad:  and  without  adopting  this  con- 
struction, the  act  may,  with  great  ease,  be 
eluded. 

On  the  second  question,  it  is  a  little  difficult 
to  draw  the  precise  limit  between  a  lawful 
hiring  of  a  slave  so  imported,  and  a  sale. 
JOHNSON'S  CASES,  2.  N.  Y.  REP.,  BOOK  1. 


But  I  think  the  judgment  of  law,  upon  the 
agreement  stated  in  the  verdict,  must  be  that 
it  is  a  sale  within  the  act.  It  is  for  a  sum  in 
gross,  equivalent  nearly  to  the  ordinary  value 
of  a  slave,  and  for  a  term  of  years,  equal  to 
the  value  of  his  life.  An  absolute  authority  is 
also  transferred  over  the  person  of  the  slave, 
and  no  annual  or  periodical  render  is  reserved, 
which  is  the  usual  incident  of  a  letting  to  hire. 
I  am  of  opinion  that  judgment  ought  to  be 
given  for  the  plaintiff. 

LANSING,  Oh.  J.,  was  of  the  same  opinion. 

*BENSON,  /. ,  dissented.  He  agreed  that  [*92 
where  a  slave  runs  away  from  his  master  and 
comes  into  this  State,  and  is  retaken  here  and 
sold,  the  slave  is  to  be  considered  as  imported  or 
brought  in,  and  sold,  within  the  intent  of  the 
statute.  But,  for  the  reasons  given  by  him  in 
the  case  of  Sable  v.  Hitchcock,  he  did  not  think 
that  the  agreement  in  the  present  case  was  to 
be  so  understood,  as  made  or  intended,  in 
fraud  or  evasion  of  the  act,  as  that  it  ought  to 
be  construed  a  sale  in  perpetuity,  or  so  as  to 
produce  the  effect  of  making  the  slave  free  by 
law;  but  that,  on  the  contrary,  it  was  good 
for  twenty  years,  if  Van  Voorst  should  so  long 
live. 

LEWIS,  J.,  also  dissented. 
Judgment  for  the  plaintiff. 

Distinguished— 14  Johns.,  269. 
Cited  in— 44  How.,  193 ;  2  Rob.,  253. 


RUTGERS  ET  AL.  v.  LUCET. 

Bailment  —  Without  Hire  —  Agreement  to  Per- 
form in  future  —  Agent  —  Personal  Undertak- 
ing. 

A  received  «f  B  a  bill  of  exchange  drawn  by  C, 
and  which  he  promised  to  return  to  B  on  demand, 
or  pay  the  amount  thereof.  Though  the  bill  was 
received  by  A  as  a  matter  of  courtesy,  and  was  to 
be  used  for  the  benefit  of  B  ;  yet  as  A  did  not  return 
the  bill  on  demand,  nor  in  due  -season,  he  was  held, 
under  the  circumstances  of  the  case,  liable  to  B  for 
the  amount. 

Citations—  Jones  on  Bailment,  40,  41  ;  Ld.  Raym., 
919  ;  1  Salk.,  26. 


was  an  action  of  assumpsit.  The  dec- 
-L  laration  contained  six  counts,  upon  an 
agreement  made  by  the  defendant  to  return  a 
certain  bill  of  exchange,  delivered  to  him  by 
the  plaintiffs,  and  which  they  alleged  was  not 
returned.  The  cause  was  tried  before  the 
Chief  Justice,  at  the  last  March  circuit,  in 
New  York. 

The  plaintiffs  produced  the  following  receipt 
by  the  defendant  :  "  Received,  New  York, 
25th  March,  1796,  of  Rutgers,  Seaman  and 
Ogden,  a  draft  drawn  by  Samuel  Downing,  in 
their  favor,  and  accepted  by  Royal  Flint, 


NOTE.— Agreement  to  undertake  a  trust  in  the  fu- 
ture without  consideration ;  entering  upon  tne  trust. 

See  Rutgers  v.  Lucet,  swpra ;  Coggs  v.  Bernard,  1 
Smith's  Leading  Cases,  284 ;  Edwards  on  Bailments, 
sec.  10 ;  Story  on  Bailments  (8th  ed.),  sec.  2,  n.  4 ; 
Thorne  v.  Deas,  4  Johns.,  84;  Elsee  v.  Gatward,  5 
Term  Rep.,  143 ;  Balfe  v.  West,  13  C.  B.,  466. 

29 


92 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


180O 


bearing  date  the  14th  August,  1795,  at  60  days 
sight,  for  $601.88,  which  draft  I  promise  to 
return  them  on  demand,  or  the  amount  there- 
of." It  also  appeared  from  the  evidence  that 
the  defendant  so  received  the  bill  for  the  pur- 
pose of  obtaining  a  credit  for  it  to  one  Green- 
93*]  leaf  against  the  *drawer,  Downing,  in 
an  arbitration  then  depending  between  them, 
and,  in  this  manner,  to  recover  the  amount 
for  the  plaintiffs.  The  defendant  did  this 
from  motives  of  civility  and  friendship  to  the 
plaintiffs.  The  arbitration  related  to  business 
in  which  the  defendant  acted  as  the  attorney 
of  Greenleaf ,  by  virtue  of  a  power  for  that 
purpose  from  him.  The  bill  was  immediately 
offered  to  the  arbitrators,  as  an  item  in  the  ac- 
count of  Greenleaf  against  Downing,  and  al- 
lowed by  them.  Their  award  was  made  on 
the  30th  of  March,  1796,  about  five  days  sub- 
sequent to  the  delivery  of  the  bill  to  the  de- 
fendant, and  by  this  award,  after  crediting  the 
amount  of  the  bill  to  Greenleaf,  he  was  still 
ordered  to  pay  to  Downing  the  sum  of  5231.  3s. 
on  the  20th  April,  then  next.  The  award  on 
that  day  was  substantially  performed  by  both 
parties,  and  the  defendant  paid  that  sum  to 
Downing  for  Greenleaf,  and  informed  Down- 
ing that  he  would  also  pay  the  amount  of  the 
bill  to  the  plaintiffs.  It  appeared  by  a  receipt 
of  the  plaintiffs  that  the  defendant  paid  them 
on  the  2d  of  December,  1796,  on  account  of 
the  bill,  the  sum  of  $140.84.  This  sum,  how- 
ever, one  of  the  witnesses,  on  the  part  of  the 
defendant,  stated,  was  money  lent  by  the  de- 
fendant to  the  plaintiffs,  at  their  request, 
which  they  promised  to  return,  in  case  the 
bill  should  not  be  recovered  by  the  defendant. 
It  also  appeared  that  at  the  time  the  defend- 
ant received  the  bill,  there  was  a  suit  depend- 
ing on  it  against  the  acceptor,  Royal  Flint; 
that  interlocutory  judgment  was  obtained 
in  that  suit,  in  April  Term,  1796,  and  a  writ  of 
inquiry  was  noticed  to  be  executed;  that  the 
plaintiffs  then  called  at  the  defendant's  house 
for  the  bill,  in  order  to  produce  ft  on  execut- 
ing the  writ;  that  they  could  not  procure  it  on 
a'ccount  of  the  defendant's  absence  from  home, 
and  the  writ  was  not  executed;  that  in  June 
following,  the  plaintiffs  called  again  for  the 
same  purpose,  and  could  not  get  the  bill  for 
the  same  reason.  They  then  mentioned  the 
subject  to  the  agent  of  the  defendant,  who 
promised  to  write  for  the  bill  and  endeavor 
to  procure  it;  but  it  was  not  procured,  and  the 
94*]  execution  *of  the  writ  of  inquiry  was 
again  prevented.  Sometime  in  June,  1797, 
the  defendant  was  again  called  upon  for  the 
bill,  and,  for  the  first  time,  was  personally  seen, 
when  he  engaged  to  procure  the  bill  by  a 
certain  day  then  agreed  upon,  in  order  that 
the  writ  of  inquiry  might  be  executed  before 
the  ensuing  July  Term;  but  it  was  not  so  pro- 
cured, and  the  writ  of  inquiry  was  again 
delayed.  In  the  same  month  of  July,  and 
after  the  last  application  for  the  bill,  the  bail 
of  Flint,  who  had  previously  removed  to 
South  Carolina,  informed  the  plaintiffs  that  he 
had  failed,  and  could  not  pay  this  debt,  if  a 
recovery  should  be  had  against  him.  After- 
wards, about  the  3d  of  August  following,  the 
bill  was  tendered  by  the  defendant  to  the 
plaintiffs,  who  refused  to  accept  it.  It  had 
previously  been  deposited  with  one  of  the 
460 


arbitrators,  to  be  delivered  to  Downing,  in  case 
the  award  should  be  complied  with  on  his 
part,  and  the  arbitrators,  supposing  it  had  not 
been  complied  with,  sent  the  bill  to  the 
defendant.  It  did  not  appear  that  the  defend- 
ant, at  any  time,  informed  the  plaintiffs  that 
the  bill  had  been  allowed  to  Greenleaf  by  the 
arbitrators,  or  that  the  award  had  been  ful- 
filled by  Downing,  but  merely  that  he  told 
them  that  it  was  still  in  the  hands  of  the  arbi- 
trators. 

On  this  evidence,  the  judge,  at  the  trial,  was 
of  opinion  that  the  plaintiffs  were  entitled  to 
recover,  and  a  verdict  was  found  accordingly. 

There  had  been  a  former  trial  in  this  cause, 
when  a  verdict  was  found  for  the  defendant; 
that  verdict  was  set  aside,  and  a  new  trial 
awarded,  on  the  ground  that  the  evidence  was 
imperfect,  and  the  merits  of  the  case  so- 
obscure  as  to  require  a  further  examination. 

A  motion  was  now  made  to  set  aside  the 
present  verdict,  and  for  a  new  trial,  which  was 
argued  by  Messrs.  B.  Livingston  and  Bogert  for 
the  defendants,  and  by  Messrs.  Hariaon  and  7V 
L.  Ogden  for  the  plaintiffs. 

Per  Curiam.  1.  The  purpose  for  which  the 
defendant  took  the  bill  was  fully  answered, 
when  it  was  allowed  by  the  *arbitrators  [*95 
to  the  credit  of  Greenleaf.  This  appears  to- 
have  been  the  object  which  the  parties  had  in 
view,  and  the  event  on  which,  according  to  the 
tenor  of  the  receipt,  the  defendant  was  to  pay 
the  money.  At  the  time  of  obtaining  this 
credit,  or,  at  least,  on  the  performance  of  the 
award,  the  bill  was  discharged,  and  became 
the  property  of  Downing.  The  defendant 
could  not  then  return  it,  within  the  spirit  of  his 
agreement  with  the  plaintiffs,  for  it  could  not 
have  been  intended  that  he  should  have  the 
liberty  of  returning  it  when  satisfied  and  paid.. 
The  plaintiffs  could  no  longer  maintain  an  action 
upon  it;  their  debt  was  changed  and  converted 
into  a  demand  against  Greenleaf,  or  against  the 
defendant.  Although  they  might  sustain  their 
action  against  Greenleaf,  we  think  they  have 
also  their  remedy  against  the  defendant.  His 
stipulation  expressed,  in  the  receipt  was  to- 
return  the  bill  or  pay  the  amount.  Here  was 
a  special  undertaking,  which,  although 
gratuitous  on  the  part  of  the  defendant,  was 
obligatory,  for  a  mandatory  or  bailee,  without 
compensation,  may  bind  himself  to  be  answer- 
able even  for  casualties.  (Jones  on  Bailment, 
40,  41;  Ld.  Raym.,  919;  1  Salk.,  26;  see 
Tltorne  v.  Deas,  4  Johns.  Rep.,  84.)  A  mere 
agreement  to  undertake  a  trust,  infutvro,  with 
out  compensation,  it  is  true,  is  not  obligatory; 
but  when  once  undertaken,  and  the  trust 
actually  entered  upon,  the  bailee  is  bound  to 
perform  it,  according  to  the  terms  of  his  agree- 
ment. The  confidence  placed  in  him,  and  his 
undertaking  to  execute  the  trust,  raise  a  suf- 
ficient consideration;  a  contrary  doctrine  would 
tend  to  injure  and  deceive  his  employer,  who 
might  be  unwilling  to  consent  to  the  bailment 
on  any  other  terms. 

In  the  present  case,  taking  the  receipt  in  con- 
nection with  the  evidence  that  the  defendent 
was  to  obtain  a  credit  for  the  bill  to  Greenleaf, 
in  the  arbitration  with  Downing,  the  under- 
taking is  to  be  considered  as  personal  on  his 
part,  and  to  result  in  this,  that  if  such  credit 
JOHNSON'S  CASES,  2. 


1800 


RICKETS  ET  ux.  v.  LIVINGSTON,  EXECUTOR,  &c. 


95 


was  allowed,  he  would  be  answerable  for  the 
amount  to  the  plaintiffs.  It  can  admit  of  no 
other  construction,  unless  we  suppose  the 
parties  considered  the  defendant  as  acting  also, 
in  relation  to  this  bailment,  as  the  factor  or 
agent  of  Greenleaf,  and  that  they  thereby 
meant  to  bind  his  principal  only.  This  can- 
96*]  not  well  be  supposed,  *for  it  is  wholly 
foreign  from  the  nature  and  scope  of  such  an 
agency.  The  engagement  was  therefore  per- 
sonal, on  the  part  of  the  defendant,  and  Green- 
leaf  could  never  be  liable  on  the  ground  of  his 
agent's  agreement  respecting  the  bill,  nor  on 
any  other  ground  than  actually  receiving  the 
money  to  his  use.  But, 

2.  Supposing  the  bailment  to  the  defendant 
to  have  been  general,  and  that  he  was  subject 
to  no  special  agreement  to  return  the  bill  or 
pay  the  amount,  although  acting  gratuitously, 
he  was  still  bound,  according  to  the  authorities 
on  this  subject,  and  the  reason  of  the  thing,  to 
use  a  due  diligence  and  attention,  adequate  to 
the  trust  reposed  in  him,  to  perform  his  engage- 
ment with  good  faith,  and  neither  do  nor  omit 
anything  which  the  nature  of  this  trust  re- 
quired. In  the  present  case,  the  award,  by 
which  the  bill  was  allowed  to  Greenleaf,  was 
made  on  the  30th  of  March,  1796,  and  sub- 
stantially performed  by  Downing  on  the  20th 
of  April  following,  and  this  performance 
made  to  the  defendant  himself  as  the  agent  of 
Greenleaf,  who  then  also  fulfilled  the  award  on 
the  part  of  Greenleaf.  The  defendant,  there- 
fore, at  that  time,  knew  that  the  bill  was  satis- 
fied, and  he  informed  Downing  that  he  would 
pay  the  amount  to  the  plaintiffs.  If  he  was 
not  liable  to  pay  it  himself,  Greanleaf  un- 
doubtedly was,  and  he  ought,  at  least,  to  have 
given  notice  to  the  plaintiffs  of  its  allowance 
to  Greanleaf,  and  of  their  right  to  demand  it  of 
him.  But  instead  of  doing  this,  he  continually 
kept  them  ignorant  of  its  real  situation,  told 
them  it  was  still  in  the  hands  of  the  arbitrators 
to  be  recovered,  and  amused  them  by  sending 
for  it  to  enable  them  to  proceed  in  the  suit 
against  Flint.  This  conduct,  considered  as  an 
omission  of  duty  merely,  was  inconsistent  with 
ordinary  diligence  and  fidelity  to  the  interest 
of  the  plaintiffs,  and  to  the  trust  reposed  in  the 
defendant,  and,  in  contemplation  of  law, 
it  was  gross  neglect.  If  we  add  to  this,  his 
actually  receiving  the  whole  of  the  property 
awarded  to  Greanleaf,  his  paying  the  whole  of 
the  money  awarded  to  Downing,  and  inform- 
ing him  that  he  should  pay  this  bill  to  the 
97*]  plaintiffs,  and  his  afterwards  *paying  or 
advancing  $140  of  it  on  account,  the  circum- 
stances are  sufficient  to  raise  a  presumption 
that  he  was  possessed  of  the  means,  either  from 
Greanleaf,  or  from  the  property  received  in 
pursuance  of  the  award,  to  discharge  the  bill, 
and  that  he  ought  in  good  faith  to  have 
done  it. 

The  cause,  during  the  last  trial,  has  probably 
received  all  the  light  which  can  be  thrown 
upon  it,  and  the  present  verdict  appears  to  be 
according  to  the  justice  and  equity  of  the  case. 
To  permit  the  cause  to  be  again  agitated  would 
answer  no  good  purpose.  We  think,  there- 
fore, that  the  verdict  ought  not  to  be  disturbed, 
and  that  judgment  must  be  entered  for  the 
plaintiffs. 

Judgment  for  the  plaintiffs. 
JOHNSON'S  CASES,  2. 


RICKETS  ET  ux. 

0. 
LIVINGSTON,  Executor,  &c. 

Legacy  —  Action  Against  Executor  —  Set-off — 
Cancelled  Bonds  —  Endorsement*  Thereon  — 
Evidence — Extinguishment. 

In  an  action  brought  by  A  against  an  executor 
for  a  legacy,  the  defendant  offered  in  evidence  an  ac- 
count, and  certain  bonds  which  had  been  paid  and 
cancelled  by  the  testator,  on  which  there  was  an 
indorsement  by  the  testator  that  by  agreement  be- 
tween A  and  B  they  were  to  be  charged  to  the  ac- 
count of  A,  and  the  bonds  were  for  that  reason 
cancelled.  The  indorsement  was  prior  to  the  date 
of  will.  It  was  held  that  the  account  and  indorse- 
ment made  on  the  bonds  were  not  sufficient  evi- 
dence to  support  the  debt  set  up  against  A  by  the 
executor,  and  that  if  the  debt  had  been  proved,  it 
would  have  been  released  or  extinguished  by  the 
legacy. 

Citations— 3  Bro.  C.  C.,  110;  Temp.  Talbot,  240; 
Moseley,300;  3  Atk.,  97:  1  Brown's  C.  L.,  304;  1  P. 
Wms.,  299,408;  1  Salk.,  155;  3  Wood..  538;  1  Bro.  C. 
C.,  129;  2Fonb.,  320;  1  Bro.  C.  C..  391 ;  2  H.  Black.. 
213 ;  1  Vesey,  Jun.,  472. 

rip  HIS  was  an  action  of  debt,  upon  the  statute 
J.  (24  sess.,.  ch.  174,  sec.  7)  for  a  legacy  due 
to  the  wife  of  the  plaintiff,  as  residuary  legatee, 
under  the  will  of  P.  V.  B.  Livingston,  deceased. 
Plea,  nildebet. 

The  cause  was  tried  at  the  March  circuit, 
before  Mr.  Justice  Kent.  The  demand  of  the 
legacy  was  proved.  The  defendant,  in  sup- 
port of  his  right  to  retain,  offered  to  prove  that 
the  testator  married  the  mother  of  the  plaintiff, 
who  was  the  widow  of  William  Rickets,  de- 
ceased, and  that  a  large  account  was  entered 
in  the  testator's  books  against  John  Rickets, 
the  plaintiff's  brother,  comprising,  among 
*other  things,  the  amount  of  several  [*98 
bonds,  and  other  articles,  paid  for  the  account 
of  the  family  of  William  Rickets,  and  among 
the  rest,  to  the  plaintiff,  for  which  a  balance 
was  due  to  the  testator,  on  the  2d  July,  1784, 
of  £600  6*.  lid. 

The  four  bonds  mentioned  in  the  account 
were  also  offered  in  evidence.  One  of  them 
was  given  to  the  tester,  and  the  other  three 
were  paid  and  taken  up  by  him.  On  each  of 
the  bonds  was  the  followiug  indorsement,  in 
the  handwriting  of  the  testator:  "  1791,  No- 
vember 17.  Upon  the  settlement  of  Jacob 
Rickets  and  James  Rickets,  the  within  bond 
charged  in  my  account  is  to  be  paid  by  James 
Rickets,  that  is  to  say,  the  whole  balance  of 
my  account  due  to  me.  I  therefore  gave  the 
said  bond  to  be  cancelled,  which  was  done  in 
my  presence,  by  tearing  off  the  seals." 

This  evidence  was  rejected  by  the  judge, 


NOTE.— Legacy  to  debtor. 

A  legacy  to  one  who  at  the  date  of  the  will  is  in- 
debted to  testator,  does  not  extinguish  the  debt  un- 
less that  appears  to  be  the  intention  on  the  face  of 
the  will  (Ricketts  v.  Livingston,  supra),  or  is  other- 
wise proven.  Clark  v.  Bogardus,  2  Edw.  Ch.,  387 ; 
Stagg  v.  Beekman,  2  Edw.  Ch.,  89;  see  Sholl  v. 
Sholl,  5  Barb.,  312 ;  Clark  v.  Bogardus,  12  Wend.,  67 ; 
Sorelle  v.  Sorelle,  5  Ala.,  245 ;  Fitch  v.  Peckham,  16 
Vt.,  150 ;  Zeigler  v.  Eckert,  6  Pa.  St.,  13 ;  Coates  v. 
Coates,  10  Jur.  N.  S.,  532 ;  Courtenay  v.  Williams,  3 
Hare,  539;  Eden  v.  Smyth,  5  Ves.,  341;  Strong  v. 
Williams,  12  Mass.,  391. 

As  to  release  of  debt  by  appointment  of  debtor  as 
executor,  see  Needham's  case,  8  Co. ,135  a  ;  Cheetham 
v.  Ward,  1  B.  &  P.,  630;  Freakley  v.  Fox,  9  B.  &  C., 
130. 

Legacy  to  creditor,  see  Williams  v.  Crary,  8  Cow., 
246 ;  S.  C.,  5  Cow.,  368 ;  4  Wend.,  443. 

451 


98 


SUPREME  COUKT,  STATE  OP  NEW  YORK. 


1800 


and  a  verdict  was  taken  for  the  plaintiff,  sub- 
ject to  the  opinion  of  the  court,  as  to  the  ad- 
missibility  and  effect  of  the  evidence. 

Mr.  Hamilton  for  the  plaintiff. 

Meszrs.  Troup  and  Hanson  f or  the  defendant. 

RADCLIFF,  J.  This  is  an  action  of  debt  for 
a  legacy,  bequeathed  by  the  defendant's  tes- 
tator to  Sarah  Rickets,  one  of  the  plaintiffs. 
The  plea  is  nil  debet,  and  the  defendant  insists 
on  the  right  to  retain  the  legacy,  or  a  part  of 
it,  in  satisfaction  of  the  debt  claimed  to  be  due 
from  the  plaintiff,  James  Rickets,  to  the  tes- 
tator. 

Two  questions  arise: 

1.  If  such  debt  did  exist,  was  it  not  released 
or  extinguished  by  the  subsequent  will  of  the 
testator? 

2.  If  not,  whether  there  is  sufficient  proof  of 
the  debt. 

1.  If  the  debt  did  exist  against  the  present 
plaintiff,  James  Rickets,  the  subsequent  legacy 
to   Sarah    Rickets  did  not  extinguish  it.     A 
legacy  to  one  who,  at  the  date  of  the  will,  is 
indebted  to  the  testator,  does  not-release  or  ex- 
99*]  tinguish  *the  debt,  unless  it  appears  to 
be  so  intended,  on  the  face  of  the  will.     It  re- 
mains subject  to  the  residuary,  or  other  dispo- 
sitions of  the  will,  and  if  not  disposed  of,  will 
be  decreed  to  the  next  of  kin.     In  the  case  of 
Brown  v.  Selwyn  (3  Bro.  C.  C.,   110;    Temp. 
Talbot,  240),  there  was  parol  proof  that  the 
testator  intended  the  debt  should  be  released, 
which  was  rejected.     The  legacy    to   Sarah 
Rickets,  in  the  present  case,  is  expressed  in  the 
same  terms  as  the  legacies  given  to  the  other 
daughters,  being  "  in  addition  "  to  what  he  had 
already  given  them.     There  can,  therefore,  be 
no  inference  from  this  mode  of  expression,  in 
favor    of    this    particular   legacy.     It  would 
rather  seem  that  the  testator  meant  to  place  all 
his  daughters  on  the  same  footing;  and  if  he 
had  a  different  intention  with  respect  to  this 
debt,  it  is  probable  he  would  so  have  expressed 
it.     The  clause  in  the  will  requiring  his  son 
Philip  to  account  for  the  moneys  with  which 
he  stood  charged  in  his  books,  deducting  what 
he  had  paid  for  his  son  William,  can  have  no 
influence  on  this  question.     It  might  require  a 
different  arrangement,  and  it  does  not  appear 
that  he  stands,  under  the  will,  on  the  same 
footing  with  the  daughters.     If,  therefore,  the 
debt    did  exist,   it  cannot  be  considered    as 
affected,  or  extinguished  by  the  will.     But. 

2.  I  think  there  is  not  sufficient  evidence  to 
establish  the  debt.     Originally,  it  was  not   a 
debt  of  either  of  the  plaintiffs.     The  only  evi- 
dence that  it  was  assumed  by  James  Rickets, 
arises  from  the  indorsements  on  the  bonds,  in 
the  handwriting  of  the  testator.     There  is  no 
other  trace  of  the  demand.     It  is  not  entered 
in  his  books,  nor  does  it  appear  to  have  been 
afterwards  claimed  by  him,  or  acknowledged 
by  J.  Rickets.    The  will  is  subsequent  in  date, 
and  takes  no  notice  of  it.     This,  although  not 
a  positive  release  or  bar  to  its  recovery,  is  still 
a  circumstance  to  weigh  in  the  scale  of  pre- 
sumptions.    James  Rickets  was  married  to  a 
daughter  of  the  testator,  and  the  latter  sur- 
vived the  transaction  for  several  years.     If  the 
debt  ever  existed,  or  was  intended  to  remain  a 
charge  against  James  Rickets,  it  is  probable 


that  something  further  on  the  part  of 
*the  testator,  at  least,  would  have  ap-  [*1OO 
peared.  On  the  whole,  the  circumstances  are 
too  loose  and  uncertain  to  be  admitted  as 
proof  of  the  debt. 

Proceeding  on  this  ground,  it  is  unnecessary 
to  decide  whether  in  any,  and  in  what  cases, 
the  acts  of  the  testator  may  be  received  as  evi- 
dence of  a  demand  against  his  legatee.  I 
think  there  may  be  cases  in  which  it  would  be 
proper.  The  objections  on  the  ground  of  in- 
terest do  not  apply  as  in  ordinary  cases.  The 
relation  between  a  testator  and  his  legatee  is 
not  the  same  as  that  which  usually  exists  be- 
tween parties  litigating  adverse  claims,  and, 
therefore,  may  admit  of  a  greater  latitude  of 
proof.  But  the  acts  of  a  testator  thus  to 
affect  a  legatee,  ought  always  to  be  express 
and  unequivocal,  and  not  liable  to  doubtful  or 
uncertain  construction.  They  are  not  so  in  the 
present  case. 

If  the  transfer  of  the  debt,  in  the  manner  al- 
leged, had  been  satisfactorily  proved,  I  think 
there  would  be  a  sufficient  consideration  to 
support  the  assumpsit  on  the  part  of  J.  Rickets. 
By  cancelling  the  bonds  due  from  other  per- 
sons, the  testator  destroyed  his  right  of  action, 
and  was  deprived  of  his  remedy  against  them, 
and  an  injury  or  deprivation  of  right  to  one 
party,  as  well  as  a  benefit  to  the  other,  is 
equally  a  good  consideration  for  a  promise. 
For  the  want  of  this  proof,  I  am  of  opinion 
that  the  set-off  cannot  be  allowed,  and  that  the 
plaintiff  must  have  judgment. 

BENSON,  J.,  and  LEWIS,  J.,  were  of  the 
same  opinion. 

KENT,  J.  The  evidence  having  been  re- 
fused at  the  trial,  the  question  is,  now, 
whether  it  was  competent  proof. 

It  is  an  established  rule  in  the  Court  of 
Equity  that  if  a  testator  grant  a  legacy  to  his 
debtor,  the  debt  is  not  thereby  released,  and 
that  if  a  legatee  sue  for  his  legacy,  the  executor 
may  deduct  from  his  lesracv  the  amount  of  the 
debt.  (Moseley,  300;  Cas."  temp.  Talbot,  240; 
3  Bro.  C.  C.,  110.)  But  the  indorsement  on 
the  bonds  cannot  be  regarded  as  a  debt, 
or  as  evidence  of  any  assumption  by  the 
*plaintiff.  The  plaintiff  had  no  in-  [*1O1 
terest  or  concern  in  the  bonds,  and  no  other 
charge  or  demand  appears  to  have  existed 
against  him.  The  act  of  the  testator  in  mak- 
ing the  indorsements  is  no  foundation  for  a 
suit  against  the  plaintiff,  at  law  or  in  equity. 

Shall  it  therefore  go  to  defeat  or  impair  the 
legacy? 

The  general  disposition  of  the  equity  courts 
is  in  favor  of  the  efficacy  and  absolute  nature 
of  legacies.  A  legacy  naturally  implies  boun- 
ty or  benevolence,  and  it  is,  prima  facie,  to  be 
presumed  absolute.  (Moseley,  300;  3  Atkyns, 
97;  1  Brown's  Civil  Law,  304.)  The  courts, 
accordingly,  lean  against  considering  a  legacy 
as  payment,  even  of  a  debt,  for  as  far  as  a 
legacy  is  applied  to  pay  a  debt,  so  far  it  is  no 
legacy.  It  is  making  it  a  payment  instead  of 
a  gift.  (1  P.  Wms.,  299,  408;  1  Salk.,  155;  3 
Wood.,  538;  1  Bro.  C.C.,  129;  2  Fonb.,  320.) 
It  is  with  the  like  disposition  that  the  rule  has 
been  adopted  that  where  the  same  sum  is  re- 
peated to  a  legatee  in  a  codicil  that  was  in  the 
JOHNSON'S  CASES,  2. 


1800 


BROOKS  v.  PATTEKSON. 


101 


will,  he  shall,  prima  fade,  be  entitled  to  both 
sums.  (1  Bro.  C.  C.,  391;  2  H.  Black.,  213;  1 
Vesey,  Jun.,  472;  1  Brown's  Civil  Law,  304.) 

In  the  present  case,  if  the  indorsements  be 
admitted  as  a  competent  set-off  against  the 
legacy,  it  will  be  rendering  the  legacy  no 
legacy,  to  the  amount  of  the  indorsements.  To 
place  this  objection  in  a  stronger  light:  Sup- 
pose A  gives  $1,000  to  B  by  will,  and  when 
B  comes  to  demand  the  gift,  the  executor,  to 
repel  it,  produces  a  memorandum  in  the  hand- 
writing of  A,  found  among  his  papers,  charg- 
ing B  with  a  debt  of  $1,000.  If  that  memo- 
randum was  to  be  considered  as  competent  to 
extinguish  the  legacy,  B  might  well  say,  the 
legacy  was  vox  et  preterea  nihil.  Without  the 
legacy,  the  memorandum  was  a  nullity.  With 
the  memorandum,  the  legacy  becomes  null. 
B  is  left  in  the  same  state  exactly  as  if  no  will 
had  been  made.  This  is  certainly  repugnant 
to  the  ancient  and  sound  maxims  of  interpre- 
tation. Verba  debent  intelligi  cum  effectu. 
[Ttile.  per  inutile  non  mtialur. 
1O2*]  *The  position  is  altogether  new  that 
a  demand,  valid  in  law,  can  be  repelled  by  a 
counter  demand  which  cannot  support  a  suit, 
either  at  law  or  in  equity. 

The  rational  doctrine  of  set-off  was  intro- 
duced from  the  civil  law,  to  prevent  circuity 
of  action,  and  not  to  give  efficacy  to  claims 
which  had  none  before. 

The  indorsements  on  the  bonds  have  no 
connection  with  the  will,  and  cannot  therefore 
be  reached  by  the  rule,  that  one  declaration  or 
act  is  to  be  construed  or  explained  by  another. 

Nor  do  I  see  that  it  will  tend  to  promote  the 
truth  or  justice  to  admit  the  naked  declarations 
of  a  testator,  in  a  case  totally  detached  from 
his  will,  and  which  would  otherwise  be  of  no 
avail  or  consideration  in  law,  to  defeat  or  con- 
trol the  provisions  of  an  instrument,  which  the 
law  has  generally  taken  care  to  secure,  by  very 
minute  regulations.  I  am  of  opinion,  there- 
fore, that  the  evidence  offered  was  incompe- 
tent. 

LANSING,  Ch.  J. ,  not  having  heard  the  argu- 
ment in  the  cause,  gave  no  opinion. 

Judgment  for  the  plaintiff. 

Cited  in— 12  Wend.,  69 ;  34  N.  Y.,  183 ;  4  Hun,  197. 


BROOKS  0.  PATTERSON. 

Attorney — Privilege  Lost. 

An  attorney  of  this  court  who  has  ceased  to  prac- 
tice for  a  year,  and  had  entered  the  Army  of  the 
United  States,  was  held  to  have  lost  his  privilege. 

Citations— 2  Wils.,  231,  232;  4  Burr.,  2113,  .&c.;  1 
Vent.,  1 ;  2  Lutw.,  1664. 

THIS  was  an  action  of  assumpsit.     The  dec- 
laration was  on  a  promissory  note  made  by 
the  defendant. 

The  defendant  pleaded  that  at  the  time  of 
exhibiting  the  bill,  he  was  one  of  the  attor- 
neys of  this  court,  and  is  still  an  acting 
attorney,  and  that  attorneys  are  not,  by  cus- 
tom, to  answer  any  bill  exhibited  against 
them,  as  in  custody  of  the  sheriff,  but  only  to 
JOHNSON'S  CASES,  2. 


bills  exhibited  against  them,  *as  attor-  [*1O3 
neys,  and  concluded  by  praying  judgment,  if 
he  ought  to  answer. 

The  plaintiff  replied  that  the  defendant  had, 
for  one  year  before  exhibiting  the  bill,  &c., 
ceased  to  practice  as  an  attorney,  and  for  that 
time  had  been,  and  yet  was,  a  captain  in  the 
Army  of  the  United  States.  To  this  replica- 
tion there  was  a  demurrer  and  joinder. 

Mr.  Munro  for  the  plaintiff. 
Mr.  Biker  for  the  defendant. 

Per  Curiam.  If  an  attorney  ceases  to  prac- 
tice for  a  year,  not  in  consequence  of  any 
temporary  absence  or  avocation,  but  by  betak- 
ing himself  to  a  profession  or  business,  in- 
compatible with  his  practice  as  an  attorney, 
the  reason  of  his  privilege  ceases.  Attendance 
is  the  ground  and  foundation  of  the  privilege. 
The  object  is  that  attorneys  may  not  be  drawn 
into  other  courts,  or  to  other  business,  to  the 
injury  of  the  suitors.  (See  2  Wils.,  231,  232; 
4  Burr.,  2113,  &c.;  1  Vent.,  1;  2  Lutw.,  1664.) 
The  privilege  is  that  of  the  court,  for  the  sake 
of  public  justice,  and  is  not  intended  as  an 
accommodation  to  the  individual.  Here  it 
appears  upon  the  record  that  the  defendant 
had  become  an  officer  in  the  army,  and  had 
ceased  to  practice  for  a  year. 

It  would  be  inconvenient,  and  an  abuse  of  the 
end  of  privilege,  to  allow  it  in  this  case,  not- 
withstanding the  name  of  the  defendant  still 
remains  on  the  rolls  of  the  court. 

We  are  of  opinion,  therefore,  that  judgment 
must  be  rendered  for  the  plaintiff. 

Judgment  for  the  plaintiff. 


*PHILIPS  v.  PECK.  [*1O4 

1.  Stipulation  to  Try  Cause — Failure — Nonsuit 
— Costs.      2.  Relief—  Descretionary — Costs. 

Where  the  demandant  in  a  real  action  enters  into 
a  stipulation  to  try  the  cause  or  be  nonsuited,  he 
must  pay  the  costs  of  the  last  circuit  or  sittings,  in 
the  same  manner  as  plain  tiffs -in  other  causes,  for 
not  proceeding  to  trial. 

Citations-10  Co.,  116;  1  H.  BL,  11, 12;  7  Term  R., 
268;  2  H.  Black..  1093;  1  B.  &  P.,  104 ;  1  Salk.,  38 ;  2 
Cromp.,  468 ;  2  H.  Bl.,  119 ;  1  Bos.  &  Pull.,  38. 


was  an  action  on  a  writ  of  right.  The 
J_  tenant  moved  the  usual  rule  against  the 
demandant,  for  judgment  as  in  cases  of  non- 
suit, for  not  proceeding  to  trial  at  the  last 
circuit.  The  demandant  entered  into  the  usual 
stipulation,  and  the  question  was,  whether  he 
should  pay  the  costs  of  the  circuit. 

Mr.  Harison  for  the  demandant. 
Mr.  P.  W.  Radcliff  for  the  tenant. 

Per  Curiam.  It  is  a  long  established  rule  of 
law  that  the  demandant,  in  a  real  action, 
neither  recovers  nor  pays  costs,  because  he 
recovers  no  damages  (10  Co.,  116;  1  H.  Bl., 
11,  12;  7  Term  Rep.,  268),  and,  therefore, 
although  he  is  liable  to  judgment,  as  in  cases 
of  nonsuit,  for  not  proceeding  to  trial,  yet  in 
that  case  he  pays  no  costs,  because  the  act 

453 


104 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


only  gives  costs  in  cases  where  the  plaintiff, 
upon  nonsuit,  would  be  entitled  to  them. 
(2  Black  Rep.,  1093;  1  B.  &  P.,  104.)  But, 
in  many  cases,  the  courts  interpose  and  relieve 
upon  certain  terms,  which  they,  in  their  dis- 
cretion, -may  impose.  One  of  these  usual 
terms,  is  the  payment  of  costs.  Costs,  in  such 
cases,  do  not  depend  upon  any  statute,  but 
upon  the  equity  and  discretion  of  the  court. 

Putting  off  a  trial  for  the  absence  of  a  wit- 
ness is  an  instance  of  costs  being  imposed  as  a 
consideration  of  the  rule  (1  Salk.,  38),  and, 
no  doubt,  a  tenant  in  a  writ  of  right  would  be 
obliged  to  comply  with  the  consideration,  as 
he  is,  equally  with  any  other  defendant,  within 
the  equity  of  the  rule.  The  case  of  amend- 
ments (2  Cromp.,  458)  may  be  mentioned  as 
another  instance  of  costs  being  imposed  as  a 
condition  of  the  favor,  and  to  which  the  party 
applying  must  conform,  whether  he  be  party 
to  a  real  or  personal  action. 

The  present  case  is  of  a  similar  kind.  It  is 
not  long  since  that  the  court  adopted  the  rule 
not  to  nonsuit  for  the  first  default,  in  not  pro- 
ceeding to  trial,  according  to  the  course 
1O5*]  *of  the  court,  provided  the  plaintiff 
would  stipulate  to  try  the  cause  at  the  next 
circuit,  or  be  nonsuited.1 

But  the  payment  of  costs  for  not  proceeding 
to  trial  was  very  soon  added,  as  an  equitable 
condition  of  the  indulgence  until  another  cir- 
cuit; and  the  payment  of  costs,  for  default  at 
the  preceding  circuit,  and  of  the  motion,  is  now 
considered  as  a  matter  of  course. 

We  are  of  opinion,  therefore,  that  the  de- 
mandant can  only  be  admitted  to  his  stipula- 
tion, upon  the  usual  terms,  of  payment  of 
costs;  and  that  he  ought  to  pay  them,  otherwise 
judgment  may  be  entered  against  him,  as  in 
cases  of  nonsuit,  nunc  pro  tune. 

Cited  in— 10  Wend.,  606. 


CAMBPELL,  Assignee,  &c.,  v.  GROVE. 

1 .  Stay  of  Proceedings — Agreement — Payment  of 
Costs  —  Neglect  —  Continuation  of  Suit.  2. 
Motion — Counter  Affidavits — Service.  3.  Id. — 
Supplemental  Affidavits. 

Where  a  party  agreed  to  stay  proceedings  in  a  bail- 
bond  suit,  on  payment  of  costs,  the  original  suit 
having-  been  settled,  and  the  defendant  neglecting1 
to  pay  the  costs,  the  plaintiff  proceeded  in  the  bail- 
bond  suit,  the  court  refused  to  set  aside  the  proceed- 
ings, as  the  plaintiff  had  no  other  way  to  obtain  his 
costs.  Counter  affidavits  may  be  read  to  oppose  a- 
motion,  though  copies  have  not  been  served.  But 
supplementary  affidavits,  in  support  of  a  motion, 
cannot  be  read.; 

MR.  TENBRCECK  moved  to  set  aside  the 
proceedings  on  the  bail-bond  in  this  case, 
on  the  ground  that  the  plaintiff  had  settled 
with  the  defendant  in  the  original  cause,  be- 
fore the  commencement  of  this  suit,  and  had 
directed  the  attorney  to  stay  proceedings,  but 
who  had,  notwithstanding,  proceeded. 

Mr.  Emott  produced  counter  affidavits,  which 
were  objected  to,  because  the  defendant  had 
not  been  made  acquainted  with  their  contents, 
previous  to  their  being  read  in  court,  but  the 

l.-See  2  H.  Bl.,  119;  1  Bos.  &  Pull.,  38. 

454 


objection  was  overruled.  It  appeared  that  the 
original  cause  was  commenced  in  July  vaca- 
tion, 1797;  that  in  November,  an  accommoda- 
tion was  made  between  the  parties-,  and  the 
plaintiff  then  directed  the  proceedings  to  be 
stayed  on  the  payment  of  costs.  The  costs 
remaining  unpaid,  a  suit  was  instituted  on 
the  bail-bond,  in  April  *vacation,  [*1O6 
1799,  and  the  defendant  put  in  a  plea 
of  non  estfactum,  in  October  vacation  follow- 
ing. 

Mr.  Tenbrosck,  in  reply,  offered  counter 
supplementary  affidavits,  but  the  court  would 
not  suffer  them  to  be  read;  observing  that  a 
party  can  never  support  his  motion  by  any 
affidavits  but  those  on  which  he  originally 
grounds  it. 

Per  Curiam.  The  defendant  must  take 
nothing  by  his  motion.  The  attorney  had  no 
other  way  of  compelling  the  payment  of  his 
costs,  than  by  the  suit  on  the  bail-bond.  Be- 
sides, the  defendant  had  suffered  such  a  length 
of  time  to  elapse,  that  we  would  not  now 
relieve  if  there  had  been  originally  just  grounds 
for  such  interference. 

Rule  refused. 


JACKSON,  ex  dem.  VAN  ALEN, 
v. 

VISCHER  ET   AL. 

1.  Ejectment — Pleading — Time — Consent  Rules. 
2.  Defaull^Entry. 

In  ejectment,  the  tenant  must  plead  at  the  time  he 
signs  the  consent  rule.  A  default  for  want  of  a 
plea  must  be  entered  against  the  casual  ejector,  not 
the  tenant. 

MR.    TENBRCECK  moved  to   set  aside  a 
default  entered  against  the  tenant  for 
not  pleading. 

It  appeared  that  the  consent  rules  were 
entered  into  and  a  new  declaration  delivered, 
but  no  plea  having  been  filed,  a  judgmeht  was 
entered  by  default  against  the  tenant. 

Mr.  Emott,  contra. 

Per  Curiam.  Although  at  the  time  of  sign- 
ing the  rule,  the  plea  ought  to  have  been  put 
in,  yet  the  entering  the  default*  in  this  [*1O7 
manner  was  improper.  It  should  have  been 
against  the  casual  ejector,  according  to  the 
terms  of  the  consent  rule.  There  can  be  no 
judgment  by  default  against  the  tenant. 

Rule  granted. 


IN  THE  MATTER  OF  CASCADEN,  an  Abscond- 
ing Debtor. 

Absent  or  Absconding  Debtor —  Trustees— Account- 
ing. 

The  trustees  of  an  absent  or  absconding1  debtor 
may  be  compelled  to  account,  on  the  motion  of  the 
debtor,  as  well  as  of  the  creditors. 

MR.    METCALF,  in  behalf  of  the  debtor, 
moved  that  the  trustees  be  laid  under  a 
rule  to  report  within  eight  days. 

JOHNSON'S  CASES.  2. 


1800 


GORHAM  v.  LANSING  AND  DOE. 


107 


Per  Curiam.  The  debtor,  as  well  as  his 
creditors,  has  an  interest  in  the  account  to  be 
rendered  by  his  trustees,  and  they  are  to 
account  on  the  application  of  the  debtor  or 
•creditors.  The  Chief  Justice  having  reported 
the  proceedings  before  him,  the  court  is  in 
possession  of  the  cause. 

Let  there  be  a  rule  that  the  trustee*  report  with- 
in eight  days  after  service  of  a  copy  of  such  rule. 


GORHAM  v.  LANSING  AND  DOE. 

1.   Time  to  Plead — Application  for.     2.  Default 
— Application  to  Set  Aside  Bail. 

If  a  party  wants  time  to  plead,  he  must  apply  to  a 
judge  for  that  purpose.  In  an  application  to  set 
-aside  a  default  for  not  pleading1,  bail  are  not  entitled 
to  any  peculiar  indulgence. 

MR.  FOOT  moved  to  set  aside  the  default 
entered  in  this  cause,  upon  an  affidavit  of 
merits,  and  that  the  omission  to  plead  was  oc- 
casioned by  urgent  business.  He  stated  that 
it  was  a  case  of  bail,  and  was  therefore  to  be 
considered  as  one  which  was  entitled  to  the 
grace  of  the  court. 

Mr.  Lush,  contra,  read  counter  affidavits  as 
to  the  merits. 

1O8*]  *Per  Curiam.  If  a  party  wants  more 
time  to  plead,  he  must  apply  to  a  judge,  at  his 
•chambers,  to  enlarge  the  rule.  This  is  stated  to 
be  an  application  in  favor  of  bail,  but  it  should 
be  remembered  that  the  cases  of  bail  to  which 
the  court  are  particularly  indulgent,  are  where 
bail  wants  time  to  surrender  the  principal,  but 
here  he  comes  to  defend  the  suit,  and  there- 
fore stands  in  the  same  situation  with  any 
•other  defendant. 

Motion  denied. 


VAN  PATTEN  v.  OUDERKIRK. 

Justice — Certiorari — Motion  to  Quash — Return. 

A  justice  cannot  move  to  quash  a  certiorari  di- 
rected to  him.  He  must  obey  it  at  his  peril;  and 
return  what  is  legally  required  of  him,  and  take  no 
notice  of  what  he  is  not  bound  by  law  to  return. 

i~\N  certiorari,  from  a  justice's  court. 

Mr.  Emott,  in  behalf  of  the  justice,  moved 
to  quash  the  writ,  because  it  required  him, 
.among  other  things,  to  return  the  testimony. 
It  was  admitted  that  no  notice  had  been  given 
to  the  opposite  party,  but  it  was  contended 
that  none  was  necessary. 

Per  Curiam.  This  writ  is  the  right  of  the 
party  who  takes  it  out,  and  the  justice  is 
bound  to  obey  it  at  his  peril.  If  he  is  not  a 
party,  it  does  not  lie  with  him  to  move  that  the 
writ  should  be  quashed.  He  is  not,  however, 
bound  to  return  anything  but  what  can  legally 
be  required  of  him,  notwithstanding  the  com- 
mand expressed  in  the  writ.  In  this  case  he 
JOHNSON'S  CASES,  2. 


ought  to  return  all  but  the  testimony;  he  need 
take  no  notice  of  that  part  of  the  precept  which 
enjoins  him  to  return  that. 

Rule  refused. 

S.  C.,  Col.  &  Calnes,  119. 

Cited  in— ^5  Wend.,  169 ;  5  Hill,  268. 


*PFISTER  AND  M'COMB     [*1O9 

v. 
GILLESPIE. 

Costs — Security  for — Attorney. 

The  attorney  is  not  bound  to  file  security  for 
costs,  where  one  of  the  plaintiffs  resides  in  the 
State,  though  he  may  be  insolvent. 

Citations— 1  H.  Bl.,  106 ;  2  H.  Bl.,  27. 

MR.  PENDLETON,  in  behalf  of  the  de- 
fendant, moved  that  the  plaintiffs  file 
security  for  costs  before  they  be  allowed  to 
proceed  in  the  suit.  He  read  an  atfidavit  stat- 
ing that  one  of  the  plaintiffs  had  removed  to 
New  Jersey  since  the  commencement  of  the 
suit,  and  that  the  other  was  confined  in  jail 
for  debt;  and  further,  that  the  defendant  was 
informed  and  believed  that  the  cause  of  action 
was  assigned. 

Mr.  B.  Livingston,  contra. 

Per  Curiam.  It  is  sufficient  that  one  of  the 
plaintiffs  resides  within  the  reach  of  the  pro- 
cess of  the  court;  we  can  take  no  notice 
whether  he  is  insolvent  or  not.  And  as  to  the 
assignment,  the  defendant  has  nothing  to  do 
with  it.  (1  H.  Bl.,  106;  2  H.  Bl.,  27.) 

Motion  denied. 


ANDREWS  v.  ANDREWS. 

Witness — Subpoena — Refusal    to  Obey — Attach- 
ment. 

Where  a  witness  refuses  to  obey  a  subpoena  which 
has  been  regularly  served  upon  pirn,  the  court  will 
grant  an  attachment  against  him  in  the  first  in- 
stance. 

Citations— 1  Str.,  1150 ;  1  H.  Bl.,  49. 

MR.  TENBRCECK  moved  for  an  attach- 
'ment  absolute  against  a  witness,  on  an 
affidavit  that  he  was  regularly  summoned  and 
money  tendered  him  for  his  expenses,  which 
he  did  not  object  to  for  its  insufficiency,  but 
positively  refused  to  attend. 

*Per  Curiam.  Here  is  a  strong  case  [*1 1O 
of  palpable  contempt,  and,  therefore,  the 
court  will  award  an  attachment  in  the  first  in- 
stance. (1  Str.,  1150;  1  Hen.  Black.,  49.)  The 
sum  of  money  tendered  may  or  may  not  have 
been  adequate,  but  as  the  witness  aid  not  ob- 
ject to  it  at  the  time,  it  is  to  be  considered  suf- 
ficient. 


Rule  granted. 

Cited  in— 1  E.  D.  Smith,  504. 


455 


110 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


JACKSON,  ex  dem.  QUACKENBOSS, 

v. 
WOODWARD. 

Ejectment — Simultaneous  Acts — Plea — Neglect  to 
File— Default. 

In  ejectment,  signing  the  consent  rules,  delivering 
a  new  declaration,  putting  in  common  bail,  and  fil- 
ing a  plea,  are  all  simultaneous  acts.  And  if  the 
tenant  neglects  to  file  the  plea  instanter,  default 
may  be  entered  against  the  casual  ejector. 

IT  appeared  that  the  plaintiff's  attorney,  at 
the  time  of  delivering  a  new  declaration, 
after  the  consent  rules  were  exchanged,  not 
having  received  a  plea,  entered  a  rule  in  the 
cause  against  the  tenant,  to  plead  in  twenty 
days;  which  not  being  done,  he  proceeded  to 
enter  a  default  against  the  casual  ejector. 

Mr.  Emott  now  moved  to  set  aside  this  de- 
fault for  irregularity. 

Mr.  Quackenboss,  contra. 

Per  Curiam.  The  entry  of  the  default  in 
this  manner  was  certainly  irregular.  No  rule 
could  be  entered  against  the  casual  ejector  in 
a  cause  entitled  against  the  tenant.  The  sign- 
ing the  consent  rule,  delivering  a  new  declara- 
tion, putting  in  common  bail,  and  filing  a  plea, 
are  all  simultaneous  acts;  should  the  tenant, 
therefore,  neglect  to  file  his  plea  instanter, 
he  is  to  be  considered  as  not  appearing  in  the 
suit,  and  then  a  default  is  to  be  entered  against 
the  casual  ejector.  But  the  default  against 
the  casual  ejector  has  been  taken  under  the 
first  rule  at  the  return  of  the  writ,  and  not  in 
consequence  of  any  new  rule. 

Rule  granted. 


1 1 1*]    *WHEATON  «.  SLOSSON. 

Assumpsit — Change  of  Venue — Affidavit. 

In  an  action  of  aesumpsit,  the  venue  will  not  be 
changed  on  the  general  affidavit. 

MR.  TENBRCECK    moved   to  change  the 
venue,  on  an  affidavit  that  the  cause  of 
action  arose  out  of  the  county. 

Mr.  Emott,  contra,  objected  that  this  being 
an  action  for  money  had  and  received,  a  gen- 
eral affidavit  was  not  sufficient. 

Per  Curiam.  It  has  already  been  decided 
that  in  assumpsit,  where  the  count  is  general, 
the  court  will  never  change  the  venue  on  a 
general  affidavit.  To  entitle  the  defendant  to 
prevail  in  his  motion,  the  affidavit  must  be 
special,  that  is,  it  must  state  that  the  defend- 
ant has  reason  to  believe  that  special  matter 
is  intended  to  be  given  in  evidence,  enumer- 
ate the  particulars,  and  declare  that  it  arose 
in  the  county  to  which  he  would  remove  the 
cause,  and  not  elsewhere. 

Motion  denied. 
456 


KNAPP  0.  MEAD. 

Trial  by  Record — Motion — Time. 

A  trial  by  record  is  to  be  brought  on  by  motion^ 
pursuant  to  a  notice  of  four  days,  as  in  other  spe- 
cial motions. 

THIS  being  the  day  assigned  for  the  trial  by 
the  record,  on  which  this  suit  was  brought, 
Mr.  Beers  now  moved  to  bring  it  on,  but  it 
was  objected  in  behalf  of  the  defendant  that 
there  ought  to  have  been  a  regular  notice  of 
trial   of   eight  days,  as  in  other  cases,  which 
had  not  been  given. 

*The  court  took  time  to  consider  [*  1 1 2 
how  the  practice  ought  to  be  settled. 

Per  Curiam.  The  trial  by  record  must, 
hereafter,  always  come  on  by  motion,  pursu- 
ant to  a  notice  of  four  days,  instead  of  the  old 
practice  of  assigning  a  time,  which  the  present 
rules  render  useless. 

Cited  in— 59  N.  Y.,  91. 


SWIFT  9.  LIVINGSTON. 

Ejectment — Notice — Default — Quarto  die   post 
— Nonsuit. 

The  tenant  in  a  writ  of  right  may  be  called  on  the 
first  day  of  the  term,  and  his  default  entered  for 
his  non-appearance,  and  if  he  does  not  appear,  on 
the  Cfuarto  die  post,  and  excuse  his  default,  he  will 
be  nonsuited. 

Citations— Carthew,  173;  Co.  Litt.,  139,  b. 

MR.  EMOTT,  for  the  tenant  in  a  writ  of  right, 
moved  on  the  first  day  of  the  term  that 
the  demandant  be  called,    and  that  his  default 
be  entered  for  his  non-appearance. 

And  this  being  the  quarto  die  post,  he  again 
moved  that  the  demandant  be  called  to  appear 
and  excuse  his  default,  or  that  he  be  non-suit- 
ed.    (Vin.  Abr.,  436,  9,  10,  and  439,  19.) 
Mr.  Scott,  contra. 

Per  Curiam.  In  the  case  of  Clobery  v.  The 
Bishop  of  Exon  (Carthew,  173),  it  was  decided 
that  the  tenant  in  a  writ  of  right  is  only  demand- 
able  on  the  quarto  die  post;  but  that  the 
demandant  is  liable  to  be  called  on  the  primo 
die  placiti,  'and  in  case  of  ndn-appearance  his. 
default  may  be  entered,  which,  if  he  does  not 
appear  and  excuse  on  the  quarto  die  post,  he  is 
liable  to  a  nonsuit.  (Co.  Litt.,  139,  b.)  At 
common  law,  on  every  continuance  or  day 
given,  at  or  before  judgment,  the  plaintiff  or 
demandant  might  have  been  nonsuited;  and 
before  the  stat.  of  Henry  IV. ,  after  verdict,  if 
the  court  gave  a  day  to  be  advised,  at  that  day 
*plaintiff  was  demandable,  and,  there-  [*11«> 
fore,  might  have  been  nonsuited  if  he  did  not 
then  appear;  but  that  is  remedied  by  our  stat- 
ute. After  an  award  to  answer,  however,  or 
a  demurrer  in  law  joined,  the  plaintiff  for  not 
appearing  shall  still  be  nonsuit,  for  he  is  not 
helped  by  the  statute. 


Judgment  of  nonsuit. 


JOHNSON'S  CASES,  2. 


1800 


M'KINSTRY  v.  EDWARDS. 


113 


M'KINSTRY  v.  EDWARDS. 

Default— Set  Aside — Affidavit  of  Merits — 
Excuse. 

A  default  for  not  pleading1,  will  be  set  aside  on  an 
affidavit  of  merits,  if  the  defendant  also  shows  a 
satisfactory  excuse  for  not  pleading. 

ON  a  motion  to  set  aside  the  default,  and  that 
the   defendant   have  leave  to  plead,  on 
the    sole    ground    that    he    had    merits,   the 
plaintiff  not  having  lost  a  trial. 

Per  Curiam.  When  a  party  swears  to  mer- 
its, the  court  will  strongly  incline  to  let  him 
in,  but  he  must  be  able  to  suggest  some  excuse 
for  not  having  pleaded,  such,  perhaps,  as 
accident  or  inadvertence.  Here  the  defendant 
does  not  attempt  to  give  any  reason  at  all,  and, 
therefore,  he  must  take  nothing  by  his  mo- 
tion. 

Rule  refused. 


1 14*]  *JACKSON,  ex  dem.  LEWIS,  ET  AL. 
LARROWAY. 

Trial — Postponement  on  Payment  of  Costs — 
Continuation  —  Taxation  —  Service  —  Attach- 
ment Instanter. 

Where  the  trial  of  a  cause  is  put  off,  on  payment 
of  costs,  the  plaintiff  may  demand  the  costs  immedi- 
ately, and  if  not  paid,  may  proceed  in  the  cause,  or 
he  may  have  the  costs  regularly  taxed  on  due 
notice,  and  if  after  service  of  the  taxed  bill,  the 
costs  are  not  paid,  he  may  take  out  an  attachment 
instanter.  Notice  of  taxing  costs  must  be  served 
on  the  attorney,  not  on  counsel. 

Citation— 1  Salk.,  83. 

MR.  VAN  VECHTEN  moved  to  set  aside 
the  attachment  in  this  cause,  which  had 
been  granted  for  the  costs  of  putting  off  the 
trial,  and  that  there  should  be  a  relaxation. 

He  contended  that  attachments  are  ordina 
rily  granted  on  rules  to  show  cause,  and  are 
never  made  absolute  in  the  first  instance,  but 
in  very  flagrant  cases;  and  that  if  the  party 
answers,  he  shall  be  discharged  from  the 
attachment,  and  cited  1  Bac.  Abr.,  183  (B); 
2  Hawk.  Plea.  Cr.,  214.  He  further  insisted 
that  there  must  be  a  demand  made  of  the  costs, 
after  the  bill  has  been  regularly  taxed,  before 
the  party  can  be  considered  as  in  contempt. 
(Barnes,  120;  1  Lilly's  Abr.,  162.)  Besides, 
he  insisted  that  according  to  1  Salk.,  83,  no 
attachment  will  lie  at  all  for  the  costs  of  putting 
off  a  trial. 

Mr.  L.  Elmendorf,  contra,  contended  that 
in  England  the  attachment  is  always  absolute 
in  the  first  instance.  He  cited  Tidd's  Pr.,  364; 
Runnington  on  Ejectment,  142;  1  Sellon,  415. 

Per  Curiam.  Whenever  a  cause  goes  off, 
on  motion  of  the  defendant,  upon  payment  of 
costs,  the  plaintiff  has  his  election,  either  to 
wait  the  event  of  the  suit,  and  have  all  his 
costs  taxed  together,  or  he  may  make  them  out 
instanter,  under  the  direction  of  the  court 
(subject,  however,  to  be  reviewed  on  a  future 
taxation,  if  required),  and  demand  them  im- 
mediately, and  if  not  paid,  he  may  proceed 
with  the  trial;  or  he  may  waive  this  priv- 
ilege, and  resort  to  an  attachment,  but  if  he 
does  so,  he  must  first  have  his  costs  regularly 
taxed,  on  a  proper  notice,  as  in  other  cases, 
JOHNSON'S  CASES,  2. 


and  that  notice  must  be  served  on  the  attor- 
ney in  the  suit,  and  not  on  the  counsel,  as  has 
irregularly  been  done,  in  *this  instance.  [*  1 1 5 
Had  he  been  regular  in  this,  he  would  have 
been  entitled  to  his  attachment  instantly, 
without  a  previous  notice. 

The  notice  in  this  case  having  been  served 
on  counsel,  and  the  taxation  having  been 
made  on  the  same  day  notice  was  given,  the 
taxation  and  all  proceedings  founded  on  it 
were  irregular. 

The  case  mentioned  from  Salkeld  is  anony- 
mous, and  standing  alone,  we  think  it  not 
entitled  to  weight. 

The  attachment  must  be  set  aside  with  costs. 

Rule  granted. 

Cited  in— 19  Johns.,  270 ;  63  Barb.,  104. 


JACKSON,  ex  dem.  Low,  «.  HORNBECK. 

Making  Case — Enlargement  of  Time. 

The  two  days  allowed  by  the  rule  of  January  Term, 
1799,  for  making1  up  a  case  cannot  be  enlarged  by  the 
order  of  a  judge. 

Citation— 6th  Rule,  January  Term  1799. 

MR.  BOWMAN  moved  to  vacate  a  certificate 
of  a  judge,  giving  further  time  to  make  up 
a  case. 
Mr.  L.  Elmendorf,  contra. 

Per  Curiam.  The  two  days  allowed  by  the 
6th  rule  of  January  Term,  1799,  for  making  a 
case,  cannot  be  enlarged  by  a  judge,  in  favor 
of  a  party  making  the  case;  but  the  time,  which 
may  be  enlarged,  under  that  rule,  is  that 
allowed  for  proposing  amendments,  and  for 
giving  notice  of  an  appearance  before  the  judge, 
and  no  other. 

Rule  granted. 
Overruled— 9  Johns.,  264. 


*SCOTT  v.  GIBBS. 


1.  Change  of  Venue — Affidavit — Plaintiff's  Con- 
fession.    2.   Counter  Affidavit. 

An  aflBdavit  to  change  the  venue  made  by  the  de- 
fendant's attorney,  stating  that  the  plaintiff  con- 
fessed that  the  cause  of  action  arose  in  another 
county,  is  sufficient.  A  counter  affidavit  of  the 
plaintiff,  that  he  believed  he  could  not  have  a  fair 
trial,  &c.,  is  not  enough ;  it  ought  to  state  the  facts 
on  which  the  belief  is  founded. 

Citation-3  Burr.,  1380,  1335 ;  1  Sellon's  Pr.,  169. 

R.    WOODWORTH,   for  the  defendant, 
moved  to  change  the  venue  in  this  cause, 


I 


NOTE.— Change  of  venue  on  ground  that  cause  of 
action  arose  in  another  comity. 

See  Bentley  v.  Weaver,  1  Johns.  Cas.,  240,  and  note 
in  this  edition. 

Change  of  venue  on  the  ground  that  fair  trial  could 
not  be  had.  See  Van  Rensselaer  v.  Douglas,  2  Wend., 
290;  Zobieskie  v.  Bauder,  1  Caines,  487;  People  v. 
Webb,  1  Hill,  179;  Messenger  v.  Holmes,  12  Wend., 
203 ;  Corporation  of  New  York  v.  Dawson,  »<*f  335 ; 
People  v.  Long  Island  R.  R.  Co.,  16  How.  Pr.,  106; 
Budge  v.  Northam,  20  How.  Pr.,  248. 

Affidavit,  what  it  nntxt  contain.  People  v.  Bodine, 
7  Hill,  147 ;  People  v.  Vermilyea,  7  Cow.,  137. 

Consult  also  General  Rules  of  Practice  (N.  Y.,  1880), 
47  and  48,  pp.  156-160,  and  cases  there  cited. 

457 


116 


SUPREME:  COURT,  STATE  OF  NEW  YORK. 


1800 


which  was  an  action  of  slander,  from  the 
County  of  Albany  to  Washington;  he  read  an 
affidavit  of  the  defendant's  attorney,  stating 
that  the  cause  of  action  arose  in  Washington, 
and  not  elsewhere,  &c.,  as  the  plaintiff  had  in- 
formed him,  and  he  verily  believed  to  be  true. 
On  the  part  of  the  plaintiff,  this  was  opposed 
by  a  counter  affidavit,  stating  that  "according 
to  his  persuasion  and  belief,  he  could  not  have 
an  impartial  trial  in  the  County  of  Washing- 
ton, by  reason  of  certain  local  prejudices. 

Per  Curiam.  The  first  question  is,  whether 
the  affidavit  on  the  part  of  the  defendant  ought 
not  to  have  been  made  by  the  defendant  him- 
self, according  to  the  established  practice?  As 
the  attorney  swears,  however,  that  the  plaint- 
iff confessed  to  him  that  the  cause  of  action 
arose  in  Washington,  and  not  elsewhere,  &c., 
this  may  be  deemed  sufficient,  especially  as  the 
fact  is  not  denied  by  the  plaintiff.  As  to  the 
counter  affidavit,  it  cannot  avail  to  retain  the 
venue,  inasmuch  as  the  defendant  only  swears 
to  "his  persuasion  and  belief  that  he  cannot 
have  a  fair  trial,  by  reason  of  certain  local 
prejudices,"  «fec.  He  ought  to  have  stated  the 
reasons  and  ground  of  his  belief,  and  have  laid 
before  the  court  the  facts  and  circumstances 
on  which  it  depends,  that  they  might  judge  of 
its  probable  truth  and  force.  He  merely  states 
his  own  conclusions,  without  stating  also  the 
premises  on  which  his  belief  is  grounded.  (3 
Burr.,  1380,  1335;  1  Sellon's  Prac.,  169.) 

Rule  granted. 


117*]    *SHARP  v.  DUSENBURY. 

Writ  of  Inquiry — Evidence — Agreement  to 
Admit,  Effect  of. 

If  parties  agree  that  the  sheriff  may  admit  any 
evidence,  on  a  writ  of  inquiry  before  him,  which 
could  have  been  given  on  a  trial,  the  court  will  not 
set  aside  the  inquisition,  because  improper  evidence 
had  been  received  or  proper  evidence  rejected  by 
the  sheriff. 

~|\TR.  P.  W.  YATES  moved  to  set  aside  an 
ITJL  interlocutory  judgment,  because  the  sheriff 
before  whom  the  inquisition  was  taken  had 
admitted  improper  and  rejected  proper  evi- 
dence. 

Mr.  Emott,  contra,  read  an  affidavit  that  it 
had  been  agreed  between  the  parties  that  any 
evidence  might  be  given  before  the  sheriff 
which  could  be  given  on  a  trial,  or  could  have 
been  pleaded. 

Per  Curiam.  The  parties,  by  their  agree- 
ment, made  the  sheriff  as  a  judge  at  a  circuit; 
and  when  parties  agree  to  submit  a  controversy 
to  the  decision  of  the  sheriff,  the  inquest  is  to 
be  considered  as  in  the  nature  of  an  arbitra- 
tion, and  in  such  case  the  court  will  never  set 
aside  the  inquisition  merely  because  the  sheriff 
admits  improper,  or  rejects  proper,  evidence. 

Motion  denied. 


PADDOCK  v.  BEEBEE. 

Service  of  Affidavit  on  Clerk. 

An  affidavit  of  service  on  a  clerk  of  the  attor- 
ney, must  state  that  the  clerk  was,  at  the  time,  in 
the  office  of  the  attorney. 

45H 


A  QUESTION  arose  as  to  the  regularity  of  a 
11.  service  of  a  notice,  which  appeared  from 
the  affidavit  to  have  been  made  on  the  clerk  of 
the  attorney;  the  court  decided  that  as  it  did 
not  also  appear  that  the  notice  was  served  on 
the  clerk,  while  he  was  in  the  office,  it  was 
therefore  insufficient. 


*THE  PEOPLE,  ex  rel.        [*118 
ALLAIRE, 

THE  JUDGES  OF'  WESTCHESTER. 

1.  Mandamus — Refusal  to  Seal  Bill  of  Excep- 
tions.    2. — Id. — Cause  for  Refusal. 

If  a  court  of  common  pleas,  without  sufficient 
ground,  refuse  to  seal  a  bill  of  exceptions,  it  is  a 
contempt,  and  this  court  will  award^a  mandamus,  to 
compel  them  to  sign  it. 

Citation— 2  Inst.,  4ZT. 

ON  an  affidavit  that  a  bill  of  exceptions  had 
been  regularly  tendered  to  the  judges  of 
the  Court  of  Common  Pleas  of  the  County  of 
Westchester,  who  had  refused  to  seal  the  same. 

Mr.  Troup  now  moved  for  a  mandamus  to 
compel  them  to  affix  their  seal  to  the  bill  of 
exceptions,  or  show  cause. 

Mr.  Munro  read  a  counter  affidavit,  stating 
that  the  bill  of  exceptions,  varied  materially 
from  the  truth  of  the  case. 

Per  Curiam.  If  a  Court  of  Common  Pleas 
refuses,  without  sufficient  grounds,  to  annex 
their  seal  to  a  bill  of  exceptions,  it  is  a  con- 
tempt for  which  this  court  will  award  com- 
pulsory process.  (2  Inst.,  427.)  But  it  appears 
here,  from  the  affidavit  on  the  part  of  the  de- 
fendants, that  the  bill  of  exceptions  which  was 
tendered  was  untrue,  and  as  the  party  making 
the  application  has  not  denied  the  correctness 
of  the  statement,  he  must  be  considered  as 
having  consented  to  it.  This,  undoubtedly, 
was  sufficient  cause  for  refusal. 

Motion  denied,  with  costs  to  the  judges  for  op- 
posing it. 

Cited  in-1  Hun,  262  S.  C.,  4  T.  &  C.,  9 ;  47  How.  Pr., 
162. 


*PEPOON  v.  JENKINS.       [*  1 1 9 

Judgment — Circuit  Court  of  V.  S. — Action  on — 
Record — Evidence. 

In  an  action  brought  on  a  judgment  of  the  Circuit 
Court  of  the  United  States  for  the  District  of  Massa- 
chusetts, the  production  of  the  record,  under  the 
seal  of  the  court  was  held  sufficient. 

THIS  was  an  action  of  debt,  brought  upon  a 
judgment  rendered  in  the  Circuit  Court  of 
the  United  States  for  the  District  of  Massa- 
chusetts. On  the  plea  of  nul  tiel  record,  the 
plaintiff  offered  in  evidence  a  record  under  the 
seal  of  the  court,  but  certified  by  the  clerk,  as 
a  copy. 

Mr.  E.  Williams,  for  the  defendant,  objected, 
that  there  ought  either  to  be  an  exemplification 
of  the  record,  or  that  the  action,  being  brought 
in  a  court  of  this  State,  upon  a  record  of  a 
judgment  rendered  in  a  circuit  court  of  Massa- 
JOHNSON'S  CASES,  2. 


1800 


JTJHEL  v.  RHINELANDER. 


119 


chusetts,  the  record  ought,  agreeably  to  the 
act  of  Congress,  to  have  the  attestation  of  the 
clerk  and  the  seal  of  the  court  annexed,  if 
there  be  a  seal,  together  with  a  certificate  of 
the  judge,  Chief  Justice,  or  presiding  magis- 
trate, that  the  attestation  is  in  due  form. 

Per  Curiam.  This  being  a  record  of  a  court 
of  the  United  States,  and  not  of  a  State  court, 
and  so  not  within  the  act  of  Congress  prescrib- 
ing the  mode  in  which  the  records  and  judicial 
proceedings  of  the  courts  of  any  State  shall  be 
authenticated,  it  remains  with  the  court  to  de- 
cide upon  the  sufficiency  of  the  evidence.  The 
mode  of  certifying  the  record  in  the  present 
case,  being  the  ordinary  mode  used  in  Massa- 
chusetts, instead  of  the  technical  exemplifica- 
tion, we  are  of  opinion,  as  it  is  also  under  the 
.seal  of  the  court,  that  it  is  sufficient. 


12O*]  *JUHEL0.  RHINELANDER. 

Marine  Insurance — "Contraband  of   War" — 
Lawful  Goods — Disclosures. 

Articles  contraband  of  war  are  lawful  goods, 
within  the  meaning  of  those  words  in  a  policy  of 
insurance.  Goods  not  prohibited  by  the  laws  of  the 
country  to  which  the  vessel  belongs,  are  lawful 
Broods,  and  the  insured  are  not  bound  to  disclose  to 
the  insurers  that  the  goods  are  contraband  of  war. 

Affirmed  in  the  Court  of  Errors  (1802). 

Citation— 1  Johns.  Gas.,  1. 

THIS  was  an  action  on  a  policy  of  insur- 
ance, dated  the  24th  November,  1796,  on 
the  brig  Jenny,  at  and  from  New  York  to 
Cayenne,  and  at  and  from  thence  back  to  New 
York,  with  liberty  to  touch  at  Jacquemel. 
The  policy  was  in  the  usual  form  without  any 
warranty.  The  cause  was  tried  at  the  circuit 
in  New  York,  in  November,  1799,  when  the 
jury  found  a  special  verdict. 

The  vessel  sailed  on  the  voyage  insured,  and 
on  the  24th  January,  1797,  on  the  homeward 
voyage,  was  captured  by  a  British  cruiser  and 
carried  into  St.  Christophers,  where  she  was 
libeled  with  her  cargo.  On  the  15th  April, 
1798,  the  vessel  and  all  her  cargo,  except  two 
casks  of  nails,  were  acquitted,  and  on  the  29th 
April,  restored  to  the  captain.  The  two  casks 
of  nails,  under  the  name  of  scupper  nails, 
were  condemned  as  good  and  lawful  prize,  as 
being  articles  contraband  of  war,  or  otherwise 
subject  and  liable  to  confiscation.  No  dis- 
closure was  made  to  the  defendants  that  any 
contraband  articles  were  on  board.  On  the 
4th  May,  a  survey  of  the  vessel  was  made,  at 
the  request  of  the  captain,  under  the  authority 
of  the  court,  and  the  brig,  on  the  report  of  the 
surveyors,  was  condemned  as  unfit  for  sea, 
and  was  sold. 

The  vessel  and  cargo  were  abandoned  to  the 
insurers,  on  the  5th  May,  1798. 

Mr.  Ilarison  for  the  plaintiff. 
Mr.  Hamilton,  for  the  defendant,  declined 
arguing  the  cause.     He  said  that  he  considered 


NOTE.— Marine  insurance,  lawful  goods. 

See  Seton  v.  Low,  1  Johns.  Gas.,  1;  Gardiner  v. 
Smith,  1  Johns.  Gas.,  141;  Skidmore  v.  Desdoity, 
ante  77,  and  notes  in  this  edition. 

JOHNSON'S  CASES,  2. 


the  case  of  Seton,  Maittand'  &  Co.  v.  Low  (1 
Johns.  Cas.,  1),  as  decisive,  unless  the  court 
should  think  proper  to  alter  their  opinion; 
that  the  object  of  the  special  verdict  in  this 
cause  was  merely  to  have  the  judgment 
of  the  court,  in  order  to  bring  the  [*121 
question  before  the  Court  for  the  Correction  of 
Errors. 

The  court  (Benson,  J. ,  dissenting)  said  that 
they  considered  the  decision  in  the  case  of 
Seton,  Maitland  &  Co.  v.  Low,  as  conclusive, 
and  that  the  plaintiff  was  entitled  to  judgment 
accordingly. 

Judgment  for  the  plaintiff. ' 

Affirmed— Post,  487. 
Cited  in-12  Wend.,  466. 


WARDELL  v.  EDEN. 

1.  Judgment — Satisfaction  by  Assignor  Vacated. 
2.  Assignee's  Rights.  3.  Service — Notice — 
After  Appearance. 

Where  the  plaintiff  after  he  had  assigned  a  judg- 
ment to  a  third  person,  entered  up  satisfaction  on 
the  record,  the  court  on  motion  ordered  the  entry 
of  satisfaction  to  be  vacated.  Courts  of  law  will 
take  notice  of  and  protect  the  rights  of  assignees. 

Where  an  attorney  is  employed,  notice  must  be 
served  on  him,  not  on  the  party. 

Citations— 1  Term  R.,  619 ;  4  Term  R.,  340;  Viner's 
Abr.,  Judgment  K.,  a.  636,  sec.  4,  5,  6 ;  1  Wils.,  33 ; 
Sayer,  253 ;  Barnes,  130 ;  1  Sell.,  Pr.,  14 ;  Sayer,  217 ; 
2  H.  BL,  608  ;  1  Bac.  Abr.,  Attorney,  299 ;  1  Sell.,  546 ; 
1  Crompt.,  378 ;  Impey,  408 ;  T.  Raym.,  69 ;  2  Sell., 
338 ;  3  Salk.,  245 ;  8  Mod.,  58 ;  2  Bl.  Rep.,  621 ;  4  Term 
R.,  341,  640;  Doug.,  338;  6  Term,  361;  1  Sell.,  377; 
Cow.,  727. 

MR.  HAMILTON  moved  to  vacate  the  en- 
try of  satisfaction  on  the  record  in  this 
cause. 

It  appeared  that  a  bond  had  been  executed 
on  the  15th  June,  1800,  by  Eden  to  Wardell, 
conditioned  for  the  payment  of  $50,000,  and  a 
judgment  was  entered  upon  the  bond  on  the 
8th  July  last,  by  virtue  of  a  warrant  of  attor- 
ney for  that  purpose,  with  a  stay  of  execution 
for  six  months.  On  the  17th  of  July  last,  the 
judgment  was  assigned,  for  a  valuable  consid- 
eration, to  Nathaniel  Olcott,  and  by  him,  on 
the  1st  of  August,  to  Solomon  Rowe,  and  by 
him,  on  the  7th  of  October,  to  the  Bank  of 
New  York.  On  the  7th  day  of  October,  Olcott 
became  a  bankrupt,  and  on  the  next  day  Rowe 
died  insolvent.  The  bank,  on  the  9th  October, 
gave  notice  to  Eden  of  the  assignment  to  them, 
and  forbade  his  paying  any  part  of  the  bond 
to  Wardell,  and  also  gave  a  notice  to  Wardell, 
forbidding  him  to  receive  anything  from 
Eden.  On  the  6th  day  of  October,  Eden  paid 
Wardell  a  small  sum  of  money,  and  on  the 
10th  October,  Wardell  entered  upon  the  record 
a  satisfaction  of  the  judgment.  The  bond 
was  originally  given  both  for  money  due 
*and  to  secure  such  further  sums  as  [*122 
Wardell  should  continue  to  advance. 

The  present  motion  was  made  in  behalf  of 
the  Bank  of  New  York. 

1.— A  writ  of  error  was  afterwards  brought,  and 
the  judgment  was  affirmed  in  the  Court  of  Errors, 
in  1802. 


NOTE.— Right*  of  a&tiwif-es. 

See  Andrews  v.  Beecker,  1  Johns.,  411. 


122 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1800 


The  notice  of  the  motion  had  been  served  on 
the  attorney  of  the  defendant,  by  leaving  it  at 
his  office,  and  on  the  defendant  himself,  by 
delivering  it  to  his  brother.  The  attorney  \vas 
only  named  in  the  warrant  of  attorney,  to 
confess  judgment  on  the  bond. 

Mr.  B.  Livingston  raised  a  preliminary  ques- 
tion, whether  the  service  of  the  notice  of  the 
present  motion  had  been  regularly  made,  as  it 
had  only  been  given  to  Eden's  brother,  who 
happened  to  be  at  Eden's  house,  and  it  did  not 
appear  that  it  had  ever  come  to  his  personal 
knowledge;  or,  2d,  as  it  had  been  giveii  to 
Eden's  attorney,  by  leaving  it  with  his  (the 
attorney's)  brother,  who  happened  to  be  alone 
in  the  office. 

THE  COURT.  Both  services  cannot  be  good: 
wherever  there  is  an  attorney  retained,  the 
service  must  be  on  him  ;  therefore  the  service 
on  Eden  himself  was  irregular,  but  the  service 
on  the  attorney's  brother,  being  in  his  office, 
was  good. 

LANSING,  Ch.  J.,  and  LEWIS,  J.,  were  of 
opinion  that  the  attorney  in  this  case,  being 
constituted  only  an  attorney  to  confess  judg- 
ment, his  authority  expired  with  the  act, 
and  therefore  he  could  no  longer  be  consid- 
ered as  attorney  in  the  suit,  but  they  both 
agreed  that  the  service  on  Eden  was  well 
made. 

Some  further  affidavits  were  read  on  both 
sides. 

Messrs.  Hamilton  and  Harison  then  con- 
tended that  in  this  transaction  a  fraud  had 
1 23*]  been  practised  between  Eden  and  *War- 
dell  on  the  bank,  by  entering  up  the  satisfac- 
tion after  notice,  which  must  have  been  done 
to  defeat  the  lien  which  the  judgment  had 
given  upon  Eden's  real  estate.  They  insisted, 
1st.  That  the  entry  of  satisfaction  was  irregu- 
lar, because  it  was  done  by  the  party  himself, 
and  not  by  his  attorney.  Though,  by  statute, 
a  party  might  possibly  "appear,  prosecute, 
defend,  &c.,  in  person,"  yet  that  after  he  had 
once  made  an  election  to  appear  by  attorney, 
he  could  not  appear  in  the  silit  in  proper  per- 
son. Notwithstanding  the  suits  are  in  the 
names  of  the  obligees,  yet  courts  of  law  will 
always  take  notice  of  the  rights  of  assignees, 
and  protect  them  from  injury,  so  that  substan- 
tial justice  may  be  done  between  the  parties. 
(1  Term  Rep.,  619;  4  Term  Rep.,  340).  The 
court  may  interpose  in  this  summary  way, 
and  lay  their  hands  at  once  on  the  judgment, 
without  turning  their  applicants  round  to  a 
court  of  chancery.  (Viner's  Abr.,  Judgment, 
K.  a,  636,  sees.  4,  5,  6.)  Or  if  there  should 
arise  any  doubts  about  the  facts  alleged,  the 
court  may  direct  an  issue.  (1  Wils.,  33;  Sayer, 
253;  Barnes,  130.) 

The  Attorney- General  and  Mr.  B.  Living- 
ston, contra.  This  is  a  novel  way  of  bringing 
up  such  a  question,  when  really  neither  of  the 
parties  to  the  suit  are  in  court. 

1.  It  was  perfectly  regular  for  the  party  to 
enter  up  the  satisfaction  himself,  and  it  is 
neither  the  province  nor  the  duty  of  the  attor- 
ney to  do  it.  The  very  form  of  his  warrant 
shows  this;  for  being  merely  to  prosecute  and 
defend,  the  entering  up  satisfaction  of  the 
460 


judgment  could  not  be  considered  as  being 
comprised  within  his  powers.  (1  Sell.  Prac., 
14;  Sayer,  217;  2  H.  Bl.,  608;  1  Bac.  Abr., 
Attorney,  299.) 

By  the  practice  of  courts,  warrants  of  attor- 
ney are  in  force  for  one  year  and  a  day,  for  the 
sole  purpose  of  enabling  the  attorney  to  sue 
out  execution. 

The  general  warrant  of  attorney  only  ex- 
tends to  judgment  and  execution,  and  there 
ought  to  be  a  special-warrant  made  out  for  the 
purpose  of  authorizing  an  attorney  to  enter 
satisfaction,  which  may  be  made  to  the  attorney 
who  has  conducted  the  suit,  or  to  any  other. 
(1  Sell.,  546;  1  Crompt.,  378;  Impey,  408;  T. 
Raym.,  69.) 

*The  doctrine  contended  for  on  the  [*124r 
other  side,  that  all  acts  relating  to  a  suit,  after 
it  is  instituted,  must  be  done  by  the  attorney, 
cannot  be  true,  as  it  is  settled  law  that  a 
retraxit  must  be  always  entered  by  the  party 
himself,  and  can  never  be  done  by  attorney. 
(2  Sell.,  338;  3  Salk.,  245;  8 Mod.,  58.) 

2.  Though  courts  of  law  will  take  notice  of 
the  rights  of  assignees,  yet  this  can  only  be 
done  sub  modo;  for  choses  in  action  are  only 
assignable  by  way  of  covenant.     They  might, 
perhaps,  form  a  consideration  for  an  assumpsit, 
but  then  the  orignal  instrument  is  gone,  the 
demand    becomes    a   personal  one,   and  the 
action  must  be  brought  upon  the  promise; 
otherwise  the  plaintiff  must  always  resort  to  a 
court  of  equity.     (2  Bl.    Rep.,  621;  4  Term 
Rep.,  341,  640.)    At  any  rate,  this  is  not  the 
proper   method  for  the  plaintiff  to  obtain  a 
remedy,  by  vacating  the  judgment,  on  motion. 
The  law,  in    such  case,  will  oblige  a  party, 
paying  money  after  notice,  to  pay  it   over 
again,  and  the  demand,  therefore,  from  the 
time  of  the  notice,  is  a  personal  one.     (Doug. , 
338;  6  Term  Rep.,  361.) 

3.  Courts  of  law  never  vacate  a  judgment 
for  fraud,  but  only  for  irregularity,  or  in  cases 
of  legal  disability,  such  as  of  an  infant,  feme 
covert,  or  any  person  under  duress,  where  the 
instrument  is  avoidable.    (1  Sellon,  377.)    At 
common  law,  the  remedy  is  by  an  action  of 
deceit,  and  if  it  happens  subsequent  to  judg- 
ment, by  an  audita  querela.     In  cases  of  fraud, 
or  other  controverted  facts,  an  issue  is  always 
to  be  directed.    (Cowp.,  727.) 

If  an  entry  should  be  made,  vacating  the 
judgment,  on  the  ground  of  fraud,  and  after- 
wards a  jury,  whose  exclusive  province  it  is 
to  judge  of  matters  of  fact,  should  find  the 
fact  differently,  then  the  record  would  be  at 
variance  with  itself.  But  it  would  be 
improper  in  this  court  to  direct  an  issue.  The 
Court  of  Chancery  is  the  proper  forum,  and 
there  the  bank  may  seek  their  remedy.  The 
plaintiffs  may,  perhaps,  proceed  by  scire  facias, 
on  the  judgment,  in  the  name  of  Wardett  v. 
Eden,  and  the  pleadings  would  afford  an  issue 
of  fraud  or  no  fraud,  to  be  tried  by  a 
*jury.  As  to  the  notice  of  the  assignment[*  125 
so  much  relied  on,  the  farthest  the  court  could 
go  in  regard  to  notice  to  assignees,  would  be 
to  put  them  on  the  same  footing  with  indorser 
of  bills  of  exchange,  in  regard  to  which  it  is 
not  only  necessary  to  give  notice,  but  to  add 
that  the  indorser  is  looked  to  for  payment. 

Messrs.    Hamilton    and    Harison,   in  reply, 

said    that    this    was   the    only  way  that  the 

JOHNSON'S  CASES,  2. 


1800 


WARDELL  v.  EDEN. 


125 


plaintiffs  had  to  secure  the  property  from 
being  placed  entirely  beyond  their  reach ;  and 
that  although  a  scire  facias  should  be  brought, 
as  suggested  on  the  other  side,  yet  that  they 
could  have  no  security  for  the  satisfaction  of 
their  judgment,  in  the  event  of  their  recover- 
ing one.  That  as  to  the  instance  of  a  relraxit 
which  had  been  cited,  it  did  not  apply,  for  the 
attorney  is  to  prosecute  the  suit  for  the  end  of 
obtaining  satisfaction,  but  a  retraxit  is  not  a 
prosecution  for  such  an  end ;  it  is  entering  a 
bar  to  the  suit  without  having  received  satis- 
faction. It  is  important  that  attorneys  should 
make  the  entry  of  satisfaction,  as  it  would 
guard  the  court  against  fraud,  for  the  court 
can  always  know  its  own  officers,  but  cannot 
be  supposed  to  know  the  party. 

Courts  of  law,  as  to  their  power  to  vacate 
judgments,  are  not  confined  to  cases  of  irregu- 
larity only.  In  the  case  of  the  Quare  impedit, 
in  Viner,  a  judgment  was  vacated  on  the 

f round  of  fraud,  not,  it  is  true,  by  motion; 
ut  that  depended  on  the  extension  of  this 
form  of  practice,  of  late  years.  As  to  sending 
the  plaintiffs  to  a  court  of  chancery,  it  was 
objectionable  :  1.  Because,  although  a  court 
of  chancery  will  not  interfere  where  the  party 
has  a  remedy  at  law,  yet  the  converse  of  the 
proposition  is  not  true.  2.  Because  it  would 
turn  a  legal  lien,  which  the  plaintiffs  have, 
into  a  mere  equitable  lien.  3.  Because,  if 
there  is  a  remedy  at  law,  chancery  will  refuse 
to  relieve. 

Per  (Juriam.  On  the  facts  appearing  in  this 
case,  we  think  there  is  probable  cause  to  con- 
clude that  there  was  a  collusion  between 
Wardell  and  Eden  to  defraud  the  bank. 
126*]  *A  court  of  law  will  always  take  notice 
and  protect  the  interest  of  an  assignee;  but  not 
so  as  to  conclude  or  injure  any  party,  but  so 
JOHNSON'S  CASES,  2. 


as  to  save  the  rights  of  all.  We  therefore 
direct  the  following  rule  to  be  entered  in  this 
cause : 

"On  reading  and  filing  the  affidavit  of 
Martin  S.  Wilkins,  and  the  papers  thereunto 
annexed,  on  the  part  of  the  president,  direct- 
ors and  company  of  the  Bank  of  New  York, 
claiming  to  be  assignees  of  the  judgment  in  this 
cause,  and  the  affidavits  of  the  said  Joseph 
Eden,  and  the  papers  thereunto  annexed,  on 
the  part  of  the  said  Joseph  Eden  ; 

"Ordered,  That  a  vacatur  of  the  entry  of 
satisfaction  of  the  said  judgment  be  entered 
on  the  record,  and  a  minute  thereof  made  in 
the  book  of  dockets  of  judgments  :  Provided, 
that  the  said  president,  directors  and  com- 
pany, shall  not  cause  a  scire  facias,  or  any 
writ  of  execution,  to  be  sued,  or  a  suit  in  debt 
to  be  brought  on  the  said  judgment,  until 
they  shall  have  further  applied  to  the  court; 
and  it  is  to  be  understood,  also,  that  the  said 
Joseph  Eden  may  at  any  time  apply  to  the 
court,  that  the  entry  of  the  satisfaction  may 
be  deemed  unvacated,  or  that  satisfaction 
be  entered  anew  on  the  said  record,  and  the 
court  will,  on  such  further  applications  of  the 
parties  respectively,  take  such  order  as  shall 
be  just :  and  it  is  further  ordered  that  the 
clerk  cause  a  copy  of  this  rule  to  be  annexed 
to  the  said  record." 

LANSING,  Ch.  J.,  and  LEWIS,  J.,  dissented. 
Eule  granted  as  above1. 

Cited  in— 13  Johns.,  22;  19  Johns.,  22,  246  ;  6  Hill, 
239 ;  14  Hun,  474 ;  66  Barb.,  243 ;  3  How.  388 ;  13  How., 
27  ;  37  How.,  3 ;  47  How.,  444;  2  Code  K.,  5. 

1. — This  rule  was  made  absolute  in  April  Term, 
1800.  See  1  Johns.  Rep.,  531,  note  ;  1  Johns.  Cos.,  411 ; 
3  Johns.  Rep.,  426 ;  1  Bos.  &  Pull.,  447 ;  S.  C.,  Col.  & 
Caines,  137. 

461 


[END  OF  OCTOBER  TERM.] 


CASES  ADJUDGED 


IN   THE 


SUPREME  COURT  OF  JUDICATURE 


STATE   OF  NEW  YOEK. 


JANUARY    TKRM,    IlsT    THK    YKAR    18O1. 


[Mr.  Justice  LEWIS  was  absent  during  the  whole  of  this  term.] 


127*]         *VANDENHEUVEL 

THE  UNITED  INSURANCE  COMPANY. 

1.  Marine    Insurance — Warranty  "  American 
Property" — Sentence  of  foreign   Court  Evi- 
dence.     2.  Final    Sentence     Conclusive.      3. 
Judgments — Courts  of  Peculiar  Jurisdiction. 

In  an  action  on  a  policy  of  insurance,  containing 
a  warranty  of  American  property,  it  was  held  that 
the  sentence  of  a  foreign  court  of  admiralty,  con- 
demning the  property  as  lawful  prize,  was  conclu- 
sive evidence  as  to  the  character  of  the  property, 
and  of  the  breach  of  the  warranty.  But  see  post , 
this  judgment  was  afterwards  reversed  in  the  Court 
of  Errors,  February,  1802. 

Citations— 1  Johns.  Cas.,  16 ;  1  Johns.  Cas.,  341 ;  Gro 
de  Jure,  &c.,  lib.  3,  ch.  2,  sec.  4,  5 ;  1  Coll.  Jur.,  102, 
103 ;  Vat.,  257,  258 ;  1  Ch.  Cas..  237 ;  26  Car.,  II ;  12  Vin., 
87,  pi.  9;  S.  C.,  2  Str.,  732,  733;  1  Vez.,  159;  1  Vern., 
21 ;  S.  C.,  2  Ch.  Ca.,  74 ;  Carth.,  32 ;  S.  C.,  2  Show.,  232 ; 
Theory  of  Evidence,  p.  37  ;  Bull.,  244 ;  Park,  178  (3d 
Ed.) ;  Amb.  761,  762,  763 ;  2  Black.  Rep.,  977 ;  Doug., 
544;  Park,  a59,  361,  362;  2  Dallas,  51,  194,  195,  270; 
Emerigon,  457  to  464 ;  Valin,  112,  Art.  8 ;  Roccus,  n. 
54  ;  Freeman,  84 ;  Hargrave's  Law  Tracts,  465,  469 ; 
Hargrave,477;  3  Mod.,231;  Hargrave's  Law  Tracts,452, 
457,  470,471, 477,  479 ;  4  Co.,  29  a ;  7  Co.,  43  C ;  2  Lev.,14 ; 
1  Freeman,  83  ;  Carth..  225 ;  1  Salk.,  290 ;  Skin.,  493; 
Str..  960.  661 ;  Bull.  N.  P.,  245 ;  4  Co.,  29  a  ;  Stra.,  691 ; 
S.  C.,  3  Bro.  P.  C.,  62 ;  Str.,  690 ;  2  Black.  Rep.,  977  ; 
4  Term  R.,  161 ;  2  Black.  R.,  1176 ;  1  Show.,  6  ;  3  Mod., 
195,  note ;  Harg.,  467 ;  2  Ld.  Raym.,  893 ;  1  Ld.  Raym., 
724 ;  Comyn's  Dig.,  tit.  Admiralty,  E.,  17  ;  Raym., 
473  ;  2  Show,  242  ;  S.  C.,  Skinner,  58  ;  Carth.,  32 ;  1 
Atk.,  49  ;  2  Wood.,  456  ;  1  Vern.,  21  ;  2  Str..  733  ;  1 
Vezey,  159  ;  Ridgeway,  266,  267  ;  1  Col.  Jurid.,  101, 
102, 106  •  Grotius,  1,  3,  ch.  2,  sec.  5  ;  Vattel,  1,  2,  sec. 
84, 85 ;  Martens,  104, 105  ;  Erskine's  Institutes,  vol. 

2,  735 ;  Doug.,  575,  610,  614  to  617,  705 :  7  Term  R.,  523, 
681,705;  8  Term.  R.,  196,  232;   Id.,  234,  444;    Miller, 
496 ;  1  Johns.  Cas.,  141 ;  1  Johns.  Cas.,  337 ;  2  Show., 
232;  1  Johns.  Cas.,  436;    Emerigon,  ch.  12,  sec.  20; 
Park,  363. 

rpHIS  was  an  action  on  a  policy  of  insurance, 
-L  on  the  freight  of  the  "  American  ship, 
called  the  Astrea,  from  New  York  to  Corunna." 
The  cause  was  tried  at  the  last  March  cir- 
cuit in  the  city  of  New  York,  when  a  verdict 
was  taken  for  the  plaintiff,  for  $4,365.06, 
subject  to  the  opinion  of  the  court,  on  the  fol- 
lowing case,  which  it  was  agreed  either  party 
might  turn  into  a  special  verdict. 
JOHNSON'S  CASES,  2. 


The  defendants,  for  a  premium  of  15  per 
cent.,  on  the  9th  March,  1798,  insured  $4,000, 
valued  at  that  sum  on  the  freight. 

*The  insurance  was  effected  in  conse-  [*128 
quence  of  the  following  written   application 
from  the  plaintiff  to  the  defendants,  dated  14th 
November,1798. 
"Gentlemen: 

' '  What  will  be  the  premium  on  the  ship, 
freight,  and  cargo,  of  the  Astrea,  Captain 
Price,  consisting  in  mahogany,  tobacco,  slaves, 
dye-woods,  and  sugar,  at  and  from  New  York 
to  Corunna,  to  sail  in  eight  days  ;  property 
of  the  undersigned. 

"I.  C.  VANDENHEUVEL." 

The  Astrea  was  captured,  during  her  voy- 
age, by  a  British  frigate,  and,  with  her  cargo, 
was  condemned  as  lawful  prize  to  the  captors, 
by  the  Court  of  "Vice- Admiralty  at  Gibraltar, 
"  as  belonging,  at  the  time  of  her  capture,  to 
Spain,  or  to  persons  being  subjects  of  the 
King  of  Spain,  or  inhabiting  within  the  ter- 
ritories of  the  King  of  Spain,  enemies  to  the 
King  of  Great  Britain." 

The  freight-insured  was  lost  by  the  capture 
and  condemnation,  and  duly  abandoned  to  the 
defendants,  with  the  usual  proof  of  loss  and  in- 
terest. 

Unless  the  court  should  think  the  plaintiff 
concluded  by  the  sentence  of  condemnation, 
it  was  to  be  received  as  a  fact  in  the  case  that 
the  ship  and  cargo  were  really  the  plaintiff's 
property;  and  that  the  ship  was  registered, 
and  had  all  the  usual  documents  of  an  Ameri- 
can vessel. 

The  plaintiff  was  born  a  subject  of  the 
United  Netherlands,  and  continued  so  until 
the  3d  day  of  June,  1793,  when  he  became  a 
naturalized  citizen  of  the  United  States.  That 
he  was  a  Dutchman,  was  a  fact  known  to  the 
defendants  at  the  time  of  subscribing  the 
policy. 

It  was  agreed  that  if  the  court  should  be  of 
opinion  that  the  plaintiff  is  entitled  to  recover 
for  a  total  loss,  judgment  was  to  be  rendered 
on  the  verdict,  as  it  stood.  But  if  the  opinion 

463 


128 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


of  the  court  should  be  that  there  should  be 
129*]  only  a  *return  of  premium,  judgment 
should  be  entered  for  the  plaintiff  for  the  sum 
of  $700.  But  if  nothing  in  their  opinion 
ought  to  be  recovered,  judgment  was  to  be 
given  for  the  defendants. 

The  defendants  also  underwrote  a  separate 
policy  on  the  cargo  of  the  same  vessel  for  the 
same"  voyage,  on  which  a  verdict  was  also 
taken  for  the  sum  of  $15,000,  subject  to  the 
opinion  of  the  court  in  the  other  cause. 

Messrs.  Hamilton  and  B.  Livingston  for  the 
plaintiff. 

Messrs.  Harison  and  Troup  for  the  defend- 
ant. 

RADCLIFP,  J.  This  was  an  insurance  on 
the  freight -of  the  Astrea,  from  New  York  to 
Corunna,  in  Spain.  The  policy  was  subscribed 
by  the  defendants  on  the  19th  November,  1798, 
in  consequence  of  a  written  representation 
from  the  plaintiff,  stating  the  ship,  freight 
and  cargo  to  be  his  property. 

The  plaintiff  was  originally  a  subject  of  the 
United  Netherlands,  and  continued  so  until 
the  3d  January,  1793,  when  he  was  natural- 
ized as  a  citizen  of  the  United  States.  He  mast, 
of  course,  have  emigrated  to  America  at  least 
two  years  antecedent  to  that  period,  and  be- 
fore the  United  Netherlands  were  involved  in 
the  late  European  war,  and  he  is  stated  to  have 
been  personally  known  to  the  defendants. 

The  vessel  during  the  voyage  was  captured 
by  a  British  frigate,  as  a  prize,  carried  to  Gib- 
raltar, and  with  her  cargo,  there  condemned 
by  the  Court  of  Vice- Admiralty,  on  the  ground 
of  her  "  belonging,  at  the  time  of  her  capture, 
to  Spain,  or  to  persons  being  subjects  of  the 
King  of  Spain,  or  inhabiting  the  territories  of 
the  King  of  Spain,  enemies  of  Great  Britain." 
From  the  situation  of  the  plaintiff,  and  the 
representation  of  the  defendants,  the  insurance 
must  be  considered  as  made  upon  American 
or  neutral  property.  The  representation  is,  to 
this  purpose,  equivalent  to  a  warranty  of  that 
fact,  and  liable  to  the  same  result.  In  my 
view  of  the  subject  two  questions  arise. 
13O*]  *lst.  Whether,  upon  the  terms  of  the 
contract,  the  plaintiff  is  entitled  to  recover? 

3d.  Whether,  in  respect  to  the  fact  of  neu- 
trality, he  is  concluded  by  the  foreign  sen- 
tence? 

If  upon  the  contract  he  would  be  entitled  to 
recover,  and  is  not  concluded  by  the  sentence, 
it  is  conceded  or  offered  to  be  proved  that  the 
property  was  in  reality  neutral,  or  such  as  was 
so  represented  to  the  defendants. 

The  second  question  has  already  been  twice 
determined  in  this  court;  first,  in  the  case  of 
Ludlow  v.  Dale  (1  Johns.  Cases,  16),  in  which 
I  gave  no  opinion,  it  having  been  argued  be- 
fore I  took  my  seat;  and  second,  in  the  case  of 
Goixv.  Low.  (1  Johns.  Cases,  341.)  In  the 
last,  although  the  subject,  in  some  respects, 
presented  itself  to  my  mind  in  a  different 
light,  I  was  content  to  acquiesce  in  the  opin- 
ion which  had  been  previously  delivered,  con- 
sidering the  rule  to  have  been  definitively 
settled  as  far  as  depended  on  this  court.  The 
magnitude  of  the  question  has  induced  us  to 
review  it,  in  this  and  other  causes,  but  not- 
withstanding the  able  and  zealous  discussion 
464 


it  has  received,  I  can  perceive  no  new  lights 
to  lead  me  to  change  my  opinion. 

It  may  be  premised  that  in  the  course  of  the 
argument  much  was  said  of  the  policy  of  the 
English  courts  in  deciding  this  question  in 
favor  of  the  insurer,  and  the  policy  of  our 
adopting  a  different  rule.  On  a  careful  exam- 
ination of  the  English  decisions,  I  cannot 
discover  any  ground  for  this  suggestion. 
They  appear  to  rest  on  principles  unconnected 
with  any  motive  of  policy,  and  are  indiscrim- 
inately applied  to  their  domestic  as  well  as  to 
foreign  tribunals.  If  the  consideration  were 
proper  in  determining  a  rule  for  ourselves,  I 
am  unable  to  perceive  its  force  or  application. 

In  every  instance  of  a  foreign  condemnation, 
a  loss  must  necessarily  happen.  If  the  prop- 
erty be  really  American,  and  insured  here,  the 
burden  must  fall  on  some  of  our  citizens.  It 
is,  then,  a  question  between  them  solely,  and 
it  can  never  be  politic  or  just  to  seek  to  shift 
the  loss  from  *one  description  of  citi-  [*131 
zens  to  another.  If  the  property  be  not  Amer- 
ican, and  insured  in  this  country,  an  inter- 
ested policy,  if  such  could  be  justified,  would 
dictate  an  opposite  rule  of  decision,  and  lead 
to  protect  the  American  insurer  against  the 
foreign  owner,  and  thus  determine  the  ques- 
tion against  the  insured. 

Again,  if  the  property  be  American,  and 
insured  abroad,  the  remedy  is  placed  beyond 
the  reach  of  our  laws,  and  it  would  be  a  vain 
presumption  in  the  courts  of  this  or  any  other 
country  to  attempt  to  prescribe  a  rule  for  for- 
eign tribunals.  But  I  dismiss  this  topic  as 
unconnected  with  the  merits  of  the  question. 
Opinions  founded  on  policy  are  necessarily 
various  and  fluctuating,  and  ought  never  to 
actuate  a  court  of  justice.  The  question,  in 
every  instance,  must  depend  on  its  intrinsic 
merits  arising  from  the  nature  of  the  contract 
and  the  general  law  of  insurance,  unless 
restained  by  positive  regulations. 

In  this  view  of  the  subject,  the  judicial  de- 
terminations of  courts  in  different  countries, 
as  well  as  the  opinions  of  individuals,  may 
differ,  but  the  difference,  I  apprehend,  can 
never,  as  has  been  imagined,  become  a  matter 
of  national  concern.  The  regular  administra- 
tion of  justice,  when  conducted  with  good 
faith,  can  never  implicate  the  government 
with  respect  to  foreign  nations;  and  whatever 
rule  may  be  established  on  this  occasion,  it 
cannot  be  considered  as  affecting  the  rights  of 
our  own  citizens,  as  existing  between  them 
solely.  If  foreigners  should  at  all  be  inter- 
ested, it  must  happen  in  consequence  of  their 
voluntary  act  to  seek  insurance  here,  and  they 
cannot  complain  of  the  conduct  of  our  courts, 
if  they  receive  the  same  measure  of  justice 
which  is  administered  to  others.  I,  therefore, 
equally  lay  out  of  view  every  argument  de- 
rived from  this  source. 

It  is  true  there  may  be  cases  to  interest  the 
government  in  behalf  of  its  citizens.  When 
losses  are  sustained  by  the  unjust  sentences  of 
foreign  tribunals,  there  is  no  doubt  but  the 
party  injured  is  entitled  to  apply  to  his  govern- 
ment for  redress;  and  that  government,  in  case 
of  palpable  injustice,  *has  a  right  tode-[*132 
mand  and  enforce  reparation  from  the  sover- 
eign of  the  aggressor;  it  is  even  bound  to  do 
so,  or,  in  its  discretion,  to  grant  reprisals,  or 
JOHNSON'S  CASES.  2. 


1801 


VANDENHEUVEL  v.  THE  UNITED  INSURANCE  COMPANY, 


132 


.an  indemnity  to  the  injured  party.  It  then, 
.and  not  till  then,  becomes  a  question  of  na- 
tional concern.  As  such,  the  delicacy  and 
importance  attached  to  it,  as  to  all  national 
questions,  would  require  the  government,  to 
proceed  with  caution,  and  in  doubtful  cases 
rather  to  presume  that  justice  has  been  done, 
than  to  impeach  the  integrity  of  foreign 
•courts.  Thus  it  is  held  that  it  ought  not  to 
interfere  but  in  cases  of  violent  injuries,  coun- 
tenanced and  supported  by  the  sovereign  of 
the  aggressor,  and  where  justice  is  absolutely 
denied  in  re  minime  dubia,  by  all  the  tribunals, 
.and  in  the  last  resort.  (Gro.  de  Jure,  &c.,  lib. 
3,  ch.  2,  sec.  4,5;  1  Coll.  Jur.,  102,  103;  Vat., 
257,  258.)  This  is  the  language  of  the  most 
.approved  writers  on  public  law,  and  is  pro- 
fessed to  be  the  practice  of  all  civilized  na- 
tions ;  and  one  (Vattel  in  the  report  on  the 
Prussian  memorial)  of  those  writers,  perhaps 
the  most  eminent  and  correct,  exemplifies  the 
maxim  by  referring  to  the  principles  main- 
tained by  the  British  government  on  a  similar 
•  occasion.  Hence  it  will  be  admitted,  as  a 
general  rule,  that  every  government  is  bound 
to  respect  the  judicial  decisions  of  foreign 
courts,  and  in  the  first  instance  to  consider 
them  as  just,  and  of  course  generally  conclu- 
sive.  But  these  reasons  for  the  rule  are  strictly 
applicable  to  the  government  alone  when  act- 
ing in  behalf  of  its  citizens.  They  cannot  ap- 
ply to  the  conduct  of  our  courts  in  the  ordin- 
.ary  administration  of  justice.  We  actually 
see  the  courts  of  France  and  England  differ  on 
the  very  question  before  us,  and  it  has  never 
been  deemed  a  subject  of  national  confplaint 
by  either.  I  therefore  think  that  it  is  not  on  the 
ground  of  national  interference  or  courtesy, 
that  such  sentences  in  our  courts  are  held  to 
be  conclusive;  their  exclusive  quality  depends 
on  other  principles. 

1st.  As  between  the  insurer  and  insured, 
in  case  of  a  representation  or  warranty  of  neu- 
tral property,  I  think  a  condemnation  "in  a  for- 
eign court  of  admiralty,  when  founded  on  the 
133*]*want  of  neutrality, operates  definitively 
.against  the  insured  according  to  the  terms  and 
effect  of  the  contract  itself.  During  the  exist- 
ence of  a  maritime  war,  the  state  of  commerce  is 
necessarily  more  or  less  precarious.  Neutrals 
are  not  exempt  from  this  inconvenience,  but 
neutrality,  if  respected,  affords  a  great  ad- 
vantage. The  neutral  merchant,  when  he 
effects  an  insurance,  may  either  retain  the  ben- 
efit of  his  neutrality,  or,  if  diffident  of  its  se- 
curity, he  may  relinquish  it,  and  specially 
insure  his  property  against  every  possible  loss. 
If  he  insure  the  property  as  neutral,  he  there- 
by signifies  his  intention  to  avail  himself  of 
his  neutrality,  and  of  course  will  pay  a  less 
premium;  but  in  doing  this  it  must  follow 
that  he  takes  upon  himself  the  risk  of  that 
neutrality.  He  thus  far  divides  the  risk,  and 
is  to  be  considered  his  own  insurer.  He  can- 
not, by  paying  a  less  premium,  enjoy  the 
benefit  of  his  neutrality,  and  at  the  same  time 
the  benefit  of  an  insurance  for  the  want 
of  it. 

It  is  obvious  that  every  such  representa- 
tion or  warranty  is  made,  not  with  a  view  to 
an  examination  of  the  fact  in  our  own  courts, 
but  in  reference  to  the  parties  at  war,  and  to 
the  danger  of  capture  and  condemnation 
.JOHNSON'S  CASES,  2.  N.  Y.  REP.,  BOOK  1. 


abroad.  This  is  the  direct  object  of  the  stipu- 
lation. It  cannot  be  limited  to  the  naked 
position  that  the  property  is  in  fact  neutral.  It 
may  be  so  and  yet  possess  none  of  the  indicia  or 
evidences  of  neutrality.  These  evidences,  it 
is  not  denied,  the  insurer  undertakes  shall 
accompany  it,  and  I  think  he  equally  under- 
takes that  it  shall  enjoy  the  privileges  of  neu- 
trality. 

There  appears  to  me  no  room  for  the  dis- 
tinction that  the  insured  engages  to  furnish 
the  evidences  merely,  and  at  the  same  time  not 
to  maintain  his  neutrality  when  it  may  be 
called  in  question.  If  the  proper  evidences 
accompany  the  subject,  it  is  not  legally  to  be 
presumed  that  its  neutrality  cannot  be  main- 
tained. Whatever  abuses  may  occasionally  be 
committed,  we  cannot  act  judicially,  nor  sup- 
pose the  parties  to  have  acted,  on  the  presump- 
tion of  in  justice  in  foreign  courts.  The  idea  is 
inadmissible  when  applied  to*  the  courts[*  1 34 
of  a  civilized  nation,  and  if  contemplated  by 
the  parties,  ought  at  least  to  have  been  made 
the  subject  of  a  special  provision  in  the  con- 
tract. No  doubt  the  underwriter  may,  by  a 
special  insurance,  and  the  admission  of  a  par- 
ticular mode  of  proof,  make  himself  liable, 
even  for  the  unjust  sentences  of  foreign 
courts;  but  he  ought  never  to  be  held  liable  for 
such  sentences,  when  proceeding  on  the  very 
ground  assumed  by  the  insured  himself.  If 
neutrality  can  be  called  a  risk,  that  risk  is 
necessarily  implied  in  the  warranty;  and  the 
insurer,  by  the  contract,  is  liable  only  to  the 
remaining  perils  incident  to  the  subject, 
allowing  it  to  be  neutral,  and  to  preserve  that 
character.  He  engages  for  nothing  more;  and 
his  premium  must  be  deemed  proportioned  to 
those  perils  only.  The  effect  of  the  represen- 
tation or  warranty,  can,  I  think,  on  the  face 
of  the  contract  itself,  admit  of  no  other  inter- 
pretation. 

If  this  reasoning  be  correct,  it  follows  that 
the  insured,  having  represented  or  warranted 
the  subject  to  be  neutral,  can  never,  on  the 
terms  of  the  contract  itself,  recover  against 
the  insurer  when  it  appears  to  have  been  con- 
demned on  a  ground  which  denies  its  neutral- 
ity. It  is  immaterial,  in  this  view  of  the  sub- 
ject, whether  the  condemnation  be  just  or 
unjust;  it  is  sufficient  if  it  proceed  on  the  want 
of  neutrality. 

The  question  in  the  English  courts  does  not 
appear  to  have  been  examined  in  this  light. 
They  have  been  content  to  apply  to  the  decis- 
ions of  foreign  courts  of  admiralty,  a  princi- 
ple which  has  long  been  received  and  adopted 
in  their  domestic  courts.  They  place  them 
on  the  same  footing,  and  consider  the  conclu- 
siveness  of  their  sentences  as  necessarily  re- 
sulting from  the  right  of  the  jurisdiction.  In 
relation-  to  their  own  courts  the  rule  has  un- 
doubtedly been  long  established,  both  before 
and  since  the  Revolution,  and  it  is  not  con- 
fined to  courts  of  peculiar  or  exclusive  au- 
thority, but  applies  to  all.  Not  only  the  sen- 
tences or  judgments  of  their  ecclesiastical  or 
other  courts,  where  they  possess  exclusive 
cognizance,  but  the  decisions  of  all  the  courts, 
in  *cases  where  they  have  concurrent  [*135 
jurisdiction,  are  deemed  to  be  equally  con- 
clusive. Indeed,  a  contrary  position  would 
involve  the  absurdity  of  a  power  competent  to 
30  465 


135 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1801 


decide,  and  at  the  same  time  ineffectual  in  its 
decision. 

They  have  also,  in  a  variety  of  cases,  ex- 
tended the  rule  to  foreign  courts  of  a  different 
description.  Thus,  a  bill  to  be  relieved  against 
actions  of  trespass  for  seized  goods  (ICh.  Cas., 
237,  26  Car.  II.)  in  an  island  of  Denmark,  was 
dismissed  in  chancerv  because  sentence  was 
given  in  the  court  of  i)enmark  on  the  seizure. 
So  in  case  (12  Vin.,  87,  pi.  9;  2  Stra.,  732,  733, 
S.  C.,  best  reported  in  Viner,  1726),  of  a  bill  of 
exchange,  the  acceptance  of  which  was  va- 
cated in  a  court  of  Leghorn,  Lord  Chancellor 
King  held  not  only  that  the  cause  was  to  be 
determined  by  the  lex  loci,  but  the  acceptance 
having  been  Vacated  by  a  competent  jurisdic- 
tion, he  thought  the  sentence  conclusive,  and 
that  it  bound  the  Court  of  Chancery  in  Eng- 
land. So  Lord  Hardwicke  (1  Vez.,  159,  1748) 
decided  that  if  a  marriage  be  declared  valid,  by 
the  sentence  of  a  court  in  France  having  proper 
jurisdiction,  it  is  conclusive ;  and  he  held 
"that  this  was  so,  although  in  a  foreign  court, 
by  the  law  of  nations ;  for  otherwise  the  rights 
of  mankind  would  be  very  precarious  and  un- 
certain." 

This  doctrine  applies,  with  peculiar  force, 
to  the  sentences  of  the  courts  of  admiralty  in 
relation  to  prize,  and  of  every  court  proceed- 
ing on  the  general  law  of  nations,  as  the  basis 
of  its  authority.  While  the  capture  of  enemy 
property  is  admitted  to  be  the  right  of  a  bel- 
ligerent party,  the  institution  of  courts  to  try 
the  validity  of  such  captures  must  also  be  ad- 
mitted. They  exist  in  every  country,  and  are 
established  in  our  own.  The  objects  of  their 
institution  are  everywhere  the  same.  They 
are  invested  with  similar  powers,  pursue  the 
same  principles,  and  profess  to  be  governed  by 
the  same  system  of  laws,  unconnected  with 
the  municipal  regulations  of  any  country.  In 
this  manner,  they  form  a  separate  and  inde- 
pendent branch  of  judicature,  and  although 
uncontrolled  by  a  common  superior,  their 
136*]  ^determinations,  while  they  act  with 
good  faith,  will  generally  be  uniform  and  con- 
sistent. Considering  them  in  this  light,  acting 
on  the  same  principles,  and  governed  by  the 
same  law,  they  come  within  the  reason  of  the 
rule  which  is  applied  to  domestic  tribunals  of 
concurrent  jurisdiction,  and  their  decisions 
ought  to  possess  equal  force  and  authority. 

But  another  principle  of  English  and  Ameri- 
can jurisprudence,  arising  from  the  nature  of 
the  subject  and  the  system  of  our  courts,  ap- 
pears to  me  strongly  to  enforce  this  doctrine. 
The  question  of  neutrality  is  involved  in  the 
general  question  of  prize;  it  is  a  necessary  in- 
cident, and  the  want  of  neutrality  forms  the 
principal  ground  of  capture  and  condemna- 
tion. It  is  a  settled  maxim  that  the  courts  of 
common  law  have  no  jurisdiction  on  the  ques- 
tion of  prize.  It  may  collaterally  arise,  but 
ex  directo,  it  is  not  within  their  cognizance;  it 
belongs  solely  and  exclusively  to  the  courts  of 
admiralty  as  courts  of  prize.  This  is  estab- 
lished by  a  current  of  authorities,  both  ancient 
and  modern,  and  the  reasons  on  which  they 
are  founded  are  satisfactory  and  conclusive. 
If,  then,  the  courts  of  admiralty  have  exclu- 
sive jurisdiction  of  the  principal  question  of 
prize,  which  necessarily  includes  that  of  neu- 
trality, and  the  courts  of  common  law  have  no 
466 


jurisdiction,  it  must  follow  that  the  decisions 
of  the  former  cannot  be  reviewed  by  the  latter, 
and  that  whenever  they  occur,  directly  or  col- 
laterally, they  must,  like  the  judgment  of 
other  courts  of  peculiar  jurisdiction,  be  con- 
sidered as  conclusive.  If  they  were  allowed 
to  be  reviewed,  in  what  manner  could  we  as- 
certain the  merits  of  the  former  decision?  Is 
the  same  evidence  in  our  power,  or  in  the 
power  of  the  parties  to  obtain?  The  insurer 
is  a  stranger  to  the  whole  transaction;  the  cir- 
cumstances are  unknown  to  him;  the  proofs, 
if  not  detained  abroad,  are  in  the  hands  of  his 
adversary;  they  are  generally  concealed,  or 
may  with  the  greatest  ease  be  suppressed. 
How  could  he  compel  their  production,  or 
bring  to  light  the  merits  of  the  case?  To  avoid 
these  difficulties,  are  *we  to  be  gov-  [*137 
erned  by  the  written  depositions  taken  in  the 
admiralty  abroad,  or  could  they  be  received  as 
evidence?  It  is  well  known  that  the  rules  of 
evidence  in  those  courts  are  different  from 
our  own.  By  what  rules  are  we  to  be  gov- 
erned? If  exclusively  by  our  own,  the  result 
in  our  courts  may  differ,  and  yet  both  judg- 
ments, as  to  the  evidence  on  which  they  are 
founded,  be  equally  just.  Allowing  even  that 
the  insured  engages  merely  to  furnish  the  evi- 
dence of  this  neutrality  in  foreign  courts,  that 
evidence  must  surely  be  understood  to  be  of  a 
nature  usually  received  and  demanded  in  those 
courts;  for  it' is  there  only  that  it  can  be  ma- 
terial. The  engagement  relating  to  such  evi- 
dence, of  course,  excludes  the  idea  of  a  de- 
cision oipon  any  other,  and  the  interference  of 
a  court  of  common  law,  requiring  a  different 
mode  of  proof,  and  acting  on  different  princi- 
ples, would  contravene  one  of  the  direct  ob- 
jects of  the  stipulation.  In  every  shape,, 
therefore,  in  which  this  subject  can  be  viewed, 
insuperable  difficulties  present  themselves, 
and  evince  the  propriety  of  considering  the 
foreign  sentences  as  final. 

In  England  this  question  is  at  rest,  by  di- 
rect decisions  on  the  point;  but  these  decisions 
were  principally  made  during  the  period  of  our 
Revolution,  or  subsequent  to  it.  They  pos- 
sess, therefore,  no  conclusive  authority,  but, 
under  similar  circumstances,  are  to  be  regard- 
ed as  we  regard  the  decisions  of  the  courts  of 
all  enlightened  nations,  high  evidence  of  the 
law  on  the  subject. 

The  cases  in  the  English  courts  previous  to 
the  Revolution  are,  however,  not  wholly  silent 
on  the  question;  so  far  as  they  relate  to  the 
general  principle  that  the  .sentence  or  judg- 
ment of  any  court  of  competent  jurisdiction  is 
to  be  received  as  conclusive,  they  have  already 
been  noticed. 

There  are  some  which  immediately  apply  to 
the  sentences  of  foreign  courts  of  admiralty. 
The  first  in  which  the  effect  of  such  sentences 
appears  to  have  been  immediately  considered, 
was  the  case  of  Neinland  v.  Horseman  (1  Vern., 
21;  2  Ch.  Ca.,74,S.  C.,  1681),  in  chancery.  That 
was  on  a  *questioii  of  freight,  which  [*138 
had  been  tried  in  the  Court  of  Admiralty  at 
Barcelona,  where  an  interlocutory  judgment 
was  given.  Lord  Chancellor  Nottingham  de- 
clared that  he  would  not  slight  their  proceed- 
ings beyond  sea,  and  if  the  damages  had  been 
there  ascertained,  or  a  peremptory  sentence 
given,  the  same  should  have  concluded  alf 
JOHNSON'S  CASES,  2. 


1801 


VANDENHEUVEL  v.  THE  UNITED  INSURANCE  COMPANY. 


138 


parties.  The  next  is  the  case  of  Hughes  v. 
Cornelius  (Carth.,  32;  2  Show.,  232,  S.  C., 
1689),  in  which,  during  a  war  between  France 
and  Holland,  an  English  ship  was  taken  by 
the  French,  under  color  of  being  Dutch,  car- 
ried into  France,  and  there  condemned  by  the 
Court  of  Admiralty  as  a  Dutch  prize.  After- 
wards an  Englishman  bought  this  ship,  and 
brought  her  into  England,  where  the  right 
owner  instituted  an  action  of  trover  for  the 
ship  against  the  purchaser.  This  matter  be- 
ing found  specially,  the  defendant  had  judg- 
ment, "because  the  ship  being  condemned  as 
a  Dutch  prize,  this  court  will  give  credit  to 
the  sentence  of  the  Court  of  Admiralty  in 
France,  and  take  it  to  be  according  to  right, 
and  will  not  examine  their  proceedings;  for  it 
would  be  very  inconvenient  if  one  kingdom 
should,  by  peculiar  laws,  correct  the  judg- 
ments and  proceedings  of  the  courts  of  another 
kingdom."  In  the  Theory  of  Evidence  (an 
Irish  ed.,  printed  in  1761,  p.  37),  a  book  con- 
siderably ancient,  it  is  stated  that  "in  an  ac- 
tion on  a  policy  of  insurance,  with  a  war- 
ranty that  the  ship  was  Swedish,  the  sentence 
of  the  French  admiralty  condemning  the  ship 
as  English  property  was  held  to  be  conclu- 
sive." (Bull.,  244.)  The  same  case  is  re- 
peated, in  IUKC  verba,  by  Mr.  Buller,  in  his  Nisi 
Prim,  and  has  received  the  sanction  of  his 
name.  He  cannot  be  understood  to  refer  to 
the  case  of  Hughes  v.  Cornelius,  as  has  been 
suggested,  for  that  was  not  of  a  Swedish  ship, 
nor  on  a  policy  of  insurance.  There  is  still 
another  case  (Park.  178,  3d  ed.,  not  elsewhere 
reported)  of  Fernandez  v.  De  Costa,  in  4  Geo. 
III.,  before  Lord  Mansfield,  at  Nisi  Prius,  in 
which  there  was  a  warranty  that  the  ship 
was  Portuguese,  and  being  condemned  as  not 
being  Portuguese,  in  the  admiralty  courts  of 
139*]  France,  the  sentence  *of  condemna- 
tion appears  to  have  been  considered  as  de- 
cisive in  favor  of  the  insurer.  In  that  case,  it 
seems,  the  law  was  received  to  be  settled,  as 
to  the  effect  of  the  sentence,  and  the  inquiry 
was  confined  to  ascertain  the  ground  on  which 
it  went. 

In  answer  to  the  two  former  of  those  cases, 
a  distinction  has  been  taken  between  the  di- 
rect and  collateral  effects  of  a  foreign  sentence ; 
that  it  is  conclusive  only  as  to  the  transfer  of 
property,  for  the  benefit  of  all  claiming  under  it 
but  not  so  as  to  collateral  parties.  I  do  not 
perceive  the  force  of  this  distinction.  If  well 
founded,  it  appears  to  me  to  operate  in  favor 
of  the  insurer.  The  insured,  the  professed 
owner  of  the  property,  must  certainly  be  a  di- 
rect party  to  the  sentence,  if  any  one  is  a  party; 
he,  therefore,  if  any  one,  must  be  concluded. 
Besides,  from  the  nature  of  the  proceedings  in 
courts  of  admiralty,  which  are  in  rein,  all  per- 
sons are  considered  as  bound.  The  forms  and 
manner  of  proceeding  in  those  courts  are  found- 
ed on  the  idea  of  notice  to  all  the  world,  and 
the  operation  of  their  sentences  is  deemed  to 
be  equally  extensive.  The  distinction  now  at- 
tempted I  do  not  find  to  be  supported  by  any 
authority,  either  before  or  since  the  Revolu- 
tion. Indeed,  in  England,  the  contrary  rule 
prevails,  both  with  respect  to  their  domestic 
and  foreign  courts.  It  is  general  that  "when- 
ever a  matter  comes  to  be  tried  in  a  collateral 
way,  the  decree,  sentence,  or  judgment  of  any 
JOHNSON'S  CASES,  2. 


court,  ecclesiastical  or  civil,  having  competent 
jurisdiction,  is  conclusive  evidence  of  such 
matter."  (Theory  of  Ev. ,  37;  Bull.,  244;  Amb., 
762,  763,  and  the  cases  there  cited;  2  Black. 
Rep.,  977.)  It  is  not  material  that  the  parties 
to  the  suit  should  have  been  parties  to  the  sen- 
tence; the  only  qualification  of  the  rule,  I  be- 
lieve, is  to  be  found  in  Prudham  v.  Philips 
(Amb.,  763),  where  Chief  Justice  Willes,  in  the 
case  of  a  judgment  alleged  to  be  obtained  by 
fraud,  in  the  Ecclesiastical  Court,  took  a  dis- 
tinction in  favor  of  a  stranger,  who  could  not 
come  in  and  vacate  or  reverse  the  judgment, 
and,  therefore,  must  of  necessity  be  permitted 
to  aver  the  fraud ;  but  he  *held  that  the  [*  1 4O 
party  to  the  suit  was  bound  by  the  sentence, 
in  relation  to  all  other  persons,  and  could  not 
give  evidence  of  the  fraud,  but  must  apply  to 
the  court  which  pronounced  the  sentence,  to 
vacate  the  judgment.  It  is,  therefore,  always 
sufficient,  if  the  one  against  whom  the  sen- 
tence was  offered  was  a  party. 

I  forbear  particularly  to  examine  the  subse- 
quent cases  (Doug.,  544;  Park.  359,  362),  during 
our  Revolution  and  since,  which,  if  any  doubt 
could  before  exist,  have  unequivocally  settled 
the  law  in  England.  The  principle  on  which 
they  are  founded,  is,  I  think,  sufficiently  sup- 
ported by  the  antecedent  cases.  The  English 
courts  appear -to  have  viewed  those  cases  in 
the  same  light,  and  without  treating  the  ques- 
tion as  res  Integra,  have  adopted  the  rule  they 
prescribed.  Indeed,  from  the  time  of  Charles  II. 
to  the  present  period,  it  appears  to  have  re- 
ceived a  steady  determination  by  the  highest 
authorities,  in  their  courts.  With  them  it  seems 
never  to  have  been  much  questioned,  and  I 
conceive  the  law  with  us  must  be  deemed  to 
be  equally  settled.  It  may  be  added,  that  the 
same  point  arose  in  Pennsylvania  (2  Dall.,  51, 
194,  195,  270),  and,  although  not  directly  de- 
cided, Judge  Shippen  inclined  to  consider  the 
foreign  sentence  as  conclusive  against  the  in- 
sured. 

In  France,  the  law  is  undoubtedly  otherwise 
settled.  (Emerigon,  457  to  464;  Val.,  112,  art, 
48.  See  also  Roc.  n.  54.)  Their  courts  have 
adopted  a  different  rule,  at  an  early  period, 
and  the  authorities  on  which  they  proceed,  in 
cases  of  new  impression,  would  merit  great 
attention  and  respect;  but,  independent  of  the 
circumstance  that  they  impose  no  obligation 
on  our  courts,  I  think  they  do  not  comport 
with  the  sound  interpretation  of  the  contract, 
nor  with  the  system  of  our  jurisprudence. 
The  English  courts,  on  questions  of  commer- 
cial law,  are  to  be  regarded  as  at  least  equally 
enlightened  and  correct;  and  their  authority, 
before  the  Revolution,  repeatedly  sanctioned 
and  confirmed  by  subsequent  determinations, 
imposes  an  obligation  which  the  former  do  not 
possess. 

*ln  every  light,  therefore,  in  which  [*141 
I  have  been  able  to  view  the  subject,  I  am  of 
opinion  that  the  foreign  sentence  ought  to  be 
deemed  conclusive  against  the  plaintiff's  right 
to  recover  on  the  policy: 

1.  From  the  nature  and  import  of  the  con- 
tract itself,  by  which  I  consider  the  insured  to 
have  guarantied  his  neutrality,  and  undertaken 
to  maintain  it,  and,  of  course,  liable  to  all  the 
perils  attending  it. 

2.  Because  the  condemnation  is  to  be  con- 

467 


141 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


sidered  as  conclusive  evidence  of  the  want  of 
neutrality,  it  being  the  sentence  of  a  court  not 
only  of  a  competent,  but  exclusive  jurisdiction 
on  the  subject. 

KENT,  J.  This  is  an  action  on  a  policy 
upon  the  cargo  and  freight  of  the  ship  Astrea, 

The  facts  are  these: 

The  voyage  was  from  New  York  to  Corunna, 
in  Spain,  and  the  ship  was  described  as  the 
good  American  ship  the  Astrea;  and,  previous 
to  the  time  of  signing  the  policy,  the  plaintiff, 
in  a  written  application  for  that  purpose  to  the 
respective  defendants,  represented  the  property 
to  be  his  own.  The  ship  was  captured  on  her 
voyage  by  a  British  frigate,  carried  into  Gibral- 
tar, and,  by  the  Court  of  Vice- Admiralty  there, 
the  ship  and  cargo  were  condemned  as  lawful 

Erize,  belonging,  at  the  time  of  her  capture,  to 
pain,  or  to  persons  being  subjects  of  the  King 
of  Spain,  or  inhabiting  within  the  territories 
of  the  King  of  Spain,  enemies  to  the  King  of 
Great  Britain. 

If  the  plaintiff  is  not  to  be  adjudged  conclu- 
ded by  the  sentence,  it  is  then  admitted  in  the 
case  to  be  a  fact  that  the  ship  and  cargo  were 
the  plaintiff's  property. 

The  plaintiff  was  born  a  subject  of  the  United 
Netherlands,  and  became  a  citizen  of  the 
United  States  on  the  3d  day  of  June,  1793,  and 
has  since  resided  in  the  city  of  New  York. 

Upon  these  facts,  the  whole  question  between 
the  parties  turns  upon  the  effect  of  the  sentence 
142*1  of  condemnation.  *If  that  is  to  be 
deemed  conclusive  proof  of  the  facts  therein 
stated,  the  policy  is  void,  by  reason  of  a  breach 
of  warranty,  and  by  reason  of  a  material  mis- 
representation, which  led  the  underwriters  to 
compute  the  risk  upon  circumstances  which, 
did  not  exist. 

The  sentence  substantially  falsifies  the  rep- 
resentation; for  the  person  stated  in  the  sen- 
tence as  owners  of  the  property,  and  the  plaint- 
iff, were  evidently  understood  and  intended  to 
be  different  persons. 

After  the  opinion  which  I  have  already  given 
upon  the  question  in  the  cases  of  Ludlow  \. 
Dale  (1  Johns.  Cases,  16),  and  of  Qoix  v.  Low 
(1  Johns.  Cases,  341),  I  might  well  be  excused 
from  entering  again  upon  the  subject,  unless, 
in  the  mean  time,  I  had  seen  sufficient  reason 
to  change  that  opinion.  The  question  has,  in- 
deed, been  since  presented  in  a  way  the  most 
propitious  to  a  liberal  reconsideration  of  its 
merits.  The  authorities,  and  the  principles 
they  contain,  have  been  examined  at  the  bar, 
with  a  diligence  and  ability  that  have  greatly 
aided  our  researches  and  thrown  light  on  the 
avenues  to  truth.  It  seems,  then,  in  a  degree, 
due  to  the  occasion,  to  the  elaborate  and  anx- 
ious care  which  has  been  bestowed  on  the  sub- 
ject, that  I  should  once  more,  but  very  briefly, 
and  without  recapitulating  what  I  have  before 
said,  take  some  further  notice  of  the  argument. 

The  true  point  in  controversy  is  not  what 
ought  to  be,  but  what  in  fact  was,  the  legal 
effect  of  a  foreign  sentence  of  condemnation, 
in  a  case  like  the  present,  by  the  common  law, 
as  understood  and  settled  when  our  Revolu- 
tion began.  I  shall  confine  myself,  in  this 
opinion,  to  the  examination  of  this  single  point. 

Let  us  first  inquire  what  is  the  effect  of  a 
domestic  judgment. 
468 


It  is  laid  down  as  a  general  rule  (Buller's  N. 
P.,  244,  245;  Amb.,  761;  Freeman,  84;  Str., 
733  ;  Harg.,  Law  Tracts,  465,  469),  that  when- 
ever a  matter  comes  to  be  tried  in  a  collateral 
way,  the  final  sentence  of  any  court,  having 
competent  *authority,  is  conclusive  [*143 
evidence  of  the  matter  so  determined,  in  all 
other  courts  having  concurrent  jurisdiction; 
for,  it  were  very  absurd  that  the  law  should 
give  a  jurisdiction,  and  yet  not  suffer  what  is 
I  done  by  force  of  that  jurisdiction  to  be  full 
:  proof. 

It  has,  however,  been  made  a  doubt  by  some 
|(Harg.,  477;  3  Mod.,  231),  whether  such  sen- 
I  tences  be  conclusive  upon  jurisdictions  having 
concurrent,  authority,  or  only  prima  facie  evi- 
dence of  the  fact,  although  I  think  the  better 
opinion  is  in  favor  of  their  conclusive  effect. 

But  if  a  matter  belongs  to  the  jurisdiction  of 

I  one  court,  so  peculiarly  as  that  other  courts 

i  can  only  take  cognizance  of  the  same  subject 

i  indirectly  and  incidentally,  the  rule  is  then  more 

I  extensive  and  unequivocal.     (Hargrave's  Law 

i  Tracts,  452,  457,  470,  477.)    The  latter  courts 

are  bound  by  the  sentence  of  the  former,  until 

it  be  reversed,   although  it  be  in  a    suit  in 

diverso  intuitu,  if  it  be  directly  determined,  and 

must  give  credit  to  it  universally,  and  without 

exception. 

This  rule  has  been  illustrated  by  the  case  of 
sentences  in  the  ecclesiastical  courts  touching 
marriages  and  wills  ;  in  the  Exchequer,  touch- 
ing the  condemnation  of  forfeited  goods  ;  and 
in  the  Admiralty,  touching  prizes,  in  all  of 
which  cases  those  courts  have  exclusive  juris- 
diction. 

In  respect  to  the  ecclesiastical  courts,  the 
authorities  are  numerous,  and  have  spoken  a 
uniform  language  from  the  time  of  Lord  Coke 
to  the  present  day.  In  two  cases  to  be  found 
in  his  reports  (4  Co.,  29  a;  7  Co.,  43  b),  the 
judges  determined  that  they  were  bound  (al- 
though it  was  even  against  the  reason  of  the 
law)  to  give  faith  and  credit  to  the  sentences 
of  the  ecclesiastical  courts,  for  cuilibet  in  mia 
arte  perito  est  credendum;  and  that,  if  the 
ecclesiastical  judge  showeth  cause  of  his 
sentence,  yet,  forasmuch  as  he  is  judge  of  the 
original  matter,  they  shall  never  examine  the 
cause  whether  it  be  true  or  not. 

All  the  subsequent  cases  say  the  same  thing. 
(2 Lev.,  14;  1  Freeman,  83;  Carth.,  225 ;  1  Salk., 
290;  Skin.,  493;  Str.,  960,  961;  Arab.,  761; 
Harg.  Law  Tracts,  from  452  to  479.) 

*This  conclusive  effect  of  the  sen- [*  144 
tences  of  the  spiritual  courts  applies  to  stran- 
gers as  well  as  to  parties  and  privies.  They 
are  conclusive  evidence  of  the  fact  against  all 
the  world.  (Harg.,  457,  471;  Bull.,  N.  P., 
245.)  In  one  of  the  cases  from  Coke  (4  Co., 
29  a),  and  in  the  case  of  Ilatfield  v.  Hatfield 
(Str.,  691;  3  Bro.,  P.  C.,  62,  S.  C.),  which  was 
finally  determined,  on  appeal  in  the  HouSe  of 
Lords  in  1725,  the  sentence  was  held  binding 
on  strangers.  In  a  case  before  Lord  Hard- 
wicke,  and  in  a  case  before  CJiuf  Justice 
Willes(Str.,  690;  Amb.,  763),  strangers  were 
allowed  to  use  the  sentence  against  those  who 
were  parties. 

The  same  doctrine  is  established  in  respect 
to    condemnations  in  the   Exchequer.     This 
fully  appears  from  the  case  of  Scott  v.  Shear- 
man (2  Black.  Rep.,  977),  in  which  it  was  held 
JOHNSON'S  CASES,  2. 


1801 


VANDENHEUVEL  v.  THE  UNITED  INSURANCE  COMPANY. 


144 


.by  J/r.  Justice  Blackstone,  in  a  very  elaborate 
argument,  and  in  which  all  the  court  con- 
curred, that  the  condemnation  in  the  Excheq- 
uer was  conclusive ;  not  only  in  rem  but  in 
personam;  not  only  as  to  the  property  vested 
in  the  crown,  but  as  to  every  other  collateral 
remedy;  not  only  as  to  the  party  to  the  suit, 
but  as  to  the  right  owner,  although  no  party, 
and  against  all  the  world.  The  seizure  itself 
was  held  to  be  notice  to  the  owner.  (See  4 
Term  Rep.,  161.)  The  law  gives  implicit 
credit  to  the  judgments  of  competent  courts; 
and  it  was  afterwards  observed  by  Chief  Jus- 
tice De  Grey,  that  the  decision  in  that  cause 
had  been  the  uniform  law  for  above  a  century. 
(2  Black,  Rep.,  1176.) 

It  seems  to  be  everywhere  taken  for  granted 
that  the  sentences  of  admiralty  courts  are 
equally  final.  (1  Show.,  6  ;  3  Mod.,  195,  note ; 
Harg.,  467;  2  Ld.  Raym.,  893;  lb.,  724;  Com. 
Dig.,  tit.  Admiralty,  B,  17.) 

The  rule,  then,  I  have  mentioned,  in  respect 
to  domestic  judgments,  has  received  all  the 
sanction  that  a  continued  train  of  decisions 
could  possibly  give  it. 

We  are  next  to  see  whether  the  same  rule, 
as  appearing  to  be  directed  by  the  same  rea- 
son, has  not  been  applied  with  equal  unifor- 
mity to  foreign  judgments. 
145*]  *The  most  ancient  case  to  be  met 
with  in  the  English  books,  is  the  case  of 
Hughes*  v.  Cornelius  (Raym.,  473;  2  Show,., 
242;  Signer,  59,  S.  C.)  Although  the  special 
verdict  in  that  case  falsified  the  sentence  of 
condemnation  in  the  French  admiralty,  yet 
the  court  admitted  the  sentence  to  be  true;  and 
although  the  suit  was  trover,  in  which  noth- 
ing but  the  direct  effect  of  the  sentence  came 
necessarily  into  view;  yet  the  court,  in  giving 
judgment,  laid  down  this  general  doctrine, 
applicable  equally  to  collateral  effects,  viz., 
that  they  ought  to  give  credit  to  foreign  sen- 
tences of  admiralty,  and  take  them  to  be  ac- 
cording to  right,  and  not  to  examine  into  their 
proceedings;  that  this  was  agreeable  to  the  law 
of  nations,  and  sentences  in  courts  of  admi- 
ralty ought  to  bind  generally,  according  to 
that  law ;  that  if  the  party  was  aggrieved  he 
ought  to  petition  the  king,  it  being  a  matter  of 
government,  and  if  there  appear  cause,  he  will 
instruct  his  liege  ambassador,  and  on  failure 
of  redress,  will  grant  letters  of  reprisal. 

This  decision,  and  the  principle  contained 
in  the  judgment,  were  afterwards  cited  and 
sanctioned  by  Lord  Holt,  and  again  by  Lord 
Hardwicke,  and,  lastly,  by  Professor  Woodde- 
son,  in  the  course  of  his  Vinerian  Lectures. 
(Carth.,  32;  Atk.,  49;  2  Wood.,  456.) 

A  similar  doctrine  has  been  repeatedly  ad- 
vanced, and  whenever  the  occasion  arose.  In- 
stances of  this  are  to  be  met  with  in  the  suc- 
cessive decisions  of  the  chancellors  Notting- 
ham, King,  and  Hardwicke.  (1  Vern.,  21;  2 
Str.,  733  ;  1  Vezey,  159.) 

In  the  case  of  'Gage  v.  Bulkeley  (Ridgeway, 
266,  267),  before  Lord  Hardwicke,  Sir  D.  Ry- 
der, who  was  then  Attorney-General,  laid 
down  the  rule  in  its  fullest  latitude,  and  as 
being  well  established.  He  said  that  foreign 
judgments  were  received  in  England  as  con- 
clusive evidence,  and  had  the  same  regard  paid 
to  them,  for  the  sake  of  justice  and  public  con- 
venience, as  sentences  given  in  the  courts  of 
JOHNSON'S  CASES,  2. 


admiralty,  or  ecclesiastical  courts  at  home; 
and  he  cited  the  case  of  Hainden  v.  The  East 
India,  Company,  which  was*determined  [*146 
upon  appeal,  in  the  House  of  Lords;  and  on 
the  ground  that  the  sentence  of  a  Dutch  ad- 
miralty was  conclusive  evidence,  it  being  res 

\judicata,  and  could  not  be  unravelled  or  re-ex- 
amined. Although  what  he  said  was  merely 
arguendo,  yet,  coming  from  such  an  eminent 
counsel,  and  appearing  to  be  taken  for  granted 
by  the  court,  it  is  pretty  good  evidence  of  the 
prevailing  sense  on  the  subject. 

Here  we  may  also  notice  the  answer  of  the 
judges  (of  whom  Sir  D.  Ryder  was  one)  to  the 
Prussian  memorial,  as  being  a  document  of 
very  high  authority,  and  bearing  on  the  ques- 
tion before  us.  (1  Col.  Jurid.,  101,  102,  106.) 
It  is  there  stated  that  prize  courW are  governed 
by  the  maritime  law  of  nations;  that  in  every 
country  there  is  a  court  of  review,  to  which 
the  parties  who  think  themselves  aggrieved 
may  appeal;  that  if  no  appeal  be  offered,  it  is 
an  acknowledgment  of  the  justice  of  the  sen- 
tence by  the  parties  themselves,  and  is  conclu- 
sive; that  captures  have  been  immemorially 
judged  of  in  that  way  in  every  country  of 
Europe,  and  with  the  approbation  of  the  pow- 
ers at  peace;  that  every  other  method  and  trial 
would  be  impracticable  and  unjust;  and  that, 
if  prize  courts  proceed  contrary  to  the  law  of 
nations  and  treaties,  in  re  minime  ditbia,  then, 
and  not  till  then,  the  neutral  has  a  right  1<> 
complain. 

This  answer,  and  the  principle  contained  in 
the  case  of  Hughes  v.  Cornelius,  may  be  con- 
sidered as  a  correct  commentary  on  the  law  of 
nations,  relative  to  the  effect  which  judicial 
sentences  in  one  country  are  to  receive  in  the 
courts  of  another.  (Grotius,  1.  3,  ch.  2,  sec.  5; 

j  Vattel,  1.  2,  sec.  84,  85;  Martens,  104,  105;  Er- 

j  skine's  Institutes,  vol.  2,  735.) 

After  such  a  repeated  and  general  recogni- 
tion of  the  principle,  we  are  prepared  to  expect 
an  application  of  it  (for  that  is  all  that  is  now 
wanted)  to  a  case  precisely  the  same  with  the 
one  before  the  court.  We  do,  accordingly, 
find  it  stated  as  law,  in  Buller's  JVm  Prius 
(p.  244),  that  in  an  action  upon  a  policy  of  in- 
surance, with  a  warranty  that  the  ship  was 
Swedish,  the  sentence  of  a  French  admi- 
ralty *court,  condemning  the  ship  as  [*147 
English  property,  was  held  conclusive  evi- 
dence. The  same  case  was  previously  stated 
in  the  Theory  of  Evidence  (Published  in  1761, 
p.  37),  to  have  been  decMed;  and  Park  gives 
us  a  particular  report  of  another  decision  of 
the  like  kind,  before  Lord  Mansfield,  at  the 
sittings  after  Hilary  Term,  4  Geo.  III.,  in  the 
case  of  Fernandez  v.  De  Costa.  A  ship  was 
insured,  and  warranted  a  Portuguese;  she  was 
libeled,  and  condemned  in  a  French  court  as 
not  being  Portuguese;  and  although  the  plaint- 
iff gave  partial  evidence  of  her  being  Portu- 
guese, yet,  when  the  defendant  produced  the 
sentence,  it  concluded  the  cause. 

Where,  then,  we  can  discover  a  doubt  as 
to  what  was  the  law  at  the  time  of  our  Revo- 
lution? Upon  what  ground  can  we  pause, 
even  to  raise  a  conjecture,  whether  the  Court 
of  King's  Bench,  in  the  case  of  Bernardi  v. 
Notteux  (Doug.,  575),  being  the  first  cause  after 
the  year  1776,  created  a  new  rule,  when  even 
the  counsel  for  the  plaint  IS,  at  the  very  outset 


147 


SUPREME  COURT,  STATE  OF  XEW  YORK. 


1801 


of  the  argument,  admitted  that  if  the  sentence 
of  the  French  admiralty  had  proceeded  on  the 
ground  of  the  property  not  being  neutral,  the 
plaintiff  would  have  been  concluded. 

Xor  do  I  think  that  the  English  decisions, 
since  the  year  1776,  are  to  be  thrown  wholly  out 
of  view,  although  they  are  confessedly  of  no 
binding  authority. 

In  addition  to  the  consideration  of  the  well 
known  character  of  their  judges,  we  are  to 
observe  that  their  tribunals  and  ours,  study  and 
pursue  the  same  code  of  law  and  equity;  and 
that  they  are  certainly  not  more  liable  than  we 
ourselves  to  misapprehend  the  authentic  rec- 
ords and  oracles  of  the  common  law.  If  the 
question,  therefore,  were  otherwise  involved 
in  doubt,  a  series  of  uniform  decisions  in  the 
English  courts  for  the  last  twenty  years  cannot 
but  be  considered,  and  that,  too,  without  being 
unduly  addicted  jurare  in  verba  inagtetri,  as  a 
very  sufficient  cause  to  remove  it.  (Doug., 
375,  610,  614  to  617,  705;  Barzittay  v.  Lewis,  De 
Souza  v.  Ewer,  and  Saloucci  v.  Woodmason, 
cited  by  Park.,  7  Term  Rep.,  523,  681,  705;  8 
Term  Rep.,  196,  232.) 

148*]  *Having  thus  ascertained,  at  least 
to  my  satisfaction,  that  by  the  law,  as  it  stood 
in  1776,  a  sentence  of  condemnation  abroad, 
on  a  direct  point  in  question,  is,  in  a  collateral 
suit  by  the  insurer,  conclusive  evidence  of  a 
breach  of  his  warranty,  so  that  no  evidence 
can  be  admitted  to  impeach  it,  I  have  done  all 
that  I  undertook  to  do.  I  might  here  rest  the 
argument.  Whatever  opinion  may  be  enter- 
tained as  to  the  justice  or  policy  of  the  rule  is 
not  to  the  purpose.  Our  duty  is  jus  dicere,  non 
jus  dare.  I  may  be  mistaken,  but  it  appears, 
however,  to  me,  that  all  the  reasons  which 
have*established  the  rule  relative  to  domestic 
courts,  having  exclusive  jurisdiction  of  a  sub- 
ject, apply  with  peculiar  force  to  a  case  like 
the  present. 

Courts  of  law  are  inadequate  to  determine 
the  question  of  prize;  and  to  overhaul  the 
sentence  is  in  reality  trying  that  question. 
The  circumstances  that  go  to  constitute  prize 
are  oftentimes  complex.  The  property  may 
be  deeply  masked,  the  papers  double,  or  every 
requisite  paper  may  be  regular,  and  yet  the 
conduct  of  the  ma'ster  such  as  to  cause  the 
property  to  lose  its  privilege  of  neutrality. 
None  but  a  court  clothed  with  the  mode  of 
proof,  the  summary  powers,  the  .  enlarged  dis- 
cretion of  a  prize  court,  can  seize  and  sift  every 
circumstance.  The  -maritime  law  of  Europe 
has,  therefore,  very  wisely  established  a  pecu- 
liar court  for  the  exclusive  jurisdiction  of 
prize.  It  is  there  that  the  assured  should  vindi- 
cate his  property,  and  if  aggrieved,  he  should 
carry  his  repeal  to  a  court  of  review.  There 
is  great  weight  in  the  observation  that  this  is 
the  true  construction  of  the  engagement,  on 
the  part  of  the  assured.  By  representing,  or 
warranting  his  property  to  be  neutral,  the  as- 
sured undertakes  not  only  that  it  is  so  in  fact, 
that  it  shall  be  entitled  to  neutral  privilege 
throughout  the  voyage.  (8  Term.  Rep.,  234, 
444.)  A  warranty  of  neutrality  means  that 
the  ship  shall  maintain  a  neutral  conduct,  and 
not  forfeit  it  during  the  voyage.  To  construe 
the  engagement  to  be  less'  than  that,  is  in  a 
great  degree  to  render  it  idle  and  nugatory. 
149*]  "To  implement  this  warranty,"  *says 
470 


a  very  sensible  writer  on  insurance  (Millar,  p. 
496),  "the  ship  or  goods  must  be  neutral,  in* 
conception  of  that  nation  from  whom  danger  of 
seizure  is  apprehended."  On  such  a  represen- 
tation, or  warranty,  the  insurer  lays  out  of  view 
the  risk  of  loss,  by  reason  of  the  non-neutrality 
of  the  property.  That  risk  the  assured  takes 
upon  himself,  and  having  in  his  hands,  exclu- 
sively, all  the  means  to  do  it,  he  is  bound  to 
make  good  his  averment,  whenever,  and 
wherever  the  neutrality  of  the  property,  or  its 
privilege  as  such,  is  called  in  question.  If  he 
fails  to  do  it,  he  must  bear  the  loss;  and  if 
foreign  sentences  were  liable  to  be  re-examined 
here,  I  should  still  incline  to  think  that  in  the  case 
of  an  express  warranty,  the  assured,  and  not 
the  insurer,  takes  upon  himself  the  risk  of  the 
condemnation,  right  or  wrong.  Whether  that 
would,  or  would  not  be  the  case,  on  a  repre- 
sentation merely,  I  am  not  as  yet  prepared  to 
say;  and,  therefore,  in  those  suits  where  there 
was  no  warranty,  but  only  a  representation,  I 
should  choose  to  rest  my  opinion  entirely  on 
the  first  ground,  of  the  faith  due  to  the  foreign 
sentence. 

The  result  of  my  opinion,  accordingly,  is 
that  the  plaintiff  is  not  entitled  to  recover  in 
this  cause,  beyond  the  return  of  his  premium. 

BENSON,  J.  The  principal  inquiry  in  this 
case  is  respecting  the  effect  of  a  foreign  con- 
demnation; the  property  in  the  goods  con- 
demned being  intended*,  in  the  insurance  of 
them,  as  neutral,  is  not  the  condemnation  con- 
clusive against  the  assured?  This  question  has 
heretofore  come  before  us,  but  until  the  argu- 
ments which  have  taken  place  in  the  present 
cause,  it  does  not  appear  to  me  to  have  been  so 
fully  examined  as  the  difficulty  and  import- 
ance of  it  require. 

A  condemnation  may  be  viewed  as  consist- 
ing in  its  cause  and  in  its  principles,  as  to  be 
discriminated  from  each  other;  and  the  princi- 
ples may  be  divided  into  those  which  relate  to 
the  law,  and  those  which  relate  to  the  fact, 
comprehending  in  the  fact,  the  proofs. 

*The  distinction  between  the  cause  [*15O 
and  the  principles  of  a  condemnation  is  exem- 
plified in  a  case  read  on  the  argument  from 
a  late  English  reporter  (7  Term  Rep.,  681, 
Geyer  v.  Aguilar),  where  one  of  the  judges 
distinguishes  between  them  as  here  intended. 
He  thus  expresses  himself:  "The  ground  on 
which  the  courts  of  France  proceeded,  was 
that  this  was  a  capture  of  enemy's  properly; 
and  it  certainly  is  not  contrary  to  the  law 
of  nations  to  condemn  a  ship  on  that  ground. 
Whether  or  not  those  courts  arrived  at  that 
conclusion  by  proper  means,  I  am  not  at 
liberty  to  inquire."  This  is  as  much  as  if  he 
had  said,  the  cause  of  the  condemnation,  as 
declared  by  the  courts  in  France,  is  that  the 
ship  was  enemy's  property,  and  which  is  a  suffi- 
cient cause  of  condemnation  by  the  law  of 
nations;  but  what  were  the  principles  of  the 
condemnation,  namely,  what  were  the  proofs, 
or  what  was  the  fact,  as  found  by  those 
courts  from  the  proofs,  or  what  was  the  law  as 
adjudged  by  them  to  arise  from  the  fact,  I  am 
not  at  liberty  to  inquire. 

Insurances  may  be  divided  into  general  and 

special.     A    general  insurance   is   where  the 

perils  insured  against  are  such  as  the  law  would 

JOHNSON'S  CASES,  2. 


1801 


VANDENHEUVEL  v.  THE  UNITED  INSURANCE  COMPANY. 


150 


imply  from  the  nature  of  the  contract  of  a 
marine  insurance  considered  in  itself,  and  sup- 
posing none  to  be  expressed  in  the  policy.  A 
special  insurance  is  where,  in  addition  to  the 
implied  perils,  further  perils  are  expressed  in 
the  policy;  and  they  may  either  be  specified, 
or  the  insurance  may  be  against  all  perils. 

We  have  had  an  instance  of  each  kind  of 
these  special  insurances;  of  the  latter,  in  the 
•case  of  Goix  v.  Knox  (1  Johns.  Cases,  337), 
"where,  besides  the  usual  risks  enumerated  in 
printed  policies,  it  was  declared  by  a  clause  in 
writing  that  the  assurance  was  to  be  against 
.all  risks."  And  of  the  former,  in  the  case  of 
Gardiner  et  al.  v.  Smith  (1  Johns.  Cases,  141), 
where  the  insurance  was  against  the  risks, 
.among others,  "of  contraband  and  illicit  trade," 
.and  the  goods  were  seized  at  Jamaica,  while 
landing,  and  condemned  as  contraband  and 
illicit  by  the  law  of  that  place;  and  cases  may 
151*]  be  supposed,  where  *although  the 
property  is  insured  as  neutral,  the  insurer  may, 
nevertheless,  expressly  take  on  himself  the 
peril  of  condemnation  for  breach  of  blockade, 
or  for  any  other  specified  or  enumerated  cause; 
.and  in  every  such  case,  should  there  be  a  con- 
demnation, the  assured  must  be  allowed  to 
show,  either  by  the  condemnation  itself,  if  it 
furnishes  the  requisite  evidence,  and  if  not, 
then  by  such  matter  extraneous  to  it  as,  under 
the  circumstances  of  the  case,  may  be  admissi- 
ble in  evidence,  that  the  condemnation  was  for 
some  one  of  the  causes  specified  in  the  policy; 
and  so  far,  and  to  that  intent,  doubtless,  the 
condemnation  is  examinable  in  the  suit,  by  the 
insured  against  the  insurer. 

The  cases  at  bar,  are,  as  it  respects  the  perils 
of  condemnation,  cases  of  general  insurance, 
as  here  explained. 

Where  the  property  is  insured  as  neutral, 
the  law  intends  not  only  that  the  neutrality,  as  an 
ingredient  or  quality  in  the  property  or  own- 
ership of  the  goods,  then  exists,  but  likewise 
that  it  shall  be  preserved  during  the  con- 
tinuance of  the  insurance;  and,  consequently, 
that  there  shall  not  be  any  act  or  omission, 
•either  by  the  assured  himself,  or  by  others, 
whose  acts  or  omissions  may  in  that  respect 
be  deemed  to  affect  him,  to  forfeit  it;  and  the 
neutrality  constitutes,  as  it  were,  a  title,  the 
existence  and  preservation  of  which,  either  in 
himself,  or  in  the  other  persons,  if  any,  on  j 
whose  account  the  insurance  may  be  made,  or  j 
for  whose  benefit  it  may,  in  consequence  of  a 
subsequent  transfer  of  the  goods,  be  to  inure, 
the  assured  is  deemed  to  warrant;  and  this 
warranty,  from  the  assured  to  the  insurer,  is 
a  condition  of  the  insurance,  or  the  indemnity 
from  the  insurer  to  the  assured. 

Every  condemnation  is  either  rightful  or 
wrongful.  If  the  captured  goods,  being  duly 
•defended  in  the  court  of  the  captors,  by  alleg- 
ing and  proving  the  title  of  the  assured,  as 
above  defined,  should,  notwithstanding,  be 
condemned,  the  condemnation  will  be  wrong- 
ful. Every  other  condemnation  is  to  be  taken 
as  rightful,  including  a  condemnation  by  de- 
fault, no  person  appearing  to  defend  the  goods. 
152*]  *  Where  the  condemnation  is  wrongful, 
it  must  be  attributed  either  to  the  error  of  the 
judge,  as  it  relates  to  the  law,  or  as  it  relates 
to  the  fact  as  deduced  from  the  proofs;  or  to 
the  error  of  the  witnesses,  as  it  relates  to  the 
JOHNSON'S  CASES,  2. 


proofs,  in  testifying  differently  from  the 
truth;  and  whether  the  error,  either  of  the 
judge  or  witnesses,  be  innocent  or  wilful,  can 
never  affect  the  question  whether  the  assured 
hath  or  hath  not  a  right  to  controvert  the 
condemnation. 

If  the  assured  has  any  such  right,  he  must 
have  it  either  limitedly,  to  controvert  the 
principles  which  relate  to  the  law,  and  not 
those  which  relate  to  the  fact ;  or  those  which 
relate  to  the  fact,  and  not  those  which  relate 
to  the  law ;  if  he  is  to  controvert  those  which 
relate  to  the  fact,  still  he  is  to  be  confined  to 
the  proofs  as  they  were  before  the  judge  by 
whom  the  condemnation  was  pronounced ;  or 
he  must  have  the  right  unlimitedly,  or,  as  it  is 
expressed  in  the  case  of  Hughes  \.  Cornelius 
(2  Show.,  232),  to  controvert  the  condemna- 
tion, "  at  large." 

It  will  readily  be  perceived  that  as  the  prin- 
cipal question,  whether  the  assured  is  or  is 
not  to  be  concluded  by  the  condemnation, 
may  be  differently  decided ;  so  will  the  situa- 
tion of  the  insurer  be  varied  from  certainty  of 
safety,  to  the  mere  expectation  or  possibility 
of  it.  If  the  condemnation  is  to  be  conclusive 
against  the  assured,  then,  however,  there  may 
have  happened  a  "  capture,  a  taking  at  sea," 
and  so  the  case  within  the  very  terms  of  the 
policy;  yet  if,  further,  there  has  been  a  con- 
demnation of  the  goods,  the  insurer  is  safe  in 
an  absolute  sense;  but  if  the  assured  may  con- 
trovert the  condemnation,  the  safety  of  the 
insurer  then  becomes  uncertain,  of  course;  in 
like  manner,  though  in  less  degree,  may  the 
situation  of  the  insured  be  varied,  as  the  sev- 
eral questions  respecting  the  limitations  of  the 
right  of  the  assured  to  controvert  the  condem- 
nation, may  also  be  differently  decided. 

In  some  cases  it  may  be  more  favorable  for 
the  insurer  that  the  assured  should  controvert 
the  law  and  not  the  fact.  In  others,  again, 
that  he  should  controvert  the  fact  and  not 
*the  law;  and  it  must  ever  be  most  [*153 
favorable  to  the  insurer  that  the  assured 
should  be  precluded  from  producing  new 
proofs;  and  this  difference  of  situation  must 
be  viewed  as  material,  in  the  greater  number 
of  cases,  which  probably  will  happen;  not 
only  so,  but  some  may  easily  be  conceived, 
where,  as  it  respects  the  certainty,  or  possi- 
bility, that  the  assured  can,  or  cannot  succeed 
in  showing  the  condemnation  to  be  wrongful, 
may  wholly  depend  on  a  different  decision, 
ene  way  or  the  other,  of  these  questions, 
taken  singly.  Before,  therefore,  it  can  be  de- 
clared that  the  right  of  the  assured  to  contro- 
vert liie  condemnation  is  limited,  the  rule 
whereby  some  of  the  limitations  of  it  here 
suggested  are  to  be  adopted,  and  others  to  be 
rejected,  ought  to  be  shown.  It  may,  how- 
ever, be  safely  asserted  that  no  such  rule  ex- 
ists. The  limitations  themselves,  or  the  dis- 
tinctions, that  where  a  judgment  is  alleged, 
the  party  against  whom  it  is  alleged  may  con- 
trovert it,  as  to  the  law,  but  not  as  to  fact;  or 
as  to  fact,  but  not  as  to  the  law;  and  if  as  to 
the  fact,  that  he  is  still  to  be  concluded  as  to 
the  proof,  are  not  known  in  the  law;  and  1 
cannot  discern  them,  as  to  be  inferred  from 
anything  peculiar  in  the  contract  of  insurance; 
so  that  the  right  of  the  assured  to  controvert 
the  condemnation  not  being  susceptible  of 

471 


153 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


limitation,  if,  therefore,  he  has  the  right,  he 
must  have  it,  unlimitedly,  or  to  controvert  the 
condemnation  at  large. 

It  is  now  to  be  stated  that  where  the  prop- 
erty is  insured  as  enemy's  property,  and  there 
is  a  capture  by  an  enemy,  the  other  belliger- 
ent party,  it  is  inevitable  that  the  goods  will 
be  actually  and  rightfully  condemned.  ThejT 
are  as  much  lost  to  the  assured  as  if  they 
were  captured  by  a  pirate;  and  they  can  never 
happen  to  be  recovered  by  him  except  by  re- 
capture; and  he  may,  in  such  case,  abandon 
instantly  on  the  capture.  But  where  the 
property  is  insured  as  neutral,  there  are  means 
which,  as  to  be  distinguished  from  the  forcible 
or  physical  means  of  recapture,  may  be  de- 
nominated moral  means,  whereby,  until  a  con- 
demnation shall  have  taken  place,  it  is  pos- 
sible the  goods  may  be  recovered.  There 
1 54*]  *may  be  a  claim  and  defense  of  them 
in  the  court  of  the  captor.  Although  it  is 
stated  as  possible  only  that  the  goods  may,  by 
a  defense  of  them,  be  recovered;  yet,  if  it  was 
requisite  to  the  argument,  it  might  be  stated 
as  the  intendment  of  law  that  it  is  probable ; 
for  if  the  title  of  the  assured  should  be  duly 
alleged  and  proved,  and  the  goods  should,  not- 
withstanding, be  condemned,  the  condemna- 
tion, as  has  been  already  stated,  must  then  be 
attributed  to  the  error,  either  of  the  judge  or 
the  witnesses,  and  the  law  will  never  presume 
error  beforehand.  If,  however,  there  is  a 
possibility  only,  that,  by  a  defense  of  the 
goods,  a  condemnation  of  them  may  be  prevent- 
ed, it  is  sufficient  to  make  it  the  duty,  either  of 
the  assured  or  the  insurer,  to  defend  them,  or 
to  bear  the  loss,  if  they  should  be  condemned 
undefended;  but  it  will  be  perceived  the  law 
can  never  impose  it  on  the  insurer  to  defend 
them. 

Where  lands  are  granted  with  warranty,  if 
the  grantee  is  sued  by  a  person  claiming  a 
better  title  than  the  title  of  the  grantor,  he 
may,  as  it  were,  abandon  to  the  grantor;  he 
can  compel  him  to  appear  in  court,  and  de- 
fend the  land;  he  may  vouch  him,  and  there- 
by substitute  him  as  the  defendant  to  abide 
the  event  of  the  suit,  "  for  loss  or  gain; "  and 
he  is  the  party  to  be  presumed  best  cognizant 
to  the  title.  Such  is  the  rule  in  a  case  of  a  war- 
ranty, in  the  nature  of  a  general  contract  of 
''ndemnity  from  a  grantor  to  a  grantee;  but  if 
the  assured  may  abandon  to  the  insurer  on 
capture,  and  impose  the  defense  of  the  goods 
on  him,  the  rule  will  be  reversed;  the  war- 
rantor may  then  substitute  the  warranted,  as 
the  defendant,  and  the  defense  of  the  title  will 
then  be  imposed  on  the  party  to  be  presumed 
not  only  least  cognizant,  but  even  wholly  ig- 
norant of  it. 

The  warranty  in  a  grant  of  land  being  an 
indemnity  against  the  acts  of  others  claiming 
by  title,  and  consequently  not  against  entries 
by  persons  not  so  claiming,  nor  against  as- 
sumptions of  the  laud  by  the  public  authority 
of  the  State,  nor  as  to  any  matter  which  may 
happen  to  exist  thereafter;  it  may  be  said  to 
15o*]  be  an  indemnity  against  title  *only, 
and  not  against  casualty;  and,  accordingly,  if 
there  should  be  a  judgment  against  the  title  of 
the  grantor,  whether  rightful  or  wrongful,  he 
is  alike  held  to  indemnify  the  grantee  for  the 
loss  of  the  land ;  but  where  the  property  is  in- 
472 


sured  as  neutral,  the  warranty  of  the  title,  so- 
far  from  being  by  the  insurer  to  the  assured, 
it  is  by  the  assured  to  the  insurer ;  the  in- 
surance can  be  a  warranty,  or  an  indemnity, 
not  against  title,  but  against  casualty  only: 
against  tortious  acts  of  private  persons,  and  so- 
unauthorized  by  law,  or  the  acts  of  the  State, 
such  as  reprisals,  embargoes,  and  impress- 
ments; the  acts,  in  neither  case,  however,  pro- 
ceeding on  a  supposed  total  absence,  or  a  de- 
fect, or  forfeiture  of  the  title,  as  warranted  by 
the  assured.  Another  consequence,  therefore, 
of  a  supposed  right  in  the  assured  to  abandon, 
on  the  capture,  and  impose  the  defense  of  the 
goods  on  the  insurer,  will  be  that  the  in- 
surance will  thereby  be  essentially  changed 
from  being  an  indemnity  against  casualty 
only,  to  be  also  an  indemnity  against  title, 
and  against  a  want  of  that  very  title,  which, 
as  has  been  stated,  the  assured  warranted  to- 
be  existing,  and  that  it  should  be  preserved. 
Further,  if  the  assured  may  abandon  on  the 
capture,  he  is  entitled  also  to  sue  for  the  loss, 
and  the  insurer  must,  accordingly,  litigate  the 
suit,  in  expectation  that  it  may  be  in  his 
power  to  prove  either  that  the  property  was 
not  neutral,  or  that  the  neutrality  had  been 
forfeited,  and  so  a  breach  of  the  warranty, 
and  involving  as  a  consequence  that  the  goods 
may  be  rightfully  condemned;  or  he  must  pay 
the  loss  voluntarily,  and  also  instantly;  any 
credit  allowed  on  the  policy  being  wholly  of 
special  or  positive  contract  or  regulation,  and 
not  arising  from  the  insurance  considered  in  it- 
self. If  he  litigates  the  suit  on  the  policy.he  must 
relinquish  a  defence  of  the  goods  in  the  court 
of  the  captor,  or  expose  himself  to  the  palpable 
incongruity  of  insisting,  in  the  suit  by  the 
assured,  that  the  goods  may  be  rightfully  con- 
demned, and  of  insisting,  at  the  same  time,  in 
the  suit  by  the  captor,  that  they  are  neutral 
property;  *that  the  neutrality  has  [*15($ 
been  preserved,  and,  therefore,  that  they  can- 
not be  rightfully  condemned.  On  the  other 
hand,  if  he  voluntarily  pays  the  loss,  he  then 
precludes  himself  from  afterwards  alleging  "a 
breach  of  warranty;  for,  although  I  forbear 
from  giving  an  opinion  whether  the  insurer 
can  or  cannot  recover  back  the  money  paid  for 
a  loss,  as  having  paid  it,  not  knowing  at  the 
time  certain  facts  which,  if  he  had  known,  he 
might  thereby  have  discharged  himself  from 
the  insurance;  yet,  I  have  no  difficulty  in  de- 
claring that  the  facts  must  be  such  as  it  may 
be  supposed  he  could  not  be  so  apprised  of 
them  as  to  be  put  on  an  inquiry,  or  to  be  on 
his  guard  respecting  them,  which,  however, 
can  never  be  said  to  be  the  case  where  goods, 
being  insured  as  neutral,  are  captured  by  a 
belligerent;  for  it  is  to  be  intended,  as  will 
be  more  particularly  stated  hereafter,  that  they 
were  captured  on  the  ground  of  being  enemy's 
property,  although  insured  in  the  name  of  a 
neutral.  If  the  assured,  therefore,  will,  not- 
withstanding, voluntarily  pay  the  loss,  he  will 
then  be  deemed  forever  to  have  waived  or 
renounced  his  right  to  allege  the  breach  of 
warranty.  The  case  will  be  within  the  general 
rule  that  if  a  party  shall  omit  to  allege  a  fact 
existing  at  the  time,  and  whereby  he  might 
have  defended  himself  against  a  recovery,  he- 
shall  not,  as  against  the  other  party  in  the  suit, 
be  allowed  to  avail  himself  of  it  thereafter. 
JOHNSON'S  CASES,  2. 


1801 


VANDENHETJVEL  v.  THE  UNITED  INSURANCE  COMPANY. 


156 


This  rule  was  recognized  in  the  Court  of 
Errors,  in  the  case  of  Le  Ouen  v.  Oowrneur 
and  Kemble  ( 1  Johns.  Cases,  436),  where  the 
appellant  having  placed  goods  in  the  hands  of 
the  respondents,  as  his  agents,  to  be  sold,  and 
having  himself  made  a  contract  for  the  sale  of 
them  to  Gomez  &  Co.,  but  leaving  the  sale 
still  to  be  perfected  by  the  respondents,  the 
notes  given  in  payment  were  accordingly 
made  to  them  in  their  own  names,  and  the 
vendees  having,  before  the  notes  became  pay- 
able, proceeded  to  France  with  the  goods;  he 
demanded  from  the  respondents  an  authoriza- 
tion to  receive  there  whatever  sum  should  re- 
main of  the  proceeds  of  the  goods,so  sold,  on  his 
account,  to  the  above  vendees,  after  first  de- 
157*]  ducting  *and  reserving  at  their  disposal 
such  sum  as  should  be  completely  sufficient  to 
cover  them,  for  the  general  balance  of  their 
account;  and  they  refusing  to  give  him  the 
authorization,  he  brought  a  suit  against  them 
in  this  court  for  the  refusal,  as  for  a  breach  of 
orders,  whereby  they  had  become  instantly 
liable  for  the  value  of  the  whole  of  the  sale, 
and  on  a  special  verdict  he  had  judgment,  and 
to  the  amount  so  claimed  by  him.  The 
respondents  thereupon  filed  their  bill  in  the 
Court  of  Chancery,  to  the  affect  of  a  suit  at 
law,  to  recover  back  a  payment,  to  enjoin  him 
from  proceeding  on  the  judgment,  suggesting 
that  subsequent  thereto,  .on  the  trial  in  the  suit 
which  they  had  brought  on  the  notes  against 
the  vendees,  a  verdict  had  been  found  for  the 
defendants,  oh  the  sole  ground  of  a  fraud 
having  been  practiced  by  the  appellant  in  the 
sale  of  the  goods,  by  affirming  or  warranting 
them  to  be  of  a  better  kind  or  quality  than 
they  were,  and  the  Chancellor  ordered  an  issue 
at  law  to  try  the  fraud.  A  question,  however, 
was  reserved  by  the  counsel  of  both  parties,  to 
be  determined  as  a  preliminary  to  the  trial, 
whether  the  respondents  were  not  precluded 
by  the  antecedent  circumstances,  from  insist- 
ing upon  the  alleged  fraud  as  a  ground  of 
relief?  The  Chancellor  decreed  they  weje 
not  so  precluded,  and  confirmed  the  order  for 
the  trial,  and  on  the  appeal  the  decree  was 
reversed,  and  the  respondents'  bill  in  the  Court 
of  Chancery  was  ordered  to  be  dismissed.  If 
therefore  the  assured  may  abandon  on  the 
capture;  and  as  the  insurer  must  accept  the 
abandonment,  and  pay  the  loss,  then,  although 
it  might  afterwards  be  proved  undeniably,  in 
the  court  of  the  captor,  that  the  property  was 
not  neutral,  the  insurer  would,  notwithstand- 
ing, be  without  any  means  of  restitution. 

These  considerations  are  sufficient  to  show 
that  the  assured  cannot  abandon  on  the  capt- 
ure; that  it  is  necessary  the  goods  should  be 
defended  in  the  court  of  the  captor;  that  the 
defence  of  them  remains  on  him;  and  that  he 
cannot  cast  it  on  the  insurer.  It  is,  however, 
at  the  same  time,  to  be  stated  that  if,  having 
158*]  made  a  defence  in  the  *court  of  the 
captor,  the  assured  may  still  afterwards  con- 
trovert the  condemnation  at  large,  in  the  suit 
on  the  policy,  it  is  obvious  such  previous 
defence  can  be  estimated  as  a  mere  formality 
only;  that  nothing  is  gained  by  it  to  the  insurer, 
but  that  he  is  left  in  the  like  disadvantageous 
situation  as  if  he,  and  not  the  assured,  had  to 
defend  the  goods  in  the  court  of  the  captor; 
for  although  in  the  suit  on  the  policy,  instead 
JOHNSON'S  CASES,  2. 


of  defending  he  will  have  to  defeat  the  title  of 
the  assured,  still  the  one  case,  equally  as  the 
other,  involves  the  truth  or  falsehood  of  the 
same  facts.  The  reasoning,  therefore,  from 
what  has  been  stated,  terminates  in  this  con- 
clusion, that  the  right  of  the  assured  to  con- 
trovert the  condemnation,  if  it  does  exist,  can 
exist  no  otherwise  than  to  controvert  it,  at  large; 
that  it  his  duty  to  defend  the  goods  against  a 
condemnation  in  the  court  of  the  captor,  and 
that  the  right  and  the  duty  being  incompatible, 
the  right  must  be  declared  not  possible  to 
exist.  Lest,  however,  the  reasoning,  as  it  may 
respect  the  question  whether  the  assured  can 
or  cannot  abandon  instantly  on  the  capture, 
may  be  considered  as  inconclusive  and  unsat- 
isfactory, unless  it  be  shown  when  he  can 
abandon,  it  may  be  requisite  still  briefly  to 
state  that  besides  the  case  of  a  capture  by  an 
enemy,  the  opposite  belligerent  party,  where 
the  goods  are  insured  as  enemy's  property, 
and  that  of  a  capture  by  a  pirate,  there  is 
another  case  where  the  assured  may  abandon 
on  the  capture;  that  is,  in  case  of  a  capture  by 
way  of  reprisal,  and  which,  indeed,  is  in  the 
nature  of  a  capture  by  an  enemy.  Every 
other  capture  being  necessarily  by  a  friend,  in 
relation  to  the  captured,  must  be  intended  to 
be  in  order  that  the  goods  are  to  be  carried  into 
a  port  of  the  captor,  for  a  regular  and  author- 
ized examination  or  adjudication,  whether 
they  are  lawful  prize  or  not,  either  as  being 
covertly  enemy  property,  or  if  neutral,  that 
the  neutrality  has  become  forfeited;  and  the 
assured  being  held  to  follow  the  goods  and 
defend  them,  and  the  condemnation  being 
conclusive  against  him,  should  they  be  con- 
demned, it  results  that  he  can  abandon  only  in 
the  event  *of  their  being  restored  to  [*15O 
him,  and  the  voyage,  in  consequence  of  the 
capture  and  detention,  broken  up;  and  if  the 
insurer  shall,  thereupon,  pay  the  loss,  then, 
whatever  right  or  remedy  there  may  be  against 
the  captor,  will  inure  to  his  benefit. 

The  practice  in  France  has  been  urged  as  a 
precedent;  and  Emerigon  has  been  read  on  the 
argument,  to  show  what  is  there  received  as 
law  on  the  subject.  "  The  act  of  the  prince  is 
put  in  the  class  of  casualties  (La  classe  des 
cas  fortuits);  and  such  also  is  the  case  (11  en  est 
de  meme  du  fait)  as  to  the  unjust  sentence 
of  a  magistrate;  and  it  is  of  no  importance 
whether  the  injustice  proceeds  from  the  cor- 
ruption of  the  judge,  or  his  ignorance;  so  that 
it  is  then  certain  that  the  insurers  shall  answer 
for  an  unjust  condemnation  pronounced  by  the 
tribunal  of  the  place  into  which  the  captured 
ship  shall  be  carried;  judgments  rendered  by 
foreign  tribunals  being  of  no  weight  in  France 
against  Frenchmen,  as  the  cause  is  to  be  de- 
cided anew:  whence  it  follows  that  a  judg- 
ment of  condemnation  pronounced  by  an 
enemy  tribunal,  is  no  proof  that  there  has  been 
a  concealment  of  the  real  person  for  whose 
account  the  insurance  was  made  (que  U  veritable 
pour  wmpte  ait  ete  cache),  nor  any  title  (un  titre) 
which  the  insurer  may  allege  to  avoid  paying 
the  loss.  (Emerigou,  ch.  12,  sec.  20.) 

The  last  sentence  may  be  expressed  in  other 
words;  "  such  if,  our  interpretation  of  the  con- 
tract between  the  assured  and  insurer,  as  to 
the  right  of  the  assured  to  controvert  a 
foreign  condemnation,  the  property  being  in- 


159 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


sured  as  neutral."  The  argument,  as  con- 
tained in  what  is  here  cited,  is,  that  an  insur- 
ance being  an  indemnity  against  casualty,  and 
an  unjust  foreign  condemnation  being  a  casu- 
alty, an  insurance  is,  therefore,  an  indemnity 
against  an  unjust  foreign  condemnation;  and 
the  act  of  the  prince  being  a  casualty,  the 
proof  of  the  minor  term  in  the  syllogism  con- 
sists in  an  assertion  that  the  act  or  unjust 
sentence  of  a  magistrate  is  to  be  classed  equally 
16O*]  with  the  act  of  a  prince,  *among  casu- 
alties; whereas,  it  is  difficult  to  conceive  two 
acts  less  of  the  same  class  or  nature,  and 
especially  as  it  respects  assured  and  insurer, 
than  the  act  of  a  prince  in  the  exercise  of 
mere  sovereignty,  arresting  goods  either  for 
permanent  appropriation  or  for  temporary 
use  or  detention  only,  and  the  act  of  the  mag- 
istrate in  function  as  a  judge  between  captor 
and  captured,  condemning  the  goods  as  for- 
feited to  the  captors.  The  act  of  the  prince 
is  arbitrary,  and  can  be  justified  only  from 
necessity,  or  for  reasons  of  state;  and  may  con- 
sist with  an  admission  of  a  perfect  title  to  the 
goods  in  the  captured,  the  person  from  whom 
they  may  be  taken;  whereas  the  act  of  the 
magistrate  is  judicial,  and,  if  right,  can  be 
only  so  as  warranted  by  the  law  of  prop- 
erty, and  is  in  denial  of  the  title  of  the  cap- 
tured. In  case  of  an  arrest  by  a  prince,  the 
right  of  action  of  the  assured  accrues  by  the 
arrest;  and,  therefore,  whether  it  oan  be  justi- 
fied or  not,  is  never  brought  into  question; 
but  where  there  is  a  condemnation  by  a  magis- 
trate, the  right  of  action  does  not  accrue  by  the 
condemnation  itself ;  it  can  only  be  conceived 
to  accrue  by  the  supposed  injustice  of  it.  If 
the  arrest,  the  act  of  the  prince,  is  of  that  class 
of  acts  for  which  the  insurer  is  to  answer; 
then  it  is  immaterial  whether  it  is  a  foreign  or 
domestic  arrest  (if  the  term  ' '  domestic  "  may, 
for  the  sake  of  brevity,  be  used  and  applied  to 
an  arrest  by  a  prince,  and  a  condemnation  by 
a  magistrate,  to  distinguish  it  as  having  hap- 
pened in  the  same,  and  not  in  a  different  nation 
from  that  where  the  assured  shall  have  sued 
on  the  policy);  the  insurer  is  equally  to 
answer  for  the  one  as  the  other;  but  as  it  re- 
lates to  a  condemnation,  the  distinction 
between  foreign  and  domestic  *is  essential;  the 
right,  as  contended  for,  being  to  controvert  a 
foreign  condemnation  only;  and,  conse- 
quently, a  domestic  condemnation  is  always 
to  be  received  as  conclusive  against  the  as- 
sured. Hence  it  is  evident  that  if  an  unjust 
sentence  of  a  magistrate  is  a  casualty,  for 
which  the  insurer  is  to  answer,  it  cannot  be  so, 
as  being  of  the  same  class  with  the  act  of  the 
prince;  or  that  if  it  should  be  admitted 
161*]  *to  be  a  casualty,  as  being  of  the  same 
class,  or  like  an  act  of  the  prince,  then,  as  the 
insurer  is  equally  to  answer  for  the  arrest, 
whether  it  is  domestic  or  foreign,  so  ought  he, 
in  like  manner,  to  answer  for  the  condemna- 
tion, whether  it  is  domestic  or  foreign;  and, 
therefore,  that  as  far  as  the  argument  for  the 
right  of  the  assured  to  controvert  a  condem- 
nation, depends  on  a  supposed  similitude  be- 
tween an  unjust  condemnation  by  a  magistrate 
and  an  arrest  by  a  prince,  and  so  far  as  it  also 
depends  at  the  same  time  on  the  distinction 
between  a  foreign  and  domestic  condemnation, 
and  that  the  right  is  only  to  controvert  the 
474 


former  but  not  the  latter,  it  is  at  variance 
with,  and,  consequently,  defeats  itself. 

Emerigon,  in  further  support  of  the  asser- 
tion ' '  that  an  unjust  condemnation  is  a  casualty 
for  which  the  insurer  is  to  answer,"  refers  to 
Roccus,  Not.  54.  "  Merces  captce  a  potestate,  sen. 
judice  justitiam  administrante  in  iUo  loco,  aut  a 
populo,  aut  ab  alia  quacunque  persona  per  vim, 
absque  pretii  solutione,  tenentur  assecuratores 
solvere  cestinuitionem  dominis  mercium,  facia 
priiis  per  dominos  mercium  cessione  ad  beneficium 
assecurat&i'um  pro  recuperandis  illu  mercibux, 
Del  pretio  ipsorum  a  capientibus,  ut  pi'obat 
Stracc:  De  Assecural ;  6  loss:  20,  el  sequitur 
Joan;  De  Evia,  in  Labyrint:  Commer.  Naval, 
lib.  3,  ch.  14.  numb.  27:  et  melius  fundatur  ex 
dictis  a  Santer;  De  Assecurat,  pars  4,  num.  20: 
ubi  adducit  casum  de  injustitia  facia,  ab  aliqvo 
judice  ex  qua  merces  amittantur  vel  damnum 
aliquod  sentiant,  an  comprehendatur  sub  promix- 
sione  casus  fortuiti,  et  assecurator  teneatur? 
Adducit  Bart.,  in  L.,  exceptions  col. :  penult,  in 
fin:  ff:  defidejusso;  ubi ittud,  quod  judex  factn 
injuste,  quoad  paries,  dicitur  casus  fortuitus,  et 
pertinet  ad  emptorem  rei,  et  sic  mdetur  in 
assecuratione,  quod  pertinet  ad  ilium  gut  in  se 
suscepit  casum  fortuitum. "  I  do  not  possess  the 
authors  here  referred  to  by  Roccus,  but  I  find 
the  last,  Bartolus,  referred  to  by  Perezius,  a 
writer  on  the  civil  law.  Recourse,  therefore, 
must  be  had  to  that  law  to  discover  the 
evictions  of  the  things  sold  (the  condemnation 
intended  by  him  as  casualties  *(casus  [*162 
fortuiti),  and  so  belonging  to  the  buyer  (qui 
pertinent  ad  emptorem),  to  bear  the  loss  him- 
self, as  distinguished  from  those  for  which  tin- 
seller  is  to  answer,  in  order  thereby  further  to 
discover  whether  in  a  suit  judicially  heard  and 
determined  between  captor  and  captured,  a 
condemnation  of  the  goods  as  a  prize  to  the 
captors,  for  want  of  title  in  the  captured,  and 
alleged  to  be  wrongful,  is  an  eviction  of  the 
captured  (the  assured),  for  which  the  insurer 
is  to  answer?  "  Tenetur  de  evictione  venditor — 
Porro  evicta  re  datur  emptori  actio  adversum 
v&nditorem.  Est  ex  empto  actio,  qua  inest 
natura  contractus — Cessat  evictions  proBstatio  ob 
culpam  emptoris — Culpam  committet  emptor, 
neque  de  evictione  agere  potest,  si,  cum  posxef 
venditori  denunciare,  non  denunciaverit  motam 
controversiam,  utque  judicio  adesset  et  rem 
defenderet;  nam  venditori  poterat  fuisse  junta 
defenisionis  causa  utpote  scienti  melius  rei  a  se 
venditm  jus  et  conditionem — Ac  sic  in  causa, 
evictionis  sententia  lata  contra  emptorem  ei  sit 
regressus  contra  venditorem,  si  vocatus  ab 
emptore  venditor  in  judicio  comparuerit  ad  rei 
defensionem  earn  que  suscepent,  quia  nihil  eat 
quod  imputetur  emptori,  qui,  ut  requiritur, 
denunciavit  venditori  motam  litem,  cui,  quod  earn 
defendere  non  potuerit,  imputandum  erit." 
(Perezii  Prcelect,  in  lib.  8,  cod.,  tit.  45,  de 
evictioneb.)  From  these  passages,  it  is  evident 
that  the  evictions  intended  by  Bartolus  to  be 
deemed  casualties,  and  so  the  loss  by  them  to 
be  borne  by  the  buyer,  must  be  of  a  different 
class  or  kind  from  an  eviction  for  the  want  of 
title  in  the  seller,  he  having  been  vouched  to 
appear  and  defend  his  title  (vocatus  ut  in  judi- 
cio compareat  ad  rei  defensionem);  and  the  civil 
law,  as  to  the  warranty  from  the  seller  to  the 
buyer,  in  respect  to  the  eviction,  or  other  act 
whereby  the  buyer  may  lose  the  thing  sold, 
JOHNSON'S  CASES,  2. 


1801 


VANDENHEUVEI,  v.  THE  UNITED  INSURANCE  COMPANY. 


162 


when  the  loss  is  to  be  borne  by  the  buyer,  and 
when  the  seller  is  to  answer  for  it,  being  the 
same  with  our  own  law,  it  is  not  necessary,  as 
an  answer  to  the  argument,  from  the  supposed 
analogy  between  the  case  of  seller  and  buyer, 
and  the  case  of  assured  and  insurer,  to  add  to 
163*]  what  *has  already  been  stated  in  com- 
paring or  contrasting  a  warranty  in  a  grant  of 
lands  with  an  insurance,  the  property  being 
insured  as  neutral;  and  it  only  remains  to  be 
remarked  on  Emerigon,  considered  as  an 
authority,  that  Roccus  himself,  on  whom  he 
relies,  does  not,  by  the  act  of  the  judge  in 
taking  the  goods,  and  for  which  the  insurer  is 
to  answer,  intend  a  judicial  act  or  procedure 
between  captor  and  captured,  in  a  case  of  tak- 
ing or  capturing  goods  as  lawful  prize;  the 
taking,  as  he  describes  it,  being  within  the 
territory  where  the  judge  has  jurisdiction 
{captcB  judice  justitiam  administrante  in  itto  loco); 
but  a  taking  as  a  prize,  it  is  to  be  supposed, 
would  have  been  mentioned  by  him  as  a  tak- 
ing at  sea.  That  the  injustice  of  the  taking 
consists  in  its  being  without  paying  for  the 
goods  (absque  solutione  pretii),  necessarily  im- 
porting that  the  captured,  the  person  from 
whom  they  were  taken,  was  entitled  to  be 
paid  for  them,  and  which  again  necessarily 
affirms  his  title  to  them;  but  when  the  goods 
are  taken  from  the  captured,  and  adjudged  to 
the  captors,  the  injustice,  if  any,  as  it  respects 
the  act  of  the  judge,  consists  in  an  error  in 
him,  in  disaffirming  any  title  in  the  captured; 
but  not  in  his  awarding  the  goods  to  the  cap- 
tors, without  any  recompense  to  the  captured. 
The  official  act,  the^fore,  of  the  magistrate, 
in  taking  the  goods,  intended  by  Roccus,  can 
be  no  other  than  an  act  in  the  nature  of  an  im- 
press, and  for  which  the  insurer  is  unques- 
tionably to  answer.  To  suppose  an  unjust 
sentence  a  casualty,  so  as  that  the  insurer  is  to 
answer  for  it,  is  altogether  fallacious ;  casualty 
being  applicable  only  to  a  fact  possible,  that  it 
will  or  will  not  happen,  until  it  either  shall 
have  happened,  or,  by  the  intervening  hap- 
pening of  some  other  fact,  shall  have  become 
impossible  ever  to  happen.  In  each  case, 
however,  it  equally  ceases  to  be  casual;  and 
becomes  certain  in  the  one  that  it  has  hap- 
pened, and  in  the  other  that  it  cannot  ever 
happen;  but  such  casualty  is  not  applicable  to 
the  sentence  of  a  judge  on  the  question 
whether  it  is  just  or  unjust,  or  to  any  other 
mere  opinion,  whether  it  is  right  or  wrong, 
164*]  declared  *on  any  subject.  For  al- 
though it  |may  be  afterwards  demonstrated 
that  the  opinion  is  right,  or  that  it  is  wrong, 
yet  it  never  can  become  either  certainly  right 
or  certainly  wrong,  as  having  before  been 
casual,  whether  it  would  be  right  or  whether 
it  would  be  wrong.  It  is  true  that  the  law  has 
ordained  that  every  judgment,  until  reversed, 
shall  be  taken  to  be  certainly  right;  if  it  should 
be  reversed,  it  is  then  to  be  taken  as  certainly 
wrong,  ( and  the  judgment  of  reversal  is  to  be 
taken  as  certainly  right.  If  the  judgment  of 
reversal  should  be  reversed,  the  first  judg- 
ment being  thereby  affirmed,  is  again  to  be 
taken  as  certainly  right,  and  the  judgment  of 
reversal  as  certainly  wrong;  but  this  legal  or 
artificial  certainty  is  in  no  manner  the  same 
with  that  certainty  existing  in  nature,  and 
having  as  its  opposite,  casualty.  Certainty,  as 
JOHNSON'S  CASES,  2. 


opposed  to  casualty,  is  to  be  proved  as  a  fact, 
to  have  either  physically  happened,  or  become 
impossible  to  happen ;  and  is  not  to  be  demon- 
strated as  a  proposition,  either  morally  right 
or  morally  wrong.  The  opinion  whether  a 
sentence  is  just  or  unjust,  may  be  ambulatory 
forever.  Thus  it  is  manifest  that  the  practice 
in  France  is  erroneous;  and  there  is  reason  to 
suppose  that  it  proceeded  from  a  misappre- 
hension of  the  very  authorities  cited  to  prove 
it  to  be  warranted  by  law  or  principle.  It, 
however,  having  obtained,  and  being  estab- 
lished in  fact,  in  the  nature  of  a  custom,  or 
usage,  it  ought,  perhaps,  not  to  be  changed 
there ;  for  both  parties  being  apprised  of  it, 
they  can  make  their  calculations  as  to  the  risk 
of  the  premium  accordingly;  and  in  that  view 
no  injury  will  be  produced  by  it;  but  it  cer- 
tainly can  have  no  influence  on  the  present 
inquiry,  which  is,  as  to  the  true  interpretation 
of  the  contract,  according  to  universal  law, 
independent  of  any  positive  local  practice 
whatever. 

I  will  now  briefly  apply  to  the  case  of  an  in- 
surance, the  law,  as  declared  in  the  case  of 
Huglies  v.  Cornelius,  already  cited ;  it  being  the 
most  ancient  case  in  the  books,  as  to  the  effect 
of  a  foreign  condemnation;  and  the  adjudica- 
tion *which  took  place  in  it,  having  [*165 
never  been  questioned,  the  case  is  now  to  be 
viewed  as  of  the  highest  authority. 

The  judges,  in  that  case,  not  only  assume  it, 
that  a  domestic  condemnation  is  to  be  received 
as  conclusive;  but  they  suppose  that,  there- 
fore, a  foreign  condemnation  ought  likewise 
to  be  so  received;  they  argue  the  conclusive- 
ness  of  the  latter  from  the  conclusiveness  of 
the  former.  They  express  themselves  thus, 
"  as  we  are  to  take  notice  of  a  sentence  in  the 
admiralty  here,  so  ought  we  of  those  abroad  in 
other  nations,  and  we  must  not  set  them  at 
large  again."  It  is  true,  the  question  was  only 
as  to  the  direct  and  not  as  to  the  collateral 
effect  of  a  condemnation;  but  the  reasoning 
with  which  the  judges  close  their  opinion,  that 
a  foreign  condemnation  is  to  be  conclusive,  as 
to  the  direct  effect  of  it,  namely,  "  that  if  the 
captured  is  aggrieved,  he  must  apply  himself 
to  the  king  and  council,  and  it  being  a  matter 
of  government,  he  will  recommend  it  to  his 
liege's  ambassadors,  if  he  see  cause,  and  if  not 
remedied  he  may  grant  letters  of  marque  and 
reprisal,"  will  equally  apply,  that  it  is  to  be 
conclusive  as  to  the  effect  of  it  on  an  insur- 
ance; and  not  only  contains  a  sufficient 
answer  to  the  objections  to  receiving  it  as 
conclusive,  as  to  such  effect  of  it ;  but  obvious- 
ly supposes  that  as  to  the  several  effects  of  a 
condemnation  in  respect  to  the  conclusiveness 
of  it,  there  is  no  difference  between  them. 

The  objections  to  receiving  a  foreign  con- 
demnation as  conclusive  against  the  assured, 
if  I  have  rightly  understood  them,  and,  in- 
deed, as  some  of  them  are  expressed  by  a  late 
English  writer  on  the  law  of  insurance  (Park, 
363),  read  on  the  argument,  are,  "  that  the 
judges  of  a  foreign  nation  may  possibly  decide 
on  their  own  municipal  laws  or  ordinances, 
contravening,  or  not  forming  a  part  of  the  law 
of  nations:  "'  and  further,  that  the  judge  of  a 
belligerent  nation  cannot  be  viewed  as  stand- 
ing indifferent  between  a  neutral  nation  and 
his  own,  in  deciding  on  the  interfering  rights 

475 


1C5 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


of  neutrals  and  belligerents,  as  depending  on, 
or  to  be  deduced  from  the  law  of  nations. 
1 66*]  *That  even  the  most  enlightened  and 
upright  judges  may  oftentimes  and  in  a  great 
degree,  be  under  the  influence  of  national 
partiality,  can  scarcely  be  denied;  such  is 
human  nature;  Parum  cavet  natura.  But  can 
neutral  nations  say  they  are  less  susceptible  of 
interest  or  passion  than  belligerent  nations? 
Is  not  the  armed  neutrality  in  Europe,  in  1780, 
to  compel  the  British  to  acknowledge  and  ob- 
serve it  as  a  principle  of  the  law  of  nations, 
that  free  ships  make  free  goods,  a  proof  of 
directly  the  reverse?  Can  our  nation  claim 
us,  or  can  we  claim  ourselves,  to  be  more  free 
than  the  judges  of  belligerent  nations,  from 
national  partiality?  If  the  assured  is  warrant- 
ed in  surmising  a  partiality  in  the  belligerent 
judge,  is  not  the  insurer  equally  warranted  in 
surmising  it  in  us;  and,  consequently,  will  not 
justice  between  them  as  to  the  question  and 
according  to  its  just  and  equal  merits,  whether 
the  principles  of  the  condemnation,  as  they 
relate  to  the  law  of  nations,  are  right  or 
wrong,  be  alike  to  be  suspected  as  fallible 
when  declared  by  us,  as  when  declared  by  the 
judges  of  belligerent  nations?  But  a  sufficient, 
and,  perhaps,  the  most  proper  answer  to  the 
Avhole  of  the  objection,  is  furnished  in  sub- 
stance, by  the  judges,  in  the  opinion  above 
cited,  from  the  case  of  Hughes  v.  Cornelius, 
that  if  a  judge  of  one  nation,  in  a  case  of  a 
capture  at  sea,  will  assume  novel  and  false 
principles,  as  principles  of  the  law  of  nations, 
or  misapply,  or  unduly  extend,  or  restrict 
such  as  may  have  been  already  received  and 
sanctioned,  or  misinterpret  a  treaty,  or  decide 
wholly  on  the  particular  regulations  of  his 
own  nation,  repugnant  to,  or  deviating  from 
the  law  of  nations,  or  by  whatever  other  erro- 
neous reasonines  or  means,  considered  as  the 
principles  relative  to  the  law  in  the  case,  he 
shall  come  to  it  as  a  legal  conclusion  that  the 
goods  captured  ought  to  be  condemned  as 
prize,  either  as  being  enemy  property  or  for 
breach  of  blockade,  or  as  being  contraband  of 
war,  or  for  any  other  cause  whatever,  every 
167*]  such  condemnation  would  be  a  *griev- 
ance  on  the  captured,  against  which  his  nation 
is  to  claim  and  procure  reparation  for  him. 
It  would  be  perfectly  a  cfisus  foederis,  a  case 
where  the  nation,  in  virtue  of  the  mutual  ob- 
ligation of  allegiance  and  protection  between 
sovereign  and  subject,  would  be  held  to  inter- 
fere and  remonstrate  against  the  principles  of 
the  condemnation;  and  insist  that  they  be 
disavowed  or  renounced,  and  that  reparation 
be  made  to  the  captured ;  who,  instead  of  seek- 
ing for  indemnity  from  an  underwriter, 
through  the  medium  of  a  court  of  justice, 
must  seek  for  it  from  the  foreign  nation  itself, 
through  the  medium  of  the  government  or  sov- 
ereignty of  his  own  nation. 

I  conclude  with  remarking  that  possibly,  as 
I  have  already  intimated,  an  insurer  may,  by 
especial  or  express  insurance,  take  on  himself 
the  peril  of  an  unjust  condemnation;  and 
something  of  that  kind  has  been  attempted  by 
inserting  a  clause  in  policies,  to  the  following 
effect:  "  Warranted  American  property  and 
proof  thereof  to  be  made,  if  required,  in  New 
York  only; "  but  whether  an  insurance  in  this 
form  is  sufficiently  provisional  or  explicit. 
476 


j  Whether  it  would  be  deemed  to  be  against  a 
condemnation  for  any  cause,  or  against  a  con- 
demnation for  some  causes  only,  and  not 
others;  and  if  so,  which  the  causes  are,  as  to 
be  discriminated  from  each  other;  and  espe- 
|  cially,  whether  the  assured  may  abandon  on 
j  the  capture,  or  whether  he  is  not  bo\md  to 
follow  the  goods  into  the  court  of  the  captor, 
and  there  defend  them;  or,  in  short,  whether 
it  is  not  unavoidable  that  the  whole  must  be 
put  on  the  simple  footing  of  a  war  premium 
and  a  war  risk;  so  that  all  understanding, 
representation,  or  warranty,  that  the  property 
is  neutral,  and  that  the  neutrality  is  to  be  pre- 
served, and  not  forfeited,  are  to  be  altogether 
laid  out  of  the  contract  between  the  parties,  are 
questions  which  I  suggest  as  probable  to  arise, 
but  on  which  it  is  not  necessary  that  I  should 
express  an  opinion,  in  deciding  the  case  at 
bar;  it  being  a  case  of  general  insurance,  and 
where,  for  the  *reasons  I  have  assigned,  [*  16& 
my  opinion  is  that  a  foreign,  equally  as  a 
domestic  condemnation,  is  to  be  received  a* 
conclusive  against  the  assured. 

LANSING,    Oh.   J.,   not    having    heard    the 
argument  in  the  cause,  gave  no  opinion. 

LEWIS,  J.,  absent. 

Judgment  for  the  defendants.^ 

Reversed  in  2  Johns.  Gas.,  451;  S.  C.,  2  Cai.Cas.,  217. 
Cited  in— Post ,  173, 176,  185 ;  8  Johns.,  318 :  2  Cow., 
66,  342;  5  X.  Y.,  481 ;  7  Barb.,  333. 


MURRAY  AND  MURRAY 


THE  UNITED  INSURANCE  COMPANY. 

1  .  Marine  Insurance  —  Description  —  '  '  American 
Ship  "  —  A  Warranty.  2.  Id.  —  Transfer  —  In, 
•Trust  —  Subject  of  Belligerent  Country  —  Policy 
Void  —  Return  of  Premium. 

If  a  vessel  be  described  in  a  policy  of  "insurance  as 
an  American  ship,  it  is  a  warranty  that  she  is  Amer- 
ican. Where  an  American  vessel  was  transferred  to 
A  in  trust  to  secure  a  debt  due  to  B  who  was  a 
British  subject,  it  was  held  that  B,  being1  the  rest  ill 
(fiie  trust  of  the  profits  of  the  vessel,  and  a  subject 
of  one  of  the  belligerents,  the  vessel  ceased  to  be 
American  ;  and  the  fact  not  being  communicated  to 
the  insurers,  the  policy  was  void  ;  and  the  insured 
entitled  to  a  return  of  premium  only. 

Citation—  1  Johns.  Cos..  141  ;  1  Johns.  Cas.,  310. 


was  an  action  on  a  policy  of  insur- 
JL     ance,  on  the  "  American  brig,  called  the 

1.—  The  case  having  been  turned  into  a  special  ver- 
dict, a  writ  of  errror  was  afterwards  brought  on 
this  judgment,  which  was  reversed  in  the  Court  of 
Errors,  February,  1802. 


NOTE.    Warranty  of  national  character. 

Wliai  comtitvttx  a  warranty,  how  distinguished 
from  representation.  See  Duncan  v.  Sun  Fire  Ins. 
Co.,  6  Wend.,  488 :  note  to  Mackay  v.  Rhinelander,  1 
Johns.  Cas.,  408. 

Natbmalitii.  If  a  citizen  resides  and  engages  in 
trade  in  a  foreign  country,  by  the  law  of  nations  he 
is  a  merchant  of  that  country.  The  Indian  Chief,  3 
Rob.  Adm.,  12.  The  Diana,  5  Rob.  Adm.,  60.  The 
Aba.,  29  Eng.  L.  and  Eq.,  591.  The  Aina,  28  Eng.  L. 
and  Eq.,  600.  The  Frances,  8  Cranch,  363.  Murray  v. 

JOHNSON'S  CASES,  2. 


1801 


MURRAY  AND  MURRAY  v.  THE  UNITED  INSURANCE  COMPANY. 


168 


Mary,"  from  New  York  to  a  port  in  Jamaica. 
'The  cause  was  tried  at  the  last  March  circuit 
In  New  York,  before  Mr.  Justice  Radcliff, 
when  the  jury  found  a  special  verdict.  The 
material  facts  are  the  following:  John  Baz- 
ing, a  citizen  of  the  United  States,  was  sole 
•owner  of  the  brig,  which  was  duly  registered 
AS  an  American  vessel.  On  the  28th  April, 
1798,  Bazing  conveyed  the  brig,  by  a  regular 
bill  of  sale,  to  John  Murray  (one  of  the  plaint- 
iffs) and  William  Hart,  both  citizens  of  the 
United  States,  who  thereupon  obtained  an 
American  register  in  their  own  names.  The 
bill  of  sale,  although  absolute  in  terms,  was 
•executed  in  trust,  for  the  purposes  set  forth 
in  an  agreement  executed  the  same  day  be- 
tween the  parties;  and  which  agreement  stat- 
ed that  Nathaniel  Bayley,  by  his  agents,  Mur- 
ray and  Hart,  had  sued  Bazing,  who,  not  be- 
ing able  to  find  bail,  had  transferred  the  brig 
to  Murray  and  Hart;  and  Murray  and  Hart 
obligated  themselves  to  reconvey  the  brig  to 
169*]  Bazing,  in  case  he  put  in  *good  special 
bail,  in  ten  days,  and  if  not,  it  was  agreed  that 
the  brig  should  proceed  on  her  voyage  to 
Jamaica,  in  which  case  the  suit  was  to  be  dis- 
continued, and  Bazing  to  pay  the  costs.  If  the 
brig  proceeded  on  her  voyage,  it  was  agreed 
that  Murray  and  Hart  were  to  cause  her  to  be 
insured,  at  the  expense  of  Bazing;  and  the 
earning  and  freight  were  to  be  applied  to  sat- 
isfy the  debt  due  from  Bazing  to  Bayley;  and 
if  the  vessel  should  be  lost,  the  sum  insured 
was  to  be  applied  in  like  manner;  and  if  the 
vessel  .returned  and  the  demand  of  Bayley  was 
not  satisfied,  then  Murray  and  Hart  were  to 
sell  the  vessel  at  auction,  and  apply  the  pro- 
ceeds to  satisfy  the  debt;  and  the  overplus  (if 

It  was 


was  to  be  returned  to  Bazing. 
further  agreed  that  Bazing  might,  if  he  pre- 
ferred, employ  the  vessel  for  four  months 
from  that  time,  in  the  coasting  trade,  and  en- 
joy the  freight  and  earning,  and  pay  the 
charges;  if  the  debt  was  not  satisfied  in  that 
time,  then  Murray  and  Hart  were  to  sell  the 
vessel,  as  above  mentioned. 

Bayley  was  a  British  subject  residing  in 
Jamaica.  The  policy  was  signed  on  the  15th 
of  May,  1798.  The  plaintiffs  did  not  disclose 
or  communicate  the  above  agreement  to  the 
defendants;  and  it  was  admitted  that  if  they 
had  disclosed  it  there  would  have  been  no 
.additional  premium,  under  an  idea  that  the 
bill  of  sale  did  not  vest  any  interest  in  Bayley. 
The  brig,  while  on  her  voyage,  was,  on  the  24th 
of  May,  1798,  captured  by  a  French  privateer, 
and  carried  into  Cape  Frangois  and  condemned 
as  good  prize,  on  account  of  double  and  colored 
papers,  proving  the  brig  on  the  one  hand  to  be 
the  property  of  William  Hart,  and  on  the 
other,  the  property  of  John  Bazing. 

Messrs.  B.  Livingston  and  Burr,  for  the 
plaintiffs. 


Messrs.  Hamilton,  Hariyon  and  Troup,  for 
the  defendants. 

*RADCLIFF,  J.  The  vessel  was  [*17O 
insured  as  the  American  brig  Mary.  This  has 
already  been  considered  as  equivalent  to  a 
representation  of  neutral  property.  It  is 
stronger  than  a  representation,  for  being  con- 
tained in  the  policy  itself,  it  amounts  to  an 
implied  warranty  of  that  fact.  Considering  it 
either  as  a  representation,  or  an  implied  war- 
ranty, the  plaintiffs,  according  to  the  cases 
already  decided,  are  precluded  from  a  re- 
covery, by  the  operation  of  the  sentence  in  the 
i  French  court  of  prizes,  which,  among  other 
causes,  proceeds  on  the  ground  that  the  prop- 
erty was  English.  But  I  also  think  the  plaint- 
iffs are  precluded  on  the  merits. 

1.  A  representation  or  warranty  of  neutral- 
ity, requires  the  property  to  be  wholly  neutral. 
If  one  of  the  belligerents  had  an  interest, 
whether  partial  or  entire,  the  risk  was  thereby 
increased,   and   the    warranty    not   complied 
with.     In  the  present  case,  Bazing,  the  origi- 
nal owner,  made  a  bill  of  sale  on  the  20th  of 
April,  to  the  plaintiffs,  in  trust  for  one  Bay- 
ley,  who  was  a  British  subject.     The  insur- 
ance was  made  on  the  loth  of  May  thereafter. 
By  an  article  executed  at  the  same  time  with 
the  bill  of  sale,  it  was  agreed  to  reconvey  the 

j  brig  to  Bazing,  within  a  limited  time,  if  he 
should  enter  good  bail  in  a  suit  then  depend- 
ing against  him,  in  favor  of  Bayley;  or  if  the 
money  due  to  Bayley  should  be  paid,  feither  by 
the  earnings  of  the  vessel  or  otherwise;  and  it 
was  particularly  agreed  that  the  freight  of 
the  brig,  on  the  voyage  in  question,  should 
be  applied  to  the  debt  due  to  Bayley;  and  if 
the  freight  should  prove  insufficient,  the  ves- 
sel was  to  be  sold  for  the  payment  of  the  debt, 
and  the  surplus  money  only  returned  to  Ba- 
zing. By  virtue  of  the  bill  of  sale  and  this 
agreement,  Bayley  had  an  interest  in  the  ves- 
sel, and  in  her  freight;  and  he  might  finally 
sell  and  dispose  of  her  as  he  saw  fit,  for  the  pay- 
ment of  his  debt.  Whether  this  interest  was, 
according  to  the  distinction  of  our  law,  a  legal 
or  equitable  interest  *is  not  material  to  pl'JTl 
the  question.  That  distinction,  I  believe,  is 
not  known  in  any  other  country,  except  the 
one  from  which  we  derive  our  jurisprudence. 
It  is  peculiar  to  England  and  the  United 
States.  It  is  sufficient,  therefore,  that  Bayley 
had  a  vested  interest,  which  he  might  enforce 
in  some  of  the  courts  of  any  country.  His  in- 
terest being  such,  and  he  being  one  of  the  bel- 
ligerents, the  property  was  not  wholly  neutral, 
and  the  implied  warranty  is,  therefore,  not 
supported. 

2.  It  appears  by  the  verdict  that  the  circum- 
stances relative  to  the  interest  of  Bayley  were 
not  disclosed  to  the  underwriters.     If  they 
were  material  to  the  risk,  which  I  think  they 
undoubtedly  were,  they  ought  to  have  been 


Charming  Betsey,  2  Cranch,  64,  130;  Wilson  v. 
Maryat,  8  T.  R.,  31.  See  Sears  v.  City  of  Boston,  1 
Met.,  250.  The  Ocean,  5  Rob.  Adm.,  90 ;  Otis  v.  City 
of  Boston,  12  Cush.,  44, 50 ;  Pennsylvania  v.  Ravenel, 
21  How.,  U.  S.,  103. 

A  warranty  that  property  is  "American," 
means  that  it  is  owned  by  an  "American,"  and 
has  proper  proofs  of  that  ownership  and  that 
those  proofs  will  be  properly  used.  Lewis  v. 
Thatcher,  15  Mass.,  431;  Baring  v.  Clagett,  3  B.  and  P., 
301.  See  Barker  v.  Phoenix  Ins.  Co.,  8  Johns.,  307 ; 

JOHNSON'S  CASES,  2. 


Blagge  v.  N.  Y.  Ins.  Co.,  1  Caines,  549 ;  Peyton  v 
Hallett,  1  Caines,  363 ;  Coolidge  v.  N.  Y.  Firemen's 
Ins.  Co.,  14  Johns.,  308 ;  Griffith  v.  Ins.  Co.  of  N.  A., 
5  Binn.,  464 ;  Livingston  v.  Md.  Ins.  Co.,  7  Cranch, 
506. 

See  for  particular  instances  of  warrantees  of 
nationality,  held  to  be  broken  or  otherwise.  Lud- 
low  v.  Bowne,  1  Johns.,  1 ;  N.  Y.  &c.,  Ins.  Co.,  v.  De- 
Wolf,  2  Cow.,  56 ;  Hig-gins  v.  Livermore,  14  Mass., 
106;  Catlett  v.  Ins.  Co.,  1  Paine,  594;  Murgatroyd  v. 
Crawford,  3  Ball.,  491. 

477 


171 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


disclosed;  and  the  defendants  -would  then 
have  had  an  opportunity  to  act  as  they  saw 
fit.  It  is  true  that  it  is  also  found  that  the  de- 
fendants afterwards  admitted  that  had  they 
known  the  agreement,  its  contents  would  not 
have  induced  them  to  demand  a  higher  pre- 
mium, under  an  idea  that  it  did  not  vest  any 
interest  in  Bayley.  But  if  the  light  in  which 
I  have  viewed  it  be  just,  this  idea  was  incor- 
rect, and  founded  in  mistake,  and,  therefore, 
cannot  affect  the  merits  of  the  question. 

Although  the  terms  of  the  agreement  were 
not  fully  known  to  the  French  admiralty;  yet 
it  appeared  by  a  letter  from  William  Hart  to 
Bayley  that  the  vessel  was  conveyed  by  a  bill 
of  sale  in  trust,  as  above  mentioned,  and  that 
the  court  went  on  this  ground,  among  others,  in 
condemning  the  vessel,  and  I  think  the  evidence 
was  sufficient  to  justify  the  sentence.  For 
these  reasons,  I  am  of  opinion,  that  the  plaint- 
iffs cannot  recover;  that  the  policy  was 
void  ab  initio,  and  the  risk  never  commenced. 
But  as  no  actual  fraud  has  appeared,  the 
plaintiffs  are  entitled  to  a  return  of  the  premi- 
um; and  for  this  they  ought  to  have  judgment. 
The  right  to  a  return  of  the  premium  has  been 
1 7  2*J  already  decided  in  this  *court,  under 
similar  circumstances;  and  the  reasons  in  sup- 
port of  that  decision  need  not  be  repeated. 

KENT,  J.  Two  questions  arise  in  this  cause: 

1.  Was  the  vessel  warranted  American?    If 
so; 

2.  Do  not  the  condemnation  at  Cape  Fran- 
cois,   and  the  fact  that  Bayley,  the  cestui  que 
trust  of  the  profits  of  the  vessel,  was  a  British 
subject,  furnish  sufficient  evidence  of  a  breach 
of  the  warranty. 

1.  The  first  question  has  already  been  de- 
cided in  this  court,  in  the  case  of  Goto  v.  Low. 
(1  Johns.  Gas.,  141.)    It  was  there  determined 
that  if  a  vessel  be  described  as  an  American 
vessel,  it  amounts  to  a  warranty  that  she  is 
American. 

2.  As  to  the  second  question,  it  is  sufficient 
to  refer  to  the  bill  of  sale  and  agreement, 
without  taking  notice  of  the  sentence  at  Cape 
Francois,  which  is  destitute  of  precision,  and 
does  not  state  with  clearness  the  result  of  the 
deductions  of  the  court.     It  appears  that  Mur- 
ray and  Hart  took  a  bill  of  sale  of  the  vessel, 
as  trustees  for  Bayley,  and  that  he  was,  in  equi- 
ty, the  owner,    or  cestui  que  trust,    or  entitled 
to  the  profits  of  the  vessel  during  the  voyage. 
This  was  sufficient  under  our  own  law  to  de- 
stroy her  privilege  as  an  American  vessel. 
The  act  of  Congress  declares  that  no  vessel 
shall  continue  to  enjoy  such  privilege  any 
longer  than  she  shall  continue  to  be  wholly 
owned  by  American  citizens;    nor  shall  an 
American  register  be  obtained  without  affida- 
vit that  no  foreigner  is  either  directly  or  indi- 
rectly, by  way  of  trust,   confidence,  or  other- 
wise, interested  in  the  vessel,  or  in  the  profits 
and  issues  thereof.     The  section  in  this  act, 
prescribing  the  form  of  the  oath,  accordingly 
explains  and  illustrates  the  meaning  of  the 
other  part,  that  the  vessel  must  be  wholly 
owned    by    American    citizens.      This    brig, 
therefore,    sailed  without  being  entitled  to  an 
American  register,  within  the  true  intent  and 
meaning  of  the  act ;  and  one  of  the  enemies  of 
1 73*]  France,  being  a  cestui  qtie  *trust  of  her 
478 


profits,  she  was  not,  in  reference  to  the  pow- 
ers at  war,  to  be  considered  a  neutral  vessel 
entitled  to  the  privileges  of  neutrality.  It  is 
easy  to  perceive  that  if  such  arrangement  was 
to  be  permitted,  foreigners  resident  abroad 
could  trade  with  all  the  immunities  of  Ameri- 
cans, contrary  to  the  policy  of  our  statute,  and 
contrary  to  the  right  of  maritime  capture,  as 
it  respected  the  belligerent  powers. 

I  am  of  opinion,  therefore,  that  the  in- 
terest of  Bayley  in  the  profits  of  the  vessel,  is 
evidence  of  a  breach  of  the  warranty,  the  same 
not  being  wholly  true;  and,  consequently, 
that  the  plaintiffs  are  not  entitled  to  recover 
anything  except  the  premium,  to  which  they 
are  of  course  entitled,  there  being  no  actual 
fraud  in  the  case.  (1  Johns.  Cas.,  310.) 

LANSING,  Ch.  J.,  was  of  the  same  opinion. 
LEWIS,  J.,  was  absent. 

BENSON,  J.,  referred  to  the  opinion  deliv- 
ered by  him,  in  the  case  of  Vandenheuvel  v. 
The  United  Insurance  Company,  as  to  the  ef- 
fect of  foreign  sentences,  as  conclusive  in  this 
case. 

Judgment  for  the  plaintiffs,  for  a  return  of 
premium  only.1 

Cited  in— 2  Johns.,  162 ;  8  Johns.,  319. 


*LAING 

v. 
THE   UNITED  INSURANCE  COMPANY. 

THE  SAME  v.    THE   SAME. 
THE   SAME  w.    THE   SAME. 

Marine  Insurance — Warranty — Contraband  of 
War — Capture — Sentence  of  Condemnation 
— Evidence. 

Where  a  policy  of  insurance  contained  the  fol- 
lowing clause :  *'  It  is  also  agreed  that  the  property 
be  warranted  by  the  assured,  free  from  any  charge, 
damage,  or  loss,  which  may  arise  in  consequence  of 
seizure  or  detention,  for  or  on  account  of  any 

1.— Several  other  similar  causes  were  also  decided 
this  term.    In  Haskin  v.  The  New  York  Insurance 
Company,  the  vessel  was  captured  by  the  British, 
i  and  condemned  as  lawful  prize ;  no  reason  being 
I  assigned  for  the  condemnation  in  the  sentence.    On 
'  the  principles  decided  in  Goix  v.  Low,  and  Vanden- 
heuvel v.  The  United  Insurance  Company,  the  court 
(Lansing,  Ch.  J.,  and  Lewis,  S.,  being  absent)  con- 
sidered the  word  "American"  as  amounting  to  a  war- 
ranty, and  the  sentence  of  the  Admiralty  Court, 
though  general,  as  conclusive.  In  Vandenheuvel  v. 
Church,  there  was  no  warranty  contained  in  the 
policy;  but  in  the  written  instructions  to  the  brok- 
er, the  ship  was  represented  to  be  American,  and 
!  the  property  of  a  citizen  of  the  United  States,  resid- 
I  ing  in  New  York.  The  vessel  was  condemned  as  the 
property   of   Spanish   subjects,  enemies  of  Great 
Britain ;   and  the  court  considered  the  representa- 
tion as  equivalent  to  a  warranty  and  the  sentence 
of  the  Admiralty  Court  as  conclusive  evidence  of  a 
breach  of  warranty.  But  by  the  reversal  of  the  judg- 
ment, in  the  case  of  Vandenheuvel  v.  The  United  In- 
surance Company,  in  the  Court  of  Errors,  foreign 
sentences  are  now  no  longer  held  to  be  conclusive. 


NOTE.— Sentence  of  foreign  court  of  Admiralty,  it# 
effect.  Contraband  of  war. 

See  Vandeheuvel  v.  United  Ins.  Co.,  post  461,  and 
note  in  this  edition. 

JOHNSON'S  CASES,  2. 


1801 


LAING  v.  THE  UNITED  INSURANCE  COMPANY. 


174 


illicit  or  prohibited  trade,  or  any  trade  in  articles 
contraband  of  war,"  and  the  vessel  and  cargo  hav- 
ing been  captured,  part  of  the  cargo,  consisting  of 
block-tin  and  tin-plates,  was  condemned  as  contra- 
band of  war ;  it  was  held  that  the  insured  were  not 
entitled  to  recover  for  any  loss,  in  consequence  of 
the  capture ;  the  sentence  of  the  Court  of  Admiralty 
being  conclusive  evidence  that  the  tin  was  contra- 
band of  war. 

N.  B.  This  judgment  was  afterwards  (1802)  reversed 
in  the  Court  of  Errors. 

Citations— 1  Johns.,  Cas.,  16 ;  1  Johns.,  Cas.,  341. 

These  were  actions  on  three  different  poli- 
cies of  insurance  :  one  on  the  vessel,  another 
on  the  cargo,  and  the  other  on  the  freight. 
The  first  cause  was  tried  at  the  December  cir- 
cuit, before  Mr,  Justice  lladcliff,  and  a  ver- 
dict was  found  for  the  plaintiff  for  a  total  loss, 
subject  to  the  opinion  of  the  court  on  a  case, 
the  principal  facts  of  which  apply  equally  to 
all  the  causes. 

The  policies  were  in  the  usual  form,  with 
this  additional  clause:  "It  is  also  agreed 
that  the  property  be  warranted  by  the  assured, 
free  from  any  charge,  damage,  or  loss,  which 
may  arise  in  consequence  of  seizure  or  deten- 
tion, for  or  on  account  of  any  illicit  or  prohib- 
ited trade,  or  any  trade  in  articles  contraband 
of  war."  The  voyage  insured  was  from  New 
York  to  La  Vera  Cruz,  with  leave  to  touch  at 
the  Havana.  The  plaintiff  was  owner  of  the 
vessel,  and  a  naturalized  citizen  of  the  United 
States.  The  vessel  was  captured  on  her  voy- 
age by  a  British  ship  of  war,  and  carried  into 
New  Providence  ;  and  on  the  3d  day  of 
August,  1799,  the  vessel  and  that  part  of  the 
cargo  belonging  to  the  plaintiff,  were  acquit- 
ted ;  but  six  blocks  of  tin,  and  seventy-eight 
boxes  of  tin-plates,  being  part  of  the  cargo, 
and  belonging  to  other  shippers,  were  con- 
demned by  the  Court  of  Vice-Admiralty,  as 
contraband  of  war.  After  notice  of  the  capt- 
ure, and  before  notice  of  the  acquittal,  the 
175*]  vessel  *and  cargo,  belonging  to  the 
plaintiff,  together  with  the  freight,  were,  on 
the  12th  of  August,  1799,  abandoned  to  the 
defendant.  Soon  after  the  acquittal,  the  ves- 
sel returned  to  New  York  ;  but  most  of  the 
cargo  belonging  to  the  plaintiff  was  sold  by 
him  at  New  Providence  to  defray  the  expenses 
of  the  prosecution,  and  the  remainder  was 
brought  back  to  New  York.  The  plaintiff, 
on  the  15th  June,  and  previous  to  the  date  of 
policy  on  the  freight,  chartered  the  vessel  to 
Robert  Weir  and  James  Johnson,  for  the  voy- 
age, for  $3,600,  payable  on  the  return  of  the 
vessel  and  discharge  of  her  cargo. 

It  was  admitted  in  the  case  that  tin  in 
blocks  is  a  necessary  ingredient  in  the  man- 
ufacture of  brass  cannon  ;  and  that  tin-plates 
are  used  in  the  manufacture  of  camp  kettles, 
canteens,  and  cannister  shot,  and  that  they 
are  sometimes  used  in  lining  the  magazines 
and  cabooses  of  vessels  of  war.  That  block- 
tin  and  tin-plates  are  used  in  various  other 
manufactures,  not  applicable  to  military  or 
naval  purposes,  and  are  also  applied  to  vari- 
ous domestic  uses;  that  the  number  of  pur- 
poses, not  military  or  naval,  greatly  exceeds 
the  number  of  those  of  a  military  and  naval 
kind,  for  which  they  are  used. 

It  was  agreed  that  either  party  might  turn 
the  case  into  a  special  verdict. 

Mr.  Burr  for  the  plaintiff. 
JOHNSON'S  CASES,  2. 


Messrs.  Hamilton  and  Troup  for  the  defend- 
ants. 

RADCLIFF,  J.  I  think  it  unnecessary  to 
decide  whether  tin  in  blocks,  or  in  any  other 
form,  is  an  article  contraband  of  war  ;  or  to 
consider  the  merits  of  the  foreign  sentence. 
If  the  opinion  be  correct,  that  the  insured,  in 
every  case,  undertakes  to  maintain  the  truth 
of  his  warranty,  it  is  decisive,  as  between  him 
and  the  insurer,  *in  the  present  case.  [*176 
Such  a  construction  is  consistent  with  the 
terms  of  the  warranty  in  the  present  policy. 
The  insurers  are  declared  to  be  free  from 
"  any  loss  which  may  arise  in  consequence  of 
a  seizure  or  detention  for  or  on  account  of  any 
illicit  or  prohibited  trade,  or  of  any  trade  in 
articles  contraband  of  war."  The  construc- 
tion of  this  warranty  I  consider  to  be  the 
same,  as  the  just  interpretation  of  the  policy 
on  the  face  of  it,  and  liable  to  the  same  result. 
There  must  be  a  judgment  of  nonsuit  in  all 
the  causes. 

KENT,  J.  The  great  point  on  which  these 
several  causes  turn,  is  simply  whether  the 
plaintiff  has  or  has  not  broken  his  warranty, 
that  the  property  should  be  free  from  loss  or 
charge  arising  from  seizure  on  account  of  any 
trade  in  articles  contraband  of  war.  If  he 
has  not,  then  the  seizure  and  consequent 
notice  of  abandonment  would  entitle  him  to 
recover  for  a  total  loss.  To  determine  this 
fact,  in  respect  to  the  warranty,  we  are 
brought  to  a  consideration  of  the  sen- 
tence of  condemnation.  Are  we  to  regard  the 
sentence  as  conclusive  evidence  of  the  allega- 
tion that  the  tin  was  an  article  contraband  of 
war  ?  If  not,  and  the  merits  of  the  judg- 
ment are  to  be  overruled,  is  tin  an  article 
contraband  of  war,  as  between  us  and  Great 
Britain  ? 

Upon  the  first  question  my  opinion  is  that 
the  sentence  being  direct,  and  upon  the  very 
point  of  the  warranty,  is  conclusive  evidence 
of  a  breach  of  it.  The  reasons  for  this 
opinion  have  already  been  given  in  the  case 
of  Vandenheuwl  v.  The  United  Insurance 
Company;  and  I  am  accordingly  of  opinion 
that  judgment  must  be  for  the  defendant, 
upon  the  terms  stated  in  the  case. 

BENSON,  J.,  was  of  the  same  opinion. 
LEWIS,  J.,  was  absent. 

*LANSING,  Ch.  J.  Three  questions  are  [*1 7  7 
presented  for  the  examination  of  the  court;  but 
the  first,  whether  tin,  in  blocks,  or  tin  in 
plates,  are  articles  contraband  of  war,  is,  in 
the  light  in  which  I  consider  the  subject,  and 
the  question  arising  on  the  warranty,  such  as 
renders  a  decision  on  the  others  unnecessary. 

If  the  decision  of  the  British  Court  of  Vice- 
Admiralty,  in  pronouncing  these  articles  con- 
traband of  war,  is  correct,  or  if  they  are  con- 
sidered as  not  contraband,  and  yet  the  parties 
are  concluded  by  that  decision,  it  might 
impose  it  on  the  court  to  consider  what 
influence  the  other  points  raised  in  the  cause 
ought  to  have  on  our  final  determination. 

As  the  reasons  of  the  condemnation  appear. 
I  consider  them  as  proper  objects  for  the 
examination  of  this  court  ;  and  this  is  strictly 

479 


IT; 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


conformable  to  the  principles  laid  down  in 
the  cases  arising  in  the  British  courts,  and 
which,  I  take  it,  there  is  no  adjudication  of 
our  courts  to  restrain,  except  the  case  of  Lud- 
low  v.  Dale.  (1  Johns.  Cas.,  16.)  That  case 
was  determined  on  the  point  that  the  sen- 
tences of  foreign  courts  were  conclusive,  after 
a  full  argument  on  the  other  points  presented 
in  the  cause,  in  which  the  counsel  refrained 
from  laying  any  great  stress  on  it,  their  atten- 
tion being  principally  directed  to  the  other 
points  in  the  cause. 

It  is  certain  that  the  British  courts  have 
distinguished  between  cases  presenting  a  right 
of  condemnation,  as  deducible  from  the  law 
of  nations,  and  such  as,  dictated  by  peculiar 
views  or  situations,  are  arrogated  by  the  bellig- 
erent powers  to  promote  their  own  interest, 
regardless  of  the  influence  that  law  ought  to 
have  on  their  conduct. 

On  this  ground,  they  have  confined  them- 
selves to  resisting  the  effect  of  local  ordi- 
nances, detracting  from  the  rights  of  neutrals; 
but  whether  the  injury  to  those  rights  origi- 
nated in  positive  ordinances,  or  were  produced 
178*]  by  ^gradually  diverging  from  the  line 
which,  consistent  with  the  general  maritime 
law,  ought  to  regulate  their  conduct,  I  consider 
as  very  immaterial,  and  cannot,  certainly,  vary 
the  principles  by  which  it  is  to  be  tested. 

Neutral  powers  are  interested  in  repelling 
every  attempt  to  impair  their  rights,  and  in 
protecting  the  lawful  commerce  of  their  citi- 
zens; and,  as  one  of  the  means  of  resisting 
aggression  and  defending  that  commerce,  in 
withholding  their  sanction  from  every  unjust 
attempt  to  invade  it. 

I  take  it  that  there  is  no  essential  difference 
between  cases  of  condemnation  produced  by 
arbitrary  ordinances,  and  arbitrary  and  un- 
founded extensions  of  principles,  without  the 
aid  of  ordinances;  that  both  ought  to  be  con- 
sidered as  equally  open  to  examination;  and 
that  we  ought  not,  nor  does  justice  or  general 
convenience  require  us,  to  close  the  door,  so 
as  to  exclude  such  examinations. 

In  the  case  of  Ooix  v.  Low  (1  Johns.  Cas. , 
341),  I  entered  into  a  particular  examination 
of  all  the  cases  adduced  to  prove  the  conclu- 
siveness  of  foreign  sentences;  and  I  stated  the 
rules  deduced  from  them,  as  laid  down  by 
Lord  Mansfield,  as  collected  from  all  preceding 
cases,  and  my  opinion  respecting  them,  as  a 
general  result  from  the  whole. 

Tin,  in  the  different  shapes  in  which  it  is 
described  in  this  case,  is  susceptible  of  appli- 
cation to  a  gjeat  variety  of  uses;  and,  with  few 
exceptions,  is  applied  to  purposes  which  have 
no  connection  with  military  or  naval  equip- 
ments. The  domestic  and  ordinary  purposes 
to  which  it  is  applied,  create  a  consumption  of 
that  article  in  a  much  greater  and  more  exten- 
sive degree  than  any  warlike  purposes. 

If  its  destination  might  be  permitted  to 
mingle  in  the  circumstances  justifying  the 
condemnation,  and  it  had  been  intercepted  on 
179*]  its  way  to  a  port  in  which  hostile  *prep- 
arations  in  navy  yards  or  foundries  of  can- 
non were  carried  on,  these  considerations 
would,  in  this  question,  operate  against  the 
condemnation;  for  it  is  expressly  admitted 
that  there  was  no  establishment  or  the  latter 
description  in  the  West  Indies,  and  the  case  is 
480 


silent  as  to  the  former:  it  cannot,  therefore,  be 
necessary  to  trace  the  reasoning  on  this 
subject. 

If  the  extension  given  to  the  principle  re- 
specting naval  and  military  stores,  as  laid 
down  in  this  sentence,  is  correct,  it  is  difficult 
to  determine  what  modification  of  wood  or 
metals  can  exempt  them  from  so  comprehen- 
sive a  construction.  It  appears  to  be  palpably 
misapplied;  it  is  an  arbitrary  and  unfounded 
extension;  as  such  it  ought  to  be  disregarded, 
as  affecting  the  rights  of  neutrals,  and  which 
they  are  not  bound  to  sanction  in  their  judicial 
proceedings,  as  derogatory  from  those  rights. 

The  policy  contains  a  warranty  that  the  sub- 
ject insured  shall  be  free  from  any  charge, 
damage,  or  loss,  which  may  arise  in  conse- 
quence of  any  seizure  or  detention,  for  or  on 
account  of  any  Illict  or  prohibited  trade,  or 
trade  in  articles  contraband  of  war. 

This  warranty  is  preciselv  to  the  point  on 
which  the  loss  happened.  'The  condemnation 
was  expressly  on  the  ground  that  the  articles 
condemned  were  contraband  of  war.  But  the 
insured  had  stipulated  by  their  warranty  that 
all  seizures  for  or  on  account  of  any  illicit  or 
prohibited  trade,  should  not  affect  the  in- 
surers. 

On  this  point,  respecting  the  warranty,  I 
therefore  concur  with  the  general  result,  de- 
duced by  the  rest  of  the  court  from  the  case, 
that  the  defendants  ought  to  have  judgment. 

Judgment  for  tJie  defendants.1 
Reversed— Post,  487. 


*VOS  AND  GRAVES         [*18O 


THE  UNITED  INSURANCE  COMPANY. 

Marine  Insurance — Blockade — Attempt  to  Enter 
— Breach  of  Warranty. 

A  vessel  was  insured  from  New  York  to  Amster- 
dam, and  at  the  time  of  her  sailing1  from  New  York, 
it  was  not  known  that  the  Texel  was  blockaded  by 
the  British.  The  master,  during  the  voyage,  put 
into  Cuxhaven,  and  was  there  informed  that  Am- 
sterdam was  blockaded:  but  supposing  that  he 
should  not  be  captured  for  the  first  attempt, 
sailed  from  Cuxhaven  with  the  intention  of 
entering  Amsterdam,  knowing  it  to  be  blockaded ; 
and  on  his  way  the  vessel  was  captured  by  a 
British  cruiser  and  condemned.  It  was  held  that 
sailing  from  Cuxhaven  with  the  knowledge  of 
the  blockade,  and  with  the  intention  to  go  to  Am- 
sterdam, was,  prima  facie,  evidence  of  an  attempt 
to  enter  a  blockaded  port ;  and  that  such  an  attempt 
was  a  breach  of  the  warranty  of  neutrality,  and  the 
insurers,  therefore,  not  liable  on  the  policy. 

N.  B.— This  judgment  was  afterwards  reversed  in 
the  Court  for  the  Correction  of  Errors. 

Citations— 1  Johns.  Cos.,  144 ;  1  Atk.,  490 ;  2  Fonb., 
155;  Millar,  136-144, 179-188 ;  2  Valin,  77,  79, 161,  650. 

THIS  was  an  action  on  a  policy  of  insurance 
on  goods,    on  board    of   the  American 
brig,  the  Columbia,  from  New  York  to  Am- 
sterdam, dated  the  21st  of  June,  1798,  at  a 
premium  of  17  1-2  per  cent. 

The  cause  was  tried  on  the  26th  of  March, 
1800,  at  the  New  York  circuit;  and  a  verdict 
was  taken  for  the  plaintiffs,  subject  to  the 

1.— This  Judgment  was  afterwards  (1802)  reversed 
in  the  Court  of  Errors. 

JOHNSON'S  CASES,  2. 


1801 


Vos  AND  GRAVES  v.  THE  UNITED  INSURANCE  COMPANY. 


180 


opinion  of  the  court,  on  the  following  case, 
which  it  was  agreed  might  be  changed  into  a 
special  verdict,  by  either  party. 

The  property  was  warranted  American.  It 
was  also  warranted  that  no  loss  should  arise 
to  the  defendants  by  capture,  seizure,  or  de- 
tention in  the  port  of  Amsterdam,  the  Texel, 
or  the  Vlie. 

The  assured,  for  an  additional  premium  of 
two  and  a  half  per  cent. ,  had  liberty,  by  a  mem- 
orandum at  the  foot  of  the  policy,  to  touch  and 
trade  at  Hamburg.  This  permission  was 
granted  in  consequence  of  the  following  letters 
from  the  plaintiffs  to  the  defendants. 

NEW  YORK,  June  25th,  1798. 

"The  cargo  of  the  brig  Columbia,  Benja- 
min Weeks,  master,  being  insured  at  the  New 
York  Insurance  Company,  at  and  from  hence 
to  Amsterdam,  on  the  14th  instant,  and  the 
acounts  daily  arriving  rendering  motives  of 
precaution  extremely  necessary;  we,  therefore, 
propose  to  order  the  vessel  to  touch  at  Ham- 
burg for  orders  (which  may  be  done  without 
delay,  as  she  is  to  go  north  about),  provided 
you  will  permit  it  in  the  policy,  without  any 
additional  premium  ;  and  should  our  friends 
advise  that  it  would  be  dangerous  to  proceed 
181*]  to  *Amsterdam,  in  that  case  the  risk 
should  end  at  Hamburg." 

At  the  foot  of  this  letter  the  president  of  the 
company  made  this  memorandum:  "  Two 
and  a  half  per  cent,  additional  premium  for 
leave  to  call  at  Hamburg,  to  be  returned  in 
case  the  risk  shall  end  there." 

NEW  YORK,  June  27th,  1798. 

"On  being  informed  that  the  Texel  was 
blockaded  by  the  English,  and  a  ship  from 
Philadelphia,  bound  to  Amsterdam,  had  ac- 
tually been  sent  to  Yarmouth,  we  applied  to 
you  yesterday  to  obtain  leave  for  the  brig 
Columbia  to  touch  at  Hamburg  for  orders. 
From  this  circumstance  we  conceived  it  highly 
interesting  to  the  office  to  grant  the  permis- 
sion, without  the  charge  of  an  additional 
premium.  At  any  rate,  we  would  rather  have 
the  vessel  proceed  on,  as  the  policy  now 
stands,  than  to  augment  the  premium;  for  the 
circumstance  of  the  blockade  was  unknown  to 
us  at  the  date  the  insurance  was  effected;  and 
it  is  probable,  it  may  be  withdrawn  by  the 
time  the  vessel  reaches  Amsterdam." 

The  Columbia  was  an  American  brig,  and 
the  property  insured  was  also  American. 

The  Columbia  sailed  from  New  York  about 
the  1st  of  July,  1798,  on  the  voyage  insured. 
She  arrived  at  Cuxhaven,  on  her  way  to  Ham- 
burg, in  August  following.  Three  or  four 
days  thereafter,  she  sailed  from  Cuxhaven  for 
Amsterdam.  The  day  she  left  Cuxhaven  she 
was  captured  by  a  British  sloop  of  war,  called 
the  Ranger,  and  carried  into  Yarmouth. 

The  mate  of  the  brig  testified,  "  That  it  was 
generally  understood  among  the  Americans  at 
Cuxhaven  at  the  time  the  Columbia  sailed 
from  thence,  that  Amsterdam  was  considered 
as  a  blockaded  port;  and  it  was  so  understood 
182*]  by  *himself  and  the  captain  of  the 
brig;  that  the  Ranger,  upon  falling  in  with 
the  said  brig,  immediately  seized  her,  as  being 
bound  to  a  blockaded  port;  and  also  on  the 
pretext  of  her  having  Dutch  property  on  board. 
JOHNSON'S  CASES,  2.  N.  Y.  REP.,  BOOK  1. 


"That  it  was  also  generally  understood  by 
the  Americans  at  Cuxhaven,  at  the  time  of  the 
brig's  leaving  it,  and  it  was  so  understood  by. 
him  and  the  captain,  that  it  was  the  practice 
of  British  cruisers  to  stop  vessels  bound  to 
Amsterdam,  and  send  them  back  without  seiz- 
ing them;  and  only  to  seize  in  case  of  a  sec- 
ond attempt  to  enter  Amsterdam,  and  under 
this  idea  the  captain  sailed  for  Amsterdam." 

The  brig  and  cargo  were  libeled  in  the  High 
Court  of  Admiralty  in  England,  and  both 
condemned  for  the  captain's  attempting  to  go 
to  a  blockaded  port. 

Sir  William  Scott,  Judge  of  the  court,  pro- 
nounced the  following  sentence: ' 

"There  is  pretty  clear  proof  of  neutral 
property  in  this  case,  both  of  the  ship  and 
cargo;  but  the  vessel  was  taken  attempting  to 
break  a  blockade.  It  is  unnecessary  for  me 
to  observe  that  there  is  no  rule  of  the  law 
of  nations  more  established  than  this,  that  the 
breach  of  the  blockade  subjects  the  property 
so  employed  to  confiscation.  Among  all  the 
contradictory  positions  that  have  been  ad- 
vanced on  the  law  of  nations,  this  principle 
has  never  been  disputed.  It  is  to  be  found  in 
all  books  of  law,  and  in  all  treaties.  Every 
man  knows  it.  The  subjects  of  all  states  know 
it,  as  it  is  universally  acknowledged  by  all 

fovernments  which  possess  any  degree  of  civil 
nowledge. 

"This  vessel  comes  from  America,  and,  as 
it  appears,  with  innocent  intentions  on  the 
part  of  the  American  owners,  for  it  was  not 
known  at  that  time  in  America,  that  Amster- 
dam was  in  a  state  of  investment;  and  there- 
fore there  is  no  proof  immediately  affecting  the 
owners.  But  a  person  may  be  penally  affected 
by  the  misconduct  *of  his  agents,  as  well  [*  1 83 
as  by  his  own  acts;  and  if  he  delegates  general 
powers  to  others,  and  they  misuse  their  trust, 
his  remedy  must  be  against  them.  The  master 
was,  by  his  instructions,  to  go  north  about  to 
Cuxhaven.  This  precaution,  is,  perhaps  lia- 
ble to  some  unfavorable  interpretation.  The 
counsel  for  the  claimant  have  endeavored  to 
interpret  it  to  their  advantage,  but  at  the  best 
it  can  be  but  a  matter  of  indifference.  When 
he  arrived  at  Cuxhaven,  he  was  to  go  imme- 
diately to  Hamburg,  and  to  put  himself  under 
the  direction  of  Messrs.  Boue  &  Company. 
They  therefore  were  to  have  the  entire  domin- 
ion over  this  ship  and  cargo.  It  appears, 
however,  they  corresponded  with  persons  at 
Amsterdam,  to  whom  further  confidential  in- 
structions had  been  given  by  the  owners;  and 
these  orders  are  found  in  a  letter  from  Messrs. 
Vos  &  Graves,  of  New  York,  to  Boue  &  Com- 
pany, informing  them  that  the  Columbia  was 
intended  for  Amsterdam,  consigned  to  the 
house  of  Crommelin,  to  whom  Boue  &  Com- 
pany are  directed  to  send  the  vessel,  "if  the 
winds  should  continue  unsteady,  and  keep 
the  English  cruisers  off  the  Dutch  coast."  If 
not,  they  were  to  unload  the  cargo,  and  for- 
ward it,  by  the  interior  navigation,  to  Amster- 
dam. Boue  &  Company  accordingly  directed 
the  master  "to  proceed  to  Amsterdam,  if  the 
winds  should  be  such  as  to  keep  the  English 
at  a  distance."  There  is  also  a  letter  from  the 

1.  See  1  Rob.  Aclm.  Rep.,  154.  The  case  was  heard 
in  the  High  Court  of  Appeals  the  12th  August,  1801, 
and  the  sentence  of  the  court  below  was  affirmed. 


31 


481 


183 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


master  to  Boue  from  Cuxhaven,  in  which  he 
says,  "Amsterdam  is  blockaded." 

"We  have  this  fact,  then,  that  when  the 
master  sailed  from  Cuxhaven,  the  blockade 
was  perfectly  well  known  both  to  him  and  the 
consignees;  but  their  design  was  to  seize  the 
opportunity  of  entering  whilst  the  winds  kept 
the  blockading  force  at  a  distance.  Under 
these  circumstances,  I  have  no  hesitation  in 
saying  that  the  blockade  was  broken.  The 
184*]  blockade  was  to  be  considered  *as  legal- 
ly existing,  although  the  winds  did  occasion- 
ally blow  off  the  blockading  squadron.  It 
was  an  accidental  change  which  must  take 
place  in  every  blockade,  but  the  blockade  is 
not  therefore  suspended.  The  contrary  is 
laid  down  in  all  books  of  authority;  and  the 
law  considers  an  attempt  to  take  advantage  of 
such  an  accidental  removal  as  an  attempt  to 
break  the  blockade,  and  as  a  mere  fraud. 

But  it  has  been  said  that  by  the  American 
treaty  there  must  be  a  previous  warning.  Cer- 
tainly where  the  vessels  sail  without  a  knowl- 
edge of  the  blockade,  a  notice  is  necessary;  but 
if  you  can  affect  them  with  the  knowledge  of 
that  fact,  a  warning  then  becomes  an  idle  cere- 
mony, of  no  use,  and  therefore  not  to  be  re- 
quired. The  master,  the  consignees,  and  all 
persons  intrusted  with  the  management  of  the 
vessel,  appear  to  have  been  sufficiently  in- 
formed of  this  blockade,  and  therefore  they 
are  not  in  the  situation  which  the  treaty  sup- 
poses. 

It  is  said,  also,  that  the  vessel  had  not  ar- 
rived; that  the  offence  was  not  actually  com- 
mitted, but  rested  in  intention  only.  On  this 
point  I  am  clearly  of  opinion  that  the  sailing 
with  an  intention  of  evading  the  blockade  of 
the  Texel,  was  beginning  to  execute  that  in- 
tention, and  is  an  overt  act  constituting  the 
offence.  From  that  moment  the  blockade  is 
fraudulently  invaded.  I  must,  therefore,  on 
full  conviction,  pronounce  that  a  breach  of 
blockade  has  been  committed  in  this  case; 
that  the  act  of  the  master  will  affect  the 
owner  to  the  extent  of  the  whole  of  his  prop- 
erty concerned  in  the  transaction.  The  ship 
and  cargo  belong,  in  this  case,  to  the  same  in- 
dividuals, and  therefore  they  must  be  both  in- 
volved in  the  sentence  of  condemnation." 

It  was  admitted  that  at  the  date  of  the  policy, 
to  wit,  on  the  21st  June,  1798,  neither  party 
knew  of  the  Texel's  being  blockaded. 
1 85*]    *On  receiving  the  news  of  the  capture, 
the  assured  duly  abandoned  to  the  defendants. 

RADCLIFP,  J.  This  was  the  case  of  a  policy 
on  goods  on  board  of  the  American  brig,  the 
Columbia,  from  New  York  to  Amsterdam, 
with  liberty  to  touch  and  trade  at  Hamburg. 
The  property  was  warranted  to  be  American, 
or  neutral.  The  vessel  sailed  from  New  York, 
and  arrived  at  Cuxhaven,  on  her  way  to  Ham- 
burg, and  soon  after  sailed  from  thence  to 
Amsterdam.  She  was  captured,  the  day  she 
sailed  from  Cuxhaven,  by  a  British  sloop  of 
war,  carried  to  Yarmouth,  and  libeled  in  the 
English  Court  of  Admiralty,  and,  with  her 
cargo,  was  condemned  for  attempting  to  enter 
a  blockaded  port. 

On  the  21st  of  June,  1798,  the  date  of  the 
policy,  neither  party  knew  of  the  investment  of 
Amsterdam;  and  this  excludes  the  idea,  that 
482 


by  any  special  agreement  or  understanding, 
the  insurance  could  have  been  meant  to  ex- 
tend to  any  peril,  for  breach  of  the  particular 
blockade  in  question,  if  any  existed. 

1.  It  is  a  settled  rule  that  the  insured,  in 
order  to  comply  with  his  warranty,  must  not 
only  maintain  the  property  to  be  neutral,  but 
so  conduct  himself  towards  the    belligerent 
parties  as  not  to  forfeit  his  neutrality.     He 
must  pursue  the  conduct,  and  preserve  the 
character  of  a  neutral.     This  being  the  import 
of  the  warranty,  and  the  condemnation  being^ 
founded  on  a  breach  of  neutrality,  it  operates 
to  preclude  the  plaintiffs,  on  the  principles 
adopted  with  regard  to  the  effect  of  foreign 
sentences,  in  the  case  of  Vandenheuvd  v.  The 
United  Insurance  Company,  from  a^hy  recovery 
on  the  policy. 

2.  In   the  present  case,  the  plaintiffs,  be- 
fore the  vessel  sailed  from  New  York,  to  wit, 
on  the  27th  of  June,  in  consideration  of  law, 
had  notice  of  the  blockade.     This  appears  by 
their  letter  to  the  defendant  of  that    date.. 
*Although  the  information  was  not  then  [*  1 8G 
certain,  it  was  sufficient  to  excite  serious  appre- 
hensions,  and  to  put  them  on  their  guard, 
which,  in  judgment  of  law,  is  deemed  com- 
petent notice.     (1   Atk.,  490;  2  Fonb.,  155.) 
The  captain,  however,  before  he  sailed  from 
Cuxhaven,  had  actual  notice  of  the  blockade; 
and  there  can  be  no  doubt  but  the  plaintiffs 
are  liable  for  his  acts.     He  sailed  with  the 
professed  intent  to  evade  it,  if  an  opportunity 
should  offer,  but  under  an  idea  that,  by  the 
Treaty  of  1794,  he  was  entitled  to  notice  to 
desist,  and  to  be  sent  back  on  the  first  attempt. 
The  provision  in  the  treaty,  on  this  subject,  it 
is  obvious,  cannot  apply  to  a  case  where  the 
party  already  possesses  the  requisite  informa- 
tion.    This  is  the  rule  in  all  cases  where  the 
party  is  to  be  affected  by  notice. 

But  it  is  objected  that  the  captain  was  not  in 
the  act  of  breaking  the  blockade;  that  it 
existed  merely  in  intention,  and  he  was,  there- 
fore, not  liable  to  seizure.  If  this  idea  be  cor- 
rect, then  no  such  capture  can  be  lawful,  until 
the  line  of  blockade  be  actually  invaded.  The 
resolution  may  be  formed  and  acted  upon;  and 
no  progress  in  the  execution  of  it  can  be 
stopped  or  prevented  till  the  breach  be  made. 
A  construction  so  forced  and  limited  appears 
to  me  inconsistent  with  an  effectual  exercise  of 
the  right.  It  may  be  difficult  to  define  its 
precise  extent,  but  it  is  more  reasonable  to 
adopt  the  rule  that  the  besiegers  are  entitled  to 
take  preventive  measures,  and  that  when  the 
resolution  to  break  a  blockade  is  formed,  and 
begun  to  be  executed,  within  a  reasonable 
distance,  so  as  to  render  it  practicable,  the 
offence  is  incurred  and  the  party  liable  to 
seizure.  Such  was  the  case  in  the  present  in- 
stance. 

From  the  testimony  of  the  mate,  as  well  as 
from  the  sentence,  it  appears  that  an  actual 
blockade  was  understood  at  the  time  to  exist. 
As  a  fact,  it  seems  not  to  have  been  questioned. 
But  the  particular  situation  of  *the  [*187 
blockading  force  does  not  appear,  nor  do  I 
think  it  material.  Although  the  party  may 
have  intended  to  avail  himself  of  an  acciden- 
tal interruption,  occasioned  by  winds  or 
tempests,  this  intent  will  not  excuse  him;  for 
such  interruption  cannot  be  considered  as  de- 
JOHNSON'S  CASES,  2. 


1801 


Vos  AND  GRAVES  v.  THE  UNITED  INSURANCE  COMPANY. 


187 


stroying  the  existence  of  the  blockade.  At 
least,  if  he  attempts  to  enter,  under  such  cir- 
cumstances, it  is  at  his  peril,  and  he  subjects 
himself  to  the  hazard  of  seizure  and  confisca- 
tion. I  think  the  reasoning  of  Sir  William 
Scott,  whose  opinion  is  contained  in  the 
sentence  annexed  to  the  case,  is  satisfactory, 
and  that  the  sentence  on  the  merits  was  right; 
and,  of  course,  that  the  plaintiffs,  having  for- 
feited their  neutrality,  ought  not  to  recover, 
admitting  the  sentence  to  be  open  to  investiga- 
tion. 

It  may  be  proper  to  add  that  the  plaintiff 
here  is  not  entitled  to  the  premium,  because 
the  risk  had  actually  commenced,  and  the 
warranty  was  forfeited  by  a  subsequent  breach 
of  neutrality. 

KENT,  J.  On  the  facts  in  this  case,  two 
questions  arise: 

1.  Will  a  voluntary  attempt  by  the  captain 
to  break  a  blockade  be  sufficient  to  destroy  the 
right  of  recovery  on  the  policy? 

2.  If  it  will,  is  there  the  requisite  evidence 
in  this  case  of  that  attempt? 

In  answer  to  the  first  question,  I  am  of 
opinion  that  such  an  attempt  takes  away  from 
the  assured  his  right  to  recover;  for  he  can 
never  be  allowed  to  indemnify  himself  upon 
an  innocent  party,  from  the  consequences  of 
his  own  want  of  skill,  or  from  his  negligence 
or  folly.  The  act  of  the  master  must  be  re- 
ferred to  his  principal,  who  appoints  him;  and 
whenever 'a  loss  happens  through  the  master's 
fault,  unless  that  fault  amounts  to  barratry, 
the  owner,  and  not  the  insurer,  must  bear  it. 
It  is  a  fault  in  the  master,  to  occasion  a  loss  of 
188*]  property,  from  *his  carelessness  or 
want  of  competent  skill;  and  much  more  is  it 
the  case  if  he  wilfully  occasion  that  loss,  as 
by  resisting  search,  breaking  a  blockade,  &c. 
He  is  charged  with  a  discreet  and  faithful 
execution  of  his  trust,  and  it  is  against  his 
duty  to  expose  the  property  unnecessarily  to 
risk,  either  from  natural  perils,  or  from  perils 
arising  from  the  violation  of  his  neutrality.  It 
is  a  point  not  to  be  disputed,  that  an  attempt 
knowingly  to  break  a  blockade  is  a  violation 
of  neutral  duty,  and  occasions  a  forfeiture  of 
the  property;  and  it  cannot  be  supposed,  un- 
less it  be  so  expressed,  that  the  insurer  takes 
upon  himself  such  risk.  The  risk  of  fault  in 
the  master  (barratry  excepted)  is  not  a  risk 
enumerated  in  the  policy;  and  it  would  be 
very  unreasonable  that  the  insurer  should  be 
holden  beyond  his  express  undertaking,  for 
the  fault  or  folly  of  the  master,  whom  the  in- 
sured selects  and  controls.  (Millar,  136-144, 
179-188;  2  Valin,  77,  79,  161,  650.) 

In  answer  to  the  second  question,  I  have  no 
doubt  in  concluding  that  there  is  sufficient 
evidence  in  the  case,  of  a  wilful  attempt  by  the 
captain  to  break  the  blockade  of  Amsterdam. 
This  evidence  results  from  the  condemnation 
in  the  British  Court  of  Admiralty;  and  for  the 
conclusive  effect  of  that  sentence,  I  refer  to 
my  opinion  in  the  cases  of  Vandenheuvel  v. 
The  United  Ins.  Company,  and  Vandenheuvel  v. 
Church.  There  is  also  sufficient  evidence, 
without  resorting  to  the  sentence.  When  the 
captain  left  Cuxhaven,  he  sailed  with  the  un- 
derstanding that  Amsterdam  was  a  blockaded 
port;  and  he  sailed  also  under  the  idea  that  if 
JOHNSON'S  CASES,  2. 


he  should  meet  with  a  British  cruiser  in  his 
attempt  to  enter  Amsterdam,  he  would,  for  the 
first  attempt,  be  sent  back,  and  not  seized.  This 
appears  by  the  testimony  of  the  mate,  and  it 
is  sufficient  to  establish  the  fact  of  the 
blockade,  as  against  the  plaintiffs,  it  being  the 
admission  of  their  agent,  until  they  repel  it  by 
direct  proof  to  the  contrary.  But  there  is  no 
such  contrary  testimony  in  the  case.  [*189 
It  would  seem,  indeed,  to  be  implied,  from 
some  of  the  observations  of  Sir  William  Scott, 
which  are  thrown  into  the  case,  that  winds 
had  occasionally  blown  off,  or  kept  at  a  dis- 
tance, the  blockading  squadron:  but  at  what 
precise  time,  or  to  what  precise  distance,  does 
not  appear.  We  do  not  know,  except  by 
necessary  deduction  from  the  testimony  of  the 
mate,  what  was  the  actual  state  of  the  blockade, 
or  how  far  the  British  cruisers  were  at  the 
time  in  a  situation  to  preserve  it.  Nor  do  we 
know  the  situation  the  vessel  was  in,  or  her 
proximity  to  Amsterdam,  when  she  was 
captured.  The  mate  informs  us  only  that  the 
master  understood,  when  he  sailed  from  Cux- 
haven, that  Amsterdam  was  blockaded;  that 
he  sailed  with  an  intent  to  attempt  to  enter  it, 
and  with  the  understanding  that  for  his  first 
attempt  he  would  only  be  sent  back,  and  that 
he  was  captured  the  day  he  sailed.  How  near 
he  had  approached  the  coast  of  the  Vlie  and 
Texel  we  do  not  know.  He  might  have 
reached  the  coast,  for  it  is  within  the  reach  of 
a  day's  sail.  Every  reasonable  conclusion  that 
the  admissions  of  the  mate  will  warrant,  is, 
however,  to  be  drawn  against  the  plaintiffs,  so 
long  as  they  furnish  no  other  proof  to  repel 
those  admissions. 

My  opinion  accordingly  is  that  the  existence 
of  the  blockade,  the  wilful  attempt  of  the 
master  to  break  it,  his  capture  while  executing 
that  attempt,  and  at  no  great  distance  from,  if 
not  in  the  neighborhood  of  the  blockading 
port,  are  all  necessarily  to  be  inferred  from 
the  case,  and  that  judgment  ought,  therefore, 
to  be  given  for  the  defendants. 

BENSON,  J.,  was  of  the  same  opinion. 
LEWIS,  J.,  was  absent. 

*LANSING,  Ch.  J.  I  must  differ  in  [*19O 
opinion  from  the  rest  of  the  court.  The  view 
in  which  I  have  considered  this  subject  has 
led  me  to  conclude  that  the  blockade,  from  the 
circumstances  stated  in  the  case,  constituted 
one  of  those  risks  intended  to  be  insured 
againts  by  the  policy,  it  not  being  in  contempla- 
tion of  the  parties,  at  the  time  the  insurance 
was  made,  to  break  the  blockade:  hence  the 
blockade  may  well  be  taken  as  an  event  cal- 
culated to  defeat  the  voyage,  occurring  since 
its  commencement,  and  which  would  not 
justify  the  captain  to  divert  his  vessel  from 
the  port  of  destination,  on  the  information 
that  a  blockade  existed. 

The  British  treaty  provides  that  a  vessel 
which  sails  for  a  blockaded  port,  without 
knowing  of  the  blockade,  shall  be  turned 
away  from  such  port;  but  she  shall  not  be 
detained,  &c.,  unless,  after  notice,  she  shall 
again  attempt  to  enter. 

The  expression  appears  to  me  only  to  apply 
to  the  inception  of  the  voyage.  The  knowl- 
edge of  blockade  must  exist  before  her  leaving 

483 


190 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


her  port  of  departure.  If  acquired,  in  any 
stage  of  the  voyage,  after  its  commencement, 
the  captain  is  not,  in  my  opinion,  obliged  to 
take  notice  of  it,  before  an  attempt  to  enter. 

The  vessel's  touching  at  Cuxhaven  was 
merely  in  the  continuation  of  the  voyage;  and 
hence  she  was  entitled  to  prosecute  her  voyage 
as  if  continued  without  touching  at  Cuxhaven; 
and  if  the  British  courts  have  considered  the 
beginning  of  the  voyage  as  from  Cuxhaven, 
so  far  as  it  respects  the  question  between  the 
parties,  the  ship  was  entitled  to  be  turned  away 
without  seizure,  and  only  subject  to  condem- 
nation, in  case  of  a  second  attempt,  whatever 
might  be  the  construction  of  the  admirality, 
on  general  principles,  as  applied  to  it. 

The  question  is,  was  the  voyage  in  its  com- 
mencement, contrary  to  the  law  of  nations? 
1O1*]  Was  this  an  illegal  voyage?  *The 
touching  at  Cuxhaven  was  provided  for  by  the 
policy.  It  was  a  risk  the  insurer  had  under- 
taken, and  he  must  submit  to  the  loss;  as  in  a 
case  of  a  war  breaking  out  in  the  course  of  a 
voyage. 

Judgment  for  the  defendants* 

Reversed— Post,  469;  1  Cai.  Cas.  in  Er.,  7. 
Cited  in— 8  Johns.,  277;  13  Johns.,  458;  12  Wend.,  468; 
3  Peters,  335;  3  Mason,  26. 


JAMES  JACKSON 

V. 

THE  NEW  YORK  INSURANCE  COM- 
PANY. 

Marine  Insurance — Warranty  "American 
Property" — Transfer  after  Insurance — Nat- 
uralized Citizen —  Capture-^  Condemnation — 
Breach  of  Warranty. 

A  vessel  belonging  to  A,  who  was  a  natural-born 
citizen  of  the  United  States,  was  insured  by  a  policy 
dated  the  first  of  November,  1796,  on  a  voyage  from 
New  York  to  London;  and  was  warranted  American 
property.  Afterwards  and  before  the  vessel  actually 
sailed  on  the  voyage  insured,  viz.,  on  the  27th  of 
April,  1797,  A  sold  and  transferred  the  vessel  to  B, 
a  native  of  Great  Britain,  who  had  emigrated  to 
New  York  and  become  a  naturalized  citizen  of  the 
United  States,  on  the  6th  of  April,  1797.  The  vessel 
having  been  captured  by  the  French,  and  con- 
demned as  good  prize;  it  was  held,  in  an  action  on  the 
policy,  that  B  was  to  be  considered  as  having  emi- 
grated, flagrante  beUo,  and  a  British  subject,  so  as 
justify  the  condemnation ;  and  that  A,  having  by 
his  own  act,  before  the  commencement  of  the  risk, 
changed  the  property  from  neutral  to  belligerent, 
there  was  a  breach  of  the  warranty.  But  see  Duguet 
v.  Rhinelander.  reversed  in  the  Court  of  Errors, 
1801 ;  1  Caines'  Cases  in  Error,  xxv. 

Citations— 1  Johns.  Cas.,  16,  341,  360,  310;  Doug., 
732;  Park,  a53;  1  Cai.  Cas.  in  Er.,  25. 

THIS  was  an  action  on  a  policy  of  insurance, 
on  the  ship  Oneida,  from  New  York  to 
London,  warranted  American  property,  proof 
of  which,  if  required,  to  be  made  in  New  York. 
The  policy  was  dated  the  1st  of  November, 

1796,  when   the    ship    was    owned    by    the 
plaintiff,  a  natural-born  citizen  of  the  United 
States.     Afterwards,  on   the  29th    of   April, 

1797,  and  before  the  vessel  sailed  on  the  voy- 

1.  But  see  S.  C.  in  the  Court  of  Errors.  1  Caines' 
Cases  in  Error,  .7. 

484 


age  insured,  the  plaintiff  sold  and  transferred 
her  to  James  Jackson,  a  British  subject ;  but 
who  became  a  naturalized  citizen  of  the  United 
States  on  the  6th  of  April,  1797.  The  Oneida 
set  sail  for  New  York  on  the  3d  of  May,  1797, 
and  was  captured  on  the  25th  of  the  same 
month,  by  a  French  Privateer,  and  carried  into 
Nantz  and  there  condemned.  The  grounds  of 
*the  condemnation,  as  they  appeared  [*192 
from  the  proces  verbal,  were: 

1.  The  want  of  a  role  d' equipage,  as  required 
by  the  French  regulations  of  1704, 1744  and 
1778. 

2.  That  the  manifest  was  not  signed  by  a 
public  officer. 

3.  That  James  Jackson  confessed  himself  to 
have  been  born  in  England,  and  did  prove  his 
naturalization  in  the  United  States. 

The  principal  reason,  however,  was  the  want 
of  a  role  d'  equipage,  and  the  court  adjudged 
"the  ship  good  prize,  as  belonging  to  the 
enemies  of  the  republic,  for  want  of  regularity 
in  the  sea-papers. 

The  sentence  of  condemnation  was  con- 
firmed on  an  appeal.  The  ship  was  duly 
abandoned  to  the  defendants. 

At  the  trial  at  the  November  circuit,  1799, 
in  New  York,  a  verdict  was  taken  for  the 
plaintiff,  subject  to  the  opinion  of  the  court, 
on  a  case  containing  the  above  facts. 

Messrs.  Hamilton,  Riggs  and  Ecertwn  for  the 
plaintiff. 

Messrs.  B.  Livingston  and  Burr  for  the  de- 
fendants. 

RADCLIFP,  J.  1.  It  is  sufficient  to  decide 
this  case  that  the  plaintiff  has  not  maintained 
his  warranty,  according  to  the  principles 
already  determined  on  this  subject.  (1  John- 
son's Cases,  16,  341,  360.)  But, 

2.  Here  was  a  transfer  of  the  property,  sub- 
sequent to  the  insurance,  to  one  who,  in  the 
view  of  the  belligerent  parties,  was  not  entitled 
to  be  regarded  as  a  neutral.  James  Jackson 
emigrated  flagrante  bello;  and  we  have  already 
decided  (1  Johnson's  Cases,  360.  But  see  1 
Caines's  Cases  in  Error,  xxv.)  that  no  citizen  or 
subject  of  either  of  the  parties  at  war,  can 
change  his  allegiance,  so  far  as  to  alter, 
*with  respect  to  them,  the  relation  in  [*193 
which  he  stood  at  the  commencement  of  the 
war.  The  French,  had,  therefore,  a  right  to 
consider  him  as  a  British  subject;  and  the  ship, 
after  being  transferred  to  him,  was  liable  to 
seizure  and  condemnation  by  them,  as  enemy's 
property.  The  risk,  therefore,  was  essentially 
altered  and  increased;  and  the  plaintiff,  by  the 
transfer,  voluntary  destroyed  the  neutrality 
which  he  had  guaranteed  to  maintain.  The 
plaintiff,  therefore,  cannot  recover  on  the 
policy,  but  as  he  has  not  committed  any  actual 
fraud,  and  the  risk  never  commenced,  he  is  en- 
titled to  a  return  of  premium,  on  the  principle 
adopted  in  several  cases  (1  Johns.  Cases,  310), 
already  decided  in  this  court. 

KENT,  J.  This  cause  offers  two  points  for 
our  consideration: 

1.  What  effect,  if  any,  is  the  sale  of  the  ship 
to  James  Jackson  to  have  upon  the  policy? 

2.  If  none,  then  is  there  the  requisite  evi- 
dence of  a  breach  of  the  warranty? 

JOHNSON'S  CASKS,  2. 


1801 


W.  SEAMAN  v.  B.  F.  RASKINS. 


193 


1.  The  policy  was  subscribed  in  November; 
and  in  the  April  following,  and  previous  to  the 
sailing  of  the  ship,  the  plaintiff  sold  her  to 
James  Jackson.  He  was  born  a  British  subject, 
and  was  naturalized  on  the  7th  of  April,  1797. 
How  long  previous  thereto,  James  Jackson 
had  fixed  his  domicile  in  this  country,  does 
not  appear.  The  Act  of  Congress  of  the  27th 
of  March,  1790,  required  only  a  previous  resi- 
dence of  two  years.  The  Act  of  Congress  of 
the  29th  January,  1795,  enlarged  the  term  of 
residence  to  five  years,  but  provided  that  the 
enlargement  of  the  term  should  not  apply  to 
aliens  then  resident  within  the  United  States. 
As  James  Jackson  was  naturalized  within  two 
years  and  three  months  from  the  time  of  pass- 
ing the  last  act,  the  naturalization  is  proof  of 
his  residence  here  in  January,  1795;  but  it  is 
no  evidence  of  any  previous  residence.  The 
194*]  presumption  antecedent  *to  that  time 
must  be  that  he  resided  under  the  jurisdiction 
of  the  King  of  Great  Britain,  as  every  person's 
domicile  must  be  presumed,  until  the  contrary 
be  shown,  to  be  in  the  country  where  he  was 
born,  and  to  which  he  owes  his  native  alle- 
giance. In  January,  1795,  the  war  between 
Great  Britain  and  France  had  already  existed 
for  two  years,  and  James  Jackson  is  accord- 
ingly to  be  considered  as  changing  his  domicile, 
and  emigrating,  flagrante  bello. 

This  natural,  and  as  it  appears  to  me,  legal 
presumption,  is  strengthened  by  this  further 
consideration,  that  we  are  to  conclude,  from 
the  fact  of  his  subsequent  naturalization,  that 
James  Jackson  came  to  this  country  with  a 
view  of  becoming  a  citizen;  and  in  that  case, 
that  he  would  not  have  postponed  the  solem- 
nity for  any  considerable  time  beyond  the 
period  prescribed  by  law;  and  if  he  had  in 
fact  fixed  his  residence  here  before  the  com- 
mencement of  the  war,  he  was  entitled  to  the 
privilege  of  naturalization  two  years,  at  least, 
before  he  actually  obtained  it. 

The  case  of  Duguet  v.  Rhimlander  ( 1  Johns. 
Cas.,  360.  But  see  1  Caines's  Cases  in  Error, 
25)  is  in  point.  The  plaintiff  there  was  a 
Frenchman  by  birth,  and  was  naturalized  here 
the  llth  of  October,  1796;  and  there  was  no 
proof  in  the  case  of  any  previous  residence. 
The  decision  of  the  court,  accordingly,  went 
upon  the  ground  of  his  emigration  here  during 
the  war,  and  that  he  was,  therefore,  in  the 
purview  of  the  law  of  nations,  to  which  the 
warranty  had  reference,  still  a  Frenchman. 

My  conclusion  then  is,  that  the  plaintiff  did, 
by  his  own  act,  and  without  the  assent  of  the 
insurer  ( for  none  appears ),  change  the  prop- 
erty which  he  had  warranted  neutral,  into  bel- 
ligerent property;  and  this, too, before  the  com- 
mencement of  the  risk. 

Upon  such  an  act,  I  have  no  difficulty  in 
declaring  what  must  be  the  result.  A  war- 
ranty must  be  true  at  the  commencement  of 
195*]  the  risk.  (Doug.,  732;  Eden  v.  * Park- 
inson, Park,  353.)  This  was  not  so;  and  what 
renders  the  case  the  stronger,  and  would,  per- 
haps, have  been  decisive,  if  done  even  after  the 
risk  begun,  is  that  the  property  ceased  to  be 
neutral  by  the  act  of  the  party  himself.  It 
would  be  against  all  rule  and  right  for  a  party 
in  such  a  case  to  avail  himself  of  a  loss,  the 
consequence  of  his  own  voluntary  deed;  and 
therefore,  without  having  any  reference  to  the 
JOHNSON'S  CASES,  2. 


sentence  of  condemnation,  I  think  the  plaint- 
iff ought  not  to  recover  beyond  the  amount  of 
his  premium,  subject  to  the  deduction  stipu- 
lated in  the  policy. 

BENSON,  J.,  was  of  the  same  opinion. 
LEWIS,  J.,  was  absent. 

LANSING,  Ch.  J.,  not  having  heard  the  ar- 
gument, gave  no  opinion. 

Judgment  for  the  plaintiff  for  a  return  of  the 
premium  only. 

Overruled— Post,  476. 


W.  SEAMAN  0.  B.  F.  HASKINS. 

1.  Judgment — Cestui  que  Trust — Acceptance.  2. 
Id. — As  Discharge  of  Bond. 

A,  being1  indebted  to  B  in  the  sum  of  $1,785  for 
goods  sold  and  delivered,  and  to  other  creditors,  on 
the  1st  of  January,  1793,  executed  a  bond  to  C  and 
D  for  $22,500,  for  and  on  account  of  all  his  debts, 
and  including  the  sum  due  to  B,  on  which  bond  a 
judgment  was  entered  m  April,  1793.  Afterwards, 
on  the  18th  of  July,  1793,  A  gave  B  a  single  bill  for 
the  $1,785;  and  on  the  1st  of  August,  1793,  B  affirmed 
the  trust  in  C  and  D  as  to  the  judgment,  and  on 
the  2d  of  August,  directed  a  ca.  sa.  to  be  issued  on 
the  judgment,  on  which  A  was  taken  into  cus- 
tody, and  afterwards  by  consent  of  B  was  dis- 
charged. In  an  action  brought  by  B  on  the  single 
bill  against  A,  it  was  held  that  B,  having  as  a  ce#- 
tui  que  trust  of  the  judgment.affirmed  the  trust,  and 
elected  to  proceed  on  the  judgment,  and  to  ob- 
tain satisfaction  of  his  debt;  the  single  bill  was 
thereby  discharged. 

THIS  was  an  action  of  debt.  The  declara- 
tion was  on  a  single  bill  for  $1,785.85, 
dated  the  18th  of  July,  1793.  The  defendant 
pleaded,  1.  Non  estfactum.  2.  Payment.  3. 
That  "  on  the  first  day  of  January,  1793, 
he,  the  said  Benjamin,  was,  at  the  city, 
*county  and  ward  aforesaid,  indebted  to  [*  1 9G 
the  said  Willet  in  a  large  suni  of  money,  to  wit, 
the  sum  of  $1,785.85,  for  goods,  wares  and 
merchandises,  then  before,  that  time,  there 
sold  and  delivered  by  the  said  Willet  to  the 
said  Benjamin;  and  being  so  indebted,  he,  the 
said  Benjamin,  afterwards,  to  wit,  at  the  city, 
county  and  ward  aforesaid,  made  and  executed 
a  certain  writing  obligatory,  to  a  certain  An- 
thony Franklin,  Joseph  Bird  and  Edmund 
Prior,  for  a  large  sum  of  money,  to  wit,  9,000£. , 
being  of  the  value  of  $22,500,  for,  and  on  ac- 
count of  the  said  sum  of  money,  so  due  to  the 
said  Willet,  for  the  said  goods,  wares  and  mer- 
chandises, so  as  aforesaid  sold  and  delivered 
by  the  said  Willet  to  the  said  Benjamin,  and 
for,  and  on  account  of  all  other  moneys  owing 
by  the  said  Ben jamin ;  and  that,  afterwards,  to 
wit,  of  th,e  term  of  April,  1793,  the  said  An- 
thony Franklin,  Joseph  Bird  and  Edmund 
Prior,  recovered  judgment  on  the  said  writ- 
ing obligatory  for  9,OOOZ. ,  being  of  the  value 
aforesaid  against  the  said  Benjamin;  and  that 
afterwards,  to  wit,  on  the  said  18th  day  of 
July,  1793,  at  the  city,  county  and  ward  afore- 
said, the  said  Benjamin  made  and  executed 
the  said  bill  obligatory,  in  the  declaration 
of  the  said  Willet  mentioned;  and  the  said 
Benjamin  avers  that  the  said  bill  obligatory, 

485 


196 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1801 


in  the  said  declaration  mentioned,  was  made 
and  executed  by  him  to  the  said  Willet,  for 
the  same  sum  of  money  due  to  the  said  Willet, 
for  the  said  goods,  wares  and  merchandises, 
so  as  aforesaid  sold  and  delivered;  and  the 
said  Benjamin  further  avers  that  the  said 
judgment,  so  as  aforesaid  recovered,  for,  and 
on  account  of  the  said  sum  of  money  so  due 
to  the  said  Willet,  as  for  and  on  account  of  all 
other  moneys  owing  by  the  said  Benjamin,  ex- 
ceeded the  whole  amount  due  and  owing  from 
him;  and  the  said  Benjamin  further  avers  that 
197*]  the  said  sum  of  $1,785.85  part  of  *the 
said  sum  of  9,00(M.,  being  of  the  value  of  $22,- 
500;  and  the  said  sum  of  $1,785.85,  in  the  bill 
obligatory,  in  the  declaration  of  the  said 
Willet,  is  one  and  the  same  sum  of  money, 
and  not  different.  And  the  said  Benjamin 
further  avers  that  the  said  Willet,  afterwards, 
to  wit,  on  the  first  day  of  August,  1793,  at  the 
city,  county  and  ward  aforesaid,  accepted  the 
said  judgment,  so  recovered  by  the  said  An- 
thony Franklin,  Joseph  Bird  and  Edmund 
Prior,  in  full  satisfaction  and  discharge  of  the 
said  bill  obligatory,  in  the  said  declaration  of 
the  said  Willet  mentioned ;  and  that,  afterwards, 
to  wit,  on  the  second  day  of  August,  in  the 
said  year  1793,  at  the  city,  county  and  ward 
aforesaid,  the  said  Benjamin,  at  the  request  of 
the  said  Willet,  was  taken  into  custody  by  the 
sheriff  of  the  City  and  County  of  New  York, 
on  a  capias  ad  satisfaciendum,  issued  on,  and 
by  virtue  of  the  said  judgment,  and  was  after- 
wards, to  wit,  on  the  first  day  of  January,  1795, 
at  the  city,  county  and  ward  aforesaid,  by  the 
consent  of  the  said  Willet,  discharged  from 
the  said  custody  of  the  said  sheriff.  And  this 
he  is  ready  to  verify,  wherefore,"  &c. 

There  was  the  usual  replication  and  issue  as 
to  the  first  and  second  pleas.  To  the  third  plea 
there  was  a  demurrer  and  joinder. 

Mr.  Golden,  in  support  of  the  demurrer. 
Mr.  Buii',  contra. 

KENT,  J. ,  delivered  the  opinion  of  the  court 
(Lewis,  J.,  absent). 

The  demurrer  admits  all  the  facts  stated  in 
the  last  plea ;  and  the  question  then  is,  whether 
those  facts  do  not  amount  to  a  satisfaction  of 
the  bill. 

198*]  *A  judgment  being  a  debt  of  a 
higher  nature,  will  be  sufficient  to  discharge  a 
bond,  if  accepted,  as  a  satisfaction.  It  is  a 
certain  and  valuable  satisfaction.  The  only 
objection  to  it,  in  the  present  case,  is,  that  it 
was  not  stated  to  have  been  regularly  assigned 
to  the  obligee,  and  placed  under  his  power,  by 
the  act  of  the  trustees.  But  upon  examination 
of  the  plea,  this  appears  to  be  sufficiently,  al- 
though not  expressly,  alleged.  The  plaintiff, 
as  cestui  que  trust,  affirmed  the  trust,  and  ac- 
cepted the  judgment  in  satisfaction,,  and  pro- 
ceeded to  exercise  power  over  it.  Acceptance, 
here,  is  a  relative  term,  and  implies  the  pre- 
vious offer,  the  requisite  act  on  the  part  of  the 
trustees,  as  owners  of  the  judgment.  We 
must  intend  this  assent  from  the  plea;  and, 
consequently,  the  plea  was  sufficient. 

Judgment  for  the  defendant. 
Cited  in— 2  Cai.  Cas.  in  Er.,  372. 


RANKIN    v.    BLACKWELL,    Survivor    of 
HALLETT. 

Fraudulently    Altered    Note  —  Evidence  —  Other 
Notes. 

Where  there  are  strong  circumstances  to  suspect 
a  note  has  been  fraudulently  altered,  general  cor- 
roborating1 circumstances  may  be  admitted  in  evi- 
dence to  strengthen  the  suspicions  ;  as  that  other 
notes  drawn  and  indorsed  by  the  same  parties,  to 
take  up  one  of  which  the  note  in  question  was  given, 
had  been  altered. 


was  an  action  of  assumpsit.  The  plaint- 
-  iff  declared  on  a  promissory  note,  drawn 
by  Blackwell  and  Hallett,  in  favor  of  Arnold 
and  Ramsay,  and  indorsed  by  them  to  the 
plaintiff.  The  cause  was  tried  at  the  last 
March  sittings,  in  New  York,  before  the  Chief 
Justice. 

The  signature  of  Blackwell  and  Hallett  was 
proved  to  be  in  the  handwriting  of  Hallett. 
The  defense  set  up  was  that  the  note,  after  it 
had  been  made  and  issued,  had  been  altered, 
in  the  date,  and  by  changing  three  hundred 
into  thirteen  hundred  dollars.  To  support 
this  defense,  the  defendant  offered  to  prove,  1. 
That  former  notes  diawn  and  indorsed  by  the 
parties  *and  to  take  up  one  of  which  [*199 
the  present  note  was  made,  had  been  altered; 
2.  A  written  memorandum  made  by  his  de- 
ceased partner,  of  the  amount  of  the  note,  as 
actually  made;  3.  The  alterations  apparent  on 
the  note  itself,  from  which  the  jury  might  de- 
cide whether  the  note  had  been  altered  or  not; 
but  the  judge  overruled  the  evidence  offered, 
and  charged  the  jury  that  the  mere  appearance 
of  alterations  on  the  face  of  the  note,  unaided 
by  any  proof  as  to  the  character  of  the  per- 
sons through  whose  hands  it  had  passed,  was 
not  sufficient  to  support  the  defense  set  up. 
The  jury,  accordingly,  found  a  verdict  for  the 
plaintiff,  for  the  full  amount  on  the  face  of  the 
note,  with  interest-. 

A  motion  was  made  to  set  aside  the  verdict, 
and  for  a  new  trial. 

Mr.  Biker  for  the  defendant. 
Mr.  B.  Livingston,  contra. 

Per  Curiam.  The  defense  in  this  case  rested 
on  the  proof  of  forgery.  The  evidence  that 
former  notes  drawn  and  indorsed  by  the  same 
parties,  to  take  up  one  of  which  the  present 
note  was  given,  had  been  altered,  ought  to 
have  been  admitted;  for  it  would  have  served 
to  show  what  was  the  real  consideration  for 
the  note,  and  thus  lead  to  the  detection  of  the 
forgery.  The  mode  of  this  proof  is  not  stated; 
but  we  must  presume  that  it  would  have  been 
legal.  Where  a  defendant  can  show  strong  cir- 
j  cumstances,  such  as  erasures,  &c.,  to  render  a 
note  suspicious,  he  ought  to  be  allowed  to  go 
into  evidence  of  general  corroborating  circum- 
stances to  strengthen  that  suspicion. 

The  memorandum  of  the  deceased  partner 
was  properly  rejected;  for  it  was  nothing 
more  than  the  act  of  *the  party  him-  [*2OO 
self.  The  alterations  on  the  face  of  the  note, 
unsupported  by  other  proof,  would  not  be 
competent  evidence;  but  if  any  previous  testi- 
mony had  been  offered  to  show  that  the  note 
was  given  for  a  less  sum,  or  to  render  it  proba- 
ble that  a  fraud  had  been  committed,  the  alter- 
JOHNSON'S  CASES,  2. 


1801 


VAN  BRAMER  ET  ux.  v.  THE  EXECUTORS  OF  HOFFMAN. 


200 


ation  on  the  face  of  the  note  would  have  been 
a  strong  corroborating  circumstance,  if  not  de- 
cisive, of  the  truth  of  the  fact.  On  the  first 
ground,  we  think  that  there  ought  to  be  a  new 
trial,  with  cost  to  abide  the  event  of  the  suit. 

New  trial  granted. 

Limited— 56  N.  Y.,  33. 

Cited  in— 8  Johns.,  206 ;  Hoff .,  93 ;  4  Hun.,  517 ;  6  T., 
.&  C.,  699 ;  31  How.,  252 ;  2  E.  D.  Smith,  7 ;  S.  C.,  10  Leg. 
Obs.,  23. 


VAN  BRAMER  ET   ux.  v.  THE   EXECU- 
TORS OF  HOFFMAN. 

1.  Legacy — To  Infant  Grandchild — Due  at 
"Age" — Construction — 2.  Id. — Maintenance — 
No  Provision — Interest — 3.  Id. — Charge  on 
Land — No  Time  of  Payment. 

A  devised  his  lands  to  his  two  sons,  charged  with 
the  payment  of  specific  sums  by  each  to  his  execu- 
tors, and  bequeathed  to  his  granddaughter  £200  to 
be  paid  to  her  when  she  came  of  age,  out  of  the  sums 
so  directed  to  be  paid  by  his  sons  to  his  executors. 
It  was  held  that  the  legacy  to  the  granddaughter 
carried  interest  from  the  time  it  was  due,  and  not 
before ;  and  that  it  was  due  when  the  legatee  ar- 
rived at  the  age  of  twenty-one  years. 

Citations.— 3  Wooddes,  520;  2  Salk.,  415;  1  Ves., 
310;  ICh.  Ca.,  60;  1  Ves.,  307,  310;  2  Vent.,  346;  2 
Atk.,  330 ;  3  Atk.,  102 ;  2  Bro.  C.  C.,  69 ;  1  Ves.,  211 ;  1 
Atk.,  505 ;  2  Fonb.,  32. 

THIS  was  a  suit  for  a  legacy.      At  the  last 
Columbia  Circuit,  a  verdict  was  taken  for 
the  plaintiff,  subject  to  the  opinion  of  the 
court  on  the  following  case: 

Anthony  Hoffman,  by  his  last  will,  dated 
the  6th  of  February,  1784,  devised  to  his  son, 
Nicholas,  all  his  lands  lying  in  the  County  of 
Dutchess,  and  to  his  heirs  forever;  and  after 
giving  an  annuity  to  his  wife,  the  testator 
added,  "it  is  my  will  and  desire  that  my  said 
son,  Nicholas,  his  heirs  or  assigns,  should  well 
and  truly  pay  or  cause  to  be  paid,  to  my  exec- 
utors, hereinafter  named,  the  sum  of  six  hun- 
dred pounds,  after  the  decease  of  his  wife; " 
and  he  made  that  part  of  his  estate  devised  to 
Nicholas  chargeable  with  the  payment  of  the 
.same.  He  also  devised  to  his  son  Abraham 
all  his  real  estate  in  Ulster  County,  which  he 
made  chargeable  in  like  manner  with  the  pay- 
ment of  five  hundred  pounds.  He  then  made 
20 1*]  *a  bequest  to  Saretie,  the  wife  of  the 
plaintiff,  in  the  following  words:  "I  also  give 
and  bequeath  to  my  granddaughter  Saretie, 
daughter  of  my  deceased  daughter  Annatie, 
the  sum  of  200£  current  money  of  New  York, 
to  be  paid  unto  her  after  the  decease  of  my 
said  wife,  when  she  comes  to  the  age  of  21 
years,  by  my  said  executors,  hereinafter  named, 
out  of  the  moneys  which  I  have  before  ordered 
to  be  paid  unto  them,  by  my  said  sons,  Abra- 
ham and  Nicholas;  and  in  case  my  said  grand- 
daughter should  die  before  the  age  of  21  years, 
without  lawful  issue,  that  then,  in  such  case, 
it  is  my  will  and  order  that  the  said  legacy 
shall  descend  and  devolve  to  all  my  above- 
named  children,  and  be  divided  by  them,  share 
and  share  alike."  The  testator's  granddaughter, 
Saretie,  was  also  one  of  the  residuary  legatees. 
The  testator  died  the  5th  December,  "1784.  His 
wife  died  the  28th  March,  1785,  and  the  grand- 
daughter came  of  age  the  18th  June,  1785. 
JOHNSON'S  CASES,  2. 


The  estate  to  the  two  sons  yielded  each  about 
£42  yearly. 

The  only  question  submitted  to  the  court 
was,  from  what  time  interest  was  to  be  calcu- 
lated on  the  legacy  to  the  wife  of  the  plaintiff; 
whether  from  the  death  of  the  testator,  the 
death  of  his  wife,  or  from  the  time  the  legatee 
came  of  age?  And  the  verdict  was  to  stand, 
or  be  modified,  according  to  the  opinion  of  the 
court. 

Mr.  Gardenier  for  the  plaintiff. 
Mr.  Sylvester,  contra. 

RADCLIFF,  «/".,  delivered  the  opinion  of  the 
court: 

If  a  legacy  be  charged  on  land,  and  no  time 
of  payment  is  mentioned  in  the  will,  the  rule 
is  that  it  shall  carry  interest  from  the  time  of 
the  testator's  death,  because  *the  land  [*2O2 
yields  rents  and  profits.  (3  Wooddeson,  520;  2 
Salk.,  415;  1  Ves.,  310.)'  But  this  is  not  to 
be  considered  as  a  legacy  chargeable  on  real 
estate;  for  although  the  moneys  to  be  paid  by 
the  devisee  of  the  testator  are  so  chargeable, 
and  are  the  fund  out  of  which  the  legacy  is  to 
be  paid,  yet  the  charge  on  real  estate  was  not 
made  with  a  view  to  this  legacy,  or  for  the 
benefit  of  the  legatee,  but  for  the  purpose  of 
raising  a  general  f  undJn  the  hands  of  the  exec- 
utors; and  which,  when  paid  to  them,  is  to  be 
regarded  as  personal  estate.  The  legacy  is 
to  be  paid  out  of  this  fund,  which  is  of  a  larger 
amount,  and  not  appropriated  solely  to  this 
object.  In  this  point  of  view,  it  is  immaterial 
whether  the  real  estate  produced  profits  or  not. 

Where  a  legacy  is  given  to  a  child,  payable 
at  a  particular  time,  and  no  provision  is  made 
for  its  maintenance,  equity  will  decree  interest 
from  the  testator's  death,  by  way  of  mainte- 
nance. (1  Ch.  Ca.,  60;  1  Ves.,  307.  310;  2  Vent., 
346;  2  Atk.,  330;  3  Atk.,  102;  2  Bro.  C.  C.,  69; 
3  Wooddeson,  520.)  But  this  is  not  the  case  of 
a  child  destitute  of  any  provision  for  its  sup- 
port, and  on  that  account  entitled  to  interest 
as  a  suitable  maintenance.  And  the  rule  does 
not  apply  to  a  legatee  who  is  a  grandchild. 
(1  Ves.,  211;  1  Atk.,  505;  2  Atk.,  330;  3  Atk., 
101.)  Besides,  the  legatee  .in  the  present  case 
had  a  father  living,  as"  we  are  to  presume,  and 
capable  of  maintaining  her.  There  are  other 
cases,  also,  in  which  a  court  of  chancery  re- 
'  fuses  to  grandchildren  *the  relief  [*2O3 
afforded  to  children  who  are  legatees.  (2 
Fonb.,  32.) 

We  are  of  opinion,  therefore,  that  the  legacy 
in  the  present  case  ought  to  carry  interest  from 
the  time  it  was  due,  and  not  before;  and  it  was 
due  when  the  legatee  arrived  at  full  age.2 

Judgment  accordingly. 

Cited  in— 34  N.  Y.,  183;  1  Red.,  216. 

I.— If  a  legacy  be  charged  on  personal  estate,  as 
mortgages  bearing  interest,  or  on  stock  yielding 
profits,the  same  rule  prevails.(3  Wooddeson,520.)  If  it 
&  to  come  generally  out  of  the  personal  estate,  and 
no  time  of  payment  is  fixed,  it  carries  interest  from 
one  year  after  the  testator's  death.  (3  Wooddeson, 
520 ;  1  Ves.,  310.)  So,  if  a  legacy  be  charged  on  a  dry 
I  reversion,  it  will  carry  interest  after  one  year,  that 
being  a  convenient  time  for  the  sale.  Where  a 
legacy  is  payable  at  a  certain  time,  it  will  bear  in- 
terest from  that  time,  though  not  demanded.  (3 
P.  Wins.,  135  ;  2  Salk.,  415,  416 ;  1  Vern.,  262  ;  2  Vez., 
568  ;  3  Bro.  C.  C.,  419.) 

2.-^3  Vesey,  Jun.,  10,  13, 16. 

487 


203 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


COLE  v.  HAWES. 

Grant  —  Covenant  —  Warranty  —  Taken  To- 
gether. 

Where  the  grantor  in  a  deed  covenanted  generally, 
that  he  was  well  seized,  &c.,  and  had  a  good  right  to 
convey  the  premises,  &c.,  and  then  added  further, 
that  he  warranted  the  premises  to  the  grantee  and 
his  heirs,  "  against  all  claims  and  demands,  except 
the  lord  of  the  soil;"  it  was  held  that  both  covenants 
must  be  taken  and  construed  together,  and  that  the 
last  qualified  and  restrained  the  first. 


was  an  action  of  covenant,  brought  on 
JL  the  covenant  of  seisin,  contained  in  a  deed 
of  bargain  and  sale,  executed  by  the  defendant 
to  the  plaintiff,  for  certain  lands  in  the  County 
of  Columbia. 

The  declaration  stated  the  covenant  to  be 
that  the  grantor,  at  and  until  the  sealing  and 
delivering  of  the  deed,  was  well  seized  of  the 
premises  thereby  bargained  and  sold,  and  that 
he  had  good  right  to  bargain  and  sell  the  same, 
&c.,  and  averred  that  the  defendant,  at  and 
until  the  sealing  and  delivering-  of  the  deed, 
was  not  well  seized,  &c.  The  defendant 
craved  oyer  of  the  deed,  in  which  was  the 
following  clause,  in  addition  to  the  covenant 
of  seisin:  "  Furthermore  I,  the  said  Lymen 
Hawes,  do  bind  myself,  my  heirs  and  assigns, 
firmly  by  these  presents,  to  warrant  and  defend 
the  above  granted  and  bargained  premises  to 
him,  the  said  John  Cole,  his  heirs  and  assigns 
forever,  against  all  claims  and  demands  what- 
ever, except  the  lord  of  the  soil.  In  witness," 
&c. 

The  defendant  then  pleaded  that  at  the  time 
of  the  executing  of  the  deed,  one  D.  Penfield 
was  seized  of  the  premises  in  fee-simple,  and 
2O4*]  was  the  lord  of  the  soil  *thereof  ;  and 
that,  except  as  to  the  right  and  title  of  the  said 
D.  Penfield,  the  defendant  had  good  right  to 
convey,  as  mentioned  in  his  deed. 

To  this  plea  the  plaintiff  demurred,  and  the 
defendant  joined  in  demurrer. 

Mr.    W.    W.    Van  Ness  for  the  plaintiff. 
Mr.  Spencer,  contra. 

Per  Curiam.  The  suit  is  on  a  covenant  in 
a  deed,  that  the  defendant  was  seized  of  the 
premises,  and  had  a  right  to  convey.  The 
plea  states  that  the  defendant  warranted  the 
land  against  all  but  the  lord  of  the  soil,  and 
that  as  against  all  but  the  lord  of  the  soil,  he 
was  well  seized,  &c. 

The  last  covenant  explains  the  first;  and  in 
construing  them,  both  must  be  taken  together. 

NOTE.—  Covenants  in  deed,  when  construed  together. 

A  general  warranty  is  limited  by  a  special  cove- 
nant only  when  the  two  are  inconsistent  or  an  ex- 
press intention  appears.  Alexander  v.  Schreiber, 
10  Mo.,  460  ;  Rowe  v.  Heath,  23  Tex.,  614  ;  Brown  v. 
Tomlinson,  2  Greene  (la.),  525. 

To  have  a  restriction  annexed  to  one  covenant 
effect  another,  the  two  covenants  must  be  connect- 
ed. They  must  be  of  the  same  import  and  for  the 
same  object.  Howellv.  Richards.  11  East,  633;  Smith 
v.  Compton,  3  B.  &  Ad.,  189;  Estabrook  v.  Smith,  6 
Gray,  572. 

Thus  it  has  been  held  that  covenant  for  title  and 
covenant  for  right  to  convey  are  connected  and 
tend  to  the  same  object,  and  limitations  in  one  may 
be  transferred  to  the  other,  while  covenant  for 
quiet  enjoyment  is  for  a  different  object.  Howell 
v.  Richards,  above  cited  ;  Cornell  v.  Jackson,  3Cush., 
506  ;  Funk  v.  Voneida,  11  S.  &  R.,  109. 

See  Bricker  v.  Bricker,  11  Ohio  St.,  240. 

488 


The  deed  itself  declares  that  there  existed,  dis- 
tinct from  the  grantor,  a  lord  of  the  soil.  This 
was  explicitly  told  to  the  grantee  by  the  deed. 
It  is  not  to  be  supposed  that  the  defendant 
would,  in  one  line,  covenant  absolutely  that  he 
was  seized,  when  he  admitted,  and  it  was  so- 
understood  by  both  parties,  that  there  was  a 
lord  of  the  soil,  and  when,  in  the  next  line, 
the  defendant  only  warranted  against  all,  ex- 
cept the  lord  of  the  soil.  This  exception  wa& 
manifestly  intended  to  apply  to  both  covenants. 
The  spirit  of  the  agreement,  and  good  sense, 
as  well  as  justice,  require  such  a  construc- 
tion. 

We  are,  therefore,  of  opinion  that  the  de- 
fendant is  entitled  to  judgment. 

Judgment  J "or  ffte  defendant. 

Cited  in— 19  Johns.,  103 ;  Deady,  380;  1  Sawy.,  258. 


*DOLE,  Sheriff  of  Rensselaer,  [*2O5 

«. 
MOULTON  ET  AL. 

1.  Prisoner — Bond  of  Indemnity  to  Sheriff — 
Accidental  Escape — Immediate  Return — Ac- 
tion. 2.  Covenants  &  Indemnity,  Bonds  for 
— Penalty,  Law — Equity — Quantum  Damnifi- 
catus. 

A  bond  was  given  to  the  sheriff  by  a  prisoner  in 
execution,  to  remain  a  faithful  prisoner  within  the 
liberties  of  the  prison.  The  prisoner  afterwards  ac- 
cidentally walked  16  feet  over  the  prescribed  limits, 
which  in  many  parts  were  bounded  by  an  imaginary 
line,  and  returned  immediately,  without  the  knowl- 
edge of  the  sheriff,  and  before  any  action  brought: 
it  was  held  that  no  action  could  be  maintained  on 
the  bond,  which  was  given  for  the  indemnity  only 
of  the  sheriff,  and  this  being  a  mere  voluntary  es- 
cape, and  a  voluntary  return  before  action  brought, 
the  sheriff  could  not  be  damnified. 

Citations— 2  Term  R.,  131, 132 ;  Act  of  April  5th, 
1798  (11  sess.,  ch.  91);  Act  of  March  30th,  1799  (llsess.,. 
ch.  65);  Com.  Rep.,  554 ;  2  Term  R.,  129. 

THIS  was  an  action  of  debt,  on  a  bond.  The 
defendant  craved  oyer  of  the  condition  of 
the  bond,  which  was  that  if  Moulton,  then  con- 
fined in  the  jail  of  the  County  of  Rensselaer, 
in  the  custody  of  the  plaintiff,  as  sheriff,  on  a 
ca.  sa.  at  the  suit  of  Elisha  White,  &c.,  should 
remain  a  true  and  faithful  prisoner,  within  the 
liberties  of  the  jail,  &c.  They  then  pleaded, 
1.  Non  estfactum.  2.  That  the  defendant  did 
remain  a  true  and  faithful  prisoner  within  the 
liberties,  &c.  3.  That  "on  the  10th  July, 
1799,  at  Troy,  in  the  County  of  Rensselaer, 
the  said  Josiah  Moulton  was  walking  within 
the  bounds,  or  limits  prescribed  by  law,  for 
the  liberties  of  the  jail  or  prison,  which  limits, 
were  not  defined  by  visible  objects,  but  in 
many  parts  terminated  by  an  imaginary  line, 
and  being  so  walking  within  the  said  limits 
next  or  adjoining  to  the  bounds  of  the  said 
jail  or  prison,  terminated  by  such  imaginary 
line,  as  aforesaid,  he  the  said  J.  M.  casually 
and  accidentally,  in  walking  as  aforesaid, 
crossed  and  went  without  the  said  prescribed 
limits  of  the  said  prison,  the  distance  of  six- 
teen feet,  and  no  more,  and  thereupon,  and 
immediately  thereafter,  and  without  any  fresh 
or  diligent  pursuit,  or  retaking  of  him,  the  said 
JOHNSON'S  CASES,  2. 


1801 


DOLE,  SHERIFF  OF  RENSSKLAER,  v.  MOULTON  ET 


205 


J.  M.,  by  the  said  J.  Dole,  he,  the  said  J.  M, 
voluntarily,  and  of  his  own  accord,  instantly 
returned  within  the  liberties  of  the  said  jail  or 
prison,  and  within  the  custody  of  the  said 
sheriff,  on  the  said  en.  sa.  to  wit,  &c. ;  and 
continually,  after  such  return,  until  the  day  of 
the  exhibition  of  the  bill  of  the  said  James 
Dole,  the  said  J.  M.  hath  been  and  continued, 
and  still  doth  remain  and  continue,  within  the 
liberties  of  the  said  jail  or  prison,  for  the  cause 
2O6*]  aforesaid,  *according  to  the  tenor  and 
effect  of  the  said  writing  obligatory;  and  the 
said  defendants  aver  that  the  said  return  of  the 
said  J.  Moulton  into  the  liberties  of  the  said 
jail  or  prison,  in  manner  aforesaid,  was  prior 
to  any  suit  or  action,  or  pretence  of  suit  or 
action,  sued,  prosecuted  or  commenced  against 
the  said  James,  for  or  by  reason  of  any  escape, 
made  or  pretended  to  be  made,  by  the  said  J. 
M.,  or  for  or  by  reason  of  his  going  out  of  the 
said  liberties,  in  manner  aforesaid,  and  this 
they  are  ready  to  verify,"  &c. 

On  the  first  and  second  pleas  issue  was  joined 
by  the  plaintiff.  To  the  third  plea  there  was 
a  demurrer  and  joinder. 

Messrs.    Bird   and    Van    Vechten    for    the 
plaintiff. 
Messrs.  Woodworth  and  Spencer,  contra. 

LANSING,  Ch.  J.,  delivered  the  opinion  of 
the  court  to  the  following  effect: 

Two  objections  have  been  taken  by  the 
defendants  to  the  validity  of  the  bond;  1.  That 
the  penalty  is  more  than  double  the  amount  of 
the  bond;  2.  That  the  condition  is  not  con- 
formable to  the  terms  of  the  act,  because  it 
does  not  contain  the  words,  "that  the  pris- 
oner shall  not,  at  any  time  or  in  any  wise, 
escape  or  go  without  the  limits  of  the  liber- 
ties." 

As  to  the  first  objection,  it  will  be  seen  that 
the  penalty  does  not  exceed  double  the  amount 
of  the  execution,  including  the  sheriff's  fees 
for  poundage.  The  act  directs  the  bond  to  be 
taken  in  a  penalty  of  double  the  amount  of 
the  sum  for  which  the  prisoner  is  confined. 
It  does  not  refer  to  the  precise  sum  in  the  exe- 
cution. The  poundage  is  due  from  the  pris- 
oner, as  a  part  of  the  debt,  and  must  be  paid, 
before  he  is  entitled  to  a  discharge.  This  ap- 
pears to  be  the  rule  in  England  (2  Term  Rep., 
132),  and  is  sanctioned  by  the  usage  here. 
But  it  does  not  lie  in  the  mouth  of  the  defend- 
2O7*]  ants  to  *make  this  objection.  It  is  not 
pretended  that  a  bond  in  a  higher  sum  has 
been  extorted  from  them.  They  must,  there- 
fore, be  considered  as  having  acquiesced  in  it, 
and  ought  not  now  to  be  allowed  to  avoid  it 
on  that  ground. 

The  second  objection  is  equally  unten  able. 
The  condition  of  the  bond  is,  in  effect,  the 
same  as  if  it  contained  all  the  words  of  the  act ; 
and  if  it  was  not,  the  bond  ought  not  to  be  in- 
validated, because  it  omits  to  bind  the  defend- 
ants to  the  full  extent  which  the  plaintiff  had 
a  right  to  demand.  Ifcis  well  enough,  if  it  is 
within  the  act ;  and  if  less  extensive,  it  is  a 
favor  to  the  defendants,  of  which  they  have 
no  reason  to  complain. 

Having  dismissed  these  objections,  we  come 
to  the  principal  question,  the  sufficiency  of  the 
third  plea.  The  plea  admits  the  liberties  to 
JOHNSON'S  CASES,  2. 


have  been  prescribed  by  law,  and  although 
they  are,  in  many  parts,  terminated  by  imag- 
inary lines,  we  must  conclude  that  they  were 
designated  as  to  the  County  Court  appeared 
proper,  and  were  sufficient  to  regulate  the 
sheriff's  conduct.  The  bond,  then,  being 
offered  to  the  sheriff,  it  was  his  duty,  if  the 
sureties  were  sufficient,  to  have  permitted  the 
defendant,  Moulton,  to  go  at  large  within  the 
liberties.  By  the  Supplementary  Act  of  the 
30th  March,  1799,  it  is  declared  that  the  sheriff 
may  permit  prisoners  to  go  at  large  within  the 
liberties,  without  any  security  taken;  and 
when  the  security  is  procured  and  offered,  it 
may  be  considered  as  obligatory  on  the  sheriff 
to  give  the  prisoner  who  offers  it  the  use  of 
the  liberties  of  the  jail.  He  has  no  other  than 
a  reasonable  discretion  to  exercise,  in  regard 
to  the  competency  of  the  security  and  the  fit- 
ness of  the  bond. 

In  all  cases,  therefore,  where  the  security  is 
offered,  the  four  walls  of  the  prison,  according 
to  the  ancient  law,  are  enlarged  to  the  extent 
of  the  limits  assigned  by  the  statute;  and  the 
law  concerning  escapes  must,  without  doubt, 
apply  to  the  limits,  in  the  same  manner  as 
*it  formerly  applied  to  the  four  walls  [*2O& 
of  the  prison.  (2  Term  Rep.,  131.)  So  that 
the  limits  are  to  be  considered,  in  such  case, 
as  the  prison. 

The  bond,  in  this  case,  is  for  the  indemnity 
of  the  sheriff  only.  Notwithstanding  its  form, 
or  the  terms  in  which  it  is  expressed,  this 
would  result  from  the  construction  of  the  Act 
of  the  5th  April,  1798  (11  sess.,  ch:  91),  with- 
out the  Declaratory  Act  of  the  30th  March,  1799 
(11  sess.,  ch.  65),  which  is  retrospective,  and 
affects  pre-existing,  as  well  as  subsequent 
bonds.  Viewing  it  as  a  bond  of  indemnity 
merely,  it  must  appear  that  the  sheriff  has 
been  damnified,  in  order  to  maintain  this 
action. 

An  escape  without  the  knowledge  of  the 
sheriff,  and  a  voluntary  return  without  his 
knowledge,  before  suit  brought,  is  tantamount, 
to  a  retaking  on  a  fresh  pursuit.  (Com.  Rep. , 
554;  2  Term  Rep.,  129.) 

Here  the  prisoner  immediately  returned 
within  the  limits.  His  going  beyond  them 
cannot  be  considered  as  a  voluntary  escape  on 
the  part  of  the  sheriff.  He  was  authorized  by 
law  to  take  the  bond,  and  indulge  the  prisoner 
with  the  privilege  of  the  liberties.  It  was  a 
legal  act  which  cannot  be  imputed  to  him  as  a 
fault,  nor  can  it  justify  the  inference  that  he 
consented  to  the  escape.  It  is,  therefore,  to 
be  considered  as  a  voluntary  escape  only,  and 
the  return  of  the  prisoner  before  action 
brought,  saves  the  condition  of  the  bond,  and 
is  a  competent  defence  on  the  part  of  the 
sheriff. 

Here,  then,  is  a  case  in  which  the  sheriff 
cannot  sustain  any  damage  from  the  escape, 
and  the  question  results,  whether  he  is  enti- 
tled to  recover  on  this  bond.  As  the  sheriff 
has  not,  and  cannot  be  damnified  by  the  al- 
leged escape,  it  would  be  absurd  to  say  that 
the  plea  was  not  valid,  when  it  discloses  mat- 
ter sufficient  to  show  that  the  plaintiff  sus- 
tained no  injury. 

In  bonds  for  the  perf ormance  of  covenants 
and  for  indemnity,  the  penalty  is  not  recover- 
able. Courts  of  law  *are  invested  with  [*2OJ> 


209 


SUPREME  COURT,  STATE  OF  NEW  YORK 


1801 


an  equitable  jurisdiction  on  the  subject;  and 
the  true  question  in  courts  of  law,  as  well  as 
in  courts  of  equity,  is  now  a  question  of  dam- 
age. Quantum  diimnificatus,  is  the  true  point 
in  issue,  in  all  such  cases;  and  non  damnifi- 
catus  must  be  a  good  plea  to  all  indemnifying 
bonds.  The  plea  in  the  present  case  'is  sub- 
stantially such  a  plea. 

We  are,  therefore,  of  opinion  that  the  de- 
fendant is  entitled  to  judgment. 

BENSON,  J.,  and  RADCLIFF,  J.,  though  they 
concurred  in  the  judgment  of  the  court,  de- 
clined giving  any  opinion  whether  the  sheriff 
was  bound  to  grant  the  privilege  of  the  liber- 
ties of  the  prison,  on  tender  of  a  bond,  with- 
out sufficient  sureties,  as  the  decision  of  that 
point  was  not  necessary  in  the  determination 
of  the  question,  as  to  the  validity  of  the  plea. 

LEWIS,  J.,  was  absent. 
Judgment  for  the  Defendant.1 

Approved— 3  Johns.  Cas.,  75. 

Distinguished — 4  Johns.,  50. 

Cited  in— 7  Johns.,  177;  8  Johns.,  113;  10  Johns., 
583;  13  Johns.,  346 ;  6  Cow.,  744 ;  7  Wend.,  613 ;  73  N.  Y., 
303;  57  How.,  113, 117;  7  W.  Dig.,  155 ;  2  Mason,  524. 


EXECUTORS  of  MAHANY*.  FULLER. 

Recovery — By  Executors — Less  than  Fifty  Dol- 
lars— Costs. 

Where  executors  sued  in  this  court,  and  recovered 
less  than  $50,  it  was  held  that  they  were  not  entitled 
to  recover  costs,  nor  liable  to  pay  costs  to  the  de- 
fendant. 

Citation— 10  sess.,  ch.  72. 

THIS  was  an  action  of  assumpsit.     The  de- 
fendant pleaded  non  assumpsit  and  pay- 
ment, with  a  notice  of  set-off.     The  cause  was 
referred,  by  consent,  and  the  referees  reported 
a  balance  in  favor  of  the  plaintiffs,  for  $8.40. 

Mr.    Van    Vechten,  for  the  plaintiffs,  now 
moved  for  full  costs. 
Mr.  Graham,  contra. 

21O*]  *LANSING,  Ch.  J.,  delivered  the 
opinion  of  the  court: 

The  statute  (10  sess.  ch.  72)  which  was  ex- 
pressly enacted  to  restrain  parties  fron  bring- 
ing suits  in  this  court  for  the  recovery  of  less 
than  the  sum  of  $250,  limits  the  plaintiff's 
right  to  costs  to  the  recovery  of  $50.  In  case 
he  recovers  more  than  $50,  but  less  than  $250, 
he  is  then  entitled  to  such  costs  only  as  are 
taxed  in  the  courts  of  common  pleas;  and  if 
less  than  $50  is  recovered,  the  defendant  be- 
comes entitled  to  costs  against  the  plaintiff,  as 
in  the  case  of  a  verdict  in  his  favor. 

The  plaintiffs  in  the  present  case  prosecute 
as  executors,  and  cannot  be  affected  bv  the 
provision  of  the  act  which  subjects  plaintiffs 
who  recover  less  than  $50  to  the  payment  of 

1.— See  Tillman  v.  Lansing-,  4  Johns.  Rep.,  45 ;  Bis- 
«el  v.  Kip,  5  Johns.  Rep.,  89;  Stone  v.  Woods,  5 
Johns.,  Hep.,  182 ;  Peters  and  Gedney  v.  Henry,  6 
Johns.  Rep.,  121. 

490 


costs;  for  if  such  were^to  be  the  construction 
of  the  act,  it  would  involve  the  inconsistency 
of  subjecting  executors,  who  were  plaintiffs, 
to  the  payment  of  costs,  if  they  sustained 
their  suit,  and  recovered  less  than  $50,  and 
wholly  exempting  them  from  costs  in  case  of 
a  total  failure  in  their  suit. 

The  preamble  to  the  statute  shows  the  intent 
of  the  Legislature.  It  recites  that  there  are 
courts  of  record  in  the  several  counties,  in 
which  suitors  may  obtain  justice  at  a  less  ex- 
pense than  in  this  court,  and  for  that  reason 
imposes  the  restraints  on  suits  for  small  sums 
in  the  Supreme  Court. 

This  court  has  decided  that  executors, 
plaintiffs,  who  recover  less  than  $25,  in  the 
courts  of  common  pleas,  are,  nevertheless,  en- 
titled to  costs.  That  decision  was  founded  on 
the  consideration  that  the  Ten  Pound  Act  did 
not  extend  to  cases  of  executors,  and  that  con- 
sequently the  statutes  relative  to  costs,  which 
gave  costs  to  plaintiffs  who  recovered  dam 
ages,  applied. 

The  plea  of  set-off  does  not  vary  the  case, 
for  the  statute  puts  it  expressly  on  the  re- 
covery. As  the  plaintiffs  would  not  have 
been  liable  to  pay  costs  in  case  a  verdict  had 
been  found  for  the  defendant,  neither  ought 
*they  to  recover  costs.  The  act  ought  [*2 1 1 
not  to  be  construed  so  as  to  deprive  executors 
of  the  benefit  of  their  general  exemption  from 
costs.  The  motion  must  be  denied. 

Motion  denied. 
Cited  in— 6  Cow.,  613. 


TITFORD  v.  KNOTT/. 

1.    Evidence — Handwriting  —  Previous  Knowl- 
\     edge — Comparison.      2.  Id. — Other  Papers — 
Admitted    Genuine — Jury.      3.  Id. — Witness 
— Competency. 

The  handwriting  of  the  maker  or  indprser  of  a 
note  may  be  proved  by  witnesses  from  their  previous 
knowledge  of  his  handwriting1,  derived  from  having1 
seen  the  person  write,  or  from  authentic  papers  re- 
ceived in  the  course  of  business  ;  but  if  the  witness 
has  no  previous  knowledge  of  the  handwriting,  he 
cannot  be  permitted  to  decide  upon  it,  in  court, 
from  a  comparison  of  hands.  Whether  papers 
signed  by  the  party,  admitted  to  be  genuine,  can  be 
delivered  to  a  jury  to  determine,  by  a  comparison, 
as  to  the  genuineness  of  the  paper  in  question? 
Quaere. 

The  confidential  clerk  of  the  plaintiff  was  ad- 
mitted to  prove  a  correspondence  by  letters,  be- 
tween the  plaintiff  and  defendant,  who  resided  in 
London,  and  to  testify  that  from  the  knowledge 
that  he  had  acquired  from  the  letters  of  the  de- 
fendant, received  during  this  correspondence,  he 
believed  the  indorsement  in  question  to  be  the 
handwriting  of  the  defendant,  though  the  witness 
had  never  seen  the  defendant  write. 

Citations— Peake's  N.  P.,  21 ;  1  Esp.  Cas.,  14, 15,  £51, 
352 ;  Buller's  N.  P.,  236. 

THIS  was  an  action  on  the  case  brought  by 
the  plaintiff,  as  the  indorsee  of  a  promis- 


NOTE.  —  Evidence,  handwriting,  what  witnesses 
competent  to  prove. 

A  Witness  man  testify  positively  in  the  first  instance 
that  he  Jennies  the  signature,  in  such  case  it  being  for 
the  apposite  side  to  cross-examine  as  to  his  means  of 
knowledge.  Goodhue  v.  Bartlett,  5  McLean,  186 ; 
Whittierv.  Gould,  8  Watts, 485;  Henderson  v.  Bank, 

JOHNSON'S  CASES,  2. 


1801 


TITFORD  v.  KNOTT. 


211 


sory  note,  against  the  defendant,  as  the  maker, 
and  was  tried  at  a  circuit  court  held  in  the 
city  of  New  York,  on  the  9th  day  of  April, 
1800,  before  Mr.  Ch.  J.  Lansing. 

The  plaintiff  called  John  Goodeve,  as  a  wit- 
ness, who  said  that  he  had  known  the  defend- 
ant for  several  years,  but  was  not  well  ac- 
quainted with  his  handwriting;  that  he  had 
been  bail  for  the  defendant  to  the  sheriff,  in 
this  action,  and  upon  that  occasion  he  be- 
lieved he  had  seen  the  defendant  sign  his 
name  to  the  bailbond  which  was  produced  by 
the  plaintiff's  counsel.  The  witness  said  that 
the  bailbond  produced  was  the  same  that  had 
been  signed  by  him;  that  he  did  not  know 
that  he  had  seen  the  defendant  write,  but  he 
supposed  he  must  have  seen  him  write  his 
name  when  he  executed  the  bailbond;  that 
lie  was  possessed  of  several  pieces  of  writing 
which  he  believed  to  be  the  handwriting  of 
the  defendant,  which  he  had  received  from 
him  in  the  course  of  his  business,  and  one  of 
which  he  produced.  It  purported  to  be  an 
212*]  order  *for  candles,  and  was  signed 
with  the  defendant's  name.  The  witness  said 
he  believed  this  to  be  the  defendant's  hand- 
writing, but  that  he  had  not  seen  him  write  it; 
that  the  candles  had  been  delivered  according 
to  the  order,  but  that  he  did  not  know  that  they 
had  been  paid  for;  that  the  defendant  had  not 
acknowledged  to  him  that  he  had  sent  him 
such  an  order.  Being  asked  whether  he  be- 
lieved the  signature  to  the  note  to  be  the 
handwriting  of  the  defendant,  he  answered 
that  he  could  not  determine,  except  from  the 
writings  before  him;  and  that  in  his  opinion, 
there  was  a  similarity  between  them. 

To  prove  the  indorsement,  the  plaintiff 
called  Robert  Bach,  who  said  that  he  had 
formerly  been  the  plaintiff's  confidential  clerk; 
that  the  plaintiff  and  the  indorser  (who  re- 
sided in  London)  had  long  been  correspond- 
ents; that  in  the  course  of  the  plaintiff's  busi- 
,  ness,  the  plaintiff  had  received  several  letters 
from  the  indorser,  which,  of  course,  came  to 


the  hands  of  the  witness;  that  he  had  never 
seen  the  indorser  write,  but  that  from  his 
knowledge  of  the  indorser's  handwriting,  ac- 
quired as  above  mentioned,  he  believed  the 
signature  indorsed  to  be  the  handwriting  of 
the  indorser;  that  the  note  in  question,  with 
the  indorsement  thereon,  was  received  by  the 
plaintiff  in  a  letter  (directed  to  the  plaintiff) 
from  the  indorser;  which  letter  the  witness 
himself  had  received  and  opened.  The  note 
was  dated  at  London,  the  2d  day  of  April, 
1792.  It  was  proved  by  all  the  witnesses  that 
the  defendant  was  an  Englishman,  and  had 
arrived  at  New  York  about  five  or  six  years 
ago. 

William  Wayman,  who  was  produced  as 
witness  on  the  part  of  the  defendant,  declared 
that  he  had  known  the  defendant  about  eight 
or  nine  years;  had  seen  him  write  several 
times,  and  had  dealings  with  him;  that  he 
sometimes  signed  "  T."  and  at  other  times 
"Thomas;"  he  believed  himself  to  be  com- 
petent to  judge  of  the  handwriting  of  the  de- 
fendant; that  he  did  not  believe  the  signature 
to  the  note  was  the  handwriting  of  the  de- 
fendant. *Upon  his  cross-examination,  [*213 
he  said  he  had  seen  the  defendant  write  three 
times. 

John  Cunningham,  another  witness  for  the 
defendant,  testified  that  he  had  known  the  de- 
fendant about  five  years,  had  been  in  habits 
of  intimacy  and  business  with  him,  and  had 
seen  him  write  frequently,  and  believed  him- 
self able  to  judge  of  the  handwriting  of  the 
defendant,  and  that  he  did  not  believe  the 
signature  to  be  the  handwriting  of  the  defend- 
ant. 

It  was  objected  by  the  counsel  for  the  de- 
fendant that  testimony  from  the  comparison 
of  hands  was  improper  and  inadmissible;  that 
the  evidence  on  the  part  of  the  plaintiff  was 
insufficient  to  maintain  his  action,  and  that 
therefore  he  ought  to  be  nonsuited.  The 
judge,  however,  ruled  that  evidence  from  the 
comparison  of  hands  was  proper,  and  per- 


il Ala.,  855.    But  see  Slaymaker  v.  Wilson,  1  Penr. 
and  W.  (Pa.),  216. 

Opinion,  what  witnesses  may  give. 

Persons  who  have  seen  the  party  write  at  least  once. 
Magee  v.  Osborn,  32  N.  Y.,  669;  Hammond  v.  Vari- 
an,  54-N.  Y.,  398;  Hideout  v.  Newton,  17  N.  H.,  71; 
Hopkins  v.  Megguire,  35  Me.,  78 ;  Bowman  v.  San- 
born,  25  N.  H.,  87;  Hoitt  v.  Moulton,  21  N.  H.,  586. 

See  Brigham  v.  Peters,  1  Gray,  139. 

Persons  who  never  saw  the  party  write  but  have  a 
knowledge  of  his  handwriting  derived  from  other 
sources,  as  having  had  correspondence  with  liim, 
having  had  notes  or  moilgages  of  his  which  were 
afterwards  paid,  etc.  Johnson  v.  State,  35  Ala.,  370; 
Burnham  v.  Ayer,  36  N.  H.,  182;  Page  v.  Horaaus, 
14  Me.,  478;  Commonwealth  v.  Carey,  2  Pick.,  47; 
Amherst  Bank  v.  Root,  2  Met.,  522 ;  Southern  Exp. 
Co.  v.  Thornton,  41  Miss.,  216;  Chaflee  v.  Taylor, 
3  Allen,  598 ;  Reyburn  v.  Bellotti,  10  Mo.,  597 ;  John- 
son v.  Daverne,  19  Johns.,  134;  Wilson  v.  Betts,.4 
Den.,  201;  Donoghoe  v.  People,  6  Park.  Cr.,  120; 
McKonkey  v.  Gaylord,  1  Jones  (N.  C.L  L.  94 ;  U.  S. 
v.  Simpson,  3  Pa.,  437 ;  Finch  v.  Gridley,  25  Wend., 
469 ;  Boyle  v.  Colman,  13  Barb.,  42. 

A  witness  may  refresh  his  memory  by  referring  to 
writing  known  to  be  genuine ;  but  if  afterwards  he 
can  only  testify  as  to  the  genuineness  of  the  dis- 
puted writing  by  the  comparison  it  has  been  held 
he  is  incompetent.  McNair  v.  Commonwealth,  26 
Pa.  St.,  388;  Redford  v.  Peggy,  6  Rand.  (Va.),  316; 
Smith  v.  Walton,  8  Gill.  (Md.),  77. 
•  By  statute  it  is  provided  in  New  York  that  com- 
parison of  disputed  handwriting  with  genuine  may 
be  made  by  witnesses,  and  such  writings  and  evi- 
dence may  be  submitted  to  the  jury.  N.  Y.  Rev. 

JOHNSON'S  CASES,  2. 


Stat.  (7th  Ed.),  p.  2391.  This  is  the  English  statute, 
17  and  18  Viet.,  ch.  125,  sec.  27.  Some  other  states 
have  similar  provisions,  arid  in  some  states  it  is  the 
law  without  statute.  Lyon  v.  Lyman,  9  Conn.,  55; 
Woodman  v.  Dana,  52  Me.,  9 ;  Wilson  v.  Beauchamp, 
50  Miss.,  24 ;  State  v.  Hastings,  53  N.  H.,  452 ;  Moody 
v.  Rowell,  17  Pick.,  490. 
Contra,  Jones  v.  The  State,  60  Ind.,  341. 


Houghton  v. — 

guire,  7  Gray,  177;  Commonwealth  v.  Eastman,  1 
Gush.,  189;  McKeone  v.  Barnes,  108  Mass.,  344; 
Chandler  v.  Le  Barron,  45  Me.,  534 :  Travis  v.  Brown, 
43  Pa.  St.,  9. 

Qualified  experts,  who  are,  to  what,  and  under 
what  circumstances,  they  may  testify.  See  Johnson 
v.  State,  35  Ala.,  370;  Moody  v.  Rowell,  17  Pick.,  490; 

ialth  v. 
Gray, 
Shinborn, 

46  N.  H.,  497 ;  Wittiee  v.  Rowe,  45  Me.,  571 ;  Calkins 
v.  State,  14  Ohio  St.,  222;  Wilson  v.  Kirkland,  5 
Hill,  182;  Woodman  v.  Dana,  52  Me.,  9;  Niller  v. 
Johnson,  27  Md.,  6 ;  Maye  v.  Herndon,  30  Miss.,  110 ; 
State  v.  Clinton,  67  Mo.,  380. 

See,  generally,  Putnam  v.  Waclley,  40  111.,  346; 
Sweetser  v.  Lowell,  33  Me.,  446 ;  Reed  v.  Spaulding, 
42  3ST.  H.,  114;  Cochran  v.  Butterfield,  18  V  H.,  llo; 
Cunningham  v.  Hudson  River  Bank,  21  Wend.,  557 ; 
Jackson  v.  Van  Duseii,  5  Johns.,  144;  Hess  v.  State, 
5  Ohio,  5. 

As  to  handwriting  of  subscribing  witness,  when 
it  may  be  proved,  see  note  Mott  v.  Doughty,  1  Johns. 
Cas.,  230  (this  edition). 

491 


213 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1801 


mitted  the  counsel  for  the  plaintiff  to  show  to 
the  jury  papers  signed  by  the  defendant,  and 
from  them  the  judge  of  the  similarity  to  the  note. 

The  defendant's  counsel  then  produced  fif- 
teen or  eighteen  notes  of  hand,  some  of  which 
it  was  admitted,  were  written  wholly  by  the 
defendant,  others  of  them  only  signed  or  in- 
dorsed by  him ;  and  with  the  consent  of  the 
plaintiff's  counsel,  delivered  them  to  the  jury, 
under  an  agreement  that  the  jury  should  take 
the  notes  so  delivered  to  them,  the  bail-bond, 
and  order,  and  also  the  note  in  question  with 
them  out  of  court;  and  should  from  all  the 
evidence,  so  produced  and  delivered  to  them, 
make  up  their  verdict. 

The  judge  left  it  generally  to  the  jury  to 
determine  from  all  the  circumstances  whether 
the  signature  on  the  note  was  the  signature  of 
the  defendant,  with  directions  that  if  they 
were  convinced  it  was  so,  they  should  find  for 
the  plaintiff. 

The  jury  found  a  verdict  for  the  plaintiff. 

A  motion  was  made  to  set  aside  the  verdict, 
which  was  argued  by  Mr.  Munro  for  the 
plaintiff,  and  Mr.  Troup  for  the  defendant, 
who  cited  Stranger  v.  Searle  (1  Esp.  Rep., 
2 14*]  *14),  Goodlittle  v.  Braham  (4  Term  Rep. , 
497),  and  Macferson  v.  Thoytes  (Peake's  Rep. ,  28). 

KENT,  J. ,  delivered  the  opinion  of  the  court : 

The  question,  in  this  case,  is  as  to  the  com- 
petency of  the  proof  of  the  handwriting  of  the 
defendant;  and  we  are  of  opinion  it  was  ad- 
missible. It  is  usual  for  witnesses  to  prove 
handwriting  from  previous  knowledge  of  the 
hand,  derived  from  having  seen  the  person 
write,  or  from  authentic  papers,  received  in 
the  course  of  business.  (Peake's  N.  P.,  21; 
1  Esp.  Cases,  15,  351,  352.)  If  the  witness  has 
no  previous  knowledge  of  the  hand,  he  can- 
not then  be  permitted  to  decide  it,  in  court, 
from  a  comparison  of  hands.  (1  Esp.  Cas. ,  14.) 

To  repel  this  proof,  the  defendant  pro- 
duced two  witnesses,  who  severally  swore 
that  they  were  acquainted  with  his  hand- 
writing, and  that  the  note  in  question  was  not 
signed  with  his  hand.  The  defendants  also 
produced  several  notes,  admitted  to  be  his, 
for  the  jury  to  judge,  by  comparison,  and 
they  were  delivered  to  the  jury  by  consent. 
This  consent  takes  away  all  objection  to  the 
admissibility  of  the  notes,  and  we,  therefore, 
decline  giving  any  opinion  as  to  the  legality 
of  such  testimony  without  consent. 

The  plaintiff  then  proved  the  indorsement 
to  the  note  by  a  confidential  clerk,  who  testi- 
fied that  the  plaintiff  and  indorser  (who  re- 
sided in  London)  had  long  been  correspond- 
ents, and  that  their  letters  came  into  his 
hands;  and  although  he  had  never  seen  the 
indorser  write,  he  believed  the  indorsement 
to  be  his  hand,  from  the  knowledge  he  had  ac- 
quired from  the  correspondence. 

This  proof  was  undoubtedly  admissible  and 
competent  (Buller's  N.  P.,  236),  and  there  is 
no  sufficient  cause  shown  for  disturbing  the 
verdict. 

Rule  refused.1 

Followed— 18  Ind.,  42. 
Distinguished— 21  Wend.,  559. 

Cited  in— 19  Johns.,  136 ;  9  Cow.,  112 ;  5  Hill,  183 ;  14 
N.  Y.,  442 ;  6  Daly,  30 ;  1  Rob.,  694. 

1.— See  Peake's  Law  of  Ev.  (3d  ed.),  103, 109. 
492 


*FISH  v.  WEATHERWAX.   [*215 

1.  Practice — Judgment — Arrested —  Writ  of  Er- 
ror. 2.  Id. — Judgment  Refilled — Mandamus. 

Where  a  verdict  is  found  for  the  plaintiff,  and  the 
judgment  of  the  court  below  is  arrested,  and  the 
plaintiff  wishes  to  bring  a  writ  of  error,  the  proper 
course  is  for  the  plaintiff  to  move  the  court  for 
judgment  against  himself,  and  for  the  defendant, 
for  the  insufficiency  of  the  declaration,  on  which 
judgment  a  writ  of  error  will  lie,  but  not  on  an 
arrest  of  judgment.  If  the  court  below  refuses  to 
give  such  judgment,  on  the  prayer  of  the  party,  this 
court  will  grant  a  mandamus  to  compel  them  to  give 
judjrment. 

Citations— Lutw.,  124,  166,  1052,  1419,  1498.  1608;  2 
Barnes,  206,  226 ;  Plowd.,  209 ;  2  Saund.,  228 ;  2  Town., 
Ind.,  118, 155 ;  5  Co.,  32 ;  1  Mod..  207. 

MR.  FOOT,  for  the  plaintiff,  moved  for  a 
rule  on  the  judges  of  the  Court  of  Com- 
mon Pleas  of  the  County  of  Rensselaer,  to 
show  cause  why  a  mandamus  should  not  issue, 
to  compel  them  to  give  judgment  in  this  cause. 
It  appeared  that  a  verdict  had  been  found  for 
the  plaintiff,  and  that  the  Common  Pleas  had 
arrested  the  judgment  for  the  insufficiency  of 
the  declaration. 

Mr.  Foot  said  that  a  writ  of  error  could  not 
lie,  and  that  a  mandamus  was  the  only  remedv. 
(He  cited  1  Salk.,  144;  Cowp.,  377;  3  Burr., 
1265;  Stra.,  113,  530.) 

Mr.  Bird  contra. 

BENSON,  J.,  delivered  the  opinion  of  the 
court: 

There  may  be  a  judgment  for  the  insuf- 
ficiency of  the  declaration  or  plea,  as  the  case 
may  be,  against  the  party,  though  there  may 
be  a  verdict  for  him.  If  the  party  for  whom 
a  verdict  is  found  will  not  move  for  judg- 
ment, the  other  party  may  pray  for  judgment 
against  himself  ;  but  the  entry  on  the  record 
will  still  be  as  if  the  judgment  had  been  on  the 
prayer  of  the  party  for  whom  the  judgment 
was  found.  And  where  a  party  prays  to  have 
judgment  rendered  against  him,  to  the  intent 
that  he  may  bring  a  writ  of  error,  he  is  entitled 
to  have  it  so  rendered  against  him,  as  matter 
of  right. 

Where  the  verdict  is  for  the  plaintiff,  if  the 
defendant,  instead  of  letting  the  plaintiff-take 
a  judgment  for  himself,  prays  only  that  the 
court,  omitting  to  render  judgment,  shall,  as 
their  final  act  in  the  cause,  say  to  the  parties 
that  they  may  go  without  any  further  day 
given  to  them  to  appear  again  ;  and  if  the 
plaintiff,  when  the  court  have  declared  their 
opinion  against  him,  does  not  pray  judgment 
against  himself,  the  judgment,  *in  [*21<> 
such  case,  is  said  to  be  arrested,  as  distinguished 
from  the  case  where  it  is  rendered ;  for,  accord- 
ing to  the  ordinary,  though,  perhaps,  improper 
sense  of  the  expression,  a  judgment  is  said  to 
be  arrested  when  the  court,  by  an  interlocutory 
act,  award  a  new  trial,  or  repleader,  or  other 
further  proceedings;  and  where  the  party  for 
whom  the  verdict  was  given,  must  still  so 
further  proceed,  until  there  shall  finally  be  a 
judgment  in  the  cause,  and  then,  on  a  writ  of 
error,  he  may  have  judgment  on  the  verdict, 
if  entitled  to  it,  and  the  judgment  of  the  court, 
in  awarding  the  further  proceedings,  and  of 
consequence  the  proceedings  themselves,  be 
JOHNSON'S  CASES,  2. 


1801 


HASKINS  v.  SEBOR. 


216 


reversed.  The  arresting  of  judgment,  how- 
ever, in  the  present  case,  is  the  final  act  of  the 
court;  and  the  question  is,  whether  it  is  such 
a  judgment  as  that  a  writ  of  error  will  lie 
upon  it. 

In  some  cases,  where  a  judgment  is  rendered 
against  the  plaintiff,  it  will  be  a  bar  to  another 
action  for  the  same  cause,  and  his  only  remedy 
is  by  a  writ  of  error  to  have  the  judgment  re- 
versed; but  if  the  remedy,  where  the  judgment 
is  arrested,  is  also  by  writ  of  error,  then  the 
law,  to  be  consistent  with  itself,  must  make  an 
arrest  of  judgment  a  bar  to  a  new  action,  in 
the  same  cases  where  the  rendering  of  judg- 
ment is  a  bar.  But  as  the  arrest  of  judgment 
is  not,  by  law,  a  bar  in  any  case,  the  infer- 
ence must  be  that  a  writ  of  error  will  not  lie 
on  it. 

That  this  is  the  law,  is  further  evident  from 
the  form  of  the  entry  where  the  judgment  is 
arrested,  and  the  form  of  the  Court  of  Errors. 
In  the  first  case  the  entry  is,  "omitting  the 
rendering  of  judgment,"  &c.,  in  the  latter  case, 
the  writ  of  error  states,  "that  in  rendering 
judgment,  manifest  error,"  &c. 

If,  then,  the  plaintiff  has  no  remedy  by  a 
writ  of  error,  he  must  have  it  by  a  writ  of 
mandamus;  though,  strictly  speaking,  he  is 
not  entitled  to  this  rule,  before  he  has  prayed 
the  court  below  to  render  judgment  against 
217*]  *himself,  for  until  then  there  is  no  de- 
fault in  the  judge  of  the  inferior  court;  yet  as 
this  case  is  new,  and  to  prevent  delay,  the 
court  will  grant  a  special  rule,  that  if  the 
judges  of  the  court  below  shall  refuse,  on  the 
prayer  of  the  plaintiff,  to  render  judgment 
against  himself,  and  for  the  defendant,  that 
then  they  show  cause  by  the  first  day  of  the 
next  term,  why  a  mandamus  should  not  issue 
to  them  to  proceed  to  judgment  in  the  cause.1 
<Lutw.,  124,  166,  1052,  1419,  1498,  1608  ;  2 
Barnes,  206,  226;  Plowd.,  209;  2  Saund.,  228; 
2  Town.  Jud.,  118, 155;  5  Co.,  32;  1  Mod.,  207.) 

Rule  granted  accordingly. 

Cited  in— 19  Johns.,  247 ;  2  Wend.,  631 ;  9  Wend.,  192 ; 
18  Wend.,  95 ;  1  Hill,  659 ;  27  N.  Y.,  386 ;  78  N.  Y.,  61 ;  1 
Hun,  262 ;  4  T.  &  C.,  9 ;  47  Barb.,  162 ;  52  Barb.,  347 ;  38 
New  Jersey  Law,  184. 


HASKINS  v.  SEBOR. 

Stipulation  to  try  Cause — 'Neglect  to  Move — 
Waiver. 

Where  the  plaintiff  stipulates  to  try  the  cause  at 
the  next  circuit  court,  but  does  not,  and  the  defend- 
ant neglects  to  move  for  judgment,  as  in  case  of 
nonsuit,  at  the  next  term  after  the  default,  it  is  a 
waiver  of  the  default ;  and  the  plaintiff  will  be  en- 
titled to  stipulate  anew,  if  the  motion  is  made  at  a 
subsequent  term. 

TSSUE  was  joined  in  this  cause,  in  February 
J-  Term  last,  and  in  April  Term  the  plaintiff 
stipulated  to  try  the  cause  at  the  next  circuit, 
which  was  heldin  July  last ;  but  did  not  bring 
on  the  cause  to  trial,  though  younger  issues 
were  tried. 

Mr.  Pendleton,  for  the  defendant,  now  moved 
for  judgment,  as  in  case  of  nonsuit. 

1.— See  Bayard  v.  Malcolm,  2  Johns.  Rep.,  101. 
JOHNSON'S  CASES,  2. 


Mr.  B.  Livingston,  contra. 

Per  Curiam.  As  the  defendant  did  not  apply 
at  the  July  Term,  but  has  suffered  two  terms 
to  elapse  since  the  defendant's  default,  he  must 
be  considered  as  having  waived  the  default, 
and  the  plaintiff  is  *freed  from  his  [*218 
stipulation.  This  being,  then,  as  it  were,  the 
first  application,  the  plaintiff  is  entitled  to  a 
new  stipulation,  and  the  motion  must  be  de- 
nied. 

Rule  refused. 
Cited  in— 15  Abb.,  6. 


NIXEN  «.  HALLETT  AND  BOWNE. 

Trial —  Unexpected  Absence  of  Witness — Excuse. 

Where  a  material  witness  for  the  plaintiff  unex- 
pectedly went  abroad,  so  that  he  could  not  be  sub- 
poenaed at  the  trial,  it  was  held  a  sufficient  excuse 
for  the  plaintiff,  for  not  proceeding1  to  trial,  pursu- 
ant to  his  stipulation. 

MR.    PENDLETON,    for    the    defendants 
moved  for  judgment,  as  in  case  of  non- 
suit, in  this  cause,  as  the  plaintiff  did  not  try 
the  cause  at  the  last  November  circuit,  pursu- 
ant to  his  stipulation. 

Mr.  Troup,  contra,  read  an  affidavit,  stating 
that  a  material  witness  for  the  plaintiff,  resid- 
ing in  New  York,  went  on  a  voyage  to  sea, 
some  time  in  October,  which  was  not  known 
to  the  plaintiff  or  his  attorney  until  the  begin- 
ning of  November,  when  it  was  too  late  to  pro- 
cure his  attendance  at  the  circuit ;  but  that  he 
was  expected  to  return  before  the  next  circuit. 

Per  Curiam.  We  think  the  plaintiff  has 
shown  a  sufficient  excuse  for  not  proceeding 
to  trial;  and  he  may  stipulate  anew,  on  pay- 
ment of  the  costs  of  the  last  circuit. 

Motion  denied. 


*JACKSON,  ex  dem.  GANSEVOORT,  [*219 

v. 
MURRAY. 

Practice —  Verdict — Subject  to  Court's  Opinion — 
Opening  Argument. 

Where  a  verdict  is  taken  subject  to  the  opinion  of 
the  court  on  a  case  stated,  the  counsel  for  the 
plaintiff  opens  the  argument  of  the  cause. 

A  VERDICT  having  been  taken  for  the 
plaintiff  in  this  cause,  subject  to  the  opin- 
ion of  the  court,  on  a  case 'made  ;  a  question 
was  raised  by  the  counsel,  which  of  them  was 
to  open  the  argument,  on  the  motion  for  a 
new  trial. 

Per  Curiam.  Where  a  verdict  is  taken  for 
the  plaintiff,  subject  to  the  opinion  of  the 
court,  on  a  case  stated,  it  is  to  be  considered  so 
far  in  the  nature  of  a  special  verdict,  that  the 
counsel  for  the  plaintiff  is  to  open  the  argu- 
ment. 

Mr.  Van  Vechten  for  the  plaintiff. 
Mr.  Cody,  contra. 

493 


219 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1801 


BOGART  v.  M'DONALD. 

Amendment — Declaration — Motion —  Costs. 

A  declaration  was  allowed  to  be  amended  by  In- 
creasing the  damages  in  the  conclusion,  on  payment 
of  costs. 

IN  the  writ  and  declaration  in  this  cause,  the 
damages  were  laid  at  $600.     The  defend- 
ant was  in  custody,  and  filed  a  cognovit  for 
$600. 

Mr.  Riggs,  for  the  plaintiff,  now  moved  for 
leave  to  amend  the  declaration,  by  striking  out 
$600,  and  inserting  $1,200.  The  suit  was  on 
a  note  for  pounds,  and  the  mistake  arose  by 
inserting  dollars,  instead  of  pounds. 
22O*]  *Mr.  Cody,  contra. 

Per  Curiam.  It  is  clearly  a  mistake;  and  as 
there  is  no  bail  in  the  cause,  no  injury  can 
arise  from  allowing  the  amendment.  Courts 
are  liberal  in  granting  amendments,  for  the 
furtherance  of  justice.  The  motion  is  granted, 
on  payment  of  costs,  and  with  liberty  to  the 
defendant  to  plead  de  now. 

Rule  granted. 
Cited  in-5  Hill,  558. 


PARKER  v.  TOMLINSON. 

Bail — Surrender —  Costs — Exoneretur. 

If  the  principal  be  surrendered,  pending  the  suit 
by  scire  facias,  against  the  bail,  an  exoneretur  will 
not  be  allowed,  until  the  costs  of  the  proceedings 
against  bail  are  paid. 

THIS  was  an  action  of  scire  facias,  on  recog- 
nizance against  bail.  Pending  the  sci.fa. 
and  before  the  plea,  the  principal  surrendered, 
within  the  time  allowed,  and  the  question  was, 
whether  the  exoneretur  was  to  be  entered  with 
or  without  payment  of  costs. 

Per  Curiam.  The  proceedings  stay  ex  gratia; 
and  it  is  reasonable  that  the  costs  should  be 
paid  before  the  bail  are  exonerated. 


221*]    *HILDRITH  v.  HARVEY. 

Rule — Regularly  Obtained — Absence  of  Counsel. 

A  rule  regularly  obtained,  hi  absence  of  the 
counsel  for  the  other  party,  will  not  be  vacated  at 
a  subsequent  term. 

MR.  EMOTT,   for  the  plaintiff,  moved  to 
vacate  a  rule,  which  had  been  taken,  as 
of  course,  at  the  last  term,  to  set  aside  a  judg- 
ment by  default  in  the  cause.     He  stated  that 
he  attended  in  court  faithfully  during    the 
term,  though  he  happened  to  be  absent  when 
the  defendant  obtained  the  rule. 
Mr.  Van  Vechten,  contra. 

Per  Curiam.  The  rule  having  been  regu- 
larly obtained  by  the  defendant,  without  any 
fraud  on  his  part,  we  cannot  now  set  it  aside 
on  the  ground  of  the  absence  of  counsel, 
whose  duty  it  is  to  be  steadily  in  court,  during 
494 


the  term,  without  establishing  a  precedent  that 
may  be  very  inconvenient,  and  which  may  de- 
stroy a  settled  rule  of  practice.  The  equity  be- 
tween the  parties  is  now  equal.  The  plaintiff 
regularly  obtained  a  judgment  by  default. 
The  defendant  has  regularly  obtained  a  dis- 
charge of  that  judgment.  As  the  money  has 
been  levied  on  the  judgment,  and  is  now  in  the 
hands  of  the  plaintiff,  we  will  not  order  him 
to  pay  it  back  to  the  defendant ;  but  it  must 
be  brought  into  court,  to  abide  the  final  event, 
of  the  suit. 

Motion  denied. 


•LEWIS  v.  ELMENDORF.     [*222 

Member  of  Congress — Privilege  from  Arrest. 

A  member  of  Congress  is  privileged  from  arrest 
only  while  at  Congress,  or  actually  going  to,  or  re- 
turning from  Congress. 

Citation— 1  Johns.  Cas.,  415. 

MR.  VAN  VECHTEN,  in  behalf  of  the  de- 
fendant, moved  for  his  discharge  from 
the  arrest  in  this  cause.  The  defendant  is  a 
member  of  Congress,  and  was  arrested,  while 
traveling,  about  ten  days  after  he  had  left 
home. 

Mr.  Van  Vechten  contended  that  the  defend- 
ant was  allowed  twenty  miles  a  day  for  travel- 
ing. 

Mr.  Bowman,  contra. 

Per  Curiam.  The  privilege  claimed  by  the 
defendant,  is  founded  on  the  Constitution  of 
the  United  States.  There  is  no  statute  on  the 
subject.  The  act  of  Congress  granting  a  com- 
pensation to  members  during  their  going  or 
returning,  allowing  twenty  miles  travel  to  a 
day,  does  not  apply  to  the  question  of  privi- 
lege. This  privilege  is  to  betaken  strictly,  and 
is  to  be  allowed  only  while  the  party  is  attend- 
ing Congress,  or  is  actually  on  his  journey, 
going  or  returning  from  the  seat  of  govern- 
ment. The  case  of  Colvin  v.  Morgan  (1  Johns. 
Cas.,  415)  is  in  point.  The  motion  is  denied. 

Motion  denied. 


*JACKSON,  ex  dem.  SOUTHAMPTON,  [*223 
ANN  his  Wife,  ET  AL., 

COOLY. 

Evidence — Ejectment — Agreement  to  Lease — Ad- 
verse Possession. 

Evidence  of  an  agreement  for  a  lease  between  the 
lessor  in  ejectment  and  the  person  in  possession,  is 
not  sufficient  to  enable  the  plaintiff  to  recover  the 
possession,  when  there  is  no  proof  that  any  lease 
was  ever  executed,  or  rent  paid,  and  the  tenant 
claimed  to  hold  adversely. 

THIS    was    an  action  of  ejectment.      The 
cause  was  tried  at  the  Montgomery  cir- 


NOTE.— Member  of  Congress,  privilege  from  arrest. 
Compare  U.  8.  v.  Cooper,  4  Ball.,  341 ;  King  v.  Colt, 
4  Day  (Conn.),  133;  Nones  v.  Edsall,  1  Wall.,  Jr.,  189; 
I  Coxe  v.  McClenachan,  3  Ball.,  478. 

JOHKSON'S  CASES,  2. 


1801 


FORBES  v.  FRARY  ET  AL. 


223 


cuit,  in  June,  1800,  before  Mr.  Justice  Rad- 
cliff .  A  verdict  was  taken  for  the  plaintiffs, 
subject  to  the  opinion  of  the  court,  on  the  fol- 
lowing case: 

The  heirs  of  Sir  Peter  Warren  were  three 
daughters,  to  wit,  Ann,  married  to  Lord 
Southampton,  the  lessors,  Charlotte,  married 
to  Lord  Abingdon,  and  Susanna,  married  to 
General  Skinner.  All  the  heirs  resided  in 
Great  Britain  during  the  American  war.  Gen- 
eral Skinner  and  his  wife  both  died  subse- 
quent to  the  year  1775,  and  during  the  war, 
leaving  an  only  child,  a  daughter,  since  mar- 
ried to  Lord  Gage. 

A  witness  for  the  plaintiff  testified  that  the 
defendant  was  in  possession  of  the  premises  in 
1763,  and  in  1767  agreed  with  the  witness,  as 
agent  for  the  heirs  of  Sir  Peter  Warren,  to 
take  a  lease  of  the  premises  in  question  from 
the  heirs,  for  twenty-five  years,  at  the  annual 
rent  of  one  shilling  per  acre  ;  but  the  witness 
did  not  know  that  any  lease  had  ever  been 
executed,  or  any  rent  paid. 

The  defendant  denied  the  title  of  the  lessors 
and  produced  in  evidence  an  exemplification 
of  letters  patent  for  the  premises  in  question, 
dated  the  29th  August,  1735,  by  which  they 
were  granted  to  Charles  Williams  and  six 
others,  and  their  heirs  and  assigns  forever,  in 
free  and  common  socage.  He  insisted,  also, 
that  if  the  heirs  of  Sir  Peter  Warren  ever  had 
any  title  to  the  premises,  it  had  been  forfeited 
by  their  alienism. 

Mr.  Van  Vechten  for  the  plaintiffs. 
Mr.  Cody  for  the  defendant. 

224*]  *Per  Curiam.  The  plaintiff  has  not 
proved  any  seisin  or  title  in  the  lessors,  or 
those  under  whom  he  claims ;  and  the  defend- 
ant has  shown  a  title  out  of  the  lessors.  The 
evidence  about  the  agreement  for  a  lease, 
which  appears  never  to  have  been  carried  into 
effect,  is  not  sufficient  to  give  the  plaintiff  the 
possession.  It  does  not  appear  that  the  de- 
fendant was  put  into  possession  by  the  lessors, 
or  that  he  ever  paid  them  any  rent.  The 
defendant  must  have  judgment. 

Judgment  for  the  defendant. 

Distinguished— 15  Wend.,  180. 

Cited  in— 5  Cow.,  139 ;  7  Cow.,  325 ;  9  Cow.,  193. 


FORBES  v.  FRARY  ET  AL.      . 

Reference — Motion — To  Set  Aside  Report — Ad- 
journment Refused. 

If  referees  in  a  cause  unreasonably  refuse  an  ad- 
journment requested  by  a  party  to  enable  him  to 
produce  witnesses,  the  report  will  be  set  aside. 

MR.  WOOD,  for  the  plaintiff,  moved  to  set 
aside  the  report  of  the  referees  in  this 
cause.  From  the  affidavits,  it  appeared  that 
the  cause  was  referred,  at  the  instance  of  the 
defendants,  who  agreed  to  admit  certain  items 
in  the  plaintiff's  account,  which,  at  the  hear- 
ing before  the  referees,  they  refused  to  admit. 
The  plaintiff's  attorney  then  requested  an  ad- 
journment until  the  next  day,  in  order  that  he 
JOHNSON'S  CASES,  2. 


might  produce  witnesses  to  prove  the  items. 
The  referees  refused  to  adjourn,  and  made  up 
their  report,  without  further  proof,  by  which 
they  found  a  less  sum  for  the  plaintiff  than  he 
claims  to  be  due  to  him. 

Mr.  Bogert,  contra. 

Per  Curiam.  The  referees  have  a  reason- 
able discretion  as  to  adjournments,  and  they 
ought  to  have  given  a  day  to  the  plaintiff  to 
produce  his  witnesses,  as  he  appears  to  have 
been  taken  by  surprise,  though  the  court 
*cannot  take  notice  of  a  mere  verbal  [*225 
agreement.  The  referees,  in  the  exercise  of 
their  discretion,  acted  unreasonably  in  refus- 
ing the  adjournment.  The  report  must  be  set 
aside. 

Rule  granted. 


LAWRENCE  v.  BOWNE. 

Cause    of  Action  not  Accrued — Inquest  by  De- 
fault—  Verdict — Refusal  to  Interfere. 

Where  an  action  was  commenced  before  the  debt 
was  due,  and  an  inquest  was  taken  by  default,  the 
court  refused  to  set  aside  the  verdict,  as  the  defend- 
ant admitted  the  debt  to  be  due,  at  the  time  of  mak- 
ing: the  application  to  set  aside  the  verdict. 

Citation— 1  Johns.  Gas.,  393. 

MR.  WOODS,  for  the  defendant,  moved  to 
set  aside  the  verdict  in  this  cause.  At 
the  last  circuit  in  New  York,  an  inquest  was 
taken  by  default,  in  the  absence  of  the  de- 
fendant's attorney.  The  plaintiff,  by  his  affi- 
davit, stated  that  the  debt  was  not  due  when 
the  suit  was  commenced  though  it  was  now 
due. 

Mr.  B.  Livingston,  contra. 

Per  Curiam.  This  application  is  too  late. 
There  would  be  no  use  in  setting  aside  the  ver- 
dict, when  the  defendant  admits  the  debt  to 
be  due.  There  is  not  an  affidavit  of  a  defense 
on  the  merits.  The  case  of  Crygier  v.  Long 
(1  Johns.  Cas.,  393),  is  in  point. 

Rule  refused. 

Overruled— 3  Wend.,  172. 
Distinguished— 8  Cow.,  205. 


*THOMAS  v.  DOUGLASS.    [*226 

1.   Time — Enlarged — Two  Days — Next  Day.  2. 
Change  of  Venue — Default  Irregular. 

Where  a  judge's  order  was  obtained  to  enlarge  the 
time  for  pleading  until  the  second  day  of  the  term, 
the  defendant  had  until  the  next  day  to  plead,  and  a 
default  entered  on  the  second  day  was  irregular. 

After  a  rule  to  change  the  venue,  the  plaintiff  en- 
tered a  default  for  want  of  a  plea,  without  altering 
the  declaration  filed,  or  filing  a  new  declaration  and 
delivering  a  copy ;  and  it  was  held  irregular. 


R.  GRAHAM,  for  the  defendant,  moved 
to  set  aside  the  default  and  judgment 

495 


1 


226 


SUPKEME  COURT,  STATE  OF  NEW  YORK. 


1801 


entered  in  this  cause,  on  the  ground  of  irregu- 
larity. 

The  defendant  had  obtained  a  judge's  order, 
enlarging  the  time  to  plead,  until  the  second 
day  of  the  last  term;  on  which  day  the  de- 
fault for  not  pleading  was  entered.  A  rule 
for  changing  the  venue  was  also  obtained  on 
the  second  day. 

Mr.  Woodworth,  contra. 

Per  Curiam.  The  defendant  had  time  to 
plead  until  the  second  day  of  the  term,  and 
496 


the  order  must  be  construed  as  including  that 
day;  so  that  the  default  could  not  be  entered 
on  that  day.  Again,  the  venue  was  changed, 
and  notice  thereof  given  before  the  time  for 
pleading  had  expired.  •  It  was  then  incumbent 
on  the  plaintiff  to  alter  the  declaration  on  file, 
and  the  copy  delivered  accordingly,  or  file  and 
deliver  a  new  declaration.  This  not  having 
been  done,  the  judgment  is,  on  this  ground 
also,  irregular,  and  must  be  set  aside. 


Rule  granted. 
Cited  in-87  111.,  346. 


JOHNSON'S  CASES,  2. 


[END  OF  JANUARY  TERM.] 


CASES   ADJUDGED 


IN   THE 


OF   THE 


STATE   OF  NEW  YOKK, 


A.PRIL    TKRM,    INT    THK    YKA.R    18O1. 


[During  the  last  vacation,  Mr.  Justice  BENSON,  having  been  appointed  a  judge  of  the  Circuit 
Court  of  the  United  States,  resigned  his  seat  in  this  court.] 


227*]     *WADDINGTON    ET  AI-. 

v. 
VREDENBERGH. 

1.  Audita  Querela.  2.  Venire  Facias.  3.  Part- 
nership— Dissolution — Judgment — Assignment 
Equitable  Lien. 

An  audita  querela,  quid  timet,  cannot  be  sued  out 
by  a  purchaser  of  land,  until  after  execution  has 
been  issued.  The  writ  must  be  allowed  In  open 
court,  but  is  not  itself  a  supersedeas;  and  where  the 
party  is  not  in  actual  custody,  or  sues  quia  timet,  a 
venire  facias  is  the  proper  process.  A  and  B  part- 
ners, in  trade,  having  dissolved  their  partnership, 
B  took  the  property,  and  engaged  to  pay  off  all  the 
debts  due  by  the  partnership,  among  which  was  a 
judgment  against  A  and  B  at  the  suit  of  C.  B 
having  become  insolvent,  C  threatened  to  take  out 
execution  against  A,  who  paid  the  amount  of  the 
judgment,  and  C.  agreed  that  A.  might  have  the 
benefit  of  the  judgment,  to  recover  the  amount, 
out  of  the  property  of  B  in  the  name  of  C.  A 
sued  out  execution  against  the  land  of  B  which 
was  bound  by  the  judgment:  B  assigned  all  his 
property  to  D  and  others,  for  the  benefit  of  his 
creditors,  and  it  was  held  that  A  was  to  be  consid- 
ered merely  as  a  surety  of  B  and  entitled  to  an 
equitable  lien  on  the  property  of  B  and  that  D 
and  others,  to  whom  it  was  assigned,  took  it,  sub- 
ject to  such  equitable  lien ;  and  the  court  could  not, 
therefore,  relieve  them  by  an  audita  querela. 

Citations-3  Viner,  321,  B.  pi.  1,  2,  3,  4:2  Cromp., 
636,  437  ;1  Salk.,  92  ;1  Com.  Dig..  652,  663,  B.  3,5;  2 
Cromp.,  443;1  Com.  Dig.,  650,  651 ;  2  Vernon,  608 ;  1 
Vesey,  251 ;  2  Vesey,  100,371. 

rpHE  defendant  obtained  a  judgment  against 
JL  White  and  Stout,  on  a  policy  of  insur- 
ance, subscribed  by  them  as  partners.  They 
became  partners,  as  insurers,  on  the  29th  Feb- 
ruary, 1796,  and  the  partnership  was  dis- 
solved, on  the  9th  December,  following. 
228*]  White  assumed  all  the  *business, 
profits,  and  responsibilities,  and  agreed  to 
pay  Stout  $1,500  for  his  share  of  the  profits, 
JOHNSON'S  CASES,  2.  N.  Y.  REP.,  BOOK  1. 


and  indemnify  him  against  all  debts  due  by 
the  partnership,  among  which  was  the  loss 
for  which  the  defendant  brought  his  action 
and  recovered  judgment.  The  suit  was 
against  both,  and  White  entered  an  appear- 
ance for  himself  and  Stout,  but  the  latter 
knew  nothing  of  the  suit.  After  the  judg- 
ment was  obtained,  White  gave  his  promis- 
sory note  to  the  defendant,  for  the  amount, 
payable  in  thirty  days  ;  but  before  the  expira- 
tion of  that  time  he  failed,  and  assigned  all 
his  property  (including  land,  which  was 
bound  by  the  judgment)  to  the  present  plaint- 
iffs, for  the  benefit  of  all  his  creditors.  The 
defendant  then  demanded  payment  of  Stout, 
and  was  about  to  issue  execution  against  him 
on  the  judgment,  when  Stout  paid  him  the 
amount,  under  an  agreement,  that  he  (Stout) 
should  have  the  benefit  of  the  judgment,  and 
might  use  the  name  of  the  defendant  to 
recover  the  money  of  the  property  of 
White.  An  execution  was  then  issued  on  the 
judgment,  directed  to  the  sheriff  of  Onondaga 
County,  for  the  benefit  of  Stout.  The  plaint- 
iff then  filed  a  bill  in  chancery,  for  a  discov- 
ery against  the  defendant  and  Stout,  and 
also  against  D.  and  G.  Ludlow,  to  whom  the 
defendant  was  indebted,  and  to  whom  the 
note,  above  mentioned,  was  assigned  by 
White,  before  his  failure,  together  with  the 
policy  of  insurance,  on  which  the  judgment 
was  obtained,  as  collateral  security.  On  this 
bill,  an  injunction  was  obtained,  by  which  the 
execution  was  stayed.  The  defendants  in 
chancery  having  answered,  the  bill  was  dis- 
missed as  to  D.  and  G.  Ludlow,  but  the  bill 
and  injunction  were  retained  as  to  the  other 
defendants,  for  six  months,  to  give  the  plaint 
iffs  an  opportunity  to  proceed  at  law.  The 
six  months  having  expired  without  any  pro- 
ceedings at  law  on  the  part  of  the  plaintiffs, 
82  497 


228 


SUPREME  COUKT,  STATE  OF  NEW  YORK. 


1801 


an  execution  was  issued  on  the  judgment, 
returnable  at  the  last  January  Term. 
229*]'  *The  plaintiffs  sued  out  an  audita 
querela,  and  a  motion  was  now  made  for  its 
allowance,  for  a  venire  facias  to  bring  in  the 
defendant,  and  for  a  supersedeas  to  the  execu- 
tion. 

Mr.  Harison,  for  the  plaintiffs. 
Mr.  Pendleton,  contra. 

RADCLIFF,  J.,  delivered  the  opinion  of  the 
court: 

1.  A  feoffee,  or   purchaser  of  lands   sub- 
ject to  a  judgment,    cannot  have  an   audita 
querela,  quia  tiinet,  but  is  entitled  to  sue  out 
this  writ,  only  after  execution  issued.     So  a 
feoffee,  or  purchasee  of  part  of  the  land  can- 
not have  it  till  after  execution  against  him, 
although  the  execution  be  issued  against  the 
residue  of  the  lands  of  the   original  debtor. 
(3  Viner,   321,   B.  pi.   1,  2,  3,  4.)    Hence  the 
assignees  in   the  present  case,  viewed  in  the 
light  of  purchasers,  if  they  were  entitled  to 
this  writ,  could  not  bring  it  till  after  the  expi- 
ration of  six  months,  to  which  time  the  injunc- 
tion was  extended,  and  till  after  the  execution 
issued.     They  are  not,  therefore,  too  late. 

2.  The  writ  must  be  allowed  in  open  court, 
and  is  not  of  itself  a  supersedeas,  which  may 
be  granted  or  not,  according  to  the  circum- 
stances of  the  case.     2  Cromp.,   436,  437;  1 
Salk.,     92;  1   Com.    Dig.,     652,    653;  E.,   3, 
and  5.) 

3.  The  proper  process,  where  the  party  is 
not  in  actual   custody,  or  where  he  sues  quia 
tiinet,  is  a  venire  facias.  (1  Salk.,'  92;  2  Cromp., 
443;  1   Com.    Dig.,   650,  651.)    The    process 
applied  for  is,  therefore,  proper,  if  the  writ  of 
audita,  querela  be  well  brought. 

The  principle  on  which  the  writ  is  brought, 
and  endeavored  to  be  maintained  by  the 
plaintiffs,  is  that  the  judgment  was  paid  and 
satisfied  by  Stout,  one  of  the  defendants 
thereto,  and  was  thereby  discharged,  and  can- 
not again  be  set  up  by  him  and  acted  upon 
against  White,  notwithstanding  the  circum- 
23O*1  stances  under  which  Stout  *was 
obliged  to  pay  it,  and  the  agreement  between 
him  and  the  then  plaintiff,  Vredenbergh. 

On  the  part  of  the  defendant,  it  is  objected, 
1.  That  the  matter,  on  which  this  writ  is 
brought,  is  the  same  that  was  offered  in  chan- 
cery, and  on  which  that  court  refused  to  inter- 
pose; that  the  merits  have  been  there  decided; 
and  it  being  the  decision  of  a  court  to  which 
the  question  properly  belonged,  this  court 
ought  not  now  to  interfere. 

2.  That  on  the  merits,  Stout  is  to  be  con- 
sidered in  the  light  of  a  surety,  and  in  equity 
is  entitled  to  the  benefit  of  this  judgment;  and 
that  the  plaintiffs,  as  assignees,  could  only 
take  the  property  of  White,  subject  to  his 
equitable  lien. 

Aa  to  the  first  point,  the  proceedings  in 
chancery  do  not  fully  appear.  In  the  affi- 
davits of  the  defendant's  counsel,  it  is  stated 
that  he  is  informed  and  believes  that  this 
application  is  founded  on  the  same  matters, 
the  merits  of  which  were  determined  in  the 
Court  of  Chancery.  If  the  determination  of 
that  court  ought  to  preclude  the  remedy 
sought  here,  the  whole  proceedings,  with  the 
498 


bill  and  answers,  ought  to  have  been  shown, 
that  we  might  fully  see  the  grounds  on  which 
that  court  went.  But  from  the  circumstance 
that  the  injunction  was  there  retained  for  six 
months,  in  order  to  afford  the  opportunity  of 
proceeding  at  law,  it  is  to  be  inferred  that  that 
court  intended  to  leave  the  parties  to  their 
legal  remedy,  without  restraint  or  prejudice 
to  their  legal  rights.  If  it  had  finally  decided 
on  their  rights,  and  concluded  them  by  its 
decree;  it  would  rather  have  enjoined  the 
present  plaintiff  from  proceeding  at  law,  than 
have  continued  the  former  injunction. 

2.  On  the  merits,  I  am  inclined  to  think 
that  after  the  dissolution  of  the  partnership 
between  White  and  Stout,  and  White's  under- 
taking to  pay  the  whole  of  the  partnership 
debts,  Stout,  in  relation  to  him,  is  to  be  con- 
sidered as  a  surety  merely;  and  if  so,  he  is. 
entitled  to  all  *equitable  liens  on  the  [*231 
property  of  White.  2  Vernon,  608;  1  Vesey, 
251;  2  Vesey,  100,  371.)  It  was  competent 
for  him  and  Vredenbergh,  the  original  plaint- 
iff, to  make  the  agreement  that  he  should 
have  the  benefit  of  the  judgment.  A  court  of 
equity  would  allow  Stout  to  proceed  for  that 
purpose,  on  the  judgment,  in  the  name  of 
Vredenbergh,  and  an  audita  querela  being  in 
the  nature  of  a  equitable  suit,  we  ought  not 
to  grant  a  supersedeas  to  the  prejudice  of  the 
equitable  rights  of  Stout.  The  plaintiffs  here, 
as  assignees  of  an  insolvent,  for  the  benefit  of 
his  creditors,  do  not  stand  in  a  better  condition 
than  any  other  assignee  or  purchaser  of  White 
would  do.  They  must  take  the  property,  sub- 
ject to  all  equitable  claims. 

The  granting  a  supersedeas  being  in  the 
discretion  of  the  court,  we  are  of  opinion  that 
under  the  circumstances  of  this  case,  it  ought 
not  to  be  allowed. 

Motion  denied. 
Cited  in— 1  Hill,  625 ;  7  Abb.,  316 ;  1  Bos.,  665, 


WARREN 

V. 

THE  UNITED   INSURANCE  COMPANY. 

Marine  Insurance — Implied  Warranty — Sea- 
worthiness— Survey. 

It  is  an  implied  warranty  in  every  contract  of  in- 
surance, whether  on  a  vessel  or  goods,  that  the  vessel 
is  seaworthy,  and  competent  to  perform  the  voy- 
age :  And  it  makes  no  difference,  though  the  vessel 
was  surveyed  before  she  sailed,  and  pronounced  by 
carpenters  to  be  competent,  if  she  proves,  in  the 
course  of  the  voyage,  not  to  be  seaworthy. 

Citation— Park.,  230. 131. 

THIS  was  an  action  on  a  policy  of  insurance 
on  goods,  shipped  on  board  the  schooner 
Mary,  on  a  voyage  from  New  York  to  the 
island  of  St.  Thomas. 


NOTE.— Ax  to  seatwrMiness,  implied  uxirranty  of, 
see  Silva  v.  Low,  1  Johns.  Cas.,  184,  and  note  in  this 
ed.;  Gould  v.  Shaw,  Id.,  293;  S.  C.,  aff'd  pogt,  442; 
IJarnewall  v.  Church,  1  Caines,  217;  Draper  v.  Com. 
Ins.  Co.,  21  N.  Y..  378;  Brandegeo  v.  Natrl  Ins.  Co., 
20  Johns.,  328 ;  Rogers  v.  Niagara  Ins.  Co.,  2  Hall, 
88:  Haff  v.  Marine  Ins.  Co..  8  Johns..  163. 

JOHNSON'S  CASES,  2. 


1801 


FAUGIEK  v.  HALLETT. 


231 


The  schooner  sailed  from  New  York  on  the 
voyage  insured,  the  12th  May,  1799.  On 
the  14th  May,  the  wind  blowing  fresh,  she 
sprung  aleak,  in  consequence  of  which,  the 
master,  for  the  preservation  of  the  lives  of  the 
crew,  was  obliged  to  put  into  Bermuda,  which 
was  the  nearest  port,  where  the  vessel  arrived 
on  the  26th  May.  The  vessel  was  there  surveyed 
by  the  wardens  of  the  port  of  St.  George,  who 
found  her  timbers,  planks  and  beams  so 
decayed  and  rotten,  that  they  considered 
232*]  *her  as  unfit  to  repair.  The  schooner 
had  been  overhauled  before  she  left  New 
York,  and  some  repairs  put  upon  her  upper 
works;  but  no  measures  were  taken  to  exam- 
ine her  lower  works,  or  to  ascertain  the  state 
of  her  timbers;  but  the  carpenters  supposed, 
from  the  appearance  of  the  upper  works,  that 
she  was  competent  to  perform  the  voyage. 
The  plaintiff  was  not  the  owner  of  the  vessel, 
but  the  freighter  only.  On  receiving  news  of 
the  arrival  of  the  vessel  at  New  York,  the 
plaintiff  abandoned  the  goods  to  the  defend- 
ants, and  brought  the  present  action  to  re- 
cover a  total  loss.  The  jury  found  a  verdict 
for  the  plaintiff. 

A  motion  was  made  to  set  aside  the  verdict, 
as  against  evidence. 

Mews.  Troup  and  Harison  for  the  defend- 
ants. 

Mr  B.  Livingston,  contra. 

Per  Curium.  The  verdict  is  palpably 
against  evidence.  The  vessel  was  not  compe- 
tent to  resist  the  ordinary  attacks  of  wind  and 
weather.  On  what  ground  the  jury  found  the 
verdict  it  is  difficult  to  suppose;  unless  they 
misconceived  the  well  settled  and  clear  rule  of 
law,  that  the  want  of  seaworthiness  in  a  ves- 
sel will  effect  a  policy  on  the  goods  as  well 
as  on  the  vessel;  for  it  is  an  implied  warranty 
in  every  contract  of  insurance,  whether  on 
goods  or  ship,  that  the  ship  is  seaworthy,  and 
competent  to  perform  the  voyage  insured. 
(Park,  230,  231.)  The  previous  survey  of  the 
vessel  makes  no  difference  in  the  rule.  The 
verdict  ought  to  be  set  aside,  on  payment  of 
costs. 

LEWIS,  J. ,  not  having  heard  the  argument, 
gave  no  opinion. 

New  trial  granted. 

Distinguished — 10  Johns.,  547. 
Cited  in— 3  Hob.,  208. 


If  a  person  proceeds  upon  the  information  of  an- 
!  other  to  do  an  act  in  his  favor,  the  person  in  whose 
i  favor  the  act  is  to  be  done,  is  bound,  at  his  peril,  to 
see  that  the  information  given  is  correct. 

Citations.— Peake's  Ev.,  108, 109 ;  Beawes,  308. 


233*]    *FAUGIER  v.  HALLETT. 

1.  Marine  Insurance — Loss — Adjustment — Con- 
dusiveness — Misrepresentations.  2.  Informa- 
tion by  Insured. 

An  adjustment  of  loss  indorsed  on  a  policy  of  in- 
surance, and  signed  by  the  insurer,  is  not  conclusive: 
and  the  party  may  show  that  it  was  made  on  the 
misrepresentation  of  the  insured;  and  whether 
such  misrepresentation  proceeded  from  design  or 
mistake,  makes  no  difference. 


was  an  action  on  a  policy  of  insurance, 
-L  "at  and  from  New  York  to  Havana,  upon 
French  property,  on  all  kinds  of  goods,  «fcc., 
laden  on  board  the  brig  Experience."  The 
property  was  warranted  by  the  assured,  "free 
from  any  charge,  damage  or  loss,  in  consequence 
of  any  seizure  or  detention,  for  or  on  account 
of  any  illicit  or  prohibited  trade,  or  trade  in 
articles  contraband  of  war." 

The  sum  insured  was  $4,000.     There  was  a 

written  memorandum  at  the  foot  of  the  policy 

by  which  it  was  agreed  that  in  case  of  capture 

!  or  loss,   there    should  be  no  other  proof  of 

j  property  but  the  policy. 

The  declaration  stated  that  the  plaintiff  was 

!  sole  owner  of  the  goods  insured,   and  had 

'  goods  on  board  at  the  time  to  the  value  of  $20,- 

;  000,  and  that  the  vessel  and  cargo,  during  the 

I  voyage,  was  captured  by  an  English  privateer, 

i  and  totally  lost.  That  the  defendant,  on  the  12th 

i  November,  1799,  subscribed  an  adjustment, 

promising  to  pay  ninety-eight  per  cent,  on  the 

amount  of  his  subscription,  in  thirty  days. 

The  policy  and  adjustment  were  produced 
at  the  trial,  and  the  plaintiff  relied  on  them  to 
entitle  him  to  recover. 

The  defendant  offered  to  prove  that  the 
plaintiff  had  in  fact  saved  a  great  part  of  hi& 
goods,  consisting  of  lace  and  jewelry;  that 
when  the  agent,  of  the  plaintiff  demanded  pay- 
ment of  the  insurers,  no  proof  was  exhibited 
of  any  part  of  the  goods  being  saved,  but  only 
of  the  capture  and  total  loss.  That  after  the  ad- 
justment was  agreed  to,  the  insurers  received 
information  of  that  fact,  and  on  applying 
to  the  agent  of  the  plaintiff,  *he  said  [*j£34 
that  the  articles  saved  were  not  intended  to  be 
insured  by  the  plaintiff;  that  had  these  cir- 
cumstances been  known  to  the  defendant  at 
the  time,  he  would  not  have  signed  the 
adjustment.  This  evidence  offered  by  the  de- 
fendant was  rejected  by  •  the  judge,  under 
whose  direction  the  jury  found  a  verdict  for  a 
total  loss. 

A  motion  was  made  to  set  aside  the  verdict, 
and  for  a  new  trial. 

Mr.  Pendleton  for  the  defendant. 
Mr.  B.  Livingston,  contra. 

RADCLIFP,  J.  On  the  trial,  the  plaintiff 
produced  the  policy  and  the  adjustment,  and 
relied  on  them  alone  for  a  recovery.  The  de- 
fendant offered  to  prove  that  the  adjustment 
was  made  on  a  false,  or  mistaken  representa- 
tion of  the  loss  on  the  part  of  the  plaintiff,  and 
that  instead  of  a  total,  it  was,  in  fact,  a  partial 
loss,  amounting  to  $1,262,  besides  a  dozen  or 
fifteen  sword  blades,  the  residue  of  the  proper 
ty  being  saved.  Strong  evidence  to  this  effect 
was  offered,  and  overruled,  in  consequence  of 
which  the  plaintiff  recovered  for  a  total  loss. 

The  first  question  is,  whether  the  defendant 


NOTE. — Marine  Insurance,  adjustment,  effect  of.  In 
support  of  the  doctrine  of  the  above  case,  see  Chris- 
tian v.  Coombe,  2  Esp.,  489 ;  De  Garron  v.  Galbraith, 

JOHNSON'S  CASES,  2. 


Park  Ins.  (8th  ed.),  207;  Thornton  v.  United  Ins.  Co., 
12  Me.,  150;   Haigh  v.  De  La  Cour,  3  Campb.,  319: 

'P/-*<i.«r-o  \-     M"o\H^T*     "Pn»»L-  t\n  ~Ina     /StH  fwl   ^     »>*i. 


Rogers  v,  Maylor,  Park  on  Ins. 


499 


284 


SUPREME  COUBT,  STATE  OF  NEW  YORK. 


1801 


was  concluded  by  the  adjustment.  I  think  he 
was  not.  The  insurer,  in  the  event  of  a  loss, 
as  in  subscribing  a  policy,  acts  wholly  on  the 
representation  of  the  insured.  He  cannot  be 
supposed  to  know  the  situation  of  the  subject 
insured,  or  the  accidents  which  may  have  at- 
tended it.  The  insured  is  therefore  bound,  in 
good  faith,  to  represent  the  truth.  If  he  mis- 
represents, it  can  only  be  done  through  fraud 
or  mistake,  and  in  either  case,  he  ought  not  to 
be  benefited  by  it.  I  think  the  rule  is  obvious 
and  universal,  that  where  one  party  is  obliged 
to  act  on  the  representation  of  another,  he 
235*]  cannot  be  *concluded,  if  that  represen- 
tation afterwards  appear  to  be  untrue.  In 
relation  to  adjustments,  it  has,  in  several 
cases  in  the  English  courts,  been  so  decided. 
The  adjustment  is  p)-ima  facie  evidence  only, 
and  may  be  rebutted.  (Peake's  Ev.,  108,  109; 
Beawes,  308.) 

On  this  ground  alone,  the  verdict  ought  to 
be  set  aside.  It  is  unnecessary,  therefore,  on 
the  present  motion,  to  decide  the  other  ques- 
tions, whether  a  policy  on  goods  generally 
will  extend  to  goods  which  are  not  regularly 
a  part  of  the  cargo,  or  for  which  no  bill  of 
lading  was  given,  or  to  pronounce  the  effect  of 
the  warranty  as  stated. 

KENT,  J.  Upon  the  facts  in  this  case,  I  am 
of  opinion  that  the  testimony  offered  ought  to 
have  been  received.  The  plaintiff,  at  the  time 
of  the  adjustment,  did  not  know  the  whole 
case  as  it  then  stood.  The  adjustment  was, 
consequently,  founded  upon  mistake,  or  at 
least,  the  testimony  offered  was  so  material  to 
the  point  that  it  ought  to  have  been  submitted 
to  the  jury.  An  adjustment  is  not  conclusive, 
if  the  party  can  show  that  it  was  made  on  the 
misrepresentation  of  the  insured,  and  whether 
the  misrepresentation  proceeded  from  mistake 
or  design  is  immaterial.  It  is  a  just  and  sound 
rule  that  if  one  person  proceeds  upon  the  in- 
formation of  another  to  do  an  act  in  his  favor, 
the  person  in  whose  favor  the  act  is  done  is 
bound,  at  his  peril,  to  see  that  the  information 
be  correct. 

I  am  of  opinion,  therefore,  that  a  new 
trial  be  granted,  with  costs  to  abide  the 
event. 


LANSING,  Ch.  J.,  was  of  the  same  opinion. 
LEWIS,  /.,  absent. 


New  tried  granted.* 


1.  Park  on  Ins.  (6th  ed.),  163,  167 ;  Marshall  on  Ins. 
(2d  ed.),  632,  636. 


•SLEGHT,  Administratrix  of  SLEGHT,  [*236 

t>. 
KANE. 

1.  Forfeiture  and  Attainder — Conviction — Ac- 
tion for  Bent  Accrued  Before  Act — Not  Main- 
tainable. 2.  Rent — Set-off. 

"Where  a  person  was  convicted  by  the  Act  of  For- 
feiture and  Attainder,  passed  the  23d  October,  1779, 
of  adhering:  to  the  enemies  of  the  State,  and  all  his 
property,  real  and  personal,  declared  to  be  for- 
feited, it  was  held  that  he  could  not,  after  his  return 
to  the  State,  in  1791,  maintain  an  action  for  rent 
which  had  accrued  prior  to  the  20th  October,  1779 : 
nor  could  he  set  off  the  rent  against  the  demand  or 
the  plaintiff,  in  an  action  against  him. 

Citation— Vattel,  bk.  4,  Ch.  2,  sec.  21. 

THIS  was  an  action  of  assumpsit,  on  a 
promissory  note,  made  by  the  defendant 
to  the  intestate,  dated  the  17th  December,  1777, 
for  £100,  payable  on  demand. 

The  defendant  pleaded:  1.  Non  assumpsit;  2. 
Non  assumpsit  infra  sex  annos;  3.  Payment, 
with  notice  of  a  set-off  against  the  plaintiff, 
for  rent  due  to  the  defendant,  on  the  20th  Oc- 
tober, 1779,  from  the  intestate,  for  the  use  and 
occupation  of  a  house  and  farm  belonging  to 
the  defendant  in  Fishkill,  from  the  17th  De- 
cember, 1777,  to  the  20th  October,  1779. 

There  was  a  replication  to  the  second  plea, 
and  a  rejoinder,  to  which  the  plaintiff  de- 
murred. The  cause  was  tried  on  the  first  and 
third  issues,  at  the  New  York  circuit,  in  De- 
cember, 1800,  before  Mr.  Justice  Lewis,  when 
a  verdict  was  found,  subject  to  the  opinion  of 
the  court  on  the  following  case,  with  liberty 
to  either  party  to  turn  it  into  a  special  verdict. 

On  the  17th  December,  1777,  the  intestate 
sold  and  conveyed  to  the  plaintiff  in  fee,  a 
farm,  consisting  of  fifty-nine  acres,  with  the 
dwelling-house,  &c.,  in  the  town  of  Fishkill, 
for  £2,400,  and  the  note  in  question  was  given 
in  part  of  the  consideration  money.  At  the 
time  of  the  sale  it  was  agreed  that  the  intes- 
tate should  retain  the  possession  of  the  farm 
during  the  war  then  existing  between  Great 
Britain  and  the  United  States,  at  a  reasona- 
ble rent,  to  be  paid  by  the  intestate  to  the  de- 
fendant. 

The  defendant  was  a  British  subject,  and  re- 
sided, long  before  and  after  the  Declaration  of 
Independence,  in  the  County  of  Dutchess,  but 
left  his  abode  on  the  1st  August,  1777,  and  re- 
moved to  the  city  of  New  York,  then  in  the  pos- 
session of  the  British  forces,  where  he  remained 
*with  the  British  until  the  evacuation  [*237 
of  the  city,  the  25th  November,  1783,  when  he 
removed  with  the  British  Army,  and  did  not 
return  to  the  United  States  until  the  1st 
September,  1793.  The  present  suit  was  com- 
menced against  him  the  2d  August,  1794.  The 


An  adjustment  made  with  full  knowledge  of  all 
material  facts  is  binding.  Dow  v.  Smith,  1  Caines, 
32 ;  Lapayre  v.  Thompson,  7  La.  Ann.,  218.  See 
Adams  v.  Saunders,  4  C.  &,P.,  25.  So,  also,  if  made 
with  the  means  of  full  knowledge.  Vollier  v.  Grif- 
fiths, Selw.  N.  P.,  985. 

See  Shepherd  v.  Chewter.  1  Campb.,  274. 

It  has  been  held  that  an  insurer  subsequent  to  an 
adjustment  may  set  up  facts  in  defense  known  to 
him  at  the  time  of  the  adjustment.  See  note  to 
Shepherd  v.  Chewter.  above  cited;  Herbert  v. 
Champions,  1  Campb.,  134 ;  Hun  n  v.  Hughes,  7  T.  R., 
350,  n. 

500 


It  is  deemed  the  better  doctrine,  however,  that  an 
adjustment,  free  from  fraud  or  mistake,  is  conclu- 
sive. Cases  above  cited.  2  Parsons  Mar.  Ins.,  354. 

As  to  distinction  between  mistake  of  law  and  mis- 
take of  fact,  see  Bilbie  v.  Lumlie,  2  East,  469 :  Lowry 
v.  Bourdieu,  2  Doug.,  468 ;  Reyner  v.  Hall,  4  Taunt, 
725 ;  Cabot  v.  Haskins,  3  Pick.,  83 ;  Rogers  v.  Maylor, 
above  cited. 

It  has  been  held  that  if  money  has  been  actually 
paid  on  a  policy  under  mistake  of  law  it  cannot  be 
recovered  back,  contra  if  paid  under  mistake  of 
fact.  Cases  last  cited. 

JOHNSON'S  CASES,  2 


1801 


DOLE,  SHERIFF,  v.  BUM,  AND  POKTEK. 


237 


plaintiff  had  remained  in  possession  of  the 
house  and  farm  from  the  17th  December,  1777, 
to  the  20th  October,  1779,  without  paying  any 
rent.  On  the  22d  October,  1779,  an  act  was 
passed  by  the  Legislature  of  the  State,  "for 
the  forfeiture  and  sale  of  the  estates  of  per- 
sons who  have  adhered  to  the  enemies  of  the 
State,"  &c.,  by  which  the  defendant  was,  by 
name,  ipso  facto,  convicted  and  attainted  of 
the  offence  of  voluntarily  adhering  to  the  ene- 
mies of  the  State,  &c.,  and  all  and  singular  his 
estate,  real  and  personal,  was,  on  the  day  of 
passing  the  act,  declared  to  be  forfeited  to, 
and  vested  in,  the  people  of  the  State  of  New 
York. 

The  question  was,  whether  the  rent  claimed 
by  the  defendant  could  be  set  off  against  the 
plaintiff's  demand?  If  the  court  should  be  of 
opinion  that  the  set-off  was  legal,  then  there 
was  to  be  a  judgment  for  the  defendant  for 
$44.93,  otherwise,  a  judgment  for  the  plaintiff 
for  $221.60,  according  to  the  verdict. 

Mr.  Troup  for  the  plaintiff. 
Mr.  Ri{/g»,  contra. 

Per  Ourinm.  Although  the  note  in  question 
was  given  for  the  consideration  money  of  the 
farm,  the  plaintiff's  retaining  possession  of  the 
farm,  or  hiring  it.  was  not  made  a  condition  of 
the  purchase.  They  were  not  parts  of  one 
contract,  and  dependent  on  each  other,  and  are, 
therefore,  to  be  considered  as  distinct  transac- 
tions. 

238*]  *Choses  in  action  may  be,  and  were 
expressly  confiscated  by  the  act  now  in  ques- 
tion. The  plaintiff's  title  to  the  rent  was,  there- 
fore, transferred,  by  the  forfeiture  of  his  real 
and  personal  property,  to  the  people.  His 
right  to  the  estate  itself,  from  which  the  rent 
was  to  accrue,  was  forfeited,  and  became 
vested  in  the  people  of  this  State.  The  con- 
sideration for  the  rent,  therefore,  failed,  and 
he  can  neither  sustain  an  action  for  it,  nor  set 
it  off  in  the  present  suit. 

The  Treaty  of  Peace  does  not  affect  this 
case.  As  to  the  previous  forfeitures  and  con- 
fiscation, it  is  only  recommendatory,  and  by 
implication  confirms  their  validity,  if  not  re- 
scinded, in  pursuance  of  that  recommenda- 
tion. It  would  be  sufficient  if  the  treaty  were 
silent;  for  all  acts  of  the  belligerent  parties  not 
affected  by  it,  and  as  they  existed  at  the  time 
of  concluding  the  treaty,  were,  of  course, 
recognized  as  just  and  lawful,  and  remained 
in  the  same  state.  This  rule  appears  to  be 
adopted  in  the  construction  of  all  treaties. 
(Vattel,  bk.  4,  ch.  2,  sec.  21.) 

The  plaintiff  is,  therefore,  entitled  to  re- 
cover. 

KENT,"  J. ,  having  formerly  been  counsel  in 
the  cause,  gave  no  opinion. 

LEWIS,  J.,  absent. 
Judgment  for  the  plaintiff. 

Cited  In-22  Wend..  420. 
JOHNSON'S  CASES,  2. 


*DOLE,  Sheriff, 
BULL  AND'  PORTER. 


1.  Bond — For  Jail— Liberties— 2.  Id.  Id. — Per- 
son in  Execution — 3.  Id.  Id. — Indulgence — 
Privilege —  Validity. 

A  bond  taken  by  the  sheriff,  that  a  person  in  exe- 
cution shall  remain  a  true  and  faithful  prisoner, 
is  valid.  If  a  bond  be  taken  by  the  sheriff  for 
the  ease  and  convenience  of  the  prisoner,  so  that  he 
may  go  at  large  within  the  walls  of  the  prison, 
and  conditioned  that  he  shall  remain  a  true  and 
faithful  prisoner,  it  is  not  a  bond  for  ease  and 
favor,  nor  void,  though  not  taken  in  the  manner 
directed  by  the  act  relative  to  jail  liberties. 

Citations— Stat.  23  Hen.  VI.,  Ch.  10 ;  24  Sess.,  Ch., 
28.  Sec.  13 ;  5  Com.  Dig.,  tit.  Pleader,  p.  MS  (2  W.,  25) ; 
1  Sid.,  383;  Salk.,  438;  2  Keb.,  422,  423;  Hard.,  4«4 ;  f 
Saund.,  161 ;  Plow.,  60  to  68 ;  Velv.,  197 ;  6  Mod.,  225 ; 
6  Bac.,  181 ;  Cro.  Eliz.,  66. 

THIS  was  an  action  of  debt,  on  a  bond  for 
$900,  dated  17th  May,  1798,  given  to  the 
plaintiff,  as  sheriff  of  the  County  of  Rensselaer. 

The  declaration  was  in  the  usual  form.  The 
defendants  pleaded,  1.  Non  est  factum;  2. 
Craving  oyer  of  the  bond,  the  condition  of 
which  was  as  follows:  "That  if  the  above 
bounden  Isaac  Bull,  now  confined  in  the  jail 
or  prison  of  the  County  of  Rensselaer,  in  the 
custody  of  the  sheriff  aforesaid,  at  the  suit  of 
Edward  Rawson,  for  the  sum  of  $458.02,  shall 
be  and  remain  a  true  and  faithful  prisoner  in 
the  jail  or  prison  aforesaid,  until  he  shall  from 
thence  be  discharged  by  due  course  of  law, 
then  this  obligation  to  be  void,  otherwise  to 
remain,"  &c. 

Which  being  read  and  heard,  the  said  de- 
fendants say  that  the  said  James  his  said  ac- 
tion thereof  against  them  ought  not  to  have  or 
maintain,  because  they  say  that  in  and  by  a 
certain  Act  of  the  Legislature  of  the  State  of 
New  York,  entitled,  "An  Act  regulating  the 
liberties  of  jails,"  passed  the  5th  day  of  April, 
1798,  it  is,  among  other  things,  enacted,  in  the 
words  following,  to  wit:  "That  the  several 
sheriffs  of  the  respective  counties  shall  permit 
any  prisoner,  who  shall  be  in  their  custody  on 
civil  process  only,  to  go  at  large  within  the 
limits  of  the  respective  liberties  as  aforesaid 
appointed;  provided  such '  prisoner  shall  pro- 
cure and  offer  to  such  sheriffs  respectively,  a 
bond  with  one  or  more  sufficient  sureties,  in 
the  penalty  of  double  the  amount  of  the  sum 
for  which  such  prisoner  is  confined,  condi- 
tioned that  such  prisoner  shall  remain  a  true 
and  faithful  prisoner,  and  shall  not,  at  any 
time,  or  in  any  wise,  escape  or  go  without  the 
limits  of  said  respective  liberties,  until  dis- 
charged by  due  course  of  law,"  as  by  refer- 
ence to  the  said  in  part  recited  act,  among 
other  things,  will  fully  and  at  large  appear. 
*And  the  said  defendants  aver,  that  [*24O 
the  said  bond  or  writing  obligatory  was  taken 
by  the  said  James  Dole,  then  being  sheriff,  by 
virtue  of  the  said  recited  act,  to  wit,  at  the 
city  of  Albany,  in  the  County  of  Albany;  and 
that  the  said  sum  of  $458.02,  mentioned  in  the 
condition  of  the  said  writing  obligatory,  was 
the  true  sum  for  which  the  said  Isaac  Bull 
was  confined  in  the  custody  of  the  said  sheriff, 
and  that  the  penalty  of  the  said  bond  or  writ- 
ing obligatory  is  not  of  double  the  amount  of 
the  said  sum  for  which  the  said  Isaac  was 
then  confined, -as  by  the  said  act  is  required, 

501 


240 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


anil  is,  therefore,  void,  and  of  no  effect,  and  this  | 
they  are  ready  to  verify;  wherefore  they  pray  i 
judgment  if  the  said  James  his  said  action  ] 
thereof  against  them  ought  to  have  or  main- 
tain, &c.  3.  And  for  further  plea  in  this  be- 
half, according  to  the  statute  in  such  case 
made  and  provided,  and  by  leave  of  the  court 
for  that  purpose,  also  first  had  and  obtained, 
the  said  defendants  say  that  the  said  James  his 
said  action  thereof  against  them  ought  not  to 
have  or  maintain,  because  they  say  that  the 
said  bond  or  writing  obligator}'  was  taken  by 
the  said  James  Dole,  then  being  sheriff,  by 
virtue  and  in  pursuance  of  the  directions  of 
the  said  in  part  recited  act,  to  wit,  at  the  city 
of  Albany,  in  the  County  of  Albany;  and  the 
said  defendants  further  say  that  the  said  writ- 
ing obligatory  is  not  conditioned  that  the  said 
Isaac  Bull  should  not,  at  any  time,  or  in  any 
wise,  escape  or  go  without  the  limits  of  the 
liberties  of  the  said  goal,  until  discharged  by 
due  course  of  law,  as  in  and  by  the  said  in  part 
recited  act  is  directed  and  required,  to  wit,  at 
the  city,  in  the  county  aforesaid,  and  this  the 
said  defendants  are  ready  to  verify;  where- 
fore they  pray  judgment  if  the  said  James  his 
said  action  thereof  against  them  ought  to  have 
or  maintain,  &c.  4.  And  for  further  plea  in 
this  behalf ,  according  to  the  statute  in  such 
case  made  and  provided,  and  by  leave  of  the 
court  for  that  purpose  first  had  and  obtained, 
241*]  the  said  defendants  *say  that  the  said 
Isaac,  on  the  said  17th  day  of  May,  1798,  at 
Troy,  to  wit,  at  the  city  and  in  the  County  of 
Albany,  then  being  in  the  custody  of  the  said 
James  Dole,  sheriff  of  the  County  of  Rensse- 
laer,  at  the  suit  of  the  said  Edward  Rawson, 
for  the  said  .sum  of  $ 458.02,  he,  the  said  James, 
then  being  sheriff  as  aforesaid,  afterwards,  to 
wit,  on  the  day  and  in  the  year  last  aforesaid, 
at  the  place,  in  the  county  aforesaid,  volun- 
tarily suffered  and  permitted  the  said  Isaac 
Bull  to  escape  from  the  said  jail  or  prison,  the 
said  Isaac  Bull  not  having,  at  any  time  before 
or  since  the  said  escape,  procured  or  offered 
to  the  said  sheriff  a  bond  with  one  or  more 
sureties,  in  the  penalty  of  double  the  amount 
of  the  said  sum  of  $458.02,  conditioned  as  in 
and  by  the  said  in  part  cited  act  is  directed 
and  required,  and  this  the  said  defendants  are 
ready  to  verify;  wherefore  they  pray  judg- 
ment whether  the  said  James  Dole,  his  said 
action  thereof  against  them  ought  to  have  or 
maintain,  &c. 

The  plaintiff  replied  to  the  second  plea,  that 
Bull  was  in  custody  on  the  ca.  tui.  at  the  suit 
of  Rawson,  for  $4o8.02;  that  after  being  ar- 
rested thereon,  the  defendants,  on  the  17th 
May,  1798,  applied   to  the  said  James  Dole, 
then  being  sheriff  of  the  county  aforesaid,  and 
then  and  there  requested  and  solicited  of  him  j 
that  the  said  Isaac  Bull  might,  for  his  ease  and  | 
convenience,  be  indulged  with  the  liberty  of  j 
going  at  large  within  the  walls  of  the  gaol  or  j 
prison  aforesaid,  and  not  to  continue  and  re- 1 
main  any  longer  locked  up  and  confined  within 
any  particular  part  of  the  gaol  or  prison  afore- 
said.    And  they,  the  said  Isaac  and  John,  then 
and  there,  in  consideration  that  the  said  James 
Dole,  then  being  sheriff  as  aforesaid,  would 
grant  and  comply  with  their  request  aforesaid, 
in  that  respect  made,   offered  to  execute  and 
deliver  to  the  said  James  Dole,  then  being 
502 


sheriff  as  aforesaid,  the  writing  obligatory 
aforesaid,  for  the  purpose  of  indemnifying  the 
said  James  for  all  *damages  which  he'[*242 
might  in  any  way  be  put  to  or  sustain,  by 
means  of  the  said  "Isaac  Bull's  escaping  from 
and  going  at  large  without  the  walls  of  the 
said  prison,  in  consequence  of  the  said  James 
Dole's  granting  and  complying  with  the  afore- 
said request  of  the  said  Isaac  and  John,  made, 
as  aforesaid,  for  the  particular  ease,  conven- 
ience and  benefit  of  the  said  Isaac  Bull  (the 
penalty  whereof  then  to  be  forfeited  to  the 
said  James,  then  being  sheriff  as  aforesaid, 
whenever  the  condition  of  the  said  writing 
obligatory  should  be  broken);  and  the  said 
James,  being  sheriff,  as  aforesaid,  afterwards, 
to  wit,  on  the  same  17th  day  of  May,  in  the 
said  year  of  our  Lord  1798,  at'the  town  and  in 
the  county  aforesaid,  the  said  Isaac  so  bein» 
arrested  and  detained  by  the  said  sheriff,  and 
then  and  there  in  his  custody  and  close  con- 
finement as  aforesaid,  by  virtue  of  the  arrest 
and  writ  aforesaid,  in  consequence  of  the 
solicitation,  and  at  the  special  instance  and  re- 
quest of  the  said  Isaac  and  John,  made  in 
manner  and  form  aforesaid,  for  the  relief,  ease 
and  convenience  of  the  said  Isaac,  and  in  con- 
sideration of  the  said  writing  obligatory,  hav- 
ing been  then  executed  and  delivered  to  the 
said  James,  for  the  purpose  aforesaid,  did  then 
and  there  indulge  the  said  Isaac  Bull, for  his  ease 
and  convenience,  with  the  liberty  of  going  at 
large  within  the  walls  of  the  jail  or  prison  of 
the  county  aforesaid,  agreeably  to  the  request 
aforesaid,  of  the  said  Isaac  and  John.  And 
the  said  James  further  saith,  that  in  and  by 
the  aforesaid  in  part-recited  act,  it  is,  among 
other  things,  enacted  in  the  words  following, 
to  wit :  "That  the  several  courts  of  common 
pleas  in  this  State  be,  and  they  are  hereby  au- 
thorized to  appoint  a  certain  reasonable  space 
of  ground,  adjacent  to  the  several  jails  in  their 
respective  counties,  to  be  denominated  the 
liberties  of  the  said  jails,  and  shall  cause  to  be 
entered  on  their  respective  minutes  the  extent 
of  such  liberties,  which  shall  in  no  instance 
comprehend  a  larger  space  than  three  acres; 
and  shall  cause  the  same  liberties  *and  [243 
their  limits  to  be  designated  by  inclosures  or 
posts  or  other  visible  marks,  placed  on  the 
outer  lines  of  the  said  liberties,  as  to  them  shall 
seem  meet  and  proper,"  as  by  reference  to  the 
said  in  part-recited  act,  among  other  things, will 
fully  and  at  large  appear.  And  the  said  James 
avers  that  the  Court  of  Common  Pleas,  held 
in  and  for  the  County  of  Rensselaer  aforesaid, 
had  not,  at  the  time  the  said  writing  obliga- 
tory was  executed  and  delivered,  by  the  said 
Isaac  and  John,  to  the  said  James,  then  being 
sheriff  as  aforesaid,  appointed  a  certain  reasona- 
ble space  of  ground,  adjacent  to  the  said  jail  in 
the  said  County  of  Rensselaer,  denominated  the 
liberties  of  the  said  jail,  as,  by  the  aforesaid  in 
part-recited  act,  the  aforesaid  Court  of  Com- 
mon Pleas  was  authorized  to  do,  and  that  no 
such  liberties  of  the  said  jail  were  appointed 
or  assigned  by  the  said  Court  of  Common 
Pleas,  by  virtue  of  the  said  in  part-recited  act, 
until  the  next  June  Term  of  the  said  Court  of 
Common  Pleas,  held  after  the  said  writing 
obligatory  was  executed  and  delivered,  as 
aforesaid;  and  so  the  said  James  saith  that  the 
said  bond  or  writing  obligatory  was  not  taken 
JOHNSON'S  CASES,  2. 


1801 


BAKEWELL  v.  THE  UNITED  INSURANCE  COMPANY. 


243 


by  the  said  James  Dole,  then  being  sheriff  as 
aforesaid,  by  virtue  of  the  said  recited  act,  in 
manner  and  form  as  the  said  Isaac  and  John 
have  in  their  second  plea  above  alleged,  and 
this  he  is  ready  to  verify;  wherefore  he  prays 
judgment,  and  his  debt  aforesaid,  together 
with  his  damages  on  account  of  the  detaining 
the  debt,  to  be  adjudged  to  him,  &c. 

There  was  a  similar  replication  to  the  third 
plea.  To  the  fourth  plea  the  plaintiff  replied 
that  he  did  not  voluntarily  suffer  and  permit 
Bull  to  escape,  &c. ,  and  issue  thereon. 

To  the  replication  to  the  second  and  third 
pleas,  there  was  a  demurrer  and  joinder. 

Messrs.  Emott  and  Woodworth,  in  support 
of  the  demurrer. 

Mr.  Van  Vechten,  contra. 

244*]  *RADCLIFF,  J.,  delivered  the  opin- 
ion of  the  court: 

The  bond  not  being  taken  in  pursuance  of 
the  act,  but  at  common  law,  which  is  substan- 
tially alleged  in  the  plaintiff's  replications, 
and  admitted  by  the  demurrers,  it  is  unneces- 
sary to  consider  whether  there  is  a  material 
variance  between  the  form  of  the  bond  and 
the  directions  of  the  act.  The  only  question 
is,  whether  it  be  good,  for  the  purpose  it  was 
taken,  at  common  law. 

The  bond  being  conditioned  that  the  defend- 
ant, Bull,  should  remain  a  true  and  faithful 
prisoner,  is,  on  the  face  of  it,  undoubtedly 
good;  but  it  being  alleged  by  the  plaintiff  that 
it  was  taken  for  the  ease,  convenience,  and 
benefit  of  the  prisoner,  and  to  indulge  him  to 
go  at  large  within  the  walls  of  the  prison,  it  is 
contended  by  the  defendant  that  it  is  a  bond 
for  ease  and  favor,  and  therefore  contrary  to 
the  statute  of  23  Hen.  VI.  (ch.  10),  which  is 
enacted  here.  (24  sess.,  ch.  28,  sec.  13.)  (5 
Com.  Dig.,  tit.  Pleader,  p.  648  [2  W.,  25];  1 
Sid.,  383;  Salk.,  438;  2  Keb.,  422;  Hard.,  464; 
1  Saund.,  161;  Plow.,  60  to  68.) 

The  question  is,  whether  the  indulgence  of 
going  at  large  within  the  walls  of  the  prison, 
as  admitted  in  the  replication,  comes  within  the 
definition  of  ease  and  favor,  intended  by  the 
act. 

I  think  it  does  not.  It  is  not  inconsistent 
with  the  duty  of  a  sheriff  to  permit  a  prisoner 
to  occupy  the  whole  or  any  part  of  the  prison. 
He  is  still,  in  contemplation  of  law,  in  arcta  et 
•galca  custodia,  while  he  is  confined  within  the 
walls  of  the  prison,  and  a  bond  conditioned 
that  he  shall  remain  a  faithful  prisoner,  may, 
with  as  much  propriety,  be  taken  in  relation 
to  the  whole,  as  to  any  part  of  the  prison. 
Thus,  in  England,  such  a  bond  from  a  prison- 
er within  the  rules,  which  are  analogous  to 
our  liberities,  is  held  to  be  good.  (2  Keb., 
423  ;  1  Sid. ,  383.)  If  the  sheriff  may  grant  to  a 
prisoner  the  whole  extent  of  the  prison  with- 
out such  a  bond,  and  at  the  same  time  not  vio- 
late his  duty,  or  incur  the  penalty  of  an  es- 
cape, it  would  seem  inconsistent  that  the  bond 
should  be  void,  when  it  would  not  be  so  if  the 
prisoner  were  confined  in  a  particular  part  of 
the  jail. 

245*]  *A  distinction  is  taken  between 
bonds,  conditioned  to  remain  a  faithful  pris- 
oner, which  are  lawful,  and  bonds  to  save 
the  sheriff  harmless  against  escapes,  which  are 
JOHNSON'S  CASES,  2. 


held  to  be  illegal  and  void.  The  reason  ap- 
pears to  be  that  the  former  are  consistent  with 
the  duty  of  the  sheriff,  safely  to  keep  his 
prisoners,  and  the  latter  imply  the  consent  of 
the  sheriff  to  the  prisoner's  escape,  on  the 
alternative  of  an  indemnitv  for  the  conse- 
quences. (Yelv.,  197;  6  Mod.*  225;  6  Bac.,  181; 
Cro.  Eliz.,  66.) 

The  general  rule  seems  to  be  that  a  bond 
taken  by  the  sheriff  to  induce  a  less  rigorous 
imprisonment  is  good,  if  the  indulgence  be 
such  as  he  would  otherwise  consistently  with 
his  duty  be  authorized  to  grant;  but,  if  it  con- 
fer a  privilege  inconsistent  with  his  duty,  by 
which  the  object  of  the  imprisonment,  as  a 
means  to  compel  a  satisfaction  of  the  plaint- 
iff's demand,  may  be  impaired  or  defeated, 
the  bond  is  illegal  and  void.  It  is,  then,  a 
bond  for  the  ease  and  favor  of  the  prisoner, 
and  contrary  to  the  statute.  So  a  bond  taken 
by  the  sheriff  under  color  of  his  office,  to 
acquire  profit  or  emolument,  is  also  void.  The 
statute  is  directed  against  oppression,  on  the 
one  hand,  and  an  improper  indulgence  on  the 
other. 

In  the  present  case,  although  the  replication 
states  the  bond  to  have  been  given  for  the 
ease,  convenience,  and  benefit  of  the  prisoner, 
it  also  states  the  nature  of  that  benefit,  and 
that  it  did  not  extend  a  privilege  beyond  the 
walls  of  that  gaol.  This  explains  the  sense  of 
the  antecedent  terms,  and  shows  that  the 
indulgence  was  not  unlawful. 

We  are,  therefore,  of  opinion  that  the  bond 
is  good,  and  that  the  manner  of  pleading  does 
not  affect  the  construction  to  be  given  to  it; 
and,  of  course,  that  the  plaintiff  ought  to  have 
judgment. 

LEWIS,  J.,  not  having  heard  the  argument, 
gave  no  opinion. 

Judgment  far  the  plaintiff. 

Distinguished— i«  N.  Y.,  359. 
Cited  in  —7  Johns.,  160. 


[*246 


*BAKEWELL 

v. 
THE  UNITED  INSURANCE  COMPANY. 


Marine  Insurance — Warranty — "Free  From 
Average  Unless  General."  "Articles  Perish- 
able in  Their  Own  Nature. " 

A  policy  of  insurance  contained  a  memorandum, 
"that  salt,  &c.,  and  all  articles  that  are  perishable 
in  their  own  nature,  are  warranted,  by  the  assured, 
free  from  average,  unless  general ;  and  sugar,  &c., 
skins,  hides,  and  tobacco,  are  warranted  free  from 
average,  under  seven  per  cent.,  unless  general. 
A  quantity  of  deer  skins,  part  of  the  cargo,  were 
damaged,  by  which  a  loss  of  ten  per  cent,  on  the 
cargo  was  occasioned.  It  was  held,  that  the  deer 
skins  were  not  comprehended  under  the  general 
words  of  the  memorandum,  as  to  articles  perishable 


NOTE.—  Marine  Insurance,  construction  of  policy, 
different  clauses. 

The  various  provisions  of  the  policy  must  be  so 
construed  as  to  give  effect  to  each  and  consist- 
ency to  all.  Nation  F.  Ins.  Co.  v.  Crane,  16  Md.,  2fiO; 
Syers  v.  Bridge,  Doug.,  537 ;  Frichette  v.  Ins.  Co.,  3 
Bosw.,  190 ;  Grant  v.  Delacour,  1  Taunt.,  466. 

See,  further,  N.  Y.  Insurance  Co.  v.  Thomas,  3 
Johns.  Cos.,  1,  and  note  in  this  edition. 

503 


246 


SUPREME  COURT,  STATE  OK  NEW  YORK. 


1801 


in  their  own  nature,  but  under  the  clause  relative 
to  skins  and  hides,  and  that  the  insured  were,  there- 
fore, entitled  to  recover. 

Citation— 1  Johns.  Cas.,  236. 

rpHIS  was  an  action  on  a  policy  of  insurance 
JL  on  goods  from  New  Orleans  to  New  York. 
The  vessel,  during  the  voyage,  was  captured 
and  carried  into  New  Providence,  and,  after 
having  been  detained  56  days,  was  acquitted. 
A  large  quantity  of  deer  skins,  in  bundles, 
part  of  the  goods  insured,  were  found  in  a 
perishable  condition,  and,  after  a  survey  made, 
a  few  days  before  the  acquittal  of  the  vessel, 
it  was  thought  necessary  to  sell  the  deer  skins, 
in  order  to  prevent  a  total  loss,  in  case  of  their 
being  reshipped;  and  they  were  accordingly 
.sold,  by  which  there  was  a  partial  loss  on  the 
cargo  of  above  ten  per  cent. 

By  a  memorandum  at  the  foot  of  the  policy, 
it  was  agreed,  "that  salt,  grain  of  all  kinds, 
Indian  corn,  fruits,  cheese,  dry  fish,  vegeta- 
bles and  roots,  and  all  articles  that  are  perish- 
able in  their  own  nature,  are  warranted  by 
the  assured,  free  from  average,  unless  gener- 
al; and  sugar,  hemp,  flax,  flax  seed,  bread, 
skins,  hides  and  tobacco,  are  warranted  free 
from  average,  under  seven  per  cent.,  unless 
general." 

A  verdict  was  taken  for  the  plaintiff,  sub- 
ject to  the  opinion  of  the  court,  whether  the 
deer  skins  were  within  that  part  of  the  memo- 
randum which  warrants  articles,  perishable  in 
their  own  nature,  free  from  average,  unless 
general. 

Mr.  B.  Livingston  for  the  plaintiff. 
Mr.  Troup  for  the  defendant. 

RADCLIFF,  J.  If  the  article  of  deer  skins  be 
considered  as  perishable  in  its  nature,  and 
therefore  comprehended  in  the  first  part  of 
247*]  the  memorandum, and  uncontrolled  *by 
the  subsequent  provision  made  in  it,  this  case 
would  come  within  the  decision  of  Le  Boy  et 
al.  v.  G&uvenieur.  (1  Johns.  Cas.,  226.)  In 
that  case,  we  determined  that  under  the  usual 
terms  of  the  memorandum,  the  insurer  was 
never  liable  on  account  of  perishable  articles, 
except  for  a  general  average,  and  a  total  loss 
of  the  commodity.  But  the  memorandum  is 
here  restrained  by  the  subsequent  provision, 
by  which  the  parties  have  impliedly  expressed 
their  sense  on  the  subject.  It  first  declares 
that  articles  perishable  in  their  own  nature, 
shall  be  free  from  average,  unless  general.  It 
then  enumerates  certain  other  article,  and 
among  them,  skins  and  hides;  which  are  war- 
ranted free  from  average,  under  seven  pel- 
cent.,  unless  general.  To  make  these  provis- 
ions consistent,  it  must  be  understood  that  the 
parties  did  not  consider  skins  and  hides  as  in- 
cluded in  the  first  description;  for  otherwise 
they  would  be  made  to  say  that  for  them  the 
insurer  should  not  be  liable  for  any  average, 
unless  general;  and  again,  should  not  be  liable 
for  any  average  under  seven  per  cent,  unless 
general.  The  latter  part  of  the  memoran- 
dum must  therefore  be  construed  to  qualify 
and  restrain  the  former. 

I  am  of  opinion  that  there  ought  to  be  judg- 
ment for  the  plaintiff,  on  the  verdict,  as  it 
stands. 

504 


KENT,  J.  The  only  question  in  this  case  is 
whether  the  deer  skins  are  to  be  included  in 
that  part  of  the  memorandum  which  declares 
that  all  articles,  perishable  in  their  nature,  are 
warranted  free  from  average,  unless  general. 
By  specifying  skins  and  hides  as  being  subject 
tp  a  partial  exemption,  the  contract  has  ex- 
cluded the  idea  that  they  are  to  be  considered 
as  goods  perishable  in  their  own  nature,  and 
subject  to  a  more  extensive  exception.  Any 
other  construction  would  render  the  particular 
enumeration  useless  and  absurd;  and  as  the 
skins  did  suffer  a  partial  loss  by  the  *de-  [248 
lay  arising  from  the  capture,  of  above  seven 
per  cent. ,  the  defendants  are  responsible  for  a 
partial  loss. 

LANSING,  Ch.  J.,  was  of  the  same  opinion. 

LEWIS,  J.,  not  having  heard  the  argument, 
gave  no  opinion. 

Judgment  for  the  plaintiff. 


ROGET  t>.  THURSTON. 

1 .  Marine  Insurance — ' 'French  Risks  Excepted  " 
— Capture  —  Detention  —  Recapture.  2.  De- 
tention— Demotion.  3.  Loss  Total — Abandon- 
ment— Duties  of  Assured. 

Where  a  vessel  .was  insured,  excepting1  French 
risks,  and  was  captured  by  a  French  privateer,  and 
after  being:  detained  four  days,  was  recaptured  by  a 
British  frigate,  and  condemned  as  French  property; 
it  was  held  that  the  insured  could  not  recover. 

Citation— 1  Johns.  Cas.,  395. 

THIS  was  an  action  on  a  policy  of  insurance 
on  the  cargo    of  the  schooner  Venelia, 
from  New  York  to  Port  au  Prince,  French 
risks  excepted. 

The  vessel  was  captured  the  10th  July,  1798, 
by  a  French  privateer,  in  whose  possession 
she  remained  until  the  14th  July,  when  she 
was  recaptured  by  a  British  frigate.  She  was 
libeled  in  the  Vice-Admiralty  Court  of  Jamai- 
ca, as  the  property  of  French  subjects.  No 
claim  was  interposed,  and  both  vessel  and  ear- 
go  were  condemned  as  lawful  prize.  After 
the  condemnation,  the  agent  for  the  plaintiff, 
on  the  2nd  January,  1799,  put  in  a  claim,  and 
entered  an  appeal,  which  was  allowed.  No 
notice  of  the  capture,  or  of  the  loss  claimed,  was 
given  by  the  defendant,  until  an  abandonment 
was  made  in  October,  1799,  which  was  imme- 


NOTE.— Marine  insurance,  policy,  exceptions  in* 
Abandonment. 

In  Heebner  v.  Eagle  Ins.  Co.  (10  Gray,  131),  a  poli- 
cy contained  a  clause  exempting1  insurers  from  lia- 
bility for  breaking'  machinery  unless  occasioned 
by  stranding."  The  vessel  having  been  injured, 
first  by  a  sea  peril  then  by  stranding,  it  was  said 
the  burden  was  on  the  insured  to  show  the  injury 
done  by  stranding.  Compare,  also,  Coolidge  v.  Ins. 
Co.,  14  Johns.,  308;  Dickey  v.  Ins.  Co.,  11  Johns., 
358;  Wilson  v.  Ins.  Co.,  14  Johns.,  227. 

As  to  abandonment,  time  for,  see  Earl  v.  Shaw,  1 
Johns.  Cas.,  313;  Mumford  v.  Church,  Id.,  147,  and 
notes  in  this  ed.  See  in  addition  to  cases  there  ci- 
ted, Lawrence  v.  Sebor,  2  Caines,  203 ;  Tom  v. 
Smith,  3  Caines,  245 ;  Mullett  v.  Shedden,  13  East* 
304 ;  Dorr  v.  N.  E.  Ins.  Co.,  11  Mass.,  1. 

As  to  deviation,  see  Gilfert  v.  Browne,  post.  296V 
and  note  in  this  ed.;  also  Earl  v.  Shaw,  above  cited. 

JOHNSON'S  CASES,  2. 


1801 


ROBERTSON  AND  BROWN  v.  THE  UNITED  INSURANCE  COMPANY. 


348 


diately  after  receiving  authenticated  copies  of 
the  admiralty  proceedings. 

It 'was  agreed  that  if  the  court  should  be  of 
opinion  that  the  plaintiff  was  entitled  to  re- 
cover for  a  total  loss,  then  a  judgment  should 
be  entered  against  the  defendant,  on  a  cognovit 
249*]  actionem,  for  $507;  ^Otherwise  a  judg- 
ment was  to  be  entered  for  the  defendant. 


Mr.  B.  Livingston  for  the  defendant. 
Messrs.  Pendleton  and  Hamilton  contra. 


RADCLIFP,  J,,  delivered  the  opinion  of  the 
court: 

Three  questions  have  been  made  in  this 
cause ;  1st.  Whether  the  capture  by  the 
French,  was  within  the  exception  of  French 
risks? 

Of  this  I  think  there  can  be  no  doubt.  If 
we  give  any  effect  to  the  terms  of  the  excep- 
tion, they  must  mean  that  the  insurer  is  not  to 
be  liable  for  any  loss  by  the  acts  of  French- 
men. 

3d.  Whether  by  the  French  seizure  the 
risks  insured  against  were  determined,  and 
the  policy  discharged? 

By  this  seizure,  an  event  within  the  excep- 
tion of  French  risks  happened,  and  the  casus 
fcederis,  upon  which  the  insurer  was  not  to  be 
liable,  occurred.  The  voyage  was  thereby  mate- 
rially interrupted,  and  the  subject  placed  in  a 
new  situation.  It  cannot  be  said  that  the 
perils  were  not  increased,  nor  that  the  subse- 
quent capture  was  not  a  consequence,  or  prob- 
ably occasioned  by  the  first.  It  is  not  material 
that  it  should  appear  to  be  so.  It  is  sufficient 
that  the  voyage  was  interrupted,  and  the  vessel 
stopped,  for  at  least  four  days,  by  an  event, 
the  risk  of  which  was  undertaken  by  the 
insured.  This  detention,  like  a  deviation  for 
that  period,  altered  the  risk,  and  must  be  con- 
sidered as  discharging  the  policy. 

On  this  ground,  I  am  of  opinion  the  plaint- 
iff cannot  recover. 

3.  The  third  question,  as  to  the  time  of  the 
abandonment,  it  would  be  unnecessary  to 
touch,  but  it  has  already  been  decided,  in  the 
case  of  Earl  v.  Lefferts.1 

25O*]  *The  right  of  abandonment  was 
there  considered  as  existing  for  the  benefit  of 
the  insured,  and  to  be  exercised  at  his  elec- 
tion. In  a  proper  case,  he  has  the  right  to 
abandon,  but  is  not  compelled  to  do  it.  He 
may  take  the  chance  of  the  ultimate  success  of 
the  voyage,  but  he  will  thereby  subject  him- 
self to  the  result  of  a  total  or  partial  loss,  ac- 
cording to  events.  If  the  loss  continues  total, 
he  may  at  any  time  abandon;  but  in  the  inter- 
im, he  is  bound  to  act  with  good  faith,  and 
take  all  proper  measures  to  recover  and  pre- 
serve the  property  insured.  If  guilty  of  any 
fraud  or  misconduct,  the  loss  resulting  from 
it  would  be  his  own,  and  the  insurer  would 
not  b^e  injured. 

From  this  decision,  it  would  follow  that  if 
the  insured,  in  the  present  case  had,  other- 
wise, a  right  to  abandon,  the  abandonment 
was  not  too  late,  while  the  loss  continued 
total. 


1.— See  Earl  v.  Shaw,  1  Johns.  Cases,  313. 
JOHNSON'S  CASES,  2. 


But  on  the  former  ground,  the  plaintiff  ought 
not  to  recover. 

LEWIS,  J.,  not  having  heard  the  argument, 
gave  no  opinion. 

Judgment  for  the  defendant. 
Overruled— 2  Johns.,  89. 


ROBERTSON  AND  BROWN 

0. 
THE  UNITED  INSURANCE  COMPANY. 

1.  Marine  Insurance — Bottomry  Interest — Ex- 
pressly Mentioned.  2.  Bottomry  Bond — Pe- 
culiar Clause. 

An  insurance  on  the  vessel  will  not  cover  a  bot- 
tomry Interest,  unless  It  is  expressly  mentioned  in 
the  policy.  A  clause  of  sale  inserted  in  a  bottomry 
bond  does  not  destroy  its  character  or  operation. 

Citation— 3  Burr.,  1394;  8.  C.,  1  Black  B.,  405;  1 
Beawes,  139. 

THIS  was  an  action  on  a  policy  of  insurance 
on  the  British  ship  John,  from  New  York 
to  Martinique. 

The  ship  was  owned  by  a  British  subject  re- 
siding at  Martinique,  and  being  in  New  York, 
and  bound  to  Martinique,  *the  plaint-  [*251 
iffs  furnished  to  the  master,  $10,549,  for  re- 
pairs, &c.,  and  took  a  bottomry  bond  for  the 
amount.  The  plaintiffs  effected  the  policy  for 
$10,000,  with  a  view  to  secure  that  sum,  as 
part  of  their  advances  for  the  vessel.  The  sum 
was  not  specified  in  the  policy  as  on  bottom- 
ry. During  the  voyage  the  vessel  was  capt- 
ured by  the  French,  and  the  plaintiffs  aban- 
doned to  the  defendants. 

The  bottomry  bond,  after  the  usual  recital 
and  clause  hypothecating  the  vessel  for  the 
payment  of  the  money,  contained  the  follow- 
ing clause:  "And  for  the  better  performance 
of  all  the  covenants  and  agreements  herein 
contained,  I,  the  said  Neil  Brown,  for  the  con- 
sideration aforesaid,  do  grant,  bargain,  and 
sell  the  said  ship  John  and  premises  to  the  said  G. 
R.,  his  executors,  administrators,  and  assigns; " 
with  the  usual  proviso  that  on  payment  of  the 
money,  interest,  &c.,  the  whole  was  to  be  void. 

A  verdict  was  taken  for  the  plaintiff,  as  for 
a  total  loss,  subject  to  the  opinion  of  the 
court,  upon  a  case  containing  the  above  facts, 
with  liberty  to  either  party  to  turn  it  into  a 
special  verdict. 

It  was  agreed  that  if  the  court  should  be  of 
opinion  that  the  plaintiffs  were  entitled  to 
recover  for  a  total  loss,  judgment  was  to  be 
entered  on  the  verdict;  or  if  entitled  to  a  return 
of  premium  only,  then  judgment  was  to  be 
entered  for  the  plaintiff  for  $1,000;  otherwise, 
a  judgment  was  to  be  entered  for  the  defend- 
ants. 


NOTK.— Marine  insurance,  incurable  interest,  bot- 
tomry. 

Insurers  of  tiottitmry  interest  are  not  responsible 
if  debt  survives.  They  only  insure  against  the  risks 
which  the  lender  assumes.  Thompson  v.  Royal  Ex. 
Assurance  Co.,  2  Maule  &  Selw.,  30 ;  Greeley  v.  Smith, 
3  Wood.  &  M.,  236 ;  Harman  v.  Van  Hatten,  2  Vern., 
717 ;  Pope  v.  Nickereon,  3  Story,  465 ;  Thorndike  v. 
Snord,  11  Pick.,  183 ;  The  Elephanta,  9  Eng.  L.  &  Eq., 
553. 

See  Kenny  v.  Clarkson,  1  Johns.,  385. 


251 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


Mr.  B.  Livingston  for  the  plaintiff. 
Messrs.  Troup  and  Haritmn  contra. 

RADCLIFF,  J.  The  bill  of  bottomry  in  this 
instance  is  not  wholly  in  the  usual  form.  It 
not  only  pledges  the  ship,  but,  in  terms, 
"grants,  bargains,  and  sells"  her  to  the  plaint- 
iffs. This  additional  clause  does  not,  however, 
appear  to  me  essentially  to  vary  its  character 
252*]  or  operation.  *It  must  still  be  consid- 
ered as  a  contract  of  bottomry.  It  was  made 
by  the  captain,  in  his  capacity  of  master,  and 
as  such  he  could  not  sell  the  ship,  nor  do 
more  than  pledge  her,  for  the  eventual  pay- 
ment of  the  money.  The  circumstance,  that 
interest  was  reserved,  at  seven  per  cent,  only, 
cannot  alter  the  case.  That  was  a  matter  of 
agreement  between  the  parties,  and  might 
have  been  increased  or  diminished  at  their 
pleasure. 

Considering  the  contract  as  a  bottormy  only, 
it  created  a  special  interest,  which,  when  in- 
sured, must  be  particularly  expressed  in  the 
policy.  (3  Burr.,  1394;  Glover  v.  Black,  1  Black. 
Rep.,  405,  S.  C.)  This  has  long  been  deter- 
mined to  be  the  law  and  practice  of  merchants, 
and  no  usage  appears  to  counteract  it.  The 
instances  which  have  been  mentioned,  and 
which  accompany  this  case,  are  too  loose  and 
uncertain  to  establish  a  different  rule,  and 
ought  never  to  be  admitted  to  overturn  a 
principle  so  fully  and  clearly  settled. 

The  plaintiffs,  therefore,  cannot  recover  on 
the  policy,  but  are  entitled  to  a  return  of  the 
premium,  for  which  no  risk  has  been  run  by 
the  defendants.  ' 


KENT,  J.  The  question  is,  whether  the 
bottomry  interest  was  covered  by  the  policy,  as 
the  bottomry  was  not  specified. 

The  case  of  Glover  v.  Black  (3  Burr.,  1394) 
is  decisive  upon  this  point.  It  was  there  held 
that  respondentia  and  bottomry  must  be  men- 
tioned in  the  policy,  and  that  this  was  the  law 
and  practice  of  nations.  The  risk  on  a  bot- 
tomry policy  is  peculiar.  There  is  neither 
average  nor  salvage ;  and  capture  does  not 
mean  a  temporary  taking  merely,  but  one  that 
occasions  a  total  loss.  If  the  nature  of  the 
interest  was  not  disclosed,  the  insurer  might 
pay  for  a  total  loss  on  an  immediate  capture, 
without  being  apprised  of  his  rights. 

There  cannot  be  any  doubt  as  to  the  con- 
tract in  question  being  a  true  bottomry  con- 
253*]  tract.  It  is  agreeable  to  *the  usual  form 
(1  Beawes,  139),  except  as  to  the  additional 
clause  of  the  sale;  and  taking  contract  together, 
and  considering  that  it  was  made  by  the  mas- 
ter, it  is  evident  that  the  sale  was  only  a 
hypothecation,  or  mortgage  of  the  ship,  which 
is  the  just  definition  of  a  bottomry  contract. 

LANSING,  Oh.  J.,  was  of  the  same  opinion. 

LEWIS,  J.,  not  having  heard  the  argument, 
gave  no  opinion. 

Judgment  for  the  plaintiff  for  a  return  of 
premium. 

Cited  in-2  Johns.,  351;  7  Bos.,  Iftt;  Blatch.  &  H.,  89. 
oO« 


GILES  v.  BRADLEY,  Executrix,  &c. 

Sale — Agreement  to  hike  Back — Offer  to  Return 
— Refusal —  Damages. 

A  purchased  a  negro  slave  of  B  for  $200,  for 
which  he  gave  B  his  bill,  payable  in  five  months; 
and  it  was  agreed  between  the  parties  that  if  A  or 
his  wife  did  not  like  the  slave,  B  would  take  him 
back,  if  he  was  returned  any  time  within  five 
months,  and  refund  the  purchase  money;  A  offered 
to  return  the'  slave  within  the  five  months,  and  B 
refused  to  take  him,  or  to  refund  the  money.  A 
having  paid  the  bill,  brought  an  action  against  B  to 
recover  back  the  amount  of  the  purchase  money; 
and  it  was  held  that  A  was  entitled  to  recover  the 
amount,  as  damages  for  the  non  performance  of  the 
agreement. 

Citations— Doug.,  23 ;   1  Term  R.,  132,  133 ;  Cowp.. 

818. 

THIS  was  a  special  action  on  the  case, 
brought  to  recover  back  the  purchase 
money  of  a  negro  slave,  sold  by  the  defendant's 
testator  to  the  plaintiff.  A  verdict  was  found 
for  the  plaintiff,  subject  to  the  opinion  of  the 
court,  on  the  following  case. 

On  the  19th  November,  1798,  the  plaintiff 
purchased  of  the  defendant's  testator  a  negro 
slave,  for  $200;  for  the  payment  of  which  sum 
the  plaintiff  executed  to  the  defendant's  testa- 
tor a  single  bill,  payable  in  five  months,  with 
interest;  and  the  bill  was  afterward  paid  by 
the  plaintiff. 

At  the  time  of  the  purchase,  it  was  agreed 
between  the  plaintiff  and  the  testator  that  if 
the  plaintiff  or  his  wife  did  not  like  the  boy, 
the  testator  would  take  him  back,  upon  his 
being  returned  at  any  time  within  five  months 
from  the  time  of  the  purchase;  and  that  the 
testator  would  thereupon  refund  the  purchase 
money  to  the  plaintiff.  *The  plaintiff,  [*254 
not  liking  the  boy,  returned  him  to  the  testator 
within  five  months  from  the  time  of  the  pur- 
chase, assigning  as  a  reason  that  the  plaintiff 
did  not  like  the  boy;  but  the  testator  refused 
to  receive  him,  or  to  refund  the  purchase 
money. 

Mr.  Troup  for  the  plaintiff. 
Mr.  Burr,  contra. 

RADCLIFF,  J.,  delivered  the  opinion  of  the 
court: 

This  action  is  well  brought.  There  can  be 
no  doubt  but  that  a  contract  may  be  so  made 
as  to  be  optional  on  one  of  the  parties  and 
obligatory  on  the  other,  or  obligatory  at  the 
election  of  one  of  them.  (Doug.,  23;  1  Term 
Rep.,  132,  133;  Cowp.,  818.)  The  convenience 
of  parties,  in  cases  like  the  present,  may  often 
require  such  terms;  and  there  are  frequent 
instances  of  such  agreements  being  held  valid 
in  law.  Considering  them  as  valid,  I  can  see 
nothing  in  the  present  case,  to  preclude  the 
plaintiff  from  a  recovery.  This  is  not  the 
case  of  a  written  contract.  It  was  wholly 
by  parol,  and  does  not  come  within  the  rule  of 
evidence  concerning  written  agreements.*  The 
single  bill  was  no  part  of  the  contract  for  the 
purchase,  but  was  made  in  pursuance  of  it. 
The  purchase  was  necessarily  antecedent,  and 
the  execution  of  the  bill  a  subsequent  act, 
and  a  part  performance  of  the  contract.  The 
bill,  therefore,  cannot  be  considered  as  a 
writing,  which  contained  the  agreement  for 
JOHNSON'S  CASES,  2. 


1801 


RUSH   V.    COBBKTT. 


254 


the  purchase.  In  the  case  of  Weaton  v.  Downe* 
(Doug.,  23),  on  a  similar  contract,  for  the 
purchase  of  a  pair  of  horses,  the  money  was 
actually  paid  at  the  time  of  the  purchase,  and 
yet  the  payment  was  not  considered  to  affect 
the  plaintiff's  right  to  recover  on  the  agree- 
ment. The  bill,  in  the  present  case,  was  but  a 
security  for  the  payment,  and  certainly  cannot 
have  a  greater  effect  than  the  payment  itself. 
2£>5*]  If  the  money  *had  also  been  paid, 
I  think  it  might  as  well  be  said  that  the  receipt 
for  the  payment  contained  the  agreement  for 
the  purchase,  and  should  conclude  the 
plaintiff,  as  that  the  bill  should  now  con- 
clude him.  It  would  be  equally  entitled  to 
be  considered  as  the  written  evidence  of  the 
contract. 

The  subsequent  payment  of  the  bill,  con- 
nected with  the  circumstance  that  the  period 
of  five  months,  at  the  expiration  of  which  it 
was  made  payable,  was  the  same  within  which 
the  negro  was  to  be  returned,  might  afford  the 
presumption,  that  the  plaintiff  had  thereby 
made  his  election,  and  determined  the  contract. 
But  in  answer  to  this,  it  is  expressly  stated 
that  the  testator  agreed  that  the  money  should 
be  refunded  on  the  return  of  the  negro.  The 
agreement  to  refund  controls  the  presumption, 
and  shows  that  a  payment  was  contemplated 
as  optional  in  the  plaintiff,  before  the  expira- 
tion of  the  five  months,  which  must,  of  course, 
have  been  intended  to  be  without  prejudice  to 
his  right  of  returning  the  negro. 

It  has  been  objected  that  as  the  plaintiff 
could  not,  on  the  ground  now  taken,  have 
made  a  defense  to  an  action  on  the  bill,  he 
cannot  be  permitted,  in  another  action,  to  re- 
cover back  the  consideration  money  for  which 
it  was  given.  The  principle  of  this  objection, 
if  applicable  to  the  case,  is  founded  on  the 
idea  that  the  present  action  is  brought  to  re- 
cover back  the  precise  and  identical  sum  for 
which  the  bill  was  given.  This  I  apprehend 
to  be  altogether  a  mistake.  The  object  of 
this  action  is  to  obtain  damages  for  the  non- 
performance  of  the  agreement  on  which  it  is 
founded;  and  those  damages  may  vary,  accord- 
ing to  the  circumstances  of  the  case.  They 
may  be  more  or  less  than  the  amount  of  the 
bill,  and  are  not  controlled  or  regulated  by  it. 
It  is  not,  therefore,  the  case  of  a  party  seeking 
to  recover  back  money  which  he  was  legally 
bound  to  pay,  and  which,  in  a  former  action, 
lie  could  not  resist.  The  plaintiff's  right  is 
consistent  with  the  payment  or  recovery 
256*]  *of  the  bill.  In  their  nature,  they  are 
different  demands,  and  may  be  essentially 
different  in  amount. 

I  can,  therefore,  see  no  ground,  on  which 
this  action  ought  to  be  denied.  Indeed,  it  ap- 
pears to  me  new  and  extraordinary  that  a  single 
act  (like  the  present  bill),  done  in  pursuance  of 
a  contract,  should  be  set  up  to  destroy  all  the 
terms  of  that  contract.  If  the  title  to  this  negro 
had  failed,  or  if  his  age  or  any  other  circum- 
stances were  materially  different  from  what 
was  represented  and  warranted  by  the  tes- 
tator, as  well  might  it  be  pretended  that  this 
bill  would  retrospect,  and  defeat  all  the 
previous  agreements  between  the  parties.  I 
cannot  believe  it  to  possess  this  destruc- 
tive quality,  or  ascribe  to  it  such  important 
effects. 

JOHNSON'S  CASES,  2. 


We    are    of    opinion   that   the   plaintiff   is 
entitled  to  judgment. 

Judgment  for  tfte  plaintiff. 

Cited  in— 3  Johns.  Cas.,82;40N.  Y.,  489;  67  X.  Y.,  73: 
6  Barb.,  181. 


RUSH  v.  COBBETT. 

Foreign  Judgment  —  Action  on — Plea — Nil  De- 
bet  and  Payment — Proof— Record. 

In  an  action  of  debt  on  a  judgment  in  the  Su- 
preme Court  of  Pennsylvania,  the  defendant  pleaded 
nil  debet  and  payment.  It  was  held  that  the  plaint- 
iff was  bound  to  produce  and  prove  the  record  of 
the  judgment,  or  an  exemplification  thereof. 

Citation— IT.  S.  Court,  art.  4;  Act  of  May  26th, 
1790;  Laws  of  U.  S.,  vol.  1,  p.  115. 

THIS  was  an  action  of  debt  on  a  judgment 
of  the  Supreme  Court  of  the  State  of 
Pennsylvania.  The  defendant  pleaded  nildebet 
and  payment.  The  cause  was  tried  before 
Mr.  Justice  Lewis,  at  the  New  York  Circuit, 
the  27th  November,  1800. 

At  the  trial,  the  counsel  for  the  plaintiff 
contended  that  he  was  not  bound  to  produce 
the  record  of  the  judgment  of  the  court  in 
Pennsylvania;  that  the  pleas  of  nil  debet  and 
payment  admitted  the  record  to  be  as  it  had 
been  declared  on  by  the  plaintiff,  and  it  was 
only  necessary  for  him  to  have  the  damages 
assessed  by  the  jury.  The  defendant's  counsel 
insisted  that  it  *was  incumbent  on  the  [*257 
plaintiff  to  produce  the  record,  or  an  exempli- 
fication of  it. 

The  judge  decided  that  the  pleas  of  nil  debet 
and  payment  admitted  the  record  as  declared 
upon;  and  that  the  plaintiff  was  not,  therefore, 
bound  to  produce  it;  and  the  jury,  under  his 
direction,  found  a  verdict  for  the  plaintiff. 

A  motion  was  made  to  set  aside  the  verdict, 
and  for  a  new  trial,  for  the  misdirection  of  the 
judge. 

Messrs.  Pendleton  and  Riggs  for  the  defend- 
ant. 
Mr.  B.  Livingston,  contra. 

RADCLIFP,  J.,  delivered  the  opinion  of  the 
court : 

The  question  is,  whether,  under  the  plea  of 
nil  debet,  the  record  of  the  judgment  in  Penn- 
sylvania ought  to  have  been  proved. 

1.  If  the  plea  of  nil  debet  had  any  effect  or 
operation,    I  think  it  was  incumbent  on  the 
plaintiff  to  prove  the  record.     It  is  the  general 
issue,  which  admits  nothing,  and  is  a  total  and 
general  denial  of  the  plaintiff's  right  of  action. 

2.  The    question    whether    the    plea    was 
proper,  arises  on  the  face  of  the  record,  and, 
if  improper,  it  ought  to  have  been  answered 
by  demurrer,  or  not  to  have  been  answered  at 
all,  and  treated  as  a  nullity.     By  taking  issue 
upon  it,  the  plaintiff  has  treated  it  as  a  regular 
and  competent  plea.     Having  done  this,  he 
cannot  afterwards  consider  it  as  a  nullity,  and, 
on  that  ground,  dispense  with  proof  which 
would  otherwise  be  required.     It  is  unneces- 
sary here  to  determine  whether  nil  debet,  or 
nut  Uel  record,  is  the  proper  plea  to  an  action 

507 


257 


SUPREME  COURT,  STATK  OF  NEW  YORK. 


1801 


of  debt  on  a  judgment  given  in  another  state.1 
155  8* J  This  would  *demand  a  consideration 
of  the  Constitution  of  the  United  States  and 
the  Act  of  Congress  (4th  article  of  the  Con- 
stitution, and  Act  of  the  26th  May,  1790, 
Laws  of  the  United  States,  Vol.  I.,  p.  115),  re- 
lating to  the  mode  of  proof,  and  the  effect  of 
such  judgment,  which  present  a  question  of 
considerable  moment.  We  think  it  sufficient, 
to  decide  the  present  case,  that  the  plaintiff  has 
admitted  the  propriety  of  the  plea  of  nil  debet, 
by  joining  issue  upon  it,*  and  that  the  ques- 
tion on  its  merits  cannot  thus  be  regularly 
decided. 

New  trial  granted. 

Revlewed-26  N.  Y.,  272. 

Cited  in— 2  Johns.,  183;  8  Johns.,  83. 


WARDELL  t.  EDEN. 

1.  Judgment — Assignment — Satisfaction  there- 
after—  Vacated.  2.  Practice — Usury — Plead- 
ing— Trial — Feigned  Issue — Collusion.  8. 
Id.  —  Feigned  Issue —  Application — Discretion 
of  Court —  When  Awarded — Audita  Querela 
— Stay  of  Execution — Scire  Facias. 

Where  the  plaintiff,  after  he  had  assigned  a  judg- 
ment to  a  third  person,  and  given  notice  to  the  de- 
fendant of  such  assignment,  entered  up  satisfaction 
on  the  record ;  it  was  held  that  the  entry  of  the  sat- 
isfaction was  fraudulent  and  void,  and  it  was 
ordered  to  be  vacated. 

The  proper  way  to  try  the  truth  of  the  allegation 
of  usury,  in  regard  to  a  judgment,  entered  upon  a 
bond  and  warrant  of  attorney,  is  to  retain  the  judg- 
ment, and  award  a  feigned  issue  to  try  the  f act ;  but 
where  the  judgment  nad  been  assigned  to  a  oona 
fide  purchaser,  and  notice  thereof  given  to  the 
defendant,  the  court  refused  to  award  an  issue,  con- 
sidering a  judgment  as  not  within  the  words  of  the 
statute  against  usury,  and  having  reason  to  suspect 
a  collusion  between  the  plaintiff  and  the  defendant, 
to  defeat  the  claims  of  the  assignee  of  the  judg- 
ment. 

An  application  for  a  feigned  issue  is  to  the 
sound  discretion  of  the  court;  and  it  is  awarded 
only  for  the  information  of  the  court,  or  where  the 
party  is,  otherwise,  without  relief ;  and  where  the 
defendant  alleged  payment  to  the  plaintiff,  made  by 
him,  on  a  judgment  which  had  been  assumed  to  a 
third  person,  the  court,  on  motion  for  that  purpose, 
refused  to  award  an  issue  to  try  the  truth  and 
validity  of  the  payment ;  but  left  the  party  to  his 
remedy  by  audita  querela,  as  the  time  when  the  de- 
fendant received  notice  of  the  assignment  was  con- 
tested ;  though  the  court  might,  if  they  had  thought 
proper,  have  stayed  execution  on  the  judgment, 
until  it  was  revived  bv  scire  facias,  or  by  an  action 
of  debt,  when  the  plaintiff  might  plead  the  pay- 
ments. 

Citations— 1  Term  R.,  819 ;  4  Term  R.,  340 ;  1  Bos. 
&  Pull.,  447 ;  1  Johns.  Cas.,  411 ;  Barnes*  Cases,  52, 
277;  Cowp.,  737;  1  Bos.  &  Pull.,  270;  1  Wils.,  331; 
Sayer,  253;  Barnes,  130;  Cowp.,  727;  1  Ld.  Rayin., 
430,  445  ;  1  Salk.,  264. 

MR.  HARISON,  in  behalf  of  the  Bank  of 
New  York,  assignees  of  the  judgment  in 
this  cause,  at  the  last  term,  moved  that  the 

1.— In  the  case  of  Post  and  La  Rue  v.  Neafle, 
which  was  an  action  of  debt  on  a  decree  of  the 
Court  of  Chancery  in  New  Jersey,  the  defendant 
pleaded  tml  tiel  record ;  and  the  court  (in  January 
Term,  1803)  decided  that  the  plea  was  improper,  and 
ordered  a  repleader.  (MS.)  See  1  Caines,  460,  482;  3 
Caines,  22,  36;  1  Dall,  188;  2  Dall,  302;  Kir.  Rep.,  119; 
1  Wms.  Mass.,  Rep.,  401 ;  3  Term  Rep.,  733. 

2.— See  Meyer  v.  McClean,  2  Johns.  Rep.,  183. 

508 


rule  for  vacating  the  satisfaction  entered  in 
this  cause,  which  was  granted  de  bene  esse,  in 
October  Term,  1800  (see  ante,  p.  121),  should 
be  made  absolute,  or  that  an  issue  be  directed 
to  try  the  truth  of  *the  facts  on  which  [*J259 
the  application  was  founded.  The  facts  are 
sufficiently  stated  in  the  opinion  of  the  court. 

Mr.  Hamilton  also  argued  in  support  of  the 
motion. 

Messrs.  Burr,  Spencer,  Van  Vechten,  and 
Wortman,  contra. 

Cur.  ad.  tult. 

KENT,  J.,  now  delivered  the  opinion  of  the 
court: 

The  material  facts  in  this  case  are  these:  A 
bond,  with  a  warrant  of  attorney  to  confess 
judgment  for  the  sum  of  $50,000,  was  exe- 
cuted by  the  defendant  to  the  plaintiff,  on  the 
20th  of  June  last.  Judgment  was  confessed 
thereon,  and  docketed  on  the  8th  July,  with  a 
cessat  executio  for  six  months.  The  judgment 
was  assigned  by  the  plaintiff,  for  a  valuable 
consideration,  to  Nathaniel  Olcott  on  the  27th 
of  July,  and  by  him  to  William  Roe  on  the 
1st  of  August.  Considerable  payments  were 
made  by  the  defendant  to  the  plaintiff  in  the 
month  of  August.  On  the  6th  of  October, 
the  plaintiff  and  defendant  settled,  and  the 
ultimate  payment,  being  a  balance  of  $1,500, 
was  made.  The  judgment  was  assigned  by 
Roe  to  the  Bank  of  New  York  on  the  7th  of 
October.  The  bank  gave  notice  thereof  to  the 
defendant  on  the  9th  of  October.  Satisfaction 
was  acknowledged  by  the  plaintiff  on  the  10th, 
and  entered  of  record  on  the  llth  October.  It 
is  alleged,  on  the  part  of  the  bank,  that  the 
defendant  had  notice  at  the  time  of  the  assign- 
ment to  Olcott,  but  this  notice  is  denied  on  the 
part  of  the  defendant. 

Upon  these  facts,  a  motion  is  made  in  behalf 
of  the  bank  that  the  tacatur  of  the  satisfaction, 
which  was  ordered  at  the  last  October  Term, 
de  bene  esse,  be  made  absolute;  a  counter  mo- 
tion is  made  by  the  defendant  that  the  judg- 
ment be  set  aside,  or  that  an  issue  be  awarded 
to  try  the  truth  of  the  allegation  that  the  bond 
*was  usurious,  or,  at  least,  to  try  the  [*26O 
validity  of  the  payments  made  by  the  defend- 
ant to  the  plaintiff,  subsequent  to  the  assign- 
ment to  Olcott. 

1.  With  respect  to  the  first  motion,  I  am  of 
opinion  that  the  vacatur  of  satisfaction  ought 
to  be  made  absolute.  The  assignee  of  the 
judgment  is  to  be  recognized  by  this  court  as 
the  owner,  and  all  acts  of  the  plaintiff  subse- 
quent to  the  assignment,  and  affecting  the 
validity  of  the  judgment,  were  fraudulent. 
He  has  no  more  power  over  the  judgment 
than  a  stranger.  But  until  the  defendant  ban 
notice  of  the  assignment,  all  payments  made 
by  him,  and  all  acts  of  the  plaintiff  in  respect 
to  him,  are  good.  (See  1  Term  Rep.,  619;  4 
Term  Rep.,  340;  1  Bos.  &  Pull.,  447;  and 
Andrews  and  Beeker  [See  1  Johns.,  Cas.,  411], 
July  Term,  1800.) 

In  this  case,  however,  the  satisfaction  was 
acknowledged  and  entered  after  the  defendant 
had  notice,  and  that  act  is,  therefore,  void  in 
respect  to  him,  as  well  as  to  the  purchaser  of 
the  judgment.  It  is  proper  that  the  satisfac- 
tion should  be  done  away  without  any  terms 
JOHNSON'S  CASES,  2. 


1801 


MURRAY  ET  AL.  v.  THE  UNITED  INSURANCE  COMPANY. 


being  imposed,  as  a  condition  of  the  vacatur, 
because,  in  judgment  of  law,  it  was  an  act 
done  in  fraud,  and  against  right. 

2.  The  motion  on  the  part  of  the  defendant 
is  to  be  considered  first  in  respect  to  the  alle- 
gation of  usury.     If  that  charge  is  now  to  be 
investigated,  yet  the  judgment  ought  to  stand, 
in  order  to  preserve  the  lien  that  it  has  created 
upon  the  land;  and  the  authorities  are  clear 
and  decisive  that  the  proper  way  to  try  the 
question  of  usury  against  a  judgment  entered 
by  confession,  is  to  retain  the  judgment  and 
award  a  feigned  issue.     (Barnes'  Cases,   52, 
277;  Cowp.,  737;  1  Bos.  &  Pull.,  270.)    But  I 
think  the  court  ought  not  to  aid  the  plea  of 
usury,  under  the  special  circumstances  of  this 
case*    A  bonafide  purchaser  is  here  the  owner 
of  the  judgment,   and  although  a  bond,  or 
note,  if  usurious,  may  be  void  in  the  hands  of 
a    bona  fide  purchaser,    because  the  statute 
261*]  *makes  the  instrument  itself  void,  yet 
the  case  is  varied  in  respect  to  a  judgment 
which  is  not  within  the  words  of  the  act. 

There  are  also  reasons  in  this  case  to  sus- 
pect that  this  charge  of  usury  is  an  after- 
thought, and  that  there  is  a  collusion  between 
the  plaintiff  and  defendant  to  defeat  the  claims 
of  the  bank.  The  parties  carried  on  negotia- 
tions and  effected  payments  from  time  to  time, 
between  the  first  assignment  of  the  judgment 
and  the  6th  of  October,  the  one  knowing  that 
the  judgment  was  transferred,  and  therefore 
acting  fraudulently,  and  the  other  acting 
under  circumstances  that  ought  to  have  put 
him  upon  inquiry;  and,  finally,  after  direct 
notice  to  the  defendant,  they  concur  in  having 
satisfaction  entered  to  consummate  their 
transactions,  and  after  failing  in  their  efforts, 
at  the  last  October  Term,  to  render  the  satis- 
faction valid,  they  now  unite  in  setting  up  this 
new  impediment  to  the  claims  of  the  assignee. 
Under  these  circumstances,  I  think  the  court 
ought  not  to  interfere  and  help  the  defence. 

3.  The  next  object  of  the  application,  on 
the  part  of  the  defendants,  is  for  an  issue  to 
try  the  truth  and  validity  of  the  payments 
made  by  the  defendant;  and  this  will  depend 
upon  the  time  at  which  the  defendant  is  to  be 
considered  as  having  notice  of  the  assignment 
of  the  judgment. 

The  application  for  a  feigned  issue  is  an  ap- 
plication to  the  sound  discretion  of  the  court. 
These  issues  appear,  from  the  cases  which  I 
have  examined  (1  Wils.,  331;  Sayer,  253; 
Barnes,  130;  Cowp.,  727),  to  have  been  grant- 
ed only  for  the  information  of  the  court,  or 
where  the  party  was  otherwise  without  relief. 
In  the  present  case  the  party  has  a  competent 
remedy,  as  a  matter  of  right.  This  is  by  the 
writ  of  audita  querela,  which  lies  where  some 
matter  of  discharge  has  arisen  for  the  defend- 
ant, subsequent  to  the  judgment.  It  is  true 
that  in  many  cases  where  the  defendant  might 
262*]  be  entitled  to  his  *writ  of  audita  querela, 
the  court  will  relieve,  in  a  summary  way, 
upon  motion.  But,  as  Lord  Holt  observed  (1 
Ld.  Raym.,  439,  445;  1  Salk.,  264),  if  the 
ground  of  the  application  be  a  release,  or 
other  matter  of  fact,  it  is  reasonable  to  put  the 
party  to  his  audita  querela,  because  the  plaint- 
iff may  deny  it;  and  if  he  deny  it,  the  court 
will  not  relieve  upon  motion.  In  the  present 
case,  the  period  of  the  notice,  and,  consequent- 
JOHNSON'S  CASES,  2. 


ly,  the  validity,  as  well  as  truth  of  the  pay- 
ments, is  contested  between  the  parties,  and  it 
is  proper  that  these  questions  should  be  left  to 
the  ordinary  mode  established  for  the  trial  of 
facts. 

It  is  in  the  power  of  the  court  to  stay  execu- 
tion upon  the  judgment,  until  the  same  be  re- 
vived by  scire  facias,  or  by  an  action  of  debt, 
when  the  defendant  would  have  an  oppor- 
tunity of  pleading  the  payments.  But  I  see 
no  sufficient  reason  why  the  court  should  act 
at  all  in  this  case,  more  than  in  any  other,  so 
long  as  the  party  has  the  power  to  act  for  him- 
self, and  the  law  has  furnished  him  with  ade- 
quate means  of  relief. 

We  are  therefore  of  opinion  that  the  mo- 
tion on  the  part  of  the  assignees  of  the  judg- 
ment be  granted,  and  that  the  motion  on  the 
part  of  the  defendant  be  denied. 

Rule  accordingly. 

Cited  In— 17  Wend.,  635 ;  6  Hill,  239  ;  5  Johns.  Ch., 
141;  21  Barb.,  435;  13  How.,  27;  47  How.,  444;  7  Abb., 
316;  1  Bos.  &  Pull.,  665;  40  New  Jersey  Law,  99; 
6  Peters,  657  ;  3  Wood.  &  M.,  99 ;  3  Id.,  38o. 


*MURRAY  ET  AL.  [*263 

V. 

THE  UNITED   INSURANCE   COMPANY. 

1.  Marine  Insurance — Capture — By  a  Friend 
— Neutral  Port — Abandonment.  2.  Id. — Id. 
— Evidence — Total  TJOSS — Restoi'alion — Knowl- 
edge of — Presumption. 

A  capture  by  a  friend,  or  the  carrying1  into  port 
of  a  neutral,  by  a  belligerent,  for  adjudication,  as 
contradistinguished  from  a  capture  by  an  enemy,  is 
equally  a  ground  of  abandonment  by  the  insured. 
Such  a  capture  is  prtma  facie  evidence  of  a  total 
loss,  and  the  insured  may  abandon  immediately  on 
receiving  intelligence  of  such  capture;  and  though 
the  vessel  may  have  been  restored  at  the  time  of  the 
abandonment,  yet  if  the  insured  had  no  knowledge 
of  the  fact  at  the  time,  it  will  not  affect  his  right  to 
recover ;  but  a  knowledge  of  the  restoration  may 
be  presumed,  from  the  lapse  of  time  and  distance 
between  the  places,  in  reference  to  the  ordinary 
course  of  intelligence. 

Citations— 1  Johns.  Cos.,  147,  151;  1  Johns.  Cas., 
151 ;  2  Burr.,  696 ;  Park.,  79 ;  Le  Guidon,  ch.  7,  sec. 
1 ;  Valin.,  torn.  2,  76,  127,  134 ;  1  Emerigon,  460 ;  1 
Johns.  Cas.,  14;  2  Valin.,  94. 

THIS  was  an  action  on  a  policy  of  insurance 
on  the  cargo  of  the  brig  Essex.  The  ves- 
sel was  captured  upon  the  voyage  insured, 
which  was  from  Charleston  to  Surinam,  and 
was  carried  into  Demerara  by  a  British  frig- 
ate, where  she  arrived  on  the  8th  of  June, 
and  continued  with  her  cargo,  in  the  hands  of 
the  captors,  until  the  18th  of  June,  when  the 
brig  and  cargo  were  released,  without  having 
been  libeled. 

The  master  of  the  brig  was  consignee  of  the 
cargo,  and  after  the  release  he  continued  at 
Demerara,  instead  of  pursuing  his  voyage  to 
Surinam,  until  the  2d  of  September.  "  On  the 
3d  of  August  the  plaintiffs,  knowing  of  the 
capture,  but  not  of  the  release,  abandoned  to 


NOTE.— As  to  abandonment,  what  determines  right 
to  abandon,  see  note  to  Mumford  v.  Church,  1 
Johns.  Cas.,  147  (this  ed.). 

509 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


the  defendants.  The  property  insured  was 
Hamburg  property.  The  brig  did  not  belong 
to,  but  was  hired  "by,  the  plaintiffs. 

Messrs.  B.  Livingston  and  Burr  for  the 
plaintiffs. 

Messrs.  Hamilton  and  Troup  for  the  defend- 
ants. 

KENT,  J.  Two  cases  have  been  decided  in 
this  court,  which  are  applicable  to  the  present. 
The  case  of  Mumford  v.  Church,1  and  the  case 
of  Slocum  &  Burling  v.  The  United  Insurance 
Company,  in  October  Term,  1799.  Those 
cases  determined  these  points:  1.  That  a  tak- 
ing and  carrying  into  port  of  neutral  property, 
by  a  belligerent  vessel,  authorized  an  aban- 
donment. 2.  That  although  restoration  was 
made  before,  yet  if  not  known  until  after  the 
abandonment,  it  did  not  defeat  the  aban- 
26-!:*]  *donment,  as  parties  could  only  act 
from  the  state  of  things  as  known  to  them. 
But  the  effect  of  a  capture  made  by  a  friend, 
as  contradistinguished  from  one  made  by  an 
enemy,  was  not  raised  as  a  question  in  those 
cases,  but  it  seemed  to  be  taken  for  granted 
that  the  capture,  in  either  instance,  was  the 
same  in  respect  to  the  right  Of  the  insured. 

I  consider  it  as  well  understood  and  settled 
that  a  capture  by  a  friend  is  one  of  the  perils 
insured  against.  The  words  of  the  policy  are 
sufficiently  extensive,  and  parties  must  be  gov- 
erned by  the  usual  and  established  meaning  of 
the  words  unless  some  law  or  usage  be  pro- 
duced to  restrain  their  operation.  In  Goss  v. 
Wither*  (2  Burr.,  696),  it  was  held  that  the  in- 
sured might  abandon  in  case  of  an  arrest,  or 
an  embargo,  by  a  prince  not  an  enemy ;  and  in 
StiUmcd  v.  Johnson,  reported  in  Park,  79,  the 
court  held  the  insurer  responsible  for  a  capt- 
ure by  a  friend.  The  same  construction  is 
given  to  the  policy  by  the  foreign  treatises  and 
writers.  (Le  Guidon,  ch.  7,  sec.  1;  Valin, 
torn.  2,  76,  127,  134.)  The  words  "capture 
and  detention  of  princes"  apply  not  only  to 
takings  by  enemies  or  pirates,  but  to  those 
made  by  friends  or  allies;  in  one  word,  to  all 
captures,  just  or  unjust,  made  by  hostility, 
piracy,  or  otherwise. 

The  next  point  is,  whether  the  loss  justified 
the  abandonment. 

The  general  rule  is  that  the  insured  has  a 
right  to  abandon  immediately  upon  hearing  of 
a  detention,  and  his  claim  to  indemnity  is  not 
suspended  by  the  chance  of  a  future  recovery, 
because,  by  the  abandonment,  that  chance 
devolves  upon  the  insurer.  This  rule  applies 
to  all  cases  of  foreign  detention,  whether  that 
detention  arise  from  necessity  or  in  conse- 
quence of  an  embargo,  or  for  the  purpose  of  a 
judicial  inquiry.  In  either  case  the  voyage  is 
equally  interrupted,  and  involved  in  similar 
uncertainty.  Carrying  into  port  denotes  strong 
suspicion ;  it  is  good  ground  to  calculate  on  a 
I2($5*]  serious  litigation,  *and  it  is  prima facie 
evidence  of  total  loss.  In  such  cases  the  En- 
glish law  does  not  require  a  delay,  in  imitation 
of  some  foreign  rules.  The  activity  of  trade 
rather  demands  decision  and  certainty,  and 
that  the  capital  and  business  of  the  merchant 
should  not  be  kept  in  suspense. 

1.— See  1  Johns.  Cas.,  147, 151. 

&10 


Are  there  any  circumstances  to  exempt  this 
case  from  the  operation  of  the  rule?  Here 
was  not  any  warranty,  or  representation,  as  to 
the  ownership  of  the  property,  and  in  that, 
case  the  risk  of  the  property,  whether  it  be 
neutral  or  enemy's  property,  is  to  be  borne  by 
the  insurer.  This  is  the  sense  and  understand- 
ing of  the  contract  with  us ;  and  the  omission 
of  a  warranty  or  representation  leads  to  the 
conclusion  that  the  property  may  not  be 
neutral,  and  the  insurer  takes  upon  himself 
the  risk  of  loss  by  capture,  be  the  property 
whose  it  may.  The  practice  we  have  gone 
into  of  warranting,  or  representing  the  prop- 
erty to  be  neutral,  can  have  no  rational  solu- 
tion but  upon  this  construction;  and  the  same 
construction  prevails  in  the  French  law.  (1 
Emerigon,  460.)  And  although  I  think  the 
more  natural  conclusion  would  have  been  that 
every  person  making  insurance  was  to  be  pre- 
sumed, even  without  any  warranty,  to  be  the 
owner  of  the  property  insured,  unless  it  was 
otherwise  disclosed  and  declared;  yet  the  pre- 
vailing sense  is  rather  conformable  to  the 
language  of  the  policy.  The  words  are,  that 
the  insured,  "  as  well  in  his  own  name  as  for 
and  in  the  name  of  every  person  to  whom  the 
same  doth  appertain,  in  part  or  in  all,  maketh 
assurance;"  and  it  was  formerly  the  practice 
in  England,  until  prevented  by  statute,  in  the 
year  1785,  to  effect  policies  in  blank,  without 
specifying  the  names  of  the  persons  for  whose 
use  the  insurance  was  made. 

In  the  present  case,  then,  there  could  be  no 
good  reason  for  delay.  If  the  property  was 
condemned  as  enemy's  property,  the  insurer 
would  still  have  been  responsible,  *and  [*266 
there  was  no  reason  arising  from  the  pendency 
of  a  judicial  inquiry  why  the  abandonment 
should  not  have  been  made  as  soon  as  intelli- 
gence of  the  capture  and  carrying  into  port 
had  been  received.  I  say  carrying  into  port, 
for  I  consider  that  act  so  decisive  of  an  inter- 
ruption of  the  voyage,  and  of  uncertainty  as 
to  the  result,  that  the  insured  is  then  author- 
ized to  abandon.  Whether  the  insured,  in 
cases  of  warranty,  or  representation  of  neu- 
trality, would  be  obliged  to  wait  the  event  of 
the  capture  and  judicial  inquiry  before  he 
abandons,  I  give  no  opinion,  because  such  a 
case  is  not  before  the  court. 

With  respect  to  the  act  of  the  consignee, 
which  was  noticed  upon  the  argument,  I  do 
not  consider  it  as  making  any  alteration  in  the 
rights  of  the  plaintiff.  It  was  held,  in  the 
case  of  Gardiner  et  al.  v.  Smith3  (July  Term, 
1799),  that  after  a  total  loss,  the  consignee  be- 
comes the  agent  of  the  insurer,  and  his  acts 
inure  to  the  benefit  of  the  insurer,  to  whom  he 
is  amenable  for  any  inakijides  in  the  execution 
of  his  trust. 

No  question  was  made  upon  the  argument, 
as  to  the  time  of  the  abandonment.  The  no- 
tice of  it  was  given  upwards  of  six  weeks  after 
the  restoration  of  the  vessel,  but  without 
knowledge  of  such  restoration.  It  may  be- 
come a  question  whether,  after  a  reasonable 
time,  the  assured  ought  not  to  be  charged  with 
the  knowledge  of  the  restoration.  Because  of 
the  difficulty  of  bringing  home  to  the  party,  in 
many  instances,  the  knowledge  of  the  fact 


!     2.— 1  Johns.  Cue.,  14. 


JOHNSON'S  CASES,  2. 


1801 


JACKSON,  EX  DEM.  ST.  CKOIX,  v.  SANDS  ET  AL. 


that  the  French  ordinance  of  marine,  article 
89  (2  Valin,  94),  has  fixed  a  precise  standard  to 
ascertain  the  circulation  of  intelligence,  by  an 
arbitrary  ratio  between  the  distance  and  the 
time.  We  have  no  such  rule ;  and  the  pre- 
sumption with  us  must  depend  upon  the  time 
and  distance  between  the  places  in  question, 
in  reference  to  the  ordinary  channels,  and  the 
ordinary  despatch  of  intelligence. 
267*]  *If,  however,  the  presumption 
would  otherwise  have  arisen  against  the 
assured,  yet  in  the  present  case  the  fact  being 
found  that  he  had  no  knowledge  of  the  release 
of  the  vessel,  it  repels  all  such  presumption. 

Upon  every  view  of  this  case,  I  am  of 
opinion  that  judgment  ought  to  be  for  the 
defendant. 

LEWIS,  J.,  was  of  the  same  opinion. 

LANSING,  Ch.  J. ,  and  RADCUFF,  J. ,  not  hav- 
ing heard  the  argument,  gave  no  opinion. 

Judgment  for  tfw  plaintiffs.1 
Cited  in— 2  Johns.,  163;  10  Johns.,  83. 


JACKSON,  ex.  dem.  ST.  CROIX, 


SANDS   ET   AL. 

Attainder  —  Act  of  October,   1779  —  Conviction 
under  Incomplete  Description  —  Parol  Proof. 

Where  a  person,  whose  real  name  was  Joshua 
Temple  De  St.  Croix,  was  convicted  and  attainted 
under  the  Act  of  the  22d  October,  1779,  by  the  name 
of  Joshua  De  St.  Croix,  it  was  held  that  the  pro- 
ceedings under  the  act  were  to  be  governed  by  the 
rules  in  cases  of  attainder,  and  not  by  the  ordinary 
course  of  judicial  proceedings  ;  that  the  conviction 
in  the  present  case  contained  an  imperfect  or  in- 
complete description  of  the  person,  which  might  be 
supplied  and  explained  by  parol  proof;  and  that 
the  identity  of  the  person  was  a  matter  of  fact,  to 
be  ascertained  by  a  jury  ;  aliter,  if  the  description 
of  the  person  be  false,  or  repugnant  to  the  truth. 

Citations  —  Foster,  80,  89;  1  P.  Wms.,  613;  2 
Wooddes.,  625,  628  ;  Foster,  79,  81,  87. 


was  an  action  of  ejectment.  It  was 
1  proved  at  the  trial  that  the  lessor  of  the 
plaintiff  by  the  name  of  Joshua  Temple  De  St. 
Croix,  was  seized  and  possessed  of  the  prem- 
ises in  question,  from  the  year  1766  to  1782, 
having  purchased  the  property  in  1766. 

The  defendants  gave  in  evidence  a  record  of 
the  conviction  of  Joshua  De  St.  Croix,  dated 
268*]  the  15th  July,  *1783,  by  which  it  ap- 

1  —  The  same  questions  as  to  capture  and  abandon- 
ment have  since  arisen  in  several  courts  of  the 
United  States,  and  have  been  decided  in  the  same 
manner.  See  Duthill  v.  Gatliff,  in  the  Supreme 
Court  of  Pennsylvania,  1806,  Dallas,  446;  Rhine- 
lander  v.  The  Insurance  Company  of  Pennsylvania, 
in  the  Supreme  Court  of  the  United  States,  1807,  4 
Cranch,  29,  46  ;  Lee  v.  Boardman,  in  the  Supreme 
Court  of  Massachusetts,  1807,  3  Tyng's  Mass.  Rep., 
238.  See  also  4  Tyng's  Mass.  Rep.,  221.  But  see 
Bainbridge  v.  Neilson,  10  East,  329  ;  Church  v.  Be- 
dient  et  al.,  and  Peyton  v.  Hallett,  1  Caines's  Cases  in 
Error,  21,  28. 


NOTE. — As  to  error  in  middle  name,  see  Keene  v. 
Meade,  3  Peters,  1,  and  note  in  L.  C.  P.  Co.  ed. 

JOHNSON'S  CASES,  2. 


peared  that  he  had  been  indicted  and  attainted 
under  the  Act  of  the  22d  October,  1779,  called 
the  Act  of  Attainder,  of  adhering  to  the 
enemies  of  the  State,  and  his  estate,  real  and 
personal,  was  declared  to  be  forfeited  to  the 
people  of  the  State.  The  defendants  also  gave 
in  evidence  a  deed  to  them  from  the  commis- 
sioners of  forfeitures,  dated  the  eighteenth 
May,  1786,  for  the  premises  in  question,  which 
stated  that  they  had  been  "forfeited  to  the 
people  of  the  State  of  New  York,  by  the  con- 
viction of  Joshua  T.  De  St.  Croix,  late  of," 
&c. 

The  lessor's  name  of  baptism  was  proved  to 
be  Joshua  Temple. 

The  defendants  offered  to  prove  that  the 
lessor  was  known  and  called  by  the  name  of 
Joshua  De  St.  Croix,  as  well  as  by  the  name 
of  Joshua  Temple  De  St.  Croix.  The  evi- 
dence was  objected  to,  but  the  objection  was 
overruled  by  the  judge.  Several  witnesses 
testified  that  they  knew  the  lessor;  that  he 
was  generally  called  Joshua  De  St.  C'roix, 
sometimes  Captain  St.  Croix,  or  Mr.  St. 
Croix. 

The  judge  left  it  to  the  jury  to  determine 
on  the  evidence  whether  the  lessor  of  the 
plaintiff,  Joshua  De  St.  Croix,  mentioned  in 
the  record  of  conviction,  and  Joshua  T.  De 
St.  Croix,  named  in  the  deed  to  the  defend- 
ants, were  not  one  and  the  same  person ;  and 
he  directed  the  jury,  if  they  believed  them  to 
be  one  and  the  same,  to  find  a  verdict  for  the 
defendants;  reserving  for  the  opinion  of  the 
court,  the  question  as  to  the  admissibility  of 
the  evidence,  and  its  sufficiency  to  support 
the  verdict.  The  jury  found  a  verdict  for  the 
defendants. 

A  motion  was  made  to  set  aside  the  verdict, 
and  for  a  new  trial. 

Mr.  Riggs  for  the  plaintiff. 
Mr.  Troup,  contra. 

*RADCLIFF,  J.  In  the  record  of  the  [*26O 
conviction,  the  lessor  is  called  Joshua  De  St. 
Criox.  It  is  proved  on  the  part  of  the  plaintiff 
that  his  real  name  of  baptism  is  Joshua  Tem- 
ple De  St.  Croix,  and  it  is,  therefore,  insisted 
that  he  cannot  legally  be  intended  to  be  the 
person  convicted.  The  defendants  offered 
proof  that  he  was  known  by  the  one  name  as 
well  as  the  other ;  which  was  objected  to  by 
the  plaintiff  but  admitted  by  the  judge. 

The  lessor,  in  the  commissioners'  deed,  is 
named  Joshua  T.  De  St.  Croix,  and  the  deed 
is,  therefore,  contended  to  be  at  variance  with 
the  record  of  the  conviction,  and  not  to  be 
considered  as  founded  on  it.  But  if  the  vari- 
ance in  the  record  were  fatal,  it  certainly 
ought  not  to  be  held  so  in  the  deed,  which  is 
a  matter  in  pais,  and  therefore  not  subject  to 
the  strict  rules  of  legal  proceedings.  It  there 
appears  not  as  evidence  of  the  person  con- 
victed, but  as  part  of  the  description  of  the 
premises  intended  to  be  conveyed.  This  intent, 
if  rendered  doubtful  or  obscure,  by  a  defect  or 
error  of  description,  may  be  explained  and 
illustrated  by  proof. 

The  question,  therefore,  turns  on  the  variance 
in  the  record  itself.  The  act  under  which  the 
conviction  was  had,  attainted  a  number  of  per- 
sons by  name,  and  directed  a  new  mode  of 

oil 


269 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


proceeding  to  convict  and  attaint  others  for 
adhering  to  the  enemies  of  the  State.  By  this 
proceeding  a  notice  of  the  indictment  was  to 
be  published  by  the  sheriff,  and  if  the  person 
indicted  did  not  appear,  he  was  of  course  con- 
victed, and  adjudged  to  suffer  the  forfeiture 
of  all  his  property.  In  this  manner  the  lessor 
of  the  plaintiff  was  convicted,  and  his  property 
confiscated  and  sold  by  the  commissioners, 
under  whom  the  defendants  claim. 

No  doubt,  every  attainder  by  statute,  is  a 
high  and  rigorous  act  of  sovereignty,  and  can 
only  be  defended  by  the  great  objects  of  public 
safety  or  national  policy.  But  although  high- 
ly pe'nal,  these,  like  other  legislative  acts,  are 
to  be  construed  according  to  their  true  intent. 
27O*]  The  legislature  in  this,  as  in  other 
eases,  are  not  bound  by  the  forms  and  descrip- 
tions of  legal  proceedings.  In  bills  of  attain- 
der, therefore,  it  is  held  that  great  strictness  in 
the  name  of  the  person  is  not  necessary.  It  is 
sufficient  if  the  person  intended  be  otherwise 
well  described.  The  rule,  in  such  cases,  is 
that  an  incomplete  description  may  be  aided 
by  proof,  but  a  false  or  repugnant  description 
cannot.  Thus,  in  the  case  reported  by  Foster 
(Fost.,  80,  89  ;  1  P.  Wms.,  612:  2  Wooddes., 
628),  the  attainder  of  Alexander  Lord  Forbes, 
of  Pitsligo,  by  the  name  of  Alexander  Lord 
Pitsligo,  was  deemed  to  be  an  incomplete,  but 
not  a  false  description,  and  therefore  held  to 
be  sufficient.  The  act  now  in  question,  so  far 
as  it  attaints  the  several  persons  named  in  it,  is 
similar  to  bills  of  attainder  in  England,  except 
that  its  operation  is  more  rigorous,  and  it  does 
not  allow  the  party  to  surrender.  In  other  re- 
spects, it  is  an  act  sui  generis,  and  I  believe 
without  precedent.  Instead  of  repeating  at- 
tainders by  statute,  the  Legislature  provided  a 
substitute,  by  directing  a  general  mode  of  pro- 
ceeding against  others  for  the  offence  of  adher- 
ing to  the  enemies  of  the  State.  This  substi- 
tute was  evidently  intended  to  have  all  the 
effect  of  statute  attainders,  and  the  proceeding 
under  it,  I  think,  ought  to  receive  the  same 
construction.  They  cannot  be  placed  on  the 
footing  of  ordinary  process  at  common  law; 
for  they  are  professedly  a  departure  from  it, 
and  ought,  therefore,  not  to  be  tested  by  its 
rules.  The  act  introduced  a  new  system  which 
was,  generally,  directed  against  all  persons, 
and  marked  with  circumstances  of  as  great 
rigor  as  immediate  attainders  by  legislative 
acts.  It  was  intended  to  be  equally  conclusive 
and  extensive  in  its  operation;  for  it  denied 
the  privilege  of  a  writ  of  error,  and  even 
justified  the  conviction  of  persons  not  in  esse, 
who  had  been  guilty  of  the  offence  described 
in  it.  These  strong  measures  do  not  admit 
of  the  application  of  ordinary  principles  and 
rules,  and  indicate  a  different  intent.  They 
can  only  be  resolved  into  the  exercise  of 
271*]  Uncontrolled  authority,  and  be  jus- 
tified only  in  cases  of  great  public  necessity. 
The  intent  of  the  Legislature,  I  think,  evident- 
ly was  that  the  persons  so  convicted  should  to 
every  purpose  be  deemed  to  be  attainted,  as  if 
they  had  been  named  in  the  act;  we  are,  there- 
fore, bound  to  give  this  conviction  the  same 
effect. 

This  construction  is  also  strongly  enforced 
by  the  expediency  of  securing  to  purchasers 
the  titles  fairly  acquired  under  the  forfeitures, 
512 


consequent  on  such  convictions.  These  for- 
feitures, and  all  proceedings  under  them  have 
long  been  finished  and  executed,  and  it 
would  be  dangerous  to  suffer  them  lightly  to 
be  called  in  question.  The  safety  of  a  numer- 
ous class  of  our  citizens,  and,  indeed,  the 
peace  of  the  community,  requires  that  they 
should  be  at  rest. 

On  the  whole,  I  am  of  opinion  that  it  was 
properly  submitted  to  the  jury  to  determine 
whether  Joshua  Temple  De  St.  Croix,  and 
Joshua  De  St.  Croix,  named  in  the  conviction, 
and  Joshua  T.  De  St.  Croix,  named  in  the 
deed  of  the  commissioners,  was  one  and  the 
same  person;  and  that  identity  of  the  person 
was  the  only  thing  necessary  to  be  shown. 

KENT,  J.  In  this  case,  the  lessor  of  the 
plaintiff,  whose  name  is  Joshua  Temple  De  St. 
Croix,  was  indicted  and  attainted  under  the 
Act  of  the  22d  October,  1779,  commonly 
called  the  Act  of  Attainder,  for  adhering  to  the 
enemies  of  this  State,  by  the  name  of  Joshua 
De  St.  Croix,  and  his  estate  was  sold,  in  pur- 
suance of  the  attainder. 

The  question  now  is,  whether  he  is  precluded 
from  recovering  that  estate? 

In  bills  of  attainder,  great  strictness  in  the 
name  of  the  person  attainted  is  not  requisite ; 
a  misnomer,  if  it  be  repugnant  to  truth,  as 
attainting  a  person  by  the  name  of  Thomas, 
when  his  true  name  is  Alexander,  is  fatal.  (1 
P.  AVms.,  612;  Foster,  81;  2  Wooddes.,  628.) 
But  an  incomplete  *description  of  the  [*272 
person,  as  attainting  one  by  the  name  01  Alex- 
ander Lord  Pitsligo,  when  his  name  is  Alex- 
ander Lord  Forbes  of  Pitsligo,  is  not  fatal,  be- 
cause that  description,  as  the  judges  observed, 
in  the  case  reported  by  Foster,  79,  87,  though 
incomplete  in  point  of  form,  is  not  repugnant  to 
truth,  and  the  identity  of  the  person  is  a  mere 
matter  of  fact,  to  be  tried  in  a  collateral  issue. 

Bills  of  attainder  have  always  been  con- 
strued, in  this  respect,  with  more  latitude 
than  ordinary  judicial  proceedings,  for  the 
purpose  of  giving  them  more  certain  effect, 
and  that  the  intent  of  the  Legislature  may 
prevail.  They  are  extraordinary  acts  of  sov- 
ereignty, founded  on  public  policy  (Foster,  83, 
84),  and  the  peace  of  the  community  and  the 
quiet  of  estates,  require  that  purchases  held 
under  them  should  not  be  shaken.  There  can 
be  no  doubt  but  that  the  rule  which  has  been 
suggested  is  the  settled  rule  of  interpretation 
in  respect  to  them. 

The  point,  then,  for  consideration  is,  whether 
the  conviction,  in  the  present  case,  is  to  be 
tested  by  the  rules  applicable  to  bills  of  at- 
tainder, or  by  those  applicable  to  the  ordinary 
course  of  judicial  proceeding. 

From  a  review  of  the  Act  of  Attainder,  I  am 
inclined  to  think  that  the  convictions  under  it 
are  to  be  considered  as  analogous  to  express 
convictions  by  bill  of  attainder,  and  to  require 
the  like  construction. 

The  act  was  made  for  the  express  purpose 
of  working  a  forfeiture  of  the  estates  of  the 
persons  who  had  adhered  to  the  enemies  of 
this  State.  This  appears  by  its  title,  by  its 
preamble,  and  by  the  strong  and  summary 
proceedings  which  it  dictates.  A  number  of 
persons  are,  in  the  first  instance,  attainted  by 
name,  and  their  estates  declared  to  be  forfeited. 
JOHNSON'S  CASES,  2. 


1801 


JOHNSTON  v.  HEDDEN. 


272 


And  then  to  the  end  that  other  offenders  may 
be  convicted  and  attainted,  for  the  like  purpose 
of  forfeiture  of  their  estates,  it  declares  it  to  be 
lawful  for  the  grand  jury  of  any  county  to 
prefer  bills  of,  indictment  against  any  person, 
273*]  whether  he  be  then  in  full  *life  or  de- 
•ceased,  who  had  adhered  to  the  enemies  of  this 
State,  and  owned  any  real  or  personal  estate 
within  this  State.  The  sheriff  of  such  county 
was  then,  upon  the  indictment  being  found,  to 
give  notice  thereof,  in  one  of  the  public  papers 
•of  this  State,  for  four  weeks,  and  therein  to 
call  upon  the  person  indicted  to  appear  and 
-answer,  and  upon  his  default  (and  it  was  de- 
clared to  be  immaterial  whether  he  was  then 
in  full  life  or  deceased),  judgment  was  to  be 
awarded  against  him,  and  his  estate  forfeited. 

It  was  in  pursuance  of  a  proceeding  of  this 
kind,  founded  upon  this  act,  that  the  lessor  of 
the  plaintiff  was  convicted  by  the  name  of 
Joshua  De  St.  Croix,  and  the  premises  in  ques- 
tion sold. 

This  proceeding  resembles  a  conviction  by 
bill  of  attainder,  and  has  no  similitude  to  the 
regular  and  cautious  process  carried  on  accord- 
ing to  the  course  of  the  common  law.  The  no- 
tice here  given  to  the  accused  is  analogous  to  the 
time  usually  given  in  acts  of  attainder,  for  the 
person  attainted  to  come  in  and  surrender.  (2 
Wooddes.,  625;  Fost.,  79.)  The  Legislature 
;also  provided  by  a  subsequent  statute  that  these 
•convictions  should  not  afterwards  be  reversed 
or  shaken ;  and  this  statute  being  in  pari  maU- 
ria,  may  be 'considered  as  explanatory  of  the 
souse  of  the  other. 

By  the  Act  of  19th  May,  1784  (7  sess.,  ch. 
64,  sec.  23),  it  is  declared  that  all  forfeitures 
and  confiscations  before  had  against  any  per- 
son, on  conviction  of  adhering  to  the  enemies 
of  this  State,  are  to  all  intents,  constructions 
and  purposes,  ratified  and  confirmed,  notwith- 
standing any  error  in  the  proceedings,  or  in 
anywise  relating  thereto,  and  all  writs  of  error 
on  any  judgment  thereon,  are  declared  to  be 
barred. 

The  conviction  of  the  present  lessor  of  the 
plaintiff  must,  therefore,  be  considered  as  a 
conviction  under  a  special  provision  by  statute, 
and  as  substantially  the  same  with  a  convic- 
tion by  attainder.  The  conviction  cannot 
274*]  *be  supported  on  any  other  ground; 
and  being  within  the  same  reason,  it  ought  to 
be  guided  by  the  same  rules  of  interpretation. 

My  opinion,  therefore,  is  that  a  conviction 
of  Joshua  Temple  De  St.  Croix,  by  the  name 
of  Joshua  De  St.  Croix.  is  an  incomplete  de- 
scription but  not  a  description  repugnant,  to 
truth,  and  that  whether  the  person  convicted 
and  the  lessor  of  the  plaintiffs  were  one  and 
the  same  person,  was  a  question  of  fact  prop- 
erly submitted,  upon  the  trial,  to  the  jury. 

LANSING,  Ch.  J. ,  and  LEWIS,  J. ,  were  of  the 
same  opinion. 

Judgment  for  the  defendants.1 
Cited  in— 2  Cai.,  166. 

1  .—Though  a  man  may  have  two  or  more  surnames, 
he  can  have  but  one  name  of  baptism.  Disply  v. 
Sprat,  Cro.  Eliz.,  57;  Co.  Litt.,  3.  a;  Shep.  Touchst., 
235 ;  Evans  v.  King,  VVilles's  Rep.,  554 ;  Franklin  v. 
Talmadge,  5  Johns.  Rep.,  84. 

JOHNSON'S  CASES,  2.          N.  Y.  REP..  BOOK  1. 


JOHNSTON  t>.  HEDDEN. 


1.  Money  —  Pounds  —  Demand—  Declaration.     2. 
Id.—  Id.—  Value  of—  Court  Will  Take  Notice. 

A  declaration  on  a  bond  for  £70,  stating  that  the 
plaintiff  demanded  the  £70,  of  the  value  of  8175, 
lawful  money  of  the  State,  which  the  defendant 
owes  and  detains,  is  good. 

Pounds  are  not  an  unknown  money  of  account, 
and  the  court  will,  ex  offlcio,  take  notice  of  their 
value. 


was  an  action  of  debt,  on  a  bond 
1  dated  the  12th  April,  1796,  for  £70.  The 
plaintiff,  in  the  declaration,  declared  the  £70 
to  be  of  the  value  of  $175,  lawful  money  of 
this  State,  which  the  defendant  owes  and  de- 
tains; and  that  the  defendant  bound  himself 
in  the  said  £70. 

To  this  declaration  there  was  a  special  de- 
murrer, stating  that  the  £70  are  not  alleged  to 
be  of  lawful  money  of  this  State,  nor  of  any 
other  currency;  and  the  defendant  insists  that 
in  this,  like  the  cases  of  suits  for  *for-  [*275 
eign  money  not  made  current,  the  declaration 
must  be  in  the  detinet  only,  as  if  it  were  bul- 
lion. 

Mr.  D.  A.  Ogden  for  the  plaintiff. 
Mr.  8.  Jones,  Jun.,  contra. 

Per  Curiam.  The  declaration  is  sufficient. 
Pounds  are  not  a  foreign  or  unknown  money 
of  account.  The  act  requires  that  all  accounts 
arising  from  proceeding  in  the  courts  of  justice 
within  this  State,  except  as  to  bills  of  costs, 
and  all  judgments  shall  be  in  dollars,  &c. 
This  is  not  an  account  or  demand  arising  from 
proceedings  in  a  court  of  justice,  and,  there- 
fore, it  was  not  even  necessary  to  state  the 
value  in  dollars.  The  court  will,  as  before, 
ex  offitio,  take  notice  of  the  value  of  pounds; 
and  in  rendering  judgment,  convert  them  into 
dollars.  Besides,  the  value  is  here  stated,  and 
that  is  sufficient  to  direct  the  judgment. 

There  must  be  judgment  for  the  plaintiff. 

Judgment  for  the  plaintiff. 


THE  PEOPLE  v.  DENTON. 

1.  Jury — DiscJiarge  of — Wiihou t P)-isonfr's  Con- 
sent— Discretion  of  Court.  2.  Verdict  — Fail- 
ure to  agree — Second  Arraignment — Same  In- 
dictment. 

The  Court  of  Sessions  has  power  to  discharge  a 
jury  without  the  consent  of  the  prisoner,  in  case  of 
an  indictment  for  a  misdemeanor ;  but  the  power 
rests  in  sound  discretion,  and  ought  to  be  exercised 
with  caution. 

Where  a  jury  could  not  agree  on  a  verdict,  after 
being  out  all  night  and  part  of  a  day,  and  the  court 
discharged  them  without  the  consent  of  the  party, 
the  discharge  was  held  to  be  proper,  and  the  prison- 
er was  again  arraigned,  on  the  indictment,  for  the 
same  offense. 

THE  prisoner  was  indicted  for  a  misdemean- 
or, in  neglecting  his  duty  as  an  inspect- 
or of  the  election  of  the  town  of  Hempstead, 
in  the  County  of  Queens,  in  April,  1799,  under 
the  act  for  regulating  elections.     *The  [*2  76 
indictment  was  found  at  the  general  sessions 
of  the  peace  in  Queens  County.     The  prisoner 
33  5  IB 


276 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


pleaded  not  guilty.  After  hearing  the  evi- 
dence, the  jury  retired,  and  came  into  court 
in  the  morning,  with  a  verdict  of  not  guilty; 
but,  on  being  polled,  three  of  the  jurors  dis- 
sented, and,  after  having  been  sent  out  several 
times,  they  informed  the  court  that  they  could 
not  agree,  and  that  there  was  no  prospect  of 
their  agreeing  on  a  verdict.  The  Court  of  Ses- 
sions, without  the  consent  of  the  prisoner,  dis- 
charged the  jury;  and  the  indictment  was  re- 
moved to  this  court  by  certi&rari. 

The  prisoner,  being  brought  up  and  arraign- 
ed, was  called  on  to  plead  to  the  indictment. 

Messrs.  8.  Jones  and  C.  I.  Bogert,  counsel  for 
the  prisoner,  objected:  1.  Because  that  the 
offense  stated  in  the  indictment,  which  is  found- 
ed on  the  21st  section  of  the  act  for  regulat- 
ing elections,  is  not  an  indictable  offense,  and 
they  moved  to  quash  the  indictment.  2.  Ad- 
mitting it  to  be  an  indictable  offense,  yet  the 
prisoner,  having  been  once  tried,  and  the  jury 
discharged  without  the  consent  of  the  prisoner, 
he  cannot  be  again  called  upon  to  answer  to 
the  indictment. 

In  support  of  the  first  point,  they  cited  the 
20th  and  21st  sections  of  the  act  regulating 
elections.  (See  Greenleaf's  ed.  of  Laws,  vol. 
1,  p.  328,  10  sess.,  ch.  15;  2  Hawk.  P.  C.,  301, 
302,  sec.,  4;  2 Burr.,  799,  803,  804;  and  Kale's 
P.  C.,  171;  Cro.  Jac.,  644.) 

To  the  second  point,  they  cited  (2  Hawk., 
622,  623,  624;  Carth.,  465;  Foster,  16  to  22,  ef 
*eq;  1  Anderson,  103.) 

Mr.  Hoffman,  Attorney-General,  and  Mr. 
Golden,  district  attorney,  contra,  cited:  (1.)  2 
Stra.,  1048;  2  Ld.  Raym.,  1104;  2  Hawk.,  395. 
(2.)  Foster,  27,  29,  30;  2  Hale's  P.  C.,  295,  297; 
Jacob's  Law  Diet.,  voc.  Jury;  2  Leach.,  706. 

277*]  *Per  Curtain.  1 .  This  was  an  indict- 
ment for  a  misdemeanor,  and  the  jury,  after 
being  sent  out  several  times  and  returned  to 
the  bar,  could  not  agree  on  a  verdict  and  were 
discharged  by  the  court  without  the  consent 
of  the  defendant.  The  power  of  discharging 


a  jury,  in  cases  of  misdemeanors,  as  in  civil 
cases,  rests  in  sound  discretion,  and  is  to  be 
exercised  with  great  caution.  Where  every 
reasonable  endeavor  has  been  used  to  obtain 
a  verdict,  and  it  is  found  that  the  jury  cannot,  or 
will  not  agree,  they  must,  ex  nfcextritate,  be  dis- 
charged. We  think  that  the  discretion  of  the 
court  below  was  duly  exercised  in  the  present 
case,  and  that  the  discharge  was  necessary  and 
proper.  2.  As  to  the  other  point,  the  court 
have  doubts,  and  the  prisoner  must,  therefore, 
plead  inslanter.  [  The  prisoner  pleaded  not 
guilty,  and  was  recognized  to  appear  at  the- 
next  oyer  and  terminer,  in  Queen's  County.]1 

Approved— post,  302. 

Cited  in— 8  Cow.,  129 ;  14  Barb.,  293 ;  50  Barb.,  579 ; 
S.  C.,  32  How.,  53 ;  2  Park.,  683 ;  6  Park.,  268 ;  * 
Wheeler,  476 ;  5  City  H.  Rec.,  104 ;  4  Wash..  408. 


•MUBRAY,  In   the  matter  of    the    [*278- 
Attachment, 

v. 

THE  TRUSTEES  OF    THE  RINGWOOD- 
COMPANY. 

1.  Absconding  Debtor — Trustee — Sale  of  bind 
by  Eviction — Personal  Liability.  2.  Person* 
acting  in  autre  droit — Responsibility. 

Where  the  trustees  of  an  absconding'  debtor,  ap- 
pointed under  the  act,  sold  his  lands,  and  gave  a 
deed  conveying  all  the  debtor's  right  and  title,  and 
the  purchaser  was  evicted  of  a  part  of  the  land,  it 
was  held  that  the  trustees  were  not  liable  to  refund 
any  part  of  the  purchase  money.  Trustees  and 
persons  acting  in  autre  drrrit  are  not  responsible,, 
unless  there  be  fraud,  or  an  express  warranty. 

AN  attachment  having  issued  against  certain- 
persons,  under  the  description  of  the 
American  Iron  Company,  or  Ringwood  Com- 
pany, Peter  Goelet,  Robert  Morris  and  William 
Popham  were  appointed  trustees,  pursuant  to 
the  act  for  relief  against  absconding  or  absent 
debtors.  The  trustees  sold  all  the  right,  title- 


1.  Though  the  rest  of  the  judges  were  not  clear 
whether  this  was  an  indictable  offense,  Kent,  J., 
thought  an  indictment  would  lie.  The  following  is 
taken  from  his  MS.  opinion,  as  to  that  point. 

The  21st  section  of  the  election  law  declares  that 
if  any  inspector  shall  wilfully  neglect  to  perform 
his  duty,  or  be  guilty  of  any  corrupt  misbehavior, 
and  be  thereof  convicted,  he  shall  forfeit  and  pay 
£200.  to  be  recovered  in  a  qui  tarn  suit,  by  an  action 
of  debt,  bill,  plaint  or  information.  It  is  contended 
that  the  statute  has  created  this  offense  of  a  wilful 
neglect  of  duty  by  the  inspector.  This  is  certainly 
a  mistake.  Every  wilful  neglect  of  a  public  trust, 
affecting  the  community,  is  an  offense  at  common 
law.  If  the  statute  had  been  totally  silent  as  to  the 
whole  matter  of  this  21st  section,  it  cannot  be 
doubted  but  that-inspectors  of  the  election  would 
have  been  indictable  for  a  wilful  neglect,  as  well  as 
for  a  corrupt  execution  of  their  office ;  because 
such  conduct,  would  be  a  public  injury,  and  affect 
the  community  in  its  most  essential  rights.  The 
true  distinction  on  this  subject  is  laid  down  clearly 
and  emphatically  in  Castle's  case  ( Cro.  Jac.,  644  ), 
and  repeated  and  confirmed  by  the  Court  of  King's 
Bench  in  the  case  of  The  King  v.  Robinson  (2  Burr., 
803).  Where  a  statute  creates  a  new  offense,  and 
inflicts  a  penalty  for  the  doing  of  a  thing  which  was 
no  offense  before,  and  appoints  how  it  shall  be  re- 
covered, it  shall  be  punished  by  that  means,  and  not 
by  indictment.  But  the  wilful  neglect,  as  well  as 
the  corrupt  execution  of  a  public  trust,  was  always 
a  crime  by  the  common  law ;  and  weak,  and  miser- 
able would  be  that  system  of  law,  and  that  adminis- 
tration of  justice,  which  would  permit  a  public  of- 

514 


fleer  wilfully  to  neglect  his  official  duty,  and  not 
hold  him  responsible  as  for  a  public  offense. 

Offenses  by  officers,  says  Sergeant  Hawkins,  con- 
sist, 1st.  In  breach  of  duty.  In  the  grant  of  every 
office  whatsoever,  there  is  this  condition  implied  by 
common  reason,  that  the  grantee  ought  to  execute 
it  diligently  and  faithfully.  Since  every  office  is  in- 
stituted not  for  the  sake  of  the  officer,  but  for  the 
good  of  some  others.  Nothing  can  be  more  just 
than  that  he  who  either  neglects  or  refuses  to  answer 
the  end  for  which  his  office  was  ordained,  should 
give  way  to  others  who  are  able  and  willing  to  take 
care  of  it.  An  officer  is  liable  to  a  forfeiture  of  his 
office  for  neglecting  to  attend  to  his  duty  at  all  rea- 
sonable and  proper  times  and  places,  and  also  liable 
to  a  fine.  ( 1  Hawk.,  bk.  1,  ch.  66,  sec.  1,  2.)  These 

gpsitions  of  Hawkins  are  cited  and  confirmed  by 
ir  William  Blackstone  (Com.,  vol.  4, 140  ),  and  leave- 
no  doubt  but  that  the  offense  charged  in  the  indict- 
ment in  the  present  case  was  an  offense  at  common 
law. 

The  indictment  here  concludes  against  the  statute; 
but  the  authorities  in  2  Hawk,  show  that  these; 
words  may  be  rejected,  as  surplusage,  if  the  offense 
be  at  common  law,  and  especially  if  it  be  only  a 
common  law  offense.  A  case  in  Strange,  1048  (Rex  v. 
Luckup)  goes  to  show  that  an  indictment  will  lie 
on  the  21st  section  of  the  act,  in  order  for  a  convic- 
tion to  found  the  qui  tarn  action.  But  that  case  may 
justly  be  doubted.  Such  an  indictment  is  too  mucli 
an  idle  prosecution,  pro  forma,  and  may  be  founded 
on  the  testimony  or  the  man  who  afterwards  sues 
for  his  own  benefit. 

JOHNSON'S  CASES,  2_ 


1801 


GILBERT  v.  EDEN  AND  EDEN. 


278 


and  interest  of  the  company  to  certain  lands 
at  public  auction,  and  three  of  the  lots  were 
conveyed,  by  the  trustees,  to  John  B.  Murray. 

An  action  of  ejectment  was  afterwards 
brought  by  Murray  and  others,  who  purchased 
of  the  trustees,  against  persons  who  claimed 
279*]  title  to  part  of  the  lands,  *and  they 
recovered  only  14--18th  parts  of  the  land  so 
purchased  by  them.  (See  1  Johns.  Cas.,  372, 
377.)  Murray  claimed  to  be  refunded  4--18th's 
of  the  purchase  money  paid  to  the  trustees, 
and, 

Mr.  Pendleton,  in  his  behalf,  now  moved  for 
an  order,  under  the  27th  section  of  the  act,  to 
refund  4-18th's  of  the  purchase  money,  and  to 
pay  the  costs  of  the  action  of  ejectment.  He 
cited  2  Eq.  Cas.  Abr.,  688;  1  Ves.,  126. 

Mr.  Harison,  contra,  admitted  the  power  of 
the  court,  under  the  act,  to  interfere;  but  he 
contended  that  in  cases  of  executors,  trustees, 
and  others,  acting  in  autre  drait,  they  can 
never  be  liable,  unless  in  cases  of  fraud,  or  on 
an  express  covenant.  That  the  trustees  sold 
only  the  right  and  title  of  the  company,  and 
it  was  incumbent  on  the  purchaser  to  look  to 
the  goodness  of  the  title.  The  old  maxim  of 
caveat  emptor,  is  applicable  to  them.  He  cited 
Doug.,  630;  3  Ves.,  Jun.,  235. 

Per  Curiam.  It  is  unnecessary  to  decide 
whether  this  application  is  within  the  27th 
section  of  the  act,  since  we  are  clearly  of 
opinion  that  it  is  unfounded  on  the  merits. 
The  trustees,  in  selling  the  land,  acted  in  autre 
droit,  and  the  covenants  in  the  deed  are  ex- 
pressly confined  to  their  own  acts,  and  do  not 
warrant  the  title.  They  merely  sold  all  the 
right  and  title  of  the  Ringwood  Company,  and 
it  was  incumbent  on  the  purchaser  to  look  to 
the  goodness  of  the  title.  There  is  neither  an 
express  nor  an  implied  warranty  on  the  part 
of  the  trustees,  and  the  rule  of  caveat  emptor 
strictly  applies.  The  motion  must  be  denied. 

Rule  refused. 


280*] 


*GILBERT 


EDEN  AND  EDEN. 


Judgment — Bond — Allegation — Usury — Feigned 
Issue. 

Where  there  is  color  for  the  allegation  that  a  bond 
on  which  a  judgment  has  been  entered  up  on  a  war- 
rant of  attorney  is  usurious,  the  court  will  award  a 
feigned  issue  to  try  the  fact. 

Citations— Barnes,  52,  277;  Cowp.t  727;  1  Bos.  & 
Pull.,  270. 

MR.  WORTMAN,  for  the  defendants,  moved 
to  set  aside  the  judgment  in  this  cause, 
and  the  warrant  of  attorney  on  which  it  was 
entered,  on  the  ground  of  usury.  He  read 
several  affidavits  to  prove  the  usury.  He  cited 
4  Term  Rep.,  500;  3  Bro.  C.  C.,  603,  604;  2 
Ves.,  Jr.,  154;  Plowd.  on  Usury,  149. 

Mr.  Hoffman,  Attorney-General,  Messrs.  B. 
Livingston  and  Pendleton,  contra. 

Messrs.  Hamilton  and  Spencer,  for  the  de- 
fendants, replied. 
JOHNSON'S  CASES,  2. 


Per  Curiam.  From  the  affidavits  which  have 
been  read,  it  appears  that  the  bond  was  usu- 
rious ;  but  the  court  are  not  to  judge  of  the 
credibility  of  witnesses.  As  there  is  color,  at 
least,  for  the  allegation  of  usury,  the  proper 
course  is  to  award  a  feigned  issue  to  try  the 
fact.  (Barnes,  52,  277;  Cowp.,  727 ;  1  Bos.  & 
Pull.,  270.) 

Let  a  feigned  issue  be  awarded.1 
Cited  in— 5  Johns.  Ch.,141. 


CONE  v.  WUITAKER. 

Nonsuit — Insolvent  Act — Discharge  Under — 
Subsequent  Taxation  of  Costs — Lien. 

Where  a  plaintiff  in  a  cause  was  nonsuited  in  1799, 
and  a  judgment  of  nonsuit  entered  in  January  Term, 
1800,  and  the  plaintiff  obtained  his  discharge  under 
the  Insolvent  Act,  in  November,  1800,  and  the  costs 
of  the  nonsuit  were  taxed,  after  the  discharge,  it 
was  held  that  the  costs  were  not  a  debt  until  taxa- 
tion, and  the  plaintiff  was  not,  therefore,  discharged 
from  the  costs. 

THE  defendant  was  nonsuited  in  a  cause  at 
the  October  circuit,  1799,  and  a  judgment 
of  nonsuit  was  entered,  in  January  Term^lSOO, 
against  him,  as  plaintiff.  A  motion  was  made, 
on  a  case  stated,  in  October  Term,  1800,  to  set 
aside  the  nonsuit,  which  was  denied.  On  the 
24th  November,1800,  Whitaker  was  discharged, 
*underthe  Insolvent  Act,  the  14th  No-  [*281 
vember,  1800.  He  was  taken  afterwards,  on  a 
ca.  sa.  at  the  suit  of  Cone,  for  the  costs  of  the 
suit,  in  which  the  nonsuit  was  entered,  and 
which  were  taxed  subsequent  to  the  prisoner's 
discharge;  Whitaker  is  a  non-resident,  and  if 
these  costs  had  been  added  to  his  debts,  there 
would  not  have  been  three  fourths  of  his  cred- 
itors in  amount,  to  his  petition,  at  the  time  of 
his  discharge. 

Mr.  Spencer,  for  the  defendant,  now  moved 
for  his  discharge  from  the  execution. 

Per  Curiam.  The  coste  in  this  case  were  not 
taxed  at  the  time  of  the  defendant's  discharge; 
and  being  uncertain,  and  unliquidated,  they 
could  not  be  included  in  his  inventory  of  debts; 
nor  could  the  present  plaintiff  recover  them 
until  taxed.  They  cannot,  therefore,  be  affect- 
ed by  his  discharge ;  and  the  plaintiff,  on  the 
principle  laid  down  in  Frost  -v.  Carter,*  must 
be  paid.  The  motion  is  denied. 

Motion,  denied. 

Overruled— 5  Johns.,  135. 
Cited  in— 5  Johns.  Ch.,  141. 

1.— 3  Johns.  Rep.,  139, 142,  250. 

2.— 1  Johns.  Cas.,  73.  The  decision  in  the  above  caso 
seems  to  have  been  grounded  on  the  rule  laid  down 
by  Lord  Chancellor  Thurlow,  in  the  case  Ex-jparte 
Sneaps,  March  4th,  1782,  cited  in  Cooke's  Bankrupt 
Law,  p.  241,  3d  ed.,  ch.  6,  sec.  13,  in  which  the  Chan- 
cellor said  it  was  clear  that,  in  all  instances,  in  the 
Court  of  Chancery,  the  taxation  constitutes  the  de- 
mand ;  and  as  the  taxation  was  subsequent  to  the 
bankruptcy,  the  debt  wnsjsubsequent,  and  could  not 
be  discharged.  See,  also,  3  Wils.,  270,  272.  But  there 
are  other  cases  in  which  the  costs  are  carried  back, 
by  relation,  to  the  verdict  or  judgment.  Aylett  v. 
Harf  ord,  2  H.  Bl.  Rep.,  317 ;  Cooke's  B.  L.,  ch.  6,  sec. 
10 ;  Lewis  v.  Piercy,  1  H.  Bl.,  29.  In  the  case  of  Hurst 

515 


282 


SUPREME  COURT,  STATK  OF  NEW  YORK. 


1801 


282*]  •CRAMMOND,  Executor.  &c., 

V. 

ROOSEVELT. 

Inquest — Mistake  of  Attorney — Refusal  to  Set 
Aside  Default — Usury. 

Where  the  attorney  for  the  defendant  suffered  an 
inquest  to  be  taken  by  default,  at  the  sittings,  sup- 
posing there  was  no  defense,  the  court  refused  to 
set  aside  the  default,  to  let  the  defendant  in,  to  show 
usury,  as  a  defense. 

MR.  S.JONES,  Jun.  .for  the  defendant.moved 
to  set  aside  an  inquest  taken  by  default,  at 
the  last  July  circuit,  in  New  York,  and  for 
leave  to  plead  to  the  merits.  It  appeared  that 
the  general  issue  was  pleaded,  and  an  inquest 
was  taken,  of  which  the  defendant's  attorney 
was  apprised,  at  the  time  ;  but  that,  through  a 
misunderstanding  between  him  and  his  client, 
he  did  not  suppose  there  was  a  defense  to  be 
made  in  this  suit.  The  defense  was  usury, 
which  the  attorney  supposed  was  to  be  made 
in  other  suits  only,  in  which  he  was  concerned 
for  the  same  defendant,  but  which  was  also 
applicable  to  this,  and  is  now  intended  to  be 
set  up. 

Mr.  Jones  cited  Salk.,  513;  1  Wils.,  98;  12 
Mod.,  439;  Stiles,  466. 
Mr.  P.  A.  Jay,  contra. 

Per  Curiam.  The  defendant  has  had  a  full 
opportunity  to  make  his  defense,  and  the  in- 
quest was  deliberately  suffered  to  be  taken. 
After  this  he  must  be  precluded.  It  would  be 
too  loose  again  to  open  the  cause  for  a  defense, 
on  the  ground  of  a  mistake,  either  in  the  de- 
fendant or  in  his  counsel.  Here  was  no  cir- 
cumvention or  deception  on  the  part  of  the 
plaintiff,  and  the  defendant  can  have  no  legal 
claim  beyond  a  fair  opportunity  to  make  his 
defense.  Public  policy  and  expediency,  as 
283*]  *well  as  the  danger  of  such  a  prece- 
dent, require  that  thereafter  there  should  be  an 
end  to  litigation. 

The  motion  must  be  denied. 

Motion  denied. 


MILNER  ET  AL.  «.  GREEN. 

1.  Bankruptcy — Commission  of— Arrest — Ca.Sa. 
Discharge — Bail — Exoneretur.  2.  Discharge 
— Power  of  Court. 

Where  the  principal,  against  whom  a  commission 
of  bankruptcy  had  issued,  was  arrested  on  a  ca.  sa. 
and  discharged,  it  was  held  that  the  bail  was  also 
discharged,  and  that  there  was  no  necessity  to  enter 
an  rjroneretur  on  the  bailpiece. 

Whether  the  court  has  power  to  discharge  a  de- 
fendant from  execution,  on  the  ground  that  a  com- 
mission of  bankruptcy  had  issued  against  him. 
Quaere. 

v.  Mead,  5  Term  Rep.,  365,  it  was  decided  that  if  the 
plaintiff  becomes  a  bankrupt  after  he  is  nonsuited, 
and  before  the  taxation  of  costs,  the  costs  of  the 
nonsuit  are  a  debt  provable  under  the  commission. 
See,  also,  Philips  v.  Brown,  6  Term  Rep.,  282,  and 
Watts  v.  Hart,  1  Bos.  &  Pull..  134.  In  Willett  v. 
Pringle,  5  Bos.  &  Pull.,  190,  or  2  Bos.  &  Pull.,  N.  8., 
the  court  decided  that  the  costs  followed  the  debt, 
and  that  if  a  bankrupt  be  sued  after  his  commission, 
and  he  afterwards  obtain  his  certificate,  he  shall  be 
discharged  from  the  costs  as  well  as  the  debt.  But 
it  is  observable  that  Lord  Eldon,  in  Ex-parte  Hill, 

516 


CI.  BOGERT  moved  than  an  exonereturbe 
•  entered  on  the  bailpiece  in  this  cause,  or 
that  all  proceedings  against  the  bail  be  dis- 
charged. The  principal  had  been  declared  a 
bankrupt  in  Rhode  Island,  under  the  law  of 
the  United  States,  and  was  served  with  a  no- 
tice to  surrender,  on  the  25th  April  instant. 
On  the  loth  April  he  was  arrested  here  on  a 
ca.  sa.  and  discharged.  Mr.  Bogert  cited  the  22d 
section  of  the  law.  (Laws  U.  S.,  Vol.  v.,  p.  45; 
6  Cong.,  Isess.,  ch.  19.) 

Per  Curiam.  One  of  the  conditions  of  the 
recognizance  is  that  the  defendant  shall  sur- 
render himself  to  prison;  and  when  the  de- 
fendant was  arrested  by  the  sheriff  on  the  ca. 
sa.,  the  condition  was  strictly  complied  with, 
and  the  bail  discharged  from  their  responsi- 
bility. Where  bail  are  discharged,  by  the 
taking  of  the  defendant  in  execution,  it  is  not 
usual  nor  necessary  to  enter  an  exonefretur  on 
the  bailpiece.  On  this  ground  we  deny  the 
motion.  The  bankrupt  law  is  not  to  be  con- 
strued injuriously  to  bail.  It  was  not  made 
to  affect  their  rights,  but  those  of  the  plaint- 
iffs; and  if  the  defendant  has  been  discharged 
in  a  manner  inconvenient  to  the  plaintiffs,  it 
results  from  the  Bankrupt  Act,  or  from  the 
sheriff,  who  *will  be  answerable,  if  the  [*284 
act  does  not  authorize  a  discharge.1 

Motion  denied. 


SEAMAN  t>.  HASKINS. 

Demurrer —  Witlidrawal. 

After  rule  for  judgment  on  a  demurrer,  it  is  too 
late  to  apply,  at  the  next  term,  for  leave  to  with- 
draw it. 

THERE  was  a  demurrer  to  the  plea,  in  this 
cause,  which  the  court,  at  the  last  term, 
decided  was  not  well  taken. 

Mr.  Golden,  for  the  plaintiff,  now  moved  for 
leave  to  withdraw  the  demurrer,  and  replv  to 
the  plea.  (1  Sellon,  379;  Sayer,  316.)  "No 
judgment  has  been  entered  up. 

Mr.  Biker,  contra. 

Per  Curiam.  After  the  court  have  given 
judgment,  and  ordered  it  to  be  entered,  and  a 

1.— In  M'Master  v.  Kell,  1  Bos.  &  Pull.,  302,  the 
Court  of  C.  B.  in  England  decided  that  they  had  no 
power  to  discharge  a  defendant  out  of  execution, 
on  the  ground  that  a  com  mission  of  bankruptcy  had 
been  since  issued  against  him  by  the  plaintiff. 
Eyre,  Ch.  J.,  said  there  had  been  no  instance  of  such 
an  application.  "Suppose,"  says  he,  "the  Lord 
Chancellor  shonld  think  fit  to  supersede  the  com- 
mission, then  we  shall  have  discharged  the»  debtor, 
because  a  commission  has  issued  against  him,  and 
the  Lord  Chancellor  will  have  superseded  the  com- 
mission, because  the  party  has  been  charged  in  exe- 
cution." 

1801,  cited  in  a  note  to  Willett  v.  Pringle,  after  going 
through  all  the  authorities,  which  he  examines  very 
critically,  decided  that  the  costs  of  an  action,  where 
the  verdict  was  after  the  commission,  could  not  be 
proved,  though  the  debt  was  provable.  It  would 
seem  to  follow  that,  in  his  opinion,  the  bankrupt 
could  not  be  discharged  from  the  costs  which  had 
own  taxed,  on  the  verdict  obtained  prior  to  the 
commission.  The  rule  appears,  therefore,  to  be  dif- 
ferent in  the  courts  of  common  law,  and  in  chan- 
cery. See  Cullen's  Bank  Laws,  104,  106,  133,  ch.  3, 
sec.  2. 

JOHNSON'S  CASES,  z. 


1801 


FRANKLIN  v.  THE  UNITED  INSURANCE  COMPANY. 


284 


"-T"~" 

term  has  elapsed,  the  party  comes  too  late  to 
ask  for  leave  to  withdraw  his  demurrer.  He 
should  have  applied  at  the  last  term,  before 
the  rule  for  judgment  was  entered. 

Motion  denied. 
Cited  in-3  Johns.  Gas.,  301 ;  8  N.  Y.,  332. 


285*] 


*FRANKLIN 


THE  UNITED  INSURANCE  COMPANY. 

Commission — Stay — Affidavit    of    Merits —  Wit- 
nesses— Material. 

A  commission  to  examine  witnesses  will  not  be 
granted,  so  as  to  stay  the  proceedings  in  the  cause, 
unless  the  party  swears  positively  that  he  has  a 
good  defence  on  the  merits,  and  that  the  witnesses 
named  are  material. 

AN  application,  in  behalf  of  the  defendants, 
was  made  in  October  Term,  which  was 
within  the  time  for  making  the  motion,  for  a 
commission  to  Porto  Bello,  in  South  America; 
but  as  the  affidavit  did  not  mention  the  names 
of  the  witnesses  to  be  examined,  the  motion 
was  denied. 

Mr.  Troup,  for  the  defendant,  now  moved 
again  for  a  commission.  He  read  the  affida- 
vit of  the  president  of  the  company,  stating 
that  though  diligent  means  were  used, the  names 
of  the  witnesses  could  not  be  obtained  until 
after  the  last  term ;  that  the  testimony  of  the 
four  witnesses  named  was  material  to  prove 
the  condition  of  the  vessel  at  Porto  Bello,  the 
state  of  the  winds,  the  materials  for  repairs, 
and  the  practicability  of  the  vessel's  proceed- 
ing to  the  place  of  destination  ;  that  the  mate- 
rial point  in  controversy  was  whether  the  ves- 
sel might  not  have  continued  her  voyage,  and 
that  this  point  cannot  be  ascertained  without 
a  knowledge  of  facts,  which  he  believed  the 
witnesses  could  testify;  and  that  he  advised 
and  believes  that  the  defendants  cannot  safely 
proceed  to  trial  without  their  testimony. 

It  was  stated,  on  the  part  of  the  plaintiffs, 
that  there  was  little  trade  between  the  United 
States  and  Porto  Bello;  that  two  of  the  wit- 
nesses named  were  also  named  by  the  defend- 
ants as  commissioners,  at  the  October  Term, 
•  and  the  names  of  the  witnesses  were  contained 
in  the  testimony  brought  by  the  vessel  on  her 
return,  relative  to  the  vessel  and  cargo. 

Messrs.  Riggs  and  Hamilton,  contra. 
Messrs.  Pendleton  and  Haiison  replied,  in  sup- 
port of  the  motion. 

286*]  *PerCuriam.  Though  the  defendants 
account  for  their  delay  in  making  this  applica- 
tion, yet  they  do  not  state  with  certainty  that 
there  is  a  substantial  defense,  or  that  they  are 
informed  and  believe  any  to  exist.  Where  a 
party  asks  for  delay,  he  ought  to  state  posi- 
tively that  he  has  a  defense  on  the  merits,  and 
that  he  seeks  only  the  requisite  proof.  The 
defendants  ask  for  a  commission  for  the 
double  purpose  of  ascertaining  or  discovering 
whether  a  defence  really  exists,  and  if  it  does, 
to  obtain  the  requisite  proof  to  support  it. 
JOHNSON'S  CASES,  2. 


The  affidavit  does  not  state  probable  grounds 
to  induce  a  belief  that  the  vessel  could  have 
continued  her  voyage.  The  commission  ap- 
pears to  be  intended  for  general  inquiry,  to 
fish  for  facts.  If  it  should  be  granted,  it  would 
become  a  precedent  that  would  lead  to  abuse. 
The  motion  must  be  denied;  but  the  de- 
fendants will  be  at  liberty  to  take  out  a  com- 
mission, if  they  choose,  without  any  stay  of 
proceedings  in  the  case. 

Rule  refused. 
Cited  in— 1  Wend.,  20 ;  44  Cow.,  461. 


NITCHIE    v.     SMITH,    Administratrix     of 
SMITH. 

Default — Adminstratrix — Excuse — Allowed  t» 
Defend — Judgment  as  Security. 

Where  a  judgment  by  default  was  regularly  ol>- 
tained  against  an  administratrix,  she  was  allowed  to 
come  in  and  plead ;  but  the  judgment  was  directed 
to  stand  as  security  for  the  assets  remaining  after 
payment  of  prior  judgments  confessed,  and  for  as- 
sets quando  accidtrint. 

CI.  BOGERT,  for  the  defendant,  moved  to 
.  set  aside  a  judgment  by  default,  on  scire 
facias,  entered  at  the  last  term.  The  defend- 
ant's affidavit  stated  that  she  had  a  good  de- 
fence, and  that  during  the  time  for -pleading 
her  attorney  was  dangerously  ill;  she,  herself, 
residing  in  Connecticut. 

Mr.  Hamilton,  contra,  contended  that  the 
judgment,  at  least,  ought  to  stand  as  security 
for  the  assets. 

*Per  Curiam.  The  defendant  ought  not  [*28  7 
to  be  made  liable  beyond  the  assets  remaining 
in  her  hands,  after  satisfying  the  other  judg- 
ments which  she  confessed.  Not  having  suffi- 
cient to  discharge  all  the  judgments,  she  was 
obliged  to  give  some  a  preference.  Her  elec- 
tion in  favor  of  other  creditors,  therefore,  is 
not  to  be  charged  to  any  misapplication  of  the 
assets;  and  she  ought  not  to  be  made  liable  for 
more  than  what  remains;  after  satisfying  those 
judgments.  Her  excuse,  too,  for  not  plead- 
ing, appears  sufficient ;  but  as  the  judgment 
is  regular,  it  ought  to  stand  as  security  for  the 
assets  in  her  hands,  beyond  the  amount  of  the 
other  judgments,  and  for  other  assets  quando 
acciderint;  and  she  must  disclose,  by  affidavit, 
the  state  of  the  assets  at  the  time  and  since. 

Ride  accordingly. 

Cited  in— 38  N.  Y.,  20;  35  How.,  33;  4  Abb.,  N.  i?., 
273,  S.  C.;  4  Trans.  A.,  25)3. 


HASKINSr.  SNOWDEN. 

Notice  of  Bail — Declaration — Rule  to  Plead— 
Attorney  Afterward*  Retained — No  New 
Service. 

Where  the  defendant  gives  notice  of  bail,  in  pn>- 
pria  persona,  and  the  plaintiff  serves  him  with  a 
copy  of  the  declaration  and  notice  of  rule  to  plead, 
and  the  defendant  afterwards  retains  an  attorney, 
the  plaintiff  need  not  serve  another  copy  of  the 
declaration  and  notice  on  t  lie  attorney. 

517 


28", 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1801 


MR.  S.  JONES,  Jun.,  moved  to  set  aside  the 
default  entered  in  this  cause,  for  want  of 
a  plea,  on  the  ground  of  irregularity. 

It  appeared  that  Malcolm  had  given  notice 
of  being  concerned  as  attorney  for  the  defend- 
ant ;  but  no  copy  of  the  declaration,  or  notice 
of  the  rule  to  plead,  had  been  served  on  him. 
The  plaintiff,  having  previously  received  a  no- 
tice of  bail  being  filed,  from  the  defendant  in 
person,  served  the  copy  of  the  declaration 
and  notice  on  him,  before  receiving  any  notice 
of  the  retainer  from  Malcolm. 

Mr.  Kiker,  contra. 
518 


*Per  Ouriam.  After  receiving  no-  [*288 
tice  of  bail  from  the  defendant,  in  propria. 
persona,  it  was  regular  to  serve  the  copy  of 
the  declaration  on  him;  and  the  plaintiff  was 
not  bound  to  deliver  a  new  copy  and  notice  to 
the  attorney  who  was  afterwards  retained. 
But  as  the  defendant  has  made  affidavit  that 
he  has  a  good  defense  on  the  merits,  and  no 
trial  has  been  lost,  the  default  is  set  aside,  on 
payment  of  costs. 


Rule  granted. 


Cited  in— 6  Cow.,  435. 


JOHNSON'S  CASES,  2. 


[END  OF  APRIL  TERM.] 


CASES   ADJUDGED 


IN  THE 


SUPREME  COURT  OF  JUDICATURE 


STATE   OF   NEW   YORK, 


JTJLY    TKRM,    IN    THE    YKAR    1SO1. 


•289*]      *BAKER  v.  LUDLOW. 

Marine  Insurance — Memorandum  Articles  "Free 
from  Average  Unless  General" — "Perishable 
Articles  " — Loss. 

Where  "  dried  fish  "  were  enumerated  among  the 
Articles  in  the  memorandum  to  a  policy  of  insur- 
ance, as  free  from  average,  unless  general ;  as  also, 
41  all  other  articles  perishable  in  their  ow_n  nature ; " 
it  was  held,  that  pickled  fish  were  not  included  in 
the  memorandum,  and  that  the  plaintiff  might  re- 
cover for  an  average  loss  on  them. 

rP  HIS  was  an  action  on  a  policy  of  insurance 
-L  on  goods  from  North  Carolina  to  Mar- 
tinique. At  the  foot  of  the  policy  was  the 
following  memorandum:  "It  is  agreed  that 
salt,  grain  of  all  kinds,  Indian  meal,  fruits, 
cheese,  dried  fish,  vegetables  and  roots,  and 
all  other  articles,  perishable  in  their  own  nat- 
ure, are  warranted  by  the  assured,  free  from 
average,  unless  general." 

The  cargo  consisted  of  pickled  fish,  peas, 
and  other  articles.  During  the  voyage  the 
vessel  sprung  a  leak,  and  the  peas,  which  were 
in  bulk,  became  so  much  damaged  and  heated 
as  to  spoil  the  fish.  The  fish  were  herrings, 
pickled  in  North  Carolina,  under  the  direc- 
tion of  sworn  inspectors,  and  were  in  good 
•order  when  the  vessel  sailed. 

At  the  trial,  three  witnesses,  on  the  part  of 
the  plaintiff,  were  of  opinion  that  pickled  fish 
was  not  a  perishable  article  within  the  mean- 
29O*]  ing  of  the  memorandum  *of  the  poli- 
cy; and  one  of  them  said  that  the  memoran- 
dum had  been  altered,  within  a  few  years,  to 
dry  fish,  so  as  to  exclude  pickled  fish.  Two 
witnesses  for  the  defendant  said  they  thought 
pickled  fish,  particularly  herrings,  a  perishable 
article  within  the  memorandum. 

The  jury  found  a  verdict  for  the  plaintiff 
for  a  partial  loss. 

A  motion  was  made  to  set  aside  the  verdict, 
and  for  a  new  trial. 

Mr.  Pendleton  for  the  defendant. 
Messrs.  Troup  and  Boyd  for  the  plaintiff. 

NOTE. — As  to  construction  of  marine  insurance 
policy,  see  Bakewell  v.  United  Insurance  Co.,  ante, 
246,  and  note. 

JOHNSON'S  CASES,  2. 


Per  Uuriam.  By  the  terms  of  the  memo- 
randum, fish  in  general  were  not  intended  to 
be  included;  and  the  expression  "dried  fish" 
implies  that  other  fish  were  not  intended;  for 
e&pressio  unius  exclusio  est  alterius.  The  subse- 
quent words,  "all  other  articles  perishable  in 
their  own  nature,"  are  not  applicable  to  the 
articles  previously  enumerated,  nor  can  they 
repel  the  implication  arising  from  the  enu- 
meration of  them.  The  weight  of  evidence  is 
also  in  favor  of  this  construction,  as  being 
that  in  which  the  sense  of  the  words  is  gen- 
erally understood.  We  are,  therefore,  of 
opinion  that  the  plaintiff  must  have  judgment. 

Judgment  for  the  plaintiff 

Limited,  7  Johns.,  389. 
Cited  in-«  Wend..  637. 


*BUTTERWORTH 

v. 
STAGG. 


[*291 


Suit  in  Name  of  Another   Without  Consent — 
Nonsuit — A  ttach  ment. 

Where  a  person  brought  a  suit  in  the  name  of 
another,  without  his  privity  or  consent,  it  was  held 
to  be  a  contempt  of  the  court,  and  the  nominal 
plaintiff  being  nonsuited,  an  attachment  was 
granted  against  the  person  who  brought  the  suit, 
for  the  costs. 

Citation— Cases  Temp.  Talbot,  237 ;  4  Bl.  Com.,  385. 

THIS  was  an  action  of  assumpsit,  on  si 
promissory  note,  brought  by  Richard  M. 
Woodhull,  in  the  name  of  Butterworth,  the 
present  plaintiff.  It  appeared  that  Butter- 
worth  never  was  either  the  payee  or  holder  of 
the  note,  nor  in  any  way  interested  therein; 
and  that  Woodhull  never  had  any  authority 
to  bring  the  suit  in  his  name,  and  that  the 
plaintiff  knew  nothing  of  the  suit. 

The  plaintiff  was  nonsuited  at  the  last 
circuit. 

Mr.  Baldwin  now  moved  for  a  rule  on 
Woodhull,  to  show  cause  why  an  attachment 

51!) 


291 


SUPREME  COURT,  STATE  OK  NEW  YORK. 


1801 


should  not  issue  against  him  for  the  costs,  on 
the  ground  of  a  contempt  of  the  process  of  the 
court. 

Per  Curiam.  This  is  evidently  an  abuse  of 
the  process  of  the  court.  It  is  a  contempt  to 
bring  a  fictitious  suit,  or  to  use  the  name  of 
another,  without  his  privity  or  consent.  If 
we  do  not  interfere,  the  nominal  plaintiff  may 
be  materially  injured;  and  when  it  is  in  our 
power  to  afford  him  relief,  in  this  summary 
mode,  as  for  a  contempt,  we  ought  to  do  it, 
and  reach  the  real  person  who  has  perverted 
the  process  of  the  court.  We,  therefore, 
grant  the  rule.  (Goxe  v.  Philips,  Cas.  Temp. 
Hardw.,  237;  4  Bl.  Com.,  285.) 

Rule  granted. 

Cited  in— 12  N.  Y.,  38;  23  Hun.;  276. 


292*]        *GILBERT  v.  FIELD. 

Declaration —  Time — Non  Pros.  — Ru  le  to  Decla  re 
Notice. 

Where  the  plaintiff  does  not  declare  within  the 
time  required  by  the  statute,  the  defendant  cannot 
enter  a  judgment  of  nonpros.,  without  having  pre- 
viously entered  a  rule  for  the  plaintiff  to  declare, 
and  served  him  with  a  notice  of  such  rule. 

rpHIS  was  an  action  for  slander.  The  plaint- 
-L  iff  not  having  declared  within  two  terms, 
the  defendant  entered  his  default  in  the  book 
of  common  rules,  and  afterwards  entered  a 
judgment  of  non  pros,  thereon,  without  a  rule 
or  notice  to  declare. 

Mr.  Riggs,  for  the  plaintiff,  now  moved  to 
set  aside  the  judgment  for  irregularity. 
Mr.  Spencer,  contra. 

Per  Curiam.  The  statute  directs,  generally, 
that  if  the  plaintiff  does  not  declare  before 
the  end  of  two  terms,  the  defendant  shall  be 
entitled  to  a  judgment  of  nonpros.;  but  the 
time  and  manner  of  declaring,  and  of  enter- 
ing the  judgment  of  non  pros.,  is  left  to  be 
governed  by  the  rules  and  practice  of  the 
court.  The  7th,  8th,  and  9th  rules  of  April 
Term,  1796,  require,  in  all  cases,  whether  the 
defendant  enters  his  appearance  or  files  com- 
mon or  special  bail,  that  a  rule  to  declare 
must  be  entered,  and  notice  thereof  given  to 
the  plaintiff  or  his  attorney,  before  a  judg- 
ment of  nonsuit  can  be  entered.  As  no  such 
rule  has  been  entered,  or  notice  given,  the 
judgment  must  be  set  aside. 

Rule  granted. 


293*]      *RENOARD  e.  NOBLE. 

1.  Bail — Personation — Scire  Facias — Pleading — 
Evidence — Identity.  2.  Id.  —  Personation  — 
Vacatur — Discretionary.  3.  Id. — Id. — Fel- 
ony—Prosecution— Stay. 

In  an  action  of  scire  facias,  against  bail,  the  de- 
fendant pleaded  that  another  person  of  the  same 
name  and  description  became  bail,  and  traversed 
that  he  was  the  person  named  in  the  bailpiecc. 

520 


The  name  of  Elnathan  Noble  was  inserted  in  the 
bailpiece,  but  it  was  proved  that  Stephen  Norton 
was  the  person  who  intended  to  be  bail,  and  who,. 
in  fact,  appeared  before  the  judge  who  took  and 
signed  the  acknowledgment  on  the  bailpiece.  It 
was  held  that  the  plea  was  good  ;  that  the  evidence 
was  admissible,  and  sufficient,  on  the  issue  joined 
between  the  parties,  as  to  the  identity  of  the  person. 
Where  bail  are  personated,  the  court  will,  in  their 
discretion,  on  motion,  order  a  vacatur  of  the  bail  ; 
but  if  there  has  been  a  felonious  personating  of 
bail,  they  will  stay  any  order  for  relief,  until  the 
party  personated  has  prosecuted  the  felon. 

Citations—  Cro.  Jac.,  256  ;  3  Keb.,  694  ;  T.  Jones,  64; 
1  Ld.  Raym.,  445  ;  12  Mod.,  257  ;  Foster,  41. 


was  an  action  of  scire  facias,  on  recog- 
-  nizance  of  bail,  in  which  the  defendant  is 
described  as  "Elnathan  Noble,  of  the  town  of 
Pittsfield,  yeoman."  The  defendant  pleaded 
that  another  person  of  the  same  name  and 
description  became  bail,  and  traversed  that 
the  defendant  is  the  same  person.  The  plaint- 
iff replied  that  the  defendant  and  the  person 
described  in  the  recognizance  of  bail  are  the 
same  person,  and  issue  was  joined  thereon. 

At  the  trial  of  this  cause,  the  defendant  ad- 
mitted his  name  and  addition  to  be  as  stated 
in  the  recognizance  of  bail,  and  that  there 
was  no  other  person  of  that  name  and  addition 
in  the  town  where  the  defendant  resided,  to 
his  knowledge. 

The  defendant  then  proved  that  the  defend- 
ant in  the  original  suit  employed  an  attorney,. 
who,  in  the  autumn  of  1798,  made  out  a  bail- 
piece,  as  of  the  term  of  October,  1798,  which 
the  original  defendant  took,  and  went  out 
with  his  bail,  and  returned  on  the  same  day 
with  the  bailpiece  certified  by  a  judge,  and  in 
company  with  one  Stephen  Norton.  The  at- 
torney did  not  recollect  the  bail,  whether  he 
was  the  present  defendant,  or  the  said  Stephen 
Norton;  but  it  appeared  that  the  name  of  the 
bail  in  the  bailpiece  was  in  the  handwriting  of 
the  attorney,  and  that  Norton  resided  in  a 
different  town  from  that  in  which  the  defend- 
ant resided.  The  bailpiece  was  dated  the  llth 
January,  1798.  It  further  appeared,  by  the 
testimony  of  Stephen  Norton,  that  he  came  to 
Cooperstown  (where  the  judge,  who  took  the 
bail,  resided)  to  be  special  bail  for  the  defend- 
ant in  the  original  suit.  The  original  defend- 
ant went  to  the  attorney  to  get  the  bailpiece 
drawn,  and  then  he  and  Norton  went  together 
to  the  judge,  who  signed  his  name  to  the 
*bailpiece,  but  did  not  ask  Norton  to  [*294r 
acknowledge  himself  bail,  and  no  words  pass- 
ed between  him  and  the  judge.  This  was  on 
the  llth  January,  1798;  and  the  present  de- 
fendant was  not  in  Cooperstown  on  that  or 
the  preceding  day.  Norton  supposed  himself 
bail,  till  after  a  trial  in  the  original  suit,  and 
the  original  defendant  had  gone  off.  A  ver- 
dict was  taken  for  the  plaintiff,  subject  to  the 
opinion  of  the  court,  on  a  case  containing  the 
above  facts  ;  and  two  questions  were  raised  for 
the  consideration  of  the  court. 

1.  Was  the  evidence  admissible? 

2.  If  so,  was  it  sufficient  to  establish  the 
plea? 

Mr,  Emtilt  for  the  plaintiff. 

Mr.  Hoffman,  Attorney-General,  contra. 

KENT,  »/.,  delivered  the  opinion  of  the  court: 

It  was  admitted  by  the  plaintiff's  counsel, 

JOHNSON'S  CASES,  2. 


1801 


GILFEKT  v.  HALLET  AND  BOWNE. 


at  the  argument,  that  in  case  bail  are  person- 
ated, the  court  could  direct  a  vacatur  of  the 
bail  ;  and  this  appears  to  have  been  done  in  a 
variety  of  cases.  (Cotton's  case,  Cro.  Jac., 
256  ;  Higham  v.  Barf  old,  3  Keb.,  694 ;  Beasley's 
case,  T.  Jones,  64.)  The  power  of  awarding 
a  vacatur  is  exercised  by  the  court  in  great 
discretion.  They  refuse  it  where,  upon  ex- 
amination, the  merits  of  the  cause  do  not 
appear  sufficiently  clear  (1  Ld.  Raym.,  345;  12 
Mod.,  257),  and  sometimes  stay  it  until  the 
person  personated  has  prosecuted  to  effect  the 
person  guilty  of  wilfully  personating  him,  as 
was  done  in  Beasley's  case.  (T.  Jones,  64.  )J 

All  the  cases  that  have  been  cited  are 
instances  of  application  to  the  discretion  of 
295*]  the  court.  There  are  none  *of  a  plea 
avoiding  the  record.  But  the  form  of  the 
plea  in  the  present  case  is  taken  from  Lilly's 
Ent. ,  398,  a  book  of  generally  approved  prece- 
dents ;  and  it  does  not  appear  to  be  repug- 
nant to  the  rule  that  no  averment  shall  be 
admitted  against  a  record.  The  plea  does  not 
contradict  a  single  fact  in  the  bailpiece.  It 
only  avers  that  the  defendant  is  not  the  per- 
son of  that  name,  thereby  intended,  which  is 
an  averment  consistent  with  the  truth  of  the 
record.  But  the  validity  of  the  plea  is  not  to 
be  examined  in  this  way,  for  the  plaintiff  ad- 
mits its  validity,  in  point  of  law,  by  traversing 
the  fact ;  and  the  parties  go  to  trial  upon  the 
issue  whether  the  defendant  is  or  is  not  the 
same  person  mentioned  and  described  in  the 
bailpiece. 

To  this  issue  the  evidence  offered  was  com- 
petent and  pertinent;  and  the  only  remaining 
question  arising  on  the  case  is  in  respect  to  its 
sufficiency. 

Here,  also,  I  cannot  entertain  any  doubt. 
The  defendant  most  certainly  was  not  the  per- 
son who  appeared  and  became  special  bail.  It 
appears,  from  the  testimony  of  Stephen  Nor- 
ton, that  he  was  himself  the  person  who  ap- 
peared before  the  judge,  when  the  acknowl- 
edgment of  bail  was  certified;  that  he,  bona 
fide,  intended  to  be  the  bail,  and  supposed  he 
was  bail. 

This  is  not  the  case,  therefore,  of  a  felonious 
personating  of  bail,  in  which  the  courts  have 
required,  when  application  has  been  made  to 
their  discretion  for  relief,  a  previous  prosecu- 
tion of  the  felon.  But  it  may  be  said  that  the 
whole  plea  is  not  verified,  to  wit,  that  there 
was  another  person  of  the  same  name  and  des- 
cription, who  became  bail;  and  that  the  proof, 
as  far  as  it  goes,  is,  that  there  was  no  other 
person  of  that  name  and  description.  In 
answer  to  this  objection,  I  consider  the  allega- 
tion that  another  person  of  the  same  name  be- 
came bail,  as  but  inducement  to  the  substance, 
or  gist  of  the  plea,  which  is,  that  the  defend- 
ant was  not  that  person.  The  proof  that  there 
was  no  other  person,  is  but  merely  negative. 
296*]  *It  could  not  be  requisite  for  the  de- 
fendant to  prove  such  a  fact;  and  if  he  proves 
himself  not  to  be  that  person,  the  law  will 
intend,  in  conformity  with  the  plea,  and  in 
consistency  with  the  truth  of  the  record,  that 

1.— See  Hobhouse  v.  Hamilton,  1  Seoales  &  Lef  roy, 
207,  in  which  it  was  held  that  an  enrollment  of  a 
deed  binds,  though  procured  by  fraud  ;  and  that  It 
is  better  to  let  the  party  seek  his  remedy  for  the 
fraud,  than  question  the  record. 

JOHNSON'S  CASES,  2. 


another  person  of  the  same  name  and  descrip- 
tion does  exist. 

In  the  case  of  Cluirles  Raddiffe  (Foster,  41), 
who  was  brought  into  court  for  judgment,  in 
the  year  1746,  upon  a  conviction  and  attainder 
had  in  the  year  1716  ;  he  pleaded  that  he  was 
not  the  person  mentioned  in  the  record,  and 
issue  was  joined  on  that  single  fact,  without 
its  being  incumbent  on  the  defendant  to  ques- 
tion or  identify  any  other  person.  No  doubt 
was  entertained  but  that  if  the  plea  had  been 
true  in  fact,  it  would  have  been  valid  in  law. 

We  are,  therefore,  of  opinion  that  the  de- 
fendant is  entitled  to  judgment. 

Judgment  for  the  defendant. 


GILFERT  r.  HALLET  AND  BOWNE. 

Marine  Insurance  —  "At  and  From"  —  "Liberty 
to  Touch"  —  Stress  of  Weather  —  Deviation  — 
Theft  —  Pirates  —  Aba  ndonment  —  Loss  —  Tola  I. 

Insurance  on  goods,  at  and  from  New  York  to 
Baracoa,  with  liberty  to  touch  at  one  or  two  ports 
on  the  north  side  of  Cuba  ;  the  adventure  to  con- 
tinue until  the  goods  are  safely  landed  at  Baracoa, 
and  one  or  two  ports  on  the  north  side  of  Cuba.  The 
vessel  arrived  at  Baracoa,  the  26th  June,  and  stayed 
there  until  the  30th  October,  1799,  without  being  able 
to  sell  the  cargo,  except  a  small  part,  and  with- 
out selling  any  of  the  goods  of  the  insured  ;  and 
the  vessel  was  forcibly  entered  by  pirates. 
who  carried  away  $4,780,  in  cash,  and  a  great 
quantity  of  goods.  The  vessel  set  sail  for  the 
Havana,  but  was  compelled  by  stress  of  weather 
and  want  of  provisions  to  go  to  New  Providence, 
where  she  arrived  the  loth  December,  where  the 
goods  remaining  were  sold  for  83,701  (the  invoice 
amount  of  the  cargo  being  about  $16,500),  and  the 
voyage  broken  up,  and  an  abandonment  made,  as 
for  a  total  loss.  It  was  held  that  the  stay  at  Baracoa 
did  not  amount  to  a  deviation  ;  that  the  breaking 
bulk  at  Baracoa  did  not  put  an  end  to  the  voy- 
age there,  and  that  the  breaking  up  the  voyage  at 
New  Providence  was  justifiable,  and  a  sufficient 
ground  of  abandonment,  so  as  to  entitle  the  plaintiff 
to  recover  for  a  total  loss. 

Citations—  Park.,  295  ;  Park.  (4th  ed.),  206  ;  6  Term 
R.,  631  ;  Millar,  126  ;  2  Burr.  Rep.,  1269  ;  1  Term  K., 
615. 


was  an  action  on  a  policy  of  insurance, 
1  dated  23d  May,  1799,  on  goods,  on  board 
the  sloop  Two  Friends,  ''at,  and  from  New 
York  to  Baracoa,  with  liberty  to  touch  at  one 
or  two  ports  on  the  north  side  of  Cuba."  The 
adventure  was  "to  continue  until  the  goods 
*were  safely  landed  at  Baracoa,  and  [*297 


NOTE.— Deination . 

What  constitutes  deviatwn.  Stevens  v.  Com.  Mut. 
Ins.  Co.,  26  N.  Y.,  397;  Folsom  v.  Ins.  Co.,  38  Me., 
414 ;  Foster  v.  Jackson  Mar.  Ins.  Co.,  Edm.,  290 ;  De- 
Peyster  v.  Ins.  Co.,  19  N.  Y.,  272 ;  Suydam  v.  Mar. 
Ins.  Co.,  2  Johns.,  138 ;  Vos  v.  Robinson,  9  Johns., 
192 ;  Talcott  v.  Mar.  Ins.  Co.,  2  Johns.,  130 :  Reade  v. 
Com.  Ins.  Co.,  3  Johns.,  352 ;  Md.  Ins.  Co.  v.  Le  Roy, 

7  Cranch,  26;  Tenet  v.  Phcenix  Ins.  Co.,  7  Johns.. 
363 ;  Robertson  v.  Col.  Ins.  Co.,  8  Johns.,  491 ;  Bold 
v.  Rotheram,  8  Q.  B.,  781 ;  Oliverson  v.  lirightinan. 

8  Q.  B.,  781. 

What  will  e.rc«.se  deviation.  Robinson  v.  Mar.  Ins. 
Co.,  2  Johns.,  89;  Hall  v.  Franklin  Ins.  Co.,  9  Pick., 
466 ;  Patrick  v.  Ludlow,  3  Johns.  Cas.,  10 ;  Neilson 
v.  Col.  Ins.  Co.,  1  Johns.,  301;  Post  v.  Phu?nix  Ins. 
Co.,  10  Johns.,  79;  Graham  v.  Cora.  Ins.  Co..  11 
Johns.,  £52;  Crocker  v.  Jackson,  1  Sprague,  141; 
The  Boston,  1  Suum.,  328 ;  King  v.  Del.  Ins.  Co..  2 
Wash.,  300;  Elliot  v.  Wilson,  4  Brown  P.  C.,  470. 

Deviation,  however,  can  only  be  excused  by  cause 
arising  after  commencement  of  voyage.  The  iiei-es- 
sity  for  change  must  be  judged  of  by  the  circum- 


-291 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


one  or  two  ports  on  the  north  side  of  Cuba." 
The  premium  was  twelve  and  a  half  percent., 
to  return  two  and  a  half  per  cent. ,  if  the  voy- 
age ended  at  Baracoa. 

The  vessel  sailed  from  New  York,  on  the 
voyage  insured,  the  2d  June,  1799,  and  ar- 
rived at  Barracoa  on  the  8th  June,  and  on  the 
21st  October  proceeded  to  Quibera,  and  ar- 
rived off  the  harbor  on  the  23d  ;  when  the 
su  jiercargo  went  on  shore  to  go  to  a  town  about 
thirty  mile  from  the  harbor,  and  the  sloop  was, 
in  the  meantime,  to  be  kept  off  and  on  the 
harbor.  On  the  26th,  the  sloop  ran  into  the 
harbor,  in  consequence  of  a  signal ;  but  which 
proved  to  be  that  of  pirates,  who  came  on 
board,  and  by  force,  took  possession  of  and 
plundered  the  vessel.  They  took  away  $4,780 
in  cash,  and  a  great  quantity  of  goods.  On 
tbr  same  day  the  supercargo  returned,  and 
finding  the  pirates  on  board,  went  on  shore, 
on  the  28th,  to  procure  an  armed  force,  which, 
however,  arrived  too  late.  The  pirates  left 
the  sloop  on  the  30th  October,  and  on  the  1st 
November  she  set  sail  for  the  Havana,  by 
what  was  deemed  the  safest  course.  In  con- 
sequence of  high  winds  and  a  heavy  sea,  the 
sloop  lost  three  main  shrouds,  between  the  6th 
November  and  the  14th  December,  one  sailor 
died,  and  the  sloop  wanted  hands  and  neces- 
saries ;  and  the  crew  being  worn  out  by  fatigue, 
they  bore  away,  on  that  day,  for  Nassau, 
where  they  arrived  on  the  16th  December. 
The  sloop  had  continued  at  Baracoa,  with 
endeavors  on  the  part  of  the  supercargo  to 
sell  his  cargo,  but  he  could  only  dispose  of  a 
small  parcel  from  each  invoice,  except  the 
plaintiff's,  of  which  he  sold  none.  Several 
persons  had  adventures  on  board.  There  were 
nearly  twenty  American  vessels  at  Baracoa, 
which  staid  nearly  as  long  as  the  Two  Friends. 
The  plaintiff's  goods  were  carried  to  New 
Providence,  and  there  sold  with  the  cargo  that 
remained.  The  invoice  amount  of  the  whole 
cargo  was  about  $16,500,  and  the  net  proceeds 
298*]  of  the  whole  sold  at  Nassau,  *was 
$3,701.31.  An  abandonment  was  made  on  the 
17th  March,  1800. 

On  these  facts,  the  jury,  under  the  direc- 
tion of  the  judge,  found  a  verdict  for  the 
plaintiff,  as  for  a  total  loss. 

A  motion  was  made  to  set  aside  the  verdict, 
ttml  for  a  new  trial. 

Messrs.  PencUeton  and  Hanson  for  the  de- 
fendants. 


Messrs.  B.  Livingston  and  Troup,  contra. 

The  counsel  for  the  defendants  contended 
that  the  risk  ended  by  breaking  bulk  at  Bar- 
acoa or,  at  least,  that  the  long  stay  at  Bar- 
acoa, nearly  four  months,  was  unnecessary, 
and  amounted  to  a  deviation;  and  that  staying 
I  three  days  off  the  harbor  of  Quibera  was  also 
unnecessary,  and  a  deviation ;  for  the  liberty 
granted  in  the  policy  to  touch,  was  only  for 
information,  and  not  for  trade ;  and,  lastly, 
that  the  vessel  might  easily  have  been  repaired 
at  New  Providence,  and  gone  on,  the  plaintiff 
not  having  lost  any  of  his  property. 

KENT,  J.,  delivered  the  opinion  of  the  court: 

Staying  an  unusual  and  unnecessary  time 

at  a  port  will  amount  to  a  deviation  (Park, 

I  295);  but  I  cannot  say  that  this  was  the  case 

j  with  the  vessel  in  question  at  Baracoa.1     The 

object  of  the  voyage  to  that  place  was  the  sale 

of  the  cargo,  and  the  supercargo  made  endeav- 

j  ors,  but  to  no  purpose,  to  effect  a  sale.    From 

I  the  facts  found,  we  cannot  now  intend  any  un- 

|  reasonable  delay,  or  negligence,  on  the  part  of 

j  the  assured,  at"  Baracoa.     We  are  to  consider 

the  supercargo  an  having  tried,  from  week  to 

week,  to  sell  the  cargo,  even  by  retailing  it  in 

small  parcels ;  and  that  *his  long  stay  [*299 

j  there  was  not  singular,  nor  probably  unusual, 

since  about  twenty  sail  of  American  vessels 

tarried  there  nearly  as  long  as  the  sloop  Two 

!  Friends. 

Nor  do  I  consider  that  the  breaking  bulk  at 
Baracoa  put  an  end  to  the  voyage,  or  termi- 
nated the  risk.9  In  respect  to  the  plaintiff's 
cargo,  there  was  no  breaking  bulk.  But  what 
takes  this  case  out  of  those  that  have  been 
cited  (Park,  4  ed.,  206;  StiU  v.  Wendell,  6  Term 
Kep.,  531;  Millar,  126),  is  the  special  stipula- 
tion in  the  policy  that  the  adventure  was  to 
continue  until  the  goods  were  safely  landed  at 
Baracoa,  and  one  or  two  ports  on  the  north 
side  of  Cuba. 

It  was  evidently  the  intention  of  the  parties 
to  make  this  a  trading  voyage,  and  that  the 
vessel  might  go  from  Bafacoa  to  one  or  two 
ports  on  the  "north  side  of  Cuba,  disposing  of 
the  cargo  by  retail,  as  the  vessel  proceeded, 
within  the  prescribed  course.  If  the  breaking 

l.-^ee  Earl  v.  Shaw,  1  Johns.  Cas.,  313;  Smith  v. 
Surridge,  4  Esp.,  IV.  P.  Rep.,  25 ;  and  Suydam  and 
Another  v.  Marine  Ins.  Co.,  2  Johns.  Rep.,  138. 

2.— See  Rain  v.  Bell,  9  East's  Rep.,  195. 


stances  at  the  time,  not  by  the  event.  The  devia- 
tion must  be  as  slight  as  possible,  or  if  a  new  voyage 
be  necessitated,  it  must  be  made  as  direct  as  possi- 
ble. Lavabre  v.  Wilson,  1  Doug.,  284;  Turner  v. 
Protection  Ins.  Co.,  25  Me.,  515.  Cases  above  cited. 

Deviation  on  time  policies.  Union  Ins.  Co.,  v.  Ty- 
son, 3  Hill,  118 ;  Keeler  v.  Fireman's  Ins.  Co.,  3  Hill, 
351):  Beams  v.  Columbian  Ins.  Co.,  48  Barb.,  445; 
Day  v.  Ins.  Co.,  1  Daly,  13. 

Intention  alone  will  not  constitute  deviation.  Kew- 
ley  v.  Ryan,  2  H.  Bl.,  343 ;  Lawrence  v.  Ocean  Ins. 
Co.,  11  Johns.,  241 ;  Snow  v.  Col.  Ins.  Co.,  48  N.  Y., 
fi24 ;  Marine  Ins.  Co.  v.  Tucker,  3  Cranch,  .157 ;  Mary- 
land Ins.  Co.  v.  Woods,  6  Cranch,  29;  Winter  v.  Del- 
aware, 30  Pa.  St.,  334 ;  Elliot  v.  Wilson,  4  Brown  P. 
T.,  470. 

See  Thelluson  v.  Fergusson,  1  Doug.,  361 ;  Woold- 
ridge  v.  Boydell,  1  Doug.,  16. 

DC Hal  ion  bit  rixiting  ports  in  wrong  itrder.  Beat- 
son  v.  Haworth,  6  T.  R.,  533;  Mollish  v.  Andrews,  16 
K»ist,  312;  Gairdnerv.  Seiihouse,  3  Taunt.,  16;  Ash- 
ley v.  Pratt,  16  M.  and  W.,  471 ;  Marsden  v.  Reid,  3 
East,  572 ;  Kane  v.  Col.  Ins.  Co.,  2  Johns.,  264. 


Mid- 


What  exercise  of  judgment  required  of  master. 
dlewood  v.  Blakes,  7  T.  H.,  162. 

Knowledge  required  of  master.  Phyn  v.  Royal  Ex. 
Ass.  Co.,  7  T.  H.,  505 :  Brazier  v.  Clarke,  5  Mass.,  1. 

Deviation  ?>)/  delau.  See  Earl  v.  Shaw,  1  Johns. 
Cas.,  313,  and  note ;  Phillips  v.  Irving,  7  M.  and  G., 
325 ;  Hamilton  v.  Sheddon,  3  M.  and  W.,  49 ;  Kings- 
ton v.  Girard,  4  Dal].,  274;  Oliver  v.  Md.  Ins.  Co.,  7 
Cranch,  487. 

Effect  of  usage.  De  Peyster  v.  Sun  Mut.  Ins.  Co., 
19  N.  Y.,  272 ;  Seccomb  v.  Prov.  Ins.  Co.,  10  Allen, 
305 ;  Kettell  v.  Wiggin,  13  Mass.,  68 ;  Lockett  v.  Mer- 
chants Ins.  Co.,  10  Rob.  La..  339. 

Temporary  deviation,  for  case  in  which  insurers 
were  held  liable  after,  see  Greenleaf  v.  St.  Louis 
Ins.  Co.,  37  Mo.,  25. 

In  general,  however,  the  slightest  deviation 
vitiates  the  policy,  unless  under  excusable1  circum- 
I  stances.  Martin  v.  Del.  Ins.  Co.,  2  Wash.,  254 :  Breed 
:  v.  Eaton,  10  Mass.,  21 ;  Merrill  v.  Boylston,  etc.,  Ins. 
!  Co.,  3  Allen,  247 ;  Elliot  v.  Wilson,  above  cited. 
:  See  Wiggin  v.  Amory,  14  Mass.,  1,  and  Wiggin  v. 
i  Boardman,  14  Mass.,  12. 

JOHNSON'S  C  VSKS.  2. 


1801 


THE  PEOPLE  v.  OLCOTT. 


299 


bulk  atone  port  was  to  put  an  end  to  the  risk, 
the  language  of  the  policy  would  have  been 
different.  It  would  have  been  expressed  that 
the  adventure  was  to  continue  until  the  goods 
were  landed  at  Baracoa,  or  other  port  of  dis- 
charge on  the  north  side  of  Cuba.  This  is, 
probably,  not  an  unusual  provision  in  our  pol- 
icies of  insurance,  for  in  the  cause  of  Smith  v. 
Bates  and  Walerbury,  which  was  on  a  policy 
to  a  market  in  the  West  Indies,  and  which 
was  tried  at  the  New  York  circuit,  in  1795, 
it  was  shown  to  be  the  mercantile  usage 
and  sense  on  the  subject,  that  on  a  policy  to  a 
market,  the  vessel  might  go  from  island  to 
island,  until  the  whole  of  the  cargo  was  sold, 
without  being  chargeable  with  a  deviation.1 

The  other  stipulation  in  the  policy,  to  return 
two  and  a  half  per  cent,  if  the  voyage  ended 
at  Baracoa,  confirms  the  opinion  that  Barra- 
coa  was  not  understood  to  be,  at  all  events,  the 
terminus  of  the  voyage,  and  the  liberty  to 
touch,  which,  had  it  stood  naked  and  unex- 
plained in  the  policy,  could  not  have  extended 
3OO*]  to  a  liberty  *to  break  bulk,  must  mean 
leave  to  trade,  and  that,  too,  subsequent  in  the 
order  of  time  to  the  arrival  at  Baracoa. 

I  see  nothing,  therefore,  eitjier  in  the  stay 
or  in  breaking  bulk,  to  prevent  the  plaintiff 
from  recovering.  Nor  did  the  stay  of  three 
days,  before  and  off  the  harbor  of  Quibera, 
amount  to  a  deviation.  It  was  not  an  unrea- 
sonable delay  or  deviation,  in  seeking  for  a 
market,  considering  the  nature  and  circum- 
stances of  that  coast,  and  the  character  of  the 
natives. 

So  while  the  vessel  was  on  her  way  to  the 
Havana,  the  departure  to  the  island  of  Nassau 
arose  from  necessity;  from  adverse  weather, 
which  weakened  the  vessel,  exhausted  the 
necessaries  of  life,  and  the  strength  and  com- 
petency of  the  crew. 

The  only  question,  then,  is  this,  was  the 
voyage  broken  up,  so  as  to  justify  an  aban- 
donment, on  the  arrival  of  the  vessel  at  New 
Providence?  The  whole  cargo  of  the  vessel 
amounted  originally  to  $16,000;  and  only  a 
small  parcel,  probably  not  amounting  to  a 
third  of  the  cargo,  was  sold  at  Baracoa.  A 
great  quantity  of  goods  and  $4,780  in  cash, 
were  lost  by  the  act  of  the  pirates,  so  that  the 
net  amount  of  the  whole  cargo  remaining, 
when  the.  vessel  arrived  at  Providence,  did  j 
not  exceed  $3,701.  Considering  the  vessel  was 
injured,  and  the  necessaries  exhausted,  owing 
to  the  state  of  the  winds  and  sea,  and  the 
cargo  so  greatly  diminished  by  the  piracy,  I 
think  the  voyage  may  be  deemed  to  have  been 
broken  up,  and  not  worth  pursuing.  The  ex- 
pense of  pursuing  it  would  have  exceeded  the 
benefit  arising  from  it.  (2  Burr.  Rep.,  1269;  1 
Term  Rep.,  615.)  The  remains  of  the  cargo 
could  not  justify  the  re-equipment  of  the  vessel 
and  a  continuance  of  the  voyage,  and  the  jury 
were  warranted  in  finding  a'total  loss. 

We  are,  therefore,  of  opinion  that  the  motion  j 
be  denied. 

Rule  refused. 
Cited  In— 78  N.  Y.,  19;  9  Bos.,  11. 

1.— See  Maxwell  v.  Robinson  et  al.,  1  Johns.  Rep., 
333. 

JOHNSON'S  CASES,  2. 


*THE  PEOPLE  v.  OLCOTT.     [*3O1 

1.  Conspiracy — Indictment  of  Two — Acquittal 
of  One — Jury  Dimqret — Jury  Discharged — 
Discretion  —  Second  Trial,  2.  Id. —  Id. — 
Three  Persons— Death  of  One — Acquittal  of 
Another— Survivor.  3.  Id. — Id. —  Verdict— 
Construction. 

A  and  B  were  indicted  for  a  conspiracy  to  de- 
fraud C.  B  was  acquitted,  and  the  jury  being-  un- 
able to  agree  on  a  verdict  whether  A  was  guilty  or 
not,  the  court,  against  the  consent  of  A,  ordered  a 
juror  to  be  withdrawn,  and  the  jury  discharg-ed.  It 
was  held  that  the  court  may,  in  their  discretion,  in 
a  criminal  case,  discharge  a  jury  who  are  unable  to 
agree  on  a  verdict,  and  against  the  consent  of  the 
defendant,  who  may  be  brought  to  trial  a  second 
time  for  the  same  offense.  Where  three  persons 
were  engaged  in  a  conspiracy,  and  one  of  them  died 
before  trial,  and  another  was  acquitted,  it  was  held 
that  the  survivor  might  be  tried  and  convicted. 

A  and  B  being  indicted  for  a  conspiracy  to  de- 
fraud C,  the  jury  found  a  verdict  that  there  was  an 
agreement  between  A  and  B  to  obtain  money 
from  C,  but  with  an  intent  to  return  it  again :  this 
was  held  not  to  be  a  verdict  of  acquittal,  or  a  ver- 
dict on  which  any  judgment  could  be  given. 

Citations— 1  Johns.  Cas.,  375 ;  1  Co.  Inst.  It.  3,  Inst. 
11<U  Foster,  32,  33,  34;  Brooke's  Corone,  42;  Hawk. 
P.  C.  C.  Q.  C.,  97,  s.  1 ;  4  Bl.  Com.,  p.  360 ;  Carth.,  465 
(note);  Foster,  27,  28;  Stra.,  984;  L.  Raym.,  84;  1 
Vent.,  69 ;  Hill,  8,  s.  7 ;  Foster,  271 ;  Salk.,  648 ;  Hale, 
P.  C.,  Vol.  2,  p.  295;  Foster,  22  to  40;  Comb.,  401; 
Kelynge,  26,  52;  St.  Tr.,  Vol.  2,  p.  710,  827;  1  Hale,  35; 
Leach,  443 ;  Foster,  76 ;  2  Hale,  296 ;  6  Term  R.,  688 ; 
T.  Jones,  163 ;  1  Lev.  9 ;  21  Vin.,  478 ;  Loft.,  147 ;  4  Bl. 
Com.,  355 ;  Ridg.,  51 ;  1  Lev.,  9 ;  Laws  of  New  York, 
Vol.  1,  184;  The  Doctor  and  Student,  dial.  Q.  C.,  52; 
Stra.,  1227 ;  3  Burr.,  1262. 

THE  prisoner  being  brought  into  this  court 
by  habeas  corpus,  a  motion  was  made  that 
he  should  be  discharged,  upon  the  following 
statement  of  facts. 

The  prisoner  and  Henry  Aborn  were  indict- 
ed at  the  New  York  Oyer  and  Terminer  in 
November  last,  for  that  they  and  Solomon 
Roe  had  conspired  to  defraud  the  Bank  of 
New  York  of  money.  Roe  was  dead  when 
the  indictment  was  found.  The  prisoner  and 
Aborn  were  brought  to  trial  at  the  same  court, 
and  the  latter  acquitted  ;  and  with  respect  to 
Olcott,  the  jury,  after  having  remained  out  a 
long  time,  to  wit,  from  about  8  o'clock  on 
Saturday  evening,  till  n'ear  2  o'clock  the 
next  day;  and,  coming  into  court  two  or  three 
times  for  information  and  advice,  agreed  on 
the  following  verdict:  "That  there  was  an 
agreement  between  Roe  and  the  prisoner  to  ob- 
tain money  from  the  Bank  of  New  York,  but 
with  intent  to  return  it  again."  This  verdict 
the  court  considered  as  imperfect,  and  refused 
to  receive  it.  The  court  then  asked  the  jury  if 
there  was  any  prospect  of  their  agreeing  on  a 
general  verdict  of  guilty  or  not  guilty,  and  the 
foreman  said,  "No."  They  were  then  asked 
if  they  could  agree  to  find  *  a  special  verdict, 
stating  the  procuring  the  money  from  the 


NOTE.— Conspiracy,  trial  for,  failure  of  jury  f<» 
agree,  their  discharge  7>;/  the  court,  second  trial. 

One  man  cannot  be  guilty  of  conspiracy  alone. 
State  v.  Tom,  2  Dev.  (N.  C.)L.,  569;  U.  S.  v.  Cole,  5. 
McLean,  601. 

One  conspirator  may  be  proceeded  against  after 
the  other  is  dead.  Rex  v.  Nicolls,  2  Stra.,  1227  :  Peo- 
ple v.  Olcott,  supra ;  Reg  v.  Kenrick,  5  Q.  B..  4!t. 

See  U.  S.  v.  Cole,  5  McLean,  513 ;  Rex  v.  Cooke,  7  D. 
and  R.,  673. 

If  -new  trial  be  gi-anted  as  to  one  conspirator  it 
will  be  granted  as  to  all.  Reg.  v.  Gomix-rtz,  9  Q.  B.. 
824. 

523 


301 


SUPREME  COURT,  STATE  OF  2s  EW  YORK. 


1801 


bank,  in  the  manner  stated  in  the  indictment, 
except  as  to  the  intent  therein  charged,  to  de- 
fraud the  bank,  and  leave  that  intent,  as  an 
inference  of  law,  to  the  court ;  and  the  fore- 
man said,  "No."  They  were  then  asked 
whether  they  would  agree  to  a  special  verdict, 
finding  the  conspiring  as  charged,  excepting  the 
intent  to  defraud,  &c.,  and  with  this  addi- 
tional fact,  that  they  intended  to  return  the 
money  again  ;  and  the  foreman  answered  again 
3O2*]*in  the  negative ;  whereupon,  the  court, 
without  the  consent  of  the  prisoner,  ordered  a 
juror  to  withdraw,  and  the  rest  being  called, 
and  only  eleven  answering,  they  were  dis- 
charged. 

The  counsel  for  the  prisoner  contended  that 
he  ought  to  be  discharged,  on  three  grounds. 

1.  Because  the  prisoner,  being  once  put  on 
his  trial,  and  the  jury  not  being  able  to  agree 
on  a  perfect  verdict,  and  being  discharged  by 
the  court  against   the  consent  of  the  prisoner, 
he  cannot  be  again  brought  to  trial. 

2.  Because  the  conviction  of  two  persons  is 
requisite  to  constitute  the  crime  of  conspiracy, 
and  Aborn  being  acquitted,  and  Roe  being 
dead,  the  prisoner  cannot  legally  be  convicted. 

3.  Because  the  verdict  offered  was  a  compe- 
tent verdict  of  acquittal,  and  ought  to  have 
been  received. 

Messrs.  Riggs  and  B.  Livingston  for  the  pris- 
oner. 
Mr.  Hoffman,  Attorney-General,  contra. 

KENT,  J.,  delivered  the  opinion  of  the 
court: 

1.  The  first  point  arose,  and  was  decided  by 
this  court  at  the  last  term,  in  the  case  of  The 
People  v.  Denton  (see  ante,  275);  but,  as  the 
same  question  has  been  raised  and  argued  by 
counsel  in  this  cause,  it  was  evidently  with  a 
view  that  the  court  should  reconsider  its 
former  decision.  This  has  accordingly  led  me 
to  give  the  subject  a  further  and  more  atten- 
tive consideration,  and  my  researches  and  re- 
flections have  terminated  in  the  following 
result. 

Lord  Coke  (1  Inst.,  227,  b;  3  Inst,  110)  lays 
it  down  as  a  general  rule  that  a  jury  sworn 
and  charged  by  the  court,  in  cases  of  life  or 
member,  and  so  in  all  cases  of  felony,  cannot 
be  discharged  by  the  court,  or  any  other,  but 
they  ought  to  give  a  verdict.  The  only 
J3O3*]  *authority,  however,  that  he  cites  in 
favor  of  this  general  position,  is  a  case  from 
21  Edw.  III.,  18  (Foster,  32;  Brooke's  Corone, 
42),  in  which  it  was  adjudged  that  a  person 
indicted  for  larceny,  and  who  had  pleaded  not 
guilty,  and  put  himself  upon  his  country, 
should  not,  afterwards,  when  the  jury  was  in 
court,  be  admitted  to  become  an  approver; 


because,  by  solemnly  denying  the  fact  by  hi* 
plea,  he  had  lost  all  credit,  and  ought  not  to- 
be  received  as  a  witness  against  others.  (Fos- 
ter, 32,  33;  Brooke's  Corone,  42).  This  au- 
thority, cited  by  Lord  Coke,  does  not  warrant, 
or  add  the  least  sanction  to  his  general  rule, 
and  the  authority  itself  was  afterwards  over- 
ruled; and  the  court  used  to  exercise  its  dis- 
cretion in  sometimes  refusing,  and  sometimes 
admitting  persons  to  the  liberty  of  approving, 
after  the  jury  were  sworn  and  evidence  in 
part  given.  (Foster,  33,  34.)  The  same  doc- 
trine advanced  by  Coke  was  afterwards  en- 
grafted by  Serjeant  Hawkins  (P.C.,  bk.  2,  eh. 
97,  sec.  1),  and  by  Mr.  Justice  Blackstone 
(Com.,  vol.  4,  p.  360),  into  their  elementary 
treatises  on  the  criminal  law;  but  their  opin- 
ions rest  solely  upon  the  foundation  of  Lord 
Coke's  authority.  There  is  also  a  note  in 
Carth.,  465,  in  which  it  is  stated  to  have  been 
a  resolution  of  all  the  judges  of  England,  of 
which  Ch.  J.  Holt  was  then  one,  that  in  capi- 
tal cases  a  juror  cannot  be  withdrawn,  even 
with  the  prisoner's  consent,  nor  in  any  case, 
civil  or  criminal,  without  it.1 

With  respect  to  the  note  in  Carthew,  it 
underwent  a  crftical  examination  in  the  case 
of  the  two  Kinlocks  (Foster,  27,  28),  in  the 
year  1746,  and  it  was  considered  as  a  palpable 
mistake  of  the  reporter.  The  case,  as  cor- 
rected by  a  MS.  report  of  Ch.  J.  Eyre,  was  on 
an  indictment  for  perjury;  and  on  the  trial, 
the  prosecutor  finding  his  evidence  defective, 
insisted  on  withdrawing  a  juror,  and  Ch.  J. 
Holt  refused  it,  saying  that  in  criminal  case* 
a  juror  cannot  be  withdrawn,  but  by  consent: 
*and  in  capital  cases,  not  even  with  [*3O4r 
consent.  This  case,  therefore,  goes  only  in 
restraint  of  what  was  properly  deemed  an  un- 
reasonable and  oppressive  claim  on  the  part 
of  the  prosecutor. 

In  the  case  of  The  King  v.  Jeffs  (Stra. ,  984), 
Lord  Hardwicke  followed  this  example  of 
Holt.  He  refused,  in  a  case  of  barratry,  to 
permit  a  juror  to  be  withdrawn  on  the  motion 
of  the  prosecutor,  after  he  had  gone  into 
proof,  and  found  himself  deficient,  because 
the  punishment  annexed  to  that  offense  might 
be  infamous  ;  but  he  said  it  might  be,  and 
had  been  done,  in  other  cases  of  misdemean- 
ors. This,  like  the  preceding  case,  controls 
!  an  improper  exercise  of  the  power  of  the 
!  court,  but  does  not  deny  its  existence.  It  per- 
'  haps  admits  too  much  ;  for  to  allow  the  prose- 
cutor, in  any  case,  to  withdraw  a  juror,  be- 
cause he  finds  himself  not  fully  prepared  in 
his  proofs,  is  an  unreasonable  indulgence,  un- 
less it  should  be  made  to  appear  that  some 

1.  In  civil  actions,  the  justices,  upon  cause,  may 
discharge  the  jury.  Bro.  Inq.,  39,  47,  68,  &c.,  cited 
in  1  Tri.  per  Pais,  250. 


The  fifth  amendment  of  U.  S.  Constitution,  provides 
that  no  person  shall  be  twice  put  in  jeopardy  of  life 
and  limb  for  the  same  offense.  This  is  not  a  limit  iinon 
the  State  governments  in  relation  to  their  own  citi- 
zens. Fox  v.  State  of  Ohio,  5  How.  U.  8.,  434 ;  Liv- 
ingston v.  Mayor  of  N.  Y.,  8  Wend.,  100.  The  con- 
trary, however,  has  been  held  in  some  cases.  (See 
Commonwealth  v.  Purchase,  2  Pick.,  521.)  Most  of 
the  State  constitutions  have  a  similar  provision,  and 
the  question  has  been  much  discussed  how  these 
provisions  apply  in  case  of  a  disagreement  of  the 
jury.  It  seems,  however,  to  be  the  law  now  that  in 
such  case  the  judge  can  discharge  the  jury,  and  the 
prisoner  be  held  for  a  new  trial.  Commonwealth 

524 


v.  Purchase,  above  cited ;  U.  8.  v.  Perez,  9  Wheat., 
579;  People  v.  Goodwin,  18  Johns.,  187;  People  v. 
Green,  13  Wend.,  55 ;  Shaffer  v.  State,  27  Ind.,  131 : 
Dobbins  v.  State,  14  Ohio  St.,  493;  Lester  v.  State,  33 
Ga.,  329;  Newton's  case,  13  Q.  B.,  716. 

See,  however,  U.  S.  v.  Gibert,  2  6umn.,  19;  Dye  v. 
Commonwealth,  7  Gratt.,  662 ;  Commonwealth  v. 
Cook,  6  S.  and  R.,  577. 

As  to  how  inability  to  agree  is  to  be  determined, 
see  cases  above  cited.  Powell  v.  State,  19  Ala.,  577 ; 
State  v.  Walker,  26  Ind.,  346. 

See,  also,  Commonwealth  v.  Eastman,  ICush..  189. 

In  some  of  the  above  cases  a  distinction  is  made 
between  misdemeanor  and  felony. 

JOHNSON'S  CASE*,  2. 


1801 


THE  PEOPLE  v.  OLCOTT. 


304 


part  of  the  testimony  was  wanting,  through 
the  contrivance  or  agency  of  the  defendant. 

It  seems,  then,  that  the  position,  generally 
denying  the  power  of  the  court  to  discharge  a 
jury  sworn  and  charged  in  a  criminal  case, 
has  originated  (probably  without  further  ex- 
amination or  inquiry)  from  a  dictum,  to  be 
found  in  the  Institutes  of  Lord  Coke,  and  that 
this  dictum  rests  upon  his  single  authority, 
without  the  sanction  of  any  judicial  decision. 
Xoue  of  the  decisions  go  any  farther  than  to 
prescribe  a  rule  to  the  discretion  of  the  court 
in  particular  cases.  On  the  contrary,  there 
are  many  authorities  admitting  and  establish- 
ing the  power  of  the  court  to  discharge  the 
jury,  even  in  capital  cases. 

In  the  case  of  Ferrars,  cited  in  Sir  T.  Raym, 
84,  which  was  on  an  information  for  forgery, 
it  is  said  to  have  been  held  by  all  the  justices, 
that  after  a  jury  was  sworn  and  charged  in  a 
capital  case,  they  may  be  dismissed,  or  a  juror 
withdrawn,  though  this  was  said  to  be  con- 
trary to  common  tradition.  Again,  on  a  trial 
3O&*]  *for  larceny,  reported  inl  Vent.,  p. 69, 
after  the  jury  were  sworn,  as  the  witnesses 
•did  not  appear,  and  were  suspected  to  have 
been  tampered  with  by  the  defendant,  the 
jury  were  discharged,  and  the  trial  put  off ; 
and  Sir  John  Strange  produced  the  record  of 
.a  case  of  Hill.,  8,  sec.  7;  Foster,  271,  where, 
on  an  indictment  for  murder,  the  jury  deliv- 
ered a  verdict  handed  to  them  by  the  pris- 
oner, and  they  were  in  consequence  of  it  dis- 
charged and  committed,  and  the  defendant 
tried  again.  In  the  spirit  of  these  decisions, 
Sir  John  Holt(Salk.,  646)  admitted  that  even 
a  new  trial  might  be  granted  in  criminal  cases, 
if  the  verdict  was  obtained  by  fraud  or  trick  ; 
and  Sir  M.  Hale  (P.  C.,  vol.  2,  p.  295),  in  di- 
rect opposition  to  Coke,  says  that  the  practice 
had,  in  his  time,  become  ordinary  for  the 
<;ourt,  after  the  jury  were  sworn  and  charged, 
And  evidence  given,  if  it  appeared  that  some 
of  the  testimony  was  kept  back,  or  that  there 
might  be  a  fuller  discovery,  and  the  offense  as 
notorious  as  murder  or  burglary,  to  discharge 
the  jury,  and  remit  the  prisoner  for  another 
trial. 

In  the  case  of  the  two  Kinlocks  (Foster,  22 
to  40),  to  which  I  have  already  alluded,  the 
single  point  decided  was  that  the  court  might, 
in  a  capital  case,  on  motion  of  the  prisoner's 
•counsel  and  at  his  request,  and  with  the  con- 
sent of  the  Attorney-General,  before  evidence 
given,  discharge  the  jury  to  let  in  a  new  de- 
fense which  the  prisoner  could  not  otherwise 
have ;  but  the  general  question  touching  the 
power  of  the  court  to  discharge  jurors  under- 
went a  full  and  solemn  discussion,  and  all  the 
'cases  that  I  have  mentioned  were  cited  and 
examined.  ,Ten  of  the  English  judges  gave 
their  opinions  seriatim,  and  according  to  the 
elaborate  and  able  argument  of  Sir  M.  Foster, 
which  he  has  preserved  entire,  and  which  we 
may  consider  as  the  opinion  of  all  the  judges, 
except  one,  as  all  but  one  agreed  in  the  same 
principles  and  result,  the  court  came  to  this 
3OG*]  *decision — that  the  general  rule,  as  laid 
down  by  Lord  Coke,  had  no  authority  to  war- 
rant it,  and  could  not  be  universally  binding. 
That  the  question  was  not  capable  of  being 
determined  by  any  general  rule,  for  that  none 
could  govern  the  discretion  of  the  court,  in  all 
JOHNSON'S  CASES,  2. 


possible  cases  and  circumstances;  and  that  the 
case  in  Carthew  was  of  little  or  no  weight,  and 
must  have  arisen  from  a  mistake  in  the  re- 
porter. Sir  M.  Foster  stated  several  excep- 
tions to  the  general  rule  of  Coke,  and  said 
that  many  more  might  be  mentioned.  Among 
other  instances,  he  admitted  the  right  of  the 
court  to  discharge  the  jury  after  evidence 
given,  because  the  indictment  did  not  suit  the 
case,  and  had  been  mistaken  by  the  prosecu- 
tor; and  this  power  is  also  recognized  in  sev- 
eral of  the  books.  (Comb.,  401;  Kelynge,  26, 
52.)  He  further  admitted  the  right  of  the 
court,  in  the  cases  stated  from  Ventris  and 
Hale,  where  practices  had  been  used  to  keep 
the  witnesses  out  of  the  way;  though  he  rep- 
robated, and  very  justly,  the  extent  to  which 
it  had  been  carried,  in  other  instances,  where 
the  evidence  was  not  sufficient  to  convict.  (St. 
Tr.,  vol.  2,  p.  710,  827.) 

The  instances  in  which  the  court  has  exer- 
cised its  discretion  in  discharging  the  jury, 
have  multiplied  since  the  time  of  Foster,  and 
have  now  become  very  considerable  in  point 
of  number  and  importance.  If  a  prisoner  be 
found  to  be  insane  (1  Hale,  35),  or  in  a  fit 
(Leach,  443),  or  be  taken  in  labor  (Foster, 
76),  or  if  a  juror  escape  from  his  fellows  and 
go  off  (2  Hale,  296),  or  be  taken  in  a  fit,  or  be 
intoxicated;  in  all  these  cases  it  has  been  ruled 
that  the  court  may  discharge  the  jury,  and  re- 
mand the  prisoner  for  another  trial. 

The  general  rule,  as  laid  down  by  Coke,  and 
most  of  the  cases  on  the  subject  relate  to  trials 
for  capital  offenses,  and  even  there  we  have 
seen  how  far  the  rule  has  been  justly  ques- 
tioned, if  not  wholly  done  away;  and  the 
many  exceptions  which  are  conceded  to  exist 
against  its  universality.  But  the  case  now  be- 
fore the  *court ,  is  a  case  of  misdemeanor  [*3O  7 
only,  and  the  precise  question  is,  whether,  in 
such  case,  it  does  not  rest  in  the  discretion  of 
the  court  to  discharge  the  jury,  whenever  they 
deem  it  requisite  to  a  just  and  impartial  trial. 
It  is  worthy  of  notice  that  there  is  no  general 
rule,  nor  any  adjudged  case,  denying  this 
power  in  the  court,  in  the  case  of  a  misde- 
meanor. The  resolution  of  Holt,  as  it  appears 
in  its  correct  and  authentic  state  in  Foster, 
and  the  decision  of  Lord  Hardwicke,  only  go 
to  restrict  the  undue  exercise  of  this  power  on 
trials  for  misdemeanors,  by  denying  to  the 
prosecutor  the  liberty  of  having  a  juror  with- 
drawn, because  he  happens,  after  entering 
into  his  testimony,  to  find  himself  unprepared 
through  his  own  fault;  and  even  this  extraor- 
dinary indulgence  is  granted,  according  to 
Hardwicke,  if  the  punishment  annexed  to  the 
offense  be  not  infamous. 

If  the  qestion  in  capital  cases  be  doubtful, 
there  is  nothing  to  render  it  so  in  cases  of  mis- 
demeanor. The  power  of  the  court  in  those 
cases  is  analogous  to  their  power  in  civil  cases; 
and  they  seem,  in  many  respects,  to  possess 
the  same  control  over  the  verdict,  in  exercis- 
ing the  power  of  awarding  new  trials  (6  Term 
Rep.,  688;  T.  Jones,  163;  1  Lev.,  9;  21  Vin., 
478;  Loft,,  147;  4  Bl.  Com.,  355;  Ridg.,  51; 
1  Lev.,  9);  and  taking  a  privy  verdict  (T. 
Raym.  193);  and  the  party  is  also  entiled  to  a 
writ  of  error,  as  a  matter  of  ris;ht.  (Laws  of 
New  York,  vol.  1,  184.) 

I  conclude,  then,  that  as  no  general  rule  or 

525 


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1801 


decision  that  I  have  met  with  exists  to  the  con- 
trary in  a  case  of  misdemeanor,  and  as  the  rule, 
even  in  capital  cases,  abounds  with  excep- 
tions, and  is  even  questioned,  if  not  denied  by 
the  most  respectable  authority,  that  of  nine  of 
the  judges  of  England,  it  must,  from  the 
reason  and  necessity  of  the  thing,  belong  to 
the  court,  on  trials  for  misdemeanors,  to  dis- 
charge the  jury,  whenever  the  circumstances 
of  the  case  render  such  interference  essential 
to  the  furtherance  of  justice.  It  is  not  for  me 
3O8*J  here  to  say  *whether  the  same  power 
exists  in  the  same  degree  (for  to  a  certain  de- 
gree it  must  inevitably  exist)  on  trials  for  cap- 
ital crimes,  because  such  a  case  is  not  the  one 
before  the  court;  and  I  choose  to  confine  my 
opinion  strictly  to  the  facts  before  me. 

With  respct  to  misdemeanors,  we  may,  with 
perfect  safety  and  propriety,  adopt  the  lan- 
guage of  Sir  M.  Foster  (p.  29),  which  he,  how- 
ever, applies  even  to  capital  crimes,  "that  it  is 
impossible  to  fix  upon  any  single  rule  which  can 
be  made  to  govern  the  infinite  variety  of  cases 
that  may  come  under  the  general  question 
touching  the  power  of  the  court  to  discharge 
juries  sworn  and  charged  in  criminal  cases." 
If  the  court  are  satisfied  that  the  jury  have 
made  long  and  unavailing  efforts  to  agree; 
that  they  are  so  far  exhausted  as  to  be  incapa- 
ble of  further  discussion  and  deliberation, 
this  becomes  a  case  of  necessity,  and  requires 
an  interference.  All  the  authorities  admit 
that  when  any  juror  becomes  mentally  dis- 
abled, by  sickness  or  intoxication,  it  is  proper 
to  discharge  the  jury;  and  whether  the  men- 
tal inability  be  prod'uced  by  sickness,  fatigue, 
or  incurable  prejudice,  the  application  of  the 
principle  must  be  the  same.  So  it  is  admitted 
to  be  proper  to  discharge  the  jury  when  there 
is  good  reason  to  conclude  the  witnesses  are 
kept  away,  or  the  jury  tampered  with,  by 
means  of  the  parties.  Every  question  of  this 
kind  must  rest  with  the  court,  under  all  the 
particular,  or  peculiar  circumstances  of  the 
case.  There  is  no  alternative;  either  the  court 
must  determine  when  it  is  requisite  to  dis- 
charge, or  the  rule  must  be  inflexible,  that 
after  the  jury  are  once  sworn  and  charged,  no 
other  jury  can,  in  any  event,  be  sworn  and 
charged  in  the  same  cause.  The  moment  cases 
of  necessity  are  admitted  to  form  exceptions, 
that  moment  a  door  is  opened  to  the  discretion 
of  the  court,  to  judge  of  that  necessity,  and  to 
determine  what  combination  of  circumstances 
will  create  one. 

3O£)*]  *There  is  an  opinion  given  in  an 
ancient  book  of  approved  authority  (The  Doc- 
tor and  Student,  dial.  2,  ch.  52),  which  comes 
up  fully  to  the  case  before  the  court.  In 
answer  to  the  5th  question  of  the  Doctor, 
whether  it  stand  with  conscience  to  prohibit  a 
jury  meat  and  drink  till  they  be  agreed,  the 
learned  author  (St.  Germain)  puts  this  answer 
into  the  mouth  of  the  Student,  "that  if  the 
case  happen  that  the  jury  can  in  nowise  agree 
in  their  verdict,  and  that  appears  to  the  jus- 
tices, by  examination,  the  justices  may,  in 
that  case,  suffer  them  to  have  both  meat  and 
drink  for  a  time,  to  see  whether  they  will 
agree;  and  if  they  will  in  nowise  agree,  I  think 
(continues  the  Student)  that  the  justices  may 
take  such  order  in  the  matter  as  may  seem  to 
them,  by  their  discretion,  to  stand  with  reason 
526 


and  conscience,  by  the  awarding  of  a  new  in- 
quest, and  by  setting  a  fine  upon  them,  that 
they  shall  find  in  default,  or  otherwise,  as  they 
shall  think  best,  by  their  discretion;  like  as 
they  may  do  if  one  of  the  jury  die  before  ver- 
dict, or  if  any  other  like  casualties  fall  in  that 
behalf." 

This  power  in  the  court,  so  far  from  impair- 
ing the  goodness  or  safety  of  trial  by  jury, 
must  add  to  its  permanence  and  value.  The 
doctrine  of  compelling  a  jury  to  unanimity  by 
the.  pains  of  hunger  and  fatigue,  so  that  the 
verdict,  in  fact,  be  founded  not  on  temperate 
discussion  and  clear  conviction,  but  on  strength 
of  body,  is  a  monstrous  doctrine,  that  does 
not,  as  St.  Germain  evidently  hints,  stand  with 
conscience,  but  is  altogether  repugnant  to  a 
sense  of  humanity  and  justice.1  ^A  verdict  of 
acquittal  or  conviction,  obtained  under  such 
circumstances,  can  never  receive  the  sanction 
of  public  opinion.  And  the  practice  of  for- 
mer times,  of  sending  the  jury  in  carts  from 
one  assize  to  another,  is  *properly  con- [*3 1 0 
trolled  by  the  improved  manners  and  senti- 
ments of  the  present  day. 

So  a  verdict,  obtained  unfairly,  by  secret 
and  artful,  or  bold  and  direct  influence  over 
the  jury,  by  the  parties,  their  friends,  or  by- 
standers, would,  if  admitted  to  be  recorded, 
be  a  disgrace  to  the  administration  of  justice. 
The  power  of  discharging  a  jury,  in  these  and 
other  instances  which  might  be  enumerated,  i» 
a  very  salutary  power,  and  calculated  to  pre- 
serve that  mode  of  trial  in  its  purity  and 
vigor. 

In  the  present  case,  I  cannot  say  the  discre- 
tion of  the  court  was  unduly  exercised.  The 
jury  had  been  out  a  long  time,  and  had  repeat- 
edly come  into  court  and  received  its  informa- 
tion and  advice.  They  at  last  returned  a  ver- 
dict, which,  for  the  present,  I  will  assume  to- 
be  an  imperfect  one,  on  which  no  judgment 
could  be  given.  They  refused  to  give  any 
other  verdict,  either  general  or  special.  In 
short,  the  jury,  after  being  out  from  Saturday 
evening  till  the  afternoon  of  the  succeeding 
day,  return  and  declare  they  cannot  agree  to- 
give  any  legal  verdict.  The  circumstances 
constituting  a  case  proper  for  the  discharge  of 
a  jury,  must  be  more  accurately  perceived, 
and  more  justly  felt  by  the  court  before  whom 
the  trial  is  had,  than  by  any  other  court.  It 
must,  therefore,  be  a  pretty  clear  case  of  an 
abuse  of  discretion,  to  induce  me  to  say  the 
court  below  ought  not  to  have  discharged  the 

JU1T- 

I  am,  therefore,  of  opinion,  on  the  first 
point,  that  the  defendant  ought  not  to  be  dis- 
charged. 

2.  The  second  ground  on  which  the  motion 
was  made,  is  that  the  conviction  ,of  two  per- 
sons is  requisite  to  constitue  the  crime  of  con- 
spiracy; and  Aborn  being  acquitted,  and  Roe 
being  dead,  the  defendant  cannot  legally  be 
convicted. 

But  the  case  of  The  King  v.  Nicotts  (Stra., 
1227)  is  directly  in  point,  that  one  conspirator 
may  be  convicted  after  the  other  is  dead,  be- 
fore conviction.  This  was  *a  determi-  [*3 1 1 

1.— Mr.  Emlyne,  in  his  preface  to  the  State  Trials 
(p.  6,  7),  exposes  in  strong1  terms,  the  injustice  and 
absurdity  of  starving1  a  jury  into  unanimity,  in 
criminal  cases. 

JOHNSON'S  CASKS,  2.. 


1801 


JENKINS  v.  PEPOON. 


nation  by  the  Court  of  King's  Bench,  and  a 
subsequent  case  of  The  I&ng  v.  Scott  and 
Names  (3  Burr.,  1262)  is  also  in  point,  to  show 
that  the  death  of  one  of  the  number  requisite 
to  constitute  the  offence  charged,  will  not  pre- 
vent the  conviction  of  the  survivor.  It  was 
the  case  of  a  riot,  in  which  three  persons,  at 
least,  are  necessary  to  constitute  the  crime. 
There  were  six  persons  indicted,  two  were  ac- 
quited  and  two  died  before  trial,  and  Lord 
Mansfield  held  that  the  two  who  were  convic- 
ted must  have  been  guilty,  together  with  one 
or  both  of  the  persons  who  had  died  before 
conviction,  and  yet  the  conviction  of  the  two 
survivors  was  held  good. 

3.  The  remaining  ground  of  the  motion  is, 
that  the  verdict  offered  by  the  jury  was  a  com- 
petent verdict  of  acquittal,  and  ought  to  have 
been  received. 

The  offence  charged  was  a  conspiracy  to 
defraud  the  bank,  and  the  verdict  was,  "that 
there  was  an  agreement  between  Roe  and  the 
defendant,  to  obtain  money  from  the  bank, 
but  with  intent  to  return  it  again."  This, 
however,  is  no  answer  to  the  substance  of  the 
charge,  which  was  the  unlawful  and  fraud- 
ulent intent  to  procure  money  from  the  bank. 
That  finding  leaves  the  truth  or  falsity  of  the 
accusation  in  equal  uncertainty.  The  intent, 
afterwards,  to  return  the  money,  might  con- 
sist equally  with  a  fraudulent  or  an  innocent 
intent  to  procure  the  money,  in  the  first 
instance.1  This  finding  was,  therefore,  so 
imperfect,  that  had  it  been  received,  the  court 
could  not  have  given  judgment  upon  it, 
and  would  have  been  obliged  to  award  a 
venire  de  now.  The  jury  ought  to  have  found 
either  a  special  verdict,  stating  the  facts  at 
large,  and  leaving  the  law  to  the  court,  or  by 
a  general  verdict  they  ought  to  have  affirmed 
or  negatived  the  charge  of  a  fraudulent  in- 
tent. 

312*1  *I  am  satisfied  that  this  was  no  ver- 
dict of  acquittal.  If  it  had  any  operation,  it 
would  be  against  the  defendant  ;  for,  in  answer 
to  the  indictment,  the  jury  have  found  the 
fact  that  the  defendant  and  Roe  did  agree 
together  to  obtain  money  from  the  bank,  and 
they  have  not  negatived  the  fraudulent  intent. 

We  are  of  opinion,  therefore,  on  all  the 
points,  that  the  defendant  ought  not  to  be 
discharged.2 

Motion  denied. 

Extended— 18  Johns.,  303. 

Cited  in— 9  Cow.,  606 ;  13  Wend.,  56 ;  15  Wend.,  371 ; 
18  Hun,  383 ;  48  Ho w.  Pr.,  545 ;  3  Park.,  682, 3  Park.,  43 ; 

4  Park.,  533 ;  1  Wheel.,  174 ;  5  Daly,  492 ;  6  Daly,  194; 

5  City  H.  Rec.,  101, 104;  3  Cranch  C.  C.,  576 ;  2  Sum., 
47 ;  4  Wash.,  408 ;  7  Otto,  526 ;  40  Wis.,  33 ;  47  Wis.,  543 ; 
10  Mich.,  245. 


JENKINS  v.  PEPOON. 

1.  Action  on  Judgment — Oircuit  Court — United 
States — Plea —  Writ  of  Error — Demurrer.  2. 
Plea —  Writ  of  Error — Abatement — Bar — Suf- 
ficiency of—  Supersedeas. 

To  an  action  of  debt  on  a  judgment  in  the  Cir- 
cuit Court  of  the  United  States  for  the  District  of 

1. — If  a  person  do  an  act,  the  probable  conse- 
quence of  which  is  to  defraud,  it  will,  in  contem- 
plation of  law,  constitute  a  fraudulent  intent.  (Ar- 
guendo,  3  Term  Rep.,  176.) 

2.— See  State  v.  Woodruff,  2  Day's  Cases  in  Error, 
504. 

JOHNSON'S  CASES,  2. 


Massachusetts,  the  defendant  pleaded  that  the 
record  of  the  judgment  had  been  removed  by  writ 
of  error,  according  to  law,  into  the  Supreme  Court 
of  the  United  States,  wherefore  he  prayed  judg- 
ment, &c.  On  demurrer,  the  plea  was  held  bad. 

A  writ  of  error  pending  may  be  pleaded  in  abate- 
ment, to  a  suit  on  the  judgment;  but  the  plea 
must  be  drawn  with  precision,  and  conclude 
clearly,  in  abatement,  and  not  in  bar.  The  plea 
must  also  state  that  the  writ  of  error  was  brought 
bef  ore  the  action  was  commenced  on  the  judgment, 
and  must  show  all  those  steps  taken,  which  are  re- 
quired by  law,  to  make  it  a  aupersedeas :  as,  in  the 
present  case,  that  a  copy  of  the  writ  of  error,  for 
the  advene  party,  had  been  lodged  in  the  clerk's 
office  within  ten  days  after  the  judgment  was 
rendered. 

Citations— Dy.,  32,  pi.  5;  L.  Raym.,  100;  3Bac.  Ahr., 
211;  Carth.,  1;  ILd.Raym.,  47;  Skin,  590;  1  Lilly. 
Ent.,  11 ;  13  Mod.,  113 ;  3  Term.  R.,  186. 

This  was  an  action  of  debt,  on  a  judgment 
obtained  in  the  Circuit  Court  of  the  United 
States  for  the  District  of  Massachusetts. 

The  plea  stated  that  the  record  of  the  judg- 
ment was  removed  into  the  Supreme  Court  of 
the  United  States  by  writ  of  error,  according 
to  law,  wherefore  the  defendant  prayed  judg- 
ment, &c.  To  this  plea  there  was  a  general 
demurrer  and  joinder. 

Mr.  Champlin  for  the  plaintiff. 
Mr.  Riggs,  contra. 

KENT,  J.,  delivered  the  opinion  of  the  court: 
The  ancient  authorities  lay  it  down  as  law 
that  a  writ  of  *error  is  no  supersedeas  [*3 1 3 
to  an  action  of  debt,  on  a  judgment.  (Dy., 
32,  pi.  5;  T.  Raym.,  100;  2  Bac.  Abr.,  211, 
and  the  authorities  there  cited.)  But  it  has 
since  been  otherwise  determined,  and  seems 
now  to  be  settled  that  a  writ  of  error  pending 
may  be  pleaded  in  abatement,  though  it  may 
not  be  pleaded  in  bar,  to  a  suit  on  the  judg- 
ment. (Carth.,  1;  1  Ld.  Raym.,  47;  Skin., 
590  ;  1  Lilly's  Entr.,  11.) 

The  plea,  however,  in  the  present  case,  is 
in  several  respects  bad.  It  does  not  conclude, 
either  in  abatement  or  in  bar.  A  plea  in 
abatement  is  to  be  known  by  its  conclusion 
(10  Mod. ,  112),  and  requires  great  precision; 
but  it  is  impossible  to  tell  whether  this  was 
intended  as  a  plea  in  abatement  or  in  bar, 
though,  perhaps,  this  objection  is  not  good  but 
on  a  special  demurrer.  (3  Term  Rep.,  186.)^ 
The  plea  does  not  state  that  the  writ  of  error 
was  brought  prior  to  the  commencement  of 
the  present  suit,  which  is  an  essential  aver- 
ment to  render  a  plea  of  this  kind  good. 
(Carth.,  1;  1  Lilly's  Ent.,  11.)  Nor  does  it 
state  the  requisite  steps  taken  to  render  a 
writ  of  error  a  supersedeas,  even  to  an  execu- 
tion on  the  judgment,  under  the  act  of  Con- 
gress, which  says  that  a  writ  of  error  is  no 
supersedeas  to  an  execution,  unless  a  copy  of 
it  be  lodged  for  the  adverse  party,  in  "the 
clerk's  office,  where  the  record  remains, 
within  ten  days  after  judgment  rendered. 
And,  if  it  be  no  supersedeas  to  an  execution  on 
the  judgment,  there  is  no  reason  why  it  should 
abate  an  action  of  debt  on  the  judgment.  So, 
that  on  either  of  the  two  last  grounds,  we  are 
of  opinion  that  the  plea  is  bad,  and  that  judg- 
ment must  be  rendered  for  the  plaintiff. 

Judgment  for  the  plaintiff. 

Cited  in— 13  Wend.,  516 ;  19  Wend.,  222. 

527 


314 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


.314*]  *  JACKSON,  ex  dem.  BEACH,  ET  AI,., 

v. 
DURLAND. 

\  WUl— Devisee — Husband  of,  as  Witness — 
Competency— Devise  Void.  2.  Id.— Id.— To 
Wife — Use  far  Life — Death  of  First  Remain- 
der Man — Survivor* — Succession — Vested  In- 
terest— In  Possession.  3.  Id. — Id. — Particu- 
lar Interest — Failure  of  Condition  Precedent — 
Remainder  Man — Limitation — Condition  Sub- 
sequent. 

Where  a  husband  is  witness  to  a  will  containing 
a  devise  to  his  wife,  such  devise  is  void  and  the  hus- 
band is  a  competent  witness.  A  devised  lands  to 
the  use  of  his  wife  for  life,  and  to  B  in  fee,  and  if 
he  died  bef ore  arriving  at  full  age,  then  to  the  sur- 
viving brothers  of  B  in  succession,  if  of  full  age, 
then  to  the  first  son  of  his  niece  M,  and  his  heirs 
and  assigns  forever,  and  in  default  of  such  issue, 
remainder  over  to  his  own  right  heirs ;  and  directed 
that  in  case  his  wife  should  die  before  B  or  his 
surviving  brother  should  be  of  age,  then  his  niece 
M  should  take  posession  of  the  lands  until  his  heir 
should  be  of  age.  The  wife  and  niece  of  the  tes- 
tator both  died  before  B  came  of  age.  It  was 
held  that  B  had  a  vested  interest  in  possession,  on 
the  death  of  the  widow,  and  that  the  devise  to  the 
niece  failed.  Where  the  whole  property  is  devised 
with  a  particular  interest  given  out  of  it,  it  oper- 
ates by  way  of  exception. 

Where  an  absolute  property  is  given,  and  a  par- 
ticular interest  is  given,  in  the  mean  time,  as  until  the 
devisee  comes  of  age,  this  will  not  operate  as  a  con- 
dition precedent,  but  as  a  description  of  the  time 
when  the  remainderman  is  to  take  possession. 
Where  a  precedent  limitation,  by  any  means  what- 
ever, fails,  the  subsequent  limitation  takes  effect. 

Citation— 1  Johns.  Cases,  163;  2  Mod.,  293;  Cro. 
Eliz.,  878 ;  Cases  Temp.  Talbot,  51,  52 ;  1  Burr.,  228 ; 
3  Term  R.,  41 ;  1  Eq.  Cas.  Abr.,  195 ;  Willes  Rep.,  293, 
301 ;  1  Burr.,  233 ;  1  Vesey,  422 ;  2  Bro.  C.  C.,  396,  397 ; 
3  Bro.  C.  C..  397. 

This  was  an  action  of  ejectment  for  land 
in  Goshen,  in  the  County  of  Orange. 

The  following  facts  appeared  from  the 
special  verdict,  found  at  the  circuit. 

Thomas  Beach,  being  seized  of  the  premises 
in  question,  on  the  18th  May,  1795,  made  his 
last  will  and  testament,  as  follows  :  "I  give 
my  loving  wife,  Martha  Beach,  the  use  and 
benefit  of  the  house  I  now  live  in,  and  all  my 
lands  and  tenements,  lying  in  the  County  of 
Orange,  aforesaid,  during  her  natural  life. 
And  I  do  also  give  her,  &c.  "  I  give  and 
*  devise  to  Thomas  Durland,  son  of  Joseph 
Durland,  and  to  his  heirs  and  assigns  forever, 
all  the  lands  that  I  am  seized  of  at  my  death, 
lying  in  the  County  of  Orange,  or  elsewhere; 
but  if  he  shall  not  live  to  be  of  age,  then  I 
give  the  same,  in  like  manner,  to  his  surviv- 
ing brother,  James  Durland  ;  but  if  James 
shall  die  before  of  age,  then  I  give  the  same, 
in  like  manner,  to  his  surviving  brother 
Charles  ;but  if  Charles  should  die  before  of  age, 
then  I  give  the  same  to  the  first  surviving  law- 
ful son,  born  of  my  niece,  Martha  Durland, 
and  to  his  heirs  and  assigns,  forever;  for 
default  of  such  issue,  then  such  estate  to  re 
main  to  my  own  right  heirs  forever.  If  •  my 
said  wife  shall  die  before  the  said  Thomas 
Durland,  or  before  his  survivor  be  of  age  to 
take  possession  of  the  said  lands,  in  that  case 
I  order  that  my  said  niece,  Martha  Durland, 
shall  have  the  use  and  benefit  of  my  said 
lands,  until  my  heir  shall  be  of  age  to  take 
possession."  One  of  the  subscribing  wit 
528 


nesses  to  the  will  was  Joseph  Durland,  the 
defendant,  who  was,  at  the  time,  married  to 
the  testator's  niece,  *  Martha  Durland.  315*] 
The  testator  died  the  22d  May,  1795,  leaving 
his  wife,  but  no  child  or  parent;  leaving  also 
two  brothers  and  three  sisters,  besides  his 
niece,  Martha,  and  several  nephews  and 
nieces,  children  of  his  deceased  brothers  and 
sisters.  Thomas  Durland  is  still  living,  under 
age.  Martha  Beach,  the  widow  of  the  testa 
tor.  died  the  27th  October,  1795  ;  and  his 
niece,  Martha,  also  died  the  9th  December 
following,  and  prior  to  the  time  of  the  demise 
laid  in  the  declaration.  The  defendant, 
Joseph  Durland,  and  his  wife,  lived  on  the 
premises  with  the  testator,  until  his  death, 
and  with  the  widow,  until  her  death,  and  the 
defendant  has  since  remained  in  possession. 

The  lessors  of  the  plaintiff  claim  two  third 
parts  of  the  premises  as  heirs  at  law. 

The  counsel  for  the  plaintiff  contended:  1. 
That  the  devise  was  void  in  toto,  or  at  least  so 
far  as  respected  the  devise  to  Martha  ;  because 
her  husband  was  one  of  the  witnesses  to  the 
will. 

2.  That  upon  the  death  of  the  widow  of  the 
testator,  the  estate  descended,  ad  interim,  to 
the  heirs  at  law,  until  the  arrival  of  Thomas 
Durland  to  full  age. 

Messrs.  8.  Jones,  Jr.,  and  Evertson  for  the 
plaintiff. 
Messrs.  Harison  and  Troup  contra. 

Per  Curiam.  The  first  point  comes  within 
the  decision  of  this  court  in  the  case  of  Jackson, 
ex.  dem.  Cooder,  et  al.  v.  Wood.  (See  1  Johns. 
Cas.,  163.)  It  was  decided  in  that  case  that  a 
devise  to  the  husband,  in  a  will  to  which  the 
wife  was  a  subscribing  witness,  was  void  by 
the  statute,  equally  as  if  the  husband  himself 
had  attested  the  will;  and  that  this  arose  from 
the  unity  of  husband  and  wife,  who  were  re- 
garded in  law  as  one  person  ;  and  a  devise 
to  the  one  was  considered,  in  respect  to  the 
competency  to  attest,  as  a  *devise  to  [*316 
the  other.  *  The  devise  to  the  husband  being 
void,  the  wife  was  held  to  be  a  competent 
witness. 

So,  in  the  present  case,  the  devise  to  Martha, 
the  niece,  her  husband  being  a  witness,  is 
void,  and  her  husband  a  competent  witness  to 
the  will,  which  is  valid,  as  to  all  its  other  dis- 
positions. 

The  only  real  question,  then,  in  the  present 
case,  is  whether,  upon  the  just  construction  of 
the  will,  Thomas  Durland  had  a  vested  inter 
est,  before  he  arrived  at  full  age,  so  as  to  pre- 
vent the  existence  of  any  interim  estate. 

Putting  out  of  view  the  devise  to  Martha, 
the  niece,  the  will  contains  a  devise  of  the 
premises  to  the  widow  for  life  ;  and  then  a  de- 
vise of  the  same  to  Thomas,  in  fee,  with  a 
remainder  over,  in  case  he  should  not  live  to 
be  of  age.  This  is,  obviously,  creating  a 
vested  remainder  in  Thomas,  and  if  the  will 
had  stopped  here,  there  could  be  no  room  to 
doubt.  The  only  difficulty  that  can  arise,  is 
upon  that  clause  of  the  will  containing  the 
devise  to  the  niece  of  the  use  of  the  land,  after 
the  death  of  the  widow,  until  Thomas  should 
be  of  age  to  take  possession  ;  by  which  it  would 
seem  to  be  the  intent  of  the  testator,  that 
JOHNSON'S  CASES,  2. 


1801 


ALEXANDER  v.  BYRON. 


316 


Thomas  should  not  take  possession  until  he 
was  of  age.  If  that  intent  be  manifest,  and  is 
to  govern,  then,  as  no  valid  disposition  has 
toeen  made  in  the  mean  time,  the  estate  must 
-descend  to  the  heirs,  until  the  contingency 
happens.  (2  Mod.,  292;  Cro.  Eliz.,878;  Cases 
.temp.  Talbot,  51,  52.)  But  this  case  is  analo- 
gous to  those  of  Haywood  v.  Whitby  and 
Wetdonv.  Lea,.  (1  Burr.,  228;  3  Term  Rep., 
41;  1  Eq.  Cases  Abr.,  195.)  There  is  not  a 
•condition  precedent,  resting  in  contingency, 
•but  an  absolute  interest,  vested  in  Thomas  ; 
.und  the  will  only  denotes  the  time  when  the 
remainder  is  to  take  effect  in  possession. 
-(Willes'sRep.,  293,  301.)  The  devise  to  the 
•niece  was  an  exception  out  of  the  absolute 
property  devised  to  Thomas. 

In  the  case  of  Haywood,  v.  Whitby  ( 1  Burr., 
233 ),  Lord  Mansfield  said  it  was  a  general  rule 
317*]  that  where  the  *whole  property  was 
devised,  with  a  particular  interest  given  out 
of  it,  it  operates  by  way  of  exception  out 
of  the  absolute  property;  and  that  where  an 
absolute  property  is  given,  and  a  particular 
interest  is  given  in  the  mean  time,  as  until  the 
devisee  shall  come  of  age,  this  should  not 
•operate  as  a  condition  precedent,  but  as  a  de- 
scription of  the  time  when  the  remainderman 
:is  to  take  possession.  The  rule  in  the  con- 
struction of  these  conditional  limitations,  as 
laid  down  by  Lord  Hardwicke  (1  Vesey,  422; 
2  Bro.  C.  C.,  396,  397),  is  the  just  and  preva- 
lent one — that  if  the  precedent  limitation  (as 
in  the  present  instance,  the  devise  to  the 
niece)  is  out  of  the  case,  by  what  means  soever, 
the  subsequent  limitation  takes  place.  This 
rule  was  adopted  by  Lord  Thurlow  in  the  case 
of  Doe  v.  Brebant.  (3  Bro.  C.  C.,  397.)  Here 
the  devise  to  the  niece  failed.  Thomas  had  a 
vested  interest  in  possession  on  the  death  of 
the  widow,  and  the  intent  of  the  testator  was 
merely  to  provide  that  the  mother  of  Thomas 
should  be  trustee,  to  take  the  profits  after  the 
death  of  his  wife,  and  until  Thomas  was  of 
age  to  take  possession,  and  enjoy  and  act  for 
himself.  Thomas  was  the  object  of  the  testa- 
tor's bequest,  and  he  never  meant  that  the  re- 
mainder should  be  contingent  until  he  came 
of  age,  so  that  if  he  married  in  the  mean  time 
and  died,  his  children  could  not  inherit.  We 
are  of  opinion,  therefore,  that  the  whole  legal 
estate  vested  in  Thomas  on  the  death  of  the 
widow,  and  that  the  heirs-at-law  have  no  title 
to  the  premises. 

Judgment  for  tlie  defendant. 
Cited  In— 12  Hun,  622 ;  106  Mass.,  475. 


318*]*ALEXANDER  «.  BYRON. 

Witness — Regularly  Subpoenad — Failure  to  Ap- 
pear— Admission  of — After  Case  Closed— 
— Discretionary — New  Trial  Denied. 

Where  a  witness, who  was  regularly  subpoenaed  by 
the  defendant,  was  out  of  the  way  when  the  trial 
of  the  cause  commenced,  and  did  not  appear  in 
court  until  after  the  testimony  on  both  sides  had 
closed,  and  the  counsel  for  the  defendant  had  pro- 
ceeded to  sum  up  the  evidence,  and  was  then  offered 
to  be  examined,  but  was  refused  by  the  judge,  and 
a  verdict  was  found  for  the  plaintiff ;  it  was  held 

.JOHNSON'S  CASES,  2.        N.  Y.  REP.,  BOOK  1. 


that  the  admission  of  the  witness  offered  was  alto- 
gether discretionary  with  the  judge,  who  acted 
reasonably  in  refusing  to  admit  him,  under  the  cir- 
cumstances, and  that  a  new  trial  ought  not  to  be 
granted. 

Citations— 2  Salk.,  645,  753 ;  6  Mod.,  222. 

THIS  was  an  action  of  atummpsit  on  two 
promissory  notes.  Plea  non  assumpirit. 
At  the  trial  the  defendant  set  up  the  defense 
of  usury. 

The  trial  commenced  on  Thursday,  and 
lasted  till  Friday  evening,  and  manv  witnesses 
were  examined  on  both  sides,  and  a  verdict 
was  found  for  the  plaintiff. 

A  motion  was  made  on  the  part  of  the  de- 
fendant for  a  new  trial,  on  the  ground  of  a 
refusal  by  the  court  to  permit  a  witness  offered 
by  the  defendant  to  be  examined. 

The  witness  was  refused  under  the  following 
circumstances:  he  had  been  subpoenaed  long 
before  the  trial  of  the  cause :  he  resided  on 
York  island,  nine  miles  from  the  city,  and  had 
a  counting-house  in  the  city,  where  he  usually 
attended  to  business.  After  being  subpoenaed, 
the  witness  went  to  Philadelphia,  and  returned 
on  the  day  the  trial  began,  about  one  o'clock 
p.  M.,  during  the  trial,  and  appeared  in 
court  in  the  afternoon  of  the  same  day,  after 
the  testimony  on  both  sides  had  closed,  and 
the  counsel  for  the  defendant  declared  they 
had  done  with  the  examination  of  witnesses, 
and  had  proceeded  in  summing  up  the  cause. 
The  witness  was  then  offered,  by  the  defend- 
ant, to  prove  positive  confessions  of  the  plaint- 
iff that  he  had  never  let  out  money  on  legal 
interest  only.  The  counsel  for  the  plaintiff 
objected  to  his  admission,  in  that  stage  of  the 
cause,  and  because  the  plaintiff  and  all  his 
witnesses  had  left  the  court,  and  could  not  be 
procured  in  time  for  a  new  discussion  of 
facts.  The  witness  was  according^  refused 
by  the  judge. 

Mr.  Hamilton  for  the  defendant. 
Messrs.  Harison,  B.  Livingston  and    Troup, 
contra. 

*KENT,  J.  This  is  not  a  question  on  [*3 1 9 
the  propriety  of  the  verdict,  in  respect  to  the 
evidence  given.  The  facts  are  not  stated  in 
the  case,  nor  any  dissatisfaction-  alleged  with 
the  verdict,  upon  the  evidence  received.  We, 
therefore,  cannot  say  or  intend  that  the  verdict 
is  against  evidence ;  nor  can  we  say  how  far 
this  general  confession  of  the  plaintiff,  if  it 
had  been  received,  would  have  varied  the 
decision,  because  we  have  no  lights  by  which 
the  testimony  can  be  compared. 

The  question  is,  then,  simply,  whether  it 
was  the  duty  of  the  judge,  under  the  circum- 
stances of  the  case,  to  have  received  the  wit- 
ness at  the  time  he  was  offered? 

It  can  never  be  claimed  by  either  party,  at 
trial,  as  a  matter  of  strict  right,  to  open  the 
cause  to  proof,  after  full  opportunity  has  been 
given  to  each  side  to  be  heard,  and  the  testi- 
mony has  been  regularly,  and  by  mutual  con- 
sent, closed.  It  was,  therefore,  properly  ad- 
mitted, iipon  the  argument  of  this  motion, 
that  the  subsequent  admission  of  testimony 
must  rest  upon  the  discretion  of  the  court, 
duly  exercised,  according  to  the  circumstances 

34  529 


319 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


of  the  case.  The  parties  must  come  to  trial 
prepared,  at  their  peril ;  and  if  either  party 
has  any  good  excuse  for  not  being  prepared, 
he  is  entitled,  of  right,  to  a  postponement  of 
the  trial. 

It  has,  therefore,  repeatedly  been  held  (2 
Salk.,  645,  753;  6  Mod.,  222),  that  the  subse- 
quent allegation  of  a  party  that  he  was  not 
prepared,  is  no  reason  for  granting  a  new  trial, 
unless  it  be  founded  on  the  discovery  of  testi- 
mony of  which  the  party  was  not,  at  the 
time,  apprized. 

In  the  present  case,  the  defendant  was  apprized 
of  the  testimony  of  the  absent  witness,  for  he 
had  subpoenaed  him,  and  it  seems  he  was  will- 
ing to  hazard  the  experiment  of  a  defense 
without  him.  It  is  not  stated  in  the  case, 
although  it  is  probably  the  fact,  and  so  I  con- 
sider it,  that  the  defendant  did  not  know  the 
32O*]  witness  had  arrived  *from  Philadelphia, 
until  he  came  into  court  on  the  second  day. 
But  when  he  was  offered,  a  long  examination 
on  each  side  had  closed,  and  the  counsel  were 
commenting  on  the  proofs.  If,  however,  the 
plaintiff  and  his  witnesses  had  been  present,  I 
think  it  would  been  reasonable  to  have  exam- 
ined the  witness.  No  injury  to  the  plaintiff 
could  have  resulted.  But  after  the  counsel 
for  the  defendant  had  declared  they  had  done 
with  the  examination  of  witnesses,  and  the 
plaintiff  and  his  witnesses  had,  in  consequence 
of  it,  left  the  court,  it  would  then  have  been 
unreasonable  to  have  received  the  witness,  un- 
less the  plaintiff  with  his  witnesses,  had  been 
recalled.  I  do  not  think  that  witnesses  are 
bound  to  stay,  after  the  parties  have  declared 
they  have  done  with  the  proofs  ;  for  this  is 
equivalent  to  a  discharge  of  the  parties.  If  the 
witness  had  been  received,  and  had  testified 
what  he  was  offered  to  prove,  it  might  have 
made  a  decisive  change  in  the  weight  of  the 
proofs.  It  would,  in  fact,  have  been  a  fresh 
trial  of  the  cause ;  and  unless  the  plaintiff  had 
full  opportunity  to  have  been  present  with  his 
witnesses,  to  have  repelled  the  testimony,  if 
in  his  power,  he  would  have  just  cause  to  com- 
plain, on  the  ground  of  surprise,  and  it  would, 
perhaps,  have  been  sufficient  cause  for  a  new 
trial,  if  the  verdict,  under  such  circumstances, 
had  passed  against  them. 

I  cannot,  therefore,  say,  that  in  the  present 
case  the  judge  has  not  exercised  a  due  dis- 
cretion. If  the  question  was  now  for  a  new 
trial,  on  the  merits  of  the  case,  the  facts  stated 
might  probably  have  their  influence  upon  the 
determination  ;  but  as  the  merits  are  not  before 
us,  we  are  confined  by  the  case  to  the  simple 
question,  whether,  under  the  circumstances, 
herein  stated,  the  judge  was  bound,  in  sound 
discretion,  to  have  received  the  witness. 

I  am  of  opinion  that  the  motion  ought  to 
be  denied. 

#21*]  *LANSING,  Ch.  J.,  and  LEWIS,  J., 
were  of  the  same  opinion. 

RADCI.IFF,  J.,  was  absent. 
Mule  granted.1 

Distinguished— 6  Wend,,  281. 

Cited  in— 9  Johns.,  78 ;  9  Cow.,  68 ;  5  Denio,  288 ;  1 
Johns.  Ch.,  433;  31  How.  Pr.,  463;  13  Abb.,  3. 

1.— See  Edwards  et.  al.  v.  Sherratt,  I  East,  604. 
530 


JACKSON,  ex  dem.  POTTER  ET  AI,., 


SISSON. 

1.  Patent  —  For  Lands  —  "  Three  Persons  and 
Associates"  —  Tenants  in  Common  —  Legal  Es- 
tate. 2.  Ejectment  —  Equitable  Title—Legal 
Estate 

A  patent  for  certain  lands  was  granted  to  A,  B 
and  C  for  themselves  and  their  associates,  being-  a 
settlement  of  Friends  on  the  west  side  of  Seneca 
Lake,  to  have  and  to  hold  the  same  to  A,  B  and  C,  as 
tenants  in  common,  and  their  associates  ;  it  was  held 
that  no  legal  estate  vested,  except  in  the  three  per- 
sons named  in  the  patent. 

An  equitable  title  cannot  prevail  in  ejectment, 
against  the  legal  estate,  especially  if  such  equitable 
estate  be  dubious. 


(note) ;  2  Term  R.  684 ;  7  Id.,  43,  47  ;  8  Id.,  2, 122. 


s  an  action  of  ejectment  for  lands  in 
JL  the  town  of  Jerusalem,  in  the  county  of 
Ontario. 

The  declaration  stated,  1.  A  demise,  by 
William  Potter,  for  lot  No.  16,  in  the  gore  land 
granted  by  letters  patent  to  James  Parker, 
William  Potter  and  Thomas  Hathaway,  and 
their  associates ;  2.  A  demise  by  the  above 
three  persons  and  five  others. 

On  the  trial  at  the  Ontario  circuit,  in  June, 
1800,  the  defendant  admitted  himself  to  be  in 
possession  of  lot  No.  16,  and  the  lessor  of  the 
plaintiffs  produced  the  letters  patent  for  the 
premises  in  question,  bearing  date  the  10th 
day  of  October,  1792,  by  which  the  same  were 
granted,  by  metes  and  bounds,  to  James  Parker, 
William  Potter,  and  Thomas  Hathaway,  for 
themselves  and  their  associates,  being  a  settle- 
ment of  Friends,  on  the  west  side  of  the  Seneca 
Lake  ;  to  have  and  to  hold  the  same  unto  the 
said  three  persons,  as  tenants  in  common,  and 
not  as  joint  tenants,  for  themselves  and  their 
associates,  as  aforesaid,  in  fee. 

The  plaintiff  then  produced  a  deed  from 
James  Parker  and  Thomas  Hathaway,  bearing 
date  the  16th  August,*  1793,  con-  [*322 
veying  to  William  Potter,  in  fee,  for  a  valuable 
consideration,  lot  No.  16,  aforesaid. 

The  defendant  then  offered  sundry  letters 
from  James,  Parker,  one  of  the  patentees 
aforesaid,  between  the  17th  October,  1787,  and 
the  4th  March,  1788,  addressed  generally  to 
Universal  Friends,  and  relating  to  the  settle- 
ment of  the  Friends  on  the  west  side  of  the 
Seneca  Lake.  He  also  offered  three  petitions 
from  James  Parker,  in  the  name  of  the  settle- 
ment, and  addressed  to  the  commissioners  of 
the  land  office,  bearing  date  in  April  and  May, 
1791,  respecting  the  purchase  of  lands  of 
which  the  premises  are  a  part,  and  an  accept- 
ance of  his  proposal  by  the  commissioners  of 
the  land  office,  at  a  meeting  held  on  the  9th 
May,  1791. 

The  contract  with  the  commissioners  was 
fulfilled  by  the  society,  of  which  James  Parker 
appeared  to  be  the  principal  member,  on  the 
29th  February,  1792.  By  another  letter  of 
James  Parker,  addressed  to  the  commissioners 
on  the  15th  September,  1792,  he  stated  his 
former  contract  with  the  commissioners  for 
12,000  acres  of  land,  for  himself  and  his  asso- 
JOHNSON'S  CASES,  3. 


1801 


JACKSON,  EX  DEM.  POTTEK,  ET  AL.  v.  SISSON. 


322 


ciates,  and  named  the  other  two  patentees,  and 
the  present  defendant. 

The  Community  of  Friends  met  on  the  27th 
October,  1791,  among  whom  was  William  Pot- 
ter, one  of  the  lessors  of  the  plaintiff.  They 
came  to  sundry  resolutions,  by  which  they 
appointed  the  other  two  patentees,  above 
named,  a  committee,  to  receive  the  contract 
from  Parker,  and  to  indemnify  him  for  his 
contract  with  the  commissioners  of  the  land 
office,  and  compensate  him  for  his  trouble  ; 
and  directed  the  members  of  the  community  to 
pay  their  proportion  of  the  expense  of  the 
lands,  and  that  they  should  receive  land  in 
proportion  to  their  advances. 

The  defendant  paid  $20  to  William  Potter, 
on  the  22d  November,  1791,  towards  his  pro- 
portion of  the  purchase  money  of  the  lands  ; 
and  he  paid,  at  another  time,  $7.50.  At  the 
323*]  time  the  letters  *patent  issued,  there 
was  a  settlement  of  Friends  on  the  land  con- 
tained in  the  patent ;  and  the  defendant  was 
one  of  that  society. 

There  were  then  offered  in  evidence,  on  the 
part  of  the  plaintiff,  sundry  resolutions  of  the 
society,  and  among  others,  a  resolution  made 
at  a  meeting  on  the  15th  August,  1793,  at 
which  the  defendant  was  present,  and  by 
which  it  was  resolved  that  the  lands  should  be 
divided  into  twelve  parts ;  and  the  same  was 
done  accordingly,  and  ballots  were  drawn, 
with  the  approbation  of  the  meeting,  by  which 
lot  No.  16,  being  the  premises  in  question,  was 
included  in  class  No.  10,  and  fell  to  William 
Potter,  one  of  the  lessors  of  the  plaintiff;  and 
the  defendant  had  allotted  to  him  an  interest 
in  class  No.  5,  containing  two  lots.  The  de- 
fendant advanced  only  $37.50,  and  the  said 
William  Potter  about  $2,000,  or  above  a  moiety 
of  the  whole  purchase-money. 

Upon  these  facts,  a  verdict  was  taken  for 
the  plaintiff,  by  consent,  subject  to  the  opinion 
of  the  court,  as  to  the  competency  and  suffi- 
ciency of  the  evidence  above  stated. 

Mr.  Emott  for  the  plaintiff. 
Mr.  Riggs,  contra. 

KENT,  J.  I  shall  confine  myself  to  one  or 
two  points,  which  appear  to  be  sufficient  to 
determine  the  cause. 

There  was  no  legal  estate  created  by  the 
patent,  but  what. vested  in  the  three  patentees 
named.  The  description  of  the  association, 
by  the  words,  ' '  a  settlement  of  Friends,  on 
the  west  side  6f  the  Seneca  Lake,"  was  too 
vague  and  uncertain  to  constitute  a  competent 
grantee  at  law,  or  a  cestui  que  use,  whose  estate 
the  statute  would  transfer  into  possession. 
(Saunders  on  Uses,  63,  128.)  This  would  be 
like  a  grant  to  the  parishioners,  or  inhabitants 
324*]  *of  a  dale,  or  to  the  commoners  of 
such  a  waste,  or  to  the  churchwardens  of  a 
parish,  which  are  held  to  be  void  grants. 
(Shep.  Touch.,  235,  236.)  But  the  grant  from 
the  State  is  not  to  the  three  patentees  named 
and  to  their  associates.  It  is  to  James  Parker, 
William  Parker  and  Thomas  Hathaway,  for 
themselves  and  their  associates,  being  the  set- 
tlement aforesaid  ;  and  therefore,  from  the 
words  of  the  grant,  as  well  as  from  the  uncer- 
tainty of  the  description,  it  is  evident  the  asso- 
ciates had  only  an  interest  in  equity;  and  that 

JOHNSON'S  CASES,  2. 


Parker  and  the  others  were  vested  with  the 
legal  estate,  as  trustees  for  the  association. 

What,  then,  are  the  equitable  rights  of  the 
associates,  and  how  far  the  trust  has  been 
executed  by  the  grantees,  are  questions  that 
do  not  belong  to  this  court  to  decide,  nor  shall 
I  undertake  to  give  any  opinion  upon  them. 

A  court  of  law  is  incompetent  to  settle  the 
complicated  and  interfering  interests  of  the 
parties  to  the  trust.  Our  duty  is,  therefore, 
to  look  to  the  legal  estate,  and  to  give  it  effect. 

But  it  is  said  that  this  court  ought  to  look 
so  far  to  the  equitable  rights  of  the  parties  as 
to  protect  a  cestui  que  trust,  in  possession, 
against  the  legal  estate  of  his  trustee. 

There  are  several  cases  in  which  courts  of 
law  have  recognized  and  helped  the  equitable 
estate  of  a  party;  but  in  those  cases  the  equit- 
able interest  was  clear  and  precise.  In  the 
case  of  Lade  v.  Holford  (Bull.  N.  P.,  110),  the 
principle  decided  by  Lord  Mansfield  was  that 
where  the  beneficial  occupation  of  an  estate 
may  possibly  suppose  a  conveyance  to  the  per- 
son equitably  entitled  to  it,  the  jury  may  be 
directed  to  presume  one.  This  doctrine,  how- 
ever, proceeds  on  the  ground  of  the  conclusive 
efficacy  of  the  legal  estate  in  a  court  of  law; 
and  it  has  accordingly  received  the  subsequent, 
approbation  of  Lord  Kenyon  (2  Term.  Rep. , 
696 ;  8  Term  Rep.,  122),  who  has  taken  great 
pains  to  preserve  unimpaired  the  marked 
boundaries  between  the  courts  of  law  and  of 
equity.  In  the  *case  of  Armstrong,  [*325 
ex  dem.  Tinker,  v.  Pierce  (3  Burr.,  1901),  the 
Court  of  King's  Bench  looked  upon  it  as  a  set- 
tled point  that  the  formal  title  of  a  trustee 
should  not,  in  an  ejectment,  be  set  up  against 
the  cestui  que  trust,  because,  from  the  nature 
of  the  two  rights,  the  cestui  que  trust  is  to  have 
the  possession.  This  position  does  not  apply 
to  the  present  case,  because  it  does  not  appear 
that  the  defendant  was  to  have  possession  of 
the  premises  in  question.  And,  besides,  the 
position  is  too  general.  It  requires,  and 
always  has  received  qualification,  in  its  appli- 
cation to  the  particular  cases;  for  the  Court  of 
King's  Bench  afterwards,  in  the  cause  of 
Goodtitle,  ex  dem.  Estwick,  v.  Way  (1  Term  Rep., 
737),  observed  that  the  only  cases  where  the 
principle  had  been  adopted  were  such  in  which 
the  lessor  of  the  plaintiff  had  been  clearly  and 
unequivocally  a  trustee  for  the  defendant;  and 
it  would  have  been,  of  coiirse,  for  the  Court 
of  Chancery  to  have  decreed  a  conveyance  to 
him  ;  and  in  that  case,  as  it  was  at  least  a 
doubtful  equity  which  the  defendant  set  up 
against  a  legal  title,  the  court  would  not  inter- 
fere. 

Again,  in  the  case  of  Doe,  ex  dem.  Bris- 
tow,  v.  Pegge  (1  Term  Rep.,  758,  in  note), 
it  was  decided  that  where  a  legal  term  was 
created  for  a  particular  purpose,  if  the  pur- 
pose was  satisfied,  or  if  it  was  unsatisfied  and 
not  connected  with  the  litigating  parties,  it 
should  never  be  set  up  against  them  in  eject- 
ment. 

It  is  obvious  that  this  case  does  not  apply, 
for  here  the  trust  itself  is  the  thing  in  litiga- 
tion, and  these  are  the  strongest  decisions  that 
have  regarded  and  given  effect  to  equitable 
titles,  in  an  action  of  ejectment.  Even  this 
latter  decision  has  since  been  receded  from, 
and  the  party  clothed  with  the  legal  estate,  has 

531 


825 


SUPREME  COURT,  STATE  OK  NEW  YORK. 


1801 


repeatedly  been  permitted  to  prevail  against 
any  equitable  title  (2  Term  Rep.,  684;  7  Term 
Rep.,  43,  47;  8  Term  Rep.,  2,  122);  and  the 
only  way  in  which  it  can  now  be  assisted  is, 
by  permitting  the  jury,  in  certain  cases,  to 
326*]  presume  the  *legal  estate  not  to  exist 
any  longer  out  of  the  cestui  que  trust. 

Whether  this  court  ought  to  follow  the 
former  or  the  latter  decision,  it  will  be  in  sea- 
son to  determine  when  the  question  arises. 
At  present,  it  is  sufficient  to  say  that  no  case 
goes  so  far  as  to  permit  an  equitable  claim,  so 
involved  and  dubious  as  the  present  one  which 
is  litigated  between  the  parties,  to  prevail 
against  the  legal  estate.1 

I  am  of  opinion,  therefore,  that  the  verdict 
for  the  plaintiff  ought  not  to  be  disturbed. 

LANSING,  Ch.  J.,  was  of  the  same  opinion. 

LEWIS,  J.,  was  of  opinion  that  a  good  estate 
in  law  was  vested  in  Parker  and  his  associates, 
under  the  patent,  according  to  the  description; 
but  he  agreed  that  the  plaintiff  was  entitled  to 
recover,  as  tenant  in  common. 

RADCLIFF,  J.,  was  absent. 
Judgment  for  the  plaintiff. 

Cited  in— 8  Johns.,  388,  488 ;  5  Barb.,  146 ;  72  Penn., 
314. 


327*]  *FOSTER  t>.  HOYT  AND  TOM. 

Marine  Insurance — Commissions  of  Master — 
Insured  in  Agents  Name — Total  Loss — Action 
— Against  Broker — Set-off — Agent's  Debt. 

A,  the  master  of  a  vessel,  directed  B  as  his  agent, 
to  get  his  commissions  as  master  insured,  and  C,  the 
broker,  had  the  policy  effected  in  the  name  of  B  on 
the  commissions  of  the  master,  who  was  named  in 
the  policy,  and  the  agency  of  B  was  known  to  the 
broker.  A  total  loss  naving  been  recovered  by  the 
broker,  A  brought  an  action  against  him  for  the 
amount  of  the  money  received ;  and  it  was  held 
that  the  broker  had  no  right  to  retain  it  for  a  debt 
due  to  him  from  B  the  agent. 

Citation— 7  Term  R.,  360. 

THIS  was  an  action  of  assumpsit  for  money 
had  and  received.     A  verdict  was  taken 
for  the  plaintiff  for  $500.72,  subject  to  the 
opinion  of  the  court,  on  a  case  stated. 

John  Saunders,  as  agent  of  the  plaintiff, 
employed  the  defendants,  who  are  insurance 
brokers,  to  effect  an  insurance  for  the  plaint- 
iff; on  his  commissions,  as  master  of  the  sloop 
Clermont,  on  a  voyage  from  New  Fields,  in 
Connecticut,  to  Martinique.  The  defendant 
accordingly  caused  an  insurance  to  be  made, 
by  a  policy,  dated  23d  April,  1799,  in  the 
name  of  Saunders;  but  on  the  captain's  com- 
missions on  goods,  on  the  voyage  above  men- 
tioned, and  the  plaintiff  was  specified  to  be 
the  master.  The  commissions  were  valued  at 
$600.  The  letter  of  the  plaintiff  to  his  agent, 
directing  the  insurance,  said,  it  was  in  part 
for  the  agent.  A  total  loss  ensued,  and  the 
agent  delivered  the  policy  to  the  defendants  to 
collect,  with  orders  to  pass  the  net  amount, 
when  received,  to  his  credit  with  them,  on 

1. — See  Jackson,  ex  dem.  Simmons  et  al.  v.  Chase 
2  Johns.  Rep.,  84) ;  Jackson,  ex  dem.  Smith  et  cU.v. 
Pierce,  2  Johns.  Rep.,  231 ;  5  East,  138. 

632 


condition  that  the  defendants  did  not  recover 
a  debt  due  the  agent,  and  which  they  were 
prosecuting  in  Connecticut,  towards  paying  a 
balance  due  them  from  the  agent,  and  if  they 
did  recover  the  debt,  &c.,  then  with  orders  to 
pay  the  net  amount  to  him. 

The  debt  was  recovered  by  the  defendants. 
When  the  agent  delivered 'the  policy  to  the 
defendants  to  collect,  the  plaintiff  owed  him 
$45.50,  on  book  account,  and  $200  by  a  prom- 
issory note.  The  note  the  agent  soon  after  passed 
away;  and  it  was  notorious,  at  the  time  of  the 
delivery  of  the  policy,  that  the  agent  was 
insolvent. 

The  defendants  recovered  for  a  total  loss  on 
the  policy,  the  net  amount  of  which  was  equal 
to  the  verdict  found,  *after  deducting  [*328 
their  charges,  and  the  book  debt  of  $45.50. 

The  balance  still  due  to  the  defendants  from 
the  agent,  is  equal  to  the  amount  of  the 
verdict,  and  the  question  is,  whether  thev  are 
entitled  to  retain  it  against  the  claim  of  the 
plaintiff. 

Messrs.    Troup  and  B.   Livingston    for    the 
plaintiff. 
Mr.  Hanson,  contra. 

KENT,  J.,  delivered  the  opinion  of  the  court: 
The  defendants  knew  Baunders  in  this  trans- 
action only  in  the  capacity  of  agent  for  the 
plaintiff,  whose  exclusive  interest  appeared 
evidently  on  the  face  of  the  policy.  This  is 
not  like  the  case  where  the  principal  is 
masked,  and  the  agent  acts  as  the  ostensible 
principal.  (7  Term  Rep.,  360.)  In  that  case, 
it  is  admitted  that  whoever  deals  with  the 
agent  has  a  right  to  consider  him  as  the  prin- 
cipal, and  to  regulate  his  claims  accordingly. 
Here  the  defendants  appear  to  have  acted 
under  a  full  knowledge  of  the  relation  between 
Saunders  and  the  plaintiff.  The  only  circum- 
stance that  could  raise  any  possible  doubt  in 
the  case,  is  the  observation  in  the  plaintiff's 
letter.  "  I  beg  you  will  not  neglect  me,  as  it 
(meaning  the  insurance)  is  for  yourself  in  part." 
But  whatever  may  be  the  meaning  of  this 
note,  it  does  not  appear  to  have  been  disclosed 
to  the  defendants,  or  if  it  was,  that  they  acted 
under  its  influence,  or  that  it  was  true  in  point 
of  fact  that  Saunders  had  any  interest  in  the 
commissions.  It  is  possible  the  letter  had 
reference  only  to  the  interest  which  Saunders, 
as  a  creditor  of  the  captain,  mu.st  have  had  in 
the  success  of  his  voyage.  When  the  policy 
was  deposited  with  the  defendants  for  collec- 
tion, the  agency  under  which  it  was  originally 
effected,  the  plaintiff's  sole  interest  as  master 
of  the  sloop,  and  what  appeared  on  the  policy, 
were  known  to  *the  defendants;  and  [*329 
under  these  circumstances,  there  cannot  be 
any  just  pretense  to  permit  them  to  consider 
the  agent  as  a  principal,  and  to  set  off  their 
claim,  founded  on  other  matter  against 
Saunders,  to  a  suit  by  the  plaintiff.  The 
money  was  received,  by  intendment  of  law, 
for  the  use  of  the  plaintiff;  and  the  defendants 
are  bound  in  equity  and  good  conscience  to 
refund  it. 

Judgment  for  the  plaintiff  accordingly. ' 
Cited  in— 6  Paige,  588 ;  1  Bos.,  566. 

1.— See  Marshall  on  Ins.,  301,  303,  2d  ed.:  1  East,  3*5. 
JOHNSON'S  CASES,  2 


1801 


HOLMES  v.  TOE  UNITED  INSURANCE  COMPANY. 


HOLMES  *.  THE  UNITED  INSURANCE 
COMPANY. 

1.  Marine  Insurance — On  Cargo — By  Agent — 
As  Interest  Might  Appear — Over  Valuation — 
Return  of  Premium.  2.  Partnership —  What 
Constitutes. 

A  policy  of  insurance  was  effected  on  the  cargo 
of  a  ship  from  Calcutta  to  Baltimore,  by  A,  as 
the  agent  of  B,  and  for  his  account.  The  policy 
was  in  the  name  of  A  generally,  for  835,000,  as  in- 
terest might  appear.  The  cargo  belonged  to  B.  and 
four  other  persons,  and  was  purchased  with  the 
proceeds  of  the  outward  cargo.  B  carried  on  busi- 
ness for  himself,  and  was  unconnected  in  trade  with 
the  other  persons,  who  knew  nothing  of  the  in- 
surance. The  proportion  of  the  return  cargo  be- 
longing to  B,  in  fact,  amounted  only  to  about  $13,- 
000.  B  brought  an  action  fora  return  of  premium, 
for  the  difference  of  the  sum  subscribed  to  the 
policy  and  the  amount  of  his  interest ;  it  was  held 
that  B  and  the  four  others  were  not  partners,  and 
that  B  was  entitled  to  recover  back  the  premium 
for  the  amount  of  his  interest  overvalued  in  the 
policy. 

Citations— Park,  367 ;  Watson,  1,  5;  1  Doug.,371 ;  2 
Black.  R.,  998 ;  1  H.  Black.,  48 ;  Id.,  37. 

THIS  was  an  action  of  msumpnit  for  a  return 
of  premium,  on  a  policy  of  insurance. 
In  December,  1796,  Gouverneur  and  Kemble, 
as  agents  for  the  plaintiff,  effected  an  insur- 
ance on  the  cargo  of  the  ship  George  and 
Patty  Washington,  to  the  amount  of  $25,000. 
interest  as  may  appear,  at  and  from  Culcutta 
to  Baltimore ;  and  the  defendants  accordingly 
underwrote  the  policy,  to  the  amount  of  $25,- 
000,  on  the  cargo  generally,  in  the  name  of 
the  agents.  The  premium  was  seven  per 
cent.,  amounting  to  $1,750.25,  and  was  paid  to 
the  defendants  on  the  6th  August,  1797.  The 
cargo  of  the  ship  belonged  to  the  plaintiff  and 
four  other  persons,  and  was  purchased  with  the 
proceeds  of  the  outward  cargo,  which  also  be- 
longed to  the  same  persons.  One  eighth  of 
the  ship,  and  of  the  outward  and  return  car- 
33O*]  goes,  belonged  to  the  plaintiff,  *who 
carried  on  business  for  himself,  unconnected 
in  trade  with  the  other  four  persons.  The 
other  four  persons  had  no  direction  or  concern 
in  the  insurance,  or  any  other  insurance 
effected  by  the  plaintiff.  The  plaintiff's  in- 
structions to  his  agent  were  to  effect  insurance 
to  $25,000  on  the  cargo  of  the  said  ship,  on 
his  account.  The  whole  cargo  of  the  ship 
amounted  to  $103,439.54,  of  which  the  plaint- 
iff's one  eighth,  were  $12,929.94,  so  that  $14,- 
200  would  cover  the  interest  of  the  plaintiff 
and  the  premium,  &c.  The  plaintiff  directed 
the  supercargo  of  the  ship  to  apply  at  Calcutta 
for  a  credit  for  him,  and  to  make  a  shipment. 
But  the  supercargo  did  not  obtain  credit,  nor 
make  any  shipment  other  than  the  plaintiff's 
share  above  mentioned.  The  plaintiff  claimed 
for  a  return  of  premium,  on  the  difference 
between  the  subscription  of  the  defendants, 
and  the  interest  of  the  plaintiff,  amounting  to 
L.52.  The  ship  arrived  safe  at  Baltimore. 


NOTE. — Marine  insurance,  return  of  premium. 

Compare  Delavigne  v.  United  Ins.  Co.,  1  Johns. 
Gas.,  310;  Juhel  v.  Church.,  post,  333;  also,  Stein- 
back  v.  Rhinelander,  3  Johns.  Cas.,  269. 

Partnership,  wliat  constitutes.  Compare  Post  v. 
Kimberly,  9  Johns.,  470;  Cumpston  v.  McNair,  1 
Wend.,  457 ;  Sage  v.  Sherman,  2  N.  Y.,  418 ;  Heim- 
street  v.  Rowland,  5  Denio,  68 ;  Pattison  v.  Blanch- 
ard,  5  N.  Y.,  186. 

JOHNSON'S  CASES,  2. 


Mr.  S.  Jones,  Jun.,  for  the  plaintiff. 
Mr.  Troup,  contra. 

KENT,  J.,  delivered  the  opinion  of  the  court: 
There  is  no  doubl,  but  that  if  property  be 
insured  to  a  larger  amount  than  the  real  value, 
the  overplus  premium  is  recoverable  by  the 
assured,  because  the  insurer  shall  not  receive 
the  price  of  a  risk  which  he  has  not  run. 

On  the  other  hand,  if  the  risk  has  once  com- 
menced or  existed,  there  shall  not  be  any  return 
of  premium,  as  the  consideration  for  it  ha* 
then  been  given.  (Park,  367.)  The  recovery 
in  the  present  case,  therefore,  depends  on  the 
solution  of  the  question  whether  the  other 
persons  interested  in  the  cargo  could,  in  case 
of  loss,  have  covered  any  part  of  their  interest 
under  this  policy.  *If  they  could  not,  [*33 1 
then  the  defendants  have  run  no  risk  beyond 
the  amount  of  the  plaintiff's  interest  on  board; 
and  I  think,  from  the  facts  before  me,  thai 
such  must  be  the  conclusion  of  law. 

To  constitute  a  partnership,  by  which  the 
act  of  one  will  bind  or  inure  to  the  benefit  of 
the  rest,  there  must  be  a  reciprocal  choice  and 
agreement  of  the  parties  to  unite  their  stock, 
and  to  share  in  all  risks  of  profit   and  loss. 
(Watson,  1,  5;  1  Doug.,  371;  2  Bl.  Rep.,  998.) 
They  must  not  only  be  jointly  concerned   in 
the  purchase,   but  jointly  concerned  in  the 
:  future  sale.     (1  H.  Bl.,  48.)'    In  the  case  of 
|  Hoare  v.  Datces  (1  Doug.,  371),  a  broker  was 
employed  by  a  number  of  persons  to  purchase 
|  a  lot  of  tea,  of  which  each  was  to  have  his 
•  separate  share;  and  he  purchased  the  lot  of 
|  tea  for  the  benefit  of  his  employers ;  and  it  was 
i  held  they  were  not  partners  in  the  tea,  because 
j  there  was  no  undertaking  by  one  to  advance 
!  money  for  another,  nor  any  agreement  to  share 
with  one  another  in  the  profit  or  loss.     And 
;  Lord  Mansfield  observed  that  it  would  be  most 
i  dangerous,  if  the  credit  of  a  person  who  en- 
:  gages  for  a  40th  part,  for  instance,  should  be 
!  considered  as  bound  for  all  the  other  parts. 
!  And  in  the  case  of  Coope  et  al.  v.  Eyre  et  al. 
\  (1  H.  Bl.,  37),  several  persons  entered  into  an 
I  agreement  to  purchase  a  quantity  of  oil,  in  the 
i  name  of  A  only,  and  to  take  aliquot  shares  of 
|  the  purchase ;  but  as  it  did  not  appear  that  they 
were  jointly  to  resell  the  goods,  they  were  held 
not  to  be  partners.     There  was  no  communi- 
cation between  the  buyers  as  to  the  profit  or 
loss.     Each  party  was  to  have  a  distinct  share, 
and  to  manage  it  as  he  judged  best;  and  of 
consequence,  the  profit  or  loss  of  the  one. 
might  be  more  or  less  than  that  of  the  other. 

In  the  present  case,  there  is  no  evidence  of 
any  agreement  or  communication  between  the 
parties,  as  to  profit  or  loss,  but  what  arises  as 
a  matter  of  intendment,  from  the  fact 
that  the  cargo  of  the  ship  belonged  to  the 
*plaintiff  and  four  other  persons,  and  [*332 
was  purchased  with  the  proceeds  of  the  out- 
ward cargo,  which  also  belonged  to  the  same 
persons.  To  repel  this  inference,  we  have  the 
other  fact  found,  that  the  plaintiff  carried  on 
business  for  himself  unconnected  in  trade  with 
the  other  persons;  and  that  the  present  insur- 
ance was  made  for  himself,  and  that  the 
other  persons  had  no  direction  or  concern 
therein. 

It  is  a  strong  and  decisive  fact  in  this  case, 
that  there  was  no  agreement  between  the  par- 

533 


332 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1801 


ties  to  share  in  the  future  sale  of  the  return 
cargo;  and  the  presumption  is  directly  other- 
wise, since  the  parties  were  unconnected  in 
trade.  This  brings  the  case  within  the  decis- 
ion in  Coope  et  al.  v.  Eyre  et  al.  The  parties 
were  not,  in  fact,  partners,  as  amongst  them- 
selves, nor  did  they  professedly  act  or  appear 
as  such.  The  plaintiff  appears  to  have  acted 
with  candor,  and  to  have  directed  an  insurance 
on  his  own  account,  as  interest  should  appear. 
The  over  valuation  must  have  originated  in 
mistake  in  too  high  an  estimate  of  the  result 
of  the  outward  cargo,  and  in  the  expectation 
of  an  additional  cargo  to  be  procured  on  credit 
at  Calcutta. 

We  are,  therefore,  of  opinion  that  the  plaint- 
iff was  not  a  partner,  and  that  he  is  conse- 
quently entitled  to  the  return  of  premium,  as 
liquidated  in  the  case. 

Judgment  for  the  plaintiff. 

Cited  in— 1  Johns.,  117 ;  9  Johns.,  485 ;  1  Wend.,  463 ;  ! 
47  N.  Y.,  206. 


333*]  *JUHEL  AND  DELONGUEMERE 

v. 
CHURCH. 

Marine  Insurance — Profits — Policy  to  be  Proof 
of  Interest — Wager — No  Cargo — Return  of 
Premium. 

A  having  chartered  a  ship  to  bring  a  cargo 
from  the  Spanish  Main  to  New  York,  effected  a  pol- 
icy of  insurance  on  the  profits,  valued  at  $12,000 ; 
no  other  proof  of  interest  to  be  re_quired  but  the"1 
policy ;  and  if  the  goods  did  not  arrive,  the  insured 
was  to  recover  for  a  total  loss ;  and  the  goods  were 
warranted  free  from  average  and  without  benefit  of 
salvage  to  the  insurer.  The  vessel  finding  no  cargo  at 
the  Spanish  Main,  returned  to  New  York,  in  ballast, 
without  any  goods.  A  brought  an  action  against 
the  insurer  for  a  return  of  premium ;  and  it  was 
held  that  the  insurer  having  run  the  risks  enume- 
rated in  the  policy,  and  the  ship  having  returned  in 
safety,  A  was  not  entitled  to  a  return  of  premium. 

Citations— Doug.,  468;  Park,  259;  3  Term  R.,  266. 

THIS  action  was  brought  for  a  return  of 
premium.  At  the  trial,  a  verdict  was 
found  for  the  plaintiffs,  subject  to  the  opinion 
of  the  court,  on  a  case;  and  if  the  court  should 
be  of  opinion  against  the  plaintiff  s,  a  judgment 
of  nonsuit  was  to  be  entered. 

The  plaintiffs  chartered  the  ship  Three 
Sisters,  to  bring  a  cargo  of  wines  from  the 
Spanish  Main  to  New  York;  and  had  insured, 
by  a  valid  policy,  $12,000,  on  goods,  for  the 
voyage.  But  although  in  the  printed  part  of 
the  policy  the  same  was  stated  to  be  on  goods, 
yet  by  a  memorandum,  in  writing,  at  the  bot- 
tom of  the  policy,  it  was  declared  to  be  on 
profits,  and  that  no  other  proof  of  interest  was 

NOTE— Marine  Insurance,  return  of  premium. 

If  the  risk  has  actuattj/  attached  but  for  a  moment 
there  can  be  no  return  of  premium.  Hendricks  v. 
Com.  Ins.  Co.,  8  Johns.,  1 ;  Waters  v.  Allen,  5  Hill, 
421 :  Savage  v.  United  Ins.  Co.,  3  Johns.  Cas.,  558 ; 
Crowningshicld  v.  N.  Y.  Ins.  Co.,  3  Johns.  Cas.,  142 ; 
Compare  Holmes  v.  United  Ins.  Co.,  ante  329;  Dela- 
yigne  v.  United  Ins.  Co.,1  Johns.  Cas.,  310,  and  notes 
in  this  ed. 

As  to  when  rittk  ix  divUsOile,  see  Waters  v.  Allen, 
above  cited :  Ogden  v.  Firemen  Ins.  Co.,  12  Johns., 

534 


to  be  required  than  the  policy,  and  that  if  the 
goods  did  not  arrive,  the  assured  was  to  re- 
cover for  a  total  loss:  and  the  same  was  war- 
ranted free  from  average,and  without  benefit  of 
salvage  to  the  insurer.  The  ship  found  no 
cargo  at  the  Spanish  Main,  and  returned  to 
New  York  in  ballast,  without  any  goods 
whatever. 

Mr.  B.  Livingston,  for  the  plaintiffs. 
Mr.  Pendleton,  contra. 

KENT,  J.  I  consider  this  as  a  wager  policy. 
It  has  the  indicia  of  a  wager  policy,  as  they 
are  pointed  out  by  the  cases  on  the  subject. 
(Doug.,  468;  Park,  259.)  Here  was  to  be  no 
other  proof  of  interest  required  than  the  policy 
itself;  and  if  the  goods  did  not  arrive,  the 
insurer  was  to  pay.  It  was,  in  fact,  betting  on 
the  return  of  the  ship;  and  if  she  had  not 
returned,  in  consequence  of  any  peril  enume- 
ratedtin  the  policy,  the  plaintiff  would,  on  its 
production,  have  been  entitled  to  the  sum 
insured. 

*As  the  plaintiffs  claim  a  return  of  [*334 
premium,  it  has  been  made  a  question  whether 
this  be  a  valid  policy.  If  it  be  unlawful  and 
consequently  void,  on  the  ground  of  its  being 
a  wager  policy,  the  assured  is  not  entitled,  at 
any  rate,  to  a  return  of  premium,  for  in  pari 
delicto  potior  est  conditio  posmtentin.  It  was  so 
decided  in  the  cases  of  Lowry  v.  Bourdieu 
(Doug.,  468),  and  Andre  v.  Fletcher.  (3  Term 
Rep.,  266.)  But  supposing  the  policy  to  be 
good  (and  I  wish  not  to  be  understood  as  inti- 
mating any  opinion  to  the  contrary),  I  am 
equally  of  the  opinion  that  the  plaintiffs  are 
not  entitled  to  recover;  because  the  defendant 
has  run  a  risk,  which  is  the  consideration  for 
the  premium.  I  consider  this  policy  as  amount- 
ing to  a  bet  on  the  return  of  the  ship.  If  she 
had  not  returned,  and  the  plaintiffs  could  have 
shown  that  it  was  in  consequence  of  some 
peril,  within  the  purview  of  the  policy,  they 
must  have  been  entitled,  as  a  matter  of  course, 
to  the  sum  insured,  without  proving  any 
interest  or  goods  on  board.  The  defendant 
must,  therefore,  be  considered  as  having  run 
the  risk  of  the  ship,  during  the  voyage.  But 
as  the  ship  returned  in  safety,  I  do  not  consider 
him  responsible,  because  the  goods  did  not  ar- 
rive. It  could  never  have  been  the  meaning 
of  the  parties  that  whether  the  ship  did  or  did 
not  arrive,  the  defendant  was,  at  all  events,  to 
pay  the  $12,000.  This  would  be  a  contract 
without  any  reciprocity,  and  altogether  absurd. 
The  plaintiffs,  by  the  form  of  this  action,  have 
given  a  different'interpretation  to  it.  The  pol- 
icy enumerates  a  variety  of  perils  or  risks, 
which  the  defendant  assumed  to  run;  and  there 
must  have  been  some  subject  to  which  they 
could  be  applied,  and  this,  in  the  present  case, 
could  be  no  other  than  the  ship.  When,  there- 
fore, the  policy  says  that  no  other  proof  of  inter- 
est was  to  be  required  than  the  policy,  and  that 
if  the  goods  did  not  arrive,  the  assured  was  to 
recover,  its  meaning  was  that  if  the  ship  did 
not  arrive  in  consequence  of  any  peril  men- 
tioned, the  assured  was  to  recover  the  value  of 
his  *profits,  without  proving  any  goods  [*33<> 
on  board,  from  which  the  profits  were  to  arise. 

As  the  defendant  has,   therefore,  run  the 

risk  intended  by  the  policy,  I  see  no  pretense 

JOHNSON'S  CASES,  2. 


1801 


CORPORATION  OF  NEW  YORK  v.  DAWSON. 


335 


for  a  return  of  premium,  and 
nonsuit  ought  to  be  entered. 

RADCMFF,  J.,  and  LEWIS,  J., 
same  opinion. 

LANSING,  Oh.  J.,  dissented. 
Judgment  of  nonsuit. 

Reviewed— 6  Cow.,  331. 

<lted  in-23N.  Y.,  523 ;  7  Daly,  374. 


judgment  of 
were   of   the 


CORPORATION  OF  NEW  YORK 

0. 
DAWSON. 


1.  Use  and  Occupation — Action  for — Not  Local. 
2.  Id. — Id. — Change  of  Venue — Grounds  of 
— Impartial  Trial. 

An  action  for  use  and  occupation  is  not  local  in 
its  nature,  being  founded  in  privity  of  contract,  and 
not  in  privity  of  estate. 

The  venue  in  a  cause,  in  which  the  corporation  of 
New  York  was  a  party,  was  laid  in  the  city  of  New 
York ;  and  the  court  refused  to  change  it,  merely 
on  that  account,  on  the  bare  allegation  that  an 
impartial  trial  could  not  be  had  in  the  City  and 
County  of  New  York. 

Citations— 1  Wils.  165 ;  6  Mod,  194 ;  1  Salk.,  80 ;  2 
Burr.,  1564. 


THIS  was  an  action  of  assumptit,  for  the  use 
and  occupation  of  certain  premises  at 
Brooklyn,  in  Kings  County.  The  venue  was 
laid  in  New  York,  and  the  defendants  moved 
to  change  it  to  Kings.  1.  Because,  from  the 
declaration,  it  appeared,  that  the  cause  of 
action 'arose  in  that  county;  and  the  action,  in 
its  nature,  is  local.  2.  Because  a  fair  and  im- 
partial trial  cannot  be  had  in  New  York. 

Mr.  Evertson  for  the  defendant. 
Mr.  Harison,  contra. 

Per  Curiam.  This  action  is  founded  on 
the  privity  of  contract,  and  is  not  local  in  its 
nature.  It  was,  therefore,  not  indispensable 
to  lay  the  venue  in  Kings.  Actions  founded 
on  the  privity  of  estate  are  local,  as  in  debt  by 
the  assignee  or  devisee  of  the  lessor,  against 
the  lessee,  or  by  the  lessor  against  the  assignee 
336*]  of  a  lease,  or  in  covenant  *by~the 
grantee  of  the  reversion,  against  the  assignee 
of  a  lease.  (1  Wils.,  165;  6  Mod.,  194;  1 
Salk.,  80.)  In  this  case,  the  action  is  founded 
on  the  privity  of  contract  only,  either  ex- 
pressed or  implied.  It  follows  that  the  venue 
is  not  necessarily  controlled  by  the  circum- 
stance of  the  premises  being  situated  in  Kings 
C'ounty.  It  is  settled  that  in  transitory 
actions,  the  court  may,  and  ought,  to  change 
the  venue,  for  the  purpose  of  an  impartial 
trial.  (2  Burr.,  1564.)  But  no  special  ground 
is  here  stated  to  show  that  a  fair  trial  cannot 
be  had  in  New  York.  The  interest  supposed 
JOIFNSON'S  CASES,  2. 


to  exist  in  favor  of  the  success  of  the  corpora- 
tion is  too  uncertain  and  remote.  It  is,  in 
truth,  seldom,  if  ever,  felt  or  known;  and  an 
independent  jury  may  as  probably  be  obtained 
in  this  as  in  any  other  county.  "  It  would  be 
extremely  inconvenient  to  change  the  venue, 
on  this  formal  objection,  in  all  cases  in  which 
the  corporation  may  be  concerned;  and,  we 
think,  it  ought  not  to  be  done,  unless  there  ap- 
pear substantial  reasons  to  support  the  objec- 
tion. 

Motion  denied. 


Cited  in— 1  Wend.,  135 ;  1  Hun,  155 ;  S.  C.,  3  T.  & 
C.,  666. 


SHUTE  v.  DAVIS  ET  AL. 

Amendment — Declaration — After  Plea  in  Abate- 
ment. 

A  declaration  may  be  amended,  after  a  plea  iii 
abatement ;  but  not  by  adding  the  name  of  another 
defendant,  against  whom  a  separate  suit  was 
brought  for  the  same  demand. 

Citations— 1  Str.,  11 ;  2  Ld.  Raym.,  859, 1472 ;  2  Str., 
739. 

MR.  STRONG,  for  the  plaintiff,  moved  for 
leave  to  amend  the  capias  and  declara- 
tion, in  this  cause,  by  adding  the  name  of 
another  defendant.  After  the  writ  was  issued 
against  the  present  defendants,  the  plaintiff's 
attorney  discovered  that  T.  D.  was  a  partner 
with  them;  and  thereupon  issued  a  writ  against 
him  to  answer  together  with  the  present  de- 
fendants. The  first  writ  was  returnable  in 
January  Term,  and  the  other  in  April  Term, 
last.  In  *June,  the  plaintiff  declared  [*337 
against  the  defendants  separately  in  this  suit; 
and  on  the  9th  July,  against  T.  D.,  separately, 
in  the  other  suit.  To  the  declaration  in  the 
first  suit,  there  is  a  plea  in  abatement  that  T. 
D.  ought  to  have  been  joined  with  the  present 
defendants. 

Per  Curiam.  There  is  no  doubt  that  a  dec- 
laration may,  in  many  cases,  be  amended,  after 
a  plea  in  abatement.  (1  Str.,  11;  2  Ld. 
Raym.,  859,  1,472;  2  Str.,  739.)  But  here  the 
plaintiff  moves  to  add  another  defendant, 
against  whom  a  second  suit  has  been  brought 
for  the  same  demand.  If  the  plaintiff  appre- 
hended a  plea  in  abatement,  or  wished  to  make 
the  other  defendant  a  party,  he  ought  to  have 
discontinued  the  first  suit,  and  commenced 
another  action  against  all  the  defendants,  in- 
stead of  bringing  a  new  action  against  the 
other  defendant.  The  effect  of  granting  this 
application  would  be  to  allow  separate  suits 
against  each  joint  debtor,  and  afterwards,  to 
consolidate  them  into  one,  or  to  unite  all  the 
defendants  in  one  suit,  and  discontinue  the 
others.  This  is  not  warranted  by  any  former 
practice,  and  might  lead  to  inconvenience  and 
vexation.  The  motion  must  be  denied. 


Rule  refused. 


535 


337 


SUPREME  COURT,  STATE  OK  NEW  YORK. 


1801 


REEDY  ».  SEIXAS. 

Noter-*-Notice  to  Indorser — Form  of — Sufficiency 
of— Question  for  Jury. 

There  is  no  particular  form  of  notice  to  the  in- 
doreer  of  a  note,  prescribed  by  law.  It  is  enough, 
if,  under  all  circumstances,  it  was  sufficient  to  put 
him  on  inquiry ;  and  this  is  properly  a  question  of 
fact  for  the  jury  to  decide. 

THIS  was  an  action  by  an  indorsee  against 
an  indorser  of  a  promissory  note.  At  the 
trial,  the  note  in  question  was  produced, 
338*]  which  was  for  $1,216.50.  *At  the  bot- 
tom of  the  note,  were  the  figures  $1,216.52: 
and  the  notary,  in  the  notice  given  by  him  to 
the  indorser,  of  the  nonpayment,  had  ex- 
pressed the  latter  sum.  It  was  objected  that 
the  notice  did  not  refer  to  the  same  note.  The 
judge  left  it  to  the  jury  whether  the  note  pro- 
duced and  the  one  described  and  intended  by 
the  notice  were  the  same;  and  the  jury  found  a 
verdict  for  the  plaintiff.  A  motion  was  now 
made  to  set  aside  the  verdict,  and  for  a  new 
trial. 

Mr.  Wilkim  for  the  plaintiff. 
Mr.  B.  Livingston,  contra. 

Per  Curiam.  The  question  was  properly 
left  to  the  jun-.  The  law  does  not  prescribe 
any  form  of  notice  to  an  indorser.  It  is  not, 
perhaps,  requisite  to  specify  the  amount  of  the 
note.  The  notice  was  sufficient  to  put  the 
defendant  on  inquiry,  and  to  prepare  him  to 
pay  it,  or  defend.  It  is  enough,  if  the  jury 
was  satisfied  that  the  notice  referred  to  the 
same  note  intended  by  the  plaintiff,  and  was  so 
understood  by  the  defendant.  It  was  incum- 
bent on  the  defendant  to  show  some  uncer- 
tainty in  the  notice,  tending  to  mislead  him,  as 
other  notes  indorsed  by  him,  under  similar 
circumstances.  The  motion  must  be  denied. 

Rule  refused. 
Cited  in-3  Wend.,  458;  9  Wend.,  280;  2  Hill,  594. 


*HILLDRETH 

v. 
BECKER  AND  HARVEY. 


[*339 


Decla  ration — Demurrer —  Uncertainty. 

Where  a  declaration  commenced  thus :  "  James 
Hilldreth  complains  of  Peter  B.  and  James  Harvey, 
the  said  James  being1  in  custody,  &c.,  and  the  said 
Peter  being:  returned  not  found  of  a  plea,"  &c.  It 
was  held  to  contain  sufficient  certainty,  and  that  J. 
Harvey,  the  defendant,  and  not  James  H.,  the 
plaintiff,  was  the  person  in  custody,  &c. 

Citations-Cowp.,  682 ;  2  Wils.,  386 ;  24  Sess.,  c.  90. 
8.13. 

THE  declaration  in  this  cause  was  against 
the  defendants,  jointly,  on  a  bond  to  the 
sheriff.  It  commenced  thus:  "James  Hill- 
dreth complains  of  Peter  Becker  and  James 
Harvey,  4he  said  James  being  in  custody,  &c. , 
and  the  said  Peter  being  returned  not  found, 
of  a  plea,"  &c. 

There  was  special  demurrer  to  the  declara- 
tion, because  it  was  uncertain  whether  James 
Hilldreth,  the  plaintiff,  or  James  Harvey,  was 
the  person  alleged  to  be  in  custody;  and  be- 
cause it  is  not  stated  that  any  process  issued 
in  the  suit,  by  virtue  of  which  Peter  Becker 
was  returned  not  found,  &c. 

Per  Curiam.  In  a  declaration,  certainty  to- 
a  common  intent  is  sufficient.  (Cowp.,  682.) 
It  is  like  the  case  of  Connor  v.  Connor  (2  Wils., 
386),  where  John  Connor,  of  Friday  Street,  de- 
clared on  a  bond  against  John  Connor,  of  Bar- 
nett,  but  the  addition  to  the  defendant's  name 
was  not  repeated,  afterwards,  in  the  declara- 
tion, and  the  defendant,  after  craving  oyer, 
demurred  specially,  because  it  did  not  appear 
which  John  Connor  executed  the  bond ;  but 
the  court  decided  that  there  was  sufficient  cer- 
tainty appearing  on  the  record,  that  John  Con- 
nor of  Barnett  was  indebted  on  a  bond  to  John 
Connor  of  Friday  Street,  and  gave  judgment 
for  the  plaintiff.  So,  in  the  present  <?ase,  it 
appears,  with  sufficient  certainty,  that  James 
Harvey  executed  a  bond  to  James  Hilldreth, 


NOTE. — Negotiable  paper,  notice  of  dishonor,  form 
and  content*  of. 

Mr.  Justice  Story  gives  the  following1  rule :  "  No 
precise  form  of  words  is  necessary  to  be  used  in 
notice  of  dishonor.  Still,  however,  it  is  indispensa- 
ble that  it  should  either  expressly  or  by  just  and 
natural  implication  contain  in  substance  the  fol- 
lowing requisites:  (1.)  A  true  description  of  the 
note,  so  as  to'ascertain  its  identity.  (2.)  An  asser- 
tion that  it  hpf  been  duly  presented  to  the  maker  at 
its  maturity,  und  dishonored.  (3.)  That  the  holder 
or  other  person  giving  the  notice  looks  to  the  per- 
son to  whom  the  notice  is  given  for  reimburse- 
ment and  indemnity."  Story  on  Prom.  Notes,  sec. 
348.  Story  on  Bills,  sec.  301. 

A  notice  complying  with  the  above  would  cer- 
tainly be  sufficient.  The  rule  has  probably,  in  some 
points  been  relaxed,  or  at  least  the  words  natural 
implication  "  have  been  construed  very  broadly. 

(1.)  As  to  description  it  has  been  held  that  to  viti- 
ate notice  the  variation  must  be  such  that  the  notice 
conveys  no  sufficient  notice  to  the  party  addressed 
of  the  particular  paper  which  has  been  dishonored. 
Bank  of  Alexandria  v.  Swann,  9  Pet.,  47 ;  Mills  v. 
Bank  U.  S.,  11  Wheat.,  436. 

For  cases  in  which  various  defects  in  description 
have  been  held  immaterial,  see  Brooks  v.  Blaney, 
«2  Me.,  456 ;  Clarke  v.  Eldridge,  13  Met.,  96;  Wheaton 
v.  Wilmarth,  13  Met.,  422;  Bank  v.  Gould,  9  Wend., 
279;  Gill  v.  Palmer,  29  Conn.,  54;  Messenger  v. 
Southey,  1  Man.&  G.,  76;  Stockman  v.  Parr,  11  M. 
&  W.,  809;  Mellersh  v.  Kippen,  7  Exch.,  578;  Haines 

M€ 


v.  Dubois,  30  N.  J.  L.  (1  Vroom.),  259;  Bank  of 
Cooperstown  v.  Woods,  28  N.  Y.,  545;  Dennistoun 
v.  Stewart,  17  How.  (U.  S.),  608 ;  Downer  v.  Kemer, 
25  Wend.,  277.  See  James  v.  Badger,  1  Johns.  Cas., 
131,  and  note  in  this  edition. 

For  cases  of  fatal  variation  in  description,  see 
Ransom  v.  Mack,  2  Hill,  587 ;  Underwood  v.  Huddle- 
stone,  2  Cr.  C.  C.,  93 ;  Townsend  v.  Lorain  Bank,  2 
O.  St.,  345. 

(2.)  As  to  dishonor.  This  rule  has  probably  been 
construed  most  strictly  of  the  three.  See  Page  v. 
Gilbert,  60  Me.,  485;  Pinkham  v.  Macy,  9  Met.,  174; 
Arnold  v.  Kinloch,  50  Barb.,  44;  Gilbert  v.  Dennis, 
3  Met.,  495;  Furze  v.  Sharwood,  2  Q.  B.,  338 ;  Look- 
wood  v.  Crawford,  18  Conn.,  361. 

Compare,  however,  Cayuga  Bank  v.  Warden,  1  N. 
Y.,  413;  Cromer  v.  Platt,  37  Mich.,  132;  llobson  v. 
Curlewis,  2  Q.  B.,  421,  Car.  &  M.,  378 ;  Armstrong  v. 
Christiani,  5  C.  B.,  687. 

(3.)  As  to  demand  for  indemnification.  The  fact 
that  the  giver  of  the  notice  looks  to  the  indorser 
for  indemnification  is,  it  is  generally  held,  implied 
from  the  mere  fact  of  the  notice.  Bank  of  U.  S.  v. 
Carneal,  2  Pet.,  543;  Fitehburg  Ins.  Co.  v.  Davis, 
121  Mass.,  121;  Warren  v.  Gilman,  17  Me.,  3(iO; 
Townsend  v.  Lorian  Bank,  2  O.  St.,  345. 

See  generally:  Bank  of  Old  Dominion  v.  Mc- 
Veigh, 29  Gratt.,  546;  Artisan's  Bank  v.  Backus,  3ft 
N.  Y.,100;  Hildeburn  v.  Turner,  5  How.  (U.S.),  69; 
Stephenson  v.  Dickson,  24  Pa.  St.,  148;  Cook  v. 
!  Litchfield,  9  N.  Y.,  279 ;  Cabot  Bank  v.  Warner,  10 
I  Allen,  522 ;  Agan  v.  McManus,  11  Johns.,  180. 

JOHNSON'S  CASES,  2. 


1801 


TKEADWELL,  ASSIGNEE,  ETC.,  v.  M'KEEL  ET  AL. 


and  as  James  Hilldreth  complains  thereon,  of 
James  Harvey,  it  must  be  intended  that  the 
latter  is  the  person  in  custody. 

This  is  a  proceeding  according  to  the  pro- 
vision in  the  act,  in  regard  to  joint  debtors,1 
' '  that  the  creditor  may  issue  process  against 
joint  debtors,  in  the  manner  now  in  use  ;  and 
in  case  any  of  such  joint  debtors  be  taken,  and 
34O*]  brought  *into  court,  he  or  they,  so 
taken  and  brought  into  court,  shall  answer  to 
the  plaintiff;  and  in  case  judgment  shall  pass 
for  the  plaintiff,  he  shall  have  his  judgment  on 
execution,  against  such  of  them  as  were 
brought  into  court,  and  against  the  other  joint 
debtors  named  in  the  process,  in  the  same 
manner  as  if  they  had  all  been  taken  and 
brought  into  court,  by  virtue  of  such  process," 
&c.  The  defendants,  in  the  present  case,  were 
joint  debtors,  and  the  plaintiff  declares  against 
both  of  them,  in  the  same  manner  as  if  both 
had  been  taken  ;  and  only  one  was  taken  and 
brought  into  court.  It  appears  certain,  to  a 
general  intent,  from  the  facts  and  the  aver- 
ment, that  one  defendant  was  in  custody,  and 
the  other  returned  not  found  ;  that  process  did 
issue  in  the  suit,  and  that  by  virtue  thereof, 
one  of  the  defendants  was  returned  not  found. 
Pleadings  are  to  receive,  if  the  words  will  ad- 
mit it,  a  reasonable  intendment,  and  are  to  be 
construed  secundum  subjectam  materiam.  There 
must  be  judgment  for  the  plaintiff. 

Judgment  for  the  plaintiff. 


TREAD  WELL,  Assignee,  &c., 

v. 
M'KEEL  ET  AL. 

Bail  —  To    Sheriff—  Responsibility  —  Matters  Be- 
yond the  Original  Suit. 

Bail  to  the  sheriff  are  responsible  only  for  the 
principal  and  interest  due  on  the  bond  in  the  orig- 
inal suit,  and  not  for  any  matters  dehors  the  condi- 
tion for  which  the  penalty  is  claimed  as  security. 

Citation—  Str.,  922. 


was  a  suit  on  a  bail  bond,  in  which 
JL  judgment  was  obtained.  The  original 
suit  was  on  a  bond  conditioned  for  the  pay- 
ment of  money. 

Mr.  Riker,  for  the  defendants,  now  moved 
that  they  be  discharged  from  this  judgment, 
on  payment  of  the  amount  of  the  bond  in  the 
original  suit,  with  the  costs  of  both  suits. 
341*]  *Mr.  Everston,  contra,  stated  that 
the  principal  defendant  and  one  Whitney  en- 
tered into  an  agreement  for  the  sale  and  pur- 
chase of  the  defendants'  farm,  on  which  there 
was  a  mortgage,  to  secure  the  payment  of 
the  bond  in  question  ;  and  Whitney  engaged  to 
take  up  that  bond,  and  another  bond  against 
the  defendant,  which  he  did.  The  principal 
defendant  having  refused  to  fulfil  his  agree- 
ment, Whitney  has  resorted  to  the  Court  of 
Chancery  to  compel  a  specific  performance,  or 
a  return  of  all  the  money  he  has  paid;  and  has 
also  brought  the  principal  suit  on  the  bond  in 
the  name  of  the  original  obligee  from  whom 

1.—  See  24  sess.,  ch.  90,  sec.  13. 
JOHNSON'S  CASES,  2. 


he  received  it,  as  assignee.  He  also  stated  that 
the  bail  were  colluding  with  the  principal  de- 
fendant, and  that  one  of  them  has  taken  pos- 
session of  the  farm  so  agreed  to  be  sold  to 
Whitney. 

On  these  facts,  which  were  admitted,  he- 
contended  that  the  plaintiff  had  a  right  to  the 
penalty  of  the  bond  in  the  original  suit. 

Per  Ouriam.  We  are  of  opinion  that  t  he- 
bail  to  the  arrest  are  only  responsible  for  the 
principal  sum  and  interest  of  the  bond,  on 
which  the  defendant  was  arrested.  It  would 
be  of  dangerous  consequence,  and  deter  per- 
sons from  becoming  bail  to  the  sheriff,  to  ex- 
tend their  responsibility  further.  It  is  settled 
in  England  (Str.,  922)  that  special  bail  can 
never  be  made  liable  for  more  than  they  are- 
bound  in,  let  the  plaintiff's  demand  be  ever  so 
much  more ;  and  there  is  no  reason  that  bail  to 
the  arrest  should  be  liable  for  more  than  the 
plaintiff  would  be  on  becoming  bail  to  the 
action.  On  bonds  conditioned  for  the  pay- 
ment of  money,  the  plaintiff  can  never  recover, 
under  the  penalty,  any  debt  or  demand,  how- 
ever just,  beyond  the  amount  of  the  condition. 
The  statute  declares  that  on  bringing  the  prin- 
cipal, interest  and  costs  into  court,  it  shall  be 
deemed,  in  favor  of  the  defendant,  a  full  dis- 
charge of  the  bond.  The  equitable  jurisdiction 
of  the  courts  of  law  over  the  bail-bond  suit, 
cannot  *be  extended  to  other  matters  [*342 
dehors  the  original  suit.  The  offer  of  the 
present  defendants,  must,  therefore,  be  re- 
ceived and  the  motion  granted. 

Motion  granted. 


THE  PEOPLE  «.  THOMPSON. 

Forgery — Order  for  Payment  of  Money — Statute,* 

Forging-  the  following-  order:  "Sir,  the  bearer, 
Mr.  Richardson,  being-  our  particular  friend,  having- 
occasion,  &c.,  we  have  requested  him  to  call  on  you,, 
desiring  you  to  accept  his  draft  on  us,  on  demand, 
for  $15;  your  compliance  will  much  oblige,"  £c., 
is  not  forging  an  order  for  the  payment  of  money, 
within  the  statute.  But  see  a  subsequent  statute  (24 
sess.,  ch.  54),  by  which  it  is  declared  to  be  forgery. 

Citations— 1  Leach.,  Ill  (note);  Foster,  119;  1  Leach.. 
134 ;  1  Leach.,  365 ;  2  Leach.,  615. 

THE  prisoner  was  convicted  of  forging  and 
uttering  an  order,   for  the  payment   of 
money.      The  paper  set  forth  in  the  indict- 
ment was  as  follows: 

"NEWPORT,  15th  July,  1801. 
"Captain  Godfrey,  Sir:  the  bearer,  Mr. 
Richardson,  being  our  particular  friend,  who 
has  occasion  to  proceed  from  New  York  to 
Philadelphia,  we  have  requested  him  to  call  on 
you,  desiring  you  to  accept  his  draft  on  us,  on 
demand,  for  fifteen  dollars  ;  your  compliance 
will  much  oblige,  sir, 

"  Your  humble  servants, 

" GIBBS  &  CHAINING." 

Mr.  W.  Morton,  in  behalf  of  the  prisonor, 
now  moved  in  arrest  of  judgment,  on  the 
ground,  1.  That  the  paper  set  forth  in  the 
indictment  is  not  an  order  for  the  payment  of 
money,  within  the  statute.  2.  That  it  does 

537 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


not  appear  in  the  paper,  nor  is  it  averred  in 
the  indictment,  that  Gibbs  &  ("hanning  had 
any  authority  to  make  the  order. 

Mr.  Golden,  district  attorney,  contra. 

Per  Curiam.  Admitting  the  paper  to  be  an 
order  for  the  payment  of  money,  it  is  not  an 
order  of  the  kind  intended  by  the  act.  It  has 
long  been  settled  in  England,  upon  a  similar 
statute,  that  the  order  within  its  purview 
343*]  *must  be  one  importing  a  right  on  the 
part  of  the  person  who  is  supposed  to  have 
made  it,  and  a  duty  on  the  part  of  the  person 
on  whom  it  is  made  (1  Leach,  111,  note).  That 
where  it  seems  to  leave  compliance  or  refusal 
optional,  and  applies  rather  to  the  favor  than 
the  justice  of  the  person  on  whom  it  is  drawn, 
it  is  not  within  the  statute,  as  not  being  an 
order  on  which  the  party  taking  it  can  place 
any  reliance.  It  is  the  usurpation  of  another's 
right  which  the  Legislature  intended  to  pun- 
ish and  prevent.  In  MitcheWs  case  (Fost.,  19), 
the  order  was:  "  I  desire  you  to  let  A  have, 
<fec.,  and  I  will  see  it  paid  for."  So,  in  the 
case  of  George  Williams  (1  Leach,  134),  the 
order  was : ' '  Please  to  let  the  bearer  have  twelve 
barrels  of  tar,  and  you  will  oblige,"  &c.  In 
the  case  of  Etter  (1  Leach,  365),  the  order  was: 
"  Please  to  send  ten  pounds  by  the  bearer,  as 
I  am  so  ill  I  cannot  wait  on  you;"  and  in 
Church's  case  (2  Leach,  615),  the  order  was, 
"  Please  to  send  by  the  bearer  eight  pounds  of 
silk."  In  all  these  cases,  it  was  ruled  that  the 
order  was  not  within  the  act,  because  it  did 
not  purport  to  be  the  order  of  a  person  who 
had,  or  assumed  to  have,  authority  to  make  it. 

In  the  present  case,  there  is  no  pretense  of  a 
right  in  Gibbs  &  Channing  to  make  the  order. 
It  is  a  mere  request,  as  a  favor.  It  states  the 
bearer  to  be  their  particular  friend,  and  had 
occasion  to  go  to  Philadelphia;  which  circum- 
stances are  totally  idle,  unless  to  fortify  the 
application  for  a  favor.  It  says,  we  requested 
him  to  call  on  you,  desiring  you  to  accept, 
<fcc. ;  your  compliance  will  much  oblige,  &c. 
The  whole  is  matter  of  favor  and  not  the 
usurpation  of  a  right;  and  according  to  the 
English  decisions,  we  must  declare  that  this  is 
not  an  order  for  the  payment  of  money,  within 
the  meaning  of  the  statute. 

The  Legislature  of  this  State  have  been  sensi- 
ble of  this  construction,  and  have  accordingly, 
on  the  revision  of  the  statute  relative  to  forgery 
338 


|  which  will  go  into  operation  *in  Octo-  [*344 
j  ber,  amended  the  act  so  as  to  extend  it  to 
orders  purporting  to  be  made  without,  as  well 
as  with  right  or  authority,  in  the  person  whose 
name  may  be  forged.  But  the  act,  thus  amend- 
ed, cannot  now  help  the  present  indictment. 
We  are,  therefore,  of  opinion  that  the  judg- 
ment ought  to  be  arrested. 

Judgment  arrested. 


THE  CASE  OF  GEORGE  PETERS,  a 
Brothertown  Indian. 

Brothertmon  Indians — Jurisdiction. 

The  Brothertown  Indians  are  subject  to  the  civil 
and  criminal  Jurisdiction  of  this  State. 

pEORGE  PETERS,  a  Brothertown  Indian. 
\T  was  convicted  at  the  last  oyer  and  termi- 
ner  held  in  Oneida  County  of  the  murder  of 
his  wife,  who  was  also  an  Indian.  The  murder 
was  committed  in  the  village  of  Rome.  The 
Brothertown  Indians  reside  in  the  town  of 
Paris;  and  the  teacher  of  the  tribe  attended  at 
the  trial. 

The  question  submitted  to  the  consideration 
of  the  court  was  whether  the  prisoner  was 
amenable  to  the  laws  of  this  State  for  the 


Per  Curiam.  The  Brothertown  Indians  are 
not  a  distinct  nation  or  tribe.  They  came 
from  New  England,  and  settled  under  the 
jurisdiction  of  this  State.  They  have  never 
claimed  or  exercised  any  criminal  jurisdiction 
among  themselves.  What  civil  jurisdictiou 
they  exercise  is  under  the  several  acts  of  the 
Legislature,  which  have  been  made  for  their 
civil  government;  and  they  have  never  been 
considered  or  treated  as  an  independent  tribe. 
They  are  not,  in  this  respect,  like  some  of  the 
Indian  tribes  within  this  State,  whose  situa- 
tion is  peculiar,  and  who,  as  to  offenses  com- 
mitted by  the  individuals,  within  their  tribes, 
against  each  other,  have  *claimed  and  [*34*> 
exercised  a  criminal  jurisdiction.  But  with- 
out giving  any  opinion  what  would  be  the  case 
with  respect  to  other  Indians,  we  think  that 
the  Brothertown  Indians  are  clearly  subject  to 
our  laws,  and  to  the  jurisdiction  of  this  court. 

Cited  in-47  Wis.,  294. 

JOHNSON'S  CASES,  2. 


[END  OF  JULY  TERM.] 


CASES   ADJUDGED 


IN   THE 


SUPREME  COURT  OF  JUDICATURE 


STATE   OF  NEW  YORK, 


OCTOBER    TERM.    IN    THE    YEA.R    18O1. 


[On  Wednesday,  the  28th  October,  LANSING,  Ch.  J.,  was  appointed  Chancellor,  and  LEWIS, 
J.,  was  appointed  Chief  Justice  in  his  stead.] 


346*]  *PALMER,  ^  torn,  &c.,  «.  DONEY. 

1.  Excise  —  License  —  Irregularly  Granted  —  Void 
—  Tavernkeeper  —  Statute.  2.  Id.  —  Id.  —  Ir- 
regularly Gh'anted  —  Expiration  —  Sale  After  — 
Before  Regular  Meeting. 

In  an  action  qui  tarn  for  the  penalty  given  by  the 
Tavern  Act  for  retailing  strong  liquors,  without  a 
license,  it  was  held  that  a  license  granted  by  two  of 
the  commissioners  of  the  excise,  without  the  pres- 
ence or  consent  of  the  supervisor,  and  when  they 
were  not  assembled  for  the  purpose  of  granting  li- 
censes, was  illegal  and  void  ;  and  such  a  license, 
though  regular  on  the  face  of  it,  is  no  justification 
of  the  tavern  keeper,  who  is  liable  for  the  penalty. 
But  a  tavern  keeper  who  has  a  legal  and  competent 
license,  is  not  liable  for  the  penalty  for  retailing 
liquors  after  his  license  has  expired,  and  before  the 
time  of  the  next  meeting  of  the  commissioners  of 
excise,  for  the  purpose  of  granting  licenses. 

Citation—  4  Term  R.,  451  ;  5  Term  R.,  19. 


was  an  action  of  debt,  for  several  pen- 
-  alties  alleged  to  be  incurred  under  the  act 
to  lay  a  duty  of  excise  on  strong  liquors,  and 
for  the  better  regulating  inns  and  taverns. 

The  defendant,  on  the  8th  day  of  April, 
1799,  applied  to  the  plaintiff,  who  was  super- 
visor of  the  town  of  Ballstown,  and  two  justi- 
ces, White  and  Waters,  then  sitting  as  com- 
missioners under  the  act,  for  a  license  to  retail 
spirituous  liquors  for  the  purpose  of  keeping 
347*]  *an  inn  or  tavern.  The  defendant  paid 
White,  one  of  the  justices,  five  dollars,  the 
sum  required  for  such  license;  who,  without 
the  assent  of  the  other  commissioners,  received 
the  same,  and  paid  it  over  to  the  overseers  of 
the  poor  of  the  town.  The  two  justices  had 
given  the  defendant  encouragement  to  expect 
a  license,  but  the  plaintiff  and  Waters  after- 
wards refused  it.  The  defendant  sold  liquors 
both  before  and  after  the  8th  day  of  April. 
On  the  3d  day  of  May  ensuing,  the  plaintiff, 
with  White  and  Ball,  justices,  being  met  to 
canvass  the  votes  taken  at  the  preceding  elec- 
tion for  senators,  &c.  ,  the  defendant  renewed 
his  application,  which  was  rejected  by  the 
plaintiff,  on  the  ground  that  they  were  not 
then  assembled  as  commissioners  under  the  act. 
But  White  and  Ball  retired  into  another  room, 
and  gave  the  license  required.  The  judge 
who  tried  the  cause,  suffered  this  license, 
though  objected  to,  to  be  given  in  evidence, 
JOHNSON'S  CASES,  2. 


and  charged  the  jury  that,  though  irregularly 
obtained,  it  was  sufficient  to  protect  the  de- 
fendant, as  a  third  person;  and  that  it  should, 
by  relation,  be  considered  as  having  been  given 
on  the  8th  day  of  April  preceding;  and  that, 
as  there  had  been  no  board  of  commissioners 
between  the  1st  day  of  March  (on  which  day 
all  permits  expired)  and  the  8th  day  of  April, 
the  defendant  was  justified,  ex  necessitate,  in 
continuing  to  retail  spirituous  liquors,  during 
such  interval.  They  accordingly  gave  a  ver- 
dict for  the  defendant. 

The  plaintiff  now  moved  to  set  aside  this 
verdict,  on  the  ground  of  a  misdirection. 

Mr.  Wbodworth  for  the  plaintiff. 
Mr.  Foot,  contra. 

LEWIS,  J.,  delivered  the  opinion  of  the  court: 
This  prosecution  appears  to  be  a  hard  one 
against  the  defendant.  *Having  paid  [*348 
for  a  license,  and  two  magistrates  having  con- 
sidered him  properly  qualified  for  an  inn- 
holder,  we  are  at  a  loss  to  discover  the  motive 
of  it.  On  the  argument,  I  thought  the  law 
with  the  defendant,  on  all  the  points  raised: 
and  could  my  opinion  be  controlled  by  my 
wishes,  I  should  think  so  still.  But  on  reflec- 
tion and  examination,  we  all  believe  the  charge 
to  be  incorrect,  in  one  important  particular,  and 
the  verdict,  of  course,  wrong.  The  point  to 
which  I  allude,  is  the  protection  set  up  under 
the  license  of  the  3d  of  May,  which  we  do  not 
consider  such  as  the  act  requires.  Two  ques- 
tions arise:  1.  Is  the  license  a  legal  one  ?  2. 
If  not,  is  the  defendant  nevertheless  protected 
by  it  ?  By  the  second  clause  of  the  act,  the 
authority* is  given  to  the  supervisor  and  any 
two  justices  ;  and  by  the  proviso  to  the  same 
clause,  no  license  is  to  be  granted  unless  three 
commissioners  shall  be  present  at  the  granting 
thereof.  Now  it  is  stated  in  the  case  that 
White  and  Ball  retired  from  the  room  where 
the  supervisor  was,  and  signed  and  delivered 
the  license,  &c.  Three  commissioners,  then, 
were  not  present  at  this  part  of  the  ceremony, 
and  it  does  not  appear  that  even  a  majority, 
when  the  three  were  together,  granted,  or 
even  agreed  to  grant  a  license  ;  so  that  the  act 
has,  in  no  way,  been  complied  with. 

Another  objection  is  that  Ball  does  not  ap- 

539 


348 


SUPKEME  COURT,  STATE  OF  NEW  YOKK. 


1801 


pear,  from  the  case,  to  have  been  legally  a 
commissioner  of  excise  for  that  year.  For  the 
jurisdiction  is  vested  in  the  supervisor  and  any 
two  justices  ;  and  of  course,  though  every  jus- 
tice resident  within  the  town  might,  perhaps, 
have  attended  the  first  meeting  ;  yet  as  White 
and  Waters  only  did  attend  with  the  super- 
visor, the  jurisdiction  attached  exclusively  to 
them.  (4 Term  Rep.,  451.) 

One  further  objection  occurs  :  It  is  at  least 
a  question  whether  any  jurisdiction  of  excise 
vests  in  the  justices,  until  noticed  by,  and  as- 
sociated with  the  supervisor.  This  is  certain- 
ly the  case  where,  for  default  of  resident  jus- 
tices, others  are  to  be  resorted  to.  Now,  it 
349*]  does  not  *appear  that  Ball  resided 
within  the  town,  or  was  ever  notified  by,  and 
associated  with,  the  supervisor;  and  the  pre- 
sumption is  against  it,  from  his  not  having  at- 
tended the  first  meeting.  If  either  of  these 
reasons  be  sound,  the  license  set  up  as  a  justi- 
fication is  illegal,  from  a  want  of  authority  to 
grant  it ;  and  the  only  remaining  question  is, 
whether  it  was,  notwithstanding,  a  competent 
defense  to  the  defendant.  If  the  objection  to 
it  rested  on  the  ground  of  irregularity  alone, 
its  incompetence  might  be  doubted  ;  but  it 
goes  to  a  want  of  jurisdiction,  or  power  to 
grant,  in  the  justices  who  signed  it ;  and  the 
defendant  is  certainly  liable  to  the  penalty,  if 
his  license  is  not  derived  from  the  competent 
authority.  He  knew  all  the  circumstances, 
and  the  precise  situation  in  which  the  two 
magistrates  who  signed  his  license  stood  ;  and 
he  is  bound  to  know  that  his  license  is  derived 
from  a  pure  and  legal  source  before  he  acts 
under  it ;  at  least,  there  ought  to  be  strong 
color  of  right  on  his  side.  In  the  case  of  Col- 
craft  v.  Gwbs  (5  Term  Rep.,  19),  on  a  penalty 
under  the  game  laws,  a  verdict  for  the  defend- 
ants was  set  aside,  on  the  principle  that  the 
power  of  appointing  a  game-keeper  is  insepa- 
rable from  a  manor  ;  though  it  was  shown  by 
Gibbs  that  he  was  appointed  game-keeper  by 
Roebuck,  who  had  purchased  an  estate  in  the 
manor,  and  had  stipulated  for  the  deputation 
with  the  plaintiff,  who  was  lord  of  the  manor. 

We  are,  therefore,  of  opinion  that  the  verdict 
mast  be  set  aside,  and  a  new  trial  awarded  ; 
but  that  on  such  trial  no  testimony  of  any 
forfeiture,  previous  to  the  meeting  of  the  com- 
missioners on  the  8th  of  April,  be  admitted  ; 
for  public  inns  being  for  the  public  conven- 
ience, a  traveler  is  not  to  be  barred  the  neces- 
sary refreshments  they  afford,  from  the  neglect 
of  public  officers. 

New  trial  granted. 
Cited  in-1  Johns.,  501 ;  14  How.,  278  :  7  Abb.,  36. 


35O*]     *JACKSON,     ex    dem.    STAATS, 

ET    AL. 

CAREY. 

Spring-field  Patent — Construction  of. 

What  is  the  true  construction  of  the  patent  of 
Springfield  ?  The  third  course  given  in  the  descrip- 
tion is  to  be  run  so  as  to  strike  the  Otsego  Lake  at 
the  nearest  point,  at  the  distance  given,  without  re- 
gard to  the  course  taken,  and  so  as  to  preserve  the 
subsequent  courses. 

540 


THIS  was  an  action  of  ejectment  for  lands 
in  the  County  of  Otsego. 
The  lessor  of  the  plaintiff  claimed  the  premise* 
in  question, which  lie  in  the  County  of  Otsego, 
as  being  within  the  bounds  of  the  patent  of 
Springfield ;  and  the  case  turned  on  the  con- 
struction of  that  patent.  The  words  of  the 
patent  material  in  the  present  instance,  are  as 
follows:  "All  that  certain  tract,  &c.,  on  the 
south  side  of  the  Mohawk  River,  and  on  the 
bank  of  a  lake,  &c.,  beginning  at  a  black  oak 
tree,  &c.,  and  runs  thence  N.  61  deg.  E.,  110 
ch.,  thence,  N.  60  deg.  W.  464  ch. ;  thence, 
S.  30  deg.,  W.  450  ch.,  to  the  aforesaid  lake, 
then  along  the  banks  of  the  said  lake,  easterly 
and  southerly,  to  a  large  birch  tree,  &c.,  at 
which  tree  a  point  of  land  jutting  into  the  lake 
bears  from  it,  N.  35  deg.  W.,  thence  N.  72 
deg.  E.  298  ch.,  to  the  W.  corner  of  the  land 
granted  to  John  Lindsley  and  others  ;  then 
along  the  same,  N.  37  deg.  and  40  m.  E.  239 
ch.  to  the  place  of  beginning."  The  only  ques- 
tion was,  as  to  the  manner  of  running  the  third 
course  of  the  patent.  If  the  line  should  be  run 
according  to  the  course  and  distance,  it  would 
not  strike  the  lake  within  30  chains,  but  ter- 
minate at  that  distance  north  of  the  lake.  If 
the  line  be  run  so  as  to  touch  the  lake,  without 
regarding  the  distance,  with  the  least  variation 
from  the  course,  the  premises,  or  a  part  thereof, 
will  be  included  within  the  bounds  of  the 
patent.  If  the  line  be  run  according  to  the 
course  and  distance,  and  then  a  line  as  nearly 
east  as  might  be,  is  run  to  the  lake,  or  if  the 
line  be  run  so  as  to  strike  the  lake,  at  the 
nearest  distance  from  the  third  station,  a  small 
part  (if  any)  of  the  premises  will  be  included. 
If  after  running  the  third  line  according  to  the 
course  and  distance,  a  *line  be  run  [*351 
from  its  termination,  so  as  to  come  to  the  lake 
at  the  shortest  distance,  and  upon  a  south- 
easterly course,  then  the  premises  will  be  in- 
cluded within  such  lines.  It  was  agreed  that 
a  survey  should  be  made  upon  such  principles 
as  the  court  might  direct,  and  if  any  part  of 
the  premises  be  included  therein,  the  plaintiff 
was  to  have  judgment  for  such  part. 

Messrs.  Hamilton  and  Spencer  for  the  plaint- 
iff. 
Mr.  Hariiton,  contra. 

Per  Curiam.  The  plaintiff  claims  under  the 
patent  of  Springfield,  and  the  question  between 
the  parties  depends  on  the  just  construction  of 
that  patent,  in  respect  to  one  of  its  boundaries. 
The  line  in  controversy  is  susceptible  of  being 
variously  run,  so  as  to  exclude  wholly,  or  to 
comprehend  different  parts  of  the  premises. 
The  parties  have  agreed  to  adopt  the  mode  of 
survey  directed  by  the  court,  and  the  plaintiff 
is  to  have  judgment  or  not,  according  to  the 
result.  The  first  station  given  in  the  patent  is 
not  disputed.  Its  boundaries  from  thence  are 
described  by  courses  and  distances,  without 
any  certain  or  natural  monument,  until  they 
come  to  the  line  in  question.  This  line  is  also 
given  by  a  course  and  distance,  but  is  to  run 
to  Lake  Otsego.  The  words  are,  "thence  south 
30  degrees,  west  450  chains,  to  the  aforesaid 
i  lake."  It  is  found  that  the  course  thus  given 
j  will  run  wide  of  the  lake  ;  and  different  modes 
i  of  ascertaining  the  line  have  been  suggested. 
JOHNSON'S  CASES,  2. 


1801 


JACKSON,  EX  DEM.  VIELY  AND  CI.AKK,  v.  CUEKDEN. 


851 


One  is  to  depart  from  the  course,  so  far  as  is  j  (marked  F  on    the  map  accompanying  the 
noeessiirv   to   strike   thft  obiwr.t.  wit.h    thft   Iftast.    fftKtA      -nrhi/^h     oo-v^ou     mJtV.     tin.  ,.f 


necessary  to  strike  the  object  with  the  least 
•deviation,  which  would  carry  the  line  to  the 
northwestern  extremity  of  the  lake ;  another  is 
to  run  to  a  station  at  the  lake,  which  would  ex- 


case),  which  agrees  with  the  number  of 
chains,  and  more  than  any  other  with  the 
description  in  the  patent,  and  the  probable  in- 
tent of  the  grant. 


correspond  with  the  distance  of  chains;  a 
third  is,  to  run  to  the  nearest  point  in  the  north-  j     Judgment  accordingly. 
«rn  extension  of  the  lake ;  and  a  fourth  is  to  j 

352*]  run  *the  course  and  distance  as  given,  ;  

^ind  to  close  by  a  supplementary  line. 

It  is  evident  that  a  single  line  was  here  in- 
tended, and  it  was  supposed  this  line,  when 
run  according  to  the  course  and  distance 
expressed  in  the  patent,  would  reach  the  lake. 
The  particular  situation  of  the  premises  in 
relation  to  the  lake  was  probably  not  well  1 
understood ;  but  the  lake  was  the  terminus  nd 
qnem,  the  defined  object  which  the  line  was 
intended  to  reach.  In  order  to  carry  this 


intent  into  effect,  we  must  exclude  the  idea  of 


JACKSON,  ex  dem.  VIKIA-  AND  CLAKK, 

v. 
CUERDEN. 

Ejectment — Tenant  in  Poszet&i&n — Title  out  of 
Plaintiff — Adverse  Possession.  2.  Notice  to 
Quit. 


Where  A  who  had  been  many  years  in  possession 
of  land  under  B,  the  supposed  proprietor,  applied 


a    supplementary    line,    and   pursue  a  single  I  afterwards  to  C,  as  the  real  owner,  to  purchase ;  and 
•course  to  the  lake.     For  this  purpose,  a  devia-   " 
tion  from  the  course  is  unavoidable.      The 
least  possible  variation,  in  order  to  touch  the 


lake,  would  exceed  three  degrees,  and  would 
then  strike  the  lake  on  its  western,  instead  of 
its  northern,  extent.  This  could  not  have 
been  intended,  for  it  does  not  comport  with 
the  general  position  of  the  lake,  as  viewed 
from  the  preceding  station,  and  would  require 
the  next  line  to  extend  northerly,  instead  of 


requested  to  be  considered  as  tenant ;  in  an  action 
of  ejectment  by  C  against  A,  it  was  held  that  A 
might  show  that  he  made  the  application  under  a 
mistake,  and  prove  a  title  out  of  C,  though  he 
could  not  set  up  an  adverse  possession  of  twenty 
years ;  A  was  not  tenant  to  C,  so  as  to  be  entitled 
to  a  notice  to  quit. 

Citations-Bull.  N.  P.,  1M;  Cowp.,  623. 


rpHIS  was  an  action  of  ejectment  for  lands  in 
JL  Saratoga  County,  and  was  tried  at  the 

running  easterly  and  southeasterly  along  the  ]  June  circuit,  in  1800." 
banks  of  the  lake,  as  described  in  the  patent.  I  The  plaintiff  gave  in  evidence  a  letter  writ- 
It  is  therefore  necessary  to  incline  the  course  j  ten  by  the  defendant  to  Marv  Clark,  one  of 
still  further  to  the  east  ;  and  the  most  material  i  the  lessors  of  the  *plaintiff ,  dated  at  [*354 
•question  is,  whether  it  shall  be  drawn  to  its  j  Half  Moon,  the  4th  September,  1797,  in  which 
northwestern  extremity,  or  to  that  station  !  he  informs  her  that  "  he  is  in  possession  of  a 
which  will  correspond  with  the  distance  of  j  piece  of  land,  which  appears,  from  the  map, 
chains.  In  determining  on  either  of  those  j  to  be  hers,  and  which  he  had  occupied,  in 
stations,  the  deviation  from  the  course  given  I  company  with  one  Rogers,  for  a  number  of 
does  not  appear  to  be  the  most  important  con-  j  years,  under  Mr.  Gansevoort,  as  soilowner. 
sideration.  The  magnetic  course  is  subject  to  That  as  it  then  appeared  to  belong  to  her  and 

Mr.  Daniel  Campbell,  he  had  purchased 
Campbell's  part  at  $6  per  acre,  and  was  will- 
ing to  pay  her  immediately,  at  the  same  rate, 
for  hers,  which  was,  he  believed,  between 


a-eater  variation,  and  perhaps  the  most  uncer- 
tain of  any  criterion  that  can  be  given.  In 
the  present  case  it  must  have  been  wholly  mis- 
taken, and  must  necessarily  be  abandoned  to 


an  extent  which  renders  it  no  longer  any  sort  j  forty  and  fifty  acres.  He  hopes  she  will  con- 
•of  guide.  Rejecting  the  course,  and  consider-  j  sider  him  and  the  widow  Rogers  as  the  tenants 
ing  the  lake  as  the  great  and  natural  object  |  in  possession,  as  they  wished  to  pay  her  for 
intended,  no  station  appears  to  me  more  prob-  \  the  soil  as  high  as  any  other  person,  &c. 
able  than  the  one  which  corresponds  with  !  The  plaintiff  further  proved  that  the  defend- 
the  distance  of  chains.  Its  position  is  nearly  |  ant  confessed  he  was  in  possession  of  some 
central  on  the  northern  bank  of  the  lake,  as  lands  claimed  by  the  widow  Clark,  but  said  he 


353*]  *oppositeto  the  preceding 


station,  and  went  into  possession  under  the  Half  Moon 
title,  and  that  in  1795  the  defendant  offered  to 
purchase  the  land  of  an  agent  of  the  widow 
Clark.  That  before  and  after  the  offer  to  pur- 


as  likely  to  have  been  in  view  from  thence  as 
any  that  can  be  named.  It  agrees  with  the 
number  of  chains,  and,  in  this  respect,  con-  ( 

forms  more  than  any  other  to  the  description  '•  chase  of  the  agent,  and  before  and  after  the 
in  the  patent ;  and  on  the  whole,  in  a  case  j  writing  of  the  said  letter,  the  defendant 
attended  with  so  much  uncertainty,  no  con- 1  claimed  under  the  Half  Moon  patent,  and  that 
struction  appears  more  equitable,  and  proba- 1  Viely,  one  of  the  lessors,  to  whom  Mary  Clark 
bly  more  consistent  with  the  intent  of  the  '  conveyed  the  premises  in  October,  179*7,  had, 
grant.  Another  course,  running  to  the  near- .  in  May  or  June,  1798,  before  bringing  the 
est  station,  approaching  the  northeastern  ex-  j  suit,  ordered  the  defendant  to  leave  the 
tremity  of  the  lake,  has  also  been  proposed,  j  premises. 

but  there  appears  to  be  no  circumstance  which  j  The  defendant  then  offered  to  give  evidence 
entitles  it  to  a  preference.  It  deviates  from  j  of  more  than  twenty  years  adverse  possession 
both  course  and  distance,  and  its  general  posi- 1  in  himself  ;  but  it  was  overruled  by  the  judge, 
tion,  with  reference  to  the  previous  station,  i  who  said  that  the  defendant,  by  his  letter,  was 
seems  less  probable  than  the  one  already  men-  a  tenant,  and  could  set  up  no  title.  The 
tioned.  We  are,  therefore,  of  opinion  under  j  defendant  then  objected  to  the  want  of  six 
all  the  circumstances,  that  the  line  in  question  months  notice  to  quit,  which  point  was  re- 
ought  to  be  run  to  the  station  at  the  lake  i  served. 
.JOHNSON'S  CASES,  2.  541 


354 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


Mr.  Emott  for  the  plaintiff. 
Mr.  Foot,  contra. 

355*]  *Per  Ouriam.  The  letter  of  the 
defendant  was  sufficient,  prima  facie,  for  the 
plaintiff  to  recover  ;  but  it  did  not  make  the 
defendant  a  tenant  to  the  plaintiff.  The 
defendant  only  wished  to  be  deemed  the  ten- 
ant in  possession,  or  in  other  words,  the  occu- 
pier, having  the  equitable  right  of  pre-emp- 
tion. This  was  sufficient  evidence  to  enable 
the  plaintiff  to  recover ;  but,  on  the  other 
hand,  the  defendant  was  not  precluded  from 
showing  that  he  grounded  his  letter  on  a  mis- 
take, or  that  the  fee  existed  in  himself,  or  out 
of  the  plaintiff.  He  might  be  precluded  from 
setting  up  twenty  years'  adverse  possession, 
for  that  is  only  setting  up  the  statute  of  limit- 
ations, and  his  acknowledgment  by  his  letter 
takes  away  the  statute.  (Bull.  JV.  P.,  104.) 
The  idea  of  notice  is  inapplicable.  Here  was 
no  tenancy,  but  an  adverse  holding.  (Cowp., 
622). 

A  new  trial  must  be  granted,  for  the  mis- 
direction of  the  judge. 

New  trial  granted. 
Cited  in-7  Wend.,  403;  9  Barb.,  640. 


VAN  SCHAICK  «.  EDWARDS. 

Action  on  Notes  —  Consideration  —  Sale  of  Land  — 
Defense  —  Usury  —  Lex  loci  contractus. 

A,  residing  in  the  State  of  Massachusetts,  and 
owning  lands  in  this  State,  entered  into  a  contract 
in  that  State  with  B.,  residing  in  this  State,  for  the 
sale  of  lands  to  him.  B  gave  A  his  bond  for  the 
consideration  money,  payable  in  four  years,  and  also 
four  promissory  notes,  payable  in  one,  two,  three 
and  four  years,  for  the  interest  on  the  bond,  at  the 
rate  of  six  and  a  half  per  cent.,  and  A  executed  a 
bond  to  B  conditioned  to  execute  to  him  a  convey- 
ance for  the  land,  on  payment  of  the  bond  and  notes. 
An  action  was  brought  by  A  against  B  in  this 
court,  on  three  of  the  notes,  to  which  the  defendant 
pleaded  usury.  Whether  the  notes  were  usurious? 
Qucere.  And  whether  the  law  of  Massachusetts  or  of 
this  State,  is  to  govern  ?  Quaere. 

Citations—  3  Term,  425;  3  Burr.,  1077;  Prec.  in 
Cha.,  128  ;  2  Atk.,  372  ;  1  Vesey,  427  ;  3  Atk.,  727  ; 
Powell  on  Cont.,  421;  3  Vin.,  209,  pi.  8;  1  Ves.,  427; 
1  Ves.  Jun.,  531  ;  Cowp.,  115;  Cowp.,  113;  Cowp.,  112; 
1  Ves.  Jun.,  527  ;  1  Eq.  Cas.  Abr.,  288,  289  ;  1  P.  Wins., 
398  ;  1  Ves.,  428  ;  3  Atk.,  727  ;  3  Term  R..  425  ;  2  Burr., 
1078  ;  1  Johns.  Cas.,  139  ;  1  Bos.  &  Pull.,  141,  142  ;  2 
Ersk.  Inst.,  473,  474.  Huberus  loc.  eft. 


was  an  action  of  assumpxit  on  three 
-L  promissory  notes.  The  defendant  pleaded 
usury.  The  cause  was  tried  at  the  Albany 


circuit,  in  September,  1800,  before  Mr.  Justice 
Benson. 

*The  plaintiff  being  seized  of  certain  [*35O 

lands  in  the  County  of  Tioga,  in  this  State, 

on  the  first  day  of  July,  1796,  at  Pittsfield,  in 

Massachusetts,  sold  the  same  to  the  defendant, 

and    in  consideration  thereof  took  his  bond 

for  $1,228.50,  payable  in  four  years,  and  four 

!  promissory  notes,  for  £25  each,  lawful  money 

\  of  Massachusetts,  payable  in  one,  two,  three 

|  and  four  years  ;   and  the  plaintiff  thereupon 

;  executed  a  bond  to  the  defendant,  conditioned 

:  to  convey  the  land  to  the  defendant,  upon  his 

|  paying  the  bond  and  notes.     The  notes  were 

i  given  for  interest  on  the  principal  sum  men- 

'  tioned    in    the  bond,    from  the  time  of  sale 

|  until  the  time  limited  for  payment,  at  the  rate 

of  six  and  a  half  per  cent. 

The  plea  of  usury  set  forth  the  statute  of 
Massachusetts,  of  the  16th  of  March,  1784, 
which  declares  void  all  contracts  for  the  pay- 
ment of  any  principal  or  money  lent,  upon  a 
greater  interest  than  six  per  cent. 

The  plaintiff,  at  the  time  of  making  the 
notes,  resided,  and  now  resides,  at  Pittsfield, 
in  the  State  of  Massachusetts,  and  the  defend- 
ant in  Tioga  County,  in  this  State,  where  the 
lands  lie. 

At  the  time  of  making  the  notes,  the  defend- 
ant insisted  that  the  interest  should  be  calcu- 
lated at  six  per  cent.,    being  the  lawful  in- 
terest   of    Massachusetts ;    but    the    plaintiff 
urged  that  as  the  lands  were  situated  in  the 
1  State  of  New  York,  he  ought  to  be  allowed 
;  seven   per  cent.,  the  lawful  interest  of  this 
j  State  ;  and  the  interest  was  finally  calculated 
!  at  six  and  a  half  per  cent.     A  verdict  was 
i  taken  for  the  plaintiff,  subject  to  the  opinion 
of  the  court,  on  a  case  containing  the  above 
'•  facts. 

Mr.  Hanson  for  the  plaintiff. 
Mr.  Emott,  contra. 

RADCLTFF,  J.  The  plaintiff  has  declared  on 
j  the  three  notes  separately,  and  in  another 
i  count,  on  an  insimul  computassent;  *to  [*357 
|  each  of  the  counts  on  the  note  the  defendant 
:  has  pleaded  the  statute  of  Massachusetts, 
|  against  usury,  and  the  general  issue  to  the 
last  count.  Two  questions  have  been  rai.sed. 

1.  Whether  the   statute    of    Massachusetts 
i  applies  to  the  case  of  a  bonafide  sale  of  lands, 
i  where  there  is  no  actual  loan  of  money. 

2.  Whether  the  contract,  being  in  Massa- 
chusetts, relative  to  lands  in  this  State,  ought 
not,  under  the  circumstances  of  the  case,  to 
be  governed  by  the  law  of  this  State  ? 

Another  question,  relative  to  a  variance  be- 
tween the  evidence  and  the  plea,  was  made  on 


NOTE.— Law  of  place,  usury,  loan  secured  by  mort- 
gage. 

Questions  similar  to  that  on  which  the  court  in 
the  above  case  was  divided,  have  been  much  dis- 
cussed in  the  United  States.  The  cases  are  difficult 
to  reconcile,  and  the  question  may  still  be  regarded 
as  not  decisively  settled.  In  Wharton  on  the  Con- 
flict of  Laws  (sec.  510),  it  is  said :  "  The  true  test  is, 
was  the  mortgage  merely  a  collateral  security,  the 
money  being  employed  in  another  State  and  under 
other  laws ;  or  was  the  money  employed  on  the  land 
for  which  the  mortgage  was  given.  If  the  former 
be  the  case,  then  the  law  of  the  place  where  the 
money  was  actually  used,  and  not  that  of  the  mort- 
gage applies.  If  the  latter,  then  the  law  of  the 
place  where  the  mortgage  is  situate,  must  prevail." 
If  the  above  is  correct,  it  ia  thought  a  purchase 


money  mortgage  and  notes  secured  thereby,  ought, 
also,  to  be  governed  by  the  place  where  the  mort- 
gage is  situate.  The  weight  of  authority  cannot  l>e 
said  to  favor  this  proposition,  however.  See  sec. 

I  501-511  inc.  of  same  work.    Story   on  Conflict   of 

1  Laws,  Sec.  287,  293  b  and  c,  296,  296  a ;  2  Kent  Com., 

I  460. 

i     Compare,  also,  the  following  cases:  Chapman  v. 

i  Robertson,  6  Paige,  627 :  Andrews  v.  Pond,  13  Pet., 
65;  Depau  v.  Humphreys,  10  Martin,  1;  Pecks  v. 

I  Mayo,  14  Vt..  33;  Stapleton  v.  Conway,  3  Atk.,  727; 

'  Pine  v.  Smith,  11  Gray,  38 ;  Cope  v.  Alden,  53  Barb., 

\  a50;  De  Wolf  v.  Johnson,  10  Wheat.,  383;  Potter  v. 

I  Tallinan,  35  Barb.,  182;  Chase  v.  Dow,  47  N.  H.,  405; 

!  Fanning  v.  Consequa,  17  Johns.,  511;  Goddard  v. 

j  Sawyer,  9  Allen,  78. 

JOHNSON'S  CASES,  2. 


1801 


VAN  SCHAICK  v.  EDWARDS. 


the  argument ;  but  I  understand  this  objec- 
tion has  been  relinquished,  and  that  the  par- 
ties expect  a  decision  on  the  merits. 

In  what  light  the  statute  of  Massachusetts 
against  usury  is  considered  in  the  courts  of 
that  State,  has  not  been  shown.  We  have 
not,  therefore,  the  benefit  of  their  decisions, 
and  are  left  to  adopt  our  own  construction. 
It  has  been  stated  to  be  less  extensive  in 
its  operation  than  our  own,  or  the  English 
statutes;  but  on  examination,  I  do  not  perceive 
any  essential  difference.  They  all  profess  the 
same  object,  and  are  expressed  in  terms 
equally  significant  and  comprehensive.  I 
shall,  therefore,  consider  them  as  susceptible 
of  the  same  application. 

On  the  first  question,  I  have  no  doubt  that 
the  statute  applies  to  existing  debts,  as  well  as 
to  immediate  loans  of  money  ;  and  equally  so 
whether  such  debts  have  arisen  from  the  sale 
of  lands,  or  from  any  other  source.  The 
statute  itself  speaks  only  of  loans  ;  but  the  for- 
bearance, or  giving  time  of  payment  for  a 
debt,  is  in  substance  a  loan.  It  cannot  be 
material  whether  the  money  or  its  value  be 
thus  lent,  or  has  been  previously  received. 
There  appears  to  have  been  no  controversy  on 
this  point,  in  the  cases  that  have  been  cited. 
They  relate  principally  to  the  question  whether 
a  loan  was  masked  under  cover  of  a  sale,  not 
358*]  whether  a  debt  arising  *from  a  sale 
might  be  the  subject  of  usury.  Usury  is  de- 
fined to  be  the  taking  of  more  than  the  law 
allows  upon  a  loan,  or  for  the  forbearance  of  a 
debt.  (1  Vesey,  Jun.,  531.)  In  the  case  of 
Dewar  v.  Span  (3  Term  Rep.,  425),  the  for- 
bearance of  a  debt  arising  from  the  sale  of  a 
real  estate,  in  consideration  of  interest  at  six 
per  cent. ,  was  held  to  be  usurious. 

The  inquiry  in  the  present  case,  therefore, 
is,  whether  the  contract  created  a  debt,  and 
whether,  for  the  forbearance  of  that  debt, 
more  than  lawful  interest  was  reserved. 

The  plaintiff  sold  to  the  defendant  two 
tracts  of  land,  for  which  the  latter  undertook 
to  pay  a  stipulated  price.  The  value  of  the 
land  was  agreed  upon  and  ascertained,  and  a 
bond  executed  for  the^mount.  Although  the 
contract  was  still  executory,  as  to  some  of  its 
objects,  this  immediately  constituted  a  debt 
due  from  the  defendant,  to  be  paid  in  futuro. 
For  the  forbearance  of  this  debt,  the  notes  on 
which  this  action  was  brought  were  given. 
If  the  interest  reserved  on  these  notes  was  un- 
lawful, the  contract  was  usurious  and  void  by 
the  law  of  Massachusetts. 

On  the  second  point,  the  general  rule  of  the 
lex  loci  contractus,  if  applicable  to  the  case,  is 
fully  settled,  and  has  become  a  principle  of 
universal '  law  in  the  construction  of  all  con- 
tracts. The  reason  of  the  rule  I  apprehend 
to  be  that  the  parties  are  considered  to  have 
in  view  the  law  of  the  country  where  the  con- 
tract is  made,  and  in  many  cases  are  bound  to 
be  governed  by  it.  It  would,  therefore,  be 
unjust  to  invalidate  this  engagement,  or  alter 
its  operation  or  extent,  by  the  law  of  any 
other  country.  If  no  circumstances  attend 
the  present  case  to  take  it  out  of  this  rule, 
there  will  be  an  end  to  the  question,  as  far  as 
respects  the  validity  of  the  notes,  by  the  law 
of  Massachusetts.  But  it  is  certain  that  cir- 
cumstances may  exist,  arising  from  the  situa- 

JOHNSON'S  CASES,  2. 


tion  of  the  parties,  the  nature  of  the  transac- 
tion, *or  the  object  of  the  contract,  [*359 
essentially  to  vary  the  rule.  Thus,  in  the 
case  of  Bland  v.  Robinson  (3  Burr.,  1077),  a 
bill  of  exchange  drawn  in  France,  and  made 
payable  in  England,  was  held  to  be  governed, 
not  by  the  law  of  France,  but  by  the  English 
law.  So  on  the  question  of  interest,  where  a 
bond  was  executed  in  England,  and  sent  over 
to  Ireland,  conditioned  to  be  paid  there,  with- 
out specifying  the  rate  of  interest,  it  was  held 
to  carry  Irish  interest.  (Prec.  in  Ch.,  128.) 
In  these  cases  the  place  of  performance  was 
made  the  criterion  by  which  to  discover  the 
sense  of  the  parties,  and  ascertain  the  law  of 
the  country,  which  should  govern.  In  an- 
other case  (2  Atk. ,  382),  where  the  debt  was 
contracted  in  England,  and  a  bond  to  secure 
the  payment  given  in  Ireland,  Irish  interest 
was  allowed ;  and  Lord  Jlardwicke  there 
observed  that  the  debt  must  be  considered  as 
referable  to  the  place  where  the  security  was 
made,  or  who  would  lend  money  upon  Irish 
security  ? 

But  in  cases  (1  Vesey,  427;  3  Atk.,  727; 
Powell  on  Cont.,  421)  where  the  contract  for 
the  debt,  and  the  security  were  both  made 
in  England,  although  the  security  was  taken 
on  an  estate  in  the  colonies,  it  was  held,  in 
order  to  prevent  an  opportunity  of  evading 
the  statutes  against  usury,  that  no  more  than 
English  interest  could  be  reserved.  This 
occasioned  the  statute  of  14  Geo.  III.,  which 
declared  that  such  securities  should  be  valid, 
although  they  reserved  more  than  English  in- 
terest, if  they  did  not  exceed  the  interest  of  the 
place  where  the  property  was  situated.  The 
rule  adopted  previous  to  this  statute,  although, 
perhaps,  originally  questionable  in  itself,  has 
been  since  confirmed  by  the  English  decisions 
in  other  cases,  and  still  prevails,  particularly 
in  relation  to  personal  contracts. 

The  residence  of  the  parties  has  also  been 
regarded,  with  a  view  to  this  subject.  In  tiie 
case  of  Phipps  v.  The  Earl  of  Anglesea  (3  Vin., 
209,  pi.  8),  where  portions  *were  se-  [*3OO 
cured  by  a  marriage  settlement  and  by  will, 
both  of  which  were  made  in  England,  but  the 
portions  charged  on  an  estate  in  Ireland,  Lord 
Parker  decreed  that  as  the  contract  and  will 
were  made  in  England,  and  all  parties  re- 
sided there,  the  money  should  be  paid  into 
court  with  English  interest,  and  without 
deducting  the  charges  of  return  from  Ire- 
land. 

From  these  cases  it  appears  that  where  the 
contract  is  to  be  performed,  or  the  interest  is 
to  be  paid,  or  the  security  to  be  taken  in  an- 
other place,  deviations  from  the  rule  have  been 
admitted,  and  the  law  of  that  place  adopted. 
The  residence  of  the  parties  alone  has  not  been 
regarded  as  decisive ;  but  it  has  its  weight,  in 
order  to  show  their  probable  intent,  and  the 
law  of  the  country  they  had  in  view.  In  the 
present  case,  it  is  admitted  that  the  defendant 
resided  in  this  State,  and  the  plaintiff  in  Mas- 
sachusetts. Their  residence  alone  could  not, 
therefore,  form  a  criterion,  if  it  was  otherwise 
more  essential. 

But  there  is  stronger  evidence  than  this  cir- 
cumstance affords  of  the  intent  of  the  parties 
in  this  instance.  The  plaintiff  expressly 
claimed  New  York  interest,  because  the  lands 

&4* 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


were  situated  here.  The  defendant  resisted 
the  claim,  and  contended  for  the  interest  of 
Massachusetts.  Finally,  they  agreed  to  a 
medium  between  both,  which  could  only  have 
been  done  with  a  view  to  the  law  of  this  State. 
So  far,  then,  as  the  sense  of  the  parties  is  ma- 
terial on  this  subject,  it  is  expressly  ascertained 
that  they  made  the  law  of  this  State  the  basis 
•of  the  contract. 

But  I  think  there  are  circumstances  inherent 
in  this  case,  which  show  that  the  law  of  this 
State,  and  no  other,  was  contemplated,  and 
•ought  to  govern.  All  the  parts  of  this  trans- 
action must  be  deemed  to  compose  one  con- 
tract. It  is  entire  and  indivisible,  and  the 
whole  must  be  subject  to  the  law  of  Massachu- 
setts, or  of  this  State.  It  cannot  be  divided 
<$61*j  and  controlled  by  different  *laws.  It 
is  also  executory  in  its  operation.  The  de- 
fendant, it  is  true,  bound  himself  absolutely 
to  pay  the  money,  but  the  plaintiff  was  un- 
willing to  rely  on  his  personal  responsibility. 
He  therefore  retained  the  title  of  the  land  as  a 
security  for  its  performance.  The  title,  in  its 
nature,  is  local,  and  exists  here, and  the  securi- 
ty must,  of  course,  be  equally  so.  The  security, 
therefore,  exists  in  this  State  and  is  equivalent, 
at  least,  to  a  mortgage  of  the  premises  executed 
here.  Had  the  title  been  conveyed,  and  a 
mortgage  executed,  the  debt,  according  to  the 
principle  maintained  by  Lord  Hardwicke, 
would  have  been  referable  to  the  place  where 
the  security  was  made.  So,  in  the  present 
case,  although  the  security  does  not  appear  in 
the  form  of  a  mortgage,  it  is  equally  effectual, 
and  exists  here  as  the  original  title  did;  and  it 
seems  the  debt  must  equally  refer  to  the  place 
where  it  exists.  If  this  analogy  be  just,  the 
plaintiff  would  be  entitled,  by  means  of  this 
security,  to  the  benefit  of  the  law  of  this  State 
in  relation  to  the  interest. 

In  another  view,  the  question  will  be  at- 
tended, and  I  think  more  satisfactorily,  with 
the  same  result.  The  contract,  as  has  been 
stated,  is  executory.  It  is  precisely  the  same 
-as  if  the  defendant  had  covenanted  to  pay  the 
money,  and  the  plaintiff,  on  receiving  it.  to 
convey  the  premises.  Its  performance,  on  the 
part  of  the  plaintiff,  has  evidently  an  immedi- 
ate reference  to  the  law  of  this  State ;  for  it  is 
an  established  maxim  that  the  mode  of  con- 
veyance must  be  regulated  by  the  law  of  the 
country  where  the  estate  i.s  situated.  From 
the  nature  of  the  thing,  the  parties  must,  there- 
fore, have  had  in  view  a  conveyance  according 
to  our  law.  The  conveyance  must  also  be 
considered  as  intended  to  be  executed  here. 
I  do  not  mean  to  be  understood  that  it  might 
not  be  executed  abroad;  but  the  legal  pre- 
sumption is  that  it  should  be  done  here,  and 
JJ62*]  that  possession  *be  delivered  with  it. 
The  performance  of  the  contract,  on  the  part 
of  the  plaintiff,  is,  therefore,  clearly  to  be 
made  here,  or,  at  least,  according  to  our  law; 
and  if  the  contract  be  entire,  as  with  regard  to 
this  question  it  must  certainly  be  considered, 
it  follows  that  the  law  of  this  State  must  gov- 
ern it  wholly.  It  appears  to  me  to  be  irrecon- 
cilable to  suppose  the  contract  capable  of  being 
parcelled,  for  the  purpose  of  governing  differ- 
ent parts  of  it  by  the  laws  of  different  States. 
The  notes  being  payable  before  the  time  lim- 
ited for  the  ultimate  performance  of  the  con- 

544 


tract,  may,  in  one  sense,  be  denominated  inde- 
pendent contracts;  but  they  are  so  for  the 
purpose  of  the  remedy  only.  In  this  sense, 
mutual  agreements  are  frequently  deemed  in- 
dependent of  each  other,  although  contained 
in  the  same  instrument,  and  relative  to  the 
same  subject ;  but  they  are  not  separate  con- 
tracts; they  still  compose  one  whole,  and  are 
more  properly  termed  independent  parts  of  the 
same  contract. 

On  the  question  of  usury,  the  investigation 
I  of  which  necessarily  embraces  the  whole  trans- 
|  action,  I  think  they  can  never  be  separated. 
|  Had  the  agreement  been  completely  executed, 
and  the  notes  been  given  for  the  consideration 
money  simply,  they  might,  as  subsequent  and 
unconnected  securities,  be  considered  as  form- 
ing a  separate  debt,  and  as  coming  within  the 
case  of  Dswar  v.  Span,  already  cited.  In  that 
case,  there  was  a  sale  of  an  estate  in  the  West 
Indies,  and  a  bond  given  in  England  for  the 
purchase  money,  reserving  six  per  cent,  inter- 
est. This  bond  was  afterwards  cancelled 
and  another  given  carrying  the  same  inter- 
est. The  transfer  of  the  property  was  com- 
plete :  and  in  a  suit  brought  on  the  second 
bond.  Lord  Kenyon  observed  that  the  simple 
question  was,  whether  a  bond  given  by  one 
person  to  another,  both  resident  in  England, 
was  valid,  though  it  reserved  more  than  Eng- 
lish interest.  The  question  in  the  present  case 
is  very  different,  inasmuch  as  it  depends  on 
the  *original  contract  of  sale,  which  is  [*36I5 
still  open,  and  to  be  executed  within  this 
State. 

I  think  this  case  is  equally  to  be  distin- 
guished from  that  of  Stapleton  v.  Comcay  ( 1 
Ves.,  437),  in  which  Lord  Hardwicke  is  re- 
ported to  have  held  that  a  mortgage  made  in 
England  on  an  estate  in  the " West  Indies, 
should  carry  no  more  than  English  interest. 
His  lordship's  opinion  is  plainly  founded  on 
the  idea  of  a  simple  loan,  or  debt,  created  in 
England,  between  parties  residing  there,  and 
unconnected  with  any  circumstances  arising 
from  the  nature  or  the  objects  of  the  contract, 
to  entitle  it  to  India  interest.  Although  this 
opinion  seems  to  hav&>  been  questioned,  and 
probably  produced  the  statute,  which,  after 
reciting  doubts,  prescribes  a  different  rule.  I 
should  be  inclined  to  respect  the  high  author- 
ity of  Lord  Hardwicke  if  it  were  applicable  to 
the  case  before  us.  But  the  circumstances 
here  are  essentially  different.  The  premises, 
which  are  the  consideration  of  the  contract, 
are  situated  within  this  State ;  the  parties 
themselves  had  an  express  view  to  our  law  ; 
one  of  them  resided  here;  the  title  was  retained 
as  a  security  for  the  performance  on  the  part 
of  the  defendant;  the  agreement  was  executory, 
and  on  the  part  of  the  plaintiff  was  clearly  to 
be  executed  according  to  the  law  of  this  State, 
and  being  entire,  it  must  be  wholly  governed 
by  it. 

For  these  reasons,  I  am  of  opinion  that  the 
law  of  this  State,  and  no  other,  must  decide, 
and  of  course  that  no  usury  exists. 

It  may  also  be  a  question  how  far  the  stat- 
ute of  Massachusetts,  in  relation  to  this  sub- 
ject, is  to  be  regarded  as  a  penal  act;  and 
whether  our  courts  will  enforce  the  penal 
laws  of  another  State :  but  believing  the 
grounds  already  stated  to  be  sufficient  for  the 
JOHNSON'S  CASES,  2. 


1801 


VAN  SCHAICK  v.  EDWARDS. 


363 


present  decision,  I  forbear  to  examine  the  lat- 
ter points.1 

364*]  *KENT,  /.  1.  The  act  of  Massa- 
chusetts is  substantially  the  same  as  the  stat- 
ute of  Anne  and  the  act  of  this  State  on  the  sub- 
ject of  usury,  and  is,  accordingly,  to  receive  the 
same  construction.  I  have  compared  them,  and 
the  act  of  Massachusetts  is  equally  extensive  in 
its  operation.  It  reaches  expressly  to  all  usu- 
rious contracts,  ' '  for  the  loan  or  forbearance  of 
moneys,  or  other  things  actually  lent  or  sold." 
Usury  is  taking  more  than  the  law  allows  for 
forbearance  of  a  debt ;  and  whenever  a  debt  is 
created,  and  there  is  an  agreement  to  pay  more 
than  legal  interest  for  forbearance  of  pay 


of  it,  such  agreement  is  usurious.  (1  Ves. ,  Jun. , 
531;  Cowp.,  115.)  If  a  loan  be  necessary  to 
constitute  a  usurious  contract,  yet  it  is  not 
necessary  to  the  creation  of  a  loan  that  the 
money  should  be  paid  on  the  one  hand  and  re- 
ceived on  the  other  ;  for  the  circumstance  of  a 
man's  money  remaining  in  another's  hands,  in 
consequence  of  an  agreement  for  that  purpose, 
will  constitute  a  loan.  (Cowp.,  113.)  In  the 
<cases  of  Floyerv.  Edwards  (Cowp.,  112),  and 
of  Spurrier  v.  Mayoss  (1  Ves.,  Jun.,  527),  no 
doubt  seems  to  have  been  entertained  in  the 
Court  of  King's  Bench,  or  by  the  commissioners 
in  chancery,  but  that  upon  the  sale  of  lands  or 
goods,  an  agreement  reserving  excessive  inter- 
est for  forbearance  of  payment  of  a  debt  might 
be  usurious.  To  make  an  agreement  usurious, 


interest,  it  would  be  within  the  statute  of  usury, 
notwithstanding  that  was  the  rate  of  interest 
where  the  lands  lay.  For  if  the  courts  were  to 
suffer  a  mortgage  made  in  England,  on  lands 
abroad,  to  carry  a  foreign  interest,  it  would  be 
a  method  to  evade  the  statute  of  usury.  Such 
a  contract  would  be  as  much  against  the  statute 
as  any  other  contract. 

The  case  of  Dewar  v.  Span  (3  Term  Rep., 
425)  is  to  the  same  effect.  A  bond  was  given 
in  England,  upon  the  purchase  of  an  estate  in 
the  West  Indies,  with  the  reservation  of  interest 
at  six  per  cent.;  and  although  it  was  contended 
on  the  argument  that  though  the  bond  was  exe- 
cuted in  England  it  arose  out  of  a  contract  for 
the  purchase  of  a  West  India  estate,  yet  the 
court  unanimously  held  the  bond  to  be  usuri- 
ous ;  and  that  if  that  attempt  were  to  succeed, 
it  would  sap  the  foundation  of  the  statute  of 
usury.  And  to  prevent  certain  inconveniences 
*from  the  operation  of  this  rule,  it  was  [*3(i6 
provided  by  the  statute  of  14  Geo.  III.  that  all 
mortgages  and  securities  executed  in  England, 
concerning  lands  in  Ireland  or  the  West  Indies, 
and  bearing  an  interest  not  exceeding  six  per 
cent.,  should  be  valid  ;  but  this  statute  did  not 
extend  to  personal  contracts. 

It  was  admitted,  in  the  case  of  Robinson  v. 
Bland  (2  Burr.,  1078),  that  the  law  of  the  place 
where  the  contract  was  made  was  not  to  be 
the  rule  by  which  it  was  to  be  governed,  if  the 
same  was  entered  into  with  an  express  view  to 
the  law  of  another  country;  as  in  that  case  the 


it  was  held  necessary  only  that  there  should  be  j  bill  of  exchange  for  a  gaming  debt,  although 


drawn  in  Paris,  was,  by  the  express  terms  of 
it,  made  payable  in  England.'2  But  in  the 
present  case,  there  is  no  such  language  ;  and 
the  law  will  intend  the  contract  was  to  be  exe- 
cuted where  it  was  made,  and  to  have  a  refer- 
ence to  the  law  of  that  State. 

Though  it  be  admitted  that  the  parties  had 
in  view  the  law  of  this  State,  in  the  establish- 
ment of  the  rate  of  interest,  that  makes  no  al- 
teration, as  I  apprehend,  in  the  result.     In  the 
-ance  of  "payment  of  the  principal.     It  is  ascer-  j  case  of  Dewar  v.  Span,  the  parties  equally  had 


.a  debt  created,  on  such  sale,  and  a  corrupt 
agreement,  to  take  illegal  interest  thereon,  for 
forbearance  of  payment. 

In  the  present  case,  there  was  a  debt  created 
.absolutely,  in  the  first  instance,  and  an  action 
would  lie  on  the  bond,  after  the  time  limited 
for  payment.  It  is  also  stated  to  have  been 
proved  that  the  notes,  at  the  rate  of  six  and  a 
half  per  cent.,  were  taken  by  the  express  under- 
standing of  the  parties,  as  interest  for  forbear- 


tained  and  stated  that  this  was  the  view  of  the 
365*]  parties  at  the  time.  This  *precludes 
all  doubt  as  to  the  true  intent  and  meaning  of 
the  parties,  and  all  pretense  for  saying  the 
interest  was  here  part  of  the  price  of  the  estate, 
and  not  a  satisfaction  for  delay  of  payment. 

2.  The  second  point  is,  whether  the  lawful 
interest  of  this  State  is  not  to  be  the  rule  by 
which  the  contract  is  to  be  governed,  notwith- 
standing it  was  executed  in  Massachusetts. 

It  is  the  general  rule  that  interest  must  be 
paid  according  to  the  law  of  the  country  where 
the  debt  was  contracted,  and  not  according  to 
that  where  the  debt  is  sued  for  (1  Eq.  Cas.  Abr. , 
288,  289;  1  P.  Wms.,  396),  and  I  see  nothing 
to  take  the  present  case  out  of  the  rule.  It  is 
true,  the  consideration  of  the  debt  was  lands 
within  this  State ;  but  it  has  repeatedly  been 
decided  that  such  a  circumstance  makes  no  al- 
teration in  the  law.  In  the  case  of  Stapleton 
v.  C<mway(l  Ves.,  428;  3  Atk.,  727),  Lord  Hard- 
wicke  observed  that  if  a  contract  was  made  in 
England  for  a  mortgage  of  a  plantation  in  the 
West  Indies,  and  there  be  a  covenant  in  the 
mortgage  for  the  payment  of  eight  per  cent. 


in  view  the  West  India  rate  of  interest  where 
the  land  lay.  Suppose  an  inhabitant  of  this 
State  had  gone  to  the  plaintiff  at  Pittsfield  for 
the  loan  of  money,  and  the  plaintiff  had  exact- 
ed seven  per  cent.,  and  declared  in  his  bond 
that  as  the  borrower  lived  in  this  State,  and 
the  money  was  to  be  used  here,  the  parties, 
deeming  it  reasonable,  had  agreed  that  the  rate 
of  interest  on  the  loan  should  be  seven  per 
cent.,  according  to  the  rate  of  interest  here. 
Would  such  a  bond,  with  such  an  express  refer- 
ence to  our  law,  be  valid,  under  the  statute  of 
Massachusetts?  I  conclude  not;  for  notwith- 
standing the  borrower  lived  here,  yet  the  rule 
in  Huberus  applies,  that,  "whoever  makes  a 
contract  in  any  particular  plqce,  is  subjected 
*to  the  laws  of  the  place,  as  a  tempo-  f*367 
rary  citizen."  It  is  not  enough  that  the  parties 
have  a  view  or  reference  to  the  law  of  another 
State  in  the  formation  of  their  contract;  for  if 
that  were  sufficient,  the  statute  of  usury  would, 
in  every  case,  at  the  option  of  the  parties,  be- 
come a  dead  letter.  The  rule  is,  that  the  par- 
ties must  have  a  view  to  the  laws  of  another 


1.— See  1  H.  Black.,  143;  1  Johns.  Rep.,  95;  Cowp., 
3*3. 

JOHNSON'S  CASES,  2.  N.  Y.  REP.,  BOOK  1. 


2.— See,  also,  1  Johns.  Rep.,426 ;  1  Games'  Rep.,  412 ; 
Huber.,  lib.  1,  tit.  Ill,  de  conflicts  Ug.;  2  Johns.  Rep., 
235;  3  Dallas,  370;  1  H.  Black.,  684;  4  Johns.  Rep., 
285;  1  Johns.  Cas.,  139. 

35  545 


367 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1801" 


State,  in  the  execution  of  the  contract,  and 
then,  undoubtedly,  the  contract  is  to  be  govern- 
ed by  such  foreign  law.  Had  the  money,  for 
instance,  in  this  case,  been  made  payable  at 
Albany  or  elsewhere  in  this  State,  then,  per- 
haps, the  decision  in  Robinson  v.  Bland  would 
have  applied,  and  our  law  would  have  govern- 
ed; but  no  place  being  appointed,  the  law  will 
intend  the  place  to  be  where  the  contract  was 
made,  and  where  the  person  resides  to  whom 
the  money  is  payable. 

The  parties,  it  is  true,  must  have  had  in  view 
the  law  of  this  State  in  the  execution  of  the 
deed  for  the  land;  for  the  requisite  solemnities 
of  conveyance  of  land  must  be  conformable  to 
the  law  of  the  country  where  the  lands  are 
situated.  But  I  cannot  suppose  that  the  cir- 
cumstance of  the  conveyance  has  any  influence 
upon  the  reservation  of  interest,  by  the  con- 
tract for  the  payment  of  the  money,  any  more 
than  the  West  India  purchase  had  in  the  case 
of  Dewar  v.  Span.  The  payment  of  the  money 
was  a  distinct  and  prior  duty.  The  bond  is 
absolute.  The  notes,  for  which  the  present 
suit  is  brought,  were  made  payable,  one,  two, 
and  three  years,  before  the  time  for  the  execu- 
tion of  the  deed.  They  are,  therefore,  to  be 
considered  as  a  distinct  "and  independent  con- 
tract, completely  executed  on  the  part  of  the 
defendant.  The  plaintiff,  by  retaining  the  ti- 
tle in  himself,  until  the  money  was  paid,  has 
preserved  a  lien  upon  the  land,  to  the  same 
purpose  and  effect  as  a  mortgage;  and  suppose 
the  lien  had  been  retained  in  the  shape  of  a 
common  mortgage,  would  that  have  altered  the 
case?  The  circumstance  of  a  mortgage  being 
given  to  secure  the  payment  of  a  bond,  reserv- 
3G8*]  ing  usurious  interest,  has  *never  been 
deemed  sufficient  to  take  the  case  out  of  the 
statute,  though  the  mortgage  be  on  lands 
abroad,  and  intended  by  the  parties  to  be 
governed  by  the  foreign  law.  This  was  the 
case  in  Stapleton  v.  Conicay. 

Suppose,  then,  a  person  in  this  State  had 
gone  to  the  plaintiff  in  Pittsfleld  to  borrow 
money,  and  the  plaintiff  had  loaned  money  at 
seven  per  cent.,  and  to  secure  the  payment 
had  taken  a  mortgage  on  lands  here,  executed 
as  it  must  be  according  to  oui  law,  and,  for 
greater  security,  had  got  the  same  recorded  in 
the  county  where  the  lands  lie,  would  a  suit, 
in  that  case,  on  the  bond,  in  the  courts  of 
Massachusetts,  be  governed  by  our  law  or  by 
their  own?  If  by  our  law,  then,  their  statute 
becomes  a  nullity  whenever  the  usurious 
lender  in  that  State  is  prudent  enough  to  take 
the  real  security  abroad  for  the  debt,  then 
the  statute  in  England  of  14  Geo.  III.  was  un- 
necessary and  idle,  for  it  says,  mortgages 
taken  in  England  on  lands  abroad,  and  bear- 
ing an  interest  above  their  legal  rate,  may  be 
good.  But  if  the  bond,  in  that  case,  would 
be  void,  then  I  ask,  where  is  the  substantial 
difference  between  the  case  stated  and  the 
present?  The  plaintiff  has  not  taken  a  mort- 
gage in  form,  but  he  has  done  substantially 
the  same  thing  ;  he  has  retained  the  equitable 
lien  in  his  own  hands.  It  is  true  that  when 
the  money  is  paid,  a  deed  is  to  be  executed,  so 
as  to  be  valid  by  our  law;  and  so  in  the  other 
case,  of  a  mortgage,  when  the  money  is  paid 
the  fee  is  to  be  revested,  and  the  mortgage 
cancelled  in  a  valid  manner,  according  to  our 
546 


laws.  I  see  no  difference  in  the  cases  so- 
material  as  to  render  the  contract  in  the  one 
case  null,  and  in  the  other  good. 

The  notes  are  given,  by  the  express  terms  of 
them,  for  lawful  money  of  Massachusetts;  and 
this  being  a  personal  contract,  and  operating 
distinctly  and  independently,  and  payable 
where  the  parties  reside,  it  must  be  governed 
by  the  law  of  the  place  where  it  was  made.1 
*I  cannot  distinguish  this  case,  in  [*36O 
reference  to  the  usury,  from  the  cases  I  have 
cited. 

It  being  then  to  be  considered  that  the  notes 
I  are,  by  the   law  of  Massachusetts,   usurious 
and  void,  and  that  the  law  of  that  State,  and 
j  not  of  this,  is  the  rule  by  which  the  contract 
i  for  the  payment  of  the  money  is  to  be  gov- 
erned, it  follows  that  we  are  bound  to  pro- 
nounce upon  it,  according  to  the  law  of  Mas- 
sachusetts.    It  was  a  principle  admitted  by 
this  court  in  the  case  of  Lodge  v.  Phelps  (1 
Johns.   Cas.,  139),  that  the  lex  loci  contracts 
was  to  govern,  in  the  determination  of  personal 
contracts ;  and  this  is  a  rule  of    justice  in 
i  practice  among  all  civilized  nations.    (1  Bos.  & 
j  Pull.,  141,  142;  SErsk.  Last..  473,  474;  Hu- 
j  berus,  loe.  tit.) 

I  am,  accordingly,  of  opinion  that  judgment 
j  ought  to  be  rendered  for  the  defendant. 

• 

LEWIS,  J.  How  far  the  fear  loci  contracttis  is, 
in  this  case,  to  govern,  or  whether  usury  is 
1  applicable  to  any  contracts  but  those  which 
|  respect  loans,  I  shall  not  consider,  because,  in 
my  view  of  the  subject,  it  cannot  be  affected 
!  by  them.  For  admitting  that  the  decision 
i  must  be  according  to  the  law  of  Massachusetts, 
;  and  that  the  statutes  of  usury  extend  to  cases 
of  forbearance,  where  there  has  been  no  loan, 
I  in  my  opinion  this  would  in  no  country  be 
considered  a  case  within  them.  The  amount 
of  the  bond  and  notes  together  constitute  the 
price,  upon  payment  of  which  the  lands  were 
to  be  conveyed;  and  upon  whatever  principle 
the  plaintiff  may  have  calculated  the  differ- 
ence between  his  cash  and  his  credit  price, 
whether  on  that  of  a  certain  rate  of  interest, 
or  of  an  equivalent  for  the  probable  increased 
value  of  the  land,  at  the  period  of  payment, 
an  execution  of  the  conveyance  is  peVfectly 
immaterial.  He  may,  certainly,  without  ex- 
posing himself  to  the  penalties  of  usury,  ask 
one  price  in  cash  for  his  lands,  and  any  greater 
sum  on  credit ;  and  although  he  should  assign 
as  a  reason  that  lands  sold  on  credit  ought 
*to  yield  more  than  legal  interest,  the  [*37O 
nature  of  the  contract  would  not  be  more 
affected  thereby  than  if  he  should  say,  my 
lands,  if  kept  to  such  a  day,  will  yield  me  so 
much,  therefore  I  will  ask  it.  The  notes 
speak  not  of  interest,  and  the  plain  and  simple 
language  of  the  contract  is,  on  your  paying 
me  $333.33,  in  four  equal  annual  payments, 
and  the  further  sum  of  $1,228.50  at  the  end  of 
four  years,  I  will  convey  to  you,  &c. 

I  am  of  opinion  the  plaintiff  ought  to  have 
judgment. 

LANSING.  Ch.  J.,  concurred  with  LEWIS, 
J.,  on  the  first  point,  that  the  notes  were  part 

1.— See  2  Esp.  Cas.,  528 ;  1  Term  Rep.,  241 ;  1  Johns. 
Rep.,  94. 

JOHNSON'S  CASES,  2. 


1801 


MAYELL  v.  POTTEK. 


370 


of  the  price  for  the  land,  and  not  usurious  ;  ' 
and  that  the  plaintiff  was,  therefore,  entitled 
to  judgment ;  on  the  second  point,  he  concur- 
red with  KENT,  J. ,  that  the  lex  loci  contractwi  \ 
ought  to  govern.     He  gave  his  reasons  at  large, 
but  the  reporter  is  unable  to  state  them. 

Three  of  the  judges  (contra,  KENT,  J.)  were, 
therefore,  in  favor  of  a  judgment  for  the 
plaintiff. 

Judgment  for  the  plaintiff .l 

Cited  in— 17  Johns.,  519;  1  Paige,  225;  3  N.  Y.,  a59; 
12  Abb.,  246 ;  1  Daly,  185 ;  1  Bias.,  339 ;  1  Gall.,  375 ; 
1  Mason,  220. 


371*]        *MAYELL  v.  POTTER. 

Common  Carrier — Failure  to  Find  Consignee — 
Delivery  to  Another  for  Him  —  Usage  of 
Trade. 

Where  a  master  of  a  vessel  signed  a  bill  of  lading 
to  deliver  four  cases  of  goods  to  N.  T.  at  Norfolk, 
who  was  a  transient  person,  and  not  a  resident  at 
Norfolk,  and  the  master,  on  arriving  at  Norfolk,  in- 
quired for  N.  T.  and  could  not  find  him,  and  de- 
livered the  goods  to  merchants  there  for  N.  T.,  it 
was  held  that  the  master,  having  acted  bona  fide, 
and  according  to  the  usage  of  trade,  was  not,  under 
the  particular  circumstances  of  the  case,  liable  to 
the  consignor  on  the  bill  of  lading. 

Citations— 3  Wils.,  439;  4  Term  R.,  260. 

rp.HIS  was  a  special  action  on  the  case,  on  a 
-L  bill  of  lading,  signed  by  the  defendant,  as 
master  of  the  schooner  Dove,  at .  New  York, 
on  the  31st  January,  1799,  in  which  he  ac- 
knowledged the  receipt  of  four  cases  of  mer- 
chandise to  be  delivered  to  Najah  Taylor,  or  his 
assigns,  at  Norfolk,  in  Virginia,  and  which 
the  plaintiff  averred  had  not  been  delivered. 

The  facts  were  that  Najah  Taylor  left  New 
York  a  few  days  before  the  defendant  sailed, 
and  arrived  at  Norfolk  about  the  6th  February, 
1799,  and  remained  there  until  the  26th  Feb- 
ruary, but  did  not  reside  in  Norfolk.  He 
only  went  there  on  business,  and  considered 
himself  a  transient  person,  and  had  no  at- 
torney or  agent  there.  During  that  time  he 
frequently  inquired  whether  said  schooner  had 
arrived,  and  found  she  had  gone  to  City  Point, 
about  100  miles  above,  and  that  he  frequently 
inquired  at  the  postoffice  for  letters  from  the 
plaintiff  or  defendant,  and  found  none.  The 

1. — But  on  the  points  of  law,  the  judges  may  be 
considered  as  equally  divided : 

1.  LANSING,  Ch.  J.,  and  LEWIS,  J.,  were  of  opinion 
that  the  notes  were  not  usurious  by  the  law  of  Mas- 
sachusetts.   RADCLJFF,  J.,  and  KENT,  J.,  contra. 

2.  LANSING,  Ch.  J.,  and  KENT,  J.,  were  of  opinion 
that  the  lex  loci  contractus,  or  law  of  Massachusetts, 
ought  to  govern.  RADCLIFF,  J.,  contra ;  and  LEWIS, 
J.,  gave  no  opinion  as  to  the  point.    So,  on  both 
grounds,  two  of  the  judges  were  in  favor  of  the  de- 
fendant. 


NOTE.— Common  carriers,  deliver}/,  inability  to  find 
consignee. 

To  substantially  the  same  effect  as  the  above  case, 
see  Fisk  v.  Newton,  l.Denio,  45;  Northrop  v.  Syra- 
cuse, B.  &  N.  Y.  R.  R.  Co.,  2  Trans.  App.,  183;  S.  C., 
5  Abb.  Pr.,  N.  S.,  425;  Hamilton  v.  Nickerson,  11 
Allen,  309,  310 ;  2  Parsons  on  Contracts,  296. 

As  to  effect  of  usage,  compare,  also,  Ostrander  v. 
Brown,  15  Johns.,  39 ;  Gibson  v.  Culver,  17  Wend., 
305;  Packard  v.  Earl,  113  Mass.,  280;  Loveland  v. 
Burke,  120  Mass.,  139. 

JOHNSON'S  CASES,  2. 


defendant  sent,  by  a  Hamptdh  pilot  from  City 
Point,  to  Thomas  Allen,  on  the  llth  or  12-th 
February,  the  four  boxes  of  goods,  to  be  de- 
livered to  Najah  Taylor  at  Norfolk,  or  his 
assigns.  Allen  not  being  able  to  learn  where 
Najah  Taylor  was,  and  there  being  no  agent 
for  Taylor  in  Norfolk,  as  he  could  discover, 
he  delivered  the  boxes,  with  the  letter  and  in- 
voices accompanying  the  same,  to  Messrs. 
Macgil  &  Taylor,  vendue  masters  and  com- 
mission merchants  in  Norfolk;  supposing,  as 
the  direction  to  deliver  to  Najah  Taylor  was 
badly  written,  the  goods  were  intended  for 
Macgil  &  Taylor.  The  goods,  except  eight 
hats,  which  have  been  sold  for  the  benefit  of 
the  plaintiff,  still  remain  in  the  hands  of  Mac- 

f'l  &  Taylor,  subject  to  the  orders  of  Thomas 
lien.  It  was  further  proved  to  be  customary 
*for  vessels  to  go  to  City  Point,  and  [*37i5 
from  thence  to  send  to  Norfolk  such  part  of 
their  cargo  as  was  intended  to  be  left  there  ; 
and  that  it  was  the  custom  of  merchants, 
when  the  consignee  of  goods  was  not  to  be 
found,  on  the  arrival  of  the  goods  at  the  port 
of  delivery,  and  did  not  call  to  receive  the 
goods,  for  the  master  to  store  them. 

Upon  these  facts,  the  judge,  at  the  trial, 
charged  the  jury  that  if  the  defendant  had 
acted  with  good  faith,  and  according  to  usage, 
he  was  acquitted  ;  and  a  verdict  was  accord- 
ingly found  for  the  defendant. 

A  motion  was  now  made  to  set  aside  the 
verdict,  for  the  misdirection  of  the  judge. 

Mr.  Woods  for  the  plaintiff. 
Mr.  Wilkins,  contra. 

LEWIS,  J.,  delivered  the  opinion  of  the 
court: 

That  common  carriers  are,  by  the  general 
law  on  that  subject,  bound  to  deliver  goods 
according  to  their  engagements,  is  not  to  be 
disputed.  The  questions  which  arise  here  are, 
whether  the  defendant  has  not  complied  with 
the  spirit  of  his  engagement;  whether  he  is 
liable  for  accidental  mistakes ;  and  whether  he 
is  answerable  for  the  mistake  of  Allen.  Here 
the  plaintiff  thought  proper  to  make  a  con- 
signee of  a  transient  person,  having  neither 
residence  nor  agent  at  Norfolk,  and  sailing  in 
a  different  vessel  from  the  one  which  carried 
his  goods.  The  defendant  disposed  of  the 
goods  according  to  the  usage  of  that  particular 
trade  and  the  custom  of  merchants,  by  sending 
them  from  City  Point  to  Norfolk,  to  a  person 
there  established,  against  whose  respectability 
nothing  is  alleged,  to  be  delivered  to  the  con- 
signee. This  person,  through  mistake,  de- 
livered them  to  a  different  person. 

*The  case  of  Golden  v.  Manning  [*373 
&  Peyton  (3  Wils.,  439),  cited  by  the  plaintiff's 
counsel,  is  much  stronger  for  the  defendant 
than  against  him.  The  decision  is  not  on  the 
general  law,  but  on  the  particular  circum- 
stances of  the  case.  The  masters  of  the  stage 
coach  took  a  greater  price  than  other  carriers, 
and  were  in  the  constant  practice  of  keeping  a 
porter  to  carry  goods  wjhich  arrrived  in  the 
coach  to  the  place  of  their  destination ;  the 
goods  were  also  to  be  delivered  at  the  house  of 
Ireland,  in  Princess  Street.  The  court  thought 
these  circumstances  sufficient  Jo  authorize  them 
to  consider  this  a  special  undertaking  to  de- 

547 


373 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


liver  the  goods  af  the  house  of  Ireland  by  their 
porter.  But  for  the  circumstance  of  their 
keeping  a  porter  to  carry  out  goods  that  ar- 
rived in  the  coach,  it  would  have  sufficed  to 
have  lodged  them  in  the  stage-house,  sending 
timely  notice  to  Ireland ;  and  had  he  been  a 
transient  person,  having  no  known  place  of 
residence,  this  ceremony  could  certainly  not 
have  been  required  of  them. 

The  case  of  Seyds  v.  Hay  (4  T.  R,  260),  also 
cited  by  the  plaintiff,  is  still  stronger  for  the 
defendant.  Here,  also,  the  decision  was  not 
on  the  general  law,  but  on  the  special  direc- 
tion of  the  plaintiff  not  to  deliver  the  goods 
to  the  wharfinger,  and  the  special  engagement 
of  the  defendant  not  to  do  so.  The  court 
therefore  say  it  was  a  deliberate  act,  and  not  a 
misdelivery,  merely  owing  to  mistake.  From 
whence  may  be  inferred  that,  had  it  been  so, 
the  defendant  would  have  been  discharged. 
Justice  Buller  also  observes  that,  had  the 
goods  been  delivered  to  the  wharfinger,  for  the 
wharfage  duty,  according  to  usage,  it  would 
have  been  an  answer  to  the  plaintiff's  action  ; 
but  no  such  usage  was  proved. 

We  are  of  the  opinion,  under  the  circum- 
stances of  the  case  at  bar,  that  the  defendant 
is  not  answerable  for  the  mistakes  of  Allen, 
374*]  should  mistake  in  any  case  render  *him 
liable  for  a  misdelivery.  Najah  Taylor  be- 
ing a  transient  person,  and  it  being  unknown 
where  to  look  for  him,  facts,  we  are  to  pre- 
sume, known  to  the  plaintiff,  the  defendant 
was  obliged  to  deliver  them  to  a  third  person, 
and  he  was  only  bound  to  see  that  such  per- 
son was  a  responsible  character ;  and,  on  such 
delivery,  the  bailee  must  be  considered  the 
agent  for  the  plaintiff.  It  would  undoubtedly 
be  otherwise  had  Taylor  been  a  resident  at 
Norfolk,  or  had  an  agent  there. 

We  are  of  opinion  that  the  plaintiff  take 
nothing  by  his  motion.1 

Rule  refused. 

Cited  in-46  N.  Y.,  583;  1  Bos.,  183;  5  Duer,  63;  2 
Sweeny,  633. 


BERNARD  v.  WILCOX. 

Surviving  Partner — Action  in  Name  of— Part- 
nership Debts. 

A  surviving  partner  may  maintain  a  suit  in  his 
own  name,  for  a  debt  incurred  to  the  partnership 
after  the  death  of  his  copartner,  and  also  where  the 
debt  was  contracted  in  the  lifetime  of  the  partner. 

Citations— 2  Term  R.,  476 ;  Comb.,  382. 

THIS  was  an  action  of  assumpsit  for  goods 
sold  and  delivered.  The  evidence  was 
that  the  account  rendered  to  the  defendant, 
and  a  letter  demanding  payment,  were  in  the 
name  of  William  Bernard  &  Son.  That  the 
plaintiff  and  his  father,  whose  name  was  also 
William,  had  been  formerly  copartners  in 
trade,  under  the  said  firm;  but  that  the  father 
had  withdrawn  from  the  partnership  for  some 
years,  and  previous  to  the  sale  of  the  goods 
for  which  this  action  was  brought ;  and  the 

1.— See  Abbott  on- Ship.,  3d  ed.,  247,  ch.  3,  sec.  12 ;  2 
Esp.  N.  P.  Cas.,  613 ;  Northey  et  al.  v.  Field. 

548 


plaintiff  had  continued  to  do  business  under 
the  same  *firm.  The  amount  of  the  [*375 
account,  and  the  sum  due  thereon,  were  not 
disputed;  but  the  defendant  contended  that  the 
plaintiff  could  not  maintain  this  action  in  his. 
own  name,  without  stating  that  he  carried  on 
trade  under  the  firm  aforesaid  ;  and  on  this 
ground,  an  application  was  made  to  set  aside 
the  verdict,  and  for  a  new  trial. 

Mr.  Woods  for  the  plaintiff. 
Mr.  Munro,  contra. 

LEWIS,  Ch.  J.,  delivered  the  opinion  of  the 
court: 

The  decision  in  the  case  of  Smith  v.  Bar- 
row (2  Term  Rep.,  476),  and  Hyat  v.  Hare 
(Comb.,  382),  come  fully  up  to  this  case.  In 
the  first,  it  is  determined  that  a  surviving 
partner  may  maintain  a  suit  in  his  own  name, 
for  a  debt  incurred  to  the  partnership,  after 
the  death  of  his  copartner;  and  in  the  second, 
that  he  may  maintain  such  suit  after  the 
death  of  hts  partner,  though  the  debt  was  con- 
tracted during  the  lifetime  of  such  partner. ' 

Motion  denied. 

Cited  in— Code  R.,  N.  S.,  297 ;  2  McLean,  140 ;  2 
Blatchf .,  362. 


*THE  PEOPLE 

v. 
PLEAS  AND  CLARK. 


[*376 


1.  Lease  for  Lives — Release  Under  Mistake — By 
Administrator — Consent  of  Widow — Eject- 
ment— Action  of— By  Heirs — In  Administra- 
tor's Name — Subsequent  Release — By  Admin- 
istrator— Of  Action  and  Estate.  2.  Devasta- 
vit — Action  on  Administrator's  Bond — Meas- 
ure of  Damages. 

A  died  intestate,  leaving  a  widow  and  seven  chil- 
dren, who  were  all  minors,  in  1784,  except  one.  A 
suit  having  been  commenced  in  1783,  against  the 
widow,  as  tenant  in  possession,  under  a  lease  for 
lives,  the  administrator,  in  1874,  after  advising  with 
counsel,  and  with  the  consent  of  the  widow,  and  one 
of  the  heirs,  who  was  of  age,  surrendered  the  lease, 
supposing  it  to  be  forfeited,  for  $750,  though,  in  fact, 
it  was  worth  a  much  larger  sum.  As  no  release  or  con- 
veyance was  executed  by  the  administrator, the  heirs 
afterwards  brought  an  action  of  ejectment  in  the 
name  of  the  administrator,  to  recover  the  posses- 
sion of  the  leasehold  estate ;  and  the  administrator, 
in  1799,  executed  a  release  of  the  estate,  and  also  of 
the  action,  in  consideration  of  the  $750,  before  re- 
ceived, though  he  then  believed  that  the  property 
belonged  to  the  heirs,  and  was  not  forfeited. 

In  an  action  brought  on  the  administration  bond, 
alleging  a  devast avit,  it  was  held  that  the  adminis- 
trator was  justifiable  in  surrendering  the  lease,  in 
1784,  in  the  manner  he  did,  under  the  circum- 
stances ;  but  that,  in  1799,  when  he  was  satisfied  that 
he  had  acted  under  a  mistake,  he  ought  not  to  have 
executed  a  release  of  the  estate,  and  of  the  action 
brought  for  the  benefit  of  the  heirs,  but  have  left 
the  lessor  to  resort  to  chancery  to  enforce  the  con- 
tract ;  and  on  this  ground  he  was  chargeable  with  a 
devastavit  for  the  difference  between  the  sum  re- 
ceived on  the  surrender  and  the  real  value  of  the 
estate. 

Citation— 3  P.  Wms.,  381. 

HPHIS  was  an  action  of  debt,  on  an  adminis- 
-L   tration  bond,  executed  in  the  usual  form. 

1.— See  Holmes  and  Drake  v.  De  Camp,  1  Johns. 
Rep.,  34. 

JOHNSON'S  CASES,  2. 


1801 


THE  PEOPLE  v.  PLEAS  AND  CLARK. 


376 


The  defendant  Pleas,  and  Sylvanus  Pine,  de- 
ceased, were  administrators  of  Amos  Pine, 
deceased. 

The  defendants,  after  craving  oyer  of  the 
bond  and  condition,  pleaded  performance  gen- 
erally. The  plaintiff  replied,  stating  breaches 
and  charging  the  defendant,  Pleas,  with  a 
devastavil.  The  bond  was  put  in  suit  in  be- 
half of  the  children  of  the  intestate,  who 
were  entitled  to  distributive  shares. 

The  trial  was  on  the  issue  of  devastavit  vel 
non.  It  was  proved  on  the  part  of  the  plaint- 
iff that  the  intestate  died  possessed  of  goods 
and  chattels,  and  among  other  assets  that  came 
to  the  hands  of  the  defendant  Pleas,  was  a 
lease  for  three  lives,  made  by  Henry  Beekman 
fo  the  intestate,  for  certain  lands  in  Dutchess 
County  ;  and  that  two  of  the  lives  remained  at 
the  death  of  the  intestate. 

The  lease  was  worth,  in  1784,  from  $1,250 
to  $1,750.  The  intestate  left  a  widow  and 
seven  children,  who  were  all  minors,  in  1784, 
except  one.  About  the  year  1783,  a  suit  was 
commenced  against  the  widow,  as  tenant  in 
possession,  to  recover  the  leasehold  estate  ;  and 
her  counsel  considering  the  suit  indefensible, 
and  the  administrator,  after  advising  with  the 
widow,  such  of  her  children  as  were  of  age, 
377*]  to  wit,  John,  who  was  *of  age,  and 
Lilly,  who  was  not,  and  also  with  their  coun- 
sel, in  or  about  the  year  1784,  agreed  to  sur- 
render the  lease  to  Thomas  Tillotson,  who 
claimed  the  fee,  for  $750,  which  was  done  and 
the  money  paid  and  appropriated  for  the  use 
of  the  heirs  of  the  intestate.  The  widow  con- 
sented to  the  transaction,  under  an  impression 
that  the  lease  was  forfeited. 

As  no  release  or  conveyance  of  the  premises 
had  been  executed  by  the  administrator,  the 
heirs,  previous  to  the  year  1799,  brought  an 
ejectment,  in  the  name"  of  the  administrator, 
for  the  recovery  of  the  leasehold  estate ;  and 
when  the  cause  was  ready  for  trial,  in  June, 
1799,  the  administrator  executed  a  release  both 
of  the  action  and  the  estate,  to  the  grantee  of 
Thomas  Tillotson,  in  consideration  of  the  $750 
before  received.  A  short  time  before  the 
execution  of  the  release,  the  administrator 
declared  that  he  believed  the  property  belonged 
to  the  children  of  the  intestate.  The  widow 
and  the  two  eldest  children,  in  1789,  executed 
a  bond  of  indemnity  to  the  administrator,  for 
what  he  had  done  in  respect  to  the  premises. 

Upon  these  facts,  the  judge  charged  the  jury 
that,  as  the  surrender  of  the  lease  in  1784,  upon 
a  composition  with  the  claimant,  for  $750,  was 
made  by  the  administrator,  after  consulting 
counsel,  and  pursuant  to  his  advice,  and  with 
the  consent  of  the  widow  and  such  of  the 
family  as  were  of  age,  it  ought  to  exempt  him 
from  the  charge  of  a  demsiamt;  and  that  the 
release  in  1799,  being  done  in  performance  of 
the  former  agreement,  was  rightfully  done. 

The  jury  found  a  verdict  for  the  plaintiffs  for 
nominal  damages ;  and  the  case  was  reserved 
for  the  opinion  of  the  court. 

A  motion  was  made  for  a  new  trial,  for  the 
misdirection  of  the  judge. 

378*]     *Mr.  Riggs  for  the  plaintiffs. 
Mr.  B.  Livingston,  contra. 

KENT,  J. ,  delivered  the  opinion  of  the  court : 
JOHNSON'S  CASES,  2. 


It  seems  to  be  a  just  inference  from  the  facts, 
that  the  act  of  the  administrator  in  1784,  in 
entering  into  a  composition  with  the  claimant 
for  the  leasehold  estate,  for  $750,  was  an  act 
done  in  good  faith  and  one  that  appeared  to 
him  at  the  time  to  be  for  the  interest  of  the  heirs 
of  the  intestate.  The  counsel,  who  was  con- 
sulted, advised  it,  on  the  ground  that  the 
recovery  of  the  claimant  could  not  be  resisted; 
and  the  widow,  who  was  entitled  to  one  third 
of  the  value  of  the  lease,  and  the  son,  who  was 
of  age,  and  entitled  to  one  seventh  of  the  same, 
acquiesced  therein ;  and  their  approbation  of 
the  conduct  of  the  administrator,  as  being  at 
the  time  judicious  and  honest,  is  to  be  also  in- 
ferred from  the  bond  of  indemnity  which  they 
executed  to  him,  five  years  afterwards. 

Under  these  circumstances,  it  appeared  to 
me  at  the  trial,  and  does  still,  that  the  adminis- 
trator ought  not  to  suffer  for  the  surrender  of 
the  lease  in  1784  ;  and  that  the  decision  of  the 
Court  of  Chancery  in  the  case  of  Blue  v.  Mar- 
shall et  ux.  (3  P.  Wms.  381),  goes  to  the  point 
of  his  protection.  That  was  a  bill  filed  by  a 
legatee  against  an  administrator,  with  the  will 
annexed,  to  account  for  £200,  and  it  appeared 
that  the  testator  was  possessed  of  a  term  for 
sixty  years,  which  he  had  leased  for  thirty 
years,  at  the  rent  of  £100,  per  annum,  and  that 
at  the  time  of  the  testator's  death,  there  was 
£125  of  rent  in  arrear,  which  soon  amounted 
to  £225,  and  the  tenant  becoming  insolvent,  the 
administrator,  without  consulting  the  legatee, 
released  to  the  tenant  the  arrears  of  rent, 
amounting  to  £225,  and  also  advanced  him 
£20  out  of  his  own  pocket,  upon  condition 
that  he  should  quit  the  possession,  which  was 
accordingly  done.  On  *these  facts,  [*379 
it  was  insisted,  for  the  complainant,  that  as 
the  administrator  had  voluntarily  released  the 
debt  of  £225,  and  that,  too,  without  consulting 
the  plaintiff,  the  legatee,  he  ought  to  answer 
for  it.  But  Lord  Chancellor  Talbot  decided 
that  the  administrator  had  done  nothing  but 
what  was  prudent ;  and  that,  as  the  tenant  was 
unable  to  pay,  and  might,  if  he  chose,  be  vexa- 
tious, and  have  put  his  landlord  to  great 
trouble  and  delay,  the  release  seemed  to  be  for 
the  benefit  of  the  testator's  estate  ;  and  he 
accordingly  excused  the  administrator  from 
the  payment  of  the  debt  released,  and  even 
allowed  him  the  £20  he  had  advanced  out  of 
his  own  pocket,  as  being  one  entire  consider- 
tion  for  the  tenant's  quitting  the  possession. 

It  appears  to  me  that  the  circumstances 
constituting  the  defendant's  excuse  in  the 
present  case,  are  full  as  strong  as  in  the  case  I 
have  cited.  But  the  next  question  is,  that  as 
no  release  was,  in  fact,  executed  by  the 
defendart,  and  as  he  became  satisfied,  after- 
wards, as  appears  by  his  own  declaration,  that 
the  leasehold  estate  was  not  forfeited,  but  be- 
longed to  the  heirs  of  the  intestate,  was  he 
justifiable  in  acting  again,  to  complete  the 
contract? 

In  my  present  view  of  the  subject,  he  was 
not.  There  were  circumstances  in  the  year 
1799  sufficient  to  satisfy  the  defendant,  and 
which  did  satisfy  him,  that  the  original  agree- 
ment was  founded  on  mistake.  The  consent 
to  surrender  the  lease  in  1784  was  made  under 
the  impression  that  the  lease  was  forfeited, 
and  that  a  defense  would  be  unavailing. 

549 


379 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


When  it  was,  afterwards,  discovered  that  the 
lease  was  not  forfeited,  or  the  defendant  had 
reason  to  conclude  so,  he  ought*  to  have 
desisted  from  anv  further  interference,  and 
have  left  the  claimant  to  resort  to  chancery 
for  the  execution  of  the  contract.  There  the 
truth  could  be  investigated.  Nor  ought  he  to 
have  arrested  the  suit  at  law,  instituted  for  the 
benefit  of  the  minor  children,  and  to  determine 
38O*]  to  *whom  the  estate  legally  belonged. 
Acting  as  trustee  for  others,  he  was  under 
obligation  not  to  carry  the  original  agreement 
into  effect,  after  he  had  become  satisfied  that 
it  had  originated  on  his  part  in  mistake,  and 
upon  the  presumption  of  a  fact  which  did  not 
exist.  So  far  from  carrying  into  execution 
such  an  agreement,  a  court  of  equity  will  relieve 
against  contracts  founded  in  mistake  and  im- 
position. The  case  of  Cocking  v.  Pratt  (1  Ves. , 
400),  is  very  applicable  to  the  present  case.  A. 
dying  intestate,  left  a  widow,  and  a  daughter, 
who  entered  into  an  agreement  concerning  the 
personal  estate.  Afterwards,  the  representa- 
tive of  the  daughter  brought  a  bill  to  set  aside 
the  agreement,  and  obtain  a  just  distributive 
share.  The  mother  insisted  on  the  agreement; 
but  Sir  John  Strange,  the  Master  of  the  Rolls, 
held  that  the  daughter  did  not  intend,  at  the 
time  of  the  agreement,  to  take  less  than  her 
legal  share,  though  what  that  was  did  not 
clearly  appear  to  her.  Whether  there  was  a 
nuppressio  ten  did  not  appear,  but  as  the 
daughter  had,  no  doubt,  intended  to  take  her 
full  share,  and  it  appearing  afterwards  that 
she  had  not  taken  all  she  was  entitled  to,  and 
that  the  difference  was  very  considerable,  the 
agreement  was  set  aside. 

In  the  present  case,  the  administrator  ap- 
pears to  have  discovered  that  the  estate,  which 
he  had  formerly  agreed  to  surrender,  under 
the  impression  that  it  was  forfeited,  was  not 
forfeited,  but  belonged  to  the  heirs  of  the 
intestate ;  and  that  instead  of  receiving  a 
composition  price,  the  heirs  were  entitled  to 
the  full  valve  of  the  estate.  Here,  then,  was  a 
loout peniteittia,  for  the  administrator;  and  his 
subsequent  act,  after  that  discovery,  in  releas- 
ing the  action  and  the  estate,  must  be  adjudged 
wilful,  and  done  in  fraud.  He  became,  there- 
fore, properly  chargeable  with  a  decastamt  to 
the  amount  of  the  difference  between  what  he 
originally  took  for  the  estate,  and  what  was  its 
real  value. 

381*]  *On  this  ground  I  am  now  satisfied 
the  direction  to  the  jury,  and  their  finding, 
were  wrong ;  and  that  the  verdict  ought  to  be  set 
aside,  and  a  new  trial  awarded,  with  costs,  to 
abide  the  event  of  the  suit. 

RADCLIFF,  J.,  absent. 
New  trial  granted. 
Cited  in-4  Redf .,  236 ;  10  Peters,  568. 


Citations—  Pettit  v.  Carman  (July  Term,  1778); 
Hob.,  169;  Gilb.  on  Executions,  97;  7  Jac.,  I; 
Yelv.,  218  ;  1  Wils.,  316. 


was  an  action  on  a  judgment  in  the 
JL  Washington  Court  of  Common  Pleas,  and 
the  venue  was  laid  in  Albany. 

Mr.  Woods,  for  the  defendant,   now  moved 
to  change  the  venue  to  Washington  County. 
Mr.  Woodicorth,  contra. 

Per  Curiam.  This  case  comes  within  the 
decision  of  this  court,  in  the  case  of  Pettit  v. 
Carman.  (July  Term,  1798.)  It  was  there 
decided,  on  the  authority  of  Hobart  (169),  that 
debt  on  a  judgment  was  a  local  action,  and  the 
venue  must  be  laid  in  the  county  where  the 
judgment  was  given. 

The  case  in  Hobart  is  very  decisive,  and  as- 
signs as  the  reason  that  the  plaintiff  must 
count  upon  the  record,  by  which  it  will  ap- 
pear, that  the  cause  of  action  arose  in  that 
county  where  the  judgment  was  given,  for 
the  judgment  makes  a  new  contract.  This 
case  is  cited  and  sanctioned  by  Gilbert  on  Ex- 
ecutions, p.  97,  *  Roll'  's  case,  in  7  Jac.  I.,  [*382 
is  cited  in  Yelv.,  218,  and  admitted  to  be  good 
law;  and  if  is  a  decision  to  the  like  effect. 
There  is  a  precedent  in  1  Wils.  Rep.,  316,  of 
a  declaration  in  K.  B.  on  a  judgment  of  an 
inferior  court,  at  Southwark,  in  the  County  of 
Surrey;  and  the  venue  was  laid  in  Surrey,  and 
not  in  Middlesex,  where  the  Court  of  King's 
Bench  sits.  The  modern  practice  seems, 
therefore,  to  be  conformable  to  the  ancient 
decisions. 

Motion  granted. 


BARNES  v.  KENYON. 

Venue — Action  of  Debt  on  Judgment. 

An  action  of  debt  in  this  court,  on  a  judgment  in 
a  court  of  common  pleas,  is  a  local  action ;  and  the 
venue  must  be  laid  in  the  county  where  the  judg- 
ment was  given. 
550 


ZIELE  AND  BECKER 

v. 
THE  EXECUTORS  OF  CAMPBELL. 

Non-Joinder — Defendants — Jointly  Liable — Plea 
in  Abatement — Practice. 

Where  there  are  several  persons  jointly  indebted, 
or  jointly  responsible,  and  all  of  them  are  not  made 
defendants,  it  must  be  pleaded  in  abatement,  and 
cannot  be  taken  advantage  of  at  the  trial. 

Citations— 5  Burr.,  2617;  2  Black.  H.,  947,  950;  1  Bos. 
&  Pull.,  66. 

THIS  cause  came  before  the  court,  on  a  writ 
of  error,  from  the  Albany  Common  Pleas. 

The  executors  of  Campbell  brought  an 
action  of  aswmpsit,  in  the  court  below,  for 
work  and  labor  done  by  the  testator;  the  plea 
was  the  general  issue.  On  the  trial  the  plaint- 
iff proved  that  the  defendant  and  several 
other  persons,  who  had  located  a  certain  tract 
of  unappropriated  land,  met  at  a  certain  place, 
and  the  testator,  who  was  a  surveyor,  attend- 
ed also,  by  appointment  of  some  of  the  persons 
interested  in  the  location,  and  was  employed 
with  the  knowledge  and  consent  of  them  all, 
to  survey  the  land,  which  he  accordingly  did. 

The  defendant,  upon  this  testimony,  object- 
ed that  the  suit  ought  to  have  been  brought 
against  all  the  persons  interested  in  [*3oI5 
the  location,  which  objection  was  overruled 
by  the  court. 

JOHNSON'S  CASES,  2. 


1801 


BRANDT,  EX  DEM.  THE  HEIRS  OF  DAVID  PROVOOST,  v.  GELSTON. 


383 


KENT,  J.,  delivered  the  opinion  of  the 
•court: 

This  objection  might  have  been  good  in  a 
plea  of  abatement,  but  is  inadmissible,  if  raised 
.at  the  trial,  upon  the  general  issue.  The  case 
oiRicev.  Shute  (5  Burr.,  2617),  and  Abbot  v. 
Smith  (2  Black.  Rep.,  947),  have  solemnly  and 
fully  settled  this  point;  and  the  principle  or 
ground  of  the  decision  in  those  cases  applies 
equally  Jo  this  case,  and  to  every  other  case 
where  two  or  more  defendants  are  responsible 
on  a  joint  undertaking.  "  It  is  convenient  and 
just  that  the  defendant  should  take  advantage 
of  this  objection  (if  at  all)  at  the  beginning  of 
the  suit,  and  plead  it  in  abatement;  and  he 
•ought  not  to  be  permitted  to  lie  by,  and  put 
the  plaintiff  to  the  delay  and  expense  of  a  trial, 
and  then  set  up  a  plea  not  founded  in  the  mer- 
its of  the  cause,  but  on  the  form  of  proceed- 
ing." 

It  is  a  principle  of  very  ancient  date  in  the 
•common  law,  and  has  been  applied  to  special- 
ties, as  well  as  to  simple  contracts.  (See  the 
•cases  cited  by  De  Grey,  Ch.  J.,  2  Black.  Rep., 
950.)  The  same  point  came  into  view,  and  was 
sanctioned  by  the  Court  of  Common  Pleas,  in 
the  case  of  Scott  v.  Godwin  (1  Bos.  &  Pull., 
66.)  "A  writ,"  says  Lord  Ch.  J.  Eyre,  "shall 
abate,  that  has  not  made  all  the  parties 
•co-defendants,  because  the  plaintiff  may  have  a 
better  writ  in  the  same  cause  ;  but  the  action 
shall  not  be  barred,  because  the  plaintiff  has, 
in  himself,  an  absolute  right  to  sue  the  defend- 
ant. The  defendant  can  only  insist,  if  he 
pleases,  that  the  plaintiff  shall  sue  others  with 
him,  and  this  advantage  he  may  waive  where 
the  objection  does  not  appear  on  the  face  of 
the  record,  and  does  waive  in  that  case  unless 
he  plead  in  abatement." 

In  short,  the  rule  applies  to  all  joint  con- 
tracts as  well  as  to  those  arising  particularly 
384*]  from  mercantile  partnerships,  *that  if 
all  who  ought  to  be  plaintiffs  are  not  joined  it 
is  ground  for  a  nonsuit  ;  if  any  are  omitted  as 
•defendants,  it  is  only  in  abatement. 

We  are  of  opinion,  therefore,  that  the  judg- 
ment must  be  affirmed. 

Judgment  affirmed. 
•Cited  in— 7  Cow.,  318 :  10  Barb.,  182. 


BRANT,  ex  dem.  the  Heirs  of  DAVID 
PROVOOST, 

v. 
GELSTON. 

Construction  of  Original  Trust  Deed —  With 
Powers. 

A.,  being'  seized  of  lands,  by  indenture,  "  in  consid- 
eration of  natural  love  and  affection,  and  for  the 
better  maintenance  of  the  grantees,  conveyed  the 
premises,  by  the  words  "give,  grant,  alien,  enfeoff 
and  confirm,"  to  his  daughter  H.,  and  B.  her  hus- 
band, to  the  use  of  H.  for  life,  with  power  to  her  to 
sell  the  same  in  fee,  at  any  time,  if  she  chose,  to 
any  person,  by  deed  or  will,  and  the  money  arising1 
from  such  sale  to  keep  for  her  own  use  and  mainte- 
nance ;  and  in  case  the  said  H.  should  not  sell  the 
premises,  theh,  after  her  death,  he,  the  said  A.,  con- 
veyed the  same  to  B.,  the  son-in-law,  for  life,  and 
after  his  death,  to  the  heirs  of  the  body  of  H.  and 
his,  her,  or  their  heirs  and  assigns  forever,  equally 

JOHNSON'S  CASES,  2. 


to  be  divided  between  them,  share  and  share  alike." 
B.  and  H.  took  possession,  and,  afterwards,  for  th< 
consideration  of  five  shillings,  by  lease  and  release, 
conveyed  thf  premises  to  C.  in  fee,  in  trust  that  he 
should  reconvey  the  same  premises  to  B.  in  fee; 
and  C.  being  so  seized  by  virtue  of  such  lease  and 
release,  on  the  next  day,  for  the  consideration  of 
ten  shillings,  reconveyed  the  premises  to  B.,  who, 
afterwards,  made  his  will,  devising  the  premises  to 
D.  for  31  years,  and  died.  H.  died  without  issue, 
and  A.  afterwards  died,  leaving  f our  sons  and  four 
daughters,  his  heirs-at-law.  In  an  action  brought 
by  the  heirs-aWaw  against  a  tenant  under  D.,  it  was 
held,  that  H.  took  an  estate  for  life,  with  a  vested 
remainder  in  tail;  that -the  words,  "heirs  of  the 
body,"  &c.,  were  words  of  "limitation,"  and  "not  of 
urchase,"  notwithstanding  the  words  added  "and  to 
is,  her,  or  their  heirs  and  assigns,"  &c.,  which  were 
to  be  rejected  as  repugnant  to  the  estate  created 
by  the  preceding  words ;  and  that  the  power  to  H. 
was  intended  for  her  benefit,  and  was  well  executed; 
and  the  estate  vested  in  B.  and  those  claiming 
under  him. 

Citations— Fearne,  26,27,32,33;  Walk,  on  Desc., 
167;  Harg.  Law  Tracts,  575 ;  1  Co.,  104 ;  Co.  Litt.,  22 
b,  319  b,  379  b,  377  a;  Fearne,  256;  Harg.,  502;  T. 
Baym.,  315;  Hob.,  33,  34;  2  Vent.,  311;  Carth.,  154; 
Co.,  95  b;  2  Burr.,  1100;  1  Eq.  Cas.  Abr.,  291 ;  2  Bl. 
Com.,  193;  Sayer,  67;  IWils.,  34;  Amb.,  379;  2  Ld. 
Raym.,  1437;  2  Burr.,  1102;  1  Co.,  64  b;  2  P.  Wms., 
476;  Harg.  Law  Tracts,  575,  576;  Act  of  February  23, 
1786  (9sess.,  ch.12,  sec.  2);  1  Vent,,  214,225;  2  Lev., 
59 ;  2  Ld.  Raym.,  1437;  1  Co.,  104 ;  Fearne,  21 ;  1  Lev., 
223 ;  2  Str.,  731 ;  2  Atk.,  90,  note ;  2  Burr.,  1100 ;  1 
Vesey,  142;  2  Atk.,  517;  2  Str.,  1125;  2  Atk.,  246; 
Doug.,  323 ;  Co.  Litt.,  86  (Harg.,  note) ;  1  Vent.,  230 ; 
Bulst.,  219 ;  Arab.,  379 ;  1  Co.,  175 ;  1  Mod.,  262 ;  2  Mod., 
269 ;  Co.  Litt.,  276  a,  b,  notes ;  3  Burr.,  1446 ;  Str.,  934 ; 
ILev.,  283;  1  Lev.,  156;  2Wils.,  6;  1  Vesey,  142;  2 
Atk.,  577 ;  Powell  on  Powers,  12 ;  Harg.  Law  Tracts, 
415 ;  1  Co.,  154 ;  Digg's  case. 

THIS  was  an  action  of  ejectment,  for  lands 
in  the  city  of  New  York.    The  jury  found 
a  special  verdict. 

The  following  are  the  material  facts  which 
it  contained:  David  Provoost,  the  elder,  of 
New  York,  being  seized  in  fee  of  the  premises 
in  question,  on  the  10th  day  of  April,  1762,  by 
an  indenture  between  him  and  Jacob  Brewer- 
ton,  of  Kings  County,  and  Helena  his  wife 
(who  was  the  daughter  of  the  said  David),  in 
consideration  of  natural  love  and  affection, 
and  for  the  better  maintenance  of  the  grantees, 
conveyed,  by  the  words  "give,  grant,  alien,  en- 
feoff  and  confirm,"  to  them  the  *prem-  [*38«5 
ises,  to  the  use  of  Helena  for  her  life,  with 
power  to  her  to  sell  the.  same  in  fee  at  any 
time,  if  she  should  choose,  to  any  person,  by 
deed  or  will,  and  the  consideration  money 
arising  on  such  sale  to  keep  for  her  use  and 
maintenance,  and  by  the  said  indenture  ratified 
such  sale  or  sales  as  good  and  valid.  And  in 
case  Helena  should  not  sell  the  premises  as 
aforesaid,  then,  after  her  death,  he,  the  said 
David  Provoost,  by  the  same  deed,  conveyed 
the  'same  to  the  said  Jacob  Brewerton  for  his 
life,  and  after  his  death  to  the  heirs  of  the  body 
of  Helena,  and  to  his,  her,  or  their  heirs  and 
assigns  forever,  equally  to  be  divided  between 
them,  share  and  share  alike;  yielding  and  pay- 
ing therefor,  to  the  said  David  Provoost,  the 
yearly  income,  rents  and  profits  thereof,  dur- 
ing his  life,  jf  the  same  should  be  demanded, 
and  not  otherwise. 

By  virtue  of  this  deed,  Jacob  Brewerton  and 
Helena  took  possession  of  the  premises,  and 
being  so  seized,  afterwards,  by  lease  and  re- 
lease, bearing  date  respectively  the  llth  and 
12th  days  of  September,  1764,  and  for  the 
consideration  of  five  shillings,  conveyed  the 
same  to  Augustus  Van  Cortlandt,  of  the  City 

551 


385 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1801 


of  New  York,  in  fee;  and  in  trust,  that  he 
should  reconvey  the  same  premises  to  the  said 
Jacob  Brewerton,  in  fee. 

The  said  Augustus  Van  Cortmndt  being 
seized  thereof,  accordingly,  did,  by  lease  and 
release,  bearing  date  respectively  the  13th  and 
14th  days  of  September,  1764,  and  for  the  con- 
sideration of  ten  shillings,  reconvey  the  premi- 
ses to  the  said  Jacob  Brewerton,  in  fee,  who 
entered,  was  seized,  &c.,  and  being  so  seized 
of  the  premises,  did,  on  the  20th  day  of  March, 

1789,  make  his  last  will,  and  thereby  devised 
the  premises    to    Robert    Carter,   Jun.,   and 
Carey  Ludlow,   for  the  term    of    thirty-one 
years,  and  afterwards,  on  the  19th  October, 

1790,  died.     Helena  died  the  llth  January, 
1769,  without  issue,. and  David  Provoost  the 
elder  died  on  the  29th  October,  1783,  without 
386*]  ever  having  demanded  rent  for  *the 
premises,     and    leaving    William    Provoost, 
James  Provoost,  John  Provoost,  David  Pro- 
voost, Helena  Bermore,  Catherine  Provoost, 
Johanna,    the    wife    of    John    Brown,    and 
Johanna,  the  wife  of  Samuel  Kelly,  his  heirs- 
at-law. 

Robert  Carter,  Jun.,  and  Carey  Ludlow, 
after  the  death  of  Jacob  Brewerton,  to  wit,  on 
the  1st  day  of  November,  1790,  demised  the 
premises  to  the  defendant,  to  hold  from  year 
to  year. 

NT.  Troup  and  Mr.  Hamilton  for  the  plaintiff. 
Mr.  Riggs  and  Mr.  Harison,  contra. 

KENT,  J.  The  following  questions  have 
been  raised  by  the  counsel. 

1.  Whether  there  was  a  power  given  to 
Helena,  and  properly  executed  by  her,  to  vest 
the  fee  of  the  premises  in  her  husband,  Jacob 
Brewerton  ? 

If  this  question  should  be  answered  in  the 
negative,  then,  2.  Whether  an  estate  tail  was 
not  vested  in  her  by  the  deed  of  1762,  so  as  to 
render  her  conveyance  valid,  under  the  Act  of 
23d  February,  1786? 

It  will  be  unnecessary  for  me  to  give  any 
opinion  on  the  first  question,  relative  to  the 
power,  because  I  am  of  opinion  that  the 
second  question  must  be  answered  in  favor  of 
the  defendant.  I  am  satisfied,  upon  a  full 
consideration  of  the  case,  that  Helena  took  an 
estate  for  life,  with  a  vested  remainder  in  tail. 

The  deed  gives  the  estate  "to  Helena,  for 
life,  with  power  to  sell,  «fec.,  then  to  Jacob 
Brewerton,  for  life;  then  to  the  heirs  of  the 
body  of  Helena,  and  to  his,  her  or  their  heirs 
and  assigns,  forever,  equally  to  be  divided 
between  them,  share  and  share  alike."  In 
consequence  of  this  intervention  of  an  estate 
of  freehold,  between  the  freehold  to  her  and 
the  subsequent  limitation  to  her  heirs,  the 
subsequent  limitation  is  not  immediately 
387*]  *executed  in  her,  but  becomes  a  vested 
remainder,  to  be  executed  in  possession,  on  the 
determination  of  the  mesne  estate.  (Fearne, 
26,  27,  32,  33;  Walk,  on  Desc.,  167;  Harg. 
Law  Tracts,  575.) 

In  giving  this  construction  to  the  deed,  I  am 
governed  by  what  is  commonly  called  the  rule 
in  Shelly 's  case  (1  Co.,  104;  Co.  Lit.,  22  b, 
319  b,  379  b,  377  a),  which  is,  that  where  the 
ancestor  takes  an  estate  of  freehold,  with 
a  remainder,  either  mediate  or  immediate,  to 
562 


his  heirs,  or  the  heirs  of  his  body,  the  word 
"  heirs  "  is  a  word  of  limitation  of  the  estate, 
and  not  of  purchase. 

The  only  difficulty  as  to  this  conclusion 
arises  from  the  additional  words  subsequent  to 
the  words,  "heirs  of  the  body  of  Helena,"  viz., 
"and  to  his,  her,  or  their  heirs  and  assigns 
forever,  equally  to  be  divided  between  themr 
share  and  share  alike." 

It  must  be  admitted,  that  there  is  greater 
latitude  of  construction  applied  to  wills  than 
to  deeds;  and  the  rule  generally  has  been 
allowed  to  be  of  more  imperative  control  in  the 
one  instrument  than  in  the  other  (Fearne,  256; 
Harg.,  502),  but  the  cases  of  Walker  v.  Snmr 
(Palm.,  359),  and  Lisle  v.  Gray  (T.  Raym., 
315),  arose  not  upon  a  devise,  but  the  one  upon 
a  fine,  and  the  other  upon  a  covenant  to  stand 
seized  to  uses.  Those  two  cases,  accordingly, 
show,  that  even  in  deeds,  the  word  heirs  has 
|  not  always  been  held,  at  law,  a  word  of  limita- 
tion, but  as  capable  of  being  controlled  by 
superadding  explanatory  words;  or  words  of 
limitation,  denoting  a  different  species  of  heirs. 

Considering,  however,  the  age  and  sanction 
of  the  rule,  and  that  it  is  a  case  of  a  legal  estate, 
|  founded  on  a  deed,  the  declaration  of  the  in- 
tent to  change  the  word  "  heirs  "  into  a  word 
of  purchase,  ought,  at  least,  to  be  unequivocal, 
before  the  rule  can  cease  to  apply.  (Hob., 
33,  34.) 

I  am  satisfied  of  such  an  intention  in  the 
present  case.  The  superadded  words  do  not 
necessarily  import  an  intent  to  divert  the  legal 
course  of  descent;  nor  that  other  *or  [*388 
different  persons  were  intended,  and  not  that 
succession  of  persons,  denominated  heirs-at- 
law. 

The  language,  in  cases  on  wills,  where  that 
intent  has  been  deemed  sufficiently  explicit, 
was  generally  much  more  imperative  than  this. 
In  Burchett  v.  Durdant  (2  Vent,,  311;  Carth., 
154),  the  testator  devised  to  A,  for  life,  re- 
mainder to  the  heirs  male  of  his  body  now 
living.  This  was  conclusive  to  show  that  the 
testator  could  not  intend  the  whole  line  of 
heirs,  but  only  used  the  term,  as  a  designatio 
persona.  So  in  the  case  put  by  Anderson,  in 
Shelly' 's  case  (Co.,  95  b),  where  one  enfeoffed 
A,  for  life,  remainder  to  his  heirs,  and  their 
heirs  female,  it  was  evident  the  feoffer  in- 
tended a  different  class  of  persons  from  the 
whole  inheritable  blood  of  A,  and  without 
making  the  word  "heirs"  a  word  of  purchase, 
the  limitation  to  the  heirs  female  could  not  be 
admitted.  Again,  in  the  case  of  Doe,  ex  dem. 
Long,  v.  Laming  (2  Burr.,  1100),  which  was  a 
devise  of  lands  held  in  gavelkind,  to  A.  and 
to  the  heirs  of  her  body,  as  well  females  as 
males,  the  testator  expressly  rescinded  the  in- 
heritable succession,  and  designated  a  different 
species  of  heirs,  because  females  could  not  be 
admitted  in  a  course  of  descent,, in  gavelkind. 

There  is  no  such  necessity  in  this  case  of 
deviating  from  the  rule,  because  there  is  no 
such  unequivocal  provision,  which  requires  it 
to  be  set  aside.  It  may  be  said  that  the  words, 
"and  his,  her,  or  their  heirs  and  assigns, 
equally  to  be  divided,"  &c.,  are  sufficient  in  a 
deed,  as  well  as  in  a  will,  to  create  a  tenancy 
in  common;  and  that  as  the  law  Stood,  at  the 
time  of  the  execution  of  the  deed,  the  heirs  of 
the  body  of  Helena  could  not  take  as  tenants 
JOHNSON'S  CASES,  2. 


1801 


BRANDT,  EX  DEM.  THE  HEIRS  OP  DAVID  PROVOOST,  v.  GELSTON. 


388 


in  common,  unless  those  words  be  considered 
as  meaning  children,  and  that  those  children 
should  take  as  purchasers,  and  that  this  must 
accordingly  be  the  the  intent  of  the  deed;  and 
also  that  these  children  should  transmit  an 
estate  in  fee  to  their  descendants. 
389*]  *There  is  certainly  much  plausibility 
and  force  in  this  construction.  But  in  answer 
to  it,  we  may  observe,  that  the  words,  "equally 
to  be  divided,"  &c.,  if  in  a  deed,  were  formerly 
held  to  be  a  joint  tenancy  (1  Eq.  Cas.  Abr., 
291;  2  Black.  Comm.,  193);  and  although  they 
have  since  been  held  to  operate  otherwise 
(Sayer,  67;  1  Wils.,  34),  the  employment  of 
them  by  the  grantor  is  by  no  means  certain 
evidence  of  his  intent  to  control  the  legal 
operation  of  the  preceding  words,  and  pre- 
vent the  inheritable  blood  of  Helena  from  tak- 
ing, in  the  character  of  heirs.1  On  the 
contrary,  the  better  inference  is,  that  the 
grantor  intended,  after  the  limitations  for  life, 
that  the  estate  should  go  to  every  person  who 
could  claim  as  heir  to  Helena.  The  words  of 
limitation  superadded  are  not  descriptive  of  a 
different  species  of  heirs  from  the  first  words, 
so  as  to  break  in  upon  and  divert  the  line  of 
descent  from  the  ancestor.  It  is  rather  an  at- 
tempt in  the  grantor  to  prescribe  a  different 
qualification  to  the  heirs  of  Helena,  in  their 
character  as  heirs,  than  what  the  law  had  pre- 
scribed. And  it  being  once  ascertained,  that 
the  grantor  did  not  use  the  word  ' '  heirs  "  for 
any  particular  person,  in  that  instance  inaptly 
denominated  heir,  but  intended  by  it,  as  a 
nomen  collectivum,  the  line  of  inheritable  suc- 
cession; and  that  Helena,  and  not  arfjf  indi- 
vidual who  should  happen  to  be  the  heir,  at 
the  time  of  her  death,  was  to  be  the  ancestor 
from  whom  that  line  was  to  be  deduced,  then 
I  agree,  that  the  rule  in  SJielly's  case  applies 
with  irresistible  control.  The  heirs  of  her 
body  must  take  in  the  quality,  as  well  as  the 
character  of  heirs ;  and  all  the  efforts  of  the 
grantor  to  change  their  qualifications,  while  he 
admits  their  character,  by  saying  they  shall 
take  by  purchase,  or  as  tenants  in  common,  are 
fruitless  and  of  no  avail. 

39O*]  *There  are  cases  in  point,  in  favor 
of  this  conclusion.  That  of  King  v.  Burchett 
(Amb.,  379),  was  a  devise  to  A  for  life,  re- 
mainder to  his  issue  male,  and  to  his  and  their 
heii's,  share  and  share  alike.  These  are  nearly 
the  same  superadded  words  of  limitation  as  in 
the  present  case,  and  equally  tending  to  show 
that  a  contingent,  fee  in  the  children  of  A  to 
be  held  by  them,  as  tenants  in  common,  was 
intended.  It  was,  however,  decreed  that  A 
took  an  estate  tail.  So  the  case  of  Goodright 
v.  Pullyn  (2  Ld.  Raym.,  1437),  was  a  devise  to 
A  for  life,  remainder  to  the  heirs  male  of  his 
body,  and  his  heirs  forever ;  and  it  was  held 
that  the  subsequent  words  "his  heirs"  were 
not  sufficient  to  defeat  the  operation  of  plain 
and  clear  words,  and  a  settled  rule  of  law. 
The  case  of  Morris,  ex  dem.  Andrews  v.  Le 
Gay  and  Wood  (cited  in  2  Burr.,  1102),  was  to 
the  like  effect. 

On  the  other  hand,  I  am  aware  there  are 
authorities,  such  as  Archer's  case  (1  Co.,  64, 
b),  Backhouse  v.  Wells  (2  P.  Wms.,  476),  and 

1.— See  1  Wash.  Rep.,  9, 10 ;  Bro.  C.  C.,  219,  220,  221 ; 
Fearne,  258. 

JOHNSON'S  CASES,  2. 


several  others,  that  look  very  much  the  other 
way.  In  the  case  of  Backhouse  v.  Well*,  there 
was  a  demise  to  A  for  life,  remainder  to  the 
issue  male  of  his  body,  and  to  the  heirs  male 
of  such  issue  male,  and  it  was  decreed  that  A 
took  only  an  estate  for  life.  Indeed,  there  are 
a  number  of  authorities,  apparently  difficult  to 
reconcile,  to  be  cited  and  arrayed  on  each  side, 
in  the  attempt  to  mark  the  precise  line  of 
distinction  which  separates,  in  all  cases,  words 
of  purchase  from  words  of  limitation.  The 
attempt  has  frequently  been  made,  with  much 
spirit  and  ability,  and  I  am  willing  to  believe 
it  has  been  attended  with  success.  But  at 
present  I  deem  it  unnecessary  to  involve  my- 
self in  a  particular  analysis  of  the  perplexing 
authorities  and  distinctions  that  have  arisen 
upon  the  celebrated  rule  in  SJieUy's  case. 

It  is  sufficient  to  observe  that  the  rule  itself, 
and  the  very  interesting  manner  in  which  it 
has  been  considered,  must  be  familiar  to  every 
well  informed  lawyer ;  that  I  *have  [*39 1 
paid  respectful  attention  to  the  leading  cases, 
to  the  elaborate  treatises,  and  infinite  talents, 
exerted  on  the  subject;  and  the  result  in  my 
mind  is,  that  the  rule  is  of  binding  authority, 
and  that  there  is  nothing  in  the  present  case 
sufficiently  determinate  to  prevent  its  applica- 
tion. 

Having  thus  concluded  that  Helena  took  a 
vested  remainder  in  tail,  it  is  not  material 
whether  such  remainder  be  mediate  or  imme- 
diate to  the  estate  for  life,  since,  in  either  case, 
the  tenant  gains  the  same  power  over  the  in- 
heritance, and  of  defeating  the  entail.  (Harg. 
Law  Tracts,  575,  576.)  Her  conveyance,  ac- 
cordingly, to  Augustus  Van  Cortlandt,  in  fee, 
and  his  conveyance  to  Jacob  Brewerton,  in  fee, 
I  were  ratified  and  confirmed  by  the  Act  of  the 
j  23d  February,  1786  (9  sess. ,  ch.  12,  sec.  2),which 
declares,  that  where  lands  had  before  been 
conveyed  by  a  tenant  in  tail,  and  the  person  to 
whom  the  conveyance  was  made,  and  his  heirs 
or  assigns,  had,  from  the  time  of  the  convey- 
ance to  the  day  of  passing  the  act,  been  in  the 
uninterrupted  possession  of  the  land,  and  held 
the  same  under  the  conveyance,  such  convey- 
ance should  be  as  effectual  as  if  the  the  tenant 
in  tail  had  at  the  time  been  seized  in  fee.  It 
is  found  by  the  verdict  that  Jacob  Brewerton 
was  seized  of  the  premises  in  1789,  and 
nothing  to  the  contrary  appearing,  this  is  suf- 
ficient to  bring  him  within  the  provision  of  the 
act. 

The  defendant  deriving  title  from  him, 
judgment  ought,  accordingly,  to  be  for  the 
defendant. 

LEWIS,  Ch.  J.  The  following  questions 
have  been  raised : 

1.  What  estate  passed  to  Helena  Brewerton, 
by  the  conveyance  of  1762? 

2.  Was  the  power  to  sell  or  devise  well 
created? 

3.  Was  it  well  executed? 

As  to  the  estate  which  Helena  took,  it  is-  an 
ancient  and  well  settled  rule,  that  where,  by 
the  same  instrument,  *the  ancestor  [*3t>2 
takes  an  estate  of  freehold,  with  remainder, 
mediately  or  immediately,  to  his  heirs,  general 
or  special,  the  heir  shall  take  by  descent,  and 
for  this  purpose  the  inheritance  shall  rest  in 
the  ancestor ;  "  heirs  "  being  construed  a  word 

553 


'392 


SUPKEME   COUKT,  STATE   OF   NEW   YORK. 


1801 


of  limitation,  and  not  of  purchase.  (1  Vent., 
214,  225;  2  Lev.,  59;  2  Ld.  Raym.,  1487;  1  Co., 
104;  Shelly's  case;  Fearne,  21.) 

The  authorities  in  support  of  this  rule  are 
very  numerous,  and  as  far  as  my  researches 
have  extended,  are  uniform,  except  in  cases  of 
trusts,  and  perhaps  dispositions  of  gavelkind 
lands.  The  cases  of  Archer  (1  Co.,  64,  b), 
Lisle  v.  Gray  (2  Lev.,  223),  which  were  ad- 
duced as  exceptions,  are  not  so.  In  the  case 
of  Archer,  the  terms  are,  "  next  heir  male,"  in 
the  singular ;  and  much  stress  appears,  from 
authorities  in  which  this  case  is  cited  (2  Str., 
731),  to  have  been  laid  on  the  word  "next." 
This  was  not,  however,  the  turning  point  of 
the  cause ;  it  was,  that  the  feoffment  of  the 
tenant  for  life  barred  the  remainder. 

In  the  case  of  Lisle  v.  Gray,  Lisle  cove- 
nanted to  stand  seized  to  the  use  of  himself  for 
life,  remainder  to  the  use  of  Edward,  his  son, 
for  life,  remainder  to  the  first,  second,  third, 
fourth,  &c.,  sons  of  the  said  Edward,  in  suc- 
cession, and  the  heirs  males  of  their  bodies. 
Then  follow  these  words,  "and  so  severally 
and  respectively,  to  every  of  the  heirs  male  of 
the  body  of  the  said  Edward,  and  the  heirs 
male  of  the  body  of  such  heirs  male,"  &c. 
The  judgment  of  the  King's  Bench  was,  that 
the  heirs  male  of  the  body,  superadded  to  the 
limitations  to  the  several  sons  of  Edward  in 
succession,  should  not  control  them  so  as  to 
defeat  the  evident  intention  of  the  covenantor; 
but  should  be  governed  by  them,  and  should 
be  intended  sons,  as  in  the  principal  clause, 
and  thus  were  words  of  purchase,  and  not  of 
limitation.  The  judgment,  we  are  told,  was 
afterwards  affirmed  in  the  Exchequer.  (2Atk., 
90.  note;  2  Burr.,  1100.) 

In  Long  and  Laming  (2  Burr.,  1100),  many 
cases  are  cited  by  Lord  Mansfield,  to  show 
393*]  that  the  rule  has  been  *and  may  be 
departed  from,  by  courts  of  law,  in  cases  of 
devise,  where  an  adherence  to  it  would  mani- 
festly defeat  the  intent  of  the  testator.  Should 
this  be  admitted,  if  will  not  be  sufficient  for 
our  purpose.  How  the  fact  is,  is  not  neces- 
sary here  to  be  examined  ;  it  is  not  warranted, 
however,  by  the  authorities  he  refers  to.  On 
examination,  they  will  be  found  (without  ex- 
ception) cases  of  limitation,  to  the  heir  in  the 
singular,  to  sons  in  succession,  to  children,  or 
in  trust.  The  positions  also  there  advanced 
that  the  reason  of  a  rule  having  ceased,  the 
rule  itself  may  be  departed  from,  and  that 
trust  estates  are  subject  to  the  same  positive 
rules  and  general  maxims  in  equity,  as  legal 
estates  at  law,  though,  in  general,  correct,  are 
not  always  so,  and  I  think  cannot,  without 
.great  hazard,  be  applied  to  the  subject  before 
us. 

It  is  true,  as  his  lordship  asserts,  that  this 
rule  or  maxim,  was  the  offspring  of  the  ancient 
feudal  tenures,  and  that  they  have  ceased. 
But  have  not  the  rights  of  primogeniture,  and 
numberless  rules,  governing  the  transmission 
of  real  property,  sprung  from  the  same  source; 
and  can  courts  of  justice  disregard  these,  be- 
cause the  reason  of  them  has  ceased?  It  cer- 
tainly would  be  a  dangerous  experiment. 

The  second  position,  also,  is  here  inapplica- 
ble. Trusts  were  ever  independent  of  tenures, 
and,  therefore,  not  governed  by  the  rules 
springing  from  them.  They  were,  in  their 
554 


origin,  mere  creatures  of  mutual  confidence, 
arising  out  of  the  intent  of  the  party  creating 
them,  and  to  be  governed  and  construed  by 
that  alone.  Equity,  however,  to  preserve,  as 
far  as  possible,  uniformity  of  decision  with  the 
courts  of  law,  has  ever  respected  this  rule,  ex- 
cept in  cases  of  mere  equitable  trusts,  when  an 
adherence  to  it  would  defeat  the  manifest  in- 
tent of  the  party  creating  them. 

The  case  of  Bagshaw  v.  Spencer  (1  Vesey, 
142;  2  Atk.,  517),  on  which  his  lordship  so 
much  relies,  is  of  this  description :  Lord 
Hardwicke  reversed  the  decree  at  *the  [*394 
rolls,  in  the  point  involved  in  our  case,  on  the 
ground  that  it  was  a  trust  in  equity  and  not 
a  mere  legal  estate,  the  fee  being  in  the  first 
instance  vested  in  trustees,  with  a  power  of 
sale,  for  the  payment  of  debts  ;  -and  that  the 
intent  of  the  donor,  to  give  an  estate  for  life, 
only,  to  Benjamin,  was  manifest,  from  its 
being  without  impeachment  of  waste,  and  the 
limitation  to  trustees,  to  support  contingent 
remainders,  with  remainder  to  his  first  and 
other  sons,  in  strict  settlement.  The  distinc- 
tion between  a  trust  and  legal  estate,  is,  in  this 
case,  well  established;  and,  also,  the  principle 
that  a  court  of  equity  may  be  more  liberal  in 
the  construction  of  words  to  make  them  agree 
with  the  intent  of  the  party,  than  a  court  of 
law. 

The  decision  in  C&ulson  v.  Coulson  ( 2  Str. , 
1125;  2  Atk.,  246)  is  founded  on  this  distinction. 
It  was  a  mere  legal  estate;  and  though  the  de- 
vise was  for  life,  remainder  to  trustees  to  sup- 
port contingent,  remainders,  remainder  to  the 
heirs  %f  the  body  of  Coulson,  it  was  on  this 
distinction  held  to  fall  within  the  rule.  And 
though  Lord  Mansfield  (Doug. ,  323)  questions 
that  decision  (which  was  on  a  certificate  of  all 
the  Judges),  and  asserts  that  Lord  Hardwicke 
wished  the  principle  of  it  to  be  reviewed,  we 
find  him  afterwards,  in  Hodgson  v.  Ambrose, 
declaring  it  his  opinion,  it  was  too  late  to 
litigate  it ;  and  Justice  Buller,  going  still  fur- 
ther, and  avowing  himself  satisfied  with  it, 
though  he  admits  he  once  had  doubted  it. 
Notwithstanding  the  various  arguments  in 
Long  v.  Laming,  calculated  to  subvert  the  rule, 
we  find  in  the  conclusion  of  it,  the  decision 
resting,  principally,  on  the  ground  of  the  lands 
being  gavelkind;  and  Lord  Mansfield  deserting 
the  real  turning  point  of  the  case,  and  resort- 
ing to  principles  wholly  unsubstantial.  The 
word  "heir,"  says  he,  is  always  a  word  of 
purchase  ;  and  "heirs"  in  gavelkind  is  tanta- 
mount to  "heir,"  in  ordinary  cases.  That 
"heir"  has  been  often,  under  certain  circum- 
stances, construed  a  nomen  collectivuin  is  ap 
parent,  from  the  authorities  cited  by  Hargrave, 
in  his  note  on  Co.  Lit,,  *86;  from  1  [*395 
Vent.,  230,  and  Bulst,,  219.  Were  it  always  a 
word  of  purchase,  and  heirs  in  gavelkind 
only  equivalent  to  it,  it  would  be  difficult  to 
invent  terms  of  inheritance  that  would  create 
a  fee-simple,  by  deed,  of  such  lands.  The 
usual  circumstance,  which  takes  the  case  out 
of  the  rule  is,  that  the  limitation  was  to  daugh- 
ters as  well  as  to  sons. 

In  Perrin  v.  Blake  this  subject  underwent  a 
more  thorough  examination  than  it  had  ever 
before  experienced,  which  resulted  in  a  final 
difference  of  opinion  among  the  justices  of  the 
King's  Bench.  It  was  distinguishable  from 
JOHNSON'S  CASES,  2. 


1801 


BKANDT,  EX  DEM.  THE  HEIRS  OF  DAVID  PROVOOST,  v.  GELSTON. 


395 


Coulson  v.  Coulson,  by  the  strong  circumstance 
of  the  testator's  declaring  it  his  intent  that 
none  of  his  children  should  sell  this  estate  for 
longer  than  their  lives.  A  majority  of  the 
judges  held  this  sufficient  to  place  it  out  of  the 
rule,  and  decided  accordingly.  This  decision 
was  afterwards  reversed  in  the  Exchequer, 
seven  judges  to  five. 

The  numerous  authorities,  on  this  subject, 
are  very  ably  analyzed  by  Mr.  Fearne,  except, 
perhaps,  the  case  of  King  v.  BurcheU  (Amb., 
379),  which  is  in  the  precise  words  of  our  case. 
The  superadded  words  "equally  to  be  divided 
between  them,  share  and  share  alike,"  are  in- 
serted in  the  case,  as  reported  by  Ambler;  but 
.are  not  noticed  by  Fearne,  probably,  from  an 
•opinion  that  they  were  not  sufficient  to  distin- 
guish it  from  Goodright  \.  Pullyn,  and  Wright 
v.  Pearson,  where  the  terms  of  inheritance  are 
general. 

My  opinion  is  that  Helena  took  an  estate  for 
life,  with  a  vested  remainder  in  tail,  to  take 
effect  in  possession,  on  the  demise  of  her  hus- 
band, and  that  the  superadded  words,  "and 
to  his,  her,  or  their  heirs  and  assigns  forever, 
equally  to  be  divided  between  them,  share  and 
share  alike,"  must  be  rejected,  as  repugnant  to 
the  estate,  created  by  the  precedent  words  of 
the  grant.  That  it  being  stated  in  the  case 
that  Cortlandt  entered,  and  was  seized  under 
the  conveyance  from  Brewerton  and  his  wife  ; 
396*]  that  Brewerton,*  in  1764,  entered  under 
the  conveyance  from  Cortlandt.  and  died 
seized,  in  1790;  the  Act  of  1786  found  him  in 
the  uninterrupted  possession  of  the  premises, 
under  the  conveyance  from  Helena,  aiitf  con- 
firmed his  estate  in  fee-simple.  The  tenant, 
holding  under  his  title,  must  therefore  have 
judgment. 

The  remaining  points  I  will  also  examine, 
.although  the  first  completely  disposes  of  the 
questions. 

Mildmay's  case  (1  Co.,  175),  and  the  several 
authorities  founded  thereon,  determine  it  still 
to  be  a  rule  of  law,  though  the  reason  of  it, 
probably,  ceased  with  the  statute  of  uses,  that 
.a  consideration  is  necessary  to  raise  a  use  in  all 
conveyances  that  do  not  operate  by  transmu- 
tation of  possession,  and  that  such  use  is  well 
limited  to  those  only,  who  are  within  such 
consideration;  that  an  appointee,  under  a  pow- 
•er,  is  generally  held  to  be  within  the  rule,  be- 
cause the  uses  limited  by  the  power  must  be 
such  as  would  have  been  good  if  limited  by 
the  original  deed.  On  the  authority  of  this 
rule,  the  objection  to  the  power  contained  in 
the  deed  of  1762,  is  raised  ;  because  of  its  gen- 
erally authorizing  appointment,  which  may 
not  fall  within  the  consideration,  which,  it  is 
insisted,  is  that  of  natural  love  and  affection 
ulone ;  and  so  the  deed,  operating  only  as  a 
covenant  to  stand  seized.  In  answer,  it  is  said 
that  the  deed  will  well  enure  as  a  bargain  and 
sale,  and  that  the  reservation  of  rents  and 
profits  is  tantamount  to  a  moneyed  considera- 
tion, and  the  case  of  Barker  v.  Keate,  where  a 
peppercorn  only  was  reserved,  is  relied  on.  (1 
Mod. ,  262  ;  2  Mod. ,  269.)  If  this  was  a  conclu- 
sive authority,  all  question  between  the  parties, 
on  this  point  of  the  case,  would  be  at  an  end. 
But  in  that  case  the  consideration  was  general, 
.and,  therefore,  there  could  be  no  objection  to 
considering  the  reserved  rent  the  only  consid- 
JOHNSON'S  CASES,  2. 


eration  intended  by  the  parties.  It  was,  also, 
to  raise  a  use,  for  the  sole  purpose  of  support- 
ing a  common  recovery,  which  the  court 
thought  themselves  bound  to  favor.  But  in  our 
case  the  consideration  is  express,  *and  [*397 
falls  within  the  maxim  of  exprennum  facit  ces- 
sare  taciturn,  precluding  all  averment  of  a  con- 
sideration inconsistent  with  it.  I  shall  consid- 
er this  power,  then,  as  created  by  a  covenant 
to  stand  seized  to  uses,  and  shall  examine 
whether  it  is  such  a  one  as  the  rule  will  em- 
brace. 

Every  declaration  of  a  use,  is,  in  some  sort, 
an  appointment  (Co.  Lit.,  276  a,  b,  notes);  but 
those,  only,  are  technically  so  considered,  where 
the  power  is  first  reserved  or  given,  with  a  sub- 
sequent limitation  of  uses,  to  take  effect  until 
or  in  default  of  the  appointment;  or  where  the 
uses  are  first  limited,  with  a  power  of  limiting 
others,  which  operates  when  executed  as  a  rel- 
ocation of  the  former.  All  the  authorities  I 
have  been  able  to  meet  with  of  powers  deter- 
mined to  fall  within  the  rules,  have  been  of 
one  or  other  of  these  descriptions.  The  one 
we  are  examining  is  of  neither.  There  is  no 
limitation,  expressly,  to  take  effect  until  or  in 
default  of  an  execution  of  the  power;  no  power 
of  limiting  new  uses,  which  shall  of  necessity 
operate  as  a  revocation  of  the  former.  For, 
had  the  power  been  executed  by  devise,  in- 
stead of  deed,  the  first  uses  would  not  have 
been  revoked,  though  they  would  have  been 
expended,  previous  to  the  creation  of  the  new 
uses.  As  no  authorities  are  to  be  found,  ex- 
tending the  rule  beyond  a  power  of  appoint- 
ment, strictly  and  technically  such,  it  warrants 
a  presumption,  at  least,  that  all  others  are  ex- 
empt from  its  operation.  This  presumption  is 
strengthened  by  a  recurrence  to  the  maxim 
that  "all  the  powers  being  derived  from  equity 
are,  even  in  a  court  of  law,  to  be  construed 
equitably"  (3  Burr.,  1446),  so  as  to  effectuate, 
if  possible,  the  intent  of  the  donor.  I  am, 
therefore,  strongly  inclined  to  think  this  ought 
rather  to  be  considered  an  authority  to  sell, 
than  a  power  to  appoint.  It  may  be  objected 
that  it  ought  then  to  have  been  executed  in  the 
name  of  the  donor.  To  this  there  are  two 
answers :  First,  that  an  authority,  coupled 
with  an  interest  *may  be  executed  in  [*398 
the  name  of  the  donee.  Second,  that  the  ex- 
ecution was  pursuant,  in  this  instance,  to  the 
letter  of  .the  authority,  which  required  it  to  be 
done  under  his  hand  and  seal. 

Another  important  consideration  is,  whether 
this  rule  extends  to  a  power  created  for  the 
sole  benefit  of  the  donee?  On  this  point  I 
have  met  with  no  direct  adjudication.  The 
authorities  I  have  examined  relate,  without 
exception,  to  cases  of  a  different  description. 
There  is  one,  however,  from  which  it  may  be 
inferred  that  such  a  power  is  not  within  the 
rule.  The  case  I  allude  to  is  that  of  Goodiitlc 
v.  Petto.  (Str.,  934.)  There  A,  in  considera- 
tion of  love  and  affection,  and  to  make  pro- 
vision for  his  wife,  in  case  she  survived  him, 
covenanted  to  stand  seized  to  the  use  of  him- 
self and  her,  for  their  joint  lives,  and  the  life 
of  the  survivor,  remainder  to  the  use  of  such 
[  person  as  she  should  think  fit  to  dispose  to. 
|  The  court  held  that  because  the  appointment 
I  was  not  to  be  for  the  benefit  of  the  wife,  but 
!  that  she  had  a  naked  power  for  the  benefit  of 


398 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


strangers  only,  the  appointee  could  not  take  ; 
clearly  intimating  it  had  been  otherwise,  had 
the  power  been  to  be  created  for  her  benefit. 

Another  inquiry,  equally  important,  is, 
whether  the  conveyance  of  a  freehold  estate, 
coupled  with  a  power  to  dispose  of  the  fee, 
does  not  vest  a  qualified  fee-simple  in  the  do- 
nee of  the  power. 

In  Jennot  v.  Hardie  (1  Lev.,  283),  lands  were 
devised  to  E.  for  life,  remainder  to  A.  in 
tail,  and  on  his  dying  without  issue,  in  the 
life  of  E.,  then  to  E.  to  dispose  of  at  her 
pleasure.  This  was  held  to  vest  the  fee-simple 
in  E. 

In  Whishonv.  Clayton  (I  L'ev.,  156),  the  de- 
vise was  to  W.  after  the  death  of  the  testator's 
wife,  and  if  he  failed,  then  to  the  discretion  of 
his  father.  This  was  held  a  fee-simple  in  the 
father. 

In  Pearson  v.  Otway  (2  Wils. ,  6),  the  devise 
was  to  Agnes  for  life,  and  in  case  she  should 
399*]  have  no  issue,  *with  power  to  dispose 
at  her  will  and  pleasure.  This  was  held  to 
vest  a  fee-simple  in  Agnes. 

In  Bagxhaw  v.  Spencer  (1  Vesey,  142;  2  Atk., 
577),  the  devise  to  sell  was  held  to  carry  the 
fee. 

These,  it  may  be  said,  are  cases  of  devise, 
and  that  words  in  a  will  may  create  a  fee, 
which  cannot  in  a  deed.  This  would,  in  a 
great  measure,  lessen  their  authority,  were  it 
not  that  the  same  latitude  of  construction  is 
indulged  on  powers,  as  on  wills  ;  for  in  each, 
the  intent  of  the  party  is  to  govern.  The  in- 
tent of  parties  who  gave  the  powers  ought  to 
govern  every  construction,  said  Lord  Mans- 
field, in  Taylor  v.  Horde. 

Another  important  view  remaining  to  be 
taken  of  this  point  of  the  case  is,  to  discover 
whether  this  power  is  not  exempt  from  the 
operation  of  the  rule,  by  means  of  the  freehold 
interest  vested  in  the  donee  of  the  power,  and 
whether  it  embraces  any  other  than  naked  or 
collateral  powers.  In  the  case  at  bar,  the 
power,  if  such  it  may  be  called,  as  far  forth  as 
it  might  be  executed  by  deed,  was  a  power  ap- 
pendant,  because  of  the  interest  which  the 
donee  had  in  the  estate,  as  well  as  in  the  exer- 
cise of  the  power;  and  in  such  case,  it  is  held 
that  the  person  to  whom  the  estate  is  limited 
by  the  execution  of  the  power  is,  in  law,  con- 
sidered as  coming  in  under  him  who  executes 
the  power,  and  not  under  him  who  creates  it. 
(Powell  on  Powers,  12;  Harg.  Law  Tracts, 
415;  1  Co.,  174;  Digg's  case.) 

I  am,  therefore,  of  opinion  this  power  was 
well  created. 

The  remaining  question,  as  to  the  execution 
of  the  power,  I  think,  admits  of  little  doubt. 
It  was  created  expressly  for  the  benefit  of  the 
donee,  her  heirs  and  assigns,  and  there  is  no 
restriction  on  the  exercise  of  her  discretion,  in 
the  adoption  of  such  mode  of  execution  as  she 
should  think  best  calculated  to  produce  this 
effect.     She  was  the  best  judge  of  the  confi- 
dence   her  husband  merited ;    and  that  her 
father  was  satisfied  with  the  disposition  she  j 
4OO*]  *made,  and  was,  probably,  privy  and  ! 
assenting  to  it,  may  fairly  be  inferred,  from 
his  never  having  demanded  rent  during  the  j 
fourteen  years  that  he  survived  his  daughter.  | 

I  am,  therefore,  of  opinion,  that  the  defend- 
ant is  entitled  to  judgment. 


RADCLIFF,  J.,  not  having  heard  the  argu- 
ment, gave  no  opinion.1 

Judgment  for  the  defendant. 

Followed-6  N.  Y.,422. 

Cited  in— 3  Hill,  166 ;  3  Denio,  491 ;  6  Paige,  517 :  3 
Edw.,  11;  58  N.  Y.,  599;  16  Hun,  74;  38  super.,  89; 
100  Mass.,  469. 


THE  PEOPLE,  ex  Tel.  QUACKEHBOSS, 


BURTCH. 

1.  Indictment  for  Forcible  Entry  and  Detainer 
—  Certiorari  —  Rule  to  Amgn  Errors  —  Judg- 
ment —  By  Default  —  Proceeding*  set  Aside.  2. 
Id.  —  Landlord  —  Let  in  to  Defend. 

An  indictment  for  a  forcible  entry  and  detainer 
before  two  justices,  having1  been  removed  by  cer- 
tiorari  to  this  court,  the  defendants  were  served 
with  a  notice  of  a  rule  to  assign  errors  in  20  days, 
and  no  assignment  being  made,  a  judgment  by  de- 
fault was  entered  ;  and  the  defendants  afterwards 
filed  their  plea.  It  was  held  that  the  rule  to  assign 
errors  was  a  nullity,  and  the  judgment,  and  all  sub- 
sequent proceedings  were  set  aside  for  irregularity. 

The  landlord  may  be  let  in  to  defend,  in  an  action 
for  a  forcible  entry  and  detainer,  as  well  as  in  eject- 
ment. 

AN  indictment  for  a  forcible  entry  and  de- 
tainer, was  found  against  the  defendant 
before  two  justices  of  the  peace  in  Washington 
County.  The  defendant  traversed  the  indict- 
ment, by  pleading  not  guilty,  and  possession 
for  three  years.  Before  the  trial,  the  proceed- 
ings were  removed  into  this  court,  by  cer- 
tiorari. 

In  June  last,  a  notice  was  served  on  the  de- 
fendants to  assign  errors  in  twenty  days,  or 
judgment.  No  errors  having  been  assigned,  a 
judgment  by  default  was  entered  against  the 
defendant,  in  July  Term  last.  Afterwards,  the 
defendant  filed  a  plea  of  not  guilty,  and  pos- 
session for  three  years.  The  defendant  did 
not  assign  errors,  because  the  notice  was 
not  to  plead,  as  well  as  to  assign  errors.  The 
defendant  states  that  John  Fort  was  landlord 
*of  the  tenant  in  possession  of  the  prem-  [*4O1 
ises;  and  that  the  defendant  had  a  good  de- 
fense on  the  merits. 

Mr.  Woodwoi'th,  for  the  plaintiff,  now  moved 
to  set  aside  the  default,  and  all  subsequent 
proceedings,  including  the  writ  of  restitution. 

Mr.  Va-n  Vechten,  contra,  read  affidavits, 
stating  that,  by  articles  of  agreement  between 
the  defendant  and  Peter  Fort,  dated  the  25th 
August,  1801,  they  acknowledged  the  prosecu- 
tor as  owner  of  the  land,  and  thereby  surren- 
dered the  possession  to  Quackenboss,  as  the 
agent  of  the  prosecutor,  and  acknowledged 
themselves  tenants,  to  hold  for  three  months, 
and  agreed  to  pay  $10  rent.  That  the  defend- 
ant had  confessed  the  same,  and  disavowed  any 
contract  or  privity  with  John  Fort,  who  had 
declared  his  intention  to  relinquish  all  claim  to 
the  land. 

1.—  LANSING,  Ch.  J.,  had  left  the  bench,  having 
been  appointed  Chancellor,  on  the  28th  October, 
during  the  term  ;  and  LEWIS,  «7.,was  on  the  same  day 
appointed  Chief  Justice. 

JOHJJSOK'S  CASES.  2. 


1801 


DE  HART  v.  COVENHOVEN. 


401 


Per  Curiam.  The  rule  to  assign  errors  was 
&  nullity.  The  record  itself  was  removed  by 
the  certiorari,  which  presented  an  issue  to  be 
tried.  If  the  defendant  was  to  plead  de  now, 
as  it  is  said  he  is  entitled  to  do  (and  as  was,  in 
fact,  done  here),  the  prosecutor  ought  to  have 
called  on  the  defendant  to  plead,  or  abide  by 
his  former  pleas  ;  or  if  he  was  not  so  entitled, 
the  prosecutor  ought  to  have  considered  the 
cause  at  issue,  and  proceeded  to  trial.  The 
proceedings  of  the  prosecutor  were  therefore 
•clearly  irregular. 

On  the  merits  also,  we  are  of  opinion,  the 
proceedings  ought  to  be  set  aside.  Here  is 
color  for  the  suggestion  that  the  defendant  was 
tenant  to  John  Fort;  at  least  the  fact  is  liti- 
gated, and  ought  to  be  otherwise  determined. 
This  is  an  application  to  the  equitable  discre- 
tion of  the  court ;  and  those  who  stand  behind 
the  tenant,  may  here,  as  in  ejectment,  at  com- 
mon law,  and  independent  of  the  statute,  be 
received  to  defend  the  right.  John  Fort,  claim- 
ing the  premises  as  landlord  of  the  defendant, 
4O2*]  and  *the  latter  disclaiming  his  title  and 
attorning  to  another,  are  facts  which  may  be 
tried  in  the  present  action,  and  ought  to  arrest 
any  collusive  proceedings  between  the  prosecu- 
tor and  the  defendant.  It  is  unnecessary  here 
to  say  in  what  form  the  landlord  may  be  ad- 
mitted to  defend  ;  but  his  right  to  make  a  de- 
fense, we  think,  is  undoubted.  It  is  therefore 
ordered  that  the  default,  judgment,  and  all 
proceedings  thereon,  be  set  aside,  and  if  a  writ 
of  restriction  has  been  executed,  that  re-resti- 
tution be  awarded.  The  motion  must  be 
granted. 

Motion  granted. 


DE  HART  v.  COVENHOVEN. 

Reference — Law  Questions. 

A  reference  of  a  cause  will  not  be  granted,  if  it" 
appears  that  law  questions  will  arise. 

MR.  BOGARDUS,  for  the  plaintiff,  moved 
for  reference  of  this  causp,  on  the  usual 
affidavit.  • 

Mr.  Morton,  contra,  read  an  affidavit,  stating 
that  several  important  questions  of  law  would 
arise  in  the  cause. 

Per  Curiam.  As  the  trial  will  involve  the 
decision  of  law  questions,  the  motion  must  be 
denied. 

Motion  denied. 1 


4O3*]         *KANE  AND  KANE 
INGRAHAM. 

1 .  Bankruptcy — Discharge —  Certificate — Bail — 
Exoneretur.  2.  Bail — Tirm  wlien  Fixtd — Sur- 
render. 

Where  the  principal  in  a  cause  had  obtained  his 
certificate  of  discharge  under  the  bankrupt  law  of 
the  United  States,  before  the  bail  had  become  fixed, 
the  court  ordered  an  exoneretur  to  be  entered  on 

1.— See  Low  v.  Hallett,  3  Caines's  Rep.,  82 ;  Adams 
v.  Bayles,  2  Johns.  Rep.,  374. 

JOHNSON'S  CASES,  2. 


the  bailpiece ;  and  bail  are  not  considered  as  fixed 
until  after  eight  days  in  full  term  aft^r  the  return 
of  process  against  them,  or  within  the  time  allowed 
for  the  surrender  of  the  principal. 

Citations— Act  of  Congress  April  5th,  1800 ;  Cowp., 
823,  824;  1  Term  H.,  624 ;  1  Burr.,  244,  436 ;  1  Term  R. 
624. 

MR.  BO  YD,  in  behalf  of,  Phrenix,  bail  for 
the  defendant,  moved  that  an  exoneretur 
be  entered  on  the  bailpiece  in  this  cause,  the  de- 
fendant having  obtained  his  certificate  of  dis- 
charge under  the  bankrupt  law  of  the  United 
States,  of  the  5th  April,  1800. 

The  suit  was  commenced  the  7th  November, 
1800 ;  judgment  was  obtained,  and  a  ca.  sa. 
was  issued,  which  was  returned  non  eat  in- 
ventus,  the  21st  July  last.  Pending  the  suit, 
the  defendant  committed  an  act  of  bankrupt- 
cy, and  a  commission  having  been  issued 
against  him,  he  obtained  his  certificate  of  dis- 
charge on  the  21st  August  last.  After  his  dis- 
charge, a  suit  was  commenced  against  the  bail, 
and  the  capias  was  returnable  on  the  first  day 
of  this  term. 

Mr.  Boyd  cited  1  Burr.,  244;  Cowp.,  823,  824; 
1  Term  Rep.,  624;  Col.  Cas.,  51,  60;  1  Bos.  & 
Pull.,  61. 

Mr.  Hopkins,  contra,  cited  2  Bl.  Rep.,  811, 
812. 

Per  Curiam.  By  the  act  of  congress,  of  the 
5th  April,  1800,  the  bankrupt,  on  obtaining  a 
certificate,  is  to  be  discharged  from  all  debts  ow- 
ing by  him  when  he  became  a  bankrupt,  and 
which  might  be  proved  under  the  commission. 
This  debt  is,  no  doubt,  one  of  that  description. 
The  certificate  of  his  discharge  cannot  be  ob- 
tained, unless  the  commissioners  certify  that 
he  has  made  a  full  discovery  of  his  estate  and 
effects,  and  in  all  things  conformed  to  the  act 
or  the  judge  of  the  district  shall  be  of  opinion 
that  the  certificate  is  unreasonably  denied  by 
the  commissioners;  and  unless  two  thirds  of 
the  creditors  in  value,  coming  in  under  the 
commission,  shall  consent  to  the  allowance 
of  the  certificate,  and  such  consent  proved, 
by  the  oath  of  the  bankrupt,  to  have  been 
*f airly  obtained;  and  any  of  the  cred-[*4O4 
itors  are  entitled  to  be  heard  against  the  al- 
lowance of  the  certificate.  Public  notice  of 
the  bankruptcy  is  required  to  be  given,  aild 
the  creditors  are  fully  apprized  of  the  proceed- 
ings against  him. 

The  act  also  provides  that  if  the  banknipt 
be  arrested  or  prosecuted  for  any  debt  due 
before  he  became  a  bankrupt,  he  shall  appear 
without  bail,  and  may  plead  the  general  issue, 
and  give  the  special  matter  in  evidence,  and 
it  is  declared  that  his  certificate  shall  be  prima 
facie  evidence  of  his  having  conformed  to  the 
act,  and  the  burden  of  proving  fraud  or  non- 
conformity shall  lie  on  the  plaintiff;  and  if  the 
bankrupt  be  taken  in  execution,  or  imprison- 
ed, on  account  of  any  such  debt,  he  shall  be 
discharged  by  Juibeas  corpus. 

In  the  present  case  no  fraud  appears  to  in- 
validate the  discharge.  It  is  not  to  be  sup- 
posed that  any  existed,  for  the  plaintiff  has 
had  an  ample  opportunity  to  show  it  against 
the  allowance  of  the  certificate;  and  the  act  ex- 
pressly directs,  that  the  onus  probandi  shall 
afterwards  be  on  him.  A  bare  suggestion  can- 

557 


404    . 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1801 


not  be  received  as  evidence  of  fraud.  We  are, 
therefore,  t«  consider  the  certificate  as  fairly 
obtained;  and  if  the  defendant  were  in  prison, 
he  would  be  entitled  to  his  discharge  on  a  habeas 
corpus.  It  is  unnecessary  to  say  what  this 
court  would  collaterally  do  on  the  present 
motion,  if  fraud  had  been  made  to  appear. 

The  only  question  is,  whether  the  bail  is 
now  in  time  to  surr%nder.  If  he  may  surren- 
der, to  prevent  circuity,  the  modern  practice 
is  (Cowp.,  823,  824;  1  Term  Rep.,  624),  to  or- 
der an  exoneretur  at  once  to  be  entered.  By 
the  English  law,  the  rule  is  that  the  bail  can- 
not surrender  their  principal,  being  a  certifi- 
cated bankrupt,  after  they  are  fixed.  WooUey 
v.  Cobb,  and  Cockeritt  v.  Owston  ( 1  Burr. ,  244, 
436,  and  1  Term  Rep.,  624),  are  decidedly  to 
this  effect.  The  bail,  in  the  sense  of  the 
authorities,  are  deemed  to  be  fixed,  when 
4Oo*]  *the  ca.  sa.  against  the  principal  is  re- 
turned non  eat.  If  we  apply  this  rule,  the  bail 
would  here  be  fixed,  and  cannot  surrender. 
But  our  courts,  in  general,  have  been  liberal 
towards  bail,  and  have  considered  the  priv- 
ilege with  in  the  period  of  grace,  as  ripened 
into  a  matter  of  right.  Thus  they  are  held 
liable  to  interest,  on  the  judgment  against  the 
principal,  only  from  the  expiration  of  the 
days  of  grace.  That  is  a  case  quite  as  strong  as 
the  present,  because  there  they  are  not  only 
fixed  in  law,  but  have  voluntarily  waived  the 
privilege  of  a  subsequent  surrender.  And  if 
no  analogous  case  existed,  we  are  inclined,  in 
favor  of  bail,  to* adopt  the  rule,  that  they 
are  in  no  case  definitively  liable  till  the  expira- 
tion of  the  eight  days  in  full  term,  after  the 
return  of  process  against  them. 

The  bail  in  this  case,  would,  therefore,  be 
allowed  to  surrender;  but  as  the  principal 
would  be  immediately  entitled  to  his  discharge, 
the  surrender  would  be  an  idle  ceremony,  en- 
tirely useless  to  the  plaintiff,  and  attended 
with  expense  and  inconvenience  to  both  the 
defendant  and  his  bail,  we  think  the  practice 
of  entering  an  exoneretur  ought  to  be  pursued. 

The  motion  must  be  granted. 

Motion  granted.1 
Cited  in-4  Johns.,  409. 


4O6*]        *HODGES  v.  SUFFELT. 

Bond —  Conditioned —  Covenant —  Action  on, — 
Recovery  Six  Cents — Nominal  Damages 
— Judgment —  Costs. 

In  an  action  of  debt  on  a  bond,  conditioned  for 
the  performance  of  covenants,  the  plaintiff  must 
assign  breaches.<and  have  the  damag es  assessed,  and 
may  then  enter  judgment  for  the  penalty  pro 
forma,  and  issue  execution  for  the  damages  and 
costs ;  and  if  the  damages  are  assessed  at  six  cents, 
he  will  be  entitled  to  nominal  damages  for  the  de- 
tention of  his  debt,  and  may  enter  up  judgment  for 
the  penalty  so  as  to  recover  full  costs. 

Citations— Rev.  Laws,  Vol.  I.,  p  349 ;  24 sess.,  ch.  90 ; 
2  Wils.,  377 .  Cowp.,  a57 ;  5  Term  R:,  538,  540  to  636 ;  8 
Term  R.,  127 ;  2  Wils.,  377 ;  5  Term  R.,  636. 

MR.  VAN  VECHTEN  moved  to  set  aside  the 
judgment  and  execution  in  this  cause,  and 
for  the  costs  of  this  action,  in  favor  of  the  def end- 

1. — See  Seaman  v.  Drake,  1  Caines's  Rep.,  9 ;  Jones 
v.  Emerson,  1  Caines'  Rep.,  487;  2  Johns.  Rep.,  101; 
4  Johns.  Rep.,  407. 

558 


ant.  It  was  an  action  of  debt  on  a  bond,  with 
a  penalty,  conditioned  for  the  performance  of 
covenants.  The  defendant  pleaded  perform- 
ance; and  at  the  trial,  the  jury  gave  a  verdict 
for  six  cents  damages.  A  judgment  was 
entered  for  the  penalty  with  full  costs,  and 
execution  issued  to  levy  the  six  cents,  with  the 
full  costs. 
Mr.  Foot,  contra. 

Per  Ouriam.  The  act  (see  Rev.  Laws,  vol. 
1,  p.  349,  24  sess.,ch.  90)  is  compulsory  on  the 
plaintiff,  in  all  cases  within  it.  (2  Wils. ,  377, 
Cowp..  357;  5  Term  Rep.,  538,  540  to  636;  8 
Term  Rep.,  127.)  The  jury,  in  this  case, 
ought,  therefore,  to  have  assessed  six  cents 
damages,  for  the  detention  of  the  debt,  and 
that,  on  a  judgment  for  the  penalty,  would 
have  entitled  the.  plaintiff  to  costs,  and  also 
damages  for  the  breaches  of  the  covenant,  un- 
der the  act.  It  is  understood,  that  the  six 
cents  damages,  was  meant  by  the  jury  for  the 
breaches.  If  so,  and  the  other  six  cents  being 
of  course,  the  judgment,  in  form,  is  still  for 
the  penalty,  for  the  act  says,  "  the  judgment 
shall  be  entered  as  heretofore,"  &c.  But  the 
plaintiff  can  only  recover,  on  the  execution, 
the  damages  assessed  ;  but  as  the  judgment  is 
for  the  penalty,  he  recovers  full  costs.  If, 
then,  the  fact  be,  in  this  case,  that  on  the 
record  the  damages  are  stated  to  be  only  for 
the  detention  of  the  debt,  there  ought  to"  be  a 
venire  fie  novo,  as  in  Drage  v.  Brand  (2  Wils. , 
377),  and  Hardy  v.  Bern  (5  Term  Rep.,  636). 
But  the  notice,  and  the  motion  of  the  defend- 
ant, is  not  for  a  venire  de  now,  but  merely  to 
be  relieved  against  the  *costs.  We  are  [*4O7 
not,  therefore,  now  to  inquire  into  the  regular- 
ity of  the  entry  on  the  record,  but  judgment 
being  for  the  penalty,  the  costs  follow  of 
course.  Nor  would  it  avail  the  defendant  if  he 
had  moved  for  a  venire  de  novo,  for  nominal 
damages  must  then  be  given  on  the  breaches, 
and  the  judgment  being  pro  forma  for  the 
penalty,  full  costs  would  also  be  given.  The 
motion  must  be  denied. 

Motion  denied.1 

» 

Cited  in— 16  Johns.,  209 ;  7  Wend.,  349 : 11  Wend., 
30;  6  Cow.,  58. 


FISH  B.  STOUGHTON. 

British  Subject — Naturalized  Here — Oath,  of  Al- 
legiance to  King  of  Spain — Appointed  Span- 
ish Consul  in  Neio  York — Domicile — American 
Citizen. 

Where  A,  a  British  subject,  became  a  naturalized 
citizen,  and  took  the  oaths  of  abjuration  and  alle- 
giance to  this  State  in  1784,  and  in  1795  took  an 
oath  of  allegiance  to  the  King  of  Spain,  and  was  ap- 
pointed a  consul  by  the  Spanish  King,  and  con- 
tinued to  reside  in  New  York,  without  ever  chang- 
ing his  domicile,  it  was  held  that  he  was  still  to  be 
considered  as  an  American  citizen,  and  not  an  alien 
or  Spanish  subject. 

1.— See  Caverly  v.  Nichols  and  Brown  (4  Johns. 
Rep.,  189),  Van  Benthuysen  v.  Dewitt,  et  al.  (Johns. 
Rep.,  213). 


NOTE.— Erpatriat  ion. 

Allegiance  may  be  dissolved  by  mutual  consent  of 
government    and   citizen   (Inglis    v.  Sailor's  Snug 

JOHNSON'S  CASES,  2. 


1801 


GRAHAM  v.  ADAMS  AND  ADAMS. 


407 


MR.  PENDLETON  for  the  defendant,  moved 
that  all  further  proceedings  in  this  cause  be 
stayed;  that  the  cause  be  removed  to  the  Cir- 
cuit Court  of  the  United  States,  and  the  bail 
discharged.     He  read  the  defendant's  petition 
and  affidavit. 
Mr  Boyd,  contra. 

It  appears  that  the  defendant  was  originally 
a  British  subject,  and  became  a  naturalized 
citizen  of  this  State,  in  1784,  and  has  ever 
since  continued  to  reside  in  New  York.  He 
has,  since  his  naturalization,  been  appointed  a 
consul  for  Spain,  and  taken  an  oath  of  allegi- 
ance to  the  King  of  Spain. 

Per  Curiam.  The  defendant  was  originally  a 
British  subject,  and  by  an  act  of  the  Legislature 
4O8*]  was  made  a  naturalized  *citizen  of  this 
State,  and  must  have  then,  in  1784,  taken  an 
oath  of  allegiance  to  this  State.  In  1795,  he 
took  an  oath  of  allegiance  to  the  King  of 
Spain,  and  was  appointed  by  the  Spanish  King 
his  consul  for  this  State,  and  has  since  been 
appointed  Consul-General  for  the  United 
States.  In  this  situation  he  claims  to  be  an 
alien,and,  as  such,  entitled  to  the  privilege  of 
being  sued  in  the  Courts  of  the  United  States. 
We  are  of  opinion  that  he  has  no  title  to 
that  privilege  ;  and,  without  deciding  on  the 

feneral  right  of  expatriation,  that  he  cannot 
e  considered  as  having  devested  himself  of 
the  character  of  an  American  citizen;  for  he 
cannot  devest  himself  of  that  character,  with- 
out, at  least,  changing  his  domicile.  While  he 
continues  to  reside  here,  we  have  a  right  to 
consider  him  as  a  citizen  of  this  State.  If  a 
different  rule  should  prevail,  it  would  be  in  the 
power  of  the  sovereign  of  any  other  nation 
thus  to  naturalize  any  of  our  citizens;  and  in 
the  heart  of  our  country  to  detach  them  from 
the  allegiance  they  owe  to  its  government. 
The  motion  must  be  denied. 

Motion  denied. 


GRAHAM  v.  ADAMS  AND  ADAMS. 

Sentenced    to    Prison  for    Life — Defendant  in 
Civil  Suit — Civilly  Dead — Suit  Abated. 

Where  the  defendant  in  a  cause  is  sentenced  to 
the  State  Prison  for  life,  he  is  considered  as  civilly 
dead,  and  the  suit  is  abated. 

THE  defendants,  in  this  cause,  having  both 
been  sentenced  to  the  State  Prison  for  life, 
the  court  decided  that  they  were  to  be  consid- 
ered as  civilly  dead,  and  that    the    suit  had 
therefore  abated. 

Judgment  for  the  defendants. 


4O9*]  *CLAPP  v.  REYNOLDS  ET  AL. 

Costs — Recovery — Amount  of  Debt — Damages. 

Where  the  plaintiff  recovers  $250  of  debt,  and  dam- 
ages for  the  detention  on  a  single  bill,  he  is  enti- 
tled to  the  full  costs  of  this  court. 


THE  plaintiff  recovered  $250  debt  on  a  single 
bill,  and  also  damages  for  the  detention, 
including  interests,  as  costs.  The  question  was, 
whether  he  was  entitled  to  full  costs. 

Per  Curiam.  The  plaintiff  is  entitled  to  full 
costs.  The  act  deprives  him  of  full  costs 
when  he  recovers  a  sum  not  exceeding  £100, 
exclusive  of  costs.  The  recovery  here  exceeds 
that  sum;  and  in  form,  as  well  as  reality,  the 
judgment  applies  to  the  damages,  as  well  as  to 
the  debt. 

Judgment  accordingly. 


THE  PRESIDENT  AND  DIRECTORS  OF  THE 
BANK  OP  NEW   YORK, 

0. 
LIVINGSTON. 

Guaranty — In  Writing — Payment  by  Another 
— Demand — Notice — Action  Against  Guaran- 
tor. 

Where  A,  by  writing:,  for  a  valuable  considera- 
tion, guaranteed  the  payment  of  a  sum  of  money 
by  B  to  C  and  B,  on  demand,  refused  to  pay  at  the 
time,  and  C  gave  notice  to  A  of  the  failure  of  pay- 
ment, and  demanded  the  amount  of  him,  it  was 
held  that  the  demand  of  payment  of  B  and  refusal 
by  him,  and  notice  thereof  to  A  were  sufficient  to 
entitle  C  to  recover  against  A  on  his  guaranty, 
without  a  previous  suit  against  B. 

THIS  was  an  action  on  the  case,  brought 
upon  a  contract,  as  follows:  "Whereas, 
the  bank  of  New  York,  has  agreed  to  lend  the 
committee  appointed  to  superintend  the  build- 
ing of  a  new  theatre,  a  sum,  not  exceeding 
$25,000,  for  nine  months,  at  the  interest  of  six 
per  cent. ,  for  the  purpose  of  completing  the 
theatre,  on  condition  that  satisfactory  security 
be  given  for  the  repayment  of  the  said  loan  : 
We,  the  subscribers,  wishing  to  facilitate  the 
completion  of  the  said  theatre,  do  hereby  agree 
to  guarantee  *to  the  Bank  of  New  York  [*4-l O 
the  repayment  of  the  loan  above  mentioned, 
with  the  interest,  in  proportion  to  the  sums 
affixed  to  our  names  respectively.  Dated,  &c. 
(Signed)  John  R.  Livingston,  for  $1,000  and 
by  others. 

At  the  trial,  the  advancement  of  the  loan  by 
the  plaintiffs  was  proved;  when  the  same  be- 
came due,  the  committee  were  called  upon  bv 
the  plaintiffs  for  payment,  which  was  refused, 
as  they  had  no  funds.  The  plaintiffs  then 
gave  notice,  in  writing,  to  the  defendant  of 
such  refusal,  and  required  of  him  the  payment 
of  the  sum  affixed  to  his  name,  agreeably  to 
the  contract.  A  verdict  was  found  for  the 
plaintiffs,  with  the  interest. 

Mr.  E.  Livingston,  for  the  defendant,  now 
moved  to  set  aside  the  verdict,  and  for  a  new 
trial.  He  contended  that  the  plaintiffs,  before 
they  could  be  entitled  to  an  action  against  the 
defendant,  ought  to  have  sued  the  committee, 


Harbor ;  3 Pet.,  99, 125 ;  Shanks  v.  Dupont,  3  Pet.,  292), 
but  not  without  a  bond  fide  change  of  domicile.  Tal- 
bot  v.  Jansen  3  Ball.,  133 ;  The  Santissima  Trinidad, 
7  Wheat.,  283 ;  Stoughton  v.  Taylor,  2  Paine,  655.  See  2 
Kent  Com.,  42  et  seq. 
What  constitutes  domicile  in  foreign  country.  See 

JOHNSON'S  CASES,  2. 


Venus,  8  Cranch,  279 ;  Cooper  v.  Galbraith,  3  Wash., 
546. 

See,  generally,  Wynn  v.  Morris,  16  Ark.,  414 ; 
Woodridge  v.  Wilkins,  4  Miss.  (3  How.),  360  ;  Jack- 
son v.  Burns,  3  Bum.,  75;  Ludlam  v.  Ludlam,  36 
N.  Y.,  a56 ;  Lynch  v.  Clarke,  Sandf .,  Ch.,  583. 


410 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1801 


to  whom  the  credit  was  given  by  the  plaint- 
iffs. • 

Mr.  Harison,  contra. 

Per  Curiam.  The  members  of  the  commit- 
tee were  mere  agents  in  this  transaction,  and 
there  was  no  necessity  of  suing  them.  The 
defendant  absolutely  guaranteed  the  payment 
of  the  sum  subscribed  by  him.  He  stands  as 
surety,  at  least,  and  is  liable,  in  the  first  in- 
stance, to  the  plaintiffs.  It  is  unnecessary  to 
decide  whether  the  plaintiffs  could  maintain 
an  action  against  the  agents.  If  they  could, 
the  defendant  is  collaterally  liable,  and  the 
plaintiffs  have  done  all  that  was  necessary  to 
make  the  defendant  responsible. 

Motitm  denied. 
Cited  in— 1  Wend.,  138,  461 ;  11  Wend.,  1(6. 


*JUDAH  ET  AL.  v.  KEMP.  [«411 

'Carrier — Bill  of  Lading — Assignment  by  Con- 
signs —  Demand  by  Assignee  —  Tender  of 
Freight  Money  —  No  Objections  thereto  — 
Waiver- — Refusal  to  deliver —  Trover — Evidence. 

Where  A  shipped  goods  by  B,  the  master  of  a  ves- 
sel, at  London,  for  New  York,  and  the  consignee 
assigned  the  bill  of  lading  to  C,  who  demanded  the 
goods  and  tendered  a  sum  of  money  for  the  freight, 
but  whether  enough  did  not  appear ;  B  refused  to 
deliver  the  goods,  assigning  as  a  reason  that  he  was 
ordered  by  the  ship  owners  not  to  deliver  them, 
and  made  no  objection  as  to  the  tender  of  the  freight; 
in  an  action  of  (rover  against  B,  it  was  held  that  he 
had  waived  any  tender  of  the  freight,  and  that  his 
refusal  was  evidence  of  a  conversion. 

THIS  was  an  action  of  trover,  for  goods 
shipped  by  one  of  the  plaintiffs,  residing 
in  London,  on  board  of  the  ship  Factor,  of 
which  the  defendant  was  master,  for  New 
York.  The  ship  arrived  at  New  York  on  the 
22d  of  December,  1799,  and  on  the  next  day 
the  consignee  assigned  the  bill  of  lading  to 
the  plaintiffs,  who  are  partners,  some  of  whom 
reside  in  New  York.  The  indorsement  on 
the  bill  of  lading  was  as  follows:  ''For  value 
received,  I  assign  the  cases  and  goods  within 
mentioned,  to  Benjamin  S.  Judah  and  brothers, 
or  order.  23d  December,  1799.  N.  Judah." 
660 


The  goods  were  entered  at  the  custom-house, 
by  the  plaintiffs,  and  a  permit  for  landing  them 
obtained,  and  delivered  by  them  to  the  cus- 
tom-house officer. 

On  the  3d  January,  1800,  the  plaintiffs  de- 
manded the  goods  of  the  defendant,  who 
refused  to  deliver  them,  alleging  that  he  had 
orders  from  the  ship  owners  not  to  deliver 
them.  At  the  time  of  the  demand,  a  sum  of 
money  was  tendered  to  the  defendant  for  the 
freight,  but  whether  it  was  equal  to  the  freight 
or  not,  did  not  appear ;  nor  was  the  permit 
then  shown  or  presented  to  the  defendant. 

It  appeared  that  the  goods  had  been  pre- 
vioxisly  sold  by  the  ship  owners,  and  that  the 
permit  was  in  the  hands  of  the  custom-house 
officer,  when  the  goods  were  landed,  who  did 
not  observe  the  persons  who  took  away  the 
goods. 

A  verdict  was  taken  for  the  plaintiffs,  subject 
to  the  opinion  of  the  court,  on  a  case  contain- 
ing the  above  facts. 

The  counsel  for  the  defendants  contended : 
1.  That  the  assignment  indorsed  on  the  bills 
of  lading,  and  the  delivery  thereof,  did  not 
transfer  the  property,  so  as  to  support  this 
action.  2.  That  the  plaintiffs  did  not  show 
that  the  freight  had  been  tendered.  3.  That 
the  permit  to  *land  the  goods  ought  to  [*412 
have  been  presented  to  the  defendant. 

Mr.  B.  Livingston  for  the  plaintiffs. 
Mr.  Hamilton,  contra. 

Per  Curiam.  When  the  defendant  refused 
to  deliver  the  goods,  on  the  ground  that  his 
owners  had  ordered  him  not  to  deliver  them, 
a  tender  of  the  freight  was  not  necessary. 
The  plaintiffs,  however,  did  tender  a  sum  of 
money  for  freight,  though  the  amount  does 
not  appear ;  but  as  the  defendant  did  not  make 
any  demand  of  freight,  nor  object  to  the 
tender,  it  was  sufficient.  The  goods  were  not 
detained  by  the  defendant  on  the  ground  of 
his  lien,  but  for  a  different  reason,  which 
amounted  to  a  waiver  of  the  tender.  His 
refusal,  therefore,  is  evidence  of  a  conversion, 
and  the  plaintiffs  are  entitled  to  judgment. 

Judgment  for  the  plaintiffs. 

Cited  in-3  Johns.  Cas.,  251 ;  Cai.  Gas.,  214 ;  6  Wend., 
608 ;  18  How.,  278 ;  1  Daly,  82. 

JOHNSON'S  CASES,  2. 


[END  OF  OCTOBER  TERM.] 


CASES   ADJUDGED 


COURT  FOR  THE  CORRECTION  OF  ERRORS 


STATE   OF   NEW   YORK, 


MARCH,    18OO.    .AJSTD     FKBRTJAJRY,    18O1. 


413*]  *CHARLES  NEWKIRK  ET  ux., 
Executrix  of  PETEK  SCHUYLER,  Deceased, 
Appellants, 

v. 
EDWARD  8.  WILLETT,  Respondent. 

1.  Bill  of  Discovery — Action  against  Executors 
— Injunction — Dissolution  —  Bill  containing 
Insufficient  Equities.  2.  Id. — Enforcement — 
Matei'ial  fact —  Confession. 

The  executors  of  S.  filed  a  bill  in  chancery  against 
W.  setting1  forth  that  W.  had  commenced  a  suit  at 
law  against  them  for  a  debt  pretended  to  be  due 
from  the  testator,  of  which  they  had  no  knowledge, 
and  which  they  had  strong  ground  to  believe  was 
unjust,  and  that  they  could  not  safely  proceed  to 
trial  without  a  discovery  from  W.  of  all  the  facts, 
relative  to  the  origin  and  state  of  such  pretended 
debt,  and  praying  for  an  answer  and  an  injunction. 
An  injunction  was  allowed  by  one  of  the  masters 
of  the  Court  of  Chancery,  which,  afterwards,  was 
ordered  by  the  Chancellor  to  be  dissolved ;  and  on 
an  appeal  from  this  order,  it  was  held  that  the  bill 
did  not  contain  sufficient  equity  to  entitle  the 
plaintiff  to  a  discovery,  and  that  the  order  for  the 
injunction  was  properly  dissolved. 

Citations— 2  Vesey,  445,  493;  3  Fonb.,  484;  1  Vern., 
399. 

ON  the  18th  day  of.  April,  1799,  the  appel- 
lants filed  a  bill  in  chancery,  setting  forth 
that  the  testator  died  in  the  winter,  1792,  and 
left  the  appellant,  Gertruyd  Newkirk,  his 
widow  and  executrix.  That  soon  after,  the 
respondent  demanded  a  considerable  sum  of 
money,  which  she  refused  to  pay  ;  that  the 
respondent,  thereupon,  offered  to  submit 
the  controversy  to  arbitration,  which  she 
414*]*also  refused  ;  and  thereupon  in  April, 
1793,  and  after  her  intermarriage  with  the 
appellant,  Charles  Newkirk,  the  respondent 
commenced  a  suit  against  them  in  the  Supreme 
Court  for  £1,000,  for  money  pretended  to  be 
due  to  him  from  the  said  Schuyler ;  that  the 
appellants  did  not,  of  their  own  knowledge, 
know  anything  of  the  said  demand  ;  but  had 
strong  grounds  to  believe  the  same  to  be  un- 
just, because  the  respondent  had  not,  during 
JOHNSON'S  CASES,  2.  N.  Y.  REP.,  BOOK  1. 


the  life  of  the  said  Schuyler,  taken  measures 
to  adjust  his  claim,  and  because  he  did  not 
possess  any  vouchers  to  establish  the  justice 
of  his  demand ;  that  the  relations  and  accounts 
given  by  the  respondent  were  inconsistent  and 
various,  and  that  the  appellants  being  unac- 
quainted with  the  origin  of  the  pretended 
debt,  could  not,  without  a  discovery  by  the 
respondent  of  all  the  facts,  safely  proceed  to 
a  trial  of  the  suit ;  and  that  the  respondent 
might,  until  he  should  have  fully  answered  to 
the  said  facts  and  interrogatories  stated  in  the 
said  bill,  be  enjoined  from  proceeding  to  a 
trial  at  law  in  the  said  suit,  the  appellants 
prayed  an  injunction,  which  was  accordingly 
issued,  on  the  certificate  of  one  of  the  masters 
of  chancery,  that,  in  his  opinion,  it  ought  to 
issue ;  which  certificate  was  founded  on  the 
affidavit  of  the  appellant,  Charles  Newkirk, 
annexed  to  the  bill. 

Fourteen  days  previous  to  the  filing  the 
above  bill,  viz.,  on  the  5th  April,  1799,  the 
appellants  had  filed  a  bill  against  the  respond- 
ent (in  substance  the  same  as  the  second  bill), 
to  which  the  respondent  had  put  in  his  an- 
swer, before  the  second  bill  was  filed ;  in 
which  answer  the  respondent  states,  that  in 
the  year  1786  or  1787  he  was  possessed  of  cer- 
tificates or  public  securities,  amounting  to 
£800  and  upwards,  besides  interest,  which  he, 
at  the  solicitation  of  said  Schuyler,  delivered 
to  him,  on  his  promise  to  lay  them  out  for  the 
respondent's  use,  in  the  purchase  of  forfeited 
lands  ;  that  he  had  several  times  applied  to  the 
said  Schuyler,  in  his  lifetime,  but  without  suc- 
cess, to  render  an  account  and  come  to  a  settle- 
ment *for  the  certificates;  and  that  at  [*415 
the  last  time  of  applying  to  Schuyler,  at  Johns- 
town, he  declared  that  he  had  sent  his  certifi- 
cates to  New  York,  with  his  wife,  the  above 
appellant,  to  be  disposed  of,  and  that  on  her 
return  he  would  pay  the  respondent  for  the 
same. 

The  first  bill,  to  which  an  answer  was  filed, 
was  on  the-  14th  day  of  December,  1799,  or- 
dered by  the  Chancellor  to  be  dismissed. 

36  561 


415 


COURT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1801 


On  the  4th  day  of  January,  1800,  the  Chan- 
cellor, after  hearing  the  arguments  of  counsel 
for  both  parties,  ordered  the  injunction  issued 
on  the  second  bill  to  be  dissolved;  from  which 
order  the  present  appeal  was  made  to  this 
court. 

Mr.  Spencer  and  Mr.  Riggs  for  the  appel- 
lants. 

Mr.  P.  W.  Yates  and  Mr.  Lush  for  the  re- 
spondent. 

KENT,  J.  This  is  an  appeal  from  an  inter- 
locutory order  of  the  Court  of  Chancery,  dis- 
solving an  injunction,  without  any  answer 
being  put  into  the  bill. 

The  two  most  material  points,  which  were 
raised  on  the  argument  upon  this  appeal,  were 
these: 

1st.  Is  an  order  dissolving  an  injunction  one 
of  the  orders  of  the  court  below,  upon  which 
an  appeal  will  lie? 

2d.  Did  the  bill  contain  sufficient  equity  to 
entitle  the  appellants  to  a  discovery,  and,  con- 
sequently to  an  injunction  to  stay  proceedings 
at  law  in  the  mean  time? 

To  determine  the  first  question  satisfacto- 
rily, and  to  draw  the  exact  line  of  distinction 
between  that  class  of  orders  arising  in  the 
progress  of  a  cause,  wliich  are  suceptible  of 
review  by  appeal,  and  that  class  of  orders 
from  which  no  appeal  lies  (and  such  a  dis- 
tinction must  and  does  exist),  would  require  a 
more  deliberate  examination,  than,  at  this  late 
hour  of  the  court,  so  near  the  close  of  the  ses- 
sion, I  have  had  time  to  bestow.1  I  shall, 
therefore,  give  no  opinion  on  the  first  [*416 
point,  nor  is  it  necessary,  in  the  present  instance, 
to  the  rights  of  the  parties;  because,  admitting 
an  appeal  to  lie  upon  the  order,  I  am  of  opin- 
ion, on  the  second  question,  that  the  injunc- 
tion was  properly  dissolved.  The  bill  does 
not  state  sufficient  equity  to  entitle  the  appel- 
lants to  a  discovery.  It  states,  generally,  that 
the  respondent  had  made  a  demand  upon  one 
of  the  appellants,  as  executrix  of  Peter  Schuy- 
ler,  deceased;  and  that,  as  he  did  not  produce 
any  voucher,  she  had  refused  to  pay  him.  It 
states  further,  that  he  proposed  an  arbitration, 
which  she  refused,  and  that  finally  he  had 
brought  a  suit  against  the  appellants  in  the 
Supreme  Court.  The  bill  states  further,  that 
the  appellants  knew  nothing  of  the  demand  of 
their  own  knowledge,  but  that  they  believe  it 
unjust,  because  the  respondent  took  no  meas- 
ures to  liquidate  and  settle  it  in  the  lifetime  of 
Peter  Schuyler,  and  does  not  now  produce  any 
vouchers,  and  has  been  inconsistent  in  what 
he  has  from  time  to  time  said  as  to  the  nature 
and  extent  of  his  demand. 

This  is  the  substance  of  the  bill.  It  amounts 
to  this:  the  respondent  has  sued  us  at  law,  and 
we  do  not  know  for  what,  and,  therefore,  we 
ask  for  a  discovery  beforehand,  although  we 
have  reason  to  conclude  he  has  sued  us  upon 
some  groundless  pretense.  Such  a  bill  shows 
no  equity,  no  right  to  a  discovery. 

It  sets  forth  no  matter  material  to  a  defense 
at  law,  and  which  cannot  be  proved  unless  by 
the  confession  of  the  opposite  party.  (2  Vesey, 

1.— See  1  Johns.  Cas.,  436 ;  3  Johns.  Rep.,  549,  566 ; 
4  Johns.  Rep..  410. 

562 


!  445,  492 ;  3  Fonb.,  484;  1  Vern.,  399.)  It  is, 
i  to  use  Lord  Chancellor  Hardwicke's  expres- 
'  sion,  a  mere  fishing  bill,  seeking  generally  a 
I  discovery  of  the  grounds  of  the  respondent's 
!  demand,  without  stating  any  right  to  entitle 
i  them  to  it.  Such  a  bill  may  be  exhibited  by 
!  an  executor  or  administrator,  and  indeed,  by 
!  any  defendant,  who  is  not  already  in  posses- 
j  sion  of  the  plaintiff's  proofs. 

*But  the  Court  of  Chancery  has  [*417 
j  wisely  refused  to  sustain  bills  for  discovery  in 
I  such  latitude;  and  unless  the  party  calling  for 
a  discovery  will  state  some  matter  of  fact  ma- 
terial to  his  defense,  and  which  he  wishes  to 
;  substantiate  by  the  confession  of  the  defend- 
'  ant,  the  court  will  not  enforce  a  discovery. 

I  am,  accordingly,  of  opinion  that  the  appel- 
i  lants  in  the  present  case  were  not  entitled  to  a 
i  discovery,  and  that  the  injunction  staying  the 
i  suit  at  law  was  properly  dissolved,  and  that  the 
i  order  for  that  purpose  ought  to  be  affirmed  ; 
i  and  further,  that  the  appellants  pay  to  the  re- 
i  spondent  his  costs  of  the  appeal  to  be  taxed. 

Such  being  the  unanimous  opinion  of  the 
i  court,  it  was,  therefore,  ordered,  adjudged. 
;  and  decreed,  that  the  order  of  the  Chancellor 
be  affirmed,  with  costs. 

Judgment  of  affirmance. 

S.  C.,  2  Cai.  Cos.,  296. 

Cited  in— 9  Johns.,  447 :  2  Wend.,  231 ;  16  Wend.,  373 
'  2  Paige,  601 ;  9  Paige,  625 ;  1  Sand.  Ch.,  98 ;  47  N.  Y., 
472;  1  Barb.,  485;  8  Barb.,  84;  8  How.  Pr.,  324;  52 
How.  Pr,,  405 ;  10  Abb.,  347;  1  Abb.,  N.  C.,  335;  £ 
i  Abb.,  N.  C.,  134;  2  Co.  R.,  124. 


JOHN  WOOD  WORTH  AND  WAIT  RATH- 
BUN,  Appellants, 

ELIJAH    JANES,    JAMES     DOLE,     AK» 
ELI  JUDSON,  Respondents. 

Bill  in  Chancery — Injunction — Maintenance — 
Parties  in  pari  delicto — No  Relief — Land — 
Sale — Claimed  by  Pennsylvania — Notes  for 
Purchase  Money  —  States  —  Submission  of 
Claims  to  U.  8.  Courts — Rules  of  Adjudi- 
cation. 

A  claiming'  title  under  the  Connecticut  Susque- 
hanna  Company  to  land  situate  in  the  State  of 
Pennsylvania,  and  claimed  by  that  State,  sold  the 
land  to  B,  who  gave  his  notes  for  the  purchase 
money,  part  of  which  was  paid ;  and  A  executed  to 
B  a  quitclaim  deed  for  the  land.  B  afterwards 
filed  his  bill  in  chancery,  praying  that  A  might  be 
perpetually  enjoined  from'  assigning  the  notes,  or 
proceeding  at  law  to  recover  the  amount ;  and  that 
the  money  paid  might  be  refunded ;  it  was  held  that 
the  sale  was  maintenance,  in  selling  a  pretended 
title,  and  that  both  parties  being  in  pari  delicto,  a 
court  of  equity  would  not  relieve  either ;  and  the 
bill  was,  therefore,  dismissed. 

The  individual  States  having  submitted  their  terri- 
torial claims  to  the  judiciary  of  the  United  States, 
are  to  be  so  far  considered  as  having  ceded  their 
sovereignty,  and  as  corporations ;  and  their  right 
to  transfer  land  must  be  judged  of  by  the  same 
rules  of  common  law  as  the  rights  of  other  per- 
sons, natural  or  politic. 

ON  the  6th  May,  1799,  the  appellants  filed 
their  bill  in  the  Court  of  Chancery  against 
the    respondents,    setting  forth,  among  other 
things,    that    the    Connecticut    Susquehanna 
*Company  claim  title  to  a  tract  of  land  [*4 1 8 
commonly  called  the  Connecticut  Susquehan- 
na Company  purchase,  situate  in   the  coun- 
JOHNSON'S  CASES,  2. 


1801 


JOHN  WOODWORTH  ET  AL.  v.  ELIJAH  JANES  ET  AL. 


418 


ties  of  Northumberland,  Northampton  and 
Luzerne,  in  the  Commonwealth  of  Pennsylva- 
nia, and  within  and  under  the  jurisdiction  of 
the  said  Commonwealth;  that  the  claim  of  the 
State  of  Connecticut  had  been  uniformly  op- 
posed and  denied  by  the  Commonwealth  of 
Pennsylvania;  and  that,  in  order  to  deter  any 
person  or  persons  from  making  entry,  or  tak- 
ing possession  of  said  lands,  or  any  part 
thereof,  under  pretense  of  title  derived  from 
Connecticut,  the  Legislature  of  that  Common- 
wealth, on  or  about  the  llth  day  of  April, 
1795,  passed  an  act  entitled  "An  Act  to  pre- 
vent intrusions  on  lands  in  the  counties  of 
Northampton,  Northumberland  and  Lu- 
zerne," imposing  the  penalty  of  $200  fine, 
and  imprisonment  not  exceeding  twelve 
months,  on  any  person  or  persons,  that,  un- 
der color  or  pretense  of  title  derived  from 
Connecticut,  should  take  possession  of,  enter, 
intrude  or  settle  any  of  the  said  lands,  situate 
within  the  said  counties  and  Commonwealth 
of  Pennsylvania;  and  further,  that  every  per- 
son who  should  combine  or  conspire  for  the 
purpose  of  conveying,  possessing  or  settling 
on  any  of  the  said  lauds,  under  any  such  pre- 
tended title,  or  for  the  purpose  of  laying  out 
townships,  by  persons  not  appointed  or  ac- 
knowledged by  the  said  Commonwealth, 
should,  for  every  such  offense,  forfeit  a  sum 
not  less  than  $500,  nor  more  than  $1,000,  and 
be  subject  to  imprisonment,  at  hard  labor,  not 
exceeding  eighteen  months,  as  the  court  in 
their  discretion  might  direct;  that  Elijah  Janes 
and  James  Dole,  two  of  the  respondents,  pre- 
tending that  they  were  the  owners,  or  had  reg- 
ular title  from  the  State  of  Connecticut,  for 
two  third  parts  of  a  certain  township  of  land, 
known  by  the  name  of  Janes,  containing  in 
the  whole  16,000  acres  of  land,  being  part  of 
the  lands  claimed  by  Connecticut  and  within 
the  jurisdiction  of  the  Commonwealth  of 
419*]  Pennsylvania,  *sold  to  the  appellants 
the  said  two  thirds  of  the  said  township  for 
£1,000  current  money  of  the  State  of  New 
York  ;  that  on  the  4th  day  of  May,  1796,  the 
said  Elijah  Janes  and  James  Dole,  by  a  cer- 
tain indenture  sealed  with  their  seals,  and 
bearing  date  the  day  and  year  last  aforesaid, 
bargained,  released,  and  forever  quitclaimed 
unto  the  appellants,  all  their  right  and  title  to 
two  equal  undivided  third  parts  of  the  said 
township;  and  for  the  sole  consideration  afore- 
said, the  appellants  executed  to  the  said  Elijah 
Janes  and  James  Dole,  their  three  promissory 
notes;  one  note  for  £333  6s.  8d.,  payable  on 
the  7th  day  of  April,  1797;  one  other  note,  for 
the  like  sum,  payable  on  the  7th  day  of  April, 
1798 ;  and  on  one  other  note,  for  the  like 
sum,  payable  on  the  7th  day  of  April,  1799 ; 
which  several  notes  bore  interest  from 
the  7th  day  of  April,  1796 ;  that  the  ap- 
pellants were  wholly  ignorant,  and  had 
never  been  advised  of  the  existence  of 
the  said  act  of  the  Commonwealth  of 
Pennsylvania,  or  of  any  of  the  penalties  or 
restrictions  therein  contained,  at  the  time  of 
executing  the  said  conveyance  or  giving  the 
said  notes ;  that  the  equal  half  of  the  two 
first  notes  mentioned  were  duly  paid  soon 
after  they  became  due,  but  without  any 
knowledge  on  the  part  of  the  appellants  of 
the  existence  of  the  said  statute  of  Pennsyl- 
JOHNSON'S  CASES,  2. 


vania  ;  that  the  said  Elijah  Janes  and  James 
Dole  indorsed  the  said  second  note  to  Eli 
Judson,  one  of  the  respondents,  and  shortly 
thereafter  the  said  John  Woodworth  was 
called  on  for  payment  of  the  other  half  of 
the  said  last-mentioned  note;  and,  not  having 
the  money,  in  order  to  save  costs,  consented  to 
execute  a  warrant  of  attorney,  authorizing  a 
judgment  to  be  entered  against  him,  in  favor 
of  the  said  Eli  Judson,  for  the  balance  then 
remaining  due  on  the  said  note,  at  the  April 
Term  of  the  Supreme  Court,  1799,  which  was 
accordingly  entered  in  the  Term  of  April,  for 
the  sum  of  $530.68,  being^  the  amount  of  prin- 
cipal, interest  and  costs;  *that  the  said  [*42O 
Eli  Judson  was  merely  a  nominal  plaintiff, 
and  was  to  account  to  the  said  Elijah  Janes 
and  James  Dole  for  the  avails  of  the  note. 

The  appellant  prayed  an  injunction  against 
further  proceedings  at  law,  that  the  said  Elijah 
Janes  and  James  Dole  might  be  restrained 
from  negotiating  the  note  thirdly  payable;  that 
the  money  so  paid  might  be  refunded,  and  for 
general  relief. 

To  this  bill  the  respondents  answered  by 
stating  that  the  respondents,  Janes  and  Dole, 
in  the  winter  of  the  year  1785,  having  been  in- 
formed that  the  appellant,  Wait  Rathbun,  was 
interested  in  the  Connecticut  Susquehanna 
Company  Purchase,  applied  to  him  for  the 
information  respecting  it ;  and  being  assured 
by  him  of  the  validity  of  the  title,  on  his  ex- 
pressing an  inclination  to  be  concerned  in 
extensive  purchases  of  those  lands,  and  re- 
gretting his  inability  to  procure  the  necessary 
sums  of  money,  they  entered  into  an  agree- 
ment with  him,  the  terms  of  which  were,  that 
he  should  make  the  purchases,  and  have  a 
reasonable  allowance  made  for  his  services, 
the  necessary  advances  to  be  made  by  them; 
that  each  should  be  entitled  to  one  third  part 
of  the  lands,  each  paying  one  third  part  of  all 
moneys  expended;  that  the  appellant,  Rathbun, 
then  proceeded  in  his  purchases,  and  having 
obtained  a  sufficient  number  of  rights,  applied 
to  certain  persons  appointed  as  commissioners 
to  the  Susquehanna  Company,  resident  on  the 
lands,  and  on  producing  proof  that  the  rights 
were  genuine,  received  a  grant  in  fee-simple, 
to  himself  and  the  respondents,  Janes  and 
Dole,  for  a  township,  distinguished  by  the 
name  of  "Janes,"  containing  16,000  acres  ;  and 
a  final  adjustment  and  settlement  of  the  con- 
cern between  the  respondents,  Janes  and  Dole, 
and  the  appellant,  Rathbun,  was  then  made; 
that  the  appellant,  Rathbun,  having  sold  his 
one  third  part  of  the  township  to  a  certain 
Jonas  Morgan,  for  £310,  applied  in  the  month 
of  April,  1796,  to  Janes  and  Dole,  for  the  pur- 
chase *of  the  two  remaining  third  [*421 
parts,  which  they  agreed  to  quitclaim  to  him, 
for  the  sum  of  £1,000;  but  refusing  to  accept 
his  notes,  without  further  security  for  the  pay- 
ment, Rathbun,  with  the  appellant,  John 
Woodworth,  offered  to  take  the  lauds  in  the 
manner  and  upon  the  terms  proposed,  and  give 
their  joint  notes  for  the  payment  of  the  pur- 
chase money;  which  proposal  being  accepted 
by  the  respondents,  Janes  and  Dole,  they 
executed  a  release  and  quitclaim  to  the  ap- 
pellants, and  received  from  them  three  prom- 
issory notes,  payable  at  different  periods,  for 
the  amount  of  the  consideration  monev ;  that  the 

563 


421 


COURT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1801 


appellant,  Woodworth,  paid  the  one  half  part 
of  the  moneys,  secured  by  two  of  the  notes,  as 
they  became  due,  and  there  remained  due  on 
the  second  note,  on  the  7th  day  of  April,  1799, 
the  sum  of  $511.56;  this  note,  after  it  became 
payable,  was  indorsed  by  the  respondents, 
Janes  and  Dole,  to  the  ot'her  respondent,  Eli 
Judson,  merely  for  the  purpose  of  using  his 
name  in  the  recovery  ;  from  an  apprehension, 
as  the  respondent,  James  Dole,  was  sheriff  of 
the  County  of  Rensselaer,  where  the  appellants 
reside,  that  some  inconvenience  might  other- 
wise arise  from  this  circumstance,  in  conduct- 
ing a  suit,  if  it  should  be  necessary;  that  on 
the  7th  day  of  April,  1799,  the  appellant,  John 
Woodworth,  executed  a  warrant  of  attorney, 
authorizing  a  judgment  to  be  entered  in  the 
Supreme  Court  of  Judicature  of  this  State,  in 
favor  of  the  respondent,  Eli  Judson,  for  the 
above  sum  of  $511.56,  by  virtue  whereof  a 
judgment  was  accordingly  entered. 

The  plaintiff  replied,  and  put  the  cause  at 
issue,  and  rules  for  the  examination  of  wit- 
nesses and  for  publication  were  entered,  but  no 
witnesses  were  examined  on  either  side.  The 
cause  was  heard  on  the  bill  and  answer  on  the 
18th  December,  1799,  and  the  act  of  Penn- 
sylvania, mentioned  in  the  pleadings,  was  read 
at  the  hearing.  The  Chancellor  decreed,  that 
422*]  the  bill  of  the  *appellants  should  be 
dismissed  with  costs.  And  to  reverse  that 
decree  the  present  appeal  was  brought. 

The  counsel  for  the  appellants  insisted: 

1.  That  no  legal,   valuable,   or  good   con- 
sideration, was  ever  received  by  the  appellants 
from  the  respondents  for  the  notes  ;  and,  there- 
fore, that  the  several  sums  of  money  so  re- 
ceived by  the  respondents  ought,   from  prin- 
ciples of  justice  and  equity,  to  be  refunded. 

2.  The  contract  and  sale,  mentioned  and  set 
forth  in  the  bill,  and  admitted  by  the  answer, 
conveyed  no  manner  of  right  and  title  to  the 
appellants ;  and,  by  the  laws  of  the  Common- 
wealth of  Pennsylvania,  the  exercise  of  an  act 
of  ownership,  under  the  pretended  title  of  Con- 
necticut, is  highly  criminal,  and  expressly  pro- 
hibited under  severe  penalties. 

3.  That  to  permit  such  contracts  and  sales 
and  to  sanction  them  in  courts  of  justice,  is 
against  all  principles  of  public  policy. 

4.  Although  the  money  paid  on  the  first  and 
second  notes  was  voluntary,  yet  it  was  without  a 
knowledge  of  the  laws  of  Pennsylvania ;  and  at 
all  events,  if  paid  with  a  full  knowledge,  the 
injustice  and  inequity  of  retaining  it  now  fully 
appears. 

The  cause  was  argued  by  Mr.  Emott  and  Mr. 
Spencer,  for  the  appellants,  and  by  Mr.  Hoff- 
man, Attorney-General,  Mr.  Lush,  and  Mr. 
Biggs  for  the  respondents. 

The  opinion  of  the  court  was,  in  substance, 
as  follows: 

Per  Curiam.  This  is  to  be  regarded  as  a 
case  of  maintenance,  in  buying  and  selling  a 
pretended  title.  The  respondents,  claiming 
under  Connecticut,  sold  lands  within  the  actual 
jurisdiction  of  Pennsylvania,  and  held  ad- 
versely by  that  State.  The  respondents  state 
that  both  parties  knew  that  a  controversy 
existed  between  the  different  claimants  under 
the  two  States,  and  that  in  consequence 
423*]  *of  such  controversy  the  lands  were 
564 


quitclaimed  for  twenty -three  cents  per  acre, 
when  they  were,  in  fact,  worth  two  dollars  an 
acre.  The  prayer  of  the  appellants  is,  that  the 
respondents  may  refund  the  money  which  they 
have  received,  and  be  perpetually  enjoined 
from  taking  out  execution  on  the  judgment,  and 
from  assigning  or  suing  the  third  note. 

The  individual  States  have  submitted  their 
interfering  territorial  claims  to  the  judiciary  of 
the  United  States,  and  in  respect  to  those  rights 
are  to  be  deemed  to  have  ceded  their  sovereignty 
to  the  United  States,  and  to  be  so  far  considered 
as  corporations.  Their  right  to  pass  land  must 
be  judged  of  by  the  same  rules  of  common  law 
as  the  rights  of  other  persons,  natural  or 
politic ;  aud  before  they  can  convey  land  held 
adversely,  they  must  reduce  their  right  to 
possession  by  suit.  Conveyances,  otherwise, 
are  acts  of  maintenance,  and  are  no  considera- 
tion for  a  contract.  The  vendee  in  the  present 
case  purchased  knowingly,  and  was  therefore 
in  equal  fault;  and  the  rule,  that  in  pan  delicto 
potior  est  conditio  pomdentti,  must  be  applied  to 
them ;  and  a  court  of  equity  will  not  relieve 
either,  but  leave  them  to  pursue  their  remedies 
(if  any  they  have)  at  law. 

The  decree  of  the  Chancellor  was,  therefore, 
right,  in  dismissing  the  bill,  and  the  same  must 
|  be  affirmed.  Each  party  must  pay  his  own 
costs  in  the  court  below,  and  on  the  appeal. 

Judgment  affirmed.1 
S.  C.,  2  Cai.  Cas.,  296. 
Distinguished— 20  Barb.,  437. 


*WILLIAM  ARMSTRONG  AND  [*424 
GEORGE  BARNWALL,  Appellants, 

«. 
ROBERT  GILCHRIST,  Respondent. 

1.  Agent — To  Collect  Claim — Notice  to  Principal 
of  Compromise  Offer — Silence — Acceptance — 
Ratification.  2.  Chancery  —  Cognisance  of 
Suit  at  Law — Discovery — Injunction — Reten- 
tion of  Suit.  3.  Contract — Future  Delivery 
of  Stock — Guaranteed  Note — Purchase  Price 
—  Guarantor  Purchasing  Note  —  Action 
Thereon. 

When  A  had  received  from  B  the  note  of  C  to 
collect,  and  C  being  reputed  insolvent,  and  having 
absconded,  D  in  behalf  of  C  offered  to  pay  A  fifteen 
shillings  and  four  pence  in  the  pound  for  the  debt, 
and  this  proposal  being  communicated  to  B  he  made 
no  objection,  and  A  afterwards  settled  the  note 
with  D  at  that  rate :  it  was  held  that  A  was  not  re- 
sponsible to  B  for  more  than  the  sum  he  received  of 
D,  the  silence  of  B  amounting  to  an  assent  to  the 
proposal,  and  a  ratification  of  the  act  of  A. 

Where  a  court  of  chancery  has  acquired  cogni- 
zance of  a  suit,  for  the  purpose  of  discovery  or  an 
injunction,  it  may,  if  in  full  possession  of  the 

1.— The  above  is  the  substance  of  the  opinion,  as 
delivered  by  Mr.  Justice  Benson,  in  which  the 
majority  of  the  court  concurred.  Benson,  J.,  Kent, 
J.,  and  liadcliffi,  J.,  were  of  opinion  that  the 
court,  being  in  possession  of  the  merits  of  the  cause, 
in  order  to  prevent  further  litigation,  ought  to 
have  modified  the  decree,  so  as  perpetually  to  enjoin 
the  respondents  from  assigning,  or  suing  on  the 
note :  but  Lewis,  J.,  and  a  majority,  were  for  affirm- 
ing the  decree  as  it  stood.  (See  Whitaker  v.  Cone, 
ante,  58.) 

JOHNSON'S  CASES,  2. 


1801 


WILLIAM  ARMSTRONG  ET  AL.  v.  ROBERT  GILCHRIST. 


424 


merits,  retain  the  suit,  in  order  to  do  complete  !  recover  from  the  annpll-int«  tho 
iustice  between  the  parties,  and  to  prevent  useless    {, Tlf  el  • 

litigation  and  expense.  ™*  snares,    mentioned  in  the  note  given   to 

where  A  #ave  a  note  to  B  for  stock,  deliverable  i  Pierpont,  without  crediting  the  appellants  for 
on  the  1st  of  May,  1792,  and  C  having-  guaranteed  the!  the  amount  of  the  forty  half  shares  received 
performance  ot  the  contract,  compounded  with  B  fr,,m  Wol  nSu 

in  March,  and  took  up  the  note,  and  afterwards      ,om  }Valter  Livingston.     The  appellants  con- 
brought  his  action  ag-ainst  A  for  the  amount,  it  was  i  eluded  by  praving  an  injunction  to  stay  the 
held  that  C  had  a  right  to  settle  with  B  and  take  up  j  suit  at  law,   commenced   by   the   respondent 
the  note  before  it  was  due,  and  then  A  was  bound    oo-iin«t  thorn 
to  pay  him  the  amount  of  the  shares,  according  to  :    "^,, 

their  value,  on  the  1st  of  May,  1793.  A  lie   respondent,    in   his  answer,   admitted 

the  appellants  to  be  stockbrokers,  and  that 
they  became  possessed  of  the  note  of  Walter 
Livingston  as  they  had  stated,  but  the  re- 

HE  respondent,  in  October,  1797,  com-  spondent  averred  that  the  note  was  drawn  by 
menced  a  suit  in  the  Supreme  Court  of  I  °"e  Isaac  Whippo,  as  the  maker,  a,nd  the 
this  State,  against  the  appellants,  in  the  name  shares  made  deliverable  to  the  said  Walter 
of  Hezekiah  B.  Pierpoint,  to  recover,  to  the  i  Livingston,  and  was  indorsed  by  him  in  blank ; 
use  of  the  respondent,  the  value  of  fifteen  I  that  he  was  ignorant  of  any  directions  the  ap- 
half  shares  of  the  natural  bank  stock  of  the  :  pellants  received  when  they  became  possessed 
United  States,  due  on  an  instrument  of  writ- !  of  the  said  note  ;  that  the  respondent,  being  in 
ing,  given  by  the  appellents  to  Pierpoint,  which  habits  of  strict  intimacy  with  the  appellants, 
the  respondent  had  indorsed  at  the  instaifce  \  was  induced,  from  motives  of  friendship  only, 


Citations-3  Atk.,  2(33;   Cases  in  Cha.,  40;  Fonb. 
Eq.,  12. 


T 


and  request  of  the  appellants,  as  their  guar- 
anty. The  respondent,  some  time  after^  and 
before  the  same  became  due,  purchased  from 
Pierpoint  the  note  or  contract,  for  the  con- 
sideration of  $4,290.  The  suit  at  law  being  at 
issue  and  noticed  for  trial,  the  appellants  filed 
their  bill  in  the  Court  of  Chancery,  against  the 
respondent,  in  which  they  stated  that  in 
February,  1792,  they  were  stockbrokers,  and 
received  from  William  Duer,  a  note  for  the 
delivery  of  forty  half  shares  of  the  bank  stock 


to  guarantee  the  several  notes  or  contracts  of 
the  appellants,  to  deliver  fifteen  half  shares  of 
the  stock  to  Pierpont,  and  twenty-five  to 
Simond ;  that  when  he  became  their  guaranty, 
they  informed  him  of  their  holding  the  note  in- 
dorsed by  Walter  Livingston,  which  would  en- 
able them  to  pay  Pierpont's  and  Simond 's 
notes ;  that  he  was  ignorant  of  what  moneys 
the  appellants  paid  William  Duer ;  that  on 
the  24th  *March,  1792,  the  respondent  [*426 
purchased  from  Pierpont  the  note  for  fifteen 


of  the  United  States,  on  the  first  day  of  May  j  half  shares,  which  the  respondent  had  guaran- 


then  next  following,  which  delivery  was 
guaranteed  by  Walter  Livingston,  now  deceased, 
and  which  shares  they,  the  appellants,  were 
directed  to  sell ;  that  they  sold  fifteen  of  the 
said  half  shares  to  Hezekiah  B.  Pierpoint,  and 
twenty-five  to  Louis  Simond,  and  gave  their 
note  to  Pierpont  to  deliver  the  same  on  the 
1st  day  of  May  aforesaid,  which  note  was 
guaranteed  by  the  respondent;  that  the 
moneys  received  by  the  appellants  upon 
425*]  *such  sales  were  paid  by  them  to  Will- 
iam Duer,  and  that  to  secure  the'respondent  for 
his  guaranty  they  placed  in  his  hands  the 
aforesaid  note,  indorsed  by  Walter  Livingston, 
for  forty  half  shares,  and  gave  him  up  the  note 
so  indorsed  by  him ;  that  the  respondent  also 
compounded  with  Pierpont,  for  the  fifteen  half 
shares,  deliverable  as  aforesaid,  and  that  the 
respondent  was  in  possession  of  the  said  note. 
The  appellants  further  charged  in  their  bill 
that  Walter  Livingston  was  solvent  when  the 
respondent  settled  with  them,  as  aforesaid  ; 
that  the  respondent  had  commenced  a  suit  at 
law  in  the  name  of  Hezekiah  B.  Pierpont,  to 

NOTE.—  Principal  and  agent.  Jurisdiction  of 
Court  of  CJiancery. 

Ratification  of  acts  of  agents  by  acquiescence  of 
principal.  See  Towle  v.  Stevenson,  1  Johns.  Gas., 
110 ;  and  note  to  Caines  v.  Bleeker,  12  Johns.,  300,  in 
this  edition. 

Court  of  Chancery,  when  it  has  once  tjained  juris- 


dictinn  of  a  cause  for  one  pui 

generally.      Rathbun  v.    Warren,  10  Johns.    587 ; 


rpose,  may  retain  it 


MnvMUhTMU        »•          , Tim  1^11,       AVJ      tlVJllllO.         «JO4    . 

Barlow  v.  Scott,  24  N.  Y.,  40 ;  Miller  v.  McCan,  7 
Paig-e,  451 ;  Frost  v.  Myrick,  1  Barb.,  362 ;  Kershaw  v. 
Thompson,  4  Johns.  Ch.,  609;  Clarke  v.  White,  12 
Pet.,  178 ;  State  v.  McKay,  43  Mo.,  598 ;  Martin  v. 
Tidwell,  36  Ga.,  332;  Souders  Appeal,  57  Pa.  St., 
498;  Sanborn  v.  Kittredg-e,  20  Vt.,  632;  Pope  v. 
Solomon,  3(5  Gr.  (N.  J.  Eq.),  541. 

See,  however,  Printup  v.  Mitchell,  17  Ga.,  558;  Little 
v.  Cooper,  2  Stock.  (10  N.  J.,  Eq.),  273;  Edjrar  v. 
Cleveng-er,  2  Gr.  Ch.  (N.  J.  Eq.),  268. 

JOHNSON'S  CASES,  2. 


teed,  for  which  he  paid  Pierpont  $4,290  in 
cash  ;  that  upon  this  note  the  respondent  in- 
stituted the  suit  at  law  above  mentioned  against 
the  appellants,  to  recover  the  amount  thereof. 
The  respondent  further  stated  that  a  few  days 
before  the  1st  day  of  May,  1792,  he  lent  the 
appellants  twenty  shares  of  the  said  stock,  and 
as  much  cash  as  was  sufficient  to  purchase  five 
more,  to  enable  them  to  take  up  the  note  held 
by  Simond  ;  that  before  the  1st  of  May,  1792, 
Isaac  Whippo  and  Walter  Livingston  ab- 
sconded, to  avoid  their  creditors,  and  were 
generally  reputed  insolvent,  and  so  continued ; 
that  after  the  1st  day  of  May,  1792,  the  note 
indorsed  by  Walter  Livingston  having  been 
protested  for  nonpayment,  he  received  the 
same  from  the  appellants,  to  be  recovered  for 
the  use  of  the  appellants ;  that  the  respondent 
thereupon  united  with  several  of  the  creditors 
of  Walter  Livingston,  and  obtained  process 
against  him  as  an  absconding  creditor ;  that 
upon  such  proceedings  being  had,  Henry  Liv- 
ingston, the  brother  of  Walter  Livingston, 
made  overtures  to  the  creditors  of  Walter  Liv- 
ingston to  compromise  their  debts,  and  that 
the  respondent  and  the  other  creditors,  under 
an  impression  of  their  inability  to  recover  the 
same  from  Walter  Livingston,  settled  their  de- 
mands with  Henry  Livingston,  the  brother  of 
Walter,  at  thirteen  shillings  and  four  pence  in 
the  pound,  for. which  they  accepted  notes  pay- 
able at  different  periods,  which  have  since  been 
paid.  The  respondent  further  declared  that 
he  was  positive  he  had  communicated  to  the 
appellants,  before  the  said  compromise,  the 
state  of  Walter  Livingston's  circumstances,  and 
the  proposed  terms  of  compromise  :  that  he  is 
sure  they  made  no  objections  thereto,  and  that 
better  terms  of  settlement  could  not  have  been 
obtained  from  Walter  Livingston  during  his 

565 


426 


COUKT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1801 


lifetime,  nor  from  his  executors  since  his 
death;  that  the  value  of  the  said  fifteen  half 
4127*]  *shares  due  him  on  the  note  given  to 
Pierpoint,  and  of  the  twenty -five  shares  lent 
by  him  to  the  appellants,  were  still  due  to  him 
from  the  appellants,  deducting  therefrom  the 
money  the  respondent  received  from  Walter 
Livingston's  brother. 

The  depositions  of  three  witnesses  were  read 
at  the  hearing,  which  stated  that  in  April  or 
May,  1792,  the  witnesses  were  creditors,  one  of 
them  of  Walter  Livingston,  and  one  of  them 
of  Walter  Livingston  and  Isaac  Whippo ;  that 
at  the  time  Walter  Livingston  and  Isaac  Whippo 
absconded  or  concealed  themselves  to  avoid  be- 
ing arrested  by  their  creditors,  and  were  gener- 
ally reputed  insolvent ;  that  under  these  circum- 
stances, they  were,  with  many  other  creditors 
of  Walter  Livingston,  induced  to  make  a  com- 
promise with  Henry  Livingston,  the  brother  of 
Walter  Livingston,  and  accepted  from  him 
thirteen  shillings  and  four  pence  in  the  pound, 
for  their  respective  debts ;  that  Isaac  Whippo 
was  still  insolvent,  and  that  during  the  time 
in  question  the  appellants  and  the  respondent 
were  in  habits  of  great  intimacy  with  each 
other,  and  that  the  respondent  often  indorsed 
the  appellants'  paper. 

It  was  agreed  between  the  counsel  for  the 
plaintiffs  and  the  respondent,  that  the  only 
point  in  dispute  between  the  parties  was, 
whether  the  respondent  should  account  with 
the  appellants  for  the  full  value  of  the  said 
forty  half  shares  mentioned  in  the  note,  or 
contract,  indorsed  by  Walter  Livingston ;  or 
whether,  in  settling  the  account  between  the 
parties,  the  appellants  were  to  be  credited  by 
the  respondent  only  for  the  money  so  received 
by  him  upon  the  compromise  made  with  Henry 
Livingston. 

The  Chancellor  decreed  that  the  appellants 
should  pay  to  the  respondent  the  value  of  the 
forty  shares  of  the  bank  stock  of  the  United 
States,  with  interest  from  the  1st  day  of  May, 
1792,  deducting,  nevertheless,  therefrom,  the 
monev  received  by  the  respondent  upon  the 
428*]  *note  for  forty  half  shares  of  the  like 
stock,  indorsed  by  the  said  Walter  Livingston, 
with  interest  from  the  time  the  same  was  re- 
ceived by  the  respondent ;  and  that  it  should 
be  referred  to  a  master,  to  state  the  account 
between  the  parties  accordingly ;  and  that  the 
suit  at  law  should  be  discontinued,  and  each 
party  should  pay  his  own  costs.  The  matter 
being  thereupon  referred  to  a  master,  a  report 
was  made  by  him,  which  was  confirmed,  stat- 
ing that  upon  the  principles  mentioned  in  the 
decree  there  was  due  to  the  respondent,  from 
the  appellants,  the  sum  of  $6,032.63. 

From  this  decree  the  present  appeal  was 
entered,  and  which  the  appellants  contended 
was  erroneous: 

1.  Because  there  was  no  evidence  that  Gil- 
christ  had  compromised. 

2.  Because  Gilchrist  had  no  right  to  com- 
pound, and  look  to  A  and  B  for  the  deficiency. 

3.  Because  interest  was  allowed. 

4.  Because,  as  an  action  was  depending  at 
law  between  Pierpont  and  the  appellants,  the 
Chancellor,  in  case  he  did  not  think  them  en- 
titled to  have  the  contract  cancelled,  ought 
only  to  have  dismissed  the  bill,  and  let  the 
damages  be  assessed  by  a  jury. 

566 


The  respondent,  on  the  contrary,  insisted 
that  the  decree  and  orders  were  right  and 
just,  and  ought  to  be  affirmed: 

1.  Because  it  appeared  that  the  appellants, 
on  the  1st  day  of  May,  1792,  justly  owed  the 
respondents  the  value  of  forty  shares  of  the 
bank  stock  of  the  United  States. 

2.  That  the  appellants,  being  thus  indebted, 
put  into  the  respondent's  hands  the  note  in- 
dorsed by  Walter  Livingston,  for  fortv  half 
shares  of  the  like  stock,  to  be  recovered  after 
the  said  note  had  been  protested,   and  the 
maker  and  indorser  had  absconded. 

3.  That  the    respondent    made    immediate 
efforts  to  recover  the  amount  of  the  note ;  and 
under  an  impression  then  generally  prevalent 
of  the  insolvency  of  *Walter  Living-  [*429 
ston,  concurred  with  his  creditors  generally 
in  a  compromise  at  thirteen  shillings  and  four 
pence  in  the  pound — in  which  compromise 
the  respondent  acted  with  good  faith,  and  the 
best  intentions  towards  the  appellants ;  that 
better  terms  of  settlement  could  not  have  been 
made  then  nor  since ;  and  that  the  respondent 
has  given  the  appellants  credit  for  the  moneys 
received  by  him,  and  has  only  recovered  by 
the  decree  the  balance  due. 

4.  That  the  respondent's  answer  is  conclu- 
sive evidence  that  the  appellants  approved  the 
compromise ;  but  that  without  such  evidence 
it  is  a  rational  conclusion  that  such  was  the 
fact,  from  the  strict  intimacy  subsisting  be- 
tween the  parties  ;  besides,  from  the  nature  of 
the  case,  the  respondent  had  an  implied  right 
to  make  such  settlement  as  in  his  judgment 
was  deemed  eligible,  provided  he  acted  with 
good  faith. 

5.  Admitting  Walter    Livingston  to    have 
been  solvent,  still  the  compromise  was  advis- 
able, because  the  respondent  was  informed  by 
several  eminent  counsel  that  Walter  Livingston 
was  not  responsible  in  law  or  equity  upon  the 
note  in  question,  it  not  being  a  negotiable  paper, 
and  therefore  could  not  be  indorsed  in  blank, 
so  as  to  charge  the  indorser. 

The  cause  was  argued  by  Mr.  B.  Livingston 
for  the  appellants,  and  Mr.  Troup  for  the  re- 
spondent. 

RADCLIFF,  J.  1.  The  respondent  paid  the 
money  on  the  notes  guaranteed  by  him  for  his 
own  indemnity.  He  stood  in  the  character  of 
surety;  and  having  paid  the  money  for  his 
principals,  he  was  entitled  to  receive  it  again, 
with  interest  from  the  time  of  payment. 

With    regard    to    the    notes    of    Whippo, 
indorsed  by  Walter  Livingston,  there  is  no 
evidence  that  he  acted  without  authority  in 
compromising  with  the  latter  at  thirteen  shil- 
lings and  four  pence  in  the  pound.     On  the 
contrary,   the    respondent,  in  his    answer  in 
chancery,    swears,     that     he     communicated 
*the  negotiations  of  the  creditors  of   [*43O 
Walter  Livingston,  to  the  appellants ;  that  he 
has  no  doubt  but  the  latter  assented  to  the 
terms  which  were  made,  and  is  certain  they 
made  no  objection,  and  that  he  and  they  were 
in  habits  of  intimacy  at  the  time.     The  answer 
in  this  particular  must  be  received  as  evidence 
,  until   disproved,   and  of  course  the  respond- 
!  ent  cannot   be  deemed  responsible  for  more 
j  than  the  real  amount  he  received  from  the 
i  notes  indorsed   by  Walter  Livingston,  as  he 
JOHNSON'S  CASES,  2. 


1801 


CORNELIUS  RAY  ET  AL.  v.  ANN  BOGART  ET  AL. 


acted  therein  as  the  agent  of  the  appellants, 
and  by  their  authority.  The  difference 
between  the  sum  so  received  and  the  amount 
of  the  moneys  paid  by  him,  as  their  surety, 
must,  therefore,  be  the  measure  of  his  demand. 

2.  The  Chancellor  did  right  in  proceeding  to 
decree  on  the  merits.  The  whole  case  was 
before  him,  and  a  court  of  law  must  proceed 
by  the  same  rule  as  to  the  amount  of  the 
respondent's  recovery.  There  could,  there- 
fore, be  no  use  in  sending  it  again  to  be  tried 
at  law;  and  it  would  be  attended  with  unneces- 
sary litigation  and  expense.  The  appellants 
ought  not  to  complain  of  a  decision  on  the 
whole  merits.  They  sought  their  remedy  in 
chancery,  and  cannot  seek  it  in  parcels. 
Although  their  bill  prayed  an  injunction  and 
specific  relief  only,  the  Chancellor  had  a  right 
to  decide  against  the  whole  relief  sought,  and  to 
decree  in  favor  of  the  defendants,  and  was  not 
confined  to  any  one  specific  object  stated  in  the 
bill.  The  whole  case  was  before  him,  and  it 
was  his  right  and  his  duty  to  decide  definitively 
between  the  parties. 

I  am,  therefore,  of  opinion  that  the  decree 
ought  to  be  affirmed. 

KENT,  J.  1.  I  admit  that  the  respondent, 
l)y  taking  the  note  of  Whippo,  indorsed  by 
Walter  Livingston,  to  collect  for  the  use  of  the 
appellants,  had  no  authority  to  sell  it  at  a 
depreciated  rate;  but  having  received  proposi- 
tions from  Henry  Livingston  to  pay  the  note  at 
431*]  the  *rate  of  thirteen  shillings  and  four 
pence  in  the  pound,  and  Walter  Livingston 
1>eing  generally  reputed  insolvent,  and  process 
actually  awarded  against  him  as  an  abscond- 
ing debtor;  and  the  respondent  having  com- 
municated (as  appears  by  his  answer)  the 
propositions  made  by  Henry  Livingston  to  the 
appellants,  who  made  no  objections  to  them, 
they  must,  I  think,  be  considered  as  having 
assented  to  or  ratified  the  same.  And  the 
maxim  is  omnit>  ratihabitio  mandate  cequipar- 
•afar.  The  intimacy  between  the  parties,  and 
their  long  silence  confirm  this  conclusion. 
The  respondent  is  answerable,  then,  for  the 
note,  to  the  amount  of  thirteen  shillings  and 
four  pence  in  the  pound,  according  to  the 
Chancellor's  decree. 

2.  The  Court  of  Chancery  having  acquired 
cognizance  of  a  suit,  for  the  purpose  of  dis- 
covery or  injunction,  will,  in  most  cases  of 
account,  whenever  it  is  in  full  possession  of 
the  merits,  and  has  sufficient  materials  before 
it  retain  the  .suit,  in  order  to  do  complete  jus- 
tice between  the  parties,  and  to  prevent  useless 
litigation  and  expense.  (3  Atk.,  263;  Cases  in 
Ch.,  40;  Fonb.  Eq.,  12.) 

It  appears  to  be  admitted  by  the  appellants 
that  the  respondent  paid  for  them,  as  guaran- 
ty, to  the  amount  of  forty  shares,  twenty-five 
of  which  he  advanced  on  or  about  the  1st  of 
May,  1792;  and  though  betook  up  Pierpoint's 
note  in  March  preceding,  for  $4,290;  yet  the 
appellants  were  not  obliged  to  pay  until  May, 
nor  the  respondent  to  take  up  the  note  till  that 
time. 

The  price  of  the  stock  in  May  ought,  there- 
fore, to  be  the  criterion,  for,  perhaps,  the  re- 
spondent may  have  paid  a  higher  price  in 
March.  I  do  not  think  it  a  gambling  act  in 
the  respondent  to  take  up  the  note  prior  to 
JOHNSON'S  CASES,  2. 


430 

May.  Prudence,  and  his  own  security,  may 
have  dictated  such  a  measure. 

I  am,  therefore,  for  affirming  the  decree. 

*A  majority  of  the  court  being  of  the  [*432 
same  opinion,  it  was,  thereupon,  ordered,  ad- 
judged and  decreed,  that  the  decree  of  the 
Court  of  Chancery  be  affirmed. 

Judgment  of  affirmance. 

Cited  in— 6  Wend.,  155 ;  3  Hill,  556 ;  4  Johns.  Ch., 
290;  1  N.  Y.,  217;  33  N.  Y.,  «53;  73  N.  Y.,  579;  6 
Laws,  217;  12  Barb.,  62;  14  Abb.  N.  S.,  310;  4  Daly, 
381;  1  How.  App.  Cases,  483;  47  Ind.,  389;  1  Bald., 
415. 


CORNELIUS  RAY,  JOHN  LANSING, 
JUN.,  AND  CORNELIA,  his  Wife,  Appel- 
lants, 

v. 

ANN  BOGART,  CORNELIUS  N.  BO- 
GART, DAVID  S.  BOGART,  HELENA 
BOGART,  AND  CARY  LUDLOW,  Re- 
spondents. 

Partnership — Death  of  aU  Parties — Bill  by  Rep- 
resentative for  Accounting — Lapse  of  Time — 
Dismissal  as  Stale. 

Where  A,B  and  C  entered  into  partnership  in  trade, 
in  1767,  and  continued  business  until  May,  1774,  when 
B  died,  and  the  partnership  was  thereby  dissolved, 
and  C  afterwards  died,  in  1782,  and  A  in  1788,  without 
the  partnership  accounts  having  been  settled ;  and 
in  1794,  the  representatives  of  A  filed  a  bill  in  chan- 
cery against  the  representatives  of  the  other  part- 
ners, for  an  examination  and  settlement  of  ac- 
counts, and  for  the  payment  of  a  balance  claimed ; 
the  court  dismissed  the  bill,  on  account  of  the  lapse 
of  time,  and  the  death  of  the  parties,  considering  it 
as  a  stale  demand. 

Citations— 1  Atk.,  494;  1  Fonb.  Eq.,  322;  1  Atk., 
494 ;  2  Ves.,  483 ;  4  Bro.  C.  C.,  264  to  270 ;  Bunb.,  217 ;  2 
Bro.  C.  C.,  62 ;  1  Atk.,  493 ;  2  Ves.,  483 ;  1  Yin.,  156. 

HENRY  C.  BOGART,  Robert  Ray  and 
Daniel  Stiles,  some  time  in  the  year  1757. 
entered  into  partnership,  for  the  purpose  of 
merchandising  and  distilling.  It  was  verbally 
agreed  between  them,  that  they  should  equally 
divide  the  profits,  and  bear  the  loss  arising 
from  the  business. 

Robert  Ray  conducted  the  business  in  his 
own  name,  for  the  account  of  the  partnership, 
from  the  commencement  of  the  firm  until  the 
13th  October,  1773. 

Some  time  after  the  commencement  of  the 
business,  but  how  long  is  uncertain,  a  dispute 
having  arisen  between  Robert  Ray  and  Henry 
C.  Bogart,  on  account  of  the  former  charging 
a  commission  for  being  the  active  partner, 
amounting  to  a  considerable  sum,  on  which 
Henry  C.  Bogart  offered  to  take  the  manage- 
ment of  the  business  upon  himself  without 
commission;  and  accordingly  Ray,  on  the  13th 
day  of  October,  1773,  resigned  to  Bogart  the 
care  of  their  concerns. 

Henry  C.  Bogart  continued  the  active  part- 
ner, without  an  allowance  therefor,  until  the 
time  of  his  death,  which  happened  some  time  in 
the  month  of  May,  1774. 

*Cornelius  Bogart,  father  of  Henry  [*433 
C.  Bogart,  and  Nicholas  C.  Bogart,  brother  of 
Henry,  were  appointed  executors  by  the  will 

567 


433 


COURT  OP  ERRORS,  STATE  OF  NEW  YORK. 


1801 


of  Henry  C.  Bogart,  and  continued  to  reside 
at  the  City  of  New  York,  where  Robert  Ray 
also  resided,  until  some  time  in  the  year  1776, 
when  they  were  exiled,  in  consequence  of  an 
invasion  by  the  British  forces.  But  Nicholas 
C.  Bogart  never  qualified  as  an  executor; 
Cornelius  Bogart  took  possession  of  the  whole 
estate,  and  paid  the  debts  which  came  to  his 
knowledge. 

Robert  Ray  lived  about  eighteen  years  after 
the  death  of  H.  C.  Bogart,  and  during  the 
greater  part  of  that  time  in  the  same  family 
with  Cornelius  Bogart. 

Upon  the  termination  of  the  war,  Cornelius 
Bogart  and  Robert  Ray  returned  to  the  city  of 
New  York.  Cornelius  Bogart  died  in  1793,  at 
the  age  of  ninety-three  years  or  upwards, 
intestate. 

The  accounts  between  the  estate  of  Robert 
Ray  and  H.  C.  Bogart  respectively,  showed  a 
balance  against  each  other;  but  the  accounts 
thereof,  exhibited  by  H.  C.  Bogart,  have  not 
been  produced  by  the  appellants;  and  neither 
those  accounts  nor  the  materials  from  which 
they  have  been  composed  have  ever  been  in  the 
possession  of  the  respondents,  or  either  of 
them. 

The  copartnership  was  dissolved  in  the 
month  of  May,  1774,  by  the  death  of  H.  C. 
Bogart. 

Daniel  Stiles  died  in  1782,  and  his  widow, 
and  sole  acting  executrix,  afterwards  died. 

Robert  Ray  died  in  the  year  1788,  having 
made  the  appellants,  Cornelius  Ray  and 
Cornelia,  since  married  to  John  Lansing,  Jun., 
his  executors.  The  appellants  averred  that 
Robert  Ray,  on  the  10th  February,  1775,  exhib- 
ited an  account  of  his  partnership  trans- 
actions. And  in  a  paper,  which  they  allege  to 
be  a  copy  of  that  account,  it  appears  that  the 
said  Robert  Ray  charged  £807  13*. ,  for  com- 
missions by  him  claimed  for  transacting  the 
partnership  business,  and  by  the  same  ac- 
434*]  count  *Robert  Ray  states  a  balance  of 
£113  8s.  6d.,  to  have  been  due  to  him. 

In  the  same  account  are  charges  against  the 
copartnership,  to  the  amount  of  £449  4s.  4d. , 
for  money  alleged  to  have  been  advanced  by 
Robert  Ray,  at  different  periods,  after  he  had 
ceased  to  be  the  active  partner,  to  Daniel 
Stiles  for  securing  the  payment  of  which 
sums  Robert  Ray  took  promissory  notes,  in 
his  own  name,  from  Daniel  Stiles. 

Differences  arose  between  H.  C.  Bogart,  in 
his  lifetime,  and  the  said  R.  Ray,  respecting 
these  accounts;  but  how  these  differences  were 
adjusted,  or  if  not  adjusted,  why  no  settle- 
ment thereof  was  made,  did  not  appear.  The 
books  of  the  copartnership  have  been  pre- 
served in  a  perfect  state,  and  at  the  time  of 
filing  the  bill  were  in  the  hands  of  one  of  the 
witnesses  in  the  cause. 

In  the  year  1794,  the  appellants  filed  their 
bill  to  compel  an  examination  and  settlement 
of  the  accounts  of  the  copartnership,  claiming 
a  balance  to  be  due  to  them,  in  the  manner 
before  stated. 

The  respondents,  by  their  answer,  declared 
their  utter  ignorance  of  the  matters  in  ques- 
tion ;  the  death  of  all  the  parties  therein  con- 
cerned, and  the  death  of  all  the  executors  of 
two  of  the  parties,  to  wit,  of  D.  Stiles  and  H. 
C.  Bogart,  and  the  great  lapse  of  time,  and  in- 
M8 


sisted  that  under  such  circumstances  they 
ought  not  to  be  compelled  to  an  examination 
of  those  accounts. 

On  the  hearing  of  the  cause,  His  Honor  the 
Chancellor  was  pleased  to  dismiss  the  bill,  prin- 
cipally on  account  of  the  great  and  unnecessary 
delay  and  lapse  of  time,  the  death  of  parties, 
and  the  probable  loss  and  destruction  of  papers. 

From  this  decree  the  appellants  appealed 
to  this  court,  for  the  following  reasons: 

*1.  By  the  act  of  law  no  absolute  [*435 
bar  is  opposed  to  the  opening  and  adjusting  of 
accounts,  except  what  is  created  by  the  statute 
of  limitations.  Every  party  claiming  the  ben- 
efit of  this  bar  must  "either  plead  it,  or  insist 
upon  it  in  his  answer.  Neither  of  which  has 
been  done  by  any  of  the  respondents  in  this 
cause. 

2.  Length  of  time  forms  no  absolute  bar  to 
the  opening  and  adjusting  of  accounts,  but 
only  raises  a  presumption  that  accounts  sought 
to  be  opened  and  adjusted,  have  in  fact  been 
settled,  and  that  the  balance  struck  on  such 
settlement  has  been  paid  to  the  person  entitled 
to  receive  it.     This  presumption,  like  all  other 
presumptions,  will  prevail   until  repelled  by 
stronger  evidence,  and  no  longer,  according  to 
the  maxim,  stabiiur  prcesumptioni  donee probetur 
in  contrarium.     On  this  point  the  rule  of  law 
and  the  rule  of  equity  are  precisely  the  same. 

3.  The  presumption  of  settlement  and  pay- 
ment, arising  from  the  length  of  time  in  this 
cause,  is  repelled  by  the  following  circum- 
stances: 

1.  The  death  of  Henry  C.  Bogart  just  before 
the  war  began. 

2.  The  intervention  of  the  war,  and  the  dis- 
order it  occasioned. 

3.  The  removal  of  the  parties  from  the  city 
of  New  York,  and  their  continuance  without 
the  city  during  the  war. 

4.  The  delicate  situation  in  which  some  of 
the  parties  were  placed  with  respect  to  each 
other,  by  the  nearness  of  their  relationship, 
and  the  habits  of  friendship  and  intimacy  in 
which  they  lived. 

5.  The  extreme  old  age  of  Cornelius  Bogart 
and  his  probable  unfitness  for  the  investigation 
and  settlement  of  the  accounts  in  controversy. 

6.  The  account  rendered  to  one  of  the  ap- 
pellants by  Nicholas  C.  Bogart,  after  the  death 
of  his  father,  Cornelius  Bogart. 

*7.  No  inconvenience  can  result  to  [*43(> 
the  respondents  from  an  examination  of  the 
accounts,  as  the  books  of  the  copartnership 
have  been  preserved  in  a  perfect  state.  They 
can  be  commanded  and  must'  control  the  set- 
tlement. It  cannot  be  a  disadvantage  to  the 
respondents  that  the  books  have  come  to  the 
hands  of  Henry  C.  Bogart  from  those  of  his 
father,  Cornelius  Bogart. 

8.  In  this  view  of  the  cause,  it  is  supposed 
that  no  sound  principle  of  public  policy  for- 
bids the  examination  and  adjustment  of  the 
accounts  in  question. 

Messrs.  Troup  and  Harison,  for  the  appel- 
lants, cited  2  Ves.,  482;  1  Atk.,  493;  Cowp.. 
108.  109;  1  Term  Rep.,  270;  1  Fonb.  Eq.,  322, 
324;  1  Ves.,  331;  1  Vin.,  186;  2  Atk.,  632. 

Messrs.  Kcertson  and  Burr,  contra,  cited  2 
P.  Wms.,  144;  2  Vcrn.,  276;  3  Atk.,  106,  107; 
Bunb.,  217;  2  Eq.  Cas.  Abr.,  578. 

JOHNSON'S  CASES,  2. 


1801 


JOHN  B.  MURRAY  v.  ISAAC  GOUVERNKUR  ET  AL. 


436 


KENT,  J.  Rejecting  the  period  from  May, 
1775,  to  May,  1784,  as  being  no  reasonable 
time  for  the  settlement  of  accounts  in  chan- 
cery, then,  from  the  dissolution  of  the  copart- 
nership, by  the  death  of  H.  C.  Bogart,  in  May, 
1774,  to  the  exhibition  of  the  bill  in  June,  1794, 
is  but  eleven  years. 

Where  there  is  a  mutual  trust,  as  between 
copartners,  I  very  much  doubt  whether  the 
statute  of  limitations  applies.  (1  Atk.,  494; 
1  Fonb.  Eq. ,  322.)  If  it  does  apply  to  such  a 
case,  then  it  must  either  be  pleaded  or  insisted 
on  in  the  answer,  or  it  is  waived.  The  rule  of 
pleading  in  law  and  equity  is  equally  strict. 
(1  Atk.,  494;  2  Ves.,  483.)  The  respondents 
insist  only  upon  the  lapse  of  so  many  years, 
and  the  death  of  so  many  parties;  an  objection 
which  goes  only  to  the  staleness  of  the  demand 
and  the  presumptions  arising  therefrom. 
437*]  *A  court  of  chancery,  though  the 
statute  is  not  insisted  on,  will  always  exercise 
its  discretion  in  dismissing  stale  demands,  on 
the  ground  of  an  unreasonable  lapse  of  time. 
But  I  have  never  met  with  an  instance  in 
which  the  court  has  dismissed  a  demand  on 
this  ground,  where  only  eleven  years  had 
elapsed,  and  when  it  appeared  that  no  settle- 
ment had  ever  been  made.  There  is  a  late  case 
(4  Bro.  C.  C.,  264  to  270),  where  Lord  Kenyon 
would  not  suffer  an  account  to  be  taken  where 
the  party  had  patiently  slept  over  his  demand 
for  thirty-three  years.  There  is  another  case 
in  the  Exchequer  (Bunb.,  217),  where  the  court 
would  not  suffer  one  partner  to  recover  a  bal- 
ance against  another,  after  twenty-four  years. 
In  another  instance  (2  Bro.,  C.  C.,  62),  the  court 
refused  to  open,  at  large,  an  account  which 
had  been  settled  for  ten  years,  though  certain 
items  were  suffered  to  go  to  the  master.  In 
other  cases  I  find  accounts  have  been  suffered 
to  be  taken  after  sixteen,  thirty-two,  and  thir- 
ty-three years.  (1  Atk.,  493;  2  Ves.,  483;  1 
Vin.,  156.) 

In  the  present  case,  there  was,  in  fact,  a  real 
laches  only  for  eleven  years,  and  there  never 
having  been  a  settlement  of  the  accounts,  and 
finding  no  instance  in  which  the  rule  has  been 
so  rigorously  applied,  I  am  willing,  though  the 
presumption  may  be  against  the  account,  to 
let  the  experiment  be  made  before  a  master, 
and  for  that  purpose,  I  think  the  decree  ought 
to  be  reversed. 

BENSON,  J.,  and  VAN  VECHTEN,  S.,  were  of 
the  same  opinion. 

LANSING,  Oh.  J.,  and  LEWIS,  J.,  gave  no 
opinion. 

RADCLIFF,  J. ,  was  absent. 

But  a  majority  of  the  court  being  of  opinion 
that  the  decree  was  correct,  on  the  ground  of 
the  demand  being  on  an  old  and  stale  account, 
438*]  which,  under  the  *circumstances, 
ought  not  to  be  inquired  into  ;  it  was  there- 
upon ordered,  adjudged  and  decreed,  that  the 
decree  of  the  Court  of  Chancery  be  affirmed. 

Judgment  of  affirmance. 

Distinguished— 54  Cal.,  469. 

Cited  in— 3  Johns.  Ch.,  586;  6  Johns.  Ch.,  369;  3 
Barb.,  595;  13  How.,  460;  30  N.  J.  Eq.,  190;  1  Bald., 
418. 

JOHNSON'S  CASES,  2. 


JOHN  B.  MURRAY, 


ISAAC  GOUVERNEUR,  PETER  KEMBLE, 
AND  SAMUEL  GOUVERNEUR,  Respond- 
ents. 

1.  Payment  —  Precedent  Debt  by  BiUof  Exchange 
—  Agreement.  2.  Bona  Fide  Purcliaser  — 
Without  Notice  —  Equities.  3.  Mesne  Profits  — 
Action  for  —  Equitable.  Defenses. 

A  bill  of  exchange  given  for  a  precedent  debt  is 
not  payment,  unless  expressly  agreed  so  to  be,  by 
the  parties. 

Where  A  contracted  to  sell  a  house  and  lot  to  B, 

and  C  purchased  of  B  all  his  right,  &c.,  it  was  held 

.  that  C,  though  abonafide  purchaser,  without  notice, 

I  must  take  the  property,  subject  to  all  the  equity 

i  existing  between  the  original  parties,  A  and  B. 

An  action  for  mesne  profits  is  an  equitable  suit,  in 
which  every  equitable  defense  may  be  set  up. 

Citations—  1  Salk.,  124;  1  Esp.  Cas.,  8. 

IN  the  year  1796,  the  respondents,  Isaac 
Gouverneur  and  Peter  Kemble,  together 
with  Joseph  Gouverneur  (since  deceased,  who, 
by  his  last  will,  appointed  Isaac  Gouverneur 
and  Joseph  Gouverneur  his  executors),  com- 
menced an  action  of  ejectment  in  the  Supreme 
Court,  to  recover  from  the  appellant  a  house 
and  lot  of  ground  in  the  city  of  New  York. 

After  the  cause  was  ready  for  trial,  the  appel- 
lant filed  his  bill  in  chancery,  stating  that  in 
August,  1795,  Gouverneur  and  Kemble,  part- 
ners in  trade,  and  pretending  to  be  duly 
authorized  by  Joseph  Gouverneur  '(who  was 
then  absent  beyond  seas),  made  a  proposal  in 
writing,  and  afterwards  agreed  with  Robert 
Murray,  partner  in  the  house  of  Robert  Murray 
&  Co.,  for  the  sale  of  a  house  and  lot  to  th'e 
said  Robert  Murray  &  Co.  for  the  sum  of 
$10,000  the  one  half  to  be  paid  in  January, 
1796,  and  the  remaining  half  in  May,  1797. 
Immediate  possession  was  to  be  given  to  Robert 
Murray;  and  on  making  the  first  payment,  a 
deed  was  to  be  executed  to  the  said  Robert 
Murray  &  Co.  ,  who  were  to  give  a  mortgage  to 
secure  the  second  payment.  In  pursuance  of 
*this  agreement,  Robert  Murray  was  put  [*43J> 
in  possession  of  the  premises,  and  continued  in 
possession  until  he  sold  them  to  the  appellant. 
The  time  of  the  first  payment  was  postponed 
by  mutual  consent.  In  January,  1796,  Gouv- 
erneur and  Kemble,  on  their  own  account, 
purchased  of  Robert  Murray  &  Co.  bills  of 
exchange  on  London,  to  the  amount  of  $25,000, 
and  in  paying  for  the  same  deducted  the  first 
installment  of  $5,000  due  for  the  house  and  lot. 
and  gave  a  receipt  for  the  same,  as  the  first 


NOTE— Negotiable,  paper,  delivery  of  not  generally 
payment  of  precedent  debt. 

The  law'is  generdllii  stated  to  be  that  negotiable 
paper  is  not  payment  of  a  pi-ecedent  debt  unless 
circumstances  show  that  such  was  the  intention  of 
the  parties.  Peter  v.  Beverly,  10  Pet.,  567 :  Sheehy 
v.  Mandeville,  6  Cranch.  353;  Bui-dick  v.  Green,  15 
Johns.,  247;  Hughes  v.  Wheeler,  8  Cowen,  77;  Haw- 
ley  v.  Foote,  19  Wend.,  516 ;  Waydell  v.  Luer,  5  Hill, 
448 ;  Pratt  v.  Foote,  9  N.  Y.,  463 :  Mooring  v.  Mobile, 
M.  D.  &  M.  I.  Co.,  27  Ala.,  254;  McCrary  v.  Carring- 
ton,  *5  Ala.,  698 ;  Hayes  v.  Stone,  7  Hill,  128 :  Gardner 
v.  Gorham,  1  Doug.,  507. 

The  law  as  to  burden  of  proof  varies  somewhat  in 
the  different  States.  See  Blunt  v.  Walker,  11  Wis., 
334 ;  Williams  v.  Ketchum,  22  Wis..  432;  McGuire  v. 
Gadsby,  3  Cal..  234:  Arnold  v.  Sprague.  34  Vt.,  402; 
Wait  v.  Brewster,  31  Vt.,  516  ;  Collauier  v.  Langdon, 
29  Vt.,  32;  Union  Bank  v.  Siniser.  1  Smn-d.,  501; 

S69 


439 


COURT  OP  ERRORS,  STATE  OF  NEW  YORK. 


1801 


installment.  Robert  Murray  did  not  then  de- 
mand a  conveyance  for  the  house  and  lot,  nor 
did  Gouverneur  and  Kemble  offer  to  give  it. 

Un  the  12th  August,  1796,  the  appellant  pur- 
chased of  Robert  Murray  &  Co.,  for  $5,000, 
all  the  right  and  interest  in  the  said  house  and 
lot,  and  took  possession  thereof.  He  after- 
wards applied  to  Isaac  Gouverneur  and  Joseph 
Gouverneur,  in  October,  1796,  for  a  fulfillment 
of  the  contract  of  sale,  who  made  no  answer  to 
the  application,  but  brought  an  action  of  eject- 
ment against  him,  on  which  the  appellant  tiled 
his  bilf  in  chancery,  praying  an  injunction  to 
stay  the  suit  at  law,  and  that  the  respondents 
should  be  decreed  to  execute  to  the  appellants 
a  good  and  sufficient  deed  for  the  premises, 
pursuant  to  the  agreement. 

Isaac  Gouverneur,  in  his  answer,  stated  that 
he  never  pretended  to  have  a  power  of  attorney 
from  Joseph  Gouverneur,  but  had  directions 
from  him  to  sell  the  premises,  in  consequence 
of  which  he  made  the  agreement  with  Robert 
Murray  &  Co.  for  the  sale  of  the  premises,  and 
delivered  the  possession  to  Robert  Murray,  in 
1795  ;  that  when  the  bills  of  exchange  were 
purchased  the  $5,000  deducted,  was  to  be  con- 
sidered as  on  account  of  the  purchase  money 
for  the  premises,  if  the  bills  were  duly  paid; 
that  the  bills  were  accepted,  but  not  paid,  and 
that  notice  of  the  nonpayment  was  given  to 
Robert  Murray  &  Co.,  and  that  he  believed 
that  Robert  Murray  &  Co.  had  no  effects  in 
44O*]  the  hands  *of  the  drawees,  when  the 
bills  were  drawn.  Joseph  Gouverneur  stated 
that  he  did  not  give  Gouverneur  and  Kemble 
any  letter  of  attorney  to  sell  the  house  and  lot, 
but  merely  directed  them  to  sell  the  premises, 
as  above  stated. 

The  respondents,  Gouveneur  and  Kemble, 
also  stated  that  they  did  not  agree  to  accept 
the  notes  of  Robert  Murray  &  Co.  for  the  first 
installment;  and  that  the  deed  for  the  house 
and  lot  was  not  to  be  given  until  the  bills  were 
paid,  and  the  second  installment  also  paid,  and 
that  they  did  not  agree  to  take  a  mortgage  for 
the  second  payment. 

Robert  Murray  &  Co.  were  in  full  credit  in 
January,  1796,  but  some  of  their  bills  were 
protested  in  May  following,  and  in  July  they 
stopped  payment. 

The  appellant  had  expended,  prior  to  the 
12th  August,  1796,  $600  in  repairs  on  the  house, 
and  a  further  sum  after  that  time. 

After  hearing  the  cause,  the  Chancellor  de- 
creed that  the  appellant  should  pay  to  the 
defendants  $10,000  with  interest,  to  be  ascer- 
tained by  a  master,  and  on  payment  thereof, 
the  respondents  should  execute  a  conveyance 
to  the  appellant  for  the  premises  in  question, 
and  that  unless  this  was  done  in  twenty  days, 
the  injunction  should  be  dissolved.  The  mas- 
ter reported  the  interest  to  be  $2,345.97. 


From  this  decree  and  order,  the  appellant 
entered  an  appeal  to  this  court. 

The  cause  was  argued  by  Mr.  Hanson  and 
Mr.  Burr  for  the  appellant,  and  by  Mr.  B. 
Livingston  and  Mr.  Hoffman,  Attorney -General, 
for  the  respondents. 

KENT,  J.  I  do  not  consider  the  bills  which 
the  respondents  took,  in  January,  1796,  as  a 
payment  of  the  $5,000,  notwithstanding  they 
gave  a  receipt,  as  for  so  much  cash.  Receipts 
are  never  so  conclusive  but  that  they  may  be 
explained;  and  we  have  the  consideration  of 
*this  receipt  fully  explained  to  us.  The  [*44 1 
bills  were  drawn  by  Robert  Murray  &  Co.  on 
one  of  the  partners  in  London.  This  is,  in 
fact,  like  a  person  drawing  a  bill  on  himself; 
the  law  imposes  on  him  all  requisite  notice. 

It  is  a  settled  rule  of  law,  that  a  bill  shall 
not  be  a  discharge  of  a  precedent  debt,  unless 
it  be  so  expressly  agreed  between  the  parties. 
(1  Salk.,  124.)  "The  law  is  clear,"  says  Lord 
Keuyou  (1  Esp.  Cases,  8),  "  that  if,  in  payment 
of  a  debt,  the  creditor  is  content  to  take"  a  bill 
or  note,  payable  at  a  future  day,  he  cannot 
legally  commence  an  action  on  the  original 
debt  until  such  bill  or  note  becomes  payable, 
or  default  is  made;  but  if  such  bill  or  note  is 
of  no  value,  as  if,  for  example,  it  be  drawn 
on  a  person  who  has  no  effects  of  the  drawer 
in  hand  (as  was  the  case  here),  and  who, 
therefore,  refuses  it,  in  such  case  he  may  con- 
sider it  as  waste  paper. " 

It  is  evident,  that  Robert  Murray  did  not 
consider  the  bills  as  payment;  for,  as  the  ap- 
pellant states,  on  the  first  payment  Robert 
Murray  was  to  receive  a  deed,  and  yet,  after 
the  delivery  of  the  bills,  and  the  receipt  was 
given,  he  did  not  require  a  conveyance.  This 
Ts  pretty  decisive  proof  that  Robert  Murray 
himself  did  not  regard  the  $5,000  as  an  absolute 
payment. 

The  appellant,  if  a  bona  fide  purchaser  with- 
out notice  (of  which  there  maybe  some  doubt), 
took  the  house  and  lot,  subject  to  all  the  equity 
between  the  parties,  existing  prior  to  the 
assignment  ;  and,  of  course,  he  could  not  re- 
quire a  specific  performance  of  the  contract  on 
other  terms  than  those  which  Robert  Murray 
could  insist  upon  ;  and  the  latter  could  not,  in 
equity,  demand  a  conveyance,  without  tender- 
ing the  $10.000,  the  consideration  money  for 
the  sale. 

As  to  the  sum  expended  by  the  appellant  for 
repairs,  it  may  be  left  for  liquidation,  in  an 
action  for  the  mesne  profits,  if  the  respondents 
should  think  proper  to  sue  for  *the  [*44i2 
rents  and  profits.  The  action  for  mesm  profilx 
is  a  liberal  and  equitable  action,  and  will  allow 
of  every  kind  of  equitable  defense. 

On  the  whole,  I  am  of  opinion  that  the  de- 
cree of  the  Chancellor  ought  to  be  affirmed. 


Kelsey  v.  Rasborough,  2  Rich.  (8.  C.),  241 ;  Mclntyre 
v.  Kennedy,  29  Pa.  St.,  448 ;  Sutliff  v.  Atwood,  15  Ohio 
St.,  186;  Gordon  v.  Pi-ice,  10  Ired.  L.,385;  Kenniston 
v.  Avery,  16  N.  H.,  117 ;  Coburn  v.  Odell,  30  N.  H., 
540;  Howard  v.  Jones,  33  Mo.,  583;  Devlin  v.  Cham- 
blin,  6  Minn.,  468;  Day  v.  Stickney,  14  Allen,  255; 
Berry  v.  Griffin,  10  Md.,  27 ;  Milliken  v.  Whitehouse, 
49  Me.,  527 ;  Hardin  v.  Branner,  25  la.,  364 ;  Burrows 
v.  Cook,  17  la.,  436;  White  v.  Jones,  38  111.,  159; 
Mosely  v.  Floyd,  31  Ga.,  564 ;  Bonnell  v.  Chamberlin, 
20  Conn.,  487 ;  Griffith  v.  Grogan,  12  Cal.,  317 ;  Fick- 
ling  v.  Brewer,  38  Ala.,  685. 
m  Maine,  Vermont,  Massachusetts,  and  one  or 

570 


two  other  States,  a  promissory  note  is  presumptively 
payment  of  a  precedent  debt.  The  general  tendency 
of  decisions  fa  to  the  contrary  however.  Cases 
above  cited. 

The  one  receiving  note  of  third  person  upon  a 
pre-existing  dent  must  exercise  due  diligence  or  he 
will  lose  his  remedy  against  his  original  debtor. 
Williams  v.  Ketchum,  21  Wis.,  482;  Shipman  v. 
Cook,  16  N.  J.,  Eq.,  251;  Cochran  v.  Wheeler,  7  N.  H., 
202 ;  Brown  v.  Cronise,  21  Cal.,  386.  See  cases  above 
cited. 

See,  further,  upon  general  subject,  Hen-ing  v. 
Sawyer.  3  Johns.  Cos.,  71,  and  note. 

JOHNSON'S  CASES,  2. 


1801 


EDWARD  GOOLD  ET  AL.  v.  JOHN  SHAW. 


442 


The  rest  of  the  court  being  of  the  same  I 
opinion,  it  was,  thereupon,  ordered,  adjudged  j 
and  decreed,  that  the  decree  of  the  Chancellor  j 
be  affirmed. 

Judgment  of  affirmance. 

Cited  in--5  Johns.,  73 ;  1  Cow.,  384,  665 ;  4  Cow.,  171 : 

3  Wend.,  82 ;  5  Wend.,  493 ;  11  Wend.,  15 ;  3  Paige,  406 ; 

4  Paige,  344:  7  Paige,  306;  37  N.  Y.,  314;  S.  C.,  35 
How.  Pr.,  450;  S.  C.,  4  Abb.  N.  S.,  246;  S.  C.,  4  Trans. 
App.,  247 ;  16  Barb.,  29 ;  47  Barb.,  36 ;  4  Wash.,  276 ;  1 
Woods,  93. 


EDWARD    GOOLD    AND    CHARLES    D. 
GOOLD,  Plaintiffs  in  Error, 

v. 
JOHN  SHAW,  Defendant  in  Error. 

rpHIS  cause  came  before  the  court  on  a  writ 
JL  of  error,  from  the  Supreme  Court.  For 
the  facts  in  the  cause,  and  the  reasons  of  the 
court  below,  see  1  Johns.  Cases,  p.  293,  309. 

After  argument,  this  court  unanimously 
affirmed  the  judgment  of  the  Supreme  Court, 
with  costs,  and  the  record  was  ordered  to  be 
remitted. 

Judgment  affirmed. 


443*]  *THE  UNITED  INSURANCE  COM- 
PANY OF  NEW  YORK,  Plaintiffs  in 
Error, 

v. 

ROBERT  LENOX,  Defendant  in  Error. 

Marine  Insurance  —  Abandonment — Accept- 
ance— Freight  subsequently  Earned. 

Where  a  ship  is  abandoned  to  the  insurer,  who 
accepts  the  abandonment,  and  the  voyage  is  after- 
wards performed,  and  freight  earned,  the  insurer  is 
entitled  to  the  freight  earned  after  the  abandon- 
ment, or  pro  rota.  See  1  Johns.  Cas.,  377,  S.  C. 

THIS  cause  came  before  the  court  on  a  writ 
of  error  from  the  Supreme  Court  (see  1 
Johns.  Cases,  p.  377,  390),  where  the  facts  and 
opinions  delivered  by  the  judges  of   the  Su- 
preme Court,  are  stated. 

Messrs.  Troup  and  Harison,  for  the  plaint- 
iffs in  error,  contended  that  the  judgment  of 
the  Supreme  Court  ought  to  be  reversed: 

1.  Because  freight  being  nothing  more  than 
the  earnings  of  the  ship  is  to  be  regarded  solely 
as  an  incident  which  is  attached  to  the  ship,  as 
the  principal.     When,  therefore,  an  abandon- 
ment of  the  ship  is  made  and  accepted,  the 
freight,   of    course,   passes  with   the  ship  to 
the    underwriter;    in    like    manner    as    the 
grant  of  a  tree  vests  the  fruit  of  it  in  the 
grantee.     If  a  different  principle  were  to  pre- 
vail,  the  underwriter,   by    an  abandonment, 
would  acquire  a  qualified,  instead  of  an  abso- 
lute right  to  the  property  abandoned. 

2.  Because  the  contract  of  insurance,  being 
a  contract  of  indemnity,  has  it  in  view  to  place 
the  assured  in  the  situation  he  was  in,  at  the 
commencement  of  the  voyage — and  not  to  yield 
him  a  profit.     It  naturally  happens,  that  the 
ship  becomes  deteriorated  in  the  course  of  her 
JOHNSON'S  CASES,  2. 


voyage,  and  the  freight  she  earns  is  intended 
to  compensate  for  such  deterioration.  But  if 
the  assured  may  abandon  the  ship,  and  at  the 
same  time  retain  the  freight,  he  will,  in  many 
cases,  convert  what  was  designed  as  a  mere  in- 
demnity into  a  gainful  speculation. 

*3.  Because,  although  the  law  per-  [*444 
mits  freight  to  be  insured,  yet  the  underwriter 
thereon,  in  case  of  abandonment,  cannot  be 
entitled  to  more  than  the  owner  of  the  ship, 
who  had  made  no  insurance  on  freight,  would 
have  a  right  to  receive ;  and  if,  in  such  case, 
the  owner  of  the  ship,  upon  principle,  would 
have  no  right  to  freight,  it  must  necessarily 
follow  that  the  claim  for  freight  on  the  part  of 
the  underwriter  cannot  be  supported. 

4.  Because,  if  the  freight  can  be  apportioned, 
as  has  been  done  in  this  cause,  it  would  be- 
come the  interest  of  the  owner  of  the  ship  (who 
had  not  insured  his  freight),  upon  some  pretext 
or  other,  to  break  up  the  voyage  whenever  it 
was  nearly  accomplished.  Thus  an  extensive 
field  would  be  opened  for  additional  frauds 
upon  underwriters,  who  are  a  class  of  men 
already  too  much  exposed  to  the  pernicious 
effects  of  fraud. 

Mr.  B.  Livingston,  for  the  defendant  in  error, 
contended  that  the  judgment  of  the  Supreme 
Court  was  erroneous,  because  the  plaintiffs 
were,  entitled  to  no  part  of  the  freight  earned 
during  the  voyage  insured,  and  therefore  the 
judgment  should  have  been  rendered  for  the 
defendant  generally. 

1.  Vessels,  goods  and  freight,  are  distinct 
interests,  and  the  most  frequent  objects  of  ma- 
rine insurance.     In  case  of  abandonment,  the 
respective  underwriters  acquire  an  interest  in 
each,  according  to  the  subject  matter  of  the 
different  policies.     The  portion  of  property 
oftentimes  saved  in  case  of  total  loss,  techni- 
cally so  called,  is  a  great  encouragement  to  in- 
surance; but  an  insurer  on  freight  would  never, 
in  cases  of  disaster,  if  the  plaintiffs  be  right, 
have  anything  to  receive.     This  would  turn  a 
policy  of  freight  into  a  very  unequal  if  not 
gambling  contract  on  the  part  of  the  insurer. 
He  must  ever  forego  all  benefit  of  salvage;  but 
if  this  were  so,  premia  on  freight  would  always 
be  higher  than  on  ships  *or  goods.     [*44o 
This  is  not  pretended  to  be  the  case.     The 
rates  on  these  different  articles,  in  general,  do 
not  vary. 

2.  It  is  a  mistake  to  consider  freight   as 
"nothing  more  than  the  earnings  of  a  ship." 
The  vessel,  it  is  true,  is  one,  and  the  principal 
item  in  the  expense  from  which  profit  is  ulti- 
mately   expected;    but    provisions,    seamen's 
wages,  &c.,  are  also  heavy  charges.     To  in- 
demnify merchants  for  these  advances,  in  case 
of  loss,  and  not  for  the  cost  of  the  vessel,  is 
the  principal  object  of  an  insurance  on  freight. 
The  freight  received  by  the  owner  will>  in 
many  cases,  not  be  equal  to  these  expenses, 
for  which  he  is  personally  responsible,  and 
which  can  in  no  way  be  thrown  on  an  insurer 
of  the  ship.     It  will"  be  no  answer  to  say  that 
wages,  which  form  one  article  of  this  expense, 
remain  a  lien  on  her,  in  the  hands  of  the  un- 
derwriters.    If  they  do,  there  can  be  no  doubt 
the  owner  would  be  compelled  to  refund,  for 
he  must  abandon  the  property  free  of  incum- 
brance ;   and  were  this  otherwise,  the  vessel 
might  sink  the  day  after  her  arrival,  and  the 

571 


445 


COURT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1801 


mariners  be  left  without  recourse  but  against 
the  owner.  As  the  underwriter  on  a  vessel, 
therefore,  contributes  no  part  of  the  expense 
necessary  to  make  freight,  it  is  unreasonable 
in  him  to  expect  any  part  of  it.  "  Qui  aentit 
c<ymmodum,  nentire  debet  el  onu#."  The  plaint- 
iffs have  borne  none  of  the  burden,  and  have, 
therefore,  no  title  to  any  of  the  earnings,  which 
may,  after  all,  be  very  inadequate  to  cancel  the 
debt  of  the  owner. 

3.  In  case  of  capture  and  an  abandonment, 
the  expenses  of  reclaiming  the  property  are 
apportioned  among  the  underwriters  on  the 
ship,  the  goods  and  the  freight.  But  why 
make  the  underwriter  on  the  latter  pay  any- 
thing, if,  the  moment  the  vessel  arrives,  in  case 
of  release,  the  assurer  on  the  ship  is  to  pocket 
all  her  hire?  He  pays  his  portion  of  this  ex- 
pense, because  the  freight  earned,  and  to  be 
earned,  on  that  voyage,  is  regarded,  after 
abandonment,  as  his  property,  just  as  much 
as  the  goods  belong  to  those  who  have  insured 
them.  " 

446*]  *4.  True  it  is  every  policy  is  a  con- 
tract of  indemnity,  at  least,  such  was  its 
original  design  ;  but  it  may  and  frequently  is 
converted  into  an  instrument  of  gain;  we  are 
willing* here  to  regard  it  only  as  a  means  of 
indemnity.  This  principle,  properly  under- 
stood, will  entitle  the  defendant  to  a  judgment. 
Freight  is  not  an  imaginary  profit.  It  is  a 
compensation  received  or  expected  for  the  use 
of  the  property.  Thus  a  merchant,  whose 
ship  may  have  cost  a  large  sum,  lets  her  out  for 
a  voyage  of  two  or  three  years,  at  a  rate  which, 
after  paying  the  expenses,  will  not,  perhaps, 
yield  more  than  lawful  interest  for  the  capital 
expended  in  building  her.  The  ship  is  insured 
at  her  just  value  ;  the  freight  is  uncovered. 
After  being  absent  near  the  whole  time,  he 
hears  of  a  detention  or  some  other  accident, 
which  induces  him  to  abandon.  In  a  day 
or  two  the  vessel  arrives,  and  the  whole 
freight  becomes  payable.  How  is  the  mer-  ( 
chant  indemnified  for  being  so  long  out  of  his  i 
money,  and  for  the  heavy  expenses  of  the  voy- 
age, unless  he  receives  the  freight  ?  Or  under 
what  pretense  can  the  underwriter  on  the  ship 
demand  it?  He  has  expended  no  capital — in- 
curred no  expense — nor  been  at  any  risk  as  to 
the  freight.  The  subject  he  insured  he  re- 
ceives, and  ought  to  be  satisfied  with  it.  If 
the  vessel  had  arrived  in  ballast,  or  by  any 
means  no  freight  had  been  made,  he  would 
hardly  have  re-imbursed  the  owner  the  large 
sums  he  had  expended  in  hope  of  a  reasonable 
gain. 

5.  On  the  plaintiff 's  system,  an  insurer  on  a  j 
vessel  must  frequently  be  a  great  gainer.  A  I 
policy  on  freight  attaches  as  soon  as  the  right  | 
of  freight  commences,  that  is  the  moment  the  ! 
cargo  is  on  board  and  the  voyage  begins.  | 
Suppose  freight  from  New  York  to  the  East : 
Indies  is  insured  to  the  amount  of  $20,000;  ' 
the  vessel  is  taken  the  day  after  she  sails,  by  a 
French  privateer;  she  is  robbed  of  her  cargo 
and  sent  back,  with  two  or  three  hands,  to ! 
New  York;  the  owner  abandons  the  ship  and  j 
freight  to  their  respective  underwriters;  the,} 
447*]  *vessel  has  received  no  damage,  and  j 
will  probably  sell  for  the  amount  of  the  policy.  : 
This  ought  to  content  the  underwriters  on  the  | 
vessel.  Not  so.  They  no  sooner  hear  the  i 
572 


owner  has  received  $20,000  from  the  under- 
writers on  freight,  than  they  very  civilly  call 
on  him  to  refund.  Were  the  request  a  little 
more  modest,  a  solitary  precedent  might  be 
found  in  its  favor.  As  none  is  produced,  al- 
though the  case  must  occur  every  day,  we  may 
fairly  presume  the  sense  of  the  mercantile 
world  has  ever  been  against  so  extraordinary 
and  ill-founded  a  pretension. 

6.  The  plaintiffs  have  likened  an  abandon- 
ment of  a  ship  to  the  grant  of   a  tree.     There 
is  a  difference  in  the  cases.     The  former,  when 
furnished,  earns  nothing  of  itself,  or  without 
great  expense  and  labor,  on  the  owner's  part  ; 
a  tree,  once  planted,  bears  of  itself  ;  if  this  ex- 
pense and  labor  have  been  bestowed  by  the 
former  proprietor,  it  is  reasonable  to  give  him 
the  avails.     A  sale  of  a  vessel  at  sea  would 
hardly  pass  the  freight  for  the  voyage  she  was 
then  on,  without  containing  a  special  stipula- 
tion to  that  effect,  and  an  indemnity  to  the 
grantor  against  wages  and  other  charges.     The 
common  understanding  of  such  a  sale  is,  'that 
the  ship  and  tackle  only  pass  to  the  vendee, 
and  that  the  freight  belongs  to  the  vendor,  or 
former  proprietor.    But  if  the  analogy  between 
the  fruit  of  a  tree  and  the  earnings  of  a  ship  be 
complete,  the  former  as  well  as  the  latter  is  an 
insurable  interest.     Suppose,  then,  the  tree,  or 
its  trunk  and  limbs,   to   be  insured  against 
thieves,  by  one  man,  and  the  fruit  by  another; 
just  as  the  oranges  are  ripe,  the  tree  is  stolen 
and  carried  off,  and  an  abandonment  in  due 
form  is  immediately    made    to    both    under- 
writers.    The  next  day  the  booty  is  recovered 
from  the  captors,  who  are  no  other  than  some 
mischievous  boys  of  the  neighborhood.     The 
oranges  are  plucked,  but  the  detection  takes 
place  in  time  to  secure  everything.     How  is 
this  property  to  be  divided  ?    I  am  not  cer- 
tain there  is  any  adjudged  case  in  point  in 
*Emerigon,  Pothier,  Valin,    Roccus,  [*448 
Bartholus,  or  Park  ;   but  it  appears  reason- 
able that  the  underwriter  on  the  fruit  should 
take  all  the  oranges  to  himself ;   because,  if 
they    had    been  stolen,   and  the  tree  left,  he 
alone  must  have  made  good  the  loss.     We  are. 
willing  the  tree,  with  its  body,  bark,  boughs, 
suckers  and  leaves,   be  disposed  of  for  the 
benefit  of  the  other  underwriter. 

7.  It  is  said  that  the  owner,  by  an  appor- 
tionment of  the  freight,  has  an  inducement  to 
break  up  the  voyage  ;  this  supposes  it  to  be  in 
his  power  so  to  do,  when  he  pleases.     This  is 
not  correct ;  a  fraud  of  this  kind   cannot  be 
well  committed  without  the    privity  of  the 
master  and  others,  which  would  lead  to  detec- 
tion.    It  is  also  supposing  men  to  be  more 
wicked  than  they  really  are.     If  we  determine 
to  guard  against  every  imposition  that  may  be 
practiced  on  underwriters,  we  must  put  an 
end  to  all  insurances.     Abandonments  open  a 
wide  door  to  frauds  ;  so  do  high  valuations ; 
so  do  insurances  on  profits,  on  lives,  on  goods, 
on  houses,  &c.,  but  this  is  no  argument  against 
them.     Now  and  then  a  worthless  member  of 
society  will  pervert  them  to  the  purposes  of 
fraud,  while  thousands  are  thereby  honestly 
preserved  from  ruin.     It  is  not  in  human  fore- 
sight to  form  a  general  rule  which   may  not, 
in  its  application  to  particular  cases,  be  abused; 
yet  such  rules  must  be  adopted  and  adhered  to. 
In  doing  this,  in  the  case  before  us,  we  must 

JOHNSON'S  CASES.  2. 


1801 


THE  UNITED  INSURANCE  COMPANY  v.  ROBERT  LENOX. 


448 


respect  the  rights  and  pretensions  of  the  differ- 
ent parties,  and  not  do  injustice  to  either  be- 
cause frauds  may  be  perpetrated  by  others. 

Upon  the  whole,  we  insist  that  an  under- 
writer on  the  ship  has  no  claim  to  any  of  the 
freight  earned  during  the  particular  voyage 
insured  ;  that  on  the  termination  of  such  voy- 
age the  vessel  alone,  in  case  of  abandonment, 
becomes  his  property ;  that  an  insurer  on 
freight,  or  the  owner,  where  no  such  insurance 
is  made,  is  entitled  to  the  whole  of  the  freight 
which  is  earned  during  such  voyage  ;  that 
this  necessarily  results  from  the  relative 
*situation  and  the  rights  of  the  parties,  [*449 
and  that  a  contrary  doctrine  will  put  an  end  to 
all  insurances  on  freight.  We  therefore  hope 


the  judgment  complained  of  will  be  reversed, 
and  one  rendered  in  favor  of  the  defendant. 

A  majority  of  the  court  being  of  opinion 
that  the  plaintiff  was  entitled  only  to  the  freight 
earned  subsequent  to  the  peril  incurred,  which 
caused  the  abandonment,  or  pro  rata,  it  was 
thereupon  ordered,  adjudged  and  decreed, 
that  the  judgment  of  the  Supreme  Court  be 
affirmed,  with  costs,  and  the  record  remitted, 
&c. 

Judgment  of  affirmance.1 

Affirming  S.  C.,  ante,  379. 
Approved— 30  N.  Y.,  253 

Citedin— 9  Johns.,  190;  4  Mason  (note), 201;  3  Wood 
&  M.,  444. 


1.— See  Davy  v.  Hallctt,  3  Caines,  16-22,  and  251 : 
Mumf ord  v.  Hallett,  1  Johns.  Rep.,  433 ;  Livingston 
v.  Columbian  Ins.  Co.,  3  Johns.  Rep.,  49.  And  see 
Thompson  v.  Rowcroft,  4  East's  Rep.,  34 ;  Latham  v. 
Terry,  3  Bos.  &  Pull.,  479;  McCarthy  v.  Abel,  5 
East's  Rep.,  388 ;  Sharp  v.  Gladstone,  7  East,  24 ;  Ker 
v.  Osborne,  9  East,  378;  Park  on  Ins.,  227-236,  6th 
ed. ;  Marshall,  2d  ed.,  604-608.  The  question  in  the 
English  courts,  as  to  whom  the  freight,  earned  sub- 
sequent to  an  abandonment  of  the  ship,  belongs,  in 
case  of  a  separate  insurance  on  freight,  appears, 
from  the  above  authorities,  to  remain  still  unde- 
cided. In  this  State,  though  the  Supreme  Court, 

JOHNSON'S  CASES,  2. 


in  the  case  of  Livingston  v.  The  United  Ins.  Co.. 
3  Johns.  Rep.,  49,  definitely  settled  that  the  insured 
might  abandon  the  ship  to  one  insurer  and  the 
freight  to  another,  on  separate  policies,  and  re- 
cover the  amount  from  each,  in  case  of  a  total  loss ; 
yet  they  declined  deciding  the  question  bet  ween  the 
two  sets  of  insurers  to  which  of  them  the  freight 
subsequently  earned  belonged.  But  Livingston,  J., 
in  1  Caines,  578,  and  3  Caines,  251,  in  giving  his 
opinion,  seemed  to  suppose  it  settled  by  the  case  of 
The  United  Ins.  Co.v.  Lenox,  that  the  underwriters 
on  the  ship  were  entitled  to  the  freight  earned  after 
the  abandonment  during  the  voyage  insured. 

»      573 


CASES  ADJUDGED 


COURT  FOR  THE  CORRECTION  OF  ERRORS 


STATE  OF  NEW  TOEK. 


FEBRUARY.    18Oa. 


451*1     *JOHN     C.     VANDENHEUVEL, 
Plaintiff  in  Error, 

v. 
THE  UNITED  INSURANCE  COMPANY, 

Defendants  in  Error. 

Marine  Insurance. 

In  an  action  on  a  policy  of  insurance,  the  sen- 
tence of  a  foreign  court  of  admiralty  is  not  con- 
clusive evidence  as  to  the  character  of  the  propei-ty, 
and  of  a  breach  of  the  warranty  of  neutrality. 

See  ante,  127. 

Citation— 1  Johns.  Cas.,  £41 ;  8  Term,  R.,  244, 444, 
Millar,  466 ;  Collect.  Inrid.,  101, 102, 106 ;  Grotius,  lib. 
3,  ch.  2,  sec.  5 ;  Vattel,  lib.  2,  sec.  84,  85 ;  Martens, 
104, 105 ;  2  Brsk.  Inst.,  735 ;  1  Vernon,  21 ;  2  Shower, 
242 ;  1  Ld.  Raym.,  724 ;  Theory  of  Evidence,  37 ;  Bull. 
N.  P.,  243 ;  Park  on  Ins.,  178 ;  Haw.,  452,  457,  467, 471, 
477,  479 ;  4  Co.,  29 ;  7  Co.  Litt.,  3 ;  2  Lev.,  14 ;  1  Freein., 
83;  Carth.,  225;  Amb.,  761;  1  Salk.,  290;  2  Bl.  Rep., 
977, 1175;  1  Show.,  6;  1  Ld.  Raym.,  724;  2  Ld.  Raym., 
893;  2  Woodd.,  456;  2  Ball.,  271 ;  Id.,  195;  Park,  360; 
Emerigon,  457,  464 ;  Doug.,  5. 

THIS  cause  came  before  the  court  on  a  writ 
of  error  from  the  Supreme  Court.  For 
the  facts  in  the  case,  and  the  opinion  of  the 
court  below,  see  ante,  pp.  127-168. 

MR.  VAN  VECHTEN,  Senator.  Two  questions 
are  presented  for  our  consideration  : 

1.  Whether  the  description  of  the  ship  in 
the  policy,  as  being  American,  and  the  plaint- 
iff's representation  of  her  being  his  property, 
amount,  in  judgment  of  law,  to  a  warranty  of 
her  neutrality?  if  so,  then, 

NOTE. — Foreign  judgment,  its  effect. 

The  decisions  of  the  various  courts  of  this  coun- 
try regarding  the  effect  which  should  be  given  to  a 
foreign  judgment  are  impossible  to  be  reconciled. 
For  a  full  discussion  of  the  subject  see  the  follow- 
ing works:  Story  on  the  Conflict  of  Laws,  chap, 
xv.,  sec.  584,  et  seq.;  Bigelow  on  Estoppel,  chaps. 
v.  and  vi.,  p.  151,  etseq.;  2  Parsons,  on  Mar.  Ins., 
526,  et  seq.;  Wharton,  on  the  Conflict  of  Laws,  sec. 
811,  et  seq.;  2  Kent's  Com..  118 ;  et  seq.,  and  notes 
(12th  ed.);  1  Greenl.  Ev.,  sec.  540,  et  seq. 

See  also  Williams  v.  Armroyd,  7  Cranch,  424 :  Bax- 
ter v.  N.  E.  Ins.  Co.,  6  Mass.,  277 ;  Robinson  v.  Jones, 
8  Mass.,  536 ;  Radcliff  v.  U.  Ins.  Co.,  9  Johns.,  277 ; 
Francis  v.  Ocean  Ins.  Co.;  6  Cow..  404 ;  Rapalje  v. 
Emery,  2  Dall.,  231 ;  Monroe  v.  Douglass,  4  Sandf .  Ch., 
126 ;  Ocean  Ins.  Co.,  v.  Francis,  2  Wend.,  64 ;  Gardere 
v.  Col.  Ins.  Co.,  7  Johns.,  514. 

See  another  report  of  the  above  case  (Vandenheu- 
vel  v.  United  Ins.  Co.)  in  2  Caines'  Cas.,  217. 

JOHNSON'S  CASES,  2. 


2.  Whether  the  warranty  is  conclusively 
fulfilled  by  her  condemnation,  as  enemy's 
property  ? 

In  examining  these  questions,  I  have  sought 
with  solicitude,  to  ascertain  what  the  law  is, 
and  candor  constrains  me  to  declare,  not  with- 
out a  leaning  against  the  result  which  my  in- 
vestigation has  produced.  But,  as*we  [*452 
are  called  upon  to  pronounce  the  law  as  we 
find  it,  I  hold  it  to  be  my  duty  to  deliver  that 
result,  referring  it  to  the  proper  authority  to 
alter  the  law,  if  an  alteration  shall  be  deemed 
necessary. 

1.  I  take  the  rule  to  be  well  settled,  that  all 
contracts  of  insurance  must  be  founded  on 
I  truth,  and  a  fair  disclosure  of  every  fact  which 
;  is  material  to  the  risk  to  be  run.     When,  there- 
I  fore,  an  inhabitant  of  a  neutral  nation  requires 
'•  insurance  to  be  made  in  time  of  war  on  a  ship 
I  which  he  states  to  be  of  the  same  nation,  the 
i  natural  inference  is  that  the  property  he  wishes 
:  to  have  insured  is  neutral.     But  when  he  goes 
still  farther,  and  assents  to  insert  in  the  policy 
such  a  description  of  the  vessel  as  is  strictly 
applicable  to  a  neutral  ship  only,  it  must  be 
deemed  equivalent  to  a  warranty  of  her  neu- 
trality; and  the  reasonable  interpretation  of 
the  contract  is,  that  it  was  so  intended  by  the 
parties.     What  else  can  be  the  object  of  the 
description?    Or,  what  other  use  can  be  as- 
cribed to  it?     Surely  the  court  cannot  intend 
that  its  insertion  was  without  a  meaning, 

In  the  case  before  us,  the  ship  is  described 
as  "the  good  American  ship,  the  Astrea,"and 
represented  to  be  the  property  of  a  citizen  of 
New  York,  where  all  the  parties  reside.  What 
is  the  language  of  this  transaction?  The  plaint- 
iff requests  insurance  on  a  ship ;  the  defendants 
inquire,  what  ship?  He  answers,  an  American 
ship,  the  Astrea.  Again,  the  defendants  ask, 
whose  property  is  she?  To  which  the  plaint- 
iff replies,  mine.  From  such  a  statement  of 
facts,  what  other  reasonable  inference  can  be 
deduced,  than  that  the  plaintiff  meant  it  to  be 
understood  by  the  defendants,  that  the  ship  in 
question  was  American,  and  the  property  of 
an  American  citizen;  and  consequently  neu- 
tral? See  Qoix  v.  Is>w  (1  Johns.  Cases,  341). 
If  this  exposition  of  the  contract  is  correct, 


COURT  OP  ERRORS,  STATE  OF  NEW  YORK. 


1801 


it  follows  that  on  the  neutrality  of  the  ship  de- 
pends the  validity  of  the  policy. 
453*]  *2.  From  an  attentive  examination 
of  the  authorities  relative  to  the  efficacy  of  the 
judgments  of  foreign  courts  of  competent 
jurisdiction,  I  have  no  doubt  that  they  are  con- 
clusive evidence  of  the  facts  upon  which  they 
are  found.  If  it  be  not  so,  this  absurdity  will 
result;  the  courts  of  one  nation  may  have  juris- 
diction of  certain  causes,  may  try  and  deter- 
mine them,  and  without  reversing  those  deter- 
minations, the  courts  of  another  nation  may 
try  the  same  causes  over  again,  and  give  con- 
trary decisions  ;  and  thus,  there  would  be  con- 
tradictory determinations  in  force  upon  the 
same  subjects,  and  at  the  same  time,  by  courts 
of  equal  authority. 

The  distinction  which  is  contended  for  by 
the  opposers  of  this  doctrine,  that  the  sentence 
of  a  foreign  court  of  admiralty  is  conclusive 
to  change  the  property  that  may  be  sold  under 
it,  but  not  to  bind  tho'se  whose  warranty  of  the 
property  is  expressly  falsified  by  the  sentence, 
is  to  me  very  unsatisfactory.  Either  the  court 
has  full  power  to  decide  the  point  on  which 
the  condemnation  rests,  or  it  has  not.  If  it 
has  the  power,  its  decision  must  be  conclusive 
as  to  the  whole  subject.  If  it  has  not,  the  de- 
cision is  of  no  force.  The  validity  of  the  sale 
of  the  property  of  an  American  citizen  under 
an  admiralty  condemnation,  turns  upon  the  au- 
thority of  the  court  to  fix,  by  its  sentence,  the 
character  of  that  property,  in  relation  to  the 
parties  at  war;  and  if  such  authority  is  vested 
in  the  foreign  court,  with  respect  to  one  party 
interested  in  the  property,  I  perceive  no  solid 
reasons  why  it  should  not  extend  to  all  the 
parties. 

Besides,  both  the  insurers  and  insured  must 
be  presumed,  when  they  entered  into  this  con- 
tract, to  have  contemplated  the  risk  of  capture 
at  sea,  and  consequently  of  an  admiralty  trial 
abroad,  on  the  point  of  neutrality  of  the 
property  insured  ;  for  in  that  view  alone  was 
the  warranty  of  neutrality  material.  It  is, 
therefore,  fairly  inferable  that  the  contracting 
parties  meant  to  refer  the  fact  of  neutrality  to 
454*]  the  courts  of  the  belligerents,  where*the 
question  of  prize  or  not  was  alone  triable,  in 
case  of  capture.  The  assured  not  only  stipu- 
lates that  the  property  is  neutral,  but  the  spirit 
of  his  stipulation  is  that  he  will  maintain  it  to 
be  so  when  examined  before  the  foreign  tribu- 
nal. (8  Term  Rep.,  244, 444;  Millar,  466.)  He 
is,  therefore,  an  essential  party  to  the  proceed- 
ing in  that  court,  and  must  be  considered  as 
having  assumed  the  risk  of  its  decision  on  the 
point  of  neutrality.  To  exonerate  him  from 
the  consequences  of  that  risk,  at  the  expense 
of  the  underwriter,  would,  in  my  opinion,  not 
only  be  unjust,  but  repugnant  to  the  sound  in- 
terpretation of  the  policy. 

In  forming  my  opinion,  I  have  dismissed  all 
considerations  of  public  policy.  1.  Because  I 
deem  them  to  be  inadmissible  in  a  court  of 
justice,  when  called  upon  to  pronounce  the 
existing  law  of  the  land.  2.  Because  the 
question  before  us  is  simply,  which  of  our  own 
citizens  shall  bear  the  loss  of  property  con- 
demned for  want  of  neutrality;  the  party  who 
guarantied  its  neutrality,  or  those  to  whom  the 
guaranty  was  made?  On  the  latter  point,  who 
can  hesitate  to  say  that  this  court  ought  not 
576 


to  lend  its  aid  to  relieve  a  man  from  the  con- 
sequences of  his  own  warranty,  to  the  prej- 
udice of  those  for  whose  protection  that  war- 
ranty was  contrived? 

Thus  far  I  have  proceeded  on  the  true  in- 
tent of  the  parties,  as  manifested  by  their  con 
tract ;  I  now  pass  on  to  what  appears  to  me  to 
be  the  settled  law  on  this  subject. 

In  England,  the  conclusiveness  of  the  sen- 
tence of  foreign  courts  of  competent  jurisdic- 
tion has  been  long  since  admitted  and  confirm- 
ed by  a  uniform  train  of  decisions,  in  her  high- 
est courts  of  judicature.  The  obligatory  force 
of  many  of  those  decisions  upon  us  is  not  now 
to  be  controverted,  because  it  is  established  by 
the  constitution  which  has  adopted  them,  as 
part  of  the  common  law. 

*The  sentences  of  admiralty  courts  [*455 
appear  to  me  to  be  of  the  number  which  are 
placed  on  that  footing.  Indeed,  the  doctrine 
of  conclusiveness  applies,  with  peculiar  force, 
to  their  sentences  relative  to  prize,  because  their 
authority  is  bottomed  on  the  general  law  of 
nations,  which  gives  the  right  of  capturing 
enemy's  property  on  the  high  seas  to  belliger- 
ents. (Collect.  Jurid.,  101,102,106;  Grotius, 
lib.  3,  c.  2,  sec.  5;  Vattel,  lib.  2,  sec.  84,  85;  Mar- 
tens, 104,  105;  2  Ersk.  Inst.,  735.)  This  right 
necessarily  involves  the  right  of  instituting 
courts  particularly  adapted  to  try  the  legality 
of  such  captures.  And  hence  it  is  that  we  find 
courts  of  this  description  existing  in  all  mari- 
time nations,  and  embracing  everywhere  the 
same  objects  ;  they  form  a  separate  and  inde- 
pendent branch  of  jurisprudence,  uncontrolled 
by  a  common  superior.  Their  mode  of  pro- 
ceeding is  appropriate,  and  variant  from  that 
of  the  common  law  courts.  Hence  it  results 
that  the  latter  have  neither. the  power  to  ascer- 
tain the  merits  of  their  sentences,  nor  of  re- 
viewing them. 

An  objection  has  been  made,  and  was  urged 
with  considerable  zeal,  on  the  argument,  that 
no  direct  authority  on  this  point  is  to  be  found 
in  the  English  judicial  proceedings,  prior  to 
our  Revolution.  But  on  recurring  to  the  Eng- 
lish reporters  and  elementary  writers,  I  find 
that  objection  is  unfounded. 

In  1681,  in  the  cause  of  Neirland  v.  Home- 
man  (1  Vernon,  21),  Lord  Chancellor  Notting- 
ham declares  himself  explicitly  in  favor  of  the 
conclusiveness  of  foreign  admiralty  sentences. 

In  the  case  of  Hughes  v.  Cornelius,  in  the 
reign  of  Charles  II.,  the  judges  of  the  King's 
Bench  laid  down  the  rule  in  unqualified  terms, 
that  they  were  bound  to  notice  the  sentences  of 
courts  of  admiralty  abroad,  and  must  not  set 
them  at  large.  (2  Shower,  242.) 

In  the  tenth  year  of  the  reign  of  William  III. , 
Lord  Holt,  in  an  action  on  a  policy  of  insur- 
ance, held,  that  if  it  appear  upon  the  evidence 
that  the  ship  insured  was  seized  and  con- 
demned by  process  of  law,  by  the  sentence 
*the  property  and  ownership  are  des-  [*45<> 
troyed,  and  there  is  no  remedy  on  the  policv. 
(1  Ld.  Raym.,  724.) 

The  case  from  the  Theory  of  Evidence,  in 
1761,  bears  directly  upon  the  present  question, 
and  establishes  the  conclusiveness  of  a  French 
admiralty  sentence  on  the  warranty  of  neutrality 
in  a  policy  of  insurance.  (Theory  of  Ev.,  37.) 

The  authority  of  the  last  case  is  fully  con- 
firmed by  Judge  Buller  (Buller's  N.  P.,  243), 
JOHNSON'S  CASES,  2. 


JOHN  C.  VANDENHEUVEL  v.  THE  UNITED  INSURANCE  COMPANY. 


456 


.«nd  I  cannot  discern  whence  it  has  been  in- 
ferred that  he  referred  to  the  case  of  Hughes  and 
Cornelius,  for  that  was  an  action  of  trover,  for 
.an  English  ship,  and  the  case  he  states  is  of  a 
policy  of  insurance  on  a  Swedish  ship. 

In  the  case  of  Fernandez  v.  De  Costa  (Park 
-on  Ins.,  178),  during  the  fest  French  war,  Lord 
Mansfield,  in  a  similar  case,  adopts  the  same 
rule. 

From  those  authorities,  as  well  as  the  general 
course  of  decisions  in  the  English  courts  (Harg. , 
452,  457,  467,  471,  477,  479;  4  Co.,  29;  7  Co. 
Litt.,  3;  2  Lev.,  14;  1  Freem.,  83;  Carth.,  225; 
Amb.,  761;  1  Salk.,  290;  2  Bl.  Rep.,  977, 1175; 
1  Show.,  6;  1  Ld.  Raym.,  724;  2  Ld.  Raym., 
893;  2  Woodd.,  456),  relative  to  domestic  judg- 
ments, and  the  rules  universally  laid  down  by 
the  most  approved  elementary  writers,  it  ap- 
pears incontrovertibly  that  the  conclusiveness 
of  foreign  admiralty  sentences  was  received  as 
settled  law  in  England  before  our  Revolution  ; 
.and  being  so,  we  are  required  by  no  less  au- 
thority than  the  constitution  of  this  State  to 
pronounce  it  to  be  the  law  here. 

It  may,  perhaps,  be  asked,  whether  there  is 
no  remedy  for  our  citizens  against  the  unjust 
•decisions  of  foreign  vice-admiralty  courts  ?  To 
such  an  inquiry,  I  would  answer  in  the  affirm- 
tative  ;  for  they  have  the  same  remedy  against 
those  sentences  which  foreigners  have  against 
the  erroneous  or  unjust  judgments  of  our  own 
inferior  courts  ;  an  appeal  to  the  higher  tribu- 
nals, which  are  clothed  with  legal  power  to  re- 
view, annul,  and  set  them  right.  And  this  I 
take  to  be  the  true  course,  which  public  policy 
and  the  general  law  of  nations  prescribe. 
457*]  *Upon  the  whole,  therefore,  I  con- 
clude, 1.  According  to  the  sound  construc- 
tion of  the  policy,  it  was  founded  on  a  warran- 
ty of  neutrality  of  the  property  insured.  2. 
That  that  warranty  is  conclusively  falsified, 
by  the  admiralty  sentence  of  condemnation 
.as  enemy's  property. 

The  result  is,  in  my  opinion,  that  the  judg- 
ment of  the  Supreme  Court  ought  to  be  af- 
firmed. 

MR.  CLINTON,  Senator:  The  plaintiff  hav- 
ing warranted  a  ship  and  cargo  as  American 
property,  the  question  is,  whether,  in  an  action 
.against  the  insurers,  the  sentence  of  a  foreign 
court  of  admiralty  that  a  warranty  was  false, 
is  conclusive  evidence.  It  is  admitted  by  the 
plaintiff  that  the  sentence  binds  and  changes 
the  property,  and  that  it  is  prima  facie  evi- 
dence of  the  fact  set  up  against  him;  and  on 
the  other  hand,  it  is  conceded  by  the  defendants 
that  in  several  cases,  in  an  action  of  this  kind, 
the  judgment  is  not  definitive  in  favor  of  the 
insurers;  such  as  when,  on  the  face  of  it,  it  is 
founded  on  local  ordinances,  or  contrary  to  the 
law  of  nations,  or  so  ambiguous  that  the  court 
^cannot,  from  the  reasons  assigned,  collect  the 
grounds  of  it;  and,  that  this  case  not  coming 
within  either  of  these  descriptions,  the  contest 
between  the  parties  still  remains  open,  whether 
the  foreign  sentence  be  prima  facie  or  conclu- 
sive evidence  against  the  insured,  and  whether 
it  bind  the  property  adjudicated  only,  or  is 
conclusive  to  every  extent  and  in  every  modifi- 
•cation  of  the  subject. 

Upon  a  question  of  such  immense  import- 
ance, either  as  it  respects  the  interests  of  com- 
merce, the  honor  of  the  nation,  the  rights  of 
JOHNSON'S  CAPES,  2.  N.  Y,  REP.,  BOOK  1. 


individuals,  or  the  principles  of  justice,  great 
and  mature  deliberation  is  requisite  and  essen- 
tial. I  know  not  any  cause  that  has  ever  been 
discussed  in  this  court  which  embraces  so 
many  objects  to  render  the  final  result  import- 
ant. Attempts  have  been  made  to  establish 
the  doctrine  of  conclusiveness;  and,  as  far  as  I 
can  comprehend  them,  they  may  be  arranged 
under  four  general  heads. 

*1.  Authorities  previous  to  the  [*4J>8 
19th  April,  1775. 

2.  Analogical    reasoning    from    domestic 
courts. 

3.  The  nature  and  meaning  of  the  contract 
of  insurance;  and, 

4.  National    considerations    of    courtesy, 
comity  and  the  like. 

The  cases  cited,  as  existing  anterior  to  the 
Revolution,  are  not  only  few,  but  are  either 
ambiguous  or  not  in  point. 

The  most  ancient  one,  reported  in  2  Shower, 
of  Hughes  v.  Cornelius,  was  an  action  of  trover 
brought  for  a  ship  sold  under  a  decree  of  a 
French  admiralty  court.  The  court  admitted 
the  sentence  to  be  true,  although  contrary  to 
the  special  verdict.  They  went  upon  the 
ground  of  the  decree's  changing  the  property, 
and  of  the  inconveniences  that  would  result  to 
merchants  if  the  court  should  unravel  the  title 
of  property  acquired  in  this  way;  and  the  rea- 
son assigned  by  Chief  Justice  M'Kean,  in  a 
case  reported  in  Dallas  ( Vasse  v.  Ball,  2  Dal- 
las, 271.  See  also  2  Dallas,  195),  seems  to  be 
conclusive.  The  idea  that  a  sentence  of  a 
court  of  admiralty  is  conclusive,  arises  from 
the  consideration  that  the  court  always  pro- 
ceeds in  rem.  The  decree  naturally  and  neces- 
sarily binds  the  subject  of  the  proceeding.  A 
ship  or  cargo,  or  any  person  purchasing  under 
the  decree,  will,  of  course,  be  secure. 

The  next  case  relied  upon  is  a  supposed  one 
of  a  Swedish  ship.  It  was  first  mentioned  by 
an  anonymous  author,  in  a  book  entitled 
"Theory  of  Evidence."  It  does  not  appear  in 
any  collection  of  reports;  and  Buller,  in  refer- 
ring to  his  authority  for  this,  mentions  the  case 
in  Shower.  It  therefore  appears  that  it  is 
confounded  with  the  case  of  the  Dutch  ship  in 
that  author. 

The  case  of  Fernandez  v.  De  Costta,  was  a 
nisi  prius  one,  and  it  expressly  states  that  the 
plaintiff  only  gave  a  partial  evidence  of  the 
vessel's  being  Portuguese;  and  all  we  can  col- 
lect from  it  is  that  the  testimony  adduced  by 
him  was  not  sufficient  to  balance  that  derived 
*from  the  foreign  adjudication.  Will  [*45J> 
it  be  believed  that  upon  this  slender  ground 
the  mighty  fabric  of  conclusiveness  is  attempt- 
ed to  be  erected  ?  For,  independent  of  decis- 
ions since  the  Revolution,  which  are  no  author- 
ity; of  arguments  from  analogy,  which  I  shall 
presently  notice;  and  of  a  few  scattered  dicta 
in  the  books,  which  do  not  bear  the  stamp  of 
judicial  authority,  there  is  nothing  whereby  to 
warrant  the  decision  of  the  court  below. 

The  arguments  derived  from  the  deference 
which  is  paid  by  the  courts  of  England  to  each 
other's  proceedings,  dp  not  apply.  They  are 
parts  of  the  same  building,  held  together  by 
one  common  arch.  They  are  under  the  same 
government,  proceed  according  to  the  same 
law,  and  redress  can  be  obtained  through 
higher  tribunals.  If  they  attempt  to  exceed 
37  577 


459 


COURT  OP  ERKOKS,  STATE  OP  NEW  YORK. 


1802- 


their  jurisdiction,  they  can  be  restrained  by  a 
superior  power,  which  has  an  interest  in  pre- 
venting any  undue  encroachments,  and  re- 
pressing any  improper  deviations.  This  is  not 
the  case  with  a  foreign  c6urt  of  admiralty.  If 
a  neutral  conceives  himself  injured,  and  is  in- 
dulged with  an  appeal,  he  must  still  continue 
in  the  court  of  the  belligerent;  and  there  is  not 
any  uniform  law  by  which  these  courts  govern 
themselves.  They  listen  more  to  instructions 
from  the  sovereign  than  to  the  injunctions  of 
the  law  of  nations.  Lord  Mansfield  admits 
that  "in  every  war,  the  belligerent  powers 
make  particular  regulations  for  themselves  ; 
and  that  no  nation  is  obliged  to  be  bound  by 
them."  (Park,  360.)  It  is  conceded  by  the 
defendants,  that  a  foreign  sentence  is  binding 
if  resting,  on  the  face  of  it,  on  such  regula- 
tions, and  yet  they  declare  that  if  founded  on 
these,  but  it  does  not  appear  to  be  so  founded, 
that  then  it  is  conclusive. 

With  respect  to  the  nature  of  the  contract 
upon  which  much  has  been  said,  I  confess  I 
do  not  perceive  the  force  of  the  reasoning 
which  attempts  to  fix  the  loss  on  the  insured. 
46O*]  *The  contract  of  insurance,  says 
Park,  being  for  the  benefit  of  the  insured,  and 
the  advancement  of  trade,  must  be  construed 
liberally,  for  the  attainment  of  those  ends. 
We  must,  therefore,  not  give  it  an  Deposition 
that  would  tend  to  embarrass  commerce,  or 
injure  the  assured;  but  adopt  such  a  construc- 
tion as  will  most  promote  the  important 
objects  in  view.  How  commerce  would  be 
affected  shall  hereafter  be  considered.  By  the 
terms  of  the  contract  the  assured  warrants  the 
property  to  be  neutral,  and  it  is  understood  to 
be  incumbent  on  him  so  to  conduct  the  vessel 
as  not  to  forfeit  her  neutrality.  If  the  vessel 
be  neutral,  in  fact,  he  fulfills  his  warranty. 
He  does  not  warrant  that  she  shall  be  so  in  the 
conception  of  foreign  courts.  It  is  not  in  the 
reach  of  human  sagacity  to  scan  the  views 
which  different  men  may  take  of  the  same 
subject,  or  the  various  motives  which  may 
produce  clashing  decisions.  Against  corrup- 
tion or  ignorance  in  judges,  perjury  in  wit- 
nesses, and  fraud  in  captors,  it  is  out  of  the 
power  of  the  assured  to  guard;  they  are  risks 
which  he  casts  upon  the  assurer,  and  which 
the  assurer  undertakes  in  consideration  of  an 
adequate  premium.  All  the  assured  is  re- 
quired to  do,  is  not  to  falsify  his  warranty.  In 
this  case  he  paid  a  war  premium  of  fifteen  per 
cent. ;  and,  the  foreign  sentence  out  of  view, 
the  special  verdict  has  verified  his  warranty. 

With  regard  to  the  comity  due  from  one 
national  tribunal  to  another,  it  appears  to  me 
that  the  compliment  is  carried  sufficiently  far 
by  considering  the  sentence  as  prima  facie 
evidence.  We  are  not  bound  to  sacrifice  the 
substantial  interests  of  our  citizens  to  etiquette 
or  courtesy.  If  a  foreign  nation  will  counte- 
nance unjust  spoliations,  if  a  foreign  judge 
will  divide  the  spoil  with  the  plunderer,  are 
we  to  countenance  the  knave  and  the  robber, 
and  declare,  with  all  possible  politeness,  "al- 
though we  are  convinced  that  an  inquiry 
would  paint  you  in  these  colors,  yet,  our  re- 
spect for  your  authority  will  prevail  over  a 
regard  for  justice,  or  the  claims  of  our  citi- 
461*]  zens,  *we  shall  silence  all  discus- 
sion; and,  although  we  know  you  both  ignor- 
578 


ant  and  corrupt,  both  oppressive  and  fraud- 
ulent, yet,  as  you  wear  the  form,  without  at- 
tending to  the  obligations  of  a  court  of  justice, 
we  shall  treat  your  decisions  with  all  imagin- 
able courtesy,  comity,  deference,  politeness 
and  respect. 

This  is  a  summary  of  the  doctrine,  stripped 
of  the  imposing  garb  which  it  has  assumed, 
and  it  can  only  be  a  question  whether  it  is 
most  deserving  of  ridicule  or  detestation. 

In  suits  brought  in  England  upon  foreign 
judgments,  between  the  same  parties,  the 
courts  consider  them  only  as  prima  facie  evi- 
dence of  the  demand,  and  admit  the  defendant, 
on  a  plea  of  nil  debet,  to  contest  the  merits  of 
the  original  cause  of  action.  If  a  foreign  judg- 
ment be  not  considered  conclusive  between  the 
same  parties,  in  cases  of  this  nature,  why 
should  the  sentence  of  a  foreign  court  of  admi- 
ralty between  third  persons?  The  Constitu- 
tion of  the  United  States  provides  that  "full 
faith  and  credit  shall  be  given  in  each  State  to- 
the  public  acts,  records,  and  judicial  proceed- 
ings of  every  other  State."  And  the  Congress 
may,  by  general  laws,  prescribe  the  manner 
in  which  such  acts,  records,  and  proceedings, 
shall  be  proved,  and  the  effect  thereof.  Is  it 
conceivable,  that  if  the  sentence  of  courts  of 
disconnected  nations  are  to  be  held  in  such 
high  veneration  by  each  other,  that  the  fram- 
ers  of  the  constitution  could  have  thought  it 
necessary  to  make  this  provision  for  sister 
States,  in  the  closest  bond  of  political  connec- 
tion. 

The  British  have  made  the  interests  of  com- 
merce a  primary  object  of  their  cares.  In  the 
discovery  and  arrangement  of  wise  plans,  and 
the  execution  of  efficacious  measures,  for  the 
attainment  of  this  important  end,  they  stand 
unrivalled  in  the  history  of  mankind.  Their 
fleets  now  traverse  every  clime  and  visit  every 
sea,  laden  with  the  riches  of  the  world;  they 
bear  in  their  hands  the  trident  of  the  ocean. 
In  the  time  of  war  they  enrich  themselves- 
with  the  plunder  of  neutrals  ;  *their  [*462 
courts  appear  everywhere,  and  condemnations 
are  conducted,  not  according  to  the  law  of 
nations,  or  the  rights  of  parties,  but  according 
to  the  instructions  from  the  sovereign  and  the 
rapacity  of  the  captors.  "Much  less,"  says 
Wooddeson  (2  Wooddes. ,  456),  '  'ought  any  of 
our  courts  to  slight  a  foreign  sentence.  Un- 
less we  give  credit  to  their  proceedings,  we 
cannot  expect  the  judgments  here  should  be 
thought  to  merit  from  them  any  reverence  or 
attention."  Here,  then,  is  an  explicit  avowal 
that  the  doctrine  is  adopted  with  a  view  to 
a  return.  But  France,  having  a  different  pol- 
icy, has  adopted  a  different  system.  (Emeri- 
gon,  457,  464.)  It  is  to  be  further  considered, 
that  Great  Britain  is  more  than  one  half  her 
time  at  war;  that  she  is  an  underwriting  nation, 
and,  therefore,  highly  interested  in  maintain- 
ing the  rule  laid  down.  Our  policy  is  entirely 
different.  Peace  is  no  less  our  interest  than 
our  duty.  Our  courts  are  not  liable  to  execu- 
tive instructions,  and,  consequently,  must  be 
governed  by  the  principles  of  justice;  not 
according  to  the  exigencies  of  the  State.  In 
establishing,  therefore,  a  rule  for  our  govern- 
ment, on  this  momentous  subject,  argumenta, 
nb  inconvenitnti  ought  to  have  great  weight. 
France  and  England  have  set  us  an  example ; 
JOHNSON'S  CASES,  2 


1802 


JOHN  C.  VANDENHEUVEL  v.  THE  UNITED  INSURANCE  COMPANY. 


462 


and,  as  the  law  of  nations  is  at  least  doubtful, 
we  are  at  liberty  to  adopt  such  a  construction 
as  shall  most  subserve,  the  solid  interests  of 
this  growing  country.  We  ought  also  to  con- 
sider that  the  object  of  insurance  is  indem- 
nity; that  instead  of  fixing  the  loss  upon  one, 
it  divides  it  among  many;  that  with  a  pacific 
nation  like  ours  a  construction  that  will  release 
the  insurer  from  war  risks  will  be  a  depriva- 
tion of  all  the  benefits  that  can  arise  from  a 
neutral  position,  and  will  expose  us  to  most  of 
the  calamities,  without  any  advantages  deriv- 
able from  a  belligerent  State. 

Even  Great  Britain,  situated  as  she  is,  has 
found  inconvenience,  in  many  respects,  from 
the  generality  of  the  rule  she  has  adopted. 
Her  courts  have,  by  recent  decisions,  attempt- 
ed to  narrow  it  into  smaller  compass.  Sev- 
eral important  exceptions  have  been  sanctioned, 
•463*]  and  *whenever  a  different  course  of 
policy  shall  be  deemed  advisable,  the  whole 
system  will  be  destroyed.  Our  court  has,  un- 
advisedly, and  in  the  first  instance,  without 
hearing  argument,  taken  that  direction;  and, 
with  the  best  intentions,  has  persevered  in  a 
doctrine  which  would  inevitably  lead  to  the 
spoliation  of  our  citizens  and  the  destruction 
of  our  commerce. 

There  is  nothing,  either  in  the  constitution 
of  the  admiralty  courts  of  European  nations, 
or  the  mode  of  proceeding  in  them,  which 
entitle  them  to  respect.  They  adopt  the  rules 
of  the  civil  law.  The  judges  hold  their  offices 
during  pleasure,  and  follow  the  instructions 
of  the  ministry.  The  captors,  who  are  inter- 
ested, are  admitted  as  witnesses,  and  the 
judges  are  paid  in  proportion  to  the  condem- 
nations. They  are  generally  composed  of 
needy  adventurers;  their  great  aim  is  plunder, 
and  their  primary  incentive  avarice. 

I  have  thus,  in  a  cursory  manner,  glanced 
at  the  principal  grounds  of  reasoning  in  the 
cause,  and  I  must  own  that  I  feel  most  deeply 
impressed  with  its  importance.  The  effects  of 
the  decision  of  this  day  will  be  felt  when  we 
are  no  more,  and  I  trust  that  it  will  receive  the 
approving  voice  of  our  consciences,  and  of  our 
country. 

MR.  GOLD,  Senator.  The  questions  that  arise 
in  this  cause  for  the  consideration  of  the  court 
are: 

1st.  Does  the  warranty  in  the  terms  of  the 
good  American  ship,  the  Astrea,  import,  in 
judgment  of  law,  American  or  neutral  property  ? 

3d.  Is  the  sentence  of  the  Vice-Admiralty  of 
Gibraltar  conclusive,  and  does  it  repel  the 
verification  of  warranty  here? 

On  the  first  preliminary  question,  however 
loose  and  indefinite  men  are  in  conversation 
upon  subjects  of  this  nature,  yet  when  the 
occasion  is  considered,  the  bearing  of  'the 
property  of  the  ship  on  the  professed  object 
464*]  *of  the  contract;  its  materiality  to  the 
risk,  and  consequent  propriety  of  an  under- 
standing on  the  point,  the  court  must,  I  appre- 
hend, consider  Mr.  Vandenheuvel  as  explain- 
ing himself  on  the  question  of  property,  and 
under  the  terms  "American  ship."  warrantingit 
neutral. 

Such,  in  my  apprehension,  is  the  plain,  fair 
and  rational  import  of  the  language  used  by 
the  assured  on  this  occasion. 
JOHNSON'S  CASES,  2. 


On  the  second  question  in  the  cause,  involv- 
ing the  legal  effect  of  the  sentences  of  foreign 
courts  of  admiralty  I  enter  with  much  diffi- 
dence, and  all  the  solicitude  which  its  exten- 
sive operation  upon  the  fortunes  of  our  fellow- 
citizens,  and  the  jurisprudence  of  our  country 
inspires.  If  our  law  is  settled  on  this  point ; 
if  the  question  is  bound  by  authority,  then  the 
law  must  have  its  course,  however  unpleasant 
the  consequences,  however  opposed  to  the 
speculations  of  the  most  enlightened  states- 
men. 

For  authority  on  the  question,  adjudged 
cases  in  that  country  from  whence  our  juris- 
prudence is  derived,  antecedently  to  our  Revo- 
lution, must  be  resorted  to. 

The  necessary  effect  of  the  sentences  of  for- 
eign courts  of  admiralty,  in  rem,  in  changing 
the  property  in  the  subject  matter,  in  case  of 
condemnation,  is  readily  evinced,  both  in 
point  of  reason  and  authority.  To  this  the 
case  of  Hughes  v.  Cornelius  (2  Shower,  232), 
strengthened  by  some  other  cases,  bears  strong 
testimony;  in  this  the  jurisdiction  of  all  courts 
of  admiralty,  and  the  peace  of  all  civilized 
nations,  are  essentially  concerned. 

But  the  reason  for  extending  those  sentences 
beyond  the  attainment  of  the  above  objects  to 
control  the  stipulations  of  parties  in  a  policy 
of  insurance,  are  not  equally  cogent ;  the  ne- 
cessity not  equally  apparent. 

For  authority  to  support  this  application  of 
admiralty  sentences  are  cited  Buller's  N.  P., 
244;  Theory  of  Evidence,  37;  and  the  case  of 
Fernandez  v.  De  Costa  (Park,  177.)  In  the 
two  first  books,  the  rule  to  the  above  extent  is 
laid  down  in  nearly  the  same  words ;  in  plain 
and  unequivocal  terms  ;  but  no  case  is  cited  in 
the  Theory  *of  Evidence,  in  support  [*465 
of  the  doctrine,  and  in  Buller,  the  case  relied 
on  is  that  of  Hughes  v.  Cornelius;  which,  al- 
though containing  observations  of  the  court  of 
a  very  general  and  unqualified  nature,  yet,  in 
the  point  adjudged,  does  not  warrant  the  rule 
as  there  laid  down. 

The  case  of  Fernandes  v.  De  Costa  is  apposite 
to  the  question  before  the  court,  and  merits  all 
that  respect  which  is  due  to  a  NwPrius  decision 
of  one  of  the  greatest  judges  that  ever  sat  in 
Westminister  Hall.  The  name  of  Judge  Buller 
must  be  considered  also  as  adding  some  au- 
thority to  the  rule  by  him  laid  down,  though 
supported  by  no  adjudged  case  there  cited. 

No  adjucations  at  bar,  no  elaborate  discus- 
sions appear  to  have  taken  place  on  the  ques- 
tion. On  this  foundation,  in  point  of  author- 
ity, stands  the  doctrine  contended  for  by  the 
defendants  in  error ;  and  we  are  now  called 
upon  to  say,  whether  the  question  is  so  bound 
down  by  authority  as  to  be  deemed  at  rest,  and 
to  repel  a  consideration  of  its  merits. 

After  much  reflection  on  the  point,  in  every 
view  I  have  been  able  to  place  it,  I  am  not 
satisfied  that  the  law  on  the  subject  was  settled 
at  the  period  of  our  Revolution.  In  pursuing 
the  history  of  law  principles,  in  retracing  adju- 
dications, and  collecting  cases  upon  questions 
long  agitated  in  courts,  we  find  early  cases 
often  overruled;  first  opinions  disregarded  and 
reversed,  and  important  questions  finally  set- 
tled in  opposition  to  greater  authority  of  prec- 
edent than  what  is  to  be  found  on  the  ques- 
tion before  the  court. 

579 


465 


COURT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1802 


Such  is  the  result  presented  by  a  perusal  of 
English  reporters. 

But  general  principles  are  resorted  to  in  sup- 
port of  the  definitive  effect  of  admiralty  sen- 
tences, and  domestic  judgments  are  adduced 
for  illustration. 

In  the  principles  of  sovereignty,  in  the  su- 
perior integrity  and  responsibility  of  domestic 
judges,  their  exemption  from  the  influence  of 
466*]  policy,  from  the  dominion  of  *passions 
hostile  to  the  administration  of  justice,  too 
often  excited  in  belligerent  nations,  in  the 
prevalence  of  the  salutary  maxim  of  municipal 
origin,  ut  sit  finis  litium,  will  be  found  rea- 
sons, I  apprehend,  for  superior  confidence  in 
domestic  tribunals. 

The  case  of  Walker  v.  Witter  (Doug.,  5)  is 
strong  to  show  the  difference  between  domestic 
and  foreign  judgments;  the  incontrollable  ver- 
ity predicated  of  the  former  is  withheld  from 
the  latter,  which  are  there  holden  to  be  exam- 
inable.  Nor  is  the  effect  of  this  authority  re- 
pelled by  the  argument  that  a  court  resorted 
to  to  carry  into  effect  a  foreign  judgment,  ought 
to  be  satisfied  of  its  justice;  the  application  is 
for  justice,  and  not  favor,  and  the  court  thus 
resorted  to  is  bound  by  constitutional  princi- 
ples not  to  delay  that  justice;  besides,  the  same 
principle  will  apply  to  the  case  before  the 
court. 

The  case  of  Gage  v.  Bulkley,  in  Ridgway. 
and  Burrows  v.  Jemino,  in  Strange,  are  not 
considered  as  bearing  on  the  question ;  they 
rested  on  a  different  principle,  that  of  the  lex 
loci  contractus.  The  qualified  manner  in  which 
admiralty  sentences  are  now  received  in  Eng- 
land ;  their  different  operation  as  to  the  fact 
and  the  law,  serve  to  mark  a  wide  distinc- 
tion between  those  sentences  and  domestic 
judgments. 

If  the  reason  assigned  for  an  admiralty  de- 
cision do  not, when  tested  by  the  law  of  nations, 
bear  out  the  conclusion,  the  sentence  is  reject- 
ed ;  if  the  reasons  are  aasigned  in  an  obscure 
and  unintelligible  manner,  as  to  the  point  de- 
cided, the  result  is  the  same ;  but  if  the  judge 
should  have  no  reasons,  or,  by  casualty,  omit 
to  put  them  on  the  record,  then  the  sentence 
becomes  conclusive,  and  repels  all  examination. 

Why  a  sentence  founded  on  error  as  to  facts 
should  be  more  conclusive  than  one  founded 
on  error  in  law,  is  difficult  to  conceive.  That 
the  mode  of  admiralty  trial  is  more  favorable 
to  the  investigation  of  truth  than  that  provided 
by  our  common  law,  is  not,  I  apprehend, 
467*]  *evinced  by  experience,  nor  do  the 
opinions  of  some  very  eminent  writers  war- 
rant any  such  conclusion. 

To  sentences  standing  on  such  grounds  my 
mind  is  not  yet  reconciled  to  yield  that  control- 
ling effect  now  contended  for.  Nothing  short 
of  the  law  being  made  out  in  the  clearest  and 
most  satisfactory  manner  can,  in  my  apprehen- 
sion, justify  the  reception  of  those  sentences, 
upon  the  broad  ground  now  urged  upon  the 
court. 

There  is  another  ground  remaining  to  be 
considered,  on  which  it  is  with  some  difficulty 
I  have  been  able  to  form  an  opinion. 

The  position  of  the  insurer  is,  that  the  in- 
sured, on  entering  into  the  policy,  well  knows 
the  tribunal  of  the  captors  to  be  the  prize  fo- 
rum ;  that  a  consideration  of  neutrality  is  es- 

580 


sential  to  the  determination  ;  and  therefore,  by 
the  terms  of  his  contract,  assents  to  this  test 
of  his  warrantry.  If  the  law  giving  a  conclu- 
sive effect  to  admiralty  sentences  is  to  be  deem- 
ed settled,  then  would  the  above  conclusion 
correctly  follow  ;  then  would  the  assured  be 
presumed  to  know  that  law,  and  to  assent  by 
his  contract  to  all  its  consequences  ;  but,  upon 
any  other  ground,  he  may  with  equal  reason 
be  presumed  to  assent  to  a  limited  operation  of 
these  sentences,  as  prima  facie,  or  presumptive 
evidence,  reserving  to  himself  a  right,  and  tak- 
ing upon  himself  the  burden  of  disproving  the 
same,  and  verifying  his  warranty.  Such  must 
be  the  conclusion  of  the  assured  in  France. 

A  mind  conscious  of  the  truth  of  the  repre- 
sentation in  the  policy,  would  with  difficulty 
be  caried  to  the  conclusion  that  although  the 
property  insured  be,  in  fact,  neutral,  yet  if 
condemned  it  must  therefore  be  deemed 
enemy's.  Where  the  property,  in  fact,  is  neu- 
tral, and  in  such  case  only"  will  the  above 
opinion  operate  ;  it  is  not  to*  be  presumed  that 
the  assured  calculates  on  the  event  of  a  con- 
demnation. In  the  various  cases  of  loss  by 
any  of  the  perils  insured  against  the  falsifica- 
tion of  the  warranty  is  equally  fatal  to  a  re- 
covery by  the  assured,  *though  no  [*468 
foreign  admiralty  may  have  passed  upon  the 
question. 

Such  are  the  grounds  on  which  my  opinion 
on  this  important  question  is  formed.  I  will 
only  add  that  it  is  with  no  small  diffidence  I 
submit  an  opinion  for  the  reversal  of  the  judg- 
ment of  a  court,  possessing,  in  so  eminent  a 
degree,  the  high  respect  and  confidence  of  the 
community. 

The  majority  of  the  court  being  of  the  same 
opinion,  it  was  thereupon  ordered  and  adjudg- 
ed, that  the  plaintiff  in  error  recover,  as  for 
a  total  loss,  the  amount  found  by  the  jury  in 
the  special  verdict,  with  interests  and  costs, 
and  that  the  judgment  of  the  Supreme  Court 
be  reversed,  and  the  record  remitted,  &c. 

Judgment  of  reversal.1 

Reversing — Ante,  127. 
S.  C.,  2  Cai.  Cos.,  217. 

Cited  in— 3  Johns.  Cas.,  133;  9  Johns.,  282;  2  Cow., 
66,  342 ;  2  Wend.,  69. 

1. — Since  the  decision  of  the  above  cause,  several 
cases  have  arisen  in  the  courts  of  Great  Britain  and 
of  the  United  States,  in  which  the  question  as  to  the 
effect  and  conclusiveness  of  the  sentences  of  foreign 
courts  of  admiralty  has  been  variously  considered 
and  determined.  See  Marshall  on  Insurance  2d  ed., 
p.  420,  436;  Park  on  Insurance,  6th  ed.,  p.  463,  497. 
And  see  Geyersv.  Aguilar,  7  Term  Rep  681 ;  Christie 
v.  Secretan,  8  Term  Rep.,  192 ;  Garrells  v.  Kensing- 
ton, 8  Term  Rep.,  230 ;  Pollard  v.  Bell,  8  Term  Rep., 
441 ;  Bird  v.  Appleton,  8  Term  Rep.,  562;  Price  v.  Bell, 
1  East's  Rep.,  663;  Oddy  v.  Bovii,  2  East's  Rep.,  473 ; 
Baring  v.  Clagget,  3  Bos.  &  Pull.,  201 ;  Lothian  v. 
Henderson,  3  Bos.  &  Pull,  499 ;  Bolton  v.  Gladstone, 
5  East,  155;  Baring  v.  Christie,  5  East,  398;  Baring  v. 
Royal  Ex.  As.,  5  East,  99 ;  Fisher  v.  Ogle,  1  Campb. 
N.  P.  Cases,  418 ;  Donaldson  v.  Thompson,  1  Campb. 
.ZV.  P.  Cases,  429 ;  Kindersly  et  al.,  \.  Chace  et  al.,  in 
Park,  486,  and  Marshall,  423. 

The  result  of  the  decisions  in  the  English  court 
seems  to  be  that  where  property  is  warranted  neu- 
tral, and  the  court  of  the  belligerent  country  con- 
demns it  as  belonging  to  an  enemy,  the  sentence, 
however  absurd,  is  conclusive  evidence  that  the 
warranty  is  false ;  but  where  the  belligerent  country 
condemns  as  prize,  without  adverting  to  the  question 
of  neutrality  at  all,  it  does  not  operate  on  the  truth 
or  falsehood  of  the  warranty,  or  a  fact  asserted  in 
the  policy  of  insurance. 

JOHNSON'S  CASKS,  2. 


4O9*]  *ANDREW  VOS  AND  JOHN  B. 
GRAVES,  Plaintiffs  in  Error, 

v. 
THE  UNITED  INSURANCE  COMPANY, 

Defendants  in  Ki-ror. 

Marine  Insurance  —  Blockade. 

Sailing:  for  a  port  understood  to  be  blockaded  is 
not  a  breach  of  neutrality,  so  as  to  effect  the  war-  I 
ranty  in  a  policy  of  insurance. 


1802      ANDREW  Vos,  AND  JOHN  B.  GRAVES,  v.  THE  UNITED  INSURANCE  COMPANY.      469 

squadron,  and  attempting  to  pass  it.  Such  a 
construction  would  open  a  door  for  innu- 
merable frauds,  and  expose  belligerents  to  be 
deprived  of  all  the  material  advantages  of  a 
blockade. 

The  most  rational  doctrine  on  the  subject,  I 
take  to  be,  that  forfeiture  shall  attach  in  every 
case,  as  for  a  breach  of  blockade,  when  a  vessel 
is  sailing  for  a  blockaded  port,  with  a  notice  of 
the  blockade,  unless  the  master  proves  express- 
ly thai  he  had  no  design,  either  to  break  the 
blockade  or  fraudulently  to  elude  the  blockad- 
ing squadron.  In  the  case  before  us  there  is 
no  such  evidence,  and  therefore  no  such  deduc- 
tion can  fairly  be  made  in  favor  of  the  plaint- 
iffs. 

I  lay  out  of  the  case  our  treaty  with  Great 
Britain,  and  the  information  given  to  th»  master 
at  Cuxhaven,  relative  to  turning  vessels  back 
for  the  first  attempt  to  enter  the  blockaded 
port,  without  seizure. 

The  first  is  only  applicable  in  cases  where 
the  master  has  no  previous  notice  of  the  block- 
ade, but  cannot  exempt  him  from  the  pen- 
alty annexed  to  a  breach  of  the  blockade,  with 
full  notice. 

The  second  does  not  extend  protection  to 
vessels  the  masters  of  which,  with  their  eyes 
open,  approach  the  line  of  blockade  for  the 
purpose  of  breaking  it.  Besides,  if  *the  [*472 
blockading  squadron  had,  from  motives  of 
courtesy  to  neutrals,  adopted  such  a  practice, 
I  take  it  the  master  of  the  plaintiff's  vessel  had 
no  right  to  run  the  risk  of  that  courtesy  being 
denied  to  him,  at  the  expense  of  the  insurers. 
The  risk  he  assumed  was  his  own  voluntary 
act,  for  which  he  is  accountable  to  his  employ- 
ers, but  which  can  attach  no  responsibility  to 
the  defendants. 

With  respect  to  the  second  question,  I  am 
equally  clear  that  according  to  the  sound  con- 
struction of  the  policy  the  defendants  are  not 
liable  for  the  risk  incurred  beyond  Hamburg. 

The  plain  language  of  the  contract  and 
memorandum  is,  that  the  insurance,  for  the 
additional  premium  of  two  and  one  half  per 
cent. ,  was  on  a  voyage  from  New  York  to  Am- 
sterdam, by  the  way  of  Hamburg,  for  the 
purpose  of  ascertaining  the  fact  whether  Am- 
sterdam was  blockaded.  If  it  was,  it  would 
be  dangerous  to  proceed  to  Amsterdam,  and  in 
that  event  the  voyage  was  to  terminate  at 
Hamburg,  and  the  additional  premium  to  be 
returned  to  the  plaintiffs.  To  suppose  that  the 
insurers  meant  to  insure  against  the  risk  of 
entering  a  blockaded  port,  is  to  bottom  the 


cause  came  before  the  court  on  a  writ 
-L  of  error  from  the  Supreme  Court.  For 
the  facts  in  the  cause,  and  the  opinion  of  the 
court,  see  ante,  pp.  180-191. 

47O*]  *MR.  VAN  VECHTEN,  Senator.  Two 
questions  present  themselves  to  my  mind,  as 
material  for  our  consideration  in  the  present 
case. 

1.  Whether  the  master  of   the  plaintiffs' 
vessel  has  made  such  an  attempt  to  break  a 
blockade    as  to   forfeit  their  natural    rights  ;  j 
and, 

2.  Whether,  admitting  that  he  has  not  in-  : 
curred  such  a  forfeiture,  the  defendants  are,  j 
under  all  the  circumstances  of  this  case,  liable  j 
for  any  risk  incurred  beyond  the  voyage  to 
Hamburg. 

With  respect  to  the  first  question,  it  appears 
to  be  the  undisputed  law  of  nations,  that  a 
breach  of  blockade  works  a  forfeiture  of  vessel 
and  cargo. 

The  precise  point  in  the  present  case  is, 
whether  there  was  a  breach  of  the  blockade. 
471*]     *There  is  no  room  for  doubt,  that  the 
vessel  sailed  from  Cuxhaven  with  an  intent  to 
enter  Amsterdam;  and  it  seems  to  be  conceded 
on  all  sides  that  the  master  knew  of  the  invest-  j 
ment  of  that  port  when  he  set  out.     The  intent  I 
was  certainly  an  unlawful  one,  and  the  act  of  j 
sailing,  to  carry  it  into  effect,  must  be  consid- 
ered as  an  overt  act  towards  the  execution.     If 
so,  the  vessel  was  captured  in  the  prosecution 
of  an  unlawful  effort  to  break  the  blockade. 
This  unlawful  procedure  on  the  part  of  the 
master  was  at  least  an  invitation  to  capture, 
and  does  not  entitle  the  plaintiffs  to  the  aid  of 
favorable  presumptions  against  the  insurers. 

But  I  cannot  stop  here.  The  breach  of  a 
blockade,  in  my  opinion,  does  not  consist  mere- 
ly in  coming  to  the  line  of  the  blockading 

See  another  report  of  above  case  Vos  v.  United 
Ins.  Co.,  and  note,  1  Caines'  Cas.,  7. 


How  reluctantly  this  doctrine,  as  to  the  conclus- 
iveness  of  foi-eign  sentences  has  been  acquiesced  in 
by  some  of  the  judges  of  the  English  courts,  may  be 
seen  from  the  expressions  of  Lord  Ellenborough,  in 
the  cases  of  Fisher  v.  Ogle,  and  Donaldson  v. 
Thompson,  where  he  says,  "it  is  by  an  overstrain- 
ed comity  that  these  sentences  are  received  as  con- 
clusive evidence  of  the  facts  which  they  positively 
aver,  and  upon  which  they  specifically  profess  to 
be  founded. 

"I  am  by  no  means  disposed  to  extend  the  comity 
which  has  been  showed  to  these  sentences  of  for- 
eign admiralty  courts.  I  shall  die,  like  Lord 
Thurlow,  in  the  belief  that  they  ought  never  to 
have  been  admitted.  The  doctrine  in  their  favor 
rests  upon  an  authority  in  Shower,  vol.  II.,  p.  233, 
Hughes  v.  Cornelius,  which  does  not  fully  support 
it,  and  the  practice  of  receiving  them  often  leads, 
in  its  consequences,  to  the  greatest  injustice."  In 
a  gazette  report  of  the  case  of  Donaldson  v.  Thomp- 

JOHNBON'S  CASES,  2. 


son,  Lord  Ellenborough  is  stated  to  have  said, 
that  he  should  always  hold  the  authorities  of  for- 
eign courts  to  condemn  ships  as  prize  to  the  ut- 
most strictness  of  proof,  when  offered  as  evidence 
to  affect  the  rights  of  third  parties,  in  a  court  of 
justice  of  this  country ;  that  there  were  some  of  the 
most  enlightened  minds  in  the  country  who 
thought  that  these  sentences  of  foreign  courts  ought 
never  to  be  received  in  evidence  at  all  on  such  oc- 
casions ;  that  Lord  Thurlow  never  met  him  with- 
out saying  so ;  his  mind  was  full  upon  it ;  he  said 
it  was  an  anomaly  in  the  law,  and  ought  never  to 
have  been  allowed  to  have  crept  into  it ;  and  that 
he  agreed  with  Lord  Thurlow  upon  that  subject, 
and  he  should  die  in  the  faitli ;  but  the  usage  of 
nations,  perhaps,  required,  certainly  authority 
had  decided,  that  these  sentences  should  be  receiv- 
ed in  evidence,  and  be  conclusive  on  all  things  on 
which  they  opei-ated ;  a  doctrine,  to  give  way  to 
which,  was  sufficiently  pirLuful  iu  many  instances, 

6S1 


472 


COURT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1802 


contract  on  an  unlawful  basis,  because  the 
very  intent  thereof,  in  that  case,  must  have 
been  to  indemnify  the  plaintiffs  for  the  loss  in- 
cident to  a  violation  of  the  law  of  nations.  If 
so,  the  contract  would  be  absolutely  void. 

But  the  supposition  that  such  was  the  mean- 
ing of  the  contract,  is  repelled  by  the  precau- 
tions used  by  the  plaintiffs  themselves.  If  the 
defendants  had  assumed  the  risk  of  proceed- 
ing to  Amsterdam,  when  in  a  state  of  blockade, 
why  did  the  plaintiffs  agree  to  pay  an  addi- 
tional premium  for  first  going  to  Hamburg  to 
ascertain  the  danger  arising  from  the  reality  of 
the  blockade?  For  that  was  the  danger  to  which 
they  expressly  referred.  Why  stipulate  that 
the  risk  should  end  at  Hamburg,  in  case  it 
should  be  found  dangerous  to  proceed  farther? 
473*]  *These  precautions  evince,  to  my 
complete  satisfaction,  that  it  was  neither  under- 
stood nor  intended  between  the  parties,  at  the 
formation  of  their  contract,  that  the  defend- 
ants should  incur  any  risk  beyond  Hamburg, 
if  it  was  there  ascertained  that  Amsterdam  was 
blockaded. 

I  am  therefore  of  opinion  upon  the  second 
question,  that  the  capture  of  the  plaintiffs'  ves- 
sel and  cargo,  on  the  way  from  Hamburg  to 
Amsterdam,  while  the  latter  port  was  in  a  state 
of  blockade,  was  a  peril  not  within  the  policy. 

The  result  is,  that  according  to  my  opinion, 
the  judgment  of  the  Supreme  Court  must  be 
affirmed,  but  so  modified  that  the  additional 
premium  of  two  and  one  half  per  cent,  be  re- 
turned to  the  plaintiffs. 

MR.  GOLD,  Senator.  The  question  in  this 
cause,  is,  whether  the  sailing  of  the  brig  Col- 
umbia from  Cuxhaven,  with  a  destination  for 
Amsterdam,  and  an  understanding  that  it  was 
blockaded,  is  a  breach  of  the  blockade,  and  a 
legal  cause  of  capture  and  condemnation?  The 
question  may  be  qualified,  perhaps,  with  the 
addition  of  an  intention  to  enter  the  Texel,  in 
the  event  only  of  the  blockading  squadron 
being  blown  off  the  coast,  so  as  to  leave  the 
port,  in  fact,  open  for  entrance.  There  is 
nothing  in  the  verdict,  or  the  assumption  of 
facts  by  Sir  William  Scott,  as  the  grounds  of 
his  determination,  to  warrant  the  conclusion 
of  an  attempt  to  break  the  blockade,  any 


further  than  the  same  is  supported  by  proof  of 
a  sailing  from  Cuxhaven  for  Amsterdam. 
Upon  fundamental  principles  on  which  our 
municipal  code  of  criminal  law  is  established, 
mere  intention,  with  some  very  peculiar  excep- 
tions, is  not  made  the  subject  of  judicial  ani- 
madversion. That  the  moral  law,  which  ar- 
raigns intention,  should  be  adopted  in  the  law 
of  nations  with  a  greater  latitude  than  in  our 
municipal  system,  is  a  subject  of  some  sur- 
prise, especially  when  the  application  is  for 
the  benefit  of  *belligerents,  and  to  the  [*474 
prejudice  of  neutrals.  In  intention,  there  is 
nothing  certain  and  permanent ;  it  is  controlled 
by  every  reflection  ;  it  is  changed,  dropped, 
and  renewed,  by  the  occurrences  of  every 
hour ;  by  the  constant  vicissitudes  to  which 
the  agent  is  subject.  The  enterprise,  on  a 
nearer  view,  appals:  the  locus  pertitentioR  is  em- 
braced. If  there  is  an  anticipation  of  the 
undertaking,  by  advances  towards  the  theatre 
of  action  (as  the  sailing  from  Cuxhaven  in 
this  instance),  how  wide  a  space  yet  intervenes! 
To  the  dominion  of  how  many  various  causes 
is  the  intention  subject,  before  the  act  could 
be  completed !  The  information  of  every  hour 
may  change  the  destination;  the  receipt  of 
counter  instructions  from  the  owner  may 
arrest  further  progress ;  the  perils  of  the  sea 
may  overwhelm  ;  the  information  received  at 
Cuxhaven  that  induced  the  sailing,  may  be 
contradicted;  and,  lastly,  before  the  vessel  may 
arrive  on  the  line  of  investment,  the  blockade 
may  be,  by  instructions  from  the  admiralty, 
withdrawn,  or  raised.  The  rule  that  the  sail- 
ing with  a  destination  for  a  blockaded  port  is 
a  breach  of  blockade,  as  urged  upon  the  court, 
is  undefinable  in  relation  to  distance  between 
the  port  of  departure  and  that  of  destination, 
and  will  produce  great  uncertainty  and  vexa- 
tion. Nothing  is  to  be  found  in  the  verdict  or 
facts  stated,  or  assumed  in  the  sentence  of  the 
admiralty,  from  which  to  infer  the  progress  of 
the  Columbia  from  Cuxhaven  to  the  Texel ; 
Sir  William  Scott  meets  her  at  the  threshold, 
at  the  port  of  departure,  and  pronounces  the 
sailing  with  an  intention  of  evading  the  block- 
ade, to  constitute  the  offense.  These  are  his 
words.  It  is  fairly  presumable  that  the  ground 
thus  taken  by  the  judge  corresponded  with  the 


but  he  should  never  consent  to  extend  it  an  iota 
beyond  the  letter. 

In  Vasse  v.  Ball,  2  Dall.,  270,  decided  in  the  Supreme 
Court  of  Pennsylvania,  in  1797,  where  the  property 
was  warranted  neutral,  and  the  libel  stated  several 
jrrounds  of  forfeiture,  and  the  sentence  of  condem- 
nation was  general,  without  specifying  any  particu- 
lar cause  of  forfeiture,  the  court  held  that  the  as- 
sured, notwithstanding1  the  sentence,  might  show 
that  the  property  was  American. 

In  the  case  of  Dempsey,  Assignee  of  Brown,  v. 
The  Insurance  Company  of  Pennsylvania,  decided  in 
the  High  Court  of  Errors  and  Appeals,  in  the  State 
of  Pennsylvania  (in  1808),  it  was  held,  after  two  ar- 
guments,that  the  sentence  of  a  foreign  court  of  ad- 
miralty was  conclusive,  not  only  as  to  its  direct 
effects,  but  also  as  to  the  facts  directly  decided  by 
it ;  Judges  Rush,  Roberts.Hamilton,  Young  and  Wil- 
son, in  the  affirmative,  Judge  Cooper  contra.  1  Binn. 
Kep.,  299  n.  See  also,  Colhoun  v.  Ins.  Co.  of  Penn- 
sylvania, 1  Binn.  Hep.,  293 ;  and  Galbraith  v.  Gracie, 
in  the  Circuit  Court  of  the  United  States.  (1  Binn. 
Rep.,  293,  note.) 

The  Legislature  of  Pennsylvania,  by  an  Act  of  the 
29th  March,  1809,  declared  that  no  sentence  of  any 
^foreign)  court,  having  or  exercising  jurisdiction  of 
prize,  shall  be  conclusive  evidence  in  any  case,  of 
any  fact,  matter  or  thing,  therein  contained,  except 

582 


of  the  acts  of  such  court ;  provided,  that  nothing 
in  the  act  shall  be  construed  to  impair  or  destroy  the 
legal  effects  of  such  sentence  on  the  property  affect- 
ed, or  intended  to  be  effected,  thereby,  &c. 

In  the  case  of  Rose  v.  Himely,  4  Cranch's  Rep., 
241.  the  Supreme  Court  of  the  tfnited  States  decid- 
ed that  a  sentence  of  condemnation  by  a  competent 
court,  having  jurisdiction  over  the  subject  matter 
of  its  judgment,  is  conclusive  as  to  the  title  of  the 
thing  claimed  under  it.  Chace,  J.,  and  Livingston, 


(February,  1808)  held  that  the  sentence  of  a  foreign 
court  of  admiralty,  condemning  a  vessel  for  breach 
of  a  blockade,  was  conclusive  evidence  of  that  fact, 
as  between  the  insurer  and  the  insured.  Marshall, 
Ch.  J.,  Gushing,  J.,  Washington,  J.,  and  Johnson,  J., 
in  the  affirmative.  Chase,  J.,  and  Livingston  J., 
contra.  Todd,  J.,  not  having  heard  the  argument, 
gave  no  opinion.  Washington,  J.,  and  Johnson,  J., 
were  the  only  judges  who  appear  to  have  stated  the 
reasons  for  their  opinions.  See  also,  Fitasimmons 
v.  Newport  Ins.  Co.  (4  Dallas.  1*5.) 

The  same  question  was  lately  brought  before  the 
Supreme  Court  of  Massachusetts ;  but  the  result  is 
not  known. 

JOHNSON'S  CASES,  2. 


1802 


PHILIP  URBIN  DUGUET  v.  FREDERICK  RHINELANDER  ET  AL. 


474 


proof,  and  was  as  broad  as  the  evidence  would 
justify.  The  record  in  the  cause  presents  no 
fact  to  warrant  a  contrary  conclusion.  No  in- 
ference is  to  be  made  from  the  plaintiffs'  com- 
munication by  letter,  of  the  27th  June,  that 
the  defendants  consented  to  an  attempt  to  enter 
a  blockaded  port,  as  that  letter  closes  with  the 
475*]  observation  *that  the  blockade  might 
probably  be  withdrawn  before  the  arrival  of 
the  vessel.  Therefore,  quite  the  contrary  is 
rather  to  be  supposed.  It  is  unnecessary  to 
give  an  opinion  on  the  case  of  an  actual  at- 
tempt to  enter  a  port,  during  the  interruption 
of  the  blockade,  by  reason  of  the  blockading 
squadron  being  blown  off;  as,  in  this  case,  no 
such  attempt  was  made,  nor  is  the  fleet  found 
to  have  been  so  blown  off.  I  am  therefore  of 
•opinion  that  there  is  no  authority  or  precedent 
binding  on  this  court  to  warrant  the  rule 
adopted  by  the  admiralty  sentence  in  this  cause; 
that  such  rule  is  opposed  to  essential  principles, 
uncertain  in  its  application,  and  highly  vexa- 
tious to  neutrals;  that  the  principle  of  the  late 
treaty  between  England  and  Russia  is  more 
propitious  to  the  interests  of  commerce,  and 
sufficiently  favorable  to  the  rights  of  belliger- 
ents, and  merits  high  respect  from  all  neutral 
powers;  and  that,  therefore,  the  judgment  be- 
low ought  to  be  reversed. 

The  majority  of  the  court  being  of  this  opin- 
ion, it  was  thereupon  ordered  and  adjudged 
that  the  judgment  of  the  Supreme  Court  be 
reversed,  and  the  record  remitted,  &c. 

Judgment  of  reversal. l 

S.  C.,  1  Cal.  Gas.,  T. 
Reversing — Ante,  180. 
Cited  in— 7  Johns.,  53. 


476*]   *PHILIP  URBIN  DUGUET, 

Plaintiff  in  Error, 

FREDERICK  HHINELANDER  ET  AL., 

Defendants  in  Error. 

Marine  Insurance — Alien  Imigrant — Flagrante 
Bello  —  Naturalized —  Warranty  —  Neutral 
Property — Disclosure. 

Where  a  subject  of  a  belligerent  State  emigrates 
to  this  country,  flagrante  belto,  and  becomes  natu- 
ralized, such  naturalization  will  support  a  warranty 
of  neutral  property  in  a  policy  of  insurance ;  and 
the  assured  need  not  disclose  to  the  insurer  the 
time  of  his  emigration. 

Citations— Vattel,  bk.  1,  ch.  19,  sec.  220  to  233 ;  bk. 
2,  ch.  27 ;  1  Johns.  Cas.,  363. 

THIS  cause  was  brought  before  the  court  by 
writ  of  error  from  the  Supreme  Court. 
For  the  facts  in  the  cause,  and  the  opinion  of 
the  court  below,  see  1  Johns.  Cas.,  360. 

1.— See  Williams  v.  Smith,  2  Caines's  Rep.,  1 ;  Lio- 
tard  and  Others  v.  Graves,  3  Caines's  Rep.,  226; 
Schmidt  v.  The  United  States  Ins.  Co.,  1  Johns.  Rep., 
249 ;  Suydam  and  Wyckoff  v.  The  Marine  Ins.  Co.,  2 
Johns.  Rep.,  138;  Calhoun  v.  Ins.  Co.  of  Pennsyl- 
vania, 1  Binn.  Rep.,  293,  305 ;  Pitzsimmons  v.  New- 
port Ins.  Co.,  4  Cranch's  Rep.,  185. 

See  another  report  of  the  above  case,  Duguet  v. 
Rhinelander,  and  note,  1  Caines  Cas.,  25. 

-JOHNSON'S  CASES,  2. 


MR.  VAN  VECHTEN,  Senator.  The  ques- 
tions for  our  consideration  are: 

1.  Whether    the  plaintiff's  emigration  and 
naturalization  here,  flagrante  betto,  entitled  him 
to  the  national  character  and  protection  of  an 
American  citizen  in  relation  to  an  enemy  of 
France;  and, 

2.  Whether  the  circumstances  of  his  emi- 
gration and  naturalization  did  not  materially 
increase  the  risk  of  the  insurers,  and  therefore 
ought  to  have  been  disclosed  to  them? 

With  respect  to  the  first  question,  it  appears 
to  me  to  be  the  settled  doctrine  of  the  most  ap- 
proved writers  on  the  law  of  nations,  that  emi- 
gration in  time  of  war  does  not  change  the 
character  of  the  emigrant  in  relation  to  the 
parties  at  war.  (Vattel,  bk.  1,  ch.  19,  sec.  220 
to  223  ;  bk.  2,  ch.  27.)  By  the  declaration  of 
war  he  becomes  a  party  to  the  contest  between 
his  government  and  the  enemy.  This  situa- 
tion attaches  to  it  certain  duties  and  responsi- 
bilities, from  which  he  cannot  by  his  own  mere 
act  absolve  himself. 

A  contrary  doctrine  would  be  inconsistent 
with  the  soundest  maxims  of  national  policy, 
because  it  would  encourage  mercantile  men, 
at  the  commencement  of  every  war,  to  change 
their  residence  and  character,  in  order  to  ex- 
empt themselves  from  the  burdens  and  losses 
which  are  incident  to  a  state  of  war. 

*I  therefore  concur  in  the  opinion  of  [*477 
the  Supreme  Court,  that  the  plaintiff's  emigra- 
tion and  naturalization,  flagrante  betto,  cannot, 
with  respect  to  Great  Britain,  entitle  him  to 
the  rights  of  an  American  citizen. 

But,  independent  of  this  question,  I  take  it 
that  this  court  has  settled  a  principle  in  the 
case  of  Arnold  &  Ramsay  v.  The  United  In- 
surance Company  (1  Johns.  Cas.,  363),  which  is 
equally  decisive  against  the  plaintiff  upon  the 
second  question. 

In  that  case  the  property  captured  was  also 
warranted  to  be  American;  but  because  Haw- 
ley,  one  of  the  partners,  was  resident  and  en- 
gaged in  trade  within  the  Spanish  dominions, 
although  an  American  in  fact,  it  was  held,  that 
his  national  character  was  thereby  rendered  so 
far  questionable  in  relation  to  the  belligerents 
as  to  render  the  disclosure  of  those  circum- 
stances necessary  to  render  the  policy  valid. 

In  the  present  case,  the  emigration  of  the 
plaintiff,  flagrante  betto,  placed  his  national 
character,  with  respect  to  the  enemies  of 
France,  in  a  questionable  and  suspicious  light, 
and  thereby  the  risk  of  the  capture  of  his  prop- 
erty at  sea  was  materially  increased.  This 
circumstance  was  therefore  necessary  to  be  dis- 
closed to  the  insurers,  and  the  omission  to  dis- 
close it  avoided  the  policy. 

The  conclusion  upon  both  questions,  in  my 
opinion,  is,  that  the  judgment  of  the  Supreme 
Court  ought  to  be  affirmed.  . 

MR.  GOLD,  Senator.  The  first  question 
arising  from  the  consideration  of  the  court  in 
this  cause  is,  whether  the  plaintiff  has  verified 
his  warranty  of  American  property  in  the 
goods  insured.  The  determination  of  this 
point  involves  the  important  question  whether 
the  plaintiff  is  to  be  deemed,  for  the  pur- 
poses of  commerce,  an  American  citizen. 
On  this  question,  while  the  claims  of  a  State 
upon  its  citizens,  when  surrounded  and 
pressed  by  its  enemies,  are  recognized  ;  while 

583 


478 


COURT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1803-- 


478*1  the  course  to  which  duty  *prompts 
is  plain  and  readily  perceived ;  yet  so  dif- 
ferent are  the  circumstances  of  different 
States,  so  various  their  policy,  that  the  right 
of  citizens  to  emigrate  during  war  must,  so 
far  as  respects  the  parent  State,  depend  on  the 
particular  ordinances  of  each  individual  com- 
munity. What  might  not  be  inconsistent  with 
good  policy  in  a  State  possessed  of  an  over- 
flowing population  and  but  a  scanty  subsist- 
ence, would  be  quite  different  from  that  of 
a  State  with  a  thin  population,  requiring  all 
her  hands  for  defense  and  with  sufficient  bread 
for  all  her  citizens.  Was  the  condition  of  all 
nations  alike  in  this  respect;  was  the  same  rea- 
son and  necessity  for  prohibiting  emigration 
during  war  common  to  all,  the  rule  contended 
for  by  the  defendants  would  have  been  long 
since  settled  as  a  fundamental  principle  of  the 
law  of  nations,  and  expressed  in  language  too 
unequivocal  to  admit  of  a  doubt  at  this  period. 

If  a  State  is  assailed  by  external  enemies, 
and  requires  for  defense  the  united  efforts  of 
all  its  citizens,  of  all  those  to  whom  it  has 
given  birth,  a  prohibition  against  emigration, 
as  we  have  witnessed  in  France,  by  the  ordin- 
ances of  1704  and  1744,  will  attain  all  that  is 
necessary  in  this  respect  to  the  safety  and  de- 
fense of  the  State.  If  such  prohibition  is  not 
interposed  the  door  is  open  to  emigration.  But 
is  an  emigration  which  is  lawful  in  relation  to 
the  parent  State  equally  so  in  reference  to  the 
enemy  of  such  State?  As  a  general  rule  it  is 
so.  At  the  same  time,  should  the  citizens  of 
a  belligerent  power,  in  concert  with  the  State, 
or  for  the  purpose  of  multiplying  the  warlike 
resources,  or  aiding  the  enterprises  of  the 
State,  emigrate  to  and  take  a  stand  in  *a  neu- 
tral country,  in  order  to  mask  mercantile  pro- 
jects under  a  neutral  flag,  there  can  be  no  hesi- 
tation in  pronouncing  such  emigration  fraudu- 
lent, and  that  an  establishment,  and  residence, 
for  such  unwarrantable  purposes,  cannot  ac- 
quire to  the  emigrant  a  neutral  domicile  ;  he 
still  would  continue  a  member  of  his  native 
family,  and  as  such  must  participate  in  and 
be  affected  by  the  fortunes  of  the  parent  State. 
479*]  When  such  a  case  is  brought  *before 
the  court,  such  a  determination  will  be  had  as 
will  preserve  to  the  belligerent  the  full  exer- 
cise of  its  rights  over  the  property  of  its  enemy. 
But  because  the  right  of  emigration  may 
be  abused  in  time  of  war,  it  by  no  means  fol- 
lows that  such  right  does  not  exist;  and  though 
it  may  be  difficult  to  detect  and  punish  such 
abuses,  the  argument  from  thence  against  the 
right  cannot  prevail. 

As  far  as  appears  from  the  record  in  this 
cause,  the  emigration  of  the  plaintiff  pro- 
ceeded from  a  common  principle  of  action 
that  prevails  more  or  less  in  all  periods,  and 
all  countries  ;  /or  the  subsistence  of  himself 
and  his  family  he  removed  to  and  acquired  a 
domicile  in  this  State.  This  domicile,  upon 
general  principles,  confers  to  the  purposes  of 
commerce,  the  right  of  an  American  citizen. 
Native  Englishmen  domiciled  in  America,  by 
a  decision  of  Westminster  Hall,  participate 
in  the  rights  of  American  citizens  in  relation  to 
trade  between  America  and  the  East  Indies. ' 


It  will  be  unnecessary  to  consider  whether  the- 
situation  of  the  parent  State  was  not  such,  at 
the  period  of  the  plaintiff's  emigration,  as  to- 
have  no  claims  upon  its  citizens,  as  rent  with 
factions  and  violence  and  yielding  no  protec- 
tion. Upon  the  point  of  undue  concealment, 
raised  in  the  cause,  after  the  foregoing  opin- 
ion, it  will  be  necessary  only  to  add  that  if  the 
faith  of  contracts  should  be  deemed  to  have 
required  of  the  plaintiff  a  disclosure  of  his 
condition,  as  affording  a  pretext  for  condemna- 
tion, undue  concealment  is  a  fraud,  odious  in 
law,  and  as  such,  not  being  found  by  the  ver- 
dict, is  not  to  be  presumed.  For  the  foregoing 
reasons  the  judgment  of  the  Supreme  Court 
ought  to  be  corrected,  and  the  judgment  here 
should  be  as  for  a  total  loss. 

The  majority  of  the  court  being  of  the  same 
opinion,  it  was  therefore  ordered  and  ad- 
judged that  the  judgment  of  the  Supreme 
Court  be  reversed,  and  the  record  remitted,  &c. 

Judgment  of  reversal. 

8.  C.,  1  Cai.  Cas.,  25. 
Reversing— ante  360. 
Cited  in— 1  Johns.,  11. 


*NICHOLAS  GOIX.   Plaintiff  in   [*48O- 
Error, 

v. 
NICHOLAS  LOW,  Defendant  in  Error. 

Marine  Insurance  —  Sentence  —  "  Lawful  Priee  " 
—  Evidence. 

In  an  action  on  a  policy  of  insurance,  the  words  • 
"  condemned  as  lawful  prize,"  in  the  sentence  of  a 
court  of  admiralty,  affords  no  necessary  inference 
that  the  vessel  was  enemy's  property  ;  and  such  sen- 
tences are  not  conclusive  evidence  of  the  fact. 


cause  came  before  the  court  by  writ  of 
J-  error  from  the  Supreme  Court.  The 
facts  contained  in  the  special  verdict  were  the 
same  as  those  stated  in  the  report  of  this  case, 
and  that  of  Goix  v.  Knox  (1  Johns.  Cas.,  p. 
337,  341). 

After  argument,  the  court  reversed  the 
judgment  of  the  court  below,  on  the  ground 
that  being  condemned  as  lawful  prize  afforded 
no  judicial  inference  of  the  vessel's  being 
enemy's  property,  as  there  may  be  other  just 
causes  of  condemnation  ;  and  the  sentence  of 
the  Court  of  Admiralty  not  being  conclusive, 
there  were  no  circumstances  in  the  case 
authorizing  a  condemnation,  nor  showing  a 
breach  of  warranty. 

Judgment  of  revei'sal.  l 
Reversing  —  1  Johns.  Cas.,  341. 

1.—  From  the  cases  of  Pollard  v.  Bell.  Bird  v.. 
Appleton,  8  Term  Rep.,  434,  562;  Price  v.  Bell,  1 
East,  663;  and  Fisher  v.  Ogle,  1  Campb.  N.  P.  Cases, 
418,  it  seems  now  to  be  the  opinion  of  the  English 
courts  that  where  the  sentence  of  the  foreign  court 
of  admiralty  condemns  merely  as  good  and  lawful 
prize,  without  adverting  to  the  question  whether  it 
is  neutral  or  enemy's  property,  such  sentence  is  not 
conclusive. 


NOTE.— ^8  to  judgment  of  foreign  court,  its  effect,. 
1.— See  Wilson  v.  Maryatt,  8  Term  Rep.,  31;  Af-    see  Vandenheuvel  v.  United  Insurance  Co.,  ante  451,. 
firmed,  in  error,  see  1  Bos.  &  Pull.,  430.  I  and  note. 


584 


JOHNSON'S  CASES,  2. 


1802 


JAMES  JOHNSTON  AND  ROBERT  WEIR  v.  DANIEL  LXJDLOW. 


481*]  *JAMES  JOHNSTON  AND  ROBEET 
WEIR,  Plaintiffs  in  Error, 

v. 
DANIEL   LUDLOW,    Defendant   in  Error. 

1 .  Marine  Insurance — Alien — Domiciled  in  New 
York —  Trading  —  Warranty  —  Free  from 
Charge — Seizure  or  Detention — Contraband  of 
War.  2.  Sentence  of  Admiralty  Court — Evi- 
dence .  3.  Breach  of  Warranty — To  Consti- 
tute—  What  Must  Appear . 

A  subject  of  Great  Britain  domiciled  in  New  York, 
and  engaged  in  trade  from  the  United  States,  with 
the  enemies  of  Great  Britain,  is  considered  as  a  citi- 
zen of  the  United  States  in  regard  to  such  trade, 
which  is  not  within  the  clause  in  the  policy  of  insur- 
ance by  which  the  property  is  warranted  by  the 
assured  free  from  any  charge,  &c.,  in  consequence 
of  a  seizure  or  detention  for  or  on  account  of  any 
illicit  or  prohibited  trade,  &c.  A  sentence  of  a  court 
of  admiralty  is  only  prima  facie  evidence  of  any 
fact,  and  will  have  no  effect,  if  sufficient  appears  in 
the  sentence  to  rebut  the  presumption  of  the  exist- 
ence of  such  fact. 

To  constitute  a  breach  of  the  warranty  by  the 
assured  against  seizure  or  detention  on  account  of 
illicit  or  prohibited  trade,  &c.,  there  must  be  an 
illicit  or  prohibited  trade,  in  fact,  existing.  It  is  not 
sufficient  that  there  has  been  a  condemnation  under 
pretext  of  such  a  trade. 

Citation-1  Bos.  &  Pull.,  430. 

THIS  cause  was  brought  before  this  court  by 
writ  of  error  from  the  Supreme  Court. 
The  plaintiffs  in  error,  who  were  natives  of 
Great  Britain,  residing  and  engaged  in  trade 
in  New  York,  but  not  citizens  of  the  United 
States,  chartered  the  schooner  Aurora  of  Peter 
Laing,  for  a  voyage  from  New  York  to  La 
Vera  Cruz.  A  policy  of  insurance  was 
effected  on  the  cargo  from  New  York  to  La 
Vera  Cruz,  with  liberty  to  touch  at  the 
Havana.  The  assured  knew  at  the  time  that 
the  plaintiffs  in  error  were  not  American  citi- 
zens. The  defendant  in  error  also  knew  that 
the  tin  was  on  board,  and  consented  to  insert 
in  the  clause  relative  to  illicit  trade,  and  after 
the  word  "  detention,"  the  words  "  of  the  goods 
hereby  insured,"  and  which  were  inserted  to 
save  the  assured  in  case  the  tin  should  be 
adjudged  contraband.  The  other  facts  in  the 
case  were  the  same  as  those  stated  in  the  cases 
of  Laing  v.  The  United  Insurance  Co. ,  in  the 
Supreme  Court,  reported  ante,  p.  174,  179. 

The  sentence  of  the  judge  (Kelsall)  of  the 
Vice-Admiralty  Court,  at  New  Providence, 
pronounced  August  2d,  1799,  was  as  follows: 

"  The  Aurora  is  an  American  vessel,  bound 
to  La  Vera  Cruz,  by  way  of  the  Havana, 
whither  she  is  first  to  go,  laden  with  property 
purchased  and  shipped  in  America.  Under 
these  circumstances  only  I  cannot  deem  her 
an  adopted  vessel  ;  whatever  she  may  become, 
she  is  not  yet  privileged.  As  to  the  presump- 
tion of  the  property  being  enemy's,  I  think 
482*]  there  is  some,  and  indeed  *not  a  little 
obscurity  in  the  whole  transaction.  The  ves- 
sel is  entitled  to  a  register,  and  has  it  not,  nor 


NOTE.— Judgment  of  foreign  court,  its  effect. 

See  Vandenheuvel  v.  United  Insurance  Co.,  ante 
451,  and  note. 

Nationality  of  insured.  See  Murray  v.  United 
Insurance  Co.,  ante  168,  and  note. 

See  another  report  of  the  above  case,  Johnston  v. 
Ludlow  and  note.  1  Caines  Cas.,  29. 

JOHNSON'S  CASES,  2. 


is  any  reason  shown  to  account  for  the  defi- 
ciency. The  multiplicity  of  needless  marks 
by  which  the  packages  are  distinguished  ;  the 
many  unnecessary  invoices,  none  of  which  are 
signed,  so  contrary  to  the  usages  of  comme  rce 
and  the  practice  of  merchants ;  the  great 
amount  of  the  charter-party,  and  the  very 
large  quantity  of  articles,  the  property  of  the 
captain;  the  caution  with  which  Weir,  the 
supercargo,  swears  as  to  the  property,  coupled 
with  some  part  of  the  master's  and  mate's 
answers  to  the  standing  interrogatories;  these, 
I  say,  are  what  might  have  induced  me  to 
decree  further  proof,  were  there  not  circum- 
stances in  the  case  fully  to  warrant  the 
decision  I  have  come  to  on  the  subject. 

' '  These  are  principally  the  contraband  of 
war,  which  are  on  board,  and  the  relation  the 
parties  who  ship  them  stand  in,  as  well  with 
respect  to  this  particular  transaction,  as  gener- 
ally to  their  duty  towards  Great  Britain.  It 
appears  that  all  the  individuals  concerned  are 
natural-born  British  subjects,  but  assume  the 
privilege  of  trading  with  the  king's  enemies, 
as  being  citizens  of  the  United  States  of 
America. 

"1.  Peter  Laing,  the  master,  swears  that  he 
has  sailed  out  of  America  sixteen  years  past;  is 
a  citizen,  and  resides  with  his  wife  and  family 
at  New  York. 

"2.  Donald  Denoon,  the  mate,  swears  he 
has  been  admitted  a  citizen  of  the  United 
States  about  twelve  months. 

"3.  Patrick  Weir,  the  supercargo,  swears 
that  he  has  resided  in  America  four  years,  and 
considers  himself  a  citizen  of  the  United 
States,  having  made  application  to  be  admitted 
as  such. 

' '  4.  James  Johnston,  one  of  the  owners  of 
the  cargo,  Laing  swears  is  an  American  citizen , 
to  the  best  of  his  knowledge. 

*"5.  Robert  Weir,  the  other  princi-  [*483 
pal  owner  of  the  cargo,  is  sworn  by  Laing  to 
be  also,  to  the  best  of  his  knowledge,  a  citizen, 
and  he  moreover  swears  he  has  known  him 
five  years. 

' '  It  therefore  results  from  this  evidence  that 
Patrick  Weir  is  a  British  subject,  that  Donald 
Denoon  cannot,  notwithstanding  his  admission 
as  a  citizen  of  America,  be  considered  such, 
his  case  depending  (as  far  as  this  court  has  any- 
thing to  do  with  it)  on  Hughs'  case  already 
decided ;  and  that  the  right  to  be  taken  for,  and 
deemed  an  American  citizen,  supposing  the 
Treaty  of  Amity  and  Commerce  to  be  so  con- 
clusive as  it  is  contended  to  be,  is  by  no  means 
shown  or  made  out  in  the  cases  of  James 
Johnston  and  Robert  Weir.  Laing 's  case  is  of 
a  different  complexion ;  he  has  resided  in  the 
American  States  since  1783  ;  and  as  it  may  be 
expected  from  me,  I  do  not  hesitate  to  add  that 
after  maturely  considering  the  relative  situa- 
tion and  connection  between  Great  Britain  and 
America,  and  after  duly  estimating  the  neces- 
sity imposed  by  the  circumstances  of  the  times 
on  the  officers  of  the  admiralty  courts  to  resist 
the  increase  of  an  evil  already  carried  to  an 
alarming  excess,  the  emigration  of  British  sub- 
jects, for  the  purpose  of  screening  themselves 
from  the  general  effects  of  the  war  their  coun- 
try is  engaged  in,  and  of  embarking  in  com- 
mercial enterprises,  of  whatever  nature,  with 
the  enemy,  under  the  protection  of  neutral 

6*5. 


488 


COURT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1802 


flags;  I  do  not  think  that  I  ought  to  assume  a 
period  earlier  than  the  commencement  of  the 
war  with  France,  as  the  epocha  from  which 
the  natural-born  subjects  of  Great  Britain, 
though  naturalized  and  commorant  in  a  neu- 
tral State,  are  to  be  viewed  and  considered 
with  respect  to  their  native  country,  in  any 
other  light  than  as  those  who  remain  at  home. 
Those  who  have  settled  in  America  before  that 
period  I  must  leave  in  the  possession  of  those 
rights  which  they  appear,  by  the  tacit  consent 
4  84*]  of  Great  Britain,  to  have  *hitherto  exer- 
cised unmolested.  It  would  have  been  on 
these  principles,  and  on  that  of  not  being  con- 
vinced as  to  the  real  ownership  of  this  proper- 
ty, that  I  should  have  decreed  further  proof 
with  respect  to  Weir  and  Johnston,  had  it  not 
been  for  the  contraband  of  war  which  they 
have  shipped  on  board  this  vessel. 

' '  Tin  plates  are  assuredly  contraband.  They 
are  indispensably  necessary  to  the  equipment 
of  all  armed  vessels,  and  form  a  most  essential 
article  in  ordnance  and  military  stores.  Now, 
though  in  this  case  the  value  of  them  is  justly 
considerable — six  hundred  pounds  currency  at 
the  least ;  yet  I  confess  it  appears  to  me  so 
strange,  that  for  the  sake  of  the  profits  on  this 
sum  merchants  would  endanger  a  very  valu- 
able cargo,  that  I  am  induced  to  think  that 
Johnston  and  Weir  were  only  complying  with 
an  order,  or  that  Spain  insists  on  a  portion  of 
every  cargo  being  contraband,  to  entitle  a  ves- 
sel to  entry  in  certain  ports.  Be  it  however  as 
it  may,  I  must  do  my  duty;  a  duty  in  this  in- 
stance especially  incumbent  on  me  rigidly  to 
execute,  from  the  situation  those  men  stand  in 
with  respect  to  their  native  country,  by  en- 
forcing the  strict  law  of  nations,  as  laid  down 
in  Lee  on  Captures,  a  law  which  is  not  altered 
in  any  respect  by  the  American  Treaty,  and  is 
conformable  to  the  practice  of  the  High  Court 
of  Admiralty  at  home,  as  we  know  from  the 
highest  authoritiy. 

"  I  do,  therefore,  hereby  dismiss  the  answer 
and  claim,  as  far  as  respects  the  property  of 
Patrick  Weir,  Donald  Denoon,  James  John- 
ston and  Robert  Weir,  and  condemn  the  same 
as  lawful  prize  to  the  captors. 

"I  sentence  the  claimants  in  costs,  and  dis- 
miss the  libel  with  respect  to  the  vessel  and 
property  of  Peter  Laing." 

On  the  argument  of  the  cause  three  ques- 
tions were  raised  for  the  consideration  of  the 
court.  1.  Whether  the  trade,  in  regard  to  the 
485*]  characters  of  the  plaintiffs,  *was 
illicit?  2.  Whether  tin  in  blocks  and  plates  is 
an  article  contraband  of  war?  3.  Whether 
the  warranty  contained  in  the  special  clause  in 
the  policy,  in  regard  to  illicit  or  prohibited 
trade,  or  trade  in  articles  contraband  of  war, 
extended  to  a  seizure  or  detention,  on  the 
allegation  of  being  engaged  in  such  trade, 
when,  in  fact,  there  was  no  such  trade? 

MR.  GOLD,  Senator :  On  the  first  point,  the 
domicile  of  the  plaintiffs  being  established  here, 
without  any  fraudulent  motive,  but  for  fair 
purposes  of  commerce,  this  court  ought  not  to 
sanction  the  right  of  Great  Britain  to  seize  and 
confiscate  their  effects,  as  has  been  done  in 
this  instance.  The  case  of  Maryatt  v.  Wilson, 
cited  from  1  Bos.  &  Pull.  Rep.,  p.  430,  which 
arose  under  the  article  in  our  late  treaty  with 


England  regulating  our  East  India  trade,  is 
not  inapposite.  In  that  case  the  English  court 
conceded  to  a  native  subject,  domiciled  in 
America,  the  right  of  an  American  citizen  in 
relation  to  commerce  with  the  Indies.  On  the 
second  point,  that  there  may  be  circumstances 
and  occasions  in  which  tin  in  blocks  and 
plates  may  become  contraband,  is  not  to  be 
controverted;  but  while  Judge  Kelsall  pro- 
fesses to  detail,  not  only  the  causes  for  con- 
demnation, but  those  on  which  he  did  not 
ground  himself,  he  does  not  disclose  a  case 
which  would  warrant  the  conclusion,  upon 
the  article  in  question,  of  contraband  of  war. 
He  rests  himself  upon  the  bare  shipment  of 
the  article ;  this  cannot  be  subscribed  to,  nor 
will  the  allowed  effect  of  the  admiralty  sen- 
tence, as  prima  facie  evidence,  avail  the  de- 
fendant here  ;  as  the  presumption  of  facts  to 
warrant  a  condemnation  is  repelled  by  a  de- 
tail of  the  precise  grounds  on  which  the  sen- 
tence was  pronounced.  On  the  last  point 
raised  by  the  underwriter,  that  the  warranty 
protects  him  against  any  loss  by  seizure  or 
detention,  for  or  on  account  of  any  illicit  trade 
or  contraband  of  war,  nothing  *in  this  [*486 
provision  is  relevant  to  the  case  before  the 
court.  The  clause  literally  extends  only  to 
partial  losses  occasioned  by  a  seizure  or  tem- 
porary detention,  not  followed  by  a  condem- 
nation; and  if  extended  farther,  it  cannot  have 
been  the  intention  of  the  parties  to  the  policy 
to  throw  upon  the  assurer  a  loss  where  there 
could  be  no  fault  in  him;  when  no  illicit  trade 
or  contraband  existed  in  fact,  merely  because 
a  pretext  of  that  kind  is  set  up  to  cloak  the 
condemnation.  The  expression  "for  and  on 
account  of"  is  not  equivalent  or  convertible 
into  the  words  "  under  pretence  of,"  but  may 
well  be  understood  to  mean  "  for  the  cause 
of,"  implying  the  actual  existence  of  either 
illicit  trade  or  contraband  as  producing  such 
loss  or  damage.  No  other  construction  ought 
to  be  admitted,  unless  the  language  of  the 
contract  is  plain  and  unequivocal,  necessarily 
inducing  a  contrary  interpretation.  The  facts 
in  the  cause  do  not,  as  the  law  is  now  settled 
in  Great  Britain,  bear  out  the  conclusion  of 
the  Vice- Admiralty  Court;  nor  can  anything 
in  the  warranty  of  the  assured  protect  the 
underwriter.  I  am  of  opinion  that  the  judg- 
ment of  the  court  below  ought  to  be  reversed. 
This  being  the  opinion  of  a  majority  of  the 
court,  it  was  thereupon  ordered  and  adjudged 
that  the  judgment  of  the  Supreme  Court  be 
reversed ;  and  that  the  plaintiffs  in  error  re- 
cover the  sum  assessed  by  the  jury  in  the 
special  verdict,  as  for  a  total  loss ;  and  that  the 
court  below  tax  the  costs  for  the  plaintiffs  in 
error  as  if  judgment  had  been  given  for  them 
as  for  a  total  loss ;  and  that  the  plaintiffs  in 
error  also  recover  interest  on  the  judgment  so 
found  for  a  total  loss,  from  the  time  of  render- 
ing the  judgment  in  the  Supreme  Court  until 
the  third  Tuesday  of  April  next,  to  be  assessed 
and  taxed  by  the  clerk  of  this  court,  and  that 
the  record  be  remitted,  &c. 


Judgment  of  reversal. 


Cited  in— 6  Cow.,  425 ;  9  Bos.,  387 ;  6  Allen,  394. 

JOHNSON'S  CASES,  2 


1802 


PETER  LAING  v.  THE  UNITED  INSURANCE  COMPANY. 


487 


487*]  *PETER  LAING,  Plaintiff  in  Error, 

v. 
THE  UNITED  INSURANCE  COMPANY, 

Defendants  in  Error. 

THE  SAME  v.  THE  SAME. 
THE  SAME  v.  THE  SAME. 

rpHESE  causes  were  also  brought  before  the 
JL  court  by  writs  of  error  from  the  Supreme 
Court  (see  ante,  p.  174,  179),  and  the  same 
questions  arising  as  in  the  preceding  case  of 
Johnston  and  Weir  v.  Ludlow,  the  judgments 
of  the  Supreme  Court  were  reversed  for  the 
same  reasons. 

Judgment  of  reversal. 


FREDERICK    RHINELANDER,     WM. 
KEN  YON,  ET.  AL.,  Plaintiffs  in  Error. 

v. 
JOHN  JUHEL,  Defendant  in  Error. 

THIS  cause  came  up  on  a  writ  of  error  from 
the  Supreme  Court  (see  ante,  p.  121) ;  and 
after  argument,   the  court   ordered  and  ad- 
judged that  the  judgment  of  the  court  below 
be  affirmed,  and  the  record  remitted,  &c. 

Judgment  of  affirmance. 


488*]  *STEPHEN  HITCHCOCK,  Plaintiff 
in  Error, 

v. 
EFPY  SABLE,  Defendant  in  Error. 

THIS  cause  came  before  this  court  by  writ 
of  error  from  the  Supreme  Court  (see  ante, 
p.  79),  and  after  argument,  the  court  ordered 
and  adjudged  that  the  judgment  of  the  Supreme 
Court  be  affirmed  with  costs,  &c. 

Judgment  of  affirmance. 


JOHN  R.  LIVINGSTON,  Plaintiff,  in  Error, 

v. 
WILLIAM  ROGERS,  Defendant  in  Error. 

1.  Letter  of  Attorney — Lost— Evidence  of  Con- 
tents. 2.  Suspicion  of  Suppression —  Upon 
Trial — Judges  Duty  in  Charge. 

Parol  evidence  of  the  contents  of  a  letter  of  at- 
torney, by  the  person  to  whom  it  was  given,  is  ad- 
missible, if  it  is  proved  satisfactorily  that  such 
power  has  been  lost. 

Citation— 10  Co.,  93 ;  Jenk.  Cent.,  19 ;  1  Inst.,  227  b.; 
2  Atk.,  71 ;  Barn.  Cha.  Rep.,  307 ;  Amb.,  247  ;  3  Term 
H.,  151 ;  1  Esp.  Rep.,  337. 

THIS  cause  came  before  the  court  on  a  bill 
of  exceptions  to  an  opinion  of  a  judge  of 
the  Supreme  Court,  at  the  circuit. 


NOTE.— See  another  report  of  above  case,  Livings- 
ton v.  Rogers,  1  Games'  Cas..  27. 

JOHNSON'S  CASES,  2. 


The  plaintiff  here,  who  was  also  plaintiff 
below,  commenced  an  action  in  the  Supreme 
Court  to  recover  from  the  defendant  the  dif- 
ference on  a  stock  contract,  dated  the  19th 
March,  1792,  by  which  the  latter  promised  to 
receive  from  him  twenty  shares  of  the  Bank 
of  the  United  States,  on  the  first  of  June,  1793, 
and  to  pay  for  them  at  the  rate  of  78  per  cent, 
advance. 

The  defendant  pleaded  non  assumptdt. 

*On  the  trial  the  plaintiff,  to  estab-  [*489 
lish  a  tender  of  the  stock,  offered  a  witness, 
who  proved  "that  on  the  1st  June,  1793,  he 
attended,  in  person,  at  the  banking-house  of 
the  United  States,  in  the  city  of  Philadelphia, 
at  the  request  of  the  plaintiff,  and,  as  his  at- 
torney, to  transfer  twenty  shares  of  the  said 
bank  stock  to  the  defendant,  pursuant  to  the 
agreement  stated  in  the  declaration ;  that  a 
few  days  previous  to  his  attendance  at  the 
banking-house  he  received  from  John  Wilkes, 
a  notary  public,  residing  in  the  city  of  New 
York,  a  letter  of  attorney,  signed  by  the  plaintiff, 
with  whose  handwriting  he  was  well  acquaint- 
ed, and  the  execution  of  which  was  attested 
by  the  said  Wilkes,  in  his  capacity  of  notary, 
and  under  his  notarial  seal ;  that  he  attended 
with  the  said  letter  of  attorney,  and  twenty 
shares  of  the  bank  stock,  aforesaid,  at  the 
banking-house,  on  the  said  first  day  of  June, 
and  continued  there  during  all  the  time  when 
the  said  stock  could  be  transferred,  and  offer- 
ed, by  virtue  of  the  said  letter  of  attorney,  to 
transfer  the  said  twenty  shares  to  the  defend- 
ant, for  and  in  behalf  of  the  plaintiff.  That 
he  gave  several  days'  notice  to  the  defendant, 
by  directions  of  the  plaintiff,  that  he  should 
attend  at  the  said  bank,  on  the  said  day,  for 
the  purpose  aforesaid. 

"That  no  person  appearing  to  receive  or 
pay  for  the  said  stock,  he  left  the  said  bank- 
ing-house without  making  an  actual  transfer 
thereof,  and  put  the  said  letter  of  attorney  into 
his  iron  chest,  of  which  he  alone  kept  the  key. 
That  he  never  delivered  the  said  letter  of  at- 
torney to  the  plaintiff,  and  that  the  plaintiff 
never  had  or  saw  it  after  his  offer  to  transfer 
as  aforesaid.  That  he  considered  the  said  let- 
ter of  attorney  as  belonging  to  himself,  and 
that  the  plaintiff  never  gave  him  any  direc- 
tions to  keep  or  destroy  it.  That  he  did  not 
know  it  would  be  of  any  use  to  produce  the 
said  letter  of  attorney  on  the  present  trial. 
That  since  the  commencement  of  this  action 
he  has  searched  among  his  papers  in  the  iron 
*chest  and  elsewhere,  for  the  letter  of  [*4OO 
attorney,  but  cannot  find  it,  and  verily  be- 
lieves he  has  destroyed  the  same,  not  thinking 
it  of  any  utility  to  be  preserved." 

Wilkes  was  also  produced  as  a  witness  for 
the  plaintiff,  and  deposed,  "that  he  never  de- 
livered a  letter  of  attorney  out  of  his  office  to 
transfer  any  species  of  stock,  until  the  party 
making  it  had  acknowledged  the  execution  of 
it  before  him,  although  he  had  sometimes  de- 
livered-letters  of  attorney  which  contained  a 
blank  for  the  attorney's  name." 

The  plaintiff's  counsel  then  offered  to  give 
parol  evidence  of  the  contents  of  the  letter  of 
attorney,  to  which  the  defendant's  counsel  ob- 
jected. The  judge  allowed  the  objection,  and 
determined  that  the  plaintiff  should  not  be 
permitted  to  eive  parol  proof  of  the  contents 

587 


490 


COURT  OF  ERRORS,  STATE  OP  NEW  YORK. 


1802 


of  the  letter  of  attorney.  To  this  opinion  of 
the  judge  the  plaintiff's  counsel  tendered  a 
bill  of  exceptions — on  which  he  brought  a  writ 
of  error,  returnable  to  this  court. 

A  verdict  was  taken  for  the  defendant,  and 
judgment  given  thereon. 

LANSING,  Chancellor:  The  loss  of  the  letter 
of  attorney  is  not  attributed,  in  this  case,  to 
inevitable  accident,  and  the  question  to  be  de- 
cided is,  whether  this  is  a  case  in  which  parol 
proof  of  its  former  existence  and  import  is 
admissible. 

That  the  exception  to  the  strict  rule  of  law, 
originally  extended  only  to  writings  destroyed 
by  inevitable  accident,  or  withheld  by  the 
party  opposed  in  interest  to  their  introduction, 
is  not  contended.  But  on  the  part  of  the 
plaintiff,  it  is  insisted,  that  an  enlarged  liber- 
ality has  progressively  obtained,  and  that  to 
entitle  the  party  to  resort  to  parol  proof  of  the 
contents  of  a  deed,  nothing  more  is  necessary 
than  to  show  that  the  incapacity  to  produce  it 
is  not  attributable  to  his  positive  fault,  so  as  to 
involve  a  mala  fides. 

491*J  *The  decisions  of  the  English 
courts,  since  the  period  Lord  Mansfield  be- 
gan to  preside  in  the  Court  of  King's  Bench, 
have  assumed  a  degree  of  liberality  in  adapt- 
ing the  ancient  principles  of  jurisprudence, 
not  only  to  the  exigencies  which  the  extent 
and  activity  of  modern  commercial  specula- 
tions have  rendered  unavoidable,  but  to  every 
object  of  commutative  justice  which  can  affect 
the  interests  of  the  members  of  a  great  and 
opulent  community. 

In  the  general  relaxation  which  has  obtain- 
ed, the  strictness  of  this  rule  of  evidence  has, 
however,  as  it  appears  to  me,  been  completely 
preserved  ;  and  if,  in  the  multifarious  com- 
plications incident  to  the  state  of  property  in 
Great  Britain,  its  intrinsic  worth  has  so  effectu- 
ally resisted  constructive  innovations,  it  is  a 
strong  argument  of  its  correctness  and  utility. 

That  it  has  been  so  preserved,  I  think,  must 
appear  evident  from  a  review  of  the  cases 
which  have  been  cited  to  induce  this  court  to 
pronounce  the  present  case  within  the  exception 
to  the  rule. 

The  general  rule,  as  laid  down  in  10  Co. 
Rep.,  93,  is,  that,  as  the  best  evidence  the  thing 
is  capable  of,  the  existence  of  the  deed  must 
be  proved  by  its  production.  (Gilb.  Law  of 
Evid.,  93.)  " 

1.  To  enable  the  court  to  determine  on  its 
legal  operation. 

2.  To  show  that  it  is  genuine  and  not  facti- 
tious ;  to  which  is  added, 

3.  That  it  was  not  made  on  condition,  as 
with  power  of  revocation. 

But  great  and  notorious  extremities,  as  by 
casualty  of  fire,  and  that  all  evidences  were 
burnt  in  the  party's  house,  are  deemed  ex- 
ceptions. (10  Co.,  93.) 

This  doctrine  is  corroborated  by  some  other 
cases  (Jenk.  Cent.,  19;  1  Inst.,  227.  by,  which 
leave  no  doubt  that  great  and  notorious  ex- 
492*]  tremities  only  were  admitted  *as  ex- 
ceptions ;  thus,  loss  by  burning  of  houses,  by 
rebellion  or  robbery,  are  instanced. 

The  case  of  VUliers  v.  Vittiers,  cited  in  argu- 
ment, from  2  Atk.,  71,  lays  it  down  generally 
that  parol  evidence  of  a  "deed  may  be  given, 
688 


and  the' manner  of  its  being  lost,  unless  it  hap- 
pens to  be  destroyed  by  fire,  or  lost  by  robbery 
or  any  other  unavoidable  accident  which,  it  is 
added,  are  sufficient  excuses  of  themselves. 

It  could  certainly  never  have  been  the  in- 
tent of  the  reporter  to  make  Lord  Hardwicke 
say,  that  evidence  of  the  manner  of  the  loss 
might  be  given,  unless  it  was  destroyed  by 
fire,  &c.,  which,  as  it  was  a  sufficient  excuse, 
must  necessarily  render  such  proof  useless, 
and  yet  such  is  obviously  the  scope  of  the  ex- 
pression. How,  then,  were  the  court  to  dis- 
cover the  manner  of  the  loss,  if  it  was  a  fact 
respecting  which  no  evidence  was  to  be  ad- 
mitted? 

The  case  is  silent  as  to  the  facts  to  which 
these  observations  applied  ;  but  we  find  the 
case  reported  in  Barnadiston's  Chancery  Re- 
ports, 307.  There  it  appears,  that  deeds  were 
alleged  to  be  lost ;  that  the  Lord  Chancellor 
declared  it  "doubtful  whether  there  were  such 
deeds ;"  but  instead  of  directing  an  issue  to 
determine  whether  the  deeds  had  existed,  and 
were  so  lost,  as  stated,  which  seem  the  points 
raised  by  him  in  discussing  the  case,  he  di- 
rected an  issue  to  try  the  validity  of  those 
deeds.  But  the  broad  principle  laid  down  in 
Atkyns  is  not  even  glanced  at. 

This  case  is  so  loosely  and  inaccurately  re- 
ported, that  I  think  little  reliance  can  be  placed 
on  either  of  the  reports  for  the  exposition  of 
the  rule. 

In  the  case  of  Saltern  v.  Melhuish  (Ambl., 
247),  the  precise  point  before  the  court  was, 
whether  the  evidence  of  the  destruction  of  the 
deed  was  sufficient? 

It  is  stated  in  that  case  that  Roger  Melhuish 
had  burnt  the  deed  of  assignment  of  a  term, 
which  the  plaintiff  claimed  under,  and  evi- 
dence was  given  of  the  contents  ;  *that  [*493 
the  deed  of  settlement  in  pursuance  of  which 
the  deed  of  assignment  was  made,  was  in  cus- 
tody of  Lady  Berry,  the  surviving  trustee 
therein  named;  that  she  had  expressed  appre- 
hensions, a  few  days  before  her  death,  that  it 
would  be  taken  away  by  Roger,  with  whom 
she  then  lived;  that  after  her  death  search  was 
made  for  it  by  her  trustees,  and  that  it  was 
missing,  and  one  of  the  witnesses  said  that  she 
had  often  been  present  when  Roger's  wife 
quarreled  with  him  for  not  destroying  the  deed. 

The  Lord  Chancellor  observes  that  evidence 
of  loss  or  destruction  generally  depends  upon 
circumstances ;  and  it  is  very  rare,  even  in 
case  of  destruction,  that  positive  proof  can 
be  had. 

If  it  was  necessary  to  lay  down  the  general 
rule  with  greater  latitude  to  comprehend  this 
case,  it  must  have  been  extremely  strict,  for  it 
certainly  presents  a  combination  of  strong  cir- 
cumstances ;  the  deed  was  in  possession  of 
Lady  Berry  a  few  days  before  her  death  ;  she 
lived  with  Roger  Melhuish ;  it  was  sought  for 
in  vain  after  her  death  ;  Roger  destroyed  the 
assignment ;  his  wife  quarreled  with  him  be- 
cause he  had  not  destroyed  the  deed  of  settle- 
ment, which  of  consequence  showed  that  he 
had  it  in  his  possession.  These  circumstances 
established  the  most  forcible  presumptions 
against  Roger  that  he  had  either  destroyed  or 
secured  it ;  and  either  being  established,  parol 
proof  of  the  import  of  the  deed  was  admissi- 
ble, on  the  ground  of  relief  against  spoliation. 
JOHNSON'S  CASES,  2. 


1802 


JOHN  R.  LIVINGSTON  v.  WILLIAM  ROGERS. 


493 


The  case  of  Read  v.  Brookman  (3  Term  Rep., 
151)  merely  proves  that  in  the  Court  of  King's 
Bench,  in  England,  the  form  of  declaring  has 
been  altered  to  obviate  the  difficulty  of  main- 
taining an  action  on  a  deed  lost  or  destroyed. 
The  new  form  was  devised  to  get  rid  of  a  tech- 
nical nicety,  and  to  permit  the  party,  in  case 
of  loss  and  destruction,  to  prove  the  circum- 
stances of  the  loss  and  the  import  of  the  deed 
494*]  to  the  jury,  instead  of  *stopping  him 
At  the  threshold,  by  requiring  its  actual  pro- 
duction at  the  time  of  filing  the  declaration. 
It  cannot,  therefore,  bear  upon  the  present 
case,  even  if  it  could  be  considered  as  au- 
thority. 

This  court  is  now  to  determine  a  general  rule 
of  evidence  ;  if  it  is  precisely  defined  and  well 
understood,  it  becomes  an  authority  by  which 
.all  the  courts  in  the  State  are  to  regulate  their 
-conduct  Hence  it  becomes  important  to  con- 
sider its  tendency. 

In  the  cases  cited,  the  instances  to  which  the 
exceptions  of  the  rule  apply,  are  loss  by  fire, 
rebellion  and  robbery.  All  these  involve  cir- 
cumstances supposed  to  be  beyond  the  control 
•of  the  party;  they  are  either  the  effect  of  inev- 
itable accident,  or  of  the  acts  of  others  in  vio- 
lation of  law.  None  of  them  go  the  length  of 
this  case  ;  and  as  far  as  the  general  rule  is  ap- 
plied to  particular  cases  there  is  no  instance 
.among  the  cases  adduced  in  argument,  or  any 
others  which  I  have  been  able  to  discover,  in 
which  it  has  been  extended  beyond  these  nar- 
row limits. 

It  is  true  analogies  appear  to  have  been  con- 
templated, but  they  were  strict,  and  from  the 
application  of  the  general  expressions  respect- 
ing them,  they  appear  not  to  have  been  estab- 
lished with  any  degree  of  latitude. 

If  a  departure  is  permitted,  in  construing 
the  extent  of  this  exception,  from  cases  of  acci- 
dent not  in  the  power  of  the  party  to  control ; 
if  it  is  assumed  as  a  rule  that  the  neglect  of  a 
party,  or,  as  it  is  termed  in  legal  phraseology, 
his  laches,  is  to  operate  to  make  that  evidence 
which  originally  was  not  so,  a  door  is  opened 
to  every  species  of  contrivance  which  the  in- 
genuity of  interested  and  wicked  men  can  sug- 
gest. If  a  deed  is  defective,  so  as  not  to  stand 
the  test  of  legal  investigation,  secreting  or  de- 
stroying it  will  render  it  valid.  If  it  is  inca- 
pable of  being  proved  in  the  ordinary  mode, 
evidence  of  its  existence  and  loss  will  supply 
the  defect ;  and  if  it  contains  a  clause  of 
revocation  on  condition,  a  similar  operation 
will  render  it  absolute. 

495*]  *It  was  the  business  of  the  plaintiff 
to  preserve  his  evidence  ;  it  was  an  inexcusable 
neglect,  to  leave  it  exposed  to  destruction  from 
a  want  of  care ;  and  that  it  was  left  in  the 
hands  of  his  attorney,  who  destroyed  it  as  use- 
less, is  no  reason  for  permitting  him  to  resort 
to  a  species  of  proof  which  would  otherwise 
be  incompetent. 

I  have  supposed  in  treating  of  this  subject, 
that  the  destruction  of  the  deed  was  fully 
proved ;  that,  however,  is  not  the  case ;  it  was 
put  in  an  iron  chest ;  it  was  searched  for  there 
and  elsewhere ;  it  was  not  found,  and  from 
these  circumstances  the  witness  believes  he  has 
•destroyed  it.  Whatever  his  belief  may  be  on 
JOHNSON'S  CASES,  2. 


this  occasion,  this  court,  if  they  suffer  his  tes- 
timony to  weigh  in  their  decision,  must,  from 
the  facts  stated,  be  induced  to  believe  with 
him.  From  those  facts  it  is  possible,  nay  it  is 
probable,  that  the  deed  may  not  have  been  de- 
stroyed. 

I  have  not  adverted  to  the  observation  made 
in  argument  that  this  is  a  stock  contract  which 
merits  no  peculiar  indulgence.  I  think  this 
consideration  may  be  well  admitted  as  a  reason 
for  not  relaxing  the  rule  of  evidence  in  its 
favor. 

Upon  the  whole,  I  have  no  doubt  but  that  the 
opinion  of  the  judge  who  tried  the  cause  was 
correct,  and  I  am,  therefore,  for  affirming  the 
judgment. 

MR.  GOLD,  Senator :  The  question  upon  the 
bill  of  exceptions  interposed  in  this  cause  is, 
whether  it  be  competent  for  the  plaintiff  to 
give  parol  evidence  of  the  contents  of  the  let- 
ter of  attorney  to  M'Evers,  under  the  circum- 
stances detailed  in  the  bill  of  exceptions,  or 
must  the  instrument  itself  be  produced?  The 
ancient  rule  of  the  common  law  was  highly 
rigid  in  this  respect.  It  dispensed  with  the 
production  of  instruments,  in  a  few  select 
cases,  and  then  only  for  peculiar  and  specific 
causes.  But  experience  under  that  rule  has, 
in  the  progressive  improvements  of  Eng- 
lish jurisprudence,  resulted  in  a  relaxation 
*of  the  law  on  this  subject.  The  non-  [*49O 
production  of  instruments  is  now  excused,  for 
reasons  more  general,  less  specific,  upon 
grounds  more  broad  and  liberal  than  were 
formerly  admitted.  In  Bead  v.  Brookman  (3 
Term  Rep.,  151),  a  declaration  on  a  deed  was 
sustained,  and  the  profert  dispensed  with, 
upon  the  general  allegation  of  a  loss  by  time 
and  accident.  In  Beckford  v.  Jackson  (1  Esp. 
Rep.,  337),  the  plaintiff  counted  on  a  deed  lost 
or  mislaid ;  upon  which  issue  was  taken,  and 
the  same  was  recognized,  as  warranted  in  law, 
by  Lord  Kenyon,  who  presided  at  the  trial. 
Other  cases  are  to  be  found  in  the  English  re- 
ports of  similar  import  sanctioning  the  same 
principle.  Upon  the  authority  of  those  cases, 
and  the  reason  of  the  thing,  I  am  of  opinion 
that  parol  evidence  of  the  contents  of  the  let- 
ter of  attorney  to  Mr.  M'Evers  ought  to  have 
been  received,  and  that,  therefore,  error  has 
intervened  in  this  respect.  Upon  the  admis- 
sion of  such  testimony,  should  the  trial  dis- 
close evidence,  or  reasonable  grounds  of  sus- 
picion of  a  suppression  of  the  instrument,  of 
mala,  fides  in  the  plaintiff,  or  should  the  evi- 
dence of  its  existence  and  legal  efficacy  not  be 
clear  and  satisfactory,  it  will  become  the  duty 
of  the  judge  to  direct  and  charge  the  jury  for 
the  defendant.  A  venire  facias  de  now  must, 
therefore,  be  awarded. 

A  majority  of  the  court  being  of  the  same 
opinion,  it  was  thereupon  ordered  and  ad- 
judged that  the  judgment  below  be  reversed  ; 
that  the  record  be  remitted,  and  that  a  venire 
facias  de  novo  be  awarded. 

Judgment  of  reversal. 

8.  C.,  1  Cai.  Gas.,  27. 

Cited  in— 2  Cai.,  367 ;  18  Johns.,  74 ;  12  Wend.,  175. 

589 


[END  OP  THE  CASES  IN  ERROR.] 


REPORTS  OF  CASES  ADJUDGED 


THE 


Supreme  Court  of  Judicature 


OF   THE 


From  January  Term,  1799,  to  January  Term,  1803,  Both  Inclusive, 


TOGETHER   WITH    CASES    DETERMINED   IN   THE 


COURT  FOR  THE  CORRECTION  OF  ERRORS 


DURING  THAT   PERIOD. 


BY  WILLIAM  JOHNSON, 

Counselor  at  Law. 


Legum  interpretes,  judices :  legum  denique  idcirco  omnes  servi  sumus,  ut  liberi 
\  esse  possumus. — CICERO. 


V  OLUME    III. 


CONTAINING  THE  OASES  FEOM  JANUARY  TERM,  1802,  TO  JANUARY  TERM,  1803, 

INCLUSIVE ;  WITH  AN  APPENDIX. 
N.  Y.  REP.,  BOOK  1.  38 


NAMES 


JUDGES  OF  THE  SUPREME  COURT  OF  JUDICATURE 


OF   THE 


STATE   OF    NEW  YORK 


DURING   THE   TIME 


OF   THE   THIRD    VOLUME   OF   THESE   REPORTS. 


MORGAN  LEWIS,  Esq.,  Chief  Justice. 
JAMES  KENT,  Esq. 
JACOB  RADCLIFF,  Esq. 
BROCKHOLST  LIVINGSTON,  Esq. 
SMITH  THOMPSON,  Esq. 


JOSIAH  OGDEN  HOFFMAN,  Esq.,  Attorney- General,  resigned  January  29,  1802. 
AMBROSE  SPENCER,  Esq.,  appointed  February  3,  1802. 


CASES   ADJUDGED 


IN  THE 


SUPREME  COURT  OF  JUDICATURE 


OP    THE 


STATE  OF  NEW  YORK 


JA.NTJARY    TERM,    18O2.* 


BKOCKHOLST  LIVINGSTON,  Esq.,  Counselor  at  laio,  was  appointed  one  of  the  judges  of 
the  court,  in  the  last  vacation,  and  took  his  seat  on  the  19th  January. 

SMITH  THOMPSON,  Esq.,  Counselor  at  law,  was  also  appointed  one  of  the  judges  of  this 
court,  and  took  his  seat  on  the  28th  January. 


1*]    *THE    NEW    YORK    INSURANCE 
COMPANY 

0. 
THOMAS. 

1.  Marine  Insurance — Other  Insurance — Agree- 
ment to  Return  Premium — Evidence  of  Un- 
derstanding and  Intention.  2.  Contracts — 
Contradictions  Controlling  Language — Am- 
biguitas  Latens — Parol  Evidence. 

A  policy  of  insurance  was  effected  on  goods  from 
Philadelphia  to  Hamburg,  dated  the  29th  May, 
1798,  at  seventeen  and  one  half  per  cent.,  "  to  return 
fifteen  per  cent,  in  case  an  insurance  has  been  ef- 
fected in  Europe."  It  also  contained  the  following 
printed  clause :  "  Provided  that  if  the  assured  shall 
nave  made  any  other  assurance  upon  the  premises 
prior  in  date  to  this  policy,  then  the  insurers  shall 
be  answerable  only  for  so  much  as  the  amount  of 
such  prior  assurance  may  be  deficient,  &c.,  and  shall 
return  the  premium  on  so  much  of  the  sum  assured 
as  they  shall,  by  such  prior  assurance,  be  exoner- 


ated from.  And  in  case  of  any  insurance  upon  the 
premises,  subsequent  in  date  to  this  policy,  the  in- 
surer shall  be  answerable  for  the  full  sum  sub- 
scribed, &c.,  and  be  entitled  to  retain  the  premium, 
in  the  same  manner  as  if  no  such  subsequent  insur- 
ance had  been  made."  . 

Insurance  was  also  effected  on  the  same  goods  at 
Hamburg,  the  19th  June,  1798.  It  was  held,  that 
according  to  the  true  construction  of  the  written 
and  printed  clauses,  the  insured  could  not  claim  a 
return  of  premium  on  account  of  the  insurance  at 
Hamburg;  and  that  parol  evidence  to  show  that 
it  was  the  understanding  and  intention  of  the  par- 
ties that  the  policy  was  to  be  void  in  case  of  a 
double  insurance,  was  inadmissible. 

Citation— Skin.,  54. 

THIS  was  an  action  on  a  promissory  note 
for  $2,801.25,  dated  the  29th  May,  1798, 
payable  *in  nine  months,  given  to  the  plaint-  [*2 
iffs,  for  the  premium  on  a  policy  of  insurance 
on  goods  of  Messrs.  Notnagel,  Montmollin  & 
Co.,  of  Philadelphia,  laden  on  board  the  Dan- 
ish brig  Peter,  bound  to  Hamburg,  at  the 


*The  Reporter  regrets  that  the  written  opinions  delivered  by  Mr.  Chief  Justice  Lewis,  and  Mr.  Justice 
Livingston,  during  the  period  of  this  volume,  have  been  lost  or  destroyed,  so  that  he  can  only  express 
their  concurrence  with,  or  dissent  from,  the  opinions  of  the  other  judges.  Neither  Mr.  Justice  Liv- 
ingston nor  Mr.  Justice  Thompson  took  any  part  in  the  decision  of  the  causes  in  this  term,  here 
reported,  as  they  were  argued  before  they  took  their  seats  on  the  bench. 


NOTE. — Insurance — Construction  of  policy. 

The  general  rules  for  construction  of  contracts  ap- 
ply to  that  of  insurance.  The  entire  policy  will  be 
given  effect  if  possible,  according  to  the  intention 
of  the  parties,  and  in  case  of  doubt,  greater  effect 
will  be  allowed  to  written  than  to  printed  parts. 
Gilligan  v.  Com'l  Ins.  Co.,  20  Hun.,  93;  8.  C.,  aff'd  by 
Court  of  Appeals,  24  Alb.  L.  J.,  480 ;  Aurora  Ins.  Co. 
v.  Eddy,  49  Ills.,  106 ;  Astor  v.  Union  Ins.  Co.,  7 
Conn.,  202 ;  Goss  v.  Citizens  Ins.  Co.,  18  La.  Ann..  97 ; 
Mobile  Ins.  Co.  v.  McMillan,  27  Ala.,  77 ;  Na'tl.  Ins. 
Co.  v.  Crane,  16  Md.,  260 ;  Moore  v.  Perpetual  Ins. 
Co.,  16  Mo.,  98 ;  Pbcenix  Ins.  Co.  v.  Taylor,  5  Min., 
492 ;  Hoffman  v.  ^Etna  Ins.  Co.,  32  N.  Y.,  405 ;  White 
v.  Hudson  River  Ins.  Co..  15  How.  Pr.,  288 ;  Cobb  v. 
Ins.  Co.  N.  A.,  17  Kas.,  492 ;  Bradley  v.  Nashville 
Ins.  Co.,  3  La.  Ann.,  708;  Barber  v.  F.  M.  Ins.  Co., 
16  W.  Va.,  658 ;  Western  Ins.  Co.  v.  Cropper,  32  Pa. 
St.,  a51 ;  Merrick  v.  Germania  Ins.  Co.,  54,  Id.,  277 ; 
Bargett  v.  Orient  Ins.  Co.,  3  Bos.  (N.  Y.),  385 ;  Let- 
iner  v.  Granite  Ins.  Co.,  5  Duer.,  394 ;  Ripley  v. 
;Etna  Ins.  Co.,  30  N.  Y.,  135 ;  Savage  v.  Howard  Ins. 
Co.,  52  N.  Y.,  504;  Foot  v.  ^Etna  Ins.  Co.,  61 
N.  Y.,  571;  Woodruff  v.  Imperial  Fire  Ins.  Co., 

JOHNSON'S  CASES,  3. 


83  N.  Y.,  133;  Crane  v.  City  Ins.  Co..  3  Fed.  Rep. 
558. 

Construed  against  company  when  ambiguous  or 
equivocal.  Foot  v.  ^Etna  Ins.  Co.,  61  N.  Y.,  571; 
Harrman  v.  Merchants'  Ins.  Co.,  81  N.  Y.,  184 ;  Rey- 
nolds v.  Commerce  Fire  Ins.  Co.,  47  N.  Y.,  597 ; 
Morse  v.  Buffalo  Fire  Ins.  Co.,  30  Wis.,  534 ;  West- 
cheater  Ins.  Co.  v.  Earl,  33  Mich.,  143 ;  Aurora  Ins. 
Co.  v.  Kranich.,  36  Mich.,  289. 

External  evidence  not  admissible.  The  intention 
of  the  parties  must  be  gathered  from  the  contract. 
Home  Ins.  Co.  v.  Updegraff,  40  Pa.  St.,  311 ;  Hough 
v.  Peoples'  Ins.  Co.,  36  Ind.,  398 ;  Pinder  v.  Resolute 
Ins.  Co.,  47  N.  Y.,  114 ;  Lee  v.  Howard  Ins.  Co..  3 
Gray,  583 ;  Savage  v.  Howard  Ins.  Co.,  52  N.  Y.  504 ; 
Mills  v.  Farmers'  Ins.  Co.,  37  Iowa,  400 ;  McCluskey 
v.  Providence  Ins.  Co.,  126  Mass.,  306. 

Exceptions.  When  insured  is  misled  by  the 
agent  of  the  company,  or  when  the  agent  misde- 
scribes  the  property.  Ga.  Home  Ins.  Co.  v.  Ken- 
nier,  6  Ins.  L.  J.,  497  ;  Manhattan  Ins.  Co.  v.  Weill 
and  Ullinan,  6  Ins.  L.  J.,  521. 

See  note  to  Bakewell  v.  United  Ins.  Co.,  1  Johns. 
Cas.,  246. 

597 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1802 


rate  of  seventeen  and  one  half  per  cent.  The 
defendant  admitted  the  note,  but  claimed  a 
set-off  of  $2,436.75  for  a  return  of  premium. 
The  policy  contained  these  written  words : 
"  To  return  fifteen  per  cent,  in  case  an  insur- 
ance has  been  [here  was  an  erasure]  effected 
in  Europe."  It  also  contained  the  following 
printed  stipulation:  "Provided  that  if  the 
assured  shall  have  made  any  other  assurance 
upon  the  premises  pior  in  date  to  this  policy, 
then  the  insurers  shall  be  answerable  only  for 
so  much  as  the  amount  of  such  prior  assur- 
ance may  be  deficient,  &c.,  and  shall  return 
the  premium  on  so  much  of  the  sum  assured 
as  they  should,  by  such  prior  assurance,  be 
exonerated  from.  And  in  case  of  any  insur- 
ance on  the  premises,  subsequent  in  date  to 
this  policy,  the  insurers  shall  be  answerable 
for  the  full  sum  subscribed,  without  right  to 
claim  contribution  from  such  subsequent  in- 
surers, and  shall  be  entitled  to  retain  the  pre- 
mium in  the  same  manner  as  if  no  such  sub- 
sequent assurance  had  been  made."  The  de- 
fendant proved  that  two  letters  written  by 
Notnagel  &  Co.  to  the  defendant  were  laid 
before  the  plaintiffs.  The  first  was  dated  21st 
May,  1798,  in  which  they  say  :  "  We  intend 
to  send  a  consignment,  &c.,  to  Hamburg,  at 
which  place  we  have  ordered  insurance.  We 
wish  to  insure  here  also,  under  condition  of 
annulling  the  same  in  case  of  double  insur- 
ance." The  second  letter,  dated  the  28th 
May,  1798,  says:  "Please  to  order  insur- 
ance, &c.  The  above  insurance  to  be  made 
on  a  premium  of  seventeen  and  one  half  per 
cent.,  with  condition  to  return  fifteen  per 
cent,  in  case  the  same  should  have  been  pre- 
viously effected  conformably  to  orders  given 
by  sundry  opportunities."  The  defendant 
further  proved  that  the  insurance  was  effected 
by  virtue  of  these  two  letters,  and  that  the 
word  "previously"  was,  at  first,  inserted 
3*]  where  the  erasure  has  been  *noted,  and 
on  the  defendants  objecting,  it  was  struck 
out ;  and  that  it  was  the  intention  of  the 
parties  that  the  insurance  should  be  void  in 
case  of  double  insurance.  On  the  1st  of  May, 
1798,  Notnagel  &  Co.  directed,  by  four  differ- 
ent vessels,  insurance  to  be  made  at  Ham- 
burg. Insurance  was  effected  at  Hamburg; 
but  not  till  the  19th  June,  1798.  The  plaint- 
iffs underwrote  the  policy  on  the  29th  May, 
1798. 

The  cause  was  argued  at  the  last  term,  and 
two  questions  were  raised  for  the  considera- 
tion of  the  court : 

1.  Whether,  by  the  true  construction  of  the 
policy,  the  written  clause  must  not  be  under- 
stood to  refer  as  well  to  a  subsequent  as  to  a 
prior  insurance  at  Hamburg. 

2.  If  not,  then  whether  there  be  sufficient 
legal  testimony,  collateral  to  the  policy,  which, 
in  judgment  of  law,  gives  the  contract  that 
extention. 

Mr.  B.  Livingston  for  the  plaintiffs. 
Mr.  Hamilton,  contra. 

Curia  ad.  vult. 

KENT,  J.,  now  delivered  the  opinion  of  the 
court : 


1.  By  the  true  construction  of  the  policy, 
any  other  insurance  subsequent  to  the  one  in 
question  was  not  to  affect  it.     The  language 
of  the  contract  is  plain  and  decisive.     An  in- 
surance prior  in  date  was  to  exonerate  the 
plaintiffs,  and  entitle  the  defendant  to  a  return 
of    premium.     An    insurance  subsequent  in 
date  was  to  have  no  effect  at  all  on  the  present 
policy.     This  is  the  amount  of    the  printed 
stipulation,  and  whether  a  policy  be  printed 
or  written,  the  construction  upon  it  must  be 
the  same,  as  in  both  cases  the  contract  is  of 
equal  validity. 

If  there  be  any  apparent  contradiction  in  a 
contract,  it  is  the  business  of  the  courts  to  en- 
deavor to  reconcile  the  whole  instrument;  and 
the  language,  which  is  clear  and  explicit,  must 
always  control  that  which  is  obscure  *or  [*4 
equivocal.  But  I  do  not  perceive  aay  contra- 
diction between  the  written  and  the  printed 
stipulation.  By  the  former  the  plaintiffs  were 
to  return  fifteen  per  cent,  in  case  an  insurance 
had  been  effected  in  Europe.  The  expression 
"had  been  effected"  is  perfectly  consistent 
with  the  other  expression,  "provided  any 
other  insurance  prior  in  date  has  been  made," 
&c.,  and  if  there  were  any  uncertainty  in  the 
one  expression,  it  is  wholly  done  away  by  the 
peremptory  and  decisive  provisions  in  the 
printed  stipulation.  If  the  written  clause  be, 
therefore,  taken  in  connection  with  the  subse- 
quent printed  clauses,  as  it  ought  to  be,  since 
they  are  but  connected  parts  of  the  same  con- 
tract, it  cannot  be  understood  to  refer  to  a 
subsequent  insurance.  There  is,  at  most,  but 
a  redundancy  in  the  expressions. 

2.  The  next  point  is,   whether   the    parol 
proof  be  admissible  to  explain  the  contract, 
and  if  it  be,  what  is  the  effect,  in  the  present 
case,  of  such  proof. 

I  know  no  rule  better  established,  than  that 
parol  evidence  shall  not  be  admitted  to  disan- 
nul or  substantially  vary  or  extend  a  written 
agreement.  The  admission  of  such  testimony 
would  be  mischievous  and  inconvenient. 

Parol  evidence  is  to  be  received  in  the  case 
of  an  ambiguitas  latent  to  ascertain  the  identity 
of  a  person  or  thing,  but  before  the  parol  evi- 
dence is  to  be  received  in  such  case,  the  latent 
ambiguity  must  be  made  out  and  shown  to  the 
court. 

In  the  present  instance,  there  is  no  ambigu- 
ity. The  language  of  the  contract,  through- 
out, is  consistent  and  explicit.  This  general 
rule  of  law  has  been  particularly  and  emphat- 
ically applied  to  policies.  (Skin.,  54.)  And 
except  in  the  special  instance  of  explanations 
resulting  from  the  usage  of  trade,  they  have 
never  been  allowed  to  be  contradicted  by  parol 
agreements. 

Without,  therefore,  giving  any  opinion, 
what  would  be  the  effect  of  the  parol  proof,  if 
admissible,  we  think  *it  was  inadmissible.  [*5 
So,  on  both  points  raised,  the  court  are  of 
opinion  with  the  plaintiffs,  and  that  the  ver- 
dict ought  to  stand. 

Judgment  for  the  plaintiffs.1 

Cited  ln-5  Wend.,  547 ;  15  Id.,  562 ;  1  Mason,  146. 

1.— See  Park,  6th  edit.,  1,  4,  546;  Marsh.,  2d  edit., 
345,706. 

JOHNSON'S  CASES,  3. 


1802 


CRUGER  v.  ARMSTRONG  AND  BARNWALL. 


CRUGER 

V. 

ARMSTRONG  AND  BARN  WALL. 

Bank  Checks  —  Action  on  —  Evidence.  2.  Id.  — 
Holder  prima  facie  Owner  —  Presentment  — 
Time.  3.  Id.  —  Id.  —  Time  —  No  presentment 
and  Demand. 

Bank  checks  are  considered  as  inland  bills  of  ex- 
change, and  may  be  declared  on  as  such,  or  they 
may  be  given  in  evidence  under  the  money  counts. 

The  holder  of  such  a  check  or  bill,  is  prima  facie, 
the  rightful  owner,  and  is  not  bound  to  prove  a  con- 
sideration, unless  circumstances  of  suspicion  ap- 
pear. 

The  holder  of  a  check  is  bound  to  use  due  dili- 
g-ence  in  obtaining1  the  money  of  the  bank,  and 
must  present  it  and  demand  payment  within  a  rea- 
sonable time. 

Where  a  check  was  dated  the  12th  April,  1796, 
which  was  never  presented  to  the  bank  for  pay- 
ment, but  a  suit  was  brought  about  four  years 
after,  against  the  drawer,  it  was  held  that  the  plaint- 
iff was  not  entitled  to  recover. 

Citations-1  Salk.,  383;  Str.,  735;  Burr.,  1516;  6 
Term  R.,  123;  Chitty.  190,  191,  197  ;  Chitty,  51;  Chit- 
ty,  16  ;  7  Term  R.,  424  ;  Chitty,  16,  17,  109  et  passim  ;  Bl. 
Rep.,  485  ;  1  Ld.  Raym.,  743  ;  7  Id.,  144  ;  1  Salk.,  132. 


was  an  action  of  assumpsit.  The  dec- 
J-  laration  contained  three  counts:  1.  For 
money  had  and  received  to  the  use  of  the 
plaintiff.  2.  For  money  paid,  &c.  3.  On  an 
insimul  computassent.  Plea,  non  assumpsit. 

The  cause  was  tried  at  the  circuit  in  New 
York  the  23d  December,  1800,  before  Mr. 
Justice  Lewis.  The  counsel  for  the  plaintiff 
produced  and  proved  a  check  drawn  by  the 
defendants,  in  the  handwriting  of  Armstrong, 
as  follows:  "Cashier  of  the  bank  of  New 
York,  pay  to  W.  &  J.  C.,  or  bearer,  twenty- 
five  hundred  dollars.  New  York,  the  12th 
April,  1796.  (Signed)  Armstrong  and  Barn- 
wall." 

The  counsel  for  the  defendants  objected  to 
the  check,  as  evidence  under  the  counts  in  the 
declaration  ;  that  it  was  an  inland  bill,  and 
ought  to  have  been  declared  on  as  such,  and 
insisted  that,  at  all  events,  the  plaintiff  ought 
to  be  called  upon  to  prove  that  payment  of 
the  check  had  been  demanded  at  the  bank. 
It  was  proved  that  on  the  day  of  the  date  of 
this  check,  checks  of  the  defendants  on  the 
same  bank,  to  the  amount  of  $3,500,  had  been 
paid,  and  that,  on  the  close  of  the  bank  busi- 
ness on  that  day,  there  remained  $400  to  the 
credit  of  the  defendants;  that  the  defendants 
were  merchants  of  credit,  and  were  in  the 
daily  practice  of  paying  money  into,  and 
drawing  it  out  of  the  bank,  until  the  dissolu- 
tion of  .  their  partnership,  on  the  2d  July, 
<>*]  1798.  It  was  also  *proved  that  the  defend- 
ants never  had  any  consideration  for  the 
check,  which  was  lent  to  Pfister  &  Macomb, 
for  their  accommodation,  and  had  been  passed 
by  them,  through  a  broker,  to  the  plaintiff. 

The  jury,  under  the  direction  of  the  judge, 
found  a  verdict  for  the  plaintiff. 

A  motion  was  made,  at  the  last  term,  to  set 
aside  the  verdict  and  for  a  new  trial,  which 
was  argued  by 

Mr.  Hamilton  for  the  defendants,  and 
Mr.  B.  Livingston  for  the  plaintiff. 


NOTE.— Presentment  of  check  for  payment,  effect  of 
delay.    See  Conroy  v.  Warren,  post,  359. 

JOHNSON'S  CASES,  3. 


RADCLIFF,  J.  Three  objections  are  made 
on  the  part  of  the  defendants: 

1.  That  the  check  could  not  be  given  in 
evidence  under  any  of  the  counts  in  the  dec- 
laration. 

2.  That  it  was  incumbent  on  the  plaintiff 
to  show  that  he  came  lawfully  into  the  posses- 
sion of  it. 

3.  That  the  plaintiff  ought  to  have  present- 
ed the  check  and  demanded  payment  at  the 
bank. 

With  respect  to  the  first  objection,  consider- 
ing the  check  either  as  a  bill  of  exchange  or 
a  draft  of  any  other  description,  the  plaintiff 
would  be  equally  entitled  to  give  it  in  evidence 
under  the  money  counts.  It  appears  to  be 
settled  in  practice  (1  Salk.,  283;  Str.,  725; 
Burr..  1516;  6  Term  Rep.,  123;  Chitty,  190, 
191,  197),  that  the  payee  of  a  promissory  note 
or  bill  of  exchange  may,  as  against  the  maker 
or  drawer,  declare  for  money  lent,  and  give 
the  note  or  bill  in  evidence.  In  the  present 
instance  the  bill  or  check  was  payable  to 
bearer,  and  the  plaintiff,  whether  the  first  or 
a  subsequent  bearer,  stands  in  the  same  re- 
lation as  the  payee  of  any  other  bill. 

The  second  objection  is  also  untenable. 
Whatever  may  formerly  have  been  suppose 
to  be  the  rule  on  this  subject,  I  think  the  ne- 
cessity of  showing  that  the  possessor  is  law- 
fully entitled  to  the  bill  has  been  properlv 
*dispensed  with.  The  holder  must,  prima  [*t 
facie,  be  deemed  to  be  the  rightful  owner 
(Chitty,  51 ;  Burr.,  1516),  and  it  has,  accord- 
ingly, been  held  that  he  need  not  prove  a  con- 
sideration, except  where  circumstances  of  sus- 
picion appear. 

The  third  objection  appears  to  be  more  im- 
portant. A  check,  although  generally  received 
as  cash,  when  given  in  payment,  is,  in  form 
and  in  reality,  a  bill  of  exchange.  It  possesses 
all  the  requisites  of  a  bill,  and  has  been  treat- 
ed as  such.  It  has  been  held  to  be  negotiable 
and  may  be  declared  upon  as  a  bill  of  exchange. 
(Chitty,  16  ;  7  Term  Rep.,  423.)  It  is  therefore 
necessary  to  be  presented  for  payment,  and  is 
generally  subject  to  the  same  rules.  The 
draft  itself  implies  that  payment  is  to  be  de- 
manded of  the  drawees.  The  person  who 
takes  it  receives  it  on  that  condition.  It  is  not 
a  direct  promise  to  pay  by  the  drawer,  as  by 
the  maker  of  a  promissory  note  ;  but  the 
drawer  undertakes  that  the  drawee  shall  ac- 
cept and  pay,  and  is  answerable  only  in 
case  of  his  failure.  It  is  accordingly  consid- 
ered not  as  due  from  him,  until  such  demand 
be  made,  and  the  drawee  refuses  payment. 

The  cases  on  this  subject,  it  is  true,  relate 
to  checks  drawn  on  private  bankers  ;  but  I  see 
no  difference,  in  principle,  between  the  case 
of  an  individual  banker  and  an  associated  cor- 
poration of  bankers.  The  general  reasons  are 
the  same,  although  the  probability  of  a  loss  by 
the  failure  of  the  latter  is  more  remote. 

On  the  evidence,  there  may  be  a  doubt 
whether  the  defendants  had  sufficient  funds  in 
the  bank  on  that  day  for  the  payment  of  the 
draft.  The  want  of  funds  may  excuse  the 
want  of  notice  of  the  nonpayment,  but  it 
cannot  be  a  reason  to  dispense  with  the  pre- 
sentment or  demand  of  payment.  The  draw- 
ees, without  funds,  might  have  paid  it  for  the 
honor  of  the  drawers.  A  demand  is  still  nec- 

599 


SUPREME  COUKT,  STATE  OF  NEW  YORK. 


1802 


essary,  and  it  is  after  the  dishonor  of  the  draft 
only  that  the  holder  can  require  payment  from 
the  drawer.  It  is  unnecessary,  in  the  present 
8*]  case,  to  decide  within  what  *time  such 
demand  ought  to  be  made,  or  what  would  be 
the  effect  of  presenting  the  draft  for  payment, 
even  at  this  day.  If  such  had  been  the  case, 
other  circumstances  might  come  into  view,  and 
present  a  question  which  it  is  not  material 
now  to  examine. 

On  the  whole,  I  am  of  opinion  that  a  new  trial 
ought  to  be  granted. 

KENT,  J.  Checks  are,  substantially,  the 
same  as  inland  bills,  and  are  negotiable  like 
inland  bills  payable  to  bearer.  (Chitty,  16,  17, 
109,  et  passim.)  Lord  Kenyon,  in  a  late  case 
(Boem  et  al.  v.  Sterling  et  al.,  7  Term  Rep., 
423),  said  he  was  satisfied  there  was  no  dis- 
tinction between  checks  and  bills  ;  and  in  that 
case  the  check  was  declared  upon  as  a  bill  of 
exchange,  and  so  it  was,  also,  in  the  case  of 
Grant  v.  Vaughan  (3  Burr.,  1516  ;  1  Bl.  Rep., 
485),  in  which  it  is  called  a  cash  note  or  bill. 
A  check  has  all  the  requisites  of  a  bill  of  ex- 
change. Coming  within  the  general  rule  of 
bills,  the  holder  of  the  check  in  question  was 
bound  to  prove  a  demand,  or  due  diligence  to 
get  the  money  of  the  bank  on  whom  the  check 
was  drawn.  The  bank  was  first  to  be  resorted 
to,  and  the  drawers  of  the  check  were  only  to 
come  in  aid  of  the  default  of  the  bank.  In 
the  cases  of  Grant  v.  Vaughan,  and  Boem  et 
al.  v.  Sterling  et  al. ,  to  which  I  have  already 
alluded,  the  holders  of  the  checks  first  de- 
manded payment  of  the  bankers  on  whom 
they  were  drawn,  and  then  they  resorted  to 
the  drawer.  It  seems  to  be  admitted,  on  all 
hands,  that  a  banker's  check  must  be  present- 
ed for  payment  in  a  reasonable  time  ;  other- 
wise the  holder  takes  upon  himself  the  risk 
of  the  banker's  responsibility ;  and,  then,  says 
one  of  the  cases  (1  Ld.  Raym.,  743),  if  a  bank- 
er will  not  pay  it,  it  will  charge  him  who  gave 
the  note.  This  universal  admission  seems  to 
me  pretty  decisive,  to  show  that  it  is  the  duty 
of  the  holder  to  present  it  for  acceptance. 

Goldsmiths'  or  bankers'  notes  to  which 
9*]  checks  have  *been  likened,  are  seldom 
now  used,  but  have  been  superseded  by  the 
introduction  of  checks,  which,  on  account  of 
their  being  payable  on  demand,  are  considered 
as  cash,  and,  like  bankers'  checks,  are  trans- 
ferable by  delivery,  and  are  governed  by  the 
same  laws  and  rules  as  bills  of  exchange.  So 
long  ago  as  the  time  of  Lord  Holt  (7  Ld. 
Raym.,  144;  1  Salk.,  132,8.  C.)(  goldsmiths' 
bills  were  held  to  be  governed  by  the  rules  of 
bills  of  exchange,  and  if  the  money  be  de- 
manded in  a  reasonable  time,  and  not  paid,  it 
will  charge  him  who  gave  the  bill. 

A  check  is  not  due  until  demanded,  and, 
even  independent  of  authority,  I  consider  this 
to  be  the  import  and  nature  of  the  agreement. 
The  drawer  undertakes  specially  that  the 
money  shall  be  paid  by  the  person  on  whom 
the  check  is  drawn,  and  the  money  is  sup- 
posed to  be  appropriated  for  that  purpose  in 
the  drawee's  hands. 

It  would  be  unreasonable,  and  contrary  to 
the  agreement,  for  the  holder,  instead  of  re- 
sorting to  the  fund  in  the  hands  of  the  drawee, 
to  make  his  demand  promptly,  and,  in  the  first 
000 


instance,  of  the  drawer  himself.  The  drawer 
may  not  have  the  means  of  payment,  except 
from  the  fund  pointed  out,  and  that  fund  may 
be  at  a  distance,  and  in  the  mean  time  his 
credit  will  suffer  by  drawing  a  check  which 
he  cannot  instantly  pay.  He  must  not  be  un- 
derstood as  promising  to  pay,  except  upon  the 
default  of  the  drawee,  and,  as  Ch.  J.  Holt  ob- 
served, in  the  case  of  Tassett  and  Lee  v.  Lewis 
(1  Ld.  Raym.,  743),  if  the  payee  does  not  like 
the  check,  or  that  mode  of  payment,  he  ought 
to  refuse  it;  but  having  accepted  it,  it  is  at 
his  peril. 

In  the  present  case  there  is  no  such  demand 
proved,  nor  is  there  anything  so  peculiar  in 
this  case  as  to  take  it  out  of  the  general  rule. 
It  cannot  be  considered  as  a  check  fraudulent- 
ly drawn  without  effects  in  the  hands  of  the 
banker.  The  presumption  is  that  the  check 
would  have  been  paid  if  diligently  presented. 
At  least,  there  *is  not  evidence  sufficient  [*  1O 
to  justify  a  resort  to  the  drawer,  without  hav- 
ing made  the  experiment. 

On  the  ground,  therefore,  of  a  want  of  proof 
of  a  demand  akthe  bank,  I  am  of  opinion  the 
evidence  did  not  warrant  the  verdict,  and  that 
it  ought  to  be  set  aside,  with  costs  to  abide  the 
event,  it  having  arose  from  the  misdirection 
of  the  judge. 

LEWIS,  Ch.  J.,  dissented. 
New  trial  granted. 

Criticised  in— 14  Wend.,  590. 

Cited  in— 3  Johns.  Cos.,  264 ;  12  Johns.,  95 ;  6  Cow., 
491 ;  6  Wend.,  445,  643 ;  7  Wend.,  175 ;  13  Wend.,  553 ; 
21  Wend.,  373,  505;  2  Hill,  427 ;  6  N.  Y.,  418 ;  8  Id., 348 ; 
11  Hun.,  485 ;  11  How.,  472 ;  1  Abb.,  149 ;  16  Abb.,  147 : 
4Duer,  334;  1  Hall,  80;  2  Hall,  463;  1  Saund.,  67;  1 
Sheld.,  396;  3  E.  D.  Smith,  549;  2  McLean,  237;  2 
Story,  513,  516,  517. 


PATRICK  v.  LUDLOW. 

1.  Marine  Insurance — "At  and  From"  defined. 
2.  Deviation — Protection  of  Convoy — Storm — 
Separation — Continuance  Without  Convoy — 
Capture. 

The  words  "at  and  from,"  in  a  policy  on  goods, 
means  from  the  time  the  goods  are  laden  on  board 
the  vessel. 

Insurance  from  Surinam  to  New  York.  The  mas- 
ter of  the  vessel  being  informed  that  French  priva- 
teers were  cruising  in  the  windward  passage,  and  in 
the  usual  route  from  Surinam,  determined  to  take 
the  leeward  passage,  and  touched  at  Demerara  to 
take  the  protection  of  a  British  convoy  then  about 
to  sail,  but  a  few  hours  after  anchoring  there,  was 
driven  to  sea  in  a  gale  of  wind,  and  afterwards  con- 
tinued her  voyage,  without  convoy,  and  .was  capt- 
ured by  a  French  privateer.  This  was  held  not  to 
be  a  deviation,  the  master  having  acted  bona  fide, 
and  with  the  sole  view  to  avoid  danger,  and  to  seek 
the  safest  course  to  New  York. 

Citations— Park,  409,  or  410  (6th  edition). 

T^HIS  was  an  action  on  a  policy  of  insurance 
1     on  goods  on  board  the  schooner  Sally,  at 


NOTE.— Mart ne  Insurance— Deviation— Deflnit ion 
of. 

A  deviation  is  a  voluntary  departure,  without  ne- 
cessity or  reasonable  cause,  from  the  regular  and 
usual  course  of  the  voyage  insured,  or  an  unneces- 
sary or  unreasonable  delay  before  or  after  the  com- 
mencement of  the  voyage  insured.  Coffin  v.  New- 
buryport  Marine  Ins.  Co.,  9  Mass.,  436. 

General  rule.    A  deviation    avoids    the  policy. 

JOHNSON'S  CASES.  3. 


1802 


PATKICK  v.  LUDLOW. 


10 


and  from  Surinam  to  Fredericksburgh  in  Vir- 
ginia, beginning  the  adventure  from  the  lad- 
ing of  the  goods  on  board  at  Surinam.  The 
policy  was  dated  the  27th  September,  1799. 
The  cause  was  tried  at  the  New  York  sittings, 
in  June,  1801,  before  Mr.  Justice  Lewis.  On 
the  26th  August,  1799,  the  schooner  sailed 
from  Surinam  on  the  voyage  insured.  About 
five  days  before  she  sailed,  the  master  was  in- 
formed by  a  Danish  captain,  that  on  his  passage 
from  St.  Thomas's,  he  had  met  with  French 
privateers,  and  the  master  accordingly,  thought 
it  unsafe  to  go  to  windward,  as  that  would 
lead  him  in  the  track  of  the  privateers,  and 
hearing  that  there  was  an  English  convoy 
about  sailing  from  Demerara,  he  thought  it  ad- 
visable to  get  under  its  protection,  and  so  de- 
termined to  touch  at  Demerara.  On  the  29th 
August  the  Sally  arrived  at  Demerara,  and 
anchored  off  the  port.  About  four  hours 
1 1*]  after  she  parted  *her  best  bower  cable, 
in  a  violent  squall  of  wind,  and  was  forced  to 
sea  without  waiting  for  the  convoy.  On  the 
3d  September,  she  was  captured  by  a  French 
privateer,  and  carried  into  Guadaloupe,  where 
the  vessel  and  cargo  were  condemned.  The 
route  the  Sally  took  from  Surinam  homeward, 
and  which  the  convoy  would  also  have  pur- 
sued, to  wit,  the  leeward  passage,  and  through 
the  Sail  Rock  passage,  was  a  route  very  fre- 
quently taken  by  American  masters,  on  their 
return  from  Surinam  to  the  United  States ; 
and  in  particular  situations  of  wind  and  cur- 
rents it  is  necessarily  taken.  The  schooner 
left  Fredericksburgh  in  April,  1799,  and  ar- 
rived at  Surinam  in  June.  The  master,  find- 
ing the  markets  low  at  Surinam,  went,  by  di- 
rection of  the  supercargo,  to  Demerara,  where 
the  supercargo  died,  having  sold  the  greater 
part  of  the  cargo.  The  master  received  pay- 
ment for  the  cargo  in  specie,  and  returned  to 
Surinam  to  obtain  a  homeward  cargo.  The 
passage  from  Surinam  to  Demerara  and  back 
occupied  about  six  weeks.  The  schooner  con- 
tinued at  Surinam  until  the  29th  August,  when 
she  sailed  on  her  homeward  voyage,  as  above 
mentiohed.  About  two  days  before  the  schoon- 
er left  Demerara,  there  was  a  British  sloop  of 
war  cruising  off  the  coast,  and  sailed  from 
thence  with  the  few  vessels  there,  to  join  a 
convoy  at  Martinique,  for  England.  The  mas- 
ter of  the  Sally  did  not  know  whether  there 
was  any  armed  vessel  at  Demerara  when  he  ar- 
rived there  the  second  time,  to  serve  as  con- 
voy. He  intended  to  wait  to  be  informed  by 
boats  without  going  up  the  river.  There  was 
no  public  notice  at  Surinam  of  any  convoy 
being  at  Demerara  when  the  Sally  left  Surin- 
am. The  only  information  the  master  had 


was  from  the  captain  of  a  British  schooner 
from  Martinique.  There  was  a  British  fleet 
at  Surinam  when  the  Sally  left  it,  but  no 
British  merchantmen,  except  such  as  came 
with  troops. 

To  this  evidence,  on  the  part  of  the  plaintiff, 
there  was  a  demurrer ;  and  the  question  was, 
whether,  in  judgment  *of  law,  it  was  [*12 
sufficient  to  entitle  the  plaintiff  to  recover. 
The  cause  was  argued  at  the  last  term,  by 

Mr.  B.  Livingston  for  the  plaintiff,  and 
Messrs.  Pendleton    and  Harison  for  the  de- 
fendant. 

RADCLIFF,  J.  Two  points  are  insisted  on  by 
the  defendant: 

1.  That  the    policy    commencing  at    and 
from  Surinam  reaches  back  to  the  first  arrival 
of  the  schooner  there,  and  attached  before  the 
intermediate  voyage,  which  was  manifestly  a 
deviation,  and  that,  therefore,  the  policy  was 
discharged. 

2.  Admitting  that  the  policy  did  not  attach 
till  the  last  departure  of  the  schooner  from 
Surinam,  the  voyage  to  the  leeward,  and  par- 
ticularly, the  touching  and  stay  at  the  port  of 
Demerara,  were  also  deviations,  and  discharged 
the  policy. 

1.  The  first  objection  would  only  apply  to  a 
policy  on  the  ship.     A  policy  on  goods,  for 
any  voyage,  from  the  nature  of  the  subject, 
cannot  attach  till  they  leave  the  shore  to  be 
laden    on    board.      The  risk  on    goods,   ac- 
cording to  the  form  of  our  policies,  usually 
commences  from  the  loading  on   board.     In 
this  instance  the  language  of  the  policy,  in  one 
respect,  is  double.     The  insurance  is  expressed 
to  be  at  and  from   Surinam,  and  yet,  as  in 
other  policies,  describes  the  adventure  to  begin 
from  and  immediately  following  the  loading 
thereof  on    board.     It,   however,   manifestly 
cannot  apply  to  the  period  during  which  the 
intermediate  voyage,  with  the  outward-bound 
cargo  to  Demerara,  was  performed.    That  voy- 
age cannot  therefore  constitute  a  deviation. 

2.  It  remains  to  be  considered  whether  the 
route  to  the  leeward,  or  the  touching  and  stay 
at  the  port  of  Demerara, '*will  amount  [*13 
to  a  deviation.     In  determining  on  a  demur- 
rer to  evidence,  it  was  rightly  admitted  that 
the  evidence,  and  its  legal  results,  mu'st  be  re- 
ceived as  true.     From  the  testimony  in  this 
case  there  is  nothing  to  impeach  the  motives 
of  the  captain.     He  appears  to  have  acted  bona 
fide,  and  for  the  security  of  all  concerned.     It 
is  well  known  that  those  seas  were  infested 
with  privateers  at  the  time.     The  captain  was 
informed  by  the  master  of  a  Danish  vessel  im- 


Martin  v.  Delaware  Ins.  Co.,  2  W.  C.  C.,  254 ;  Glidden 
v.  Manufacturers'  Ins.  Co.,  1  Sum.,  232 ;  Buckley  v. 
Protection  Ins.  Co.,  2  Paine,  82 ;  Hood  v.  Nesbitt,  1 
Yeates  (Pa.),  114 ;  S.  C..  1  Ball.,  137  ;  Murray  v.  Co- 
lumbian Ins.  Co.,  4  Johns.,  443 ;  see,  also,  all  cases 
cited  in  this  note. 

Detention  to  save  life  is  not  a  deviation.  Other- 
wise, to  save  property.  The  Boston,  1  Sum.,  328 ; 
The  Henry  Ewbank,  1  Sum.,  401 ;  Bond  v.  The  Cortfc- 
2  Wash.  C.  C.,  80 ;  Crocker  v.  Jackson,  1  Sprague, 

Mere  intent.  Intent  to  deviate,  however  deliber- 
ately formed,  is  not  of  itself  a  deviation,  the  under- 
writers being1  discharged  only  from  the  time  of  the 
actual  deviation.  Coffin  v.  Newburyport  Marine 
Ins.  Co.,  9  Mass.,  436;  Marine  Ins.  Co.  v.  Tucker,  3 

JOHNSON'S  CASES,  3. 


Cranch,  357;  Fitzimmons  v.  Newport  Ins.  Co.,  4 
Cranch,  185;  Lee  v.  Gray,  7  Mass.,  349;  Lawrence  v. 
Ocean  Ins.  Co.,  11  Johns.,  241 ;  Winter  v.  Delaware, 
30  Pa.  St.,  334 ;  McFee  v.  A.  C.  Ins.  Co.,  2  McCord  (S. 
C.),  503;  Hobart  v.  Norton,  8  Pick.,  241. 

See,  also,  Gilfert  v.  Hallett,  ante,  2  Johns.  Cas.,  296, 
and  note. 

Delay,  if  unnecessary,  is  a  deviation.  Oliver  v. 
Md.  Ins.  Co.,  7  Cranch,  487 ;  Md.  Ins.  Co.  v.  Le  Roy 
7  Cranch,  26;  U.  S.  v.  The  Paul  Sherman,  Pet. 
C.  C.,  98 ;  Whitney  v.  Haven,  13  Mass.,  172 ;  Colum- 
bian Ins.  Co.  v.  Catlett,  12  Wheat.,  384 ;  Seaman  v. 
Loring,  1  Mass.,  137  ;  Augusta,  etc.,  Ins.  Co.  v.  Ab- 
bott, 12  Md.,  348. 

See  Earl  v.  Shaw,  ante,  1  Johns.  Cas.,  314,  and 
note. 

601 


13 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


mediately  from  St.  Thomas  that  he  had  been 
twice  boarded  by  French  privateers  in  the 
windward  passage,  and  saw  them  in  possession 
of  two  American  vessels.  This  information 
induced  the  master  to  take  the  leeward  pass- 
age, which,  it  is  proved,  is  very  frequently 
taken  by  American  vessels,  and,  at  certain 
times,  is  necessarily  taken.  The  resolution  to 
take  this  passage,  if  not  at  all  times  proper, 
was,  I  think,  under  those  circumstances,  justi- 
fiable, to  avoid  danger,  and  ought  not  to  be 
deemed  a  deviation. 

As  to  the  touching  and  stay  at  Demerara, 
for  the  purpose  of  convoy,  I  think  it  also 
justifiable  upon  the  evidence,  if  the  captain 
had  that  object  and  no  other  in  view.  It  is  no 
deviation  to  depart  from  the  usual  course  of  a 
voyage,  to  meet  with  convoy,  in  case  of  real 
danger,  or  to  seek  the  safest  way  home.  If 
this  position  wanted  authority,  it  is  supported 
by  Lord  Mansfield,  in  the  case  of  Enderby  v. 
Fletcher  (Park.,  309,  or  410,  6th  ed.)..  The  in- 
quiry in  such  cases,  therefore,  ought  to  be, 
whether  the  captain  acted  bona  fide  and  on 
reasonable  grounds.  In  this  instance,  he  did 
not  know  of  there  being  a  convoy  at  Deme- 
rara, but  he  was  so  informed  by  the  captain  of 
a  British  schooner  from  Martinique,  who  came 
down  with  the  British  fleet  which  took  Sur- 
inam, and  a  brig  had  actually  gone  to  Deme- 
rara .for  convoy.  It  further  appears  that  the 
expected  convoy  was  to  pursue  the  route  in- 
tended by  the  captain.  On  this  evidence,  and 
considering  the  relative  situation  of  Demerara, 
I  think  there  was  reasonable  cause  to  stop 
there  to  look  for  convoy,  and  sufficient  ground 
14*]  for  the  jury  to  believe  *that  in  doing 
this,  the  captain  acted  with  good  faith  and  ex 
Justa  cawa.  If  the  jury  would  be  authorized 
to  make  this  conclusion,  we  must  consider  it 
as  admitted  by  the  demurrer,  and,  of  course, 
there  ought  to  be  judgment  for  the  plaintiff. 

KENT,  J.  The  loss,  in  this  case,  was  con- 
sidered as  sufficiently  established  by  the  capt- 
ure. The  only  question  is,  whether  the  de- 
fendant was  not  discharged  by  reason  of  a  de- 
viation, arising,  first,  from  going  to  Demerara 
l>y  direction  of  the  supercargo  to  sell  the  out- 
ward cargo  ;  and,  second,  from  going  there, 
on  the  return  voyage,  to  seek  for  convoy. 

1.  Ttie  first  charge  of  deviation  is  of  no 
avail,  because  the  policy  had  not  then  attached. 
The  policy  was  on  the  homeward  cargo,  be- 
ginning from  the  lading  of  the  goods  on  board 
at  Surinam.  As  soon  as  the  goods  were  on 
board,  the  policy  attached,  as  well  while  the 
vessel  was  "  at,"  as  on  her  return  "  from," 
Surinam.  But  we  cannot  intend  from  the 
proofs,  that  the  homeward  cargo  was  laden 
on  board  until  the  return  of  the  vessel  from 
her  first  visit  to  Demerara,  for  she  went  there  to 
sell  her  cargo,  and  the  greater  part  was  sold 
there,  and  the  proceeds  thereof  received  in 
cash,  when  she  returned  to  Surinam  to  ob- 
tain a  homeward  cargo. 

The  true  rule  on  this  subject  is,  that  "at" 
and  "  from,"  when  applied  to  a  ship,  includes 
the  period  of  her  stay  in  the  port  from  the 
time  of  her  arrival  there.  But  "  at "  and 
"  from,"  when  applied  to  goods,  means  from 
the  time  those  goods  are  put  on  board  the 
vessel. 
•02 


2.  With  respect  to  the  other  charge  of  devia- 
tion, the  question  is,  was  the  going  to  Deme- 
rara to  seek  for  convoy  a  departure,  without 
necessity  or  any  reasonable  cause,  from  the 
regular  and  usual  course  of  the  voyage  in- 
sured ? 

It  is  in  proof  that  the  master  had  reason  to 
fear  he  should  meet  with  French  priva- 
teers, if  he  pursued  the  windward  passage 
home,  and  that  the  leeward  passage, 
*which  he  took,  was  very  frequently  [*I5 
adopted  by  American  vessels,  on  their  return 
from  Surinam,  and  in  particular  situations  of 
wind  and  currents  was  necessarily  taken. 

So  far,  I  think,  the  jury  might  well  have  in- 
ferred that  taking  the  leeward  passage  was 
no  deviation.  The  touching  at  Demerara, 
which  must  be  considered  a  small  deviation 
from  the  regular  course,  was  for  the  purpose 
of  seeking  the  protection  of  an  English  con- 
voy, as  the  master  had  heard  from  the  captain 
of  a  British  schooner  from  Martinique,  that 
such  convoy  was  about  sailing  from  Deme- 
rara. A  deviation,  if  done  to  avoid  an 
enemy,  or  to  seek  for  a  convoy,  is  justifiable. 

It  is  no  deviation  to  go  out  of  the  way  to 
avoid  danger.  It  is  in  every  such  case  a  mat- 
ter of  fact  whether,  the  captain  acted  fairly 
and  bona  fide,  according  to  the  best  of  his 
judgment,  and  had  no  other  motive  or  view 
but  to  come  the  safest  way  home,  or  to  seek 
for  convoy.  I  think  the  testimony  offered  led 
to  this  conclusion,  and  that  the  jury  might 
well  have  made  it  from  the  testimony  ;  and  on 
a  demurrer  to  evidence,  every  such  conclusion 
is  to  be  admitted. 

I  am  of  opinion,  therefore,  that  judgment 
ought  to  be  given  for  the  plaintiff,  for  the 
damages  assessed. 

LEWIS,  Ch.  J.,  was  of  the  same  opinion. 
Judgment  for  the,  plaintiff.1 

Cited  in— 4  Denio,  362 ;  8  N.  Y.,  74 ;  Olcott,  371 ;  1 
Mason,  140. 


*COIT  AND  WOOLSEY 
SMITH. 


[*16 


Marine  Insurance — On  Horses — "  All  Risks,  In- 
cluding Death  " — Loss  after  Landing — Condi- 
tion of  Cargo  wJien  Landed. 

Insurance  on  horses  from  Liverpool  to  New  York, 
"  against  all  risks,  including  the  risk  of  death,  from 
any  cause  whatever,  until  they  shall  be  safely  land- 
ed." About  three  days  before  the  arrival  of  the 
vessel  at  New  York,  she  met  with  a  violent  gale  of 
wind  and  heavy  sea,  which  caused  her  to  roll  very 
much,  by  which  means  one  of  the  horses  was  thrown 
down  and  bruised,  in  consequence  of  which  he  re- 
fused to  eat,  and  died  in  three  days  after  he  was 
landed  at  New  York. 

It  was  held  that  the  horse  received  his  death- 
wound  by  the  perils  of  the  sea,  and  that  the  plaint- 
iff was  entitled  to  recover  the  full  value  of  the 
horse. 

Citation— 1  Term  R.,  252. 

pHIS  was  an  action  on  a  policy  of  insurance 
-L   on  horses,  on  board  the  ship  Perseverance, 

1.— See  Reave  v.  Commercial  Insurance  Company, 
8  Johns.  Rep.,  252 ;  2  Emerigron,  58.  59,  60 ;  Roccus, 
de  Assec.,  52,  93 ;  Pothier  des  Assur.,  n.  61 ;  Mar- 
shall, bk.  1,  ch.  6,  sec.  3,  p.  211. 

JOHNSON'S  CASES,  3. 


1802 


STEADFAST,  EX  DEM.  W.  NICOLL,  ET.  AL.  v.  H.  NICOLL. 


16 


from  Liverpool  to  New  York,  "against  all 
risks,  including  the  risk  of  death  from  any 
cause  whatever  ;  until  the  goods  shall  be 
safely  landed,"  &c. 

The  value  of  the  horses  shipped  on  the  voy- 
age was  proved  to  be  two  thousand  five  hun- 
dred and  forty-eight  dollars.  Three  days  be- 
fore the  arrival  of  the  vessel  at  New  York  it 
came  on  to  blow  a  violent  gale,  the  ship  roll- 
ing very  much  and  the  sea  running  very  high. 
During  the  gale,  one  of  the  horses  was  thrown 
off  his  legs,  and  was,  with  great  difficulty,  got 
up.  Before  the  gale,  the  horse  was  in  good 
condition,  and  more  healthy  than  any  other 
iorse  on  board  the  ship  ;  but  by  the  fall,  he 
was  much  injured,  and  refused  to  eat,  and  con- 
tinued to  refuse  to  eat  after  he  was  landed, 
and  died  in  three  or  four  days  after  he  was 
landed  in  New  York. 

After  his  death,  a  farrier  opened  him,  and 
found  that  his  death  was  occasioned  by  violent 
bruises  in  his  breast  ;  and  the  farrier,  who  saw 
the  horse  before  he  was  landed,  was  of  opinion 
that  it  was  impossible  for  him  to  have  recovered, 
from  the  state  in  which  he  then  appeared  to  be. 

The  declaration  stated,  that  by  the  dangers 
and  violence  of  the  seas,  &c. ,  the  horse  was 
so  wounded,  bruised,  &c.,  that  he  then  and 
there  became  of  no  value  to  the  plaintiffs,  and 
that  although  he  was  afterwards  landed,  yet 
~by  reason  of  the  wounds,  &c.,  aforesaid,  he 
continued  sick,  lame,  and  languishing,  until 
afterwards,  &c.,  he  died. 

A  verdict  was  found  for  the  plaintiffs,  sub- 
ject to  the  opinion  of  the  court  on  the  above 
case,  which  was  argued  at  the  last  term. 

17*]     *Mr.  Hopkins  for  the  plaintiffs. 
Mr.  C.  J.  Bogert,  contra. 

RADCLIFP,  J.  The  question  is,  whether  the 
defendant  is  liable  for  the  damage  sustained  by 
the  injury  suffered  by  means  of  this  accident? 
The  injury  is  clearly  within  the  risks  expressed 
in  the  policy,  and  happened  during  the  voyage 
insured.  If  the  horse  had  been  thus  partially 
injured  and  continued  to  live,  there  could 
have  been  no  doubt  but  the  defendant  would 
have  been  liable  for  the  proportionate  diminu- 
tion of  its  value.  His  subsequent  death  can- 
not alter  the  case.  It  is  not,  as  has  been  sup- 
posed, the  gravamen  alleged,  but  merely  evi- 
dence of  the  extent  of  the  injury  ;  his  death- 
wound  being  received  during  the  voyage. 
The  cause  of  action  existed  before,  and  the 
allegation  of  his  death  might  have  been  wholly 
omitted  In  the  plaintiff's  declaration.  As  has 
been  observed  by  the  counsel  for  the  plaintiffs, 
it  is  the  common  case  of  damaged  goods,  and 
the  amount  of  the  damages  ascertained  by  sub- 
sequent evidence  attending  the  subject. 

The  horse  appearing  to  be  wholly  lost,  I  think 
the  plaintiffs  are  entitled  to  recover  his  value. 

KENT,  J.  I  fully  agree  in  the  doctrine  laid 
down  in  the  .case  of  Lockyer  et  al.  v.  Offley  (1 
Term  Rep.,  252),  that  the  insurer  is  not  liable 
for  losses  happening  after  the  term  prescribed 
in  the  policy,  although  the  subsequent  loss  be 
a  consequence  of  a  peril  in  the  policy.  What 
was  the  condition  of  the  cargo  when  it  was 
JOHNSON'S  CASES,  3. 


landed,  is  the  only  question.  In  this  case,  one 
of  the  horses  received  a  death-wound  during 
the  voyage,  and  by  reason  of  the  perils  speci- 
fied in  the  policy.  Surely  the  damages  so 
received,  as  they  existed  at  the  termination  of 
the  voyage,  are  a  proper  subject  of  retribu- 
tion. The  subsequent  death  of  the  horse  is  to 
be  put  wholly  out  of  view.  How  much  was 
he  injured  by  the  bruises,  and  how  much  dam- 
age *ought  to  have  been  assessed,  at  the  [*18 
time  he  was  landed,  are  the  proper  subjects  of 
inquiry.  The  subsequent  death  of  the  horse 
ought  not  to  put  the  plaintiffs  in  a  worse  situ- 
ation than  if  he  had  survived  the  bruises.  It 
ought  not  to  go  to  the  destruction  of  the 
plaintiffs'  right  of  action.  If  the  plaintiffs 
would  have  had  a  right  of  action  for  an  injury 
to  the  horse,  by  which  his  value  was  lessened, 
had  the  horse  survived,  they,  surely,  must  have 
that  right  of  action,  notwithstanding  the  sub- 
sequent increase  of  loss.  We  must  say  that 
the  present  policy  was  merely  upon  the  exist- 
ence of  the  lives  of  the  horses  for  the  voyage, 
or  the  plaintiffs  must  recover  an  average  loss. 
There  is  no  alternative. 

I  am  of  opinion  they  are  entitled  to  recover, 
and  to  the  full  amount  of  the  horse,  for  he 
was  so  disabled  by  the  fall  as  that  he  could  not 
eat  before  he  landed,  and  died  three  or  four 
days  after.  It  was  a  total  loss  of  the  horse. 

LEWIS,  C h.  J.,  was  of  the  same  opinion. 
Judgment  for  the  plaintiffs. 

Cited  in— 3  Keyes,  396 ;  1  Abb.  App.  Dec.,  565 ;  19 
How.,  315;  S.  C.,  5  Bosw.,  378;  2  Trans.  App.,  131. 


STEADFAST,  ex  dem.  W.  NICOLL,  ET  AL. 


H.  NICOLL. 

Devise  —  Posthumous  Ghildr-  Remainders  —  Suc- 
cessors in  tail  —  Contingent  Remainders. 

N.  in  August,  1778,  devised  land  to  his  son  Will- 
iam, for  life,  remainder  to  W.,  the  son  of  William, 
living  at  the  time  of  the  devise,  for  life,  with 
remainder  to  the  first  and  every  other  son  of  the 
first  son  of  William  successively,  in  tail  male,  with 
remainder  to  the  second  son  of  William  (then  in  esse) 
with  remainder  to  his  first  and  every  other  son,  suc- 
cessively, in  tail  male;  with  remainder  to  every 
other  unborn  son  of  William  successively,  in  tail 
male  ;  remainder  to  the  first  and  every  other  unborn 
daughter  of  William  successively,  in  tail  male; 
remainder  to  the  testator's  second  son  Samuel  for 
life  ;  remainder  to  the  first  and  every  other  son  of 
Samuel,  successively,  in  tail  male  ;  with  remainder 
to  the  testator's  three  daughters,  in  tail  general,  a  s 
tenants  in  common;  with  remainder  to  the  same 
three  daughters  in  fee  ;  and  devised  to  trustees  to 
preserve  contingent  remainders. 

The  testator  died  1st  March,  1780,  leaving  issue  two 
sons,  William  and  Samuel,  and  three  daughters. 
William,  the  eldest  son,  entered  under  the  will,  and 
died  seized,  in  April,  1796,  leaving  two  sons,  William 
and  Henry  ;  and  William,  the  grandson  of  the  testa- 
tor, entered  on  the  death  of  his  father,  under  the 
will,  and  died  seized,  in  June,  1799,  leaving  issue  a 
daughter,  and  his  wife  privement  enciente,  who  was 
delivered  of  a  son,  also  named  William,  in  October, 
1799.  It  was  held  that  the  posthumous  son  took 
the  estate  in  remainder,  by  the  devise,  in  the  same 
manner  as  if  he  had  been  born  in  the  lifetime  of  his 
father. 

603 


18 


SUPREME  COURT.  STATE  OF  NEW  YORK. 


1802 


Citations—  1  Co..  86;  1  Ld.  Raym.,  203;  1  Eq.  Cas. 
Abr.,  184  ;  2  Burr.,  1106  ;  1  P.  Wins.,  54,  601,  605  ;  Salk., 
236;  2  Vern.,  2  Ld.  Raym..  1561;  2  Vern,  737;  3 
Salk.,  326  ;  1  P.  Wms.,  59  (note)  ;  Id.,  755.  759,  760  ;  6  Bro. 
Parl.  Cas.,  222,  229;  Jones,  114;  1  Ves.,  146;  Cro.  Car., 
363;  Fearne  (4th  ed.),  97,  100,  101,  105,  109,  140,  141; 
1  Salk.,  228;  Co.  Litt.,  298,  note  by  Butler;  1  Term 
R.,  634  ;  lost.  lib.  2,  tit.  13,  Domat,  bk.  2,  tit.  1,  sec.  1, 
par.  6;  Plowd.,  375;  3  Co.,  61;  Hob.,  222;  Dyer.,  106; 
STerm  H.,  59,  60;  2  Hen.  Bl.,  400;  2  Bl.  Com.,  174;  1 
Black  Rep.,  190;  3  Ch.  Cas.,  1;  7  Term  R.,  102;  2 
Vent.,  311.  313;  Garth.,  154;  1  Co.,  95  b;  2  Burr.. 
1100,  1106;  Palm..  359;  T.  Raym.,  315;  2  P.  Wms., 
476;  1  Salk.,  228,  236;  1  Ld.  Raym.,  203;  1  Eq.  Cas. 
Abr.,  184,  pi.  27;  Laws,  sess.  9,  ch.  12,  sec.  5;  Wat- 
kins  on  Desc.,  133,  134,  137,  138;  2  Bl.  Com.,  169; 
Stat.  10  &  11  Wm.  III.,  ch.  16;  Statute  Laws,  sess. 
11,  ch.,  73,  sec.  1;  1  Vesey,  86;  5  Term  R.,  49;  4 
Vesey,  Jun.,  241,  242,  322,  325,  334.  335. 


was  an  action  of  ejectment.  The 
-L  cause  was  tried  at  the  Suffolk  Circuit,  in 
19*]  June,  1800,  before  Mr.  *  Justice  Benson, 
when  the  jury  found  a  special  verdict,  in 
which  the  following  facts  were  contained: 

William  Nicoll,  being  seized  in  fee  of  the 
premises  in  question,  made  his  will,  on  the 
19th  August,  1778,  in  which,  among  other 
things,  he  devised  the  premises  in  question  to 
his  son  William  for  life,  without  impeachment 
of  waste  ;  with  remainder  to  trustees,  and  their 
heirs,  during  the  life  of  his  son  William,  to 
preserve  the  contingent  remainders  in  his  will, 
limited  ;  with  remainder  to  the  first  son  of  his 
said  son  William,  for  life  ;  with  remainder  to 
the  said  trustees  and  their  heirs  during  the  life 
of  his  said  grandson,  to  preserve  the  con- 
tingent remainders  thereinafter  limited,  to  wit, 
with  remainder  to  the  first  and  every  other 
son  and  sons  of  the  eldest  son  of  his  said  son 
William,  successively,  according  to  the  sen- 
iority, the  elder  to  be  preferred  before  the 
younger,  to  hold  the  same  in  tail  male  ;  and  in 
case  of  the  death  of  the  first  son  of  his  said  son 
William,  without  such  issue,  then  the  testator 
gave  the  said  lands,  &c.,  to  the  second  son 
(the  defendant),  and  the  issue  male  of  such 
second  son,  in  the  same  manner  as  above,  with 
like  devises  to  trustees  for  preserving  the  con- 
tingent remainders  ;  and  declaring  his  inten- 
tion to  be  to  give  an  estate  for  life  only  to 
such  second  son,  in  tail  to  his  issue  male  suc- 
cessively, and  so  to  every  other  son  of  his  said 
son  William,  and  the  issue  of  such  son  suc- 
cessively upon  the  like  contingencies  ;  and  in 
default  of  issue  male  of  his  said  son  William, 
he  devised  the  said  remainder  to  the  first  or 
eldest  daughter  of  his  said  son  William,  for 
life,  without  impeachment  of  waste  ;  with 
remainder,  during  the  life  of  such  first 
daughter,  to  the  same  trustees  and  their  heirs, 
in  trust,  to  preserve  the  contingent  remainders 
thereinafter  mentioned  ;  with  remainder  to  the 
first  and  every  other'  son  and  sons  of  his  said 
first  or  eldest  daughter  successively,  according 
to  their  seniority,  the  eldest  always  to  be  pre- 
ferred to  the  younger,  to  hold  the  same  in  tail 
2O*]  male  ;  and  in  case  of  *the  death  of  the 
first  daughter  of  his  said  son  William,  with- 
out such  issue,  then  he  devised  the  same  lands, 
&c.,  to  the  second  daughter  of  his  son  Will- 
iam, and  the  issue  male  of  such  second 
daughter,  in  the  same  manner,  with  like  devise 
to  trustees  to  preserve  contingent  remainders, 
expressing  his  intention  to  give  an  estate  for 
life  to  such  second  daughter,  to  her  issue  in 
tail  male,  successively  ;  and  so  to  every  other 
daughter  of  his  said  son  William  and  their 
604 


male  issue  upon  the  like  contingencies.  In 
default  of  issue,  male  and  female,  of  his  son 
William,  and  their  male  issue,  the  lands  were 
devised  to  the  testator's  son  Samuel  Benjamin, 
for  life,  without  impeachment  of  waste  ;  with 
remainder  to  trustees  to  preserve  contingent 
remainders ;  with  remainder  to  his  son  Samuel 
and  his  issue  male,  in  the  same  manner  as 
before  devised  to  his  son  William ;  and  in 
default  of  issue  male  of  his  son  Samuel  Ben- 
jamin, he  devised  the  same  to  his  three 
daughters,  and  their  issue  male,  equally  to  be 
divided  between  them,  share  and  share  alike  ; 
and  in  default  of  their  male  issue,  to  their 
issue  female,  equally  to  be  divided  between 
them. 

And  the  testator  added,  "that  his  meaning 
might  be  the  better  understood,  and  to  give  a 
key  for  the  more  certain  exposition  of  his  will, 
he  declared  it  to  be  his  general  intent  to  con- 
tinue the  estate  at  Islip  (the  premises  in  ques- 
tion), first  in  the  male  descendants  of  his  son 
William,  then  in  the  male  issue  of  the 
daughters  of  his  said  son  William,  then  in  the 
male  issue  of  his  son  Samuel,  then  in  the  male 
issue  of  the  testator's  three  daughters  in  sev- 
erally, and  upon  the  failure  of  such  male  issue, 
then  to  the  issue  female  in  severally,  and  that 
it  should  not  be  in  the  power  of  his  descend- 
ants, before  his  great-grandchildren,  to  dock 
the  entail." 

The  other  provisions  and  devises  in  the  will, 
as  well  as  a  codicil  made  the  22d  February, 
1780,  relating  to  different  subjects,  it  is  un- 
necessary to  state  them  here. 

The  testator  died  the  1st  March,  1780,  leav- 
ing issue  *William,  his  eldest  son,  [*21 
Samuel  Benjamin,  his  younger  son,  and  three 
daughters,  named  in  the  will.  On  the  death 
of  his  father,  William,  the  eldest  son,  entered 
and  was  seized  under  the  will,  and  died  so 
seized,  on  the  20th  April,  1796,  leaving  issue 
William  his  eldest  son,  and  Henry  S.,  his 
second  and  younger  son,  both  of  whom 
and  the  three  daughters  of  the  testator, 
were  living  at  the  time  of  his  death.  William, 
the  grandson  of  the  testator,  after  the  death  of 
his  father,  entered  and  was  seized  under  the 
will,  and  died  so  seized,  the  5th  June,  1799, 
leaving  issue  a  daughter,  Deborah,  and  his 
wife,  privement  enciente,  and  who,  on  the  26th 
October,  1799,  was  delivered  of  a  male  child, 
called  William,  who  is  now  living,  and  is  one 
of  the  lessors,  being  the  lawful  issue  and  only 
son  of  the  last-mentioned  William,  and  great- 
grandson  of  the  testator.  The  other  lessors, 
Selah  Strong  and  Richard  Udall,  were  ap- 
pointed, on  the  9th  November,  1799,  by  the 
Court  of  Chancery,  guardians  of  his  person 
and  estate.  The  premises  in  question  are  part 
of  the  testator's  lands  at  Islip. 

The  cause  was  argued,  at  the  last  term,  by 

Messrs.  Hamilton  and  Golden  for  the  plaint- 
iff, and 
Mr.  Hanson  for  the  defendant. 

RADCLIFP,  J.  It  is  unnecessary  to  go  into 
a  particular  examination  of  the  law  relative  to 
the  operation  of  devises,  like  the  present  to 
William,  the  son,  and  William,  the  grandson, 
of  the  testator.  The  devises  to  them  were,  in 
express  terms,  devises  of  estate  for  life  only, 
JOHNSON'S  CASES,  3. 


1802 


STEADFAST,  EX  DEM.  W.  NICOLL,  ET  AL.  v.  H.  NICOI,L. 


21 


and  from  the  general  plan  of  the  will,  evi- 
dently appear  to  have  been  so  intended.  The 
rule  is  settled  (1  Co. ,  86 ;  Archer's  case,  1  Ld. 
Raym.,  203  ;  1  Eq.  Cas.  Abr.,  184 ;  Backhouse 
v.  Wetts),  and  it  was  conceded  on  the  argu- 
ment that  an  express  estate  for  life,  thus 
created,  cannot  be  enlarged  by  implication, 
nor  by  any  subsequent  general  words,  unless 
22*]  it  be  necessary  to  effectuate  the  *intent 
of  the  will.  This  construction,  in  the  present 
instance,  so  far  from  opposing  that  intent,  is 
necessary  to  carry  it  into  execution.  (2  Burr., 
1106;  1  P.  Wms.,  54,  601,  605;  Salk.,  236  ;  2 
Vern.,S.  C.;  2  Ld.  Raym.,  1561;  2  Vern., 
737 ;  3  Salk.,  336 ;  1  P.  Wms.,  59,  in  note;  Ib. 
755,  759,  760;  6  Bro.  Parl.  Cas.,  222;  Jones, 
114;  1  Ves.,  146:  Cro.  Car.,  363;  4th  ed. 
Fearne,  97,  100,  101,  105,  109,  140,  141.)  It 
follows  that  William,  the  grandson,  was  seized 
of  an  estate  for  life  only,  with  remainder  to 
his  eldest  son  in  tail  male,  and  for  want  of 
such  issue,  remainder  to  his  brother,  Henry  S. 
Nicoll,  the  present  defendant.  William,  the 
grandson,  had  no  male  issue,  at  the  time  of 
his  death,  but  left  his  wife  enceinte,  of  whom  a 
posthumous  son  was  born,  named  William 
Nicoll,  one  of  the  lessors  of  the  plaintiff. 
Here  it  is  objected,  that  the  remainder  being 
contingent,  and  William,  the  grandson,  hav- 
ing no  male  issue,  in  esse,  at  the  time  of  his 
death,  it  could  not  vest,  eo  instanti;  that  the 
particular  estate  determined,  and,  failing  as  to 
his  issue,  the  remainder  over  to  Henry,  the 
defendant,  immediately  took  effect.  This  de- 
.pends  on  the  question  whether  posthumous 
children,  by  our  law,  are  capable  of  taking  in 
remainder,  as  if  they  had  been  born  during 
the  lifetime  of  their  parents. 

By  the  strict  principles  of  the  feudal  law, 
which  always  required  an  existing  tenant  to 
the  prcecipe,  it  was  formerly  held  that  they 
could  not.  But  although  the  law  was  thus 
deemed  to  be  finally  settled,  the  decision  of 
the  K.  B.  to  that  effect,  in  the  case  of  Reeve  v. 
Long  (1  Salk. ,  228),  was  reversed  by  the  House 
of  Lords,  against  the  opinion  of  all  the  judges. 
That  case  arose  on  a  will,  and  the  lords  dis- 
tinguished between  a  devise  and  a  limitation 
of  such  remainder  by  deed.  They  resolved 
that  the  technical  rule  should  yield  to  the 
plain  intent  of  the  will,  and,  for  that  purpose, 
construed  the  limitation  in  the  nature  of  an 
executory  devise,  and  allowed  the  freehold  to 
vest  in  the  person  next  in  remainder,  till  the 
23*]  son,  *who  was  intended  to  take,  be  born. 
Soon  after  this  decision,  the  statute  of  10  Wm. 
III.  was  passed,  which  provided,  that  where 
an  estate,  by  any  marriage  or  other  settlement 
was  limited  in  remainder,  &c.,  posthumous 
children  should  be  enabled  to  take,  as  if  born 
during  the  life  of  their  father.  This  statute 
did  not  expressly  extend  to  such  limitations  by 
will ;  and  it  is  said  that  the  House  of  Lords,  in 
passing  it,  were  unwilling  to  make  any  ex- 
press mention  of  limitations  by  will,  lest  it 
should  appear  to  call  in  question  the  propriety 
of  their  determination.  (Co.  Litt.,  298,  note 
by  Butler.)  If  the  statute  does  not  apply  to 
wills,  the  decision  of  the  House  of  Lords  must 
be  received  as  having  settled  the  rule  in  En- 
gland, for  either  by  virtue  of  that  decision,  or 
of  the  statute,  it  appears,  thereafter,  to  have 
been  uniformly  adopted  ;  and  in  a  late  case  of 
JOHNSON'S  CASES,  3. 


Roe  v.  Quaitly  (1  Term  Rep.,  634),  to  have 
been  received  as  free  from  doubt.  The  author- 
ities on  this  subject,  however,  generally  refer 
to  the  statute,  as  prescribing  the  rule  in  all 
cases,  independent  of  the  determination  of 
the  House  of  Lords  ;  and  its  terms,  I  think,  are 
susceptible  of  that  construction.  The  statute 
of  William  was  also  adopted  in  this  State, 
while  a  colony,  in  the  year  1774,  but  was  re- 
pealed, by  name,  in  1788 ;  and  in  the  same  ses- 
sion all  the  statutes  of  England  were  declared 
to  be  no  longer  in  forceT  The  statute  of 
William  is,  therefore,  not  a  part  of  our 
present  code,  and  no  legislative  provision  has 
since  been  made,  in  favor  of  posthumous 
children,  except  in  the  single  case  of  descents, 
in  which  it  is  declared  that  they  shall  inherit, 
as  if  born  during  the  life  of  their  parents. 
That  provision  being  confined  to  the  case  of 
inheritance,  cannot  apply  to  the  present. 

The  will,  in  the  present  case,  was  made,  and 
the  testator  died  while  the  Colony  Act  was  in 
force.  He  must  be  supposed  to  have  acted 
under  the  influence  of  the  existing  law,  and, 
we  are  to  conclude,  intended,  as  far  as  he  con- 
templated the  event  of  a  posthumous  child, 
that  law  *should  govern.  The  question,  [*24 
then,  remains,  how  far  we  can  give  effect  to 
the  intent  of  his  will,  or  how  far  the  deter- 
mination of  the  House  of  Lords,  in  the  case  of 
Reeve  v.  Long,  shall  be  respected  as  settling  the 
law  in  the  case  of  wills,  previous  to  the  statute 
of  William. 

On  principles  of  natural  justice,  no  reason 
can  be  assigned  why  an  infant  in  venire  sa 
mere  should  not  be  entitled  to  the  same  rights 
as  a  child  previously  born.  The  civil  law 
(Just.  lib.  2,  tit.  13;  Domat,  bk.  2.,  tit.  1,  sec. 
1,  par.  6),  without  discrimination,  confers  on 
him  every  beneficial  interest ;  and  the  common 
law  generally  regards  him  with  the  same  in- 
dulgence. It  entitles  him  to  share  under  the 
statute  of  distributions.  He  might,  at  com- 
mon law,  take  by  descent  to  the  exclusion  of 
the  next  heir ;  and,  according  to  Lord  Coke, 
the  estate  was  allowed  to  vest  in  such  heir 
until  his  birth.  (Plowd.,  375 ;  3  Co.,  61 ;  Hob., 
222 ;  Dyer,  106.)  In  pursuance  of  the  same 
doctrine,  he  might  be  vouched  to  warranty ; 
and  an  action  for  detainment  of  charters  might 
be  brought  for  him,  as  heir.  In  a  modern 
case,  also  (5  Term  Rep.,  59,  60),  the  marriage 
of  a  testator  subsequent  to  his  will,  and  the 
birth  of  a  posthumous  child,  was  resolved  to 
be  a  revocation  of  the  will,  and  such  child  was 
allowed  to  take  as  heir.  Indeed,  with  the  aid 
of  the  statute  of  William,  the  rule  appears  in- 
variably established  in  the  English  law,  and 
was  so  declared  by  Mr.  Justice  Butler,  in  the 
case  of  Doe  v.  Clack  (2  Hen.  Bl.,  400),  that 
whenever  it  would  conduce  to  his  interest,  a 
child  in  ventre  sa  mere  should  be  considered  as 
absolutely  born.  After  a  train  of  decisions  to 
this  effect,  the  reason  and  equity  of  which 
equally  apply  to  the  present  case,  I  should  not 
be  disposed  to  revive  or  enforce  a  technical 
rule  founded  on  principles  which  have  long 
ceased  to  operate,  unless  I  found  myself  con- 
strained by  authority.  The  decision  of  the 
House  of  Lords,  in  the  case  of  Reeve  v.  Long, 
has  been  treated  with  much  severity,  and  the 
puted  to  sensibility  rather  than  a  regard  to  im- 
existing  law.  Considering:  *it  as  appli-  [*25 

605 


25 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


180-3 


cable  to  devises  only,  which  have  always  re- ' 
ceived  a  more  liberal  construction  than  formal 
conveyances,  perhaps  it  was  not  liable  to  all 
the  censure  that  has  been  bestowed  upon  it.  , 
But  whatever  are  its  merits,  it  was  the  deter- ! 
mination  of  the  highest  tribunal  of  the  Eng- 1 
lish  law,  in  the  last  resort,  and  was  soon  there-  j 
after  indirectly  sanctioned  by  the  legislative  i 
provision  on  the  subject.     Independent  of  the  | 
statute  of  William,  that  determination  must 
have  been  considered  as  prescribing  the  rule  at 
common  law,  and  as  binding  and  conclusive 
on  the  English  courts,  and,  therefore,  equally 
so  on  the  courts  in  this  country.     With  this 
authority  directly  applicable  to  the  case  before 
us,  which  is  supported  by  powerful  considera- 
tions of  natural  justice,  and  the  spirit  of  anal- 
ogous cases,  I  think  we  are  authorized  to  dis- 
pense with  the  ancient  rule,  and  maintain  the 
right  of  a  posthumous  child  to   take,  in  re- 
mainder, by  devise,  although  not  in  esxe  at  the 
instant  the  particular  estate  determined. 

/  am,  therefore,  of  opinion  that  the  plaintiff 
ought  to  recover. 

KENT,  J.  The  devises  to  William,  the  son, 
and  William,  the  grandson,  of  the  testator,  are 
in  express  terms  for  life  only. 

Both  these  devisees  were  living  when  the  will 
was  made.  The  remainder  over,  then,  to  the 
first  son  of  the  grandson,  in  tail  male,  was  good, 
and  within  the  established  rule  respecting  exec- 
utory devises,  that  they  are  valid  for  a  life  or 
lives  in  being  and  21  years  afterwards ;  and 
so  far  limitations  are  valid  in  a  common  law 
conveyance.  .(2  Bl.  Com.,  174  ;  1  Black.  Rep., 
190  ;  "bake  of  Norfolk's  case,  3  Ch.  Cas.,  1 ;  7 
Term  Rep.,  102;  Longv.  Blackatt.) 

There  can  be  no  doubt,  also,  but  that  the 
posthumous  son  of  the  grandson  William,  if 
he  takes  at  all,  must  take  as  a  purchaser.  The 
son  and  grandson  took  only  estates  for  life. 
26*]  *This  seemed  to  be  conceded  upon  the 
argument.  The  language  and  intent  of  the 
will  are  too  unequivocal  and  express  to  admit 
of  any  other  construction.  (2  Vent.,  311,  313  ; 
Carth.,  154;  1  Co.,  95,  b;  2  Burr.,  1100, 
1106;  Palm..  359;  T.  Raym.,  315:  Archer's 
case.,  1  Co.,  86  ;  2  P.  Wms.,  476;  1  Salk., 
228,  236  ;  1  Ld.  Raym.,  203;  1  Eq.  Cas.  Abr., 
184,  pi.  27  ;  1  P.  Wms.,  54,  605  ;  2  Ld.  Raym., 
1561  ;  2  Vern.,  737  ;  Cro.  Car.,  363  ;  6  Bro. 
Parl.  Cas.,  222-229  ;  1  Fearne,  passim.)  Will- 
iam, the  grandson,  was  accordingly  seized  of 
an  estate  for  life  only,  with  remainder  to  his 
eldest  son,  in  tail  male,  and  for  want  of  such 
issue,  remainder  to  the  defendant,  &c.  Will- 
iam, the  grandson,  had  no  male  issue  in  esse 
at  the  time  of  his  death.  The  estate  could  not 
then  vest  eo  instanti  in  his  male  issue  ;  and  it 
was  contended,  on  the  part  of  the  defendant, 
that  the  remainder  over  to  the  defendant,  the 
second  grandson,  immediately  took  effect. 
This  will  depend  upon  the  true  answer  to  the 
question  into  which  the  whole  cause  resolves 
itself,  whether  a  posthumous  child  can  take  a 
remainder,  as  purchaser,  as  if  born  in  the  life- ! 
time  of  its  father. 

Our  statute  relative  to  posthumous  children  1 
only  applies  to  them  in  the  character  of  heirs.  ! 
They  shall,  in  all  cases  whatever,  inherit,  as  if 
born  iu  the  lifetime  of  their  respective  fathers,  i 
(Laws,  sess.  9,  ch.  12,  sec.  5.)  This  was  the  only  : 


statute  provision  in  force  at  the  time  of  the 
death  of  the  father  of  the  posthumous  child. 
In  England,  the  common  law  rule  was  under- 
stood to  be,  that  a  remainer  to  the  first  son  of 
A,  being  a  contingent  remainder,  must  take 
effect  during  the  particular  estate  of  A,  or  eo 
instanti  that  it  determined  ;  and  that  if  A  had 
no  son  in  esse  at  the  time  of  his  death,  the  next 
remainder  over  took  effect,  as  if  A  had  died 
without  issue  (Watkins  on  Descents,  133,  134, 
137,  138,  and  the  authorities  there  cited  ;  1 
Salk.,  228  ;  2  Bl.  Com.,  169) ;  and  if  the  per- 
son who  so  succeeded  to  the  remainder,  took 
by  purchase,  he  could  not  be  defeated  by  the 
*birth  of  a  posthumous  son  to  A.  This  [*2  7 
was  undoubtedly  understood  and  received  to 
be  the  rule  of  the  common  law.  But,  on  the 
other  hand,  if  the  remainderman,  in  such  case, 
had  taken  by  descent,  or  per  formam  doni,  in- 
stead of  by  purchase,  then,  by  the  common 
law,  the  posthumous  son  would  have  devested 
the  estate.  This  rule,  notwithstanding  it  ap- 
peared to  be  so  well  established,  was,  however, 
shaken  by  the  House  of  Lords,  on  a  writ  of 
error,  in  the  case  of  Reeve  v.  Long,  in  which 
they  reversed  the  judgment  of  the  K.  B.  on 
this  very  rule,  and,  as  it  is  said,  against  the 
opinion  of  all  the  judges.  This  case  gave  oc- 
casion to  the  statute  of  10  &  11  Wm.  III.,  ch. 
16,  to  enable  posthumous  children  to  take 
estates,  as  if  born  in  the  lifetime  of  their 
fathers.  It  recited,  "that  whereas  it  often 
happened  that  by  marriage  and  other  settle- 
ments, estates  were  limited  in  remainder  to  the 
use  of  sons  and  daughters,  the  issue  of  such 
marriage,  with  remainders  over,  &c. ,  by  which 
means  such  sons  and  daughters,  if  they  should 
be  born  after  the  decease  of  their  father,  were 
in  danger  to  be  defeated  of  their  remainder," 
&c.,  and  it  enacted,  that  in  case  of  estates  then 
or  thereafter  so  limited,  the  posthumous  chil- 
dren should  take  by  virtue  of  such  settlement, 
in  the  same  manner  as  if  born  in  the  lifetime 
of  their  father,  &C.1 

This  act  was  enacted  by  the  Colony  Legisla- 
ture in  1774,  and  repealed' in  1788.  (Sess.  11,  ch. 
73,  sec.,  1.)  It  was,  probably,  supposed,  at  the 
time,  that  the  provision  in  a  former  act,  which 
I  have  mentioned,  was  comprehensive  enough 
to  reach  every  case.  We  are,  therefore,  still 
obliged  to  recur  to  the  principles  of  the  com- 
mon law,  to  determine  whether  the  posthu- 
mous son  can  take  as  a  purchaser  in  the  ca.-e 
stated.  The  decision  of  the  House  of  Lords,  in 
the  case  of  Reeve  v.  Long,  a  little  prior  to  tlie 
*statute  of  William  III.  does,  indeed,  [*28 
settle  the  question  in  favor  of  the  posthumous 
son,  if  that  decision  is  to  be  regarded  as  a  con- 
clusive authority.  I  am  satisfied  that  it  was 
in  opposition  to  the  old  technical  rule,  that  a 
remainder  must  vest,  either  during  the  partic- 
ular estate,  or  else  at  the  very  instant  of  its 
determination.  This  rule  was  founded  on 
feudal  principles,  and  was  intended  to  avoid 
the  inconveniences  which  might  arise  by  ad- 
mitting an  interval  when  there  should  be  no 
tenant  of  the  freehold  as  well  as  to  preserve 


1.— Lord  Loughbprough  says,  that  the  object  of 
this  statute  was  not  to  affirm  the  case  of  Reeve  v. 
Long,  though  it  did  by  implication  affirm  it ;  but  it 
established  that  the  same  principle  should  govern 
where  the  limitation  was  by  deed  of  settlement.  (4 
Ves.,  Jun.,342.) 

JOHNSON'S  CASES,  3. 


1802 


JONES  v.  CASWELL,  SURVIVOR,  &c. 


28 


an  uninterrupted  possession  between  the  par- 
ticular estate  and  that  in  remainder.  The  rea- 
son of  the  rule  has,  therefore,  in  a  great  degree, 
ceased  ;  and  I  should  be  very  unwilling  to  re- 
vive it,  unless  I  felt  myself  absolutely  bound 
by  authority,  especially  when  it  went  to  de- 
feat the  claims  of  a  posthumous  son,  merely 
because  he  was  posthumous.  On  the  other 
hand,  the  decision  of  the  House  of  Lords,  on  a 
question  of  law  brought  regularly  before  them, 
by  writ  of  error,  must  be  regarded  as  of  the 
highest  authority.  The  circumstance  of  the 
lapse  of  a  century  since  that  decision  was 
made,  during  which  time  it  has  stood  un- 
changed, cannot  but  add  to  the  force  with 
which  it  presses  upon  the  question  before  us. 
Since  that  time  the  rights  of  posthumous  chil- 
dren have  been  constantly  extending.  An  in- 
fant en  venire  sa  mere  has  been  considered,  in- 
dependent of  the  statute  of  William  III.,  as  in 
actual  existence,  for  many  purposes,  accord- 
ing to  the  maxim  of  the  civil  war,  posthumous 
pro  nato  habetur.  (1  Vesey,  86  ;  5  Term  Rep., 
49  ;  4  Vesey,  Jun.,  241,  242,  322,  325,  334,  335.) 
"  I  know  of  no  argument,"  says  one  of  the 
judges  (Grose,  J. ,  in  Lancashire  v.  Lancashire), 
"founded  on  law  or  natural  justice,  in  favor 
of  the  child  who  is  born  during  his  father's 
life,  that  does  not  equally  extend  to  a  posthu- 
mous child  ; "  and,  in  a  late  case  (2  H.  Black., 
400),  the  court  go  so  far  as  to  say  that  it  is 
now  settled,  that  an  infant  en  venire  sa  mere 
shall  be  considered,  generally  speaking,  as 
29*]  born,  for  all  purposes  for  *his  own 
benefit.  In  that  case  Ch.  J.  Eyre  observed, 
that  an  infant  en  ventre  sa  mere  came  clearly 
within  the  description  of  a  child  living  at  the 
time  of  his  father's  death. 

Since  the  decision  of  the  English  House  of 
Lords  has  received  such  sanction,  by  the  pro- 
gressive and  liberal  consideration  of  the  situa- 
tion of  posthumous  children,  I  do  not  hesitate 
to  conclude,  that  the  posthumous  son  in  the 
case  before  us  was  to  be  considered  in  esse  at  his 
father's  death,  so  far  as  to  be  competent  to  take 
the  remainder  in  tail ;  and,  consequently,  that 
the  lessor  of  the  plaintiff  is  entitled  to  recover. 

LEWIS,  Ch.  J.,  was  also  of  the  same  opinion. 

Judgment  for  t/ie  plaintiff.1 

Cited  in— 13  Wend.,  441 ;  2  Paige,  40. 


JONES  v.  CASWELL,  Survivor,  &c. 

Note — Consideration — Agreement  not  to  Bid  at 
Execution  Sale — Action  on  by  Indorsee — Note 
Void. 

The  land  of  A  was  advertised  for  sale  by  the 
sheriff,  on  an  execution  against  A,  at  the  suit  of  B. 
C,  who  had  purchased  the  land,  without  knowing  of 

1.— It  appears  from  the  decision  of  K.  B.  in  Long 
v.  Blackall  (7  Terra  Rep.,  103),  and  a  note  to  that  de- 
cision (p.  103),  and  from  the  opinions  of  the  judges 
in  4  Vesey,  Jun.,  341,  343,  322  to  335,  334,  335,  and  342, 
that  an  infant  en  venire  sa  mere  is  to  be  deemed  ex- 
isting, for  the  purpose  of  executory  devises,  and 
that  such  infants  are  considered,  in  all  respects,  as 
in  esse.  Indeed,  the  Lord  Chancellor  (p.  342)  seems 
to  consider  the  decision  of  the  House  of  Lords  as  a 
sound  decision,  and  always  acquiesced  in,  and  that 
it  was  sanctioned  by  Lord  SOmers.  (See  also  11 
Vesey,  Jun.,  119, 120.) 


NOTE. — As  to  promissory  note,  when  consideration 
can  be  inquired  into,  see  note  to  Thomson  r.  Davies, 
13  Johns.,  112. 

JOHNSON'S  CASES,  3. 


the  judgment  and  execution,  agreed  with  B,,  who 
attended  the  sale,  that  if  he  would  not  bid  against 
him  he  would  pay  B  the  amount  of  his  execution, 
and  give  him  his  note  for  the  further  sum  of  $150, 
and  B  acceded  to  the  terms  and  desisted  from  bid- 
ding. 

In  an  action  on  the  note  against  C,  by  the  second 
indorsee,  to  whom  it  had  been  negotiated,  after  it 
became  due,  and  with  a  knowledge  of  the  circum- 
stances under  which  it  was  given,  it  was  held  that 
the  consideration  of  the  note  might  be  inquired 
into ;  and  that  the  consideration  being  unconscien- 
tious,  and  against  public  policy,  the  note  was  void. 

Citations— Powell  on  Cont.,  344;  3  Burr...  1672; 
Cowp.,  393 ;  6  Term  Rep.,  542 ;  8  Co.,  97,  o. 

THIS  was  an  action  on  seven  promissory 
notes  made  by  the  defendant  and  one 
Noble,  to  John  Ward,  who  indorsed  them  in 
blank.  They  were  dated  the  9th  March,  1798, 
and  payable  to  Ward,  or  order,  on  the  first  of 
October  following.  The  cause  was  tried  at  the 
Herkimer  circuit,  before  Mr.  Justice  Radcliff . 

*Samuel  Jones, .  the  father  of  the  [*3O 
plaintiff,  had  obtained  a  judgment  and  execu- 
tion against  one  Egleston,  whose  lands  were 
advertised  for  sale  in  March,  1798.  The  land* 
had  been  previously  sold,  for  a  valuable  con- 
sideration, by  Egleston  to  the  defendant  and 
Noble,  but  subsequently  to  the  judgment,  and 
without  knowledge  of  it  by  them.  Jones  at- 
tended at  the  time  of  the  proposed  sale,  and 
the  defendant  and  Noble,  in  order  to  secure 
themselves,  entered  into  negotiation  with 
Jones,  and  to  induce  him  to  desist  from  bid- 
ding against  them,  offered  to  pay  him  the 
amount  of  the  execution,  and  the  further  sum 
of  $150,  the  amount  of  the  notes  in  question. 
The  terms  were  accepted,  and  Jones  said,  at  the 
time,  that  he  had  a  further  debt  against  Egles- 
ton, and  had  been  at  considerable  trouble  and 
expense  in  obtaining  the  judgment.  Jones  did 
not  bid,  but  the  defendant  and  Noble  pur- 
chased the  land,  at  the  sale,  for  the  amount  of 
the  execution,  which  they  paid  to  Jones  ;  and 
for  the  further  sum  of  $150,  John  Ward,  by 
agreement  of  the  parties,  gave  his  note  to- 
Jones,  and  the  defendant  and  Noble  gave  the 
present  notes  to  Ward,  as  a  counter  security  to- 
him.  In  April,  1798,  Ward  indorsed  the  pres- 
ent notes  in  blank  to  Jones,  and  the  latter  gave 
xip  Ward's  note  in  exchange.  In  May,  1799, 
the  plaintiff  obtained  the  notes  from  Jones,  his 
father,  knowing  the  consideration  for  which 
they  were  given,  and  the  circumstances  under 
which  they  were  obtained. 

The  question  reserved,  upon  these  facts,  was, 
whether  the  consideration  of  the  notes  was 
valid,  and  the  plaintiff  entitled  to  recover.  It 
was  argued  at  the  last  term,  by 

Mr.  Griswold  for  the  plaintiff,  and 
Mr.  Gold,  contra. 

RADCLIFF,  J.  In  this  case  several  questions 
have  been  raised. 

*1.  Whether  there  existed  any  consid-  [*31 
eration  for  the  notes  on  which  the  action  is 
brought,  or  whether  the  contract  was  a  nudum 
pactum  ? 

2.  Whether  the  consideration  was  lawful  ? 

3.  Whether,  if  lawful  in  itself,  an  undue  ad- 
vantage was  not  taken  of  the  defendant's  situa- 
tion,  and  the  demand  therefore  \inconscien- 
tious  ? 

607 


31 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1802 


If  any  one  of  these  points  be  decided  in  favor 
of  the  defendant.there  is  no  doubt  but  the  plaint- 
iff ought  to  be  affected  by  it,  for  Ward,  the 
person  to  whom  the  notes  were  originally  given, 
was  a  nominal  party  only.  Samuel  Jones,  the 
father  of  the  plaintiff,  was  the  real  party  ;  and 
the  notes  were  received  by  the  plaintiff  from 
his  father,  when  they  were  overdue,  and  with 
full  notice  of  the  consideration  and  the  circum- 
stances under  which  they  were  given.  The 
plaintiff  is,  therefore,  to  be  deemed  as  standing 
in  the  same  light  with  the  original  payee  of  the 
notes. 

As  to  the  first  question,  I  think  the  contract 
was  not  void,  merely  for  the  want  of  consid- 
eration. It  is  not  essential  that  the  considera- 
tion should  import  a  certain  gain  or  loss  to 
either  party.  It  is  sufficient  if  the  party  in 
whose  favor  the  contract  is  made,  foregoes 
some  advantage  or  benefit,  or  parts  with  a 
right  which  he  might  otherwise  exert.  (Pow. 
on  Cont.,  344;  3  Burr.,  1672.)  In  the  pres- 
ent case,  Jones,  the  judgment  creditor,  had  a 
right,  in  common  with  others,  to  bid  at  the  in- 
tended sale  of  the  property,  and  his  bidding 
might  probably  have  had  a  considerable  influ- 
ence on  the  sale.  He  agreed  to  relinquish  this 
right,  in  consideration  of  the  money  secured 
by  the  notes.  This  was,  at  least,  a  principal 
part  of  the  consideration,  and,  if  not  illegal, 
was  sufficient  to  support  the  contract. 

Whether  the  consideration  was  legal  is  a 
question  of  considerable  moment.  It  is  import- 
ant that  sales  at  auction,  and  particularly  on 
legal  process,  should  be  conducted  with  good 
faith,  and  without  prejudice  to  any  party. 
The  forbearance  of  bidding  was  the  leading, 
32*]  and,  *in  reality,  the  only  consideration. 
It  is  true,  Jones  said  he  had  a  further  debt 
against  Egleston,  and  had  been  at  considerable 
expense  in  obtaining  this  judgment.  But 
those  were  not  the  claims  for  which  the  notes 
were  given,  and  they  were  no  incumbrance 
on  the  real  estate  of  Egleston.  If  the  defend- 
ant and  Noble  had  sought  relief  in  equity, 
they  would  have  been  entitled  to  a  discharge, 
or  an  assignment  of  the  judgment,  on  paying 
its  amount ;  and  Jones  could  not  have  tacked 
these  demands.  The  notes  being  no  claim  on 
the  property  in  the  hands  of  the  defendant 
and  Noble,  if  they  were  extorted  from  them, 
at  the  moment  01  the  sale,  it  was  an  undue 
advantage  taken  of  their  situation,  and  ought 
not  to  succeed.  The  forbearance  of  bidding 
was,  therefore,  the  real  consideration,  and  I 
think  it  a  consideration  which  ought  not  to  be 
sanctioned  in  a  court  of  justice.  The  law  has 
regulated  sales  on  execution  with  a  jealous 
care,  and  enjoined  such  proceedings  as  are 
likely  to  promote  a  fair  competition.  A  com- 
bination to  prevent  such  competition  is  con- 
trary to  morality  and  sound  policy.  It  oper- 
ates as  a  fraud  upon  the  debtor  and  his 
remaining  creditors,  by  depriving  the  former 
of  the  opportunity  which  he  ought  to  possess, 
of  obtaining  a  full  equivalent  for  the  property 
which  is  devoted  to  the  payment  of  his  debts, 
and  opens  a  door  for  oppressive  speculation. 
On  a  similar  principle,  the  bidding  of  puffers 
at  auction,  to  enhance  the  price  for  the  benefit 
of  sellers,  has  been  adjudged,  in  English 
courts,  a  fraud  on  real  bidders,  and  the  pur- 
chaser not  held  by  his  bid.  (Cowp. ,  395 ;  6 
608 


Term  Rep.,  542.)  An  attempt  to  silence  bid- 
ders cannot  be  viewed  in  a  more  favorable 
light. 

I  am,  therefore,  of  opinion,  that  the  consid- 
eration of  the  notes  was  illegal  and  void,  and 
that  judgment  of  nonsuit  ought  to  be  entered. 

KENT,  J.  As  the  notes  were  indorsed  by 
Ward  to  Jones,  with  full  knowledge  in  Jones 
of  the  circumstances  under  which  they  were 
given,  he  having  been  *the  principal  in  [*33 
the  negotiation,  and  as  the  notes  were  indorsed 
by  Jones  to  his  son,  after  they  were  due,  and 
with  full  knowledge,  also,  in  the  son,  of  the 
original  negotiation,  I  consider  the  merits  of 
the  case  between  the  parties  the  same  as  if  the 
suit  was  in  the  name  of  the  original  payee. 
The  defendant  is  entitled  to  go  into  the  con- 
sideration of  the  notes.  And,  upon  the  facts 
stated,  I  am  of  opinion,  that  the  notes  were 
given  without  valid  consideration.  All  that 
Samuel  Jones  could,  or  ought  to  have  demand- 
ed, in  consequence  of  his  execution,  was  the 
amount  of  his  judgment.  That  was  paid  him 
by  the  defendant,  and  to  demand  the  further 
sum  of  $150,  for  desisting  from  bidding  at  the 
the  sale,  was  an  unconscientious  demand.  It 
was  a  consideration  against  public  policy, 
which  encourages  bidding  at  sales  on  execu- 
tion. This  was  the  language  of  the  old  law  (8 
Co.,  97  a),  and  the  same  policy  is  pursued  in 
our  statute,  which  directs  how  long,  and  in 
how  many  places,  notice  of  such  sales  shall  be 
given  by  the  sheriff.  The  defendants  were  at 
the  auction,  struggling,  as  innocent  purchas- 
ers, to  protect  themselves  from  loss ;  and  ad- 
vantage was  probably  taken  of  their  fears  and 
their  anxiety  to  preserve  the  estate.  The 
suggestions  of  Jones,  that  he  had  a  further 
debt  against  Egleston,  and  had  been  at  trouble 
and  expense  in  obtaining  the  judgment,  do 
not  appear  to  have  formed  any  part  of  the 
consideration  of  the  notes.  They  appear  to 
have  been  thrown  out,  after  the  negotiation 
had  been  completed,  and  the  contract  made. 
We  cannot  take  them  to  be  anything  more 
than  mere  suggestions,  as  they  have  not  been 
supported  by  proof. 

The  notes,  therefore,  resting  wholly  on  the 
consideration  that  the  plaintiff's  father  should 
desist  from  bidding  at  the  sale,  I  think  the 
consideration  must  be  adjudged  void,  as 
against  public  policy,1  and  the  interests  of  the 
original  debtor,  whose  property  is  liable  to  be 
sacrificed  by  such  combinations. 


*I  am  of  opinion  that  judgment  of  non-  [*3 
suit  must  be  entered,  according  to  the  stipulatu 
in  the  case. 


*34 

tion 


LEWIS,  Ch.  J. ,  was  of  the  same  opinion. 
Judgment  of  nonsuit. 

Modified— 15  How.,  519 ;  21  Wall.,  449 ;  1  Me  Lean. 
300 ;  2  Me  Lean,  277,  300 ;  3  Wood.  &  M.,  491. 

Distinguished— 13  Johns.,  114. 

Cited  In— 4  Cow.,  732 ;  5  Wend.,  601 :  4  Johns.  Ch., 
254 ;  1  False,  148 ;  3  N.  Y.,  130 :  4  N.  Y.,  455 ;  71  N.  Y., 
546 ;  5  Laus.,  557;  6  Hun.  394 ;  H.  &  D.,  192. 

1— See  Doolln  v.  Ward,  6  Johns.  Rep.,  195. 

JOHNSON'S  CASES.  3. 


1802 


STAGG  AND  SNELL  v.  THE  UNITED  INSURANCE  COMPANY. 


34 


STAGG  AND  SNELL 

v. 
THE  UNITED  INSURANCE  COMPANY. 

Marine  Insurance — On  Vessel — Disabled  at  Sea 
— Total  Loss. 

Insurance  on  a  vessel,  from  New  York  to  Cura- 
«$oa.  The  vessel  met  with  heavy  gales,  in  conse- 
quence of  which  she  sprung  aleak,  and  was  obliged 
to  have  her  mainmast  cut  away  ;  and  after  much 
-difficulty  arrived  at  Curafoa,  but  could  not  be  re- 
paired for  want  of  materials,  and  if  repaired  would 
not  have  been  worth  the  expense ;  it  being  admit- 
ted that  she  received  her  death-wound  during  the 
voyage,  it  was  held  that  the  insured  were  entitled 
•'to  recover  for  a  total  loss. 

Citations— 1  Term  R.,  1ST ;  Id.,  252. 

THIS  was  an  action  on  a  policy  of  insurance 
on  the  ship  Mary  Ann,  from  New  York 
to  Curacoa.  She  sailed  the  25th  February, 
1800,  on  the  voyage  insured.  On  the  28th 
February  she  experienced  a  heavy  gale  of 
wind,  and  became  leaky,  so  that  she  could  not 
be  kept  free  of  water  with  both  pumps.  The 
next  day  the  gale  continued  and  the  pumps 
became  choked  with  corn,  and  the  water 
gained  to  four  feet  in  the  hold.  To  secure 
the  ship,  part  of  the  cargo  was  thrown  over- 
board, and  in  consequence  of  a  heavy  sea,  it 
became  necessary  to  cut  away  the  mainmast. 
When  the  gale  abated,  the  ship  had  nine  feet 
•of  water  in  the  hold.  She  was  with  great  la- 
bor enabled  to  reach  Curacoa  on  the  28th 
March.  For  want  of  materials  the  ship  could 
not  be  repaired  there,  nor  if  refitted  would 
she  have  sold  for  enough  to  pay  the  expense 
of  her  repairs.  It  was  admitted  that  she  re- 
ceived her  death-wound  on  the  voyage  to  Cura- 
coa. The*  plaintiffs  abandoned*  for  a  total 
loss. 

The  question  was,  whether  the  plaintiffs 
were  entitled  to  recover  for  a  total,  or  for  an 
average  loss  only.  The  cause  was  argued,  at 
the  last  term,  by 

Mr.  B,  Livingston  for  the  plaintiffs,  and 
Mr.  Troup,  contra. 

35*]  *Per  Curiam.  The  plaintiffs  are  enti- 
tled to  recover  as  for  a  total  loss.  The  ship 
was  not  worth  repairing  at  Curacoa.  This 
want  of  value  arose  from  injuries  sustained 
during  the  voyage  by  the  perils  of  the  sea  ;  for  it 
is  admitted  that  the  ship  received  her  death- 
wound  on  the  voyage.  In  the  case  of  Cazelet 
v.  St.  Barbe  (1  Term  Rep.,  187),  when  the  ship 
arrived  at  her  port  of  destination  she  was  not 
worth  repairing,  but  it  was  also  found  by  the 
jury  that  the  damages  sustained  by  the  ship 
during  the  voyage  did  not  exceed  forty-eight 
per  cent.  The  court  accordingly  held  them- 
selves concluded,  by  the  finding  of  the  jury, 
from  saying  there  was  a  total  loss.  The  jury 
said  the  loss  from  the  voyage  was  only  forty - 
••eight  per  cent.  The  age  of  the  ship  might  have 
rendered  her  not  worth  repairing.  Mr.  Justice 
Ashhurst  observed,  that  it  was  not  stated  in 
that  case  that  the  ship  received  her  death- 
wound  in  the  course  of  the  voyage.  But  in 
this  case  it  is  expressly  so  stated,  and  we,  ac- 
cordingly, must  intend  that  the  loss  became 
technically  a  total  loss,  by  reason  of  the  loss  of 
-JOHNSON'S  CASES,  3.  N.  Y.  REP.,  1 


the  voyage.  The  case  of  Lockyer  et  al.  v.  Of- 
fley  (1  Term  Rep. ,  252)  is  not  applicable  to  the 
the  present,  for  there  the  ship  was  sound,  and 
in  safety,  after  having  been  moored  for  twen- 
ty-four hours,  at  the  port  of  destination.  And 
being  so  sound,  the  underwriters  were  not  to 
be  responsible  for  subsequent  damages,  al- 
though the  cause  of  them  might  be  traced  up 
to  the  voyage.  Here  the  ship  was  not  in  safe- 
ty or  sound  when  moored.  She  was  disabled 
by  the  sea,  so  as  not  to  be  worth  refitting. 

The  court  are,  accordingly,  of  opinion  that 
the  plaintiffs  are  entitled  to  recover  for  a  total 
loss. 

Judgment  for  the  plaintiffs. 


*RUNDLE  ET  AJ,. 

V. 

MOORE  AND  POLLOCK. 


[*36 


Marine  Insurance  —  Abandoment  —  Adjustment— 
By  Agent  of  Insured  —  Through  Miatake  or 
Negligence  —  Agent's  Liability. 

Where  the  insured  employed  a  factor  or  agent  to 
settle  with  the  insurers  for  a  total  loss,and  an  aban- 
donment was  duly  made,  and  the  agent,  after- 
wards, through  mistake  or  misapprehension  of  a  let- 
ter of  the  insured,  or  from  negligence,  adjusted  the 
claim  with  the  insurers,  as  an  average  loss,  at  20  per 
cent.,  and  cancelled  the  policy;  it  was  held  that  the 
agent  was  responsible  for  the  whole  amount,  being 
considered  as  substituted  in  the  place  of  the  insur- 
ers. 


was  an  action  of  assumpsit.  The  dec- 
J-  laration  recited  a  policy  of  insurance,  in  the 
name  of  the  plaintiffs,  on  goods,  on  board  the 
ship  Peggy,  at  and  from  Bordeaux  to  Phila- 
delphia. The  whole  cargo  was  valued  at  $65,000 
and  was  insured  by  Church  and  others,  to  $16,- 
000  with  the  usual  printed  clauses  concerning 
prior  insurances.  The  ship  sailed  on  the  voy- 
age, and  was  wrecked,  and  the  goods  lost,  of 
which  the  usual  notice  and  proof  were  ex- 
hibited. 

The  plaintiffs  employed  the  defendants,  as 
factors,  to  settle  with  the  underwriters,  as  for 
a  total  loss,  which  they  promised  to  do,  or  re- 
turn the  policy  uncancelled.  But  the  defend- 
ants, contrary  to  their  promise  and  duty,  ad- 
justed the  loss  at  twenty  per  cent,  and  can- 
celled the  policy,  <fcc. 

At  the  trial,  the  plantiffs  proved,  by  Bern- 
ard Razor,  that  on  the  25th  June,  1798,  he 
sailed  from  Bordeaux  on  the  voyage  insured 
as  master  of  the  ship  Peggy;  that  the  plaint- 
iffs had  a  cargo  of  goods  on  board.  That  on 
the  30th  June,  the  ship  struck  on  a  reef  and 
bilged  and  filled.  That  the  cargo  was  dis- 
charged, in  a  very  damaged  state,  and  the  voy- 
age lost.  The  ship  was  seaworthy  when  she 
sailed,  and  the  goods  were  sold  at  auction  for 
the  benefit  of  the  insurers.  There  were  forty 
pipes  of  brandy  on  board,  not  included  in  the 
bill  of  lading,  which  belonged  to  Rundle  & 
Leach,  two  of  the  plaintiffs,  who  were  also 
owners  of  the  ship. 

The  plaintiffs  also  gave  in  evidence  two  let- 
ters from  the  defendants,  one  dated  the  22d  No- 
vember, 1798,  in  which  they  stated  that  they  had 
39  609 


36 


SUPREME  COUKT,  STATE  OF  NEW  YORK. 


1802- 


made  an  abandonment  of  the  interest  of  the 
plaintiffs,  and  waited  for  the  requisite 
papers;  the  other,  dated  the  24th  December, 
1798,  in  which  they  state  that  the  under- 
writers had  signed  off  at  twenty  per  cent. 
37*]  *payable  in  thirty  days.  A  third  letter 
from  the  defendants  was  also  read,  by  which 
it  appeared  that  they  had  adjusted  the  loss  at 
twenty  per  cent,  and  cancelled  the  policy. 

The  defendants  gave  in  evidence  three  let- 
ters from  Rundle  &  Leach  (two  of  the  plaint- 
iffs), the  first  dated  December  18,  1798,  stat- 
ing that  they  had  settled  their  claim  on  the 
Philadelphia  insurance  offices,  at  twenty  per 
cent,  on  the  money,  which  these  offices  consid- 
ered to  be  their  proportion  of  the  salvage,  re- 
maining at  Bordeaux,  and  that  they  were 
willing  to  make  the  same  accommodation 
with  the  defendants,  or  the  defendants  must 
settle  the  loss  according  to  the  abandonment. 
The  second  letter,  dated  December  27,  1798, 
being  an  answer  to  the  one  of  the  defendants 
of  the  24th  December,  stated  that  the  defend- 
ants misunderstood  the  settlement  of  their 
claim  on  the  Philadelphia  insurance  offices, 
and  they  state  particularly  the  terms  of  settle- 
ment intended.  In  the  third  letter,  dated  the 
5th  January,  1799,  they  repeated,  with  more 
precision,  the  statement  of  their  mode  of  set- 
tlement with  the  Philadelphia  insurers. 

The  judge  charged  the  jury  that  the  plaint- 
iffs had  a  right  to  recover  for  a  total  loss,  for 
the  subscription  of  those  underwriters  who 
had  not  adjusted;  that  the  salvage  was  at  the 
risk  of  the  defendants,  and  that  the  evidence 
was  not  sufficient  to  presume  the  plaintiffs  had 
received  it.  The  jury  found  a  verdict 
accordingly. 

A  motion  was  made,  at  the  last  term,  for  a 
new  trial  on  the  ground  of  excessive  damages. 

Mr.  Pendleton  and  Mr.  Harison  for  the  de- 
fendants. 

Mr.  B.  Livingston  for  the  plaintiffs. 

Per  Ciiriam.  If  the  defendants,  as  the 
agents  or  factors  of  the  plaintiffs,  have, 
through  mistake  or  design,  disobeyed  their  in- 
structions, they  are  undoubtedly  responsible, 
38*]  *and  are  to  be  considered  as  substituted 
for  the  insurers.  This  was  a  point  conceded 
upon  the  argument.  They  adjusted  the  loss 
at  twenty  per  cent,  in  consequence  of  the 
plaintiffs'  letter  of  the  18th  of  December.  It 
is  by  that  letter  that  their  conduct  is  to  be  test- 
ed. Two  of  the  plaintiffs  therein  informed 
them  that  the  offices  at  Philadelphia  had  made 
a  compromise  with  them,  and  allowed  them 
twenty  per  cent,  on  the  money  which  those 
offices  considered  to  be  their  proportion  of  the 
salvage  (  or  goods  saved  )  remaining  at  Bor- 
deaux, and  the  plaintiffs  offered  the  same  ac- 
commodation to  the  defendants;  and  if  that  was 
not  agreeable,  they  directed  them  them  to  set- 
tle according  to  the  abandonment.  This  is  the 
evident  import  of  the  letter.  The  defendants 
knew  that  the  plaintiffs  had  abandoned  and 
claimed  a  total  loss.  It  was  not  to  be  sup- 
posed, without  the  most  unequivocal  declara- 
tions to  that  effect,  that  the  plaintiffs  intended, 
in  such  case,  to  turn  a  total  loss  into  an  av- 
erage loss  of  only  twenty  per  cent. 

The  letter  conveys  no  such  idea,  and  the  de- 
010 


f  endants,  in  making  such  a  palpable  departure 
from  their  instructions,  were  guilty  of  gross 
neglect,  and  ought  to  be  answerable  for  the 
consequences. 

Considering,  then,  the  defendants,  as  sub- 
stituted for  the  insurers,  it  is  said  the  abandon- 
ment was  not  for  the  whole  cargo.  But  this 
is  without  foundation.  The  insurance  was  on 
the  joint  property  of  all  the  plaintiffs.  This 
proportion  of  the  cargo  was  wholly  abandon- 
ed. The  valuation  of  the  cargo  in  the  policy 
must  be  considered  as  referring  to  the  cargo 
of  all  the  plaintiffs  which  was  insured,  and 
not  to  the  forty  pipes  of  brandy  which  belong- 
ed to  two  of  the  plaintiffs  only.  They  appear 
to  have  had  a  separate  concern  as  owners  of 
the  ship  and  the  brandy.  As  the  insurers 
would  not  have  been  liable  for  the  brandy,  it 
need  not  have  been  abandoned.  *Nor  is  f*39 
there  any  evidence  that  the  plaintiffs  had  act- 
ually received  the  salvage  ( or  goods  saved )  to 
their  own  use.  Their  letter  of  the  27th  of 
December,  and  the  account  at  the  foot  of  the 
letter  of  the  5th  January,  negative  the  fact. 

The  account  speaks  of  the  salvage  remaining 
in  France,  and  of  the  risk  and  loss  of  exchange- 
in  getting  the  money  from  thence.  The  plaint- 
iffs were  probably  informed  of  the  amount  of 
the  proceeds,  and  therefore,  had  it  in  their 
power  to  state  the  amount.  This  was  con- 
sistent with  their  conduct,  and  could  not  de- 
prived them  of  their  rights. 

We  are  of  opinion,  therefore,  the  plaintiffs 
are  entitled  to  recover  for  a  total  loss. 

Rule  refused. 

Cited  in-1  Cow.,  669 ;  6  Cow.,  133 ;  20  Wend.,  335 ;: 
7  N.  Y.,  189. 


ABBOTT  P.  SEBOR. 

SAME 

p. 
THE  UNITED  INSURANCE  COMPANY. 

ROBINSON  r..  THE  SAME. 

1.  Marine  Insurance — On  Profits —  Wager 
Policy — Intercut  in  Subject  Matter — Validity 
fit  Common  Law.  2.  Loss — Partial  or  Total 
— Rule  to  Determine. 

A  policy  on  profits  on  goods  is  a  valid  policy ;  and 
the  insured  may  recover  a  total  or  an  average  loss, 
according  as  the  loss  on  the  goods  is  total  or  partial. 

It  seems  that  the  rule  by  which  to  ascertain  wheth- 
er there  is  a  total  or  partial  loss  of  the  profits  is,  to 
determine  whether  more  or  less  than  one  half  in 
value  of  the  subject  has  been  lost. 

If  the  assured,  after  an  abandonment,  affirms  the 
purchase  of  a  ship  by  the  master,  for  the  benefit  of 
the  assured,  it  is  u  waiver  of  the  abandonment,  and 
he  is  entitled  to  recover  for  a  partial  loss  only. 

Admiralty  surveys  as  to  seaworthiness  of  vessels, 
arc  not  evidence  of  the  facts  stated  in  them. 


NOTE.— Marine  Insurance.  Prnftts  and  freight  may 
be  insured  by  one  having  an  interest  in  the  cargo  or 
vessel,  that  gives  him  an  interest  in  the  profits  of 
the  voyage.  French  v.  Hope  Ins.  Co.,  16  Pick.,  35>7 ; 
Alsop  v.  Com.  Ins.  Co.,  1  Sum.,  451 ;  Fosdick  v.  Nor- 
wich Ins.  Co.,  3  Day  (Conn.),  108;  Locke  v.  N.  A. 
Ins.  Co.,  13  Mass.,  61 ;  Putnam  v.  Mercantile  lus. 
Co.,  5  Mete.,  386 ;  Griswold  v.  N.  Y.  Ins.  Co.,  1  Johns., 
205 ;  3  Id.,  321 ;  Barclay  v.  Cousins,  2  East,  544 ;  Sal- 
tus  v.  Ocean  Ins.  Co.,  12  Johns.,  107 ;  14  Id..  138 ;  Hen- 
rickson  v.  Margetoon,  2  East,  549 ;  Hodgson  v.  Glov- 

JOHNSON'S  CASES,  3.. 


1802 


ABBOTT  v.  SEBOK,  ETC. 


Citations— 2  Johns.  Cas.,  36;  1  Johns.  Cas.,  377; 
Park,  267;  Millar,  261;  Park,  259;  Millar,  226;  3  Term 
H.,  13. 

THE  first  of  these  causes  was  an  action  on  a 
policy  on  profits,  upon  goods,  on  board 
the  ship  Mary,  from  Batavia  to  New  York, 
with  liberty  to  touch  at  the  usual  places  of 
refreshment.  The  policy  was  dated  the  23d 
November,  1798,  and  the  goods  valued  at  $12,- 
000,  on  profits.  No  loss  was  to  be  paid  under 
five  per  cent,  unless  in  case  of  general  aver- 
age. 

At  the  trial,  the  plaintiff  proved  the  policy, 
and  interest  in  the  cargo,  to  one  eighth  thereof, 
and  an  abandonment  made  on  the  5th  April, 
4O*]  1799.  The  captain  testified,*  that,  while 
off  the  Cape  of  Good  Hope,  on  the  voyage,  the 
ship  met  with  heavy  gales  of  wind,  and  worked 
and  labored  much/  that  in  the  latitude  of  Ber- 
muda they  met  with  violent  gales,  during 
three  weeks,  in  which  the  ship  labored  much 
and  leaked  much  in  her  upper  works,  and  suf- 
fered considerable  damage.  Her  crosstrees 
were  sprung,  her  seams  open,  masts  sprung, 
rigging  and  sails  injured,  and  her  rudder  near- 
ly off,  &c.,  and  the  seamen  all  sick.  Finding 
that  he  could  not  get  into  New  York,  the  cap- 
tain, on  the  28th  December,  1798,  bore  away, 
and  arrived  at  St.  Kitts  on  the  7th  January 
following.  After  two  surveys  the  ship  was 
condemned  as  not  worth  repairing,  and  the 
cargo  was  landed  and  stored ;  and  the  ship  and 
cargo  were  sold  at  auction,  under  the  direction 
of  William  S.  Robinson,  the  supercargo,  who 
was  also  part  owner  of  the  ship  and  cargo,  and 
purchased  the  ship  at  the  sale,  for  $4,700,  the 
30th  January,  1799,  on  account  of  the  owners. 
She  was  afterwards  repaired,  so  as  to  bring  a 
light  cargo  to  New  York  ;  but  the  captain  did 
not  think  it  would  have  been  safe  to  come  in 
her,  at  that  season,  with  her  former  cargo,  | 
which  consisted  of  sugar,  tea  and  coffee  ;  the 
last  article  forming  the  principal  part.  Her 
cargo  from  St.  Kitts  was  226  hogsheads  of  rum 
and  seventy-three  hogsheads  of  molasses.  She 
drew  five  feet  more  water  on  her  arrival  at 
St.  Kitts  than  when  she  sailed  from  that  place. 
By  the  laws  of  St.  Kitts,  the  cargo  could  not 
have  been  sold  there,  unless  the  ship  had  been 
previously  condemned,  as  unfit  to  proceed  on 
the  voyage  ;  and  after  being  landed,  the  cargo 
could  not  be  exported,  on  account  of  owners, 
in  any  other  ship  than  the  one  which  brought 
it. 

The  captain   was  of  opinion  that  the  ship 
could  not  have  been  completely  repaired  at  St. 
Kitts,   for  want  of  materials  and  workmen. 
The  repairs  at  St.  Kitts  were  done  by  the  ship's 
carpenter.     The  owners  sold  the  ship  in  New 
York,  after  her  arrival,  at  auction,  for  $10,100, 
41*]  *which  was  about  her  cost  before  she 
sailed  for  Batavia,  besides  her  outfits.     The  I 
price  of  coffee  was  higher  at  St.  Kitts  than  at  I 
New  York. 

The  carpenter  of  the  ship,  after  stating  the 
particular  damages  she  sustained  off  the  Cape 
of  Good  Hope,  and  in  the  latitude  of  Bermuda, 


said  that  he  would  not  have  gone  in  her,  with 
the  cargo,  for  half  the  value.  And  he  was  of 
opinion  she  could  not  have  been  repaired  at 
St.  Kitts  so  as  to  have  brought  on  her  cargo. 
He  repaired  the  ship  himself,  not  being  able  to 

fet  any  assistance,  except  one  person  for  a  few 
ays.  He  was  one  of  the  surveyors,  and  the 
two  surveys  were  made  under  oath.  He 
proved  the  facts  in  the  two  reports,  and  the 
judge  allowed  him  to  refer  to  the  copies  to 
refresh  his  memory. 

The  proceedings  in  the  admiralty  at  St.  Kitts, 
on  the  surveys,  were  offered  in  evidence,  and 
their  admission  was  objected  to,  but  the  objec- 
tion was  overruled.  They  stated,  in  substance, 
the  appointment  of  surveyors,  on  the  petition 
of  the  master  ;  that  the  surveyors  reported  the 
ship  to  be  totally  unfit  to  proceed  on  her  voy- 
age, and  that  the  cargo  must  be  unladen.  After 
the  cargo  was  partly  unladen,  a  second  survey 
was  ordered,  and  the  report  thereon  was,  that 
the  ship  could  not  be  repaired  there,  for  her 
full  value  when  repaired ;  that  it  would  be 
dangerous  to  reload  her  and  proceed  on  the 
voyage,  and  to  repair  her  would  be  highly 
detrimental  to  the  interest  of  the  owners  of  the 
ship  and  cargo.  The  court  then,  on  the 
prayer *of  the  master,  ordered  the  cargo  and 
ship  to  be  sold. 

On  the  part  of  the  defendant,  it  was  proved, 
by  one  of  the  wardens  of  the  port  of  New 
York,  that  he,  with  others,  surveyed  the  ship 
on  her  arrival,  and  that  he  thought  her  suffi- 
cient to  have  brought  her  cargo  of  coffee  and 
sugar  to  New  York. 

The  deposition  of  the  warden  and  three  other 
very  competent  persons  annexed  to  the  case, 
stated  particularly*  the  survey  made  at  [*42 
New  York,  the  16th  May,  1799,  and  which  was 
in  favor  of  the  ability  of  the  ship. 

The  deposition  of  William  S.  Robinson, 
taken  in  New  York  the  25th  November,  1800, 
though  objected  to,  was  read  in  evidence.  He 
was  on  board  during  the  voyage,  and 'confirmed 
the  captain's  testimony  as  to  the  voyage,  the 
damage,  the  surveys 'at  St.  Kitts,  &c.  He 
further  stated,  that  a  great  proportion  of  the 
cargo  was  damaged  and  perishing,  and  that  it 
was  prudent  to  sell  it  at  St.  Kitts ;  that  the 
sale  of  the  ship  and  cargo  was  open  and  fair, 
and  he  purchased  the  ship  at  $4,700,  on 
account  of  the  owners ;  that  the  repairs  to  the 
ship  at  St.  Kitts  cost  $750.  The  cargo  at  St. 
Kitts  was  taken  on  account  of  the  owners,  and 
the  rum  was  purchased  with  part  of  the  pro- 
ceeds of  the  Batavia  cargo.  The  ship  was 
sold  at  New  York  by  the  owners.  The  plaint- 
iff was  owner  of  one  eighth  of  ship  and  cargo 
and  concurred  in  the  sale  of  the  ship,  and 
approved  of  what  was  done  at  St.  Kitts.  The 
cargo  brought  to  New  York  was  divided 
among  the  several  owners,  according  to  their 
interest. 

It  appeared,  also,  from  the  depositions  of 
several  witnesses,  taken  at  St.  Kitts,  one  of 
Avhom  was  a  surveyor  of  the  ship,  that,  in  their 
opinion  the  ship  was  seaworthy  when  she  left 


er,  6  East,  316 ;  Eyre  v.  Glover,  16  East,  218 ;  Mum- 
ford  v.  Hallett,  1  Johns.,  439;  Loomis  v.  Shaw,  2 
Johns.  Cas.,  36. 

Profits  sinTc  with  the  cargo  and  the  loss  of  the  one  is 
prima  facie  evidence  of  the  loss  of  the  other,  and 


throws  onus  on  the  defendant. 
JOHNSON'S  CASES,  3. 


Patapsco  Ins.  Co. 


v.  Coulter,  3  Peters,  222.  See  this  case  for  full  dis- 
cussion, on  this  point,  of  English  and  American 
authorities.  See,  also,  McGaw  v.  Ocean  Ins.  Co., 
15  Mass.,  341;  Coolidge  v.  Gloucester  Ins.  Co.,  23 
Pick.,  405. 

Gil 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


Batavia.  The  examination  of  the  ship  was 
not  very  thorough,  and  it  was  generally  under- 
stood that  the  high  prices  at  St.  Kitts  was  the 
cause  of  the  sale  of  the  cargo. 

The  judge,  in  his  charge  to  the  jury,  said  he 
considered  the  policy  in  the  light  of  a  wager  ; 
that  the  plaintiff  was  entitled  to  recover,  unless 
there  was  an  absolute  loss  of  the  subject. 
There  could  be  no  average ;  it  must  be  a  total 
loss  or  nothing.  That  on  an  abandonment, 
the  insurer  on  the  goods,  not  the  insurer  on 
the  profits,  would  be  entitled  to  the  amount  of 
the  sales  at  St.  Kitts.  That  if  the  captain 
acted  bonafide,  and  for  the  best  interest  of  those 
concerned,  the  plaintiff  ought  to  recover. 
43*]  *A  verdict  was,  accordingly,  found  for 
the  plaintiff,  as  for  a  total  loss. 

In  the  second  cause,  also,  which  was  an  ac- 
tion on  the  policy  on  the  ship,  for  the  same  voy- 
age, a  verdict  was  found  for  the  plaintiff  for 
a  total  loss. 

The  third  cause  was  an  action  on  the  policy 
on  the  commissions  of  the  plaintiff,  who  was 
supercargo,  during  the  same  voyage,  and  a 
verdict  was  found  for  the  plaintiff. 

The  causes  were  argued  by 

Messrs.  Pendleton  and  Harwon  for  the 
defendants,  and  , 

Messrs.  Troup  and  Hamilton  for  the  plaint- 
iffs. 

KENT,  J.  A  motion  is  made,  on  the  part  of 
the  defendants,  for  a  new  trial,  on  the  follow- 
ing grounds : 

1.  That  the  plaintiff  could  not  recover,  with- 
out   a    total  destruction  of  the  subject  from 
which  freight  was  to  arise. 

2.  That  if  it  was  to  be  considered  as  an  in- 
terest policy,   the  plaintiff  ought  only  to  re- 
cover an  average  loss. 

1.  A  policy  on  profits  is  a  valid  policy.  The 
point  has  never  been  directly  decided  by  this 
court,  and'  it  may,  therefore,  not  be  improper 
to  bestow  a  few  observations  upon  it. 

In  the  case  of  Loomis  &  Tillinghast  v.  Shaw 
(2  Johns.  Cases,  36),  which  was  a  policy  on 
profits,  the  only  point  submitted  was,  how 
much  the  plaintiff  ought  to  recover.  The 
court  decided,  that,  admitting  the  plaintiffs 
were  entitled  to  recover,  they  were  entitled  to 
an  average  of  three  eighths  only.  In  the  case 
of  Tlie  United  Insurance  Company  v.  Len- 
nox (1  Johns.  Casdi,  377),  the  court  seemed 
to  consider  it  as  a  point  granted,  that  freight, 
which  is  the  expected  profit  on  a  ship,  and, 
therefore,  extremely  analogous  to  profits  aris- 
ing from  any  other  subject,  was  insurable. 

The  English  law  appears  to  be  settled.  In 
44*]  the  case  *of  Grant  v.  Parkinson  (Mich. 
Term,  22  Geo.  III.,  Park,  267;  Millar,  261), 
which  was  an  insurance  on  profits  to  arise  on 
a  cargo  of  molasses,  Lord  Mansfield,  at  the 
trial,  and  the  Court  of  K.  B.  afterwards,  on  a 
motion  to  set  aside  the  verdict,  held  that  the 
plaintiff  had  an  insurable  interest,  and  the 
policy  was  not  to  be  considered  in  the  light  of 
a  wager.  This  doctrine  received  more  decisive 
confirmation  in  the  case  of  Le  Crafts  v.  Hughes 
(Easter  Term,  22  Geo.  III.,  Park,  269  ;  Millar, 
226),  in  which  it  was  held  that  profits  which 
one  had  reason  to  expect  from  a  subject  in 
possession  was  an  insurable  interest.  The 
012 


case  of  Crawford  et  al.  v.  Hunter  (3  Term  Rep. , 
13)  settled  the  question  in  a  still  more  formal 
and  explicit  manner. 

These  insurances  on  freight,  on  profits,  on 
commissions,  &c.,  are  said  to  be  founded  on 
the  course  and  interests  of  trade,  and  are 
greatly  conducive  to  its  prosperity.  The 
doctrine,  however,  that  runs  through  all  the 
cases  is,  that  the  assured  must  have  an  interest 
in  the  subject  matter  from  which  the  profits 
are  to  proceed,  in  order  to  prevent  the  policy 
from  being  considered  a  wager.  I  do  not 
mean  to  be  understood  that  a  policy  without 
interest  is  not  valid  at  common  law.  One  of 
the  cases  I  have  cited  is  pretty  conclusive  to 
prove  that  wager  policies  were  valid  before 
the  statute  of  George  II.  This,  however,  is 
not  the  point  before  us.  Policies  on  profits, 
or  freight,  if  the  assured  be  owner  of  the  sub- 
ject which  is  to  create  them,  are  not  wagers, 
but  policies  on  a  real  and  substantial  interest ; 
and,  in  this  light,  we  are  to  examine  the 
policy  in  the  present  case. 

2.  The  question,  then,  in  this  case  is,  whether 
the  plaintiff  is  entitled  to  recover  a  total,  or  an 
average  loss  only. 

The  policy  engages  that  the  ship  shall  per- 
form the  voyage,  with  the  goods  on  board  ;  and, 
if  prevented,  by  any  of  the  enumerated  perils, 
the  plaintiff  shall  be  indemnified  *for  [*45 
such  a  profit  on  the  goods.  What  combina- 
tion of  facts  will  constitute  a  loss  of  the 
voyage,  and  justify  the  assured  to  abandon 
the  thing  insured,  depends  on  the  special  cir- 
cumstances of  each  particular  case.  In  the 
present  instance,  they  are  considerably  com- 
plex, and  the  testimony  somewhat  variant,  and 
some  parts  of  it  susceptible  of  different  con- 
clusions. 

The  ship,  in  the  course  of  her  voyage,  was 
injured  by  the  perils  of  the  sea,  and  forced 
into  St.  Kitts.  She  there  underwent  two  sur 
veys,  under  the  direction  of  the  admiralty. 
The  cargo  was  landed,  and  from  the  injury 
that  both  ship  and  cargo  had  received,  the 
difficulty  of  repairing  the  ship,  the  impedi- 
ments resulting  from  the  laws  of  the  place, 
and  the  result  of  the  surveys,  the  captain  con- 
sidered the  voyage  as  broken  up,  and  acted  ac- 
cordingly. The  ship  was  sold  and  purchased 
by  the  supercargo,  who  was  part  owner  of  the 
ship  and  cargo.  He  purchased  her,  in  behalf 
of  the  owners  ;  and,  on  her  return  to  New 
York,  the  owners  affirmed  the  purchase,  and 
sold  the  ship  for  their  own  benefit.  This  was 
a  waiver  of  any  claim  for  a  total  loss  on  the 
ship.  It  is  like  the  case  of  Saidler  &  Craig  v. 
Church,  decided  in  July  Term,  1799,  in  which 
it  was  held,  that  if  the  insured,  after  abandon- 
ment, affirm  the  purchase  of  the  vessel  by  the 
captain,  he  waives  his  abandonment,  and  is 
entitled  only  to  an  average  loss,  on  the  princi- 
ples that  omnis  ratihabilio  mandato  cequipara- 
tur. 

With  respect  to  .the  cargo  at  St.  Kitts,  that 
was  taken  in  on  account  of  the  owners,  and 
the  rum  was  purchased  with  part  of  the  pro- 
ceeds of  the  East  India  cargo.  The  plaintiff, 
as  part  owner  of  the  ship  and  cargo,  approved, 
in  general,  of  what  the  supercargo  had  done  at 
St.  Kitts  ;  and  the  cargo  brought  to  New  York 
was  divided  among  the  several  proprietors,  ac- 
cording to  their  respective  interests  therein. 
JOHNSON'S  CASES,  3. 


1802 


MURRAY  ET  AL.  v.  ALSOP  AND  POMEKOY. 


4o 


I  cannot  perceive,  however,  that  any  act  of 
the  plaintiff  is  to  be  considered  as  a  waiver  of 
his  claim  for  a  total  loss  on  the  profits  ;  and 
the  question,  in  respect  to  the  policy  on  pro- 
•4G*]  fits,  is,  whether  the  evidence  *will  war- 
rant a  finding,  for  a  total,  or  only  an  average 
loss.  Considering  this  as  an  interest  policy, 

1  think  it  follows  that  there  may  be  an  average 
loss.     The  court  allowed  one  in  the  case  I 
have  cited,  of  Loomis  &  Tillinghast  v.  Shaw. 
In  this  tespect  there  was  a  misdirection  of  the 
jury.     They  were  told  there  must  be  a  total 
loss  or  nothing ;  and  found  accordingly.  What 
shall  be  the  criterion  of  an  average  or  total  loss, 
in    respect  to    profits,  I  cannot,    at  present, 
with  clearness,    decide.     Perhaps    the    estab- 
lished rule  in  respect  to  ship  and  cargo  of  a 
loss  of  more  or  less  than  half  the  subject  in 
value,  may  be  applicable.     If  so,  the  question 
here  will  be,  whether  the  more  profitable  half 
of  the  cargo  might  not  have  been  brought  in 
the  same  ship  to  New  York.     I  suggest  this, 
as  a  rule  that  may,  perhaps,  apply ;  but  with- 
out giving  any  opinion  upon  it,  I  think  the 
jury  were  misdirected,  and  the  subject  was  not 
left  to  them  in  that  latitude  in  which  the  law 
required.     I  am  of  opinion,  therefore,    that 
owing  to   this   misdirection,  to  the  complex 
nature  of  the  case,  its  importance,  its  novelty, 
and  the  uncertainty  whether  justice  has  or  has 
not  really  been  done,  there  are  sufficient  rea 
sons  why  this  case  should  be  re-examined  by  a 
jury.     In  a  common  case  I  would  let  such  a 
verdict  rest.     But  this  has  peculiar  claims  to 
our  interference,   from  the  extent  of  the  de- 
mand, and  the  novelty  of  some  of  the  points 
discussed. 

There  was  a  question  raised  on  the  admissi- 
bility  of  the  admiralty  surveys,  which  it  may 
be  proper  to  notice.  The  question  is  not  very 
important,  in  the  present  instance,  because  the 
substance  of  the  facts  contained  in  those  sur- 
veys was  proved  by  witnesses.  But,  as  the  ques- 
tion may  arise  again,  on  the  trial,  I  mean  to  be 
understood  that  I  hold  them  inadmissible  to 
prove  the  facts  they  recite.1  To  admit  them 
so  far  would  contravene  the  established  rules 
of  legal  evidence.  A  party  would  be  con- 
cluded by  the  testimony  of  persons  whom  he 
47*]  had  no  opportunity  *to  cross-examine. 
It  is  altogether  ex-parte  evidence,  and  must  be 
rejected.  The  testimony  of  the  supercargo 
was  also  objected  to,  but  I  think  his  testimony 
competent,  because  he  is  not  interested  in  the 
event  of  the  suit.  The  verdict  cannot  be  given 
in  evidence  for  or  against  him. 

My  opinion,  accordingly,  is,  that  a  new 
trial  ought  to  be  awarded  in  this  case,  and  in 
the  cause  on  the  policy  on  commissions,  and 
also  in  the  cause  on  the  ship,  with  this  opinion, 
in  the  last  case,  that  the  plaintiff  cannot  re- 
cover beyond  an  average  loss. 

RADCLJFK,  J.,  and  LEWIS,  C h.  J.,  were  of  the 
same  opinion. 

New  trials  granted,  on  payment  of  coxtnt. 

Explained— 3  Peters,  240. 

Cited  in— 2  Cai.,  286 ;  10  Johns.,  179, 490 ;  2  Rob.,  550 ; 

2  E.  D.  Smith,  297 ;  3  Peters,  240. 

1.— See  Wright  v.  Barnard,  2Esp.  N.  P.  Cas.,  70. 
JOHNSON'S  CASES,  3. 


MURRAY  ET  AI.. 

v. 
ALSOP  AND  POMEROY. 

Marine  Insurance  —  On  Vessel  Represented  to 
Carry  Certain  Papers  —  Capture  —  Paper*  on 
Board  —  Not  Found  or  Produced  —  Not  a  Corm- 
pliance  icith  Representation  —  No  Recovery. 

A  ship  was  insured  from  Nantz,  in  France,  to  the 
United  States.  The  insured,  in  the  order  for  insur- 
ance, represented  that  the  ship  was  French  built, 
and  owned  by  American  citizens,  and  would  have 
on  board  the  original  bill  of  sale,  or  an  attested 
copy  of  it,  and  also  a  certificate  of  the  American 
consul.  During-  the  voyage  she  was  captured  by  a 
British  cruiser,  and  carried  into  Halifax,  and  con- 
demned as  French  property. 

The  captain,  in  his  answers  to  the  standing  Inter- 
rogatories, in  the  Admiralty  Court,  denied  all  knowl- 
edge of  the  bill  of  sale,  and  stated  that  the  certifi- 
cate of  ownership  and  log-book  were  the  only 
papers  on  board  when  the  ship  left  Nantz,  and  that 
no  papers  had  been  destroyed  or  secured  by  him, 
and  that  no  papers  were  delivered  by  him,  except 
the  certificate,  which  he  gave  up  to  the  captors. 

It  appeared  that  the  bill  of  sale  was,  in  fact,  on 
board,  and  afterwards  delivered  to  the  assured,  by 
the  master,  on  his  arrival  at  New  York.  It  was 
held,  that  merely  having  the  bill  of  sale  on  board, 
was  not  a  substantial  compliance  with  the  represen- 
tation of  the  assured,  unless  it  was  produced,  or 
capable  of  being  produced,  when  occasion  required  ; 
and  that  it  was  a  material  document,  essential  to 
the  protection  of  the  vessel,  and  necessary  to  be  on 
board,  and  that  the  insured  were,  therefore,  not 
entitled  to  recover. 

Citations—  1  Johns.  Cas.,  363  ;  1  Rob.  Adm.  Rep., 
103,  106. 


S  was  an  action  on  a  policy  of  insurance 
J-  on  the  ship  Elizabeth,  at  and  from  Nantz, 
to  the  United  States,  valued  at  $10,000.  The 
cause  was  tried  at  the  New  York  Circuit,  iu 
November,  1800,  before  Mr.  Justice  Lewis. 

The  order  for  the  insurance  was  dated  the 
llth  November,  1795,  in  which  the  ship  is  de- 
scribed as  French  built,  and  warranted  safe  on 
the  3d  of  September,  preceding.  It  *also  [*48 
stated  that  she  was  owned  by  American  citi- 
zens, but  that  no  warranty  thereof  would  be 
given  ;  that  she  would  have  an  original  bill  of 
sale,  or  an  attested  copy  of  it  on  board,  and 
also  a  certificate  of  the  American  consul  ;  and 
that  the  plaintiffs  wished  to  be  covered  against 
all  risks. 

The  ship  was  captured  on  the  voyage,  and 
condemned  at  Halifax  as  French  property  ; 
and  the  captain,  in  his  answer  in  the  admiralty, 
to  the  standing  interrogatories,  said,  "he  knew 
nothing  of  any  bill  of  sale,  and  never  heard  of 
any.  That  the  ship  had  her  log-book  and  cer- 
tificate of  ownership,  and  these  were  all  the 
books  and  papers  that  were  on  board  from  the 
time  the  ship  left  Nantz  to  her  capture.  That 
there  were  no  papers  burnt,  torn,  or  thrown 
overboard,  secreted  or  destroyed  in  any  man- 
ner or  way  whatever.  That  he  knew  of  no 
pjfper  whatever  that  respected  the  ship,  except 
the  certificate  aforesaid,  and  that  no  papers 
were  delivered  out  of  the  ship,  except  the  cer- 
tificate he  gave  up  to  the  captors."  It  was 
further  proved  on  the  trial,  by  Colvin  Ellis, 
that  an  original  bill  of  sale  of  the  ship,  re- 
corded in  Nautz,  conformably  to  the  laws  and 


NOTE.  —  Marine  Insurant  e,  national  character. 
See  Murray  v.  United  Ins.  Co.,  2  Johns.  Cos., 
and  note. 


613 


48 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1802 


customs  of  the  French  republic,  was  by  him 
delivered  to  the  captain  previous  to  his  sailing 
on  the  voyage,  which  bill  of  sale  fully  transT- 
f erred  the  ship  from  one  citizen  Reurdet,  mer- 
chant, and  resident  at  Nantz,  to  John  B.  Da- 
bery,  George  W.  Murray,  the  plaintiff,  and 
Robert  Lyle.  It  was  further  proved,  by  the 
affidavit  of  the  captain,  "that  all  the  papers 
which  he  delivered  to  Robert  Murray,  one  of 
the  plaintiffs,  on  his  arrival  at  New  York, 
from  Halifax,  were  on  board  the  ship  when 
she  was  captured ;  and  that  he  kept  them  in 
his  possession  from  the  time  of  the  capture 
until  he  delivered  them  to  Murray,  and  that,  at 
the  trial,  at  Halifax,  those  papers  were  not  con- 
sidered by  him  as  being  connected,  in  any  de- 
free,  with  the  fate  of  the  ship,  and  he  did  not 
now  that  there  was  any  copy  of,  or  original 
bill  of  sale,  for  the  ship,  among  the  papers." 
It  further  appeared  that  the  bill  of  sale  had 
49*]  been  sent  from  *the  United  States  to 
France,  to  be  proved,  and  that  Dabery  and 
Lyle,  two  of  the  vendees  in  the  bill  of  sale, 
were  citizens  of  the  United  States,  and  in 
France  at  the  time  of  the  sale. 

Upon  these  facts,  the  judge  charged  the 
jury,  that  the  bill  of  sale  was  a  material  docu- 
ment, and  ought,  under  the  representation,  to 
have  been  on  board  the  ship,  and  so  on  board 
as  to  have  been  in  a  situation  to  be  read  and 
shown  by  the  captain,  as  occasion  required, 
for  her  protection. 

The  jury  found  a  verdict  for  the  defendants. 

A  motion  was  made  for  a  new  trial,  which 
was  argued  by 

Mr.  Hamilton  for  the  plaintiffs,  and 
Messrs.   Hopkins  and  B.  Livingston  for  the 
defendants. 

RADCLIFF,  J.  The  insurance,  in  this  case, 
was  against  all  risks.  The  plaintiffs,  how- 
ever, represented  the  ship  as  belonging  to 
American  citizens,  but  they  would  not  war- 
rant that  fact.  Still  they  represented  to  the 
underwriters  that  the  ship  would  have  an 
original  bill  of  sale,  or  an  attested  copy  of  it 
on  board.  It  appears  to  have  been  on  board, 
but  not  to  the  knowledge  of  the  master,  or  in 
a  situation  to  be  used  for  the  protection  of  the 
ship.  It  was,  then,  on  board  for  no  valuable 
purpose,  and  might  as  well  not  have  existed. 
If  it  was  a  material  document,  the  representa- 
tion was  not  complied  with.  The  materiality 
of  this  paper  is  the  only  question  in  the  cause. 
Its  object  was  to  prove"  the  fact  that  the  ship 
was  American.  Although  the  plaintiffs  would 
not  warrant  that  fact,  yet  they  undertook  that 
this  evidence  of  it  should  accompany  the  ship. 
Without  it,  she  would  undeniably -"appear  to 
be  French,  she  being  French  built.  The 
plaintiffs  represented  her  so,  and  it  was  also 
so  proved  by  the  captain  on  her  trial  at  Hali- 
oO*]  fax.  Without  *this  bill  of  sale,  oi»an 
attested  copy  of  it,  it  was,  therefore,  impossi- 
ble to  maintain  that  she  warf  American.  If 
the  bill  had  appeared,  that  fact,  in  the  first 
instance,  would  have  been  proved,  for  the 
vendees  were  Americans.  To  this  it  was 
answered,  that  although  Americans,  two  of 
them,  it  was  admitted  in  the  case,  were  resi- 
dents in  France,  and  that  by  the  law  of  nations 
they  would  have  been  deemed  Frenchmen,  in 
respect  to  their  commercial  concerns  and 
614 


property,  connected  with  that  country,  and 
that  the  bill  of  sale  was,  therefore,  not  mate- 
rial.    The  admission  is  not  strictly  so.     It  is 
merely  that  they  were  in  France  at  the  time  of 
the  sale.     I  do  not  know  that  their  being  in 
:  France  alone,  by  any  rule  of  the  law  of  nations, 
1  would  subject  them,  in  regard  to  their  property, 
!  to  be  treated  as  Frenchmen.      If  carried  to  so 
i  rigorous  an  extent,  it  would  deprive  neutrals 
j  of  some  of  their  most  essential  rights,  and 
j  tend  to  cut  off  alj  commercial  intercourse  be- 
I  tween  them  and  the  belligerent  parties.    If  the 
i  vendees  had  been  resident  there,  and  made 
!  France  the  seat  of  their  commercial  operations, 
the  objection  might  have  applied,  and  would 
have  been  supported  by  the  decision  in  the 
case  of  Arnold  &  Ramsay  v.  The  United  Insur- 
ance Company   (1    Johns.    Cases,  363).     But 
the  vendees  being  in  France  only,  ought  not 
to  be  so  considered ;  and  it  appears,  in  fact, 
not  to  be  so  considered  by  the  courts  of  the 
nation  who  were  the  captors  in  this  instance. 

In  another  view  this  document  was  also  ma- 
terial. The  actual  condemnation,  or  the  law 
to  warrant  it,  is  not  the  only  consideration. 
The  insufficiency  of  papers  is  a  common 
ground  of  seizure  and  detention,  and  particu-, 
larly  so  where  property  appears  originally  to 
have  belonged  to  the  enemy  of  the  captors. 
In  that  case  a  bill  of  sale,  or  other  satisfactory 
evidence  of  the  transfer,  is  indispensable,  and 
the  want  of  it  a  reasonable  cause  of  seizure. 
The  underwriters  were,  therefore,  exposed  to 
a  greater  risk,  as  the  ship  was  clearly  liable  to 
seizure  and  detention,  at  least,  for  the  want  of 
this  paper. 

*I  therefore  think  that  in  every  light  [*5 1 
it  was  material  that  the  charge  of  the  judge 
was  right,  and  that  the  verdict  ought  not  be 
disturbed. 

KENT,  J.  A  motion  is  made  for  a  new  trial 
on  two  grounds  :  1.  That  the  bill  of  sale  was 
on  board,  and  that  was  sufficient. 

2.  That  the  bill  of  sale  was  not  a  material 
paper,  and  did  not  affect  the  insurance. 

I  am  satisfied  that  merely  having  the  bill  of 
sale  on  board  the  ship  was  not  a  substantial 
compliance  with  the  representation,  if  it  was 
not  capable  of  being  produced  when  the  occa- 
sion for  it  arose.  The  object  of  the  plaintiffs, 
in  representing  to  the  defendants  that  it  would 
be  on  board,  was  to  exhibit  to  them  a  material 
item  in  the  calculation  of  risk.  It  must  have 
been  considered  as  auxiliary  to  the  protection 
of  the  ship.  It  was  evidence  of  her  title. 
This  was  the  reason  of  representing  it  as  on 
board,  and  the  defendants,  we  are  to  presume, 
placed  some  reliance  on  the  efficacy  of  this 
representation.  But  it  would  be  absurd  to 
suppose  that  having  the  bill  of  sale  on  board, 
in  a  concealed  situation,  and  never  to  be 
shown,  fulfilled  the  intent  of  the  parties.  If 
S  it  was  really  on  board,  of  which  I  think  there 
j  can  be  but  little  doubt,  the  captain  had  either 
;  wholly  forgotten"  that<  he  had  it  in  his  posses- 
j  sion,  or  he  willfully  concealed  it.  It  was  not 
;  produced  at  the  capture,  and  on  his  examina- 
tion in  the  admiralty  the  captain  attested  that 
he  knew  nothing  of  any  sale,  and  never  heard 
of  anjr.  For  any  object  within  the  meaning 
of  the  representation,  the  bill  of  sale  is  to  be 
considered  as  not  being  on  board. 

JORXSON'S  CASKS.  3. 


1803 


THE  PEOPLE  v.  BYKON. 


The  only  question,  then,  is,  whether  the  bill 
of  sale  is  to  be  considered  as  a  material  paper, 
and  requisite  to  have  been  on  board?  It  was 
considered  as  a  material  paper  by  the  plaintiffs, 
or  why  did  they  state,  in  their  order  for  insur- 
.ance,  that  it  should  be  on  board?  It  was  con- 
sidered as  a  material  paper  in  the  Admiralty 
-5i£*]  Court,  *at  Halifax,  or  the  captain  would 
not  have  been  called  upon  to  answer  to  the 
question  respecting  the  bill  of  sale.  It  was, 
undoubtedly,  a  material  document,  and  essen- 
tial to  the  protection  of  the  ship.  It  is  stated 
b3*  the  plaintiffs  that  the  ship  was  French  built, 
and  originally  owned  by  a  French  citizen,  at 
Nantz.  The  bill  of  sale,  then,  was  essential  to 
prove  the  property  of  the  ship  vested  in  an 
American  citizen.  Sending  the  ship  abroad 
without  the  bill  of  sale,  or  due  proof  thereof, 
was  sending  her  abroad  without  the  evidence 
of  title,  and  exposed  the  ship  to  seizure,  and  to 
be  carried  in  for  adjudication.  I  do  not  say 
that  the  bill  of  sale  would  have  been  a  suffi- 
cient security  to  the  ship,  if  it  had  been  on 
board  and  produced.  That  would  have  depend- 
•ed  on  other  circumstances,  of  which  the  Prize 
Court  must  have  been  the  competent  judge. 
In  case  of  a  purchase  in  an  enemy's  country, 
Sir  W.  Scott  observes  (1  Rob.  Adm.  Rep.,  103, 
108),  it  must  be  under  very  special  circum- 
stances that  a  bill  of  sale  would  be  deemed  suffi- 
cient proof  ;  but,  where  there  is  no  bill  of  sale, 
that  alone,  according  to  the  constant  habits  of 
the  court,  founds  a  demand  for  further  proof. 
In  another  place  (p.  Ill)  he  calls  the  bill  of 
sale  a  documentary  evidence  ;  and,  indeed,  if 
the  other  circumstances  be  fair  and  consistent, 
the  bill  of  sale  will  be  full  proof,  for  it  is  per- 
mitted to  neutrals  to  purchase  ships  in  the 
'enemy's  country.  I  have  no  doubt,  therefore, 
that  the  bill  of  sale  was  a  material  paper,  con- 
ducive to  the  safety  of  the  ship  ;  and  not 
being  on  board,  so  as  to  be  produced  and  ! 
shown  to  the  captors,  there  was  a  failure  of  a 
substantial  compliance  with  the  representation. 

The  verdict  was,  accordingly,  right,  and  the 
plaintiffs  must  take  nothing  by  their  motion. 

LEWIS,  Ch.  J.,  was  of  the  same  opinion. 
Motion  denied. 
Cited  In— 9  Allen,  549. 


Citations—  2  P.  Wins..  121,  122;  Vauirh..  182  :  1  Inst  , 
112,  113;  1  Atk.,  537:  2  Vern.,  514;  Cases  temp.  Talb., 
121,  127  :  3  Wils.,  530. 


4>3*]       *THE  PEOPLE  r.  BYRON. 

1.  Action  on  bond — Surety — Two  Guardians — j 
Death   of  One — Trust  Survives — Liability  of\ 
Surety.     2.  Demurrer  —  Rule  of  Pleading  —  i 
First  Error  Fatal.     3.  Guardian  Interest  in 
Ward's  Estate — General  Powers. 

In  an  action  of  debt  on  a  bond,  against  the  surety 
for  two  guardians,  appointed  by  the  Court  of  Chjm- 
cery,  conditioned  for  the  faithful  performance  of 
then-  trusts,  where  one  of  the  g-uardians  died,  it  was 
held  that  the  trusts  survived,  and  that  the  surety  , 
was  responsible  for  the  acts  of  the  surviving1  guard-  ; 
ian  ;  the  bond  being  co-extensive  with  the  trusts. 


was  an  action  of  debt  on  a  bond,  bear- 
JL  ing  date  the  8th  May,  1789,  executed  by 
Sarah  Byvanck,  Thomas  Sanders,  and  the  de- 
fendant, by  which  they  bound  themselves, 
jointly  and  severally,  in  the  penalty  of  f  10,- 
000.  The  bond  was  conditioned  that  Sarah 
Byvanck  and  Thomas  Sanders,  two  of  the 
obligors  and  joint  guardians  of  the  person  and 
estate  of  Peter  Byvanck,  an  infant,  should 
faithfully  execute  the  trusts  respectively  re- 
posed in  them,  according  to  the  terms  of  the 
order  in  chancery  appointing  them,  and  render 
a  true  and  faithful  account  thereof  when  re- 
quired. 
The  defendant  pleaded  three  pleas  : 

1.  Non  estfactum. 

2.  Reciting  the  order  in  chancery,  mentioned 
in  the  condition  of  the  bond  appointing  the 
two  obligors,  guardians  as  aforesaid,  and  that 
they  should  enter  into  a  bond  with  one  surety, 
conditioned  to  be  void  if  the  guardians  should 
faithfully  execute  the  trusts  reposed  in  them, 
as  such,  and  render  a  true  account  of  the  same 
when  required  ;  the  plea  then  averred  that  the 
two  guardians  did  faithfully    execute    their 
trusts,  according  to  the  terms  of  the  said  order, 
and  render  a  true  and  faithful  account  there- 
of, &c. 

2.  The  third  plea  stated  that  after  the  ap- 
pointment aforesaid,  to  wit,  on  the  14th  June, 
1795,  Thomas  Sanders  died,  and  that,  until  his 
death,  the  two  guardians  did  faithfully  exe- 
cute their  trusts,  and  that  the  said  Sarah,  after 
the  death  of  Sanders,  did  render  a  true  and 
faithful  account  of  the  trust. 

Replication  to  the  second  plea,  stating  that 
on  the  2d  May,  1793,  Sarah  Byvanck  married 
John  Stoddard,  and  on  the  14th  June,  1795, 
Thomas  Sanders  died,  and  that  it  was  ordered 
by  the  Court  of  Chancery,  on  the  12th  of 
March,  1798,  that  the  appointment  of  Thomas 
Sanders  and  Sarah  Byvanck,  as  guardians, 
should  be  revoked,  and  that  at  the  same  time 
William  Alexander  was  appointed  *guard-[*o4 
dian,  with  authority  to  possess  himself  of  the 
estate,  and  faithfully  manage  the  same,  and 
bring  all  requisite  suits  for  the  infant,  whereof 
the  defendant  had  notice.  That  on  the  24th 
July,  1798,  it  was  ordered  by  the  Court  of 
Chancery,  that  the  said  John  Stoddard  and  his 
wife  deposit  on  oath,  with  one  of  the  masters, 
all  books  of  accounts,  vouchers,  &c.,  relating 
to  the  'said  infant,  or  his  estate,  and  account 
with  the  new  guardian,  on  oath,  for  the  rents 
and  profits  of  the  estate,  and  the  disbursements 
and  payments  made,  and  that  the  master  re- 
port the  proceedings  had  thereon,  of  which 
order  the  defendant  had  notice.  That  on  the 
1st  July,  1799,  in  pursuance  of  the  last  order, 
Stoddard  and  his  wife  accounted  before  the 
master  ;  and  that  $2,991.33  was  the  amount  of 
the  balance  found  against  them,  after  allowing 
all  proper  discharges,  which  balance  reported 
by  the  master  was,  by  the  Court  of  Chancery, 
on  the  10th  December,  1799,  ordered  to  be 


NOTE.— Death  of  one  of  tioo  or  more  co-trustees— sur- 
rtval  of  trust. 

"  Trust  property  is  generally  limited  to  trustees 
as  joint  tenants ;  and  if  by  the  terms  of  the  gift  it  is 
•doubtful  whether  the  trustees  take  as  joint  tenants 

JOHNSON'S  CASES,  3. 


or  tenants  in  common,  courts  will  construe  a  joint 
tenancy  if  possible  on  account  of  the  inconvenience 
of  trustees  holding  as  tenants  in  common ;  and.  where 
statutes  have  abolished  joint  tenancy,  an  exception 
is  generally  made  in  the  case  of  trustees.  And  courts 

615 


SUPBEMK  COURT,  STATK  OF  NEW  YORK. 


1802- 


amended,  by  striking  out  $288.08,  being  the 
sum  allowed  for  interest ;  and  the  report,  as  to 
the  residue,  was  confirmed  ;  and  in  case  the 
sum  so  confirmed  was  not  paid  by  the  1st 
January,  1800,  the  bond  aforesaid  was  directed 
to  be  prosecuted  at  law,  by  the  said  William 
Alexander,  of  which  last  order  Stoddart  and 
his  wife  and  the  defendant  had  notice.  That 
the  sum  so  allowed  and  ordered  to  be  oaid 
was,  afterwards,  regularly  demanded  of  Stodd- 
art and  his  wife  and  the  defendant,  and  by 
them  severally  refused  to  be  paid  ;  therefore, 
&c. 

There  was  a  second  replication  to  the  3d 
plea,  which  was  the  same  as  to  the  second  plea. 

The  rejoinder  to  the  first  replication  stated 
that  the  account  rendered  and  taken  before  the 
master  was  not  an  account  solely  and  exclu- 
sively concerning  the  trusts  reposed  in  Sanders 
and  Sarah  Byvanck,  the  joint  guardians  afore- 
said, or  concerning  the  rents  and  profits  of  the 
infant's  estate,  received  by  either  of  them  in 
the  lifetime  of  Sanders,  but  that  such  account 
included  charges  for  the  receipt  of  moneys 
.55*]  arising  from  such  *rents  and  profits  by 
the  said  guardiaas,  jointly  and  severally,  as 
well  before  the  commencement  as  during  the 
continuance,  and  after  the  determination  of  the 
trusts,  and  especially  for  the  receipt  of  moneys 
by  Sarah,  arising  as'aforesaid,  as  well  in  capac- 
ity of  one  of  the  guardians  as  in  her  private 
and  personal  capacity. 

To  the  second  replication  there  was  a  special 
demurrer,  and  the  causes  of  demurrer  were 
that  the  replication  did  not  contain  a  direct 
or  sufficient  answer  to  the  plea.  That  it  was 
not  shown  thereby  that  the  account  taken 
before  the  master  in  any  manner  related  to 
the  execution  of  the  trusts  reposed  in  San- 
ders and  Sarah  Byvanck,  the  joint  guardians, 
nor  related  to  the  rents  and  profits  of  the  in- 
fant's estate,  received  by  either  of  the  said 
guardians,  by  virtue  of  the  trust,  and  that  it 
was  not  shown  whether  any  and  what  part  of 
the  moneys  in  arrear  and  due  from  Stoddart 
and  his  wife  were  due  on  account  of  the  re- 
ceipt of  any  such  rents  and  profits  received  by 
either  of  them  during  the  continuance  of  the 
trusts  in  the  two  guardians  jointly,  before  or 
after  the  existence  thereof  ;  and  that  it  was  not 
shown  to  what  amount  (if  any)  Sarah  Byvanck, 
or  Sanders,  or  either  of  them,  were  in  arrear, 
on  account  of  the  guardianship  aforesaid. 
Joinder  in  demurrer. 

There  was  a  surrejoinder  to  the  rejoinder  to 
the  first  replication,  stating  that  the  account 


rendered  and  taken  before  the  master  was  an 
account  solely  and  exclusively  of  and  concern- 
ing the  trusts  reposed  in  Sanders  and  Sarah 
Byvanck,  as  guardians  aforesaid,  and  an  issue 
thereon  to  the  contrary. 

Mr.  Hamilton,  in  support  of  the  demurrer.. 
Messrs.  Troup  and  Hanson,  contra. 

RADCLIPF,  J.  On  these  pleadings  I  think 
it  unnecessary  to  examine  the  merits  of  the 
replication  which  is  demurred  to,  and,  of 
course,  the  causes  assigned  for  the  demurrer. 
At  the  same  time,  I  do  not  hesitate  to  express 
*my  opinion  that  I  think  it  materially  [*5O 
defective.  It  is  an  established  rule  of  plead- 
ing that  on  a  demurrer  of  either  party  the  first 
error  is  fatal.  If,  therefore,  the  defendant's 
plea  be  insufficient,  our  judgment  must  be- 
given  thereon  for  the  plaintiff,  whatever  may 
be  the  defects  in  the  plaintiff's  replication. 

It  is  the  second  plea  of  the  defendant  which 
is  brought  into  view  by  this  demurrer.  It 
states  that  after  the  appointment  of  Sarah 
Byvanck  and  Thomas  Sanders,  as  joint  guard- 
ians of  the  infant,  to  wit,  on  the  14th  June, 
1795,  Thomas  Sanders  died,  and  that  until  the 
time  of  his  death  the  said  Thomas  and  Sarah 
did  faithfully  execute  the  trust  reposed  in 
them,  according  to  the  terms  in  the  said  order, 
and  that  the  said  Sarah,  after  the  death  of  the 
said  Thomas,  did  render  a  true  and  faithful 
account  of  and  concerning  the  said  trusts,  ac- 
cording to  the  condition  of  the  said  bond. 

This  plea  presents  the  only  material  questions 
between  the  parties,  which  are,  1.  Whether 
the  guardianship  survived  to  Sarah  Byvanck 
after  the  death  of  Thomas  Sanders.  2.  Wheth- 
er, if  it  did  not  survive,  the  security  by  this 
bond  extends  to  the  faithful  execution  by  the 
surviving  guardian.  If  these  points  are  de- 
cided in  favor  of  the  plaintiffs,  the  plea  must  be 
adjudged  insufficient,  being  confined  to  the  due 
execution  of  the  trust  in  the  lifetime  of  Sanders, 
and  to  Sarah  Byvanck  the  surviving  guardians, 
accounting  for  their  joint  execution  of  the 
trust  only. 

It  is  generally  settled,  and  particularly  in  the 
instance  of  testamentary  guardians,  in  the  case 
of  TJie  Countess  of  Shaftesbury  (2  P.  Wms.,  121. 
122;  Vaugh.,  182),  in  which  this  question  was 
fully  considered,  and  I  think  it  results  from 
the  nature  of  the  thing  that  this  appointment 
creates  not  merely  a  naked  power,  but  a  power 
coupled  with  an  interest,  and  therefore  must 
survive.  (1  Inst.,  112, 113.)  I  see  no  difference 


will  not  allow  a  process  for  the  partition  of  a  trust 
estate.  Therefore,  upon  the  death  of  one  of  the 
original  trustees,  the  whole  estate,  whether  real  or 
personal,  devolves  upon  the  survivors,  and  so  on  to 
the  last  survivor ;  and  upon  the  death  of  the  last 
survivor,  if  he  has  made  no  disposition  of  the  estate 
by  will  or  otherwise,  it  devolves  upon  his  heirs,  if 
real  estate,  and  upon  his  executors  or  administrators 
if  it  is  personal  estate.  The  title  in  the  surviving: 
trustee  is  complete,  and  no  breaches  of  trust  after 
the  death  of  his  co-trustees  can  be  charged  upon 
their  estate ;  nor  can  the  representatives  in  his  co- 
trustees  interfere  with  his  management  of  the  trust 
••state,  even  if  he  is  insolvent  or  unfit  for  the  trust. 
The  cextuiffue  trust  alone  can  interfere  or  apply  to  the 
court  for  redress  or  relief.  So  all  rigrhte  of  action  are 
in  the  surviving  trustee ;  and  he  may  sue  in  his  own 
name.or  as  survivor,  according:  as  the  cause  of  action 
accrued  before  or  after  the  death  of  his  co-trustees, 
and  in  case  of  his  death  his  executor  or  administra- 
616 


tor  may  continue  the  action.  The  rule  is  that  actions- 
must  be  brought  in  the  names  of  the  parties  to  the 
contract." 

Perry  on  Trusts,  sec.  343,  citing  Baldwin  v. 
Humphrey,  44  N.  Y.,  609;  Whiting  v.  Whiting,  4 
Grav,  236;  Moses  v.  Murgatroyd,  1  Johns.  Ch.,  119; 
De  Peyster  v.  Ferrers,  11  Paige,  13 ;  Shook  v.  Shook, 
19  Barb.,  653  i  Shortz  v.  Unang-st,  3  Wutts  &  S.,  45; 
Gray  v.  Lynch,  8  Gill,  404 ;  Mauldin  v.  Armistead,  14 
Ala.,  702;  Powell  v.  Knox,  16  Ala.,  364;  Kichcson 
v.  Ryan,  15  111.,  13 ;  Stewart  v.  Pettus,  10  Mo.,  755 ; 
Jenks  v.  Backhouse,  1  Binn.,  91 ;  King  v.  Leach,  2 
Hare.,  57:  Watkins  v.  .Specht,  7  Coldw.,  585 ;  Webster 
v.  Vandeventer,  6  Gray.,  428 ;  Wheatley  v.  Boyd,  7 
Exch.,20;  Nichols  v.  Campbell,  10  Gratt.,  561;  Rob- 
bins  v.  Dishon,  19  Ind.,  204;  King  v.  Lawrence,  14 
Wis.,  238 ;  Farrelly  v.  Ladd,  10  Allen,  127  ;  Childs  v. 
Jordon,  106  Mass.,' 323 ;  Brazier  v.  Clark,  5  Pick.,  96; 
Town  v.  Ammidown,  20  Pick.,  535.  See,  also,  Perry 
on  Trusts,  sec.  426. 

JOHNSON'S  CASES,  .'k 


1802 


THE  PEOPLE  v.  BYRON. 


between  testamentary  guardians  and  guardians 
by  chancery  appointment.  In  either  case,  such 
o7*]  guardian  has  a  vested  *interest  in  the 
estate  of  his  ward.  He  may  bring  actions 
relative  thereto,  and  make  avowry  in  his  own 
name,  and  may  also  make  leases  during  the 
minority  of  the  infant.  He  has,  in  all  respects, 
the  dominion,  pro  ternpwe,  of  the  infant's  estate, 
and  possesses  more  than  a  naked  authority. 
His  trust  has  been  compared  to  that  of  an  exec- 
utor and  administrator,  but  I  think  it  more 
like  that  of  an  administrator.  An  executor 
may  continue  the  trust  by  transmitting  it  to 
his  own  executor,  but  an  administrator  cannot. 
It  is  so  far  personal,  and  terminates  with  his 
death.  (1  Atk.,  537  ;  2  Vern.,  514  ;  Cas.  temp. 
Talb.,  127.)  Yet  the  trusts  in  both  these 
cases  are  held  to  survive.  I  am,  therefore, 
clearly  of  opinion,  that  the  guardianship  in 
this  case  survived  to  Sarah  Byvanck. 

2.  With  respect  to  the  extent  of  this  security. 
The  bond  is  joint  and  several,  and  is  expressed 
in  general  terms.  It  is  conditioned  that  both 
the  guardians  shall  faithfully  execute  the  trust 
reposed  in  them  according  to  the  terms  of  the 
order,  and  as  a  right  they  may.  The  trust,  of 
right,  survived,  and  the  security  must  be  con- 
sidered as  concurrent  with  the  right,  as  pursu- 
ing the  nature  of  the  trust,  and  commensurate 
with  it.  The  Court  of  Chancery  ought  not,  and 
I  am  persuaded  would  not  have  committed  the 
trust  without  a  security  co-extensive  in  its  opera- 
tion. If  a  special,  or  limited  security  had  been 
intended,  it  ought  to  have  been  so  expressed, 
and  it  would  then  have  been  in  the  power 
of  the  Chancellor  to  have  directed  such  further 
security  as  the  occasion  might  require,  or  to 
have  refused  the  guardianship  on  such  terms. 
Administration  bonds  are  expressed  in  the 
same  manner,  and,  I  believe,  have  never  been 
doubted  to  extend  to  the  faithful  execution  of 
the  trust  by  the  surviving  administrator.  The 
bond,  in  this  case,  therefore,  being  general,  for 
the  faithful  performance  of  a  joint  trust,  which, 
from  its  nature,  survives,  I  think  the  security 
must  be  deemed  to  be  equally  extensive,  and 
that  it  applies  to  the  surviving  guardianship 
o8*J  of  *Sarah,  as  well  as  to  the  period  of  her 
joint  guardianship  with  Sanders.  If  the  de- 
fendant did  not  wish  to  continue  as  her  surety, 
he  ought  to  have  applied  to  the  Chancellor  for 
relief,  who,  on  the  death  of  Sanders,  woxild, 
no  doubt,  have  released  the  present,  and  re- 
quired other  security,  or  have  revoked  the 
guardianship.  Not  having  taken  any  measure 
to  exonerate  himself,  he  remains  liable,  and,  I 
think,  on  the  merits  of  this  plea,  without  ex- 
amining the  subsequent  proceedings,  the  plaint- 
iff must  have  judgment. 

KENT,  J.  The  question  raised  by  the  demur- 
rer is  as  to  the  validity  of  the  second  replication, 
which  goes  to  make  the  defendant  responsible 
for  the  acts  of  Sarah,  as  surviving  guardian. 

The  demurrer  to  the  second  replication 
assigns  special  causes,  and  I  think  it  was  well 
taken  ;  for  the  replication  is,  at  least,  deficient 
in  the  requisite  precision,  and  certainly  in 
point  of  form.  But  as  it  is  a  rule  on  demurrer 
to  recur  to  the  first  fault  in  pleading,  it  is  un- 
necessary to  dwell  particularly  on  the  defects 
of  the  replication,  if  the  third  plea,  to  which 
it  relates,  be  substantially  bad. 
JOHNSON'S  CASES,  1. 


That  plea  states  that  until  the  death  of 
Sanders  the  two  guardians  did  faithfully  exe- 
cute their  trusts,  and  that  Sarah,  after  the  death 
of  Sanders,  did  render  a  true  and  faithful  ac- 
count, &c.  It  does  not  state  that  she  contin- 
ued, in  the  language  of  the  bond,  faithfully  to 
execute  the  trust  reposed  in  her.  She  may 
have  rendered  a  true  account  of  her  receipts 
and  expenditures,  and  yet  have  not  continued 
a  faithful  guardian.  She  may  have  been  guilty 
of  numerous  acts  of  omission,  by  which  the 
estate  of  the  infant  was  wasted.  This  brings 
us,  therefore,  to  consider  the  material  question, 
in  this  cause,  viz.,  whether  the  guardianship 
survived,  and  if  it  did,  whether  the  bond  inured 
as  a  security  for  her  acts  as  surviving  guardian. 

Guardianship  is  a  trust  coupled  with  an 
interest,  and  *when  two  guardians  are  [*o9 
appointed,  and  one  of  them  dies,  it  follows, 
from  the  nature  of  the  trust,  that  it  must  sur- 
vive. Guardians  are,  in  this  respect,  analogous 
to  administrators.  In  the  case  of  Eyre  v.  Tlie 
Countess  of  SJiaftesbury  (2  P.  Wms.,  103),  it  was 
very  solemnly  decided  by  Lord  Ch.  Maccles- 
field,  and,  afterwards,  by  the  three  lords  com- 
missioners, that  a  testamentary  guardian  sur- 
vived ;  and  the  principles  of  that  decision  were 
applied  equally  to  a  guardian  in  socage  (of 
which  the  chancery  guardian  has  now  become 
the  substitute);  and  several  cases  applicable  to- 
guardians  in  socage  were  cited,  to  show  that 
guardianship  was  not  a  naked  authority  which 
did  not  survive,  but  was  an  authority  coupled 
with  an  interest  which  did  survive.  Guard- 
ianship was  compared,  by  one  of  the  com- 
missioners, to  the  case  of  an  administration 
granted  to  two  which  did  survive.  *  The  sur- 
vivorship of  an  administration  granted  to  two, 
was  maintained  by  Lord  Ch.  Talbot  (Cases 
temp.  Talbot,  121)  on  the  same  ground  of  an 
authority  coupled  with  an  interest.  This  is 
the  reason  of  the  rule,  and  it  applies  equally 
to  the  socage  or  chancery  guardian  as  to  a 
guardian  by  will,  and  to  all  of  them,  as  well 
as  to  executors,  administrators  and  other 
trustees. 

The  surety  was  responsible  for  the  separate 
acts  of  each  separate  guardian  during  their 
joint  lives.  Were  it  otherwise,  the  provision 
of  taking  security  might  have  been  wholly 
evaded,  and  it  would  have  been  of  little  use.. 
Nor  do  I  perceive  why  the  security  should  not 
be  responsible  for  the  acts  of  the  surviving 
guardian.  It  could  not  have  been  the  inten- 
tion of  the  Court  of  Chancery,  in  requiring  the 
security,  that  it  should  cease  on  the  death  of 
one  of  the  guardians,  so  long  as  the  trust  sur- 
vived, since  the  necessity  of  security  would 
equally  exist.  This  would  not,  as  was  stated 
in  the 'case  of  Wright  v.  Ru$sel(3  Wilson,  530), 
be  extending  the  responsibility  of  the  security. 
There  is  here  no  new  person  assumed  as  a 
partner  whose  acts  are  to  be  protected  by  the 
bond.  The  responsibility  is  still  confined  to 
the  acts  *of  Sarah,  one  of  the  guardians,  [*(>O 
and  for  her  acts  the  bond  was  always  a  secu- 
rity. In  order  to  give  the  security  its  full 
efficacy,  and  to  make  it  attain  the  end  in  view, 
the  construction  must  be  that  the  defendant 
became  responsible  for  the  execution  of  the 
trusts  respectively  reposed  in  them  so  long  as 
those  trusts  shall  remain  in  force ;  and  if  it  be- 
once  settled  that  the  trusts  continued  in  the 

617 


SUPKEME  Cocnr,  STATE  OF  NEW  YORK. 


1802 


survivor,   the  security  will  be  equally  .co-ex- 
tensive. 

The  idea  that  her  acts  in  the  one  case  were 
under  the  circumspection  of  her  co-guardian, 
and  in  the  other  case  were  without  such 
check,  does  no  appear  to  be  of  force  sufficient 
to  control  the  other  consideration  that  the  bond 
must,  on  sound  principles,  be  deemed,  where 
there  is  no  special  limitation  otherwise,  to  be 
as  comprehensive  as  the  subject  matter  to 
which  it  was  to  apply  ut  res  magis  vateal  quam 
p?reat.  I  am  of  opinion,  accordingly,  that  the 
third  plea  is  bad,  in  substance,  and  that  judg- 
ment ought,  upon  that  plea,  to  be  rendered 
for  the  plaintiff  ;  unless  the  defendant  should 
wish  to  amend,  on  the  usual  terms. 

LEWIS,  Ch.  J.,  dissented. 
Judgment  for  the  plaintiff '. 


BALLARD  v.  WALKER. 

1.  Contracts — Specialty  or  Parol —  Written  — 
Not  Seeded  are  Parol.  2.  Written  Agree- 
inent — Setting  forth  the  Sale  of  Land — Promise 
to  Deliver  Deed,  on  Receipt  of  Mortgage — 
Statute  of  Frauds.  3.  I^apse  of  Time — Evi- 
dence— liescisnion 

All  contracts  are  by  specialty  or  parol;  and  if 
written,  and  not  sealed,  they  are  parol  agreements. 

A  signed  a  written  agreement,  reciting1  that, 
whereas,  he  had  sold  to  B  a  lot  of  land  who  had 
agreed  to  pay  him  £300  by  a  certain  day,  and  to 
execute  a  bond  and  mortgage  to  secure  the  pay- 
ment ;  A,  therefore,  promised  and  agreed  to  deliver 
to  B  a  good  and  sufficient  deed  for  the  land,  on 
delivery  of  the  bond  and  mortgage  by  B. 

In  an  action  brought  by  B  against  A  on  this  agree- 
ment, it  was  held,  that  this  being  a  mutual  agree- 
ment for  the  sale  and  purchase,  there  was  a  valid 
consideration  ;  and  that  being  a  writing  signed  by 
the  party  to  be  charged,  it  was  sufficient  under  the 
statute  of  frauds;  but  four  years  having  elapsed 
from  the  date  of  the  agreement  before  B  gave 
notice  to  A  that  he  should  insist  on  the  agreement, 
and  five  years  before  he  tendered  a  performance  on 
his  part,  it  was  presumed  that  the  parties  had 
rescinded  the  contract;  and  though  A  nad,  within 
a  year  after  the  contract,  sold  and  conveyed  the 
land  to  C  so  as  to  incapacitate  himself  to  perform 
his  agreement  with  B,  yet  that  circumstance  was 
not  held  sufficient  to  control  the  legal  presumption 
that  the  contract  was  rescinded. 

Citations— Eq.  Cas.  Abr.,  21,  pi.  10;  1  Pow.  on 
Cont.,  2*j;  1  Fonb.,  165, 166;  2  P.  Wms.,  82;  9  Mod., 
2 ;  Term  R.,  350. 

THIS  was  an  action  on  a  written  agreement 
for  the  sale  of  land,  dated  at  New  York, 
the  23d  November,  1793,  signed  by  the  defend- 
ant, which  recited  that,  whereas,  he  had  on 
that  day  sold  to  the  plaintiff  lot  No.  62,  in  the 
C>1  *]  *township  of  Homer,  in  the  military 
tract,  for  which  the  plaintiff  had  ajrreed  to  pay 
the  sum  of  £300,  in  two  equal  installments, 
to  wit,  on  the  23d  November,  1798,  and  23d 
November,  1799,  with  interest ;  and  to  execute 
a  bond  and  mortgage  therefor,  he  did,  there- 
fore, promise  and  obligate  himself  to  deliver  to 
the  plaintiff  a  good  and  sufficient  warranty 
deed  of  the  land,  on  delivery  of  the  bond  and 
mortgage  aforesaid,  properly  executed  and 
recorded.  The  cause  was  tried  at  the  Oneida 
Circuit  in  June,  1880,  before  Mr.  Jmtice  Had- 


On  the  trial,  the  agreement  being  admitted, 
the  plaintiff  proved  that  in  October,  1797, 
Joseph  Kirkland,  his  attorney,  presented  the 
agreement  to  the  defendant,  "at  the  request  of 
a  person  to  whom  the  plaintiff  had  sold  it,  and 
informed  him,  that  although  not  authorized 
then  to  demand  performance,  yet  he  was 
directed  to  inform  the  defendant  that  the 
plaintiff  would  get  good  security  to  pay  the 
money  by  the  time  stipulated. 

It  was  also  proved  that  the  defendant  then 
said  he  would  not  perform  on  his  part,  for  he  had 
sold  the  land  long  before.  It  was  further  proved 
that  in  October,  1798,  Kirkland  again  called 
on  the  defendant  with  the  agreement,  and  a 
power  of  attorney  from  the  plaintiff,  together 
with  a  bond  and  mortgage  executed  by  the 
plaintiff  and  his  wife,  and  demanded  the  deed 
of  the  defendant ;  that  the  defendant  made  the 
same  reply  as  before,  and  added  that  a  jury 
must  determine  the  damages.  It  appeared 
further,  that  the  mortgage  so  executed  was  not 
recorded,  nor  was  the  power  of  attorney ;  and 
that  the  defendant  had  executed  a  deed  of  the 
same  lot  to  Aaron  Burr  on  the  17th  October, 
1794.  The  power  of  attorney  was  proved  by 
an  acknowledgment  only  indorsed,  and  taken 
before  a  judge  of  Onondaga  County. 

It  was  proved,  on  the  part  of  the  defendant, 
by  the  certificate  of  one  of  the  clerks  of  the 
Supreme  Court,  that  judgments  were  obtained 
against  the  plaintiff,  after  the  date  of  the  agree- 
ment, and  before  the  application  *fpr  [62 
a  performance,  amounting  to  upwards  of  £1,- 
000,  and  which  appeared  to  be  unsatisfied. 

A  verdict  was  taken  for  the  plaintiff,  subject 
to  the  opinion  of  the  court,  on  a  case  contain- 
ing the  above  facts. 

The  case  was  argued  by  the  Attorney-General 
for  the  plaintiff,  and  Mr.  Emott  for  the 
defendant. 

RADCLIPF,  J.  On  the  argument,  the  counsel 
for  the  defendant  contended — 

1.  That  the  contract  was  invalid  for  want  of 
consideration,  and  for  want  of  being  reduced 
to    writing,  and    signed    by   the    parties,   as 
required  by  the  statute  against  frauds. 

2.  That  if  valid,  it  was  rescinded  before  the 
suit  was  commenced. 

3.  That  the  existing  incumbrances  against 
the  plaintiff  were  such  as  to  justify  a  refusal 
on  the  part  of  the  defendant. 

The  first  objection,  as  far  as  it  rests  on  the 
want  of  consideration,  appears  to  me  inap- 
plicable to  the  case.     If  the  agreement  would 
be  valid,  as  a  contract  by  parol  merely,  there 
would    certainly  be  an  ample  consideration. 
The  defendant  agreed  to  convey  lands  to  the 
plaintiff,  for  a  stipulated  price,  and  the  plaint- 
iff,   in    consideration   of    such    conveyance, 
agreed  to  pay  the  price  to  the  defendant.  Here 
were  mutual  and  valid  considerations.     If  the 
agreement  was    not    sufficiently   reduced    to 
writing,  or  signed  by  the  parties,  agreeably  to 
the  statute  of  frauds,  it  is  void  by  force  of  that 
I  statute,  but  not  for  the  want  of  consideration, 
i  The  objection  founded  on  the  statute  proceeds 
j  on  the  idea  that  an  agreement  is  not  sufficient  in 
i  writing,  unless  it  be  signed  by  both  the  parties. 
In  the  present  case  it  was  signed  by  the  defend- 
ant only,  who  undertook  to  convey.  The  words 
•  of  the  statute,  as  far  as  they  apply  to  the  sub- 
JOHNSON'S  CASES,  3. 


1803 


BALI.AUD  v.   WALKER. 


ject,  are,  that  no  action  shall  be  maintained 
upon  any  contract  or  sale  of  lands,  &c. ,  unless 
<53*]  *the  agreement  upon  which  such  action 
is  brought,  or  some  memorandum  or  note 
thereof,  shall  be  in  writing  and  signed  by  the 
party  to  be  charged  therewith."  The  language 
of  the  statute  itself,  therefore,  supposes  that 
the  writing  may  be  signed  by  one  ~bf  the 
parties  only,  and  such  was  the  construction  it 
received  soon  after  it  passed,  in  the  case  of 
Jfattonv.  &ray(Eq.  Cas.Abr.,  21,  pi.  10),  in  chan- 
cery, where  it  was  held  that  a  contract  signed  by 
one  of  these  parties  was  sufficient  to  take  it 
out  of  the  statute,  and  that  both  the  parties 
were  bound.  The  same  rule  appears  to  have 
been  adopted  in  later  cases  (1  Pow.  on  Cont., 
286 ;  1  Fonb.,  165,  166)  in  that  court,  and  I  think 
it  consistent  with  the  object  and  intent  of  the 
statute.  The  present  case  is  certainly  within 
the  terms  "signed  by  the  party  to  be  charged 
therewith,"  for  the  defendant,  who  signed  the 
contract,  was  possessed  of  the  interest,  and 
was  the  party  who  made  the  sale  which  was 
the  subject  of  this  regulation.  The  inter- 
pertation  of  the  statute,  at  law  and  in  equity, 
must,  in  relation  to  this  question,  be  the  same, 
and,  of  course,  the  plaintiff,  on  this  ground, 
cannot  be  deprived  of  a  recovery. 

The  second  objection  is  founded  on  the 
length  of  time  which  elapsed  before  a  perform- 
ance was  demanded,  or  an  offer  to  perform 
was  made  to  the  plaintiff.  The  contract  bears 
date  the  23d  November,  1793.  It  remained 
open  and  in  a  situation  to  be  carried  into  effect 
by  both  parties  near  a  year,  to  wit,  till  the  17th 
October,  1794,  when  the  defendant  conveyed 
the  premises  to  Mr.  Burr.  It  does  not  appear 
that  the  parties,  during  this  period,  had  agreed, 
or  either  of  them  had  done  any  positive  act  to 
rescind  the  contact.  The  first  notice  which 
the  defendant  afterwards  received  of  the  plaint- 
iff's insisting  on  the  contract,  was  in  October, 
1797,  near  four  years  subsequent  to  the  making 
of  it,  and  the  first  offer  to  perform  on  the  part 
of  the  plaintiff  was  in  October,  1798,  near  five 
years  subsequent  thereto.  Under  such  cir- 
cumstances a  court  of  equity  would  presume 
64*J  (3  P.  Wms.,  82;  9  Mod.,  2),  *and  I 
think  a  court  of  law  ought  equally  to  presume, 
that  the  contract  had  been  rescinded  by  the 
consent  of  parties,  or  discharged  by  some  com- 
position between  them.  Great  inconveniences 
would  ensue  if  stale  contracts  were  allowed  to 
be  set  up,  at  any  distance  of  time,  and  I  think 
it  a  just  and  salutary  rule  that  they  shall  be 
deemed  to  be  abandoned,  unless  enforced 
within  a  reasonable  time,  or  the  delay  satis- 
factorily accounted  for.  The  circumstance  that 
the  defendant,  in  this  instance,  incapacitated 
himself  to  perform  the  contract  within  a  year, 
Is  not  inconsistent  with  this  presumption,  and 
merely  controls  its  application  to  that  period. 
Neither  do  I  think  that  his  answer  to  the 
attorney  for  the  plaintiff  operates  against  it. 
He,  at  first,  said  that  he  could  not  perform  the 
agreement,  for  he  had  conveyed  the  land  long 
before,  and,  afterwards,  added  that  he  con- 
sidered the  contract  to  have  been  abandoned, 
and  that  a  jury  must  determine  the  damages. 
The  last  expression  implies  no  more  than,  if 
liable,  he  must  submit  to  a  legal  decision. 

I  am,  therefore,  of  opinion  that  we  must 
consider  the  contract  to  have  been  rescinded 
JOHNSON'S  CASES,  3. 


by  both  parties,  and,  of  course,  that  the  plaint- 
iff has  no  right  to  recover.  It  is  unnecessary 
to  examine  the  third  objection,  or  to  notice 
several  other  questions  which  might  arise  on 
the  testimony  relative  to  the  points  which  I 
have  assumed  in  giving  this  opinion. 

KENT,  J.  The  points  raised  are,  1.  That  the 
contract  was  without  consideration  and  void  ; 

2.  If  valid,  that  it  was  at  an  end,  and  dis- 
charged before  suit  brought ;  and, 

3.  That  the  defendant  was  justified  in  his 
nonperformance  by  the  judgment  against  the 
plaintiff. 

The  circumstance  of  this  agreement  being  in 
writing  does  not,  of  itself,  remove  the  objec- 
tion to  its  being  without  consideration.  It 
was  lately  settled  in  England  *by  all  the  [*65 
judges,  upon  a  reference  to  them  by  the  House 
of  Lords,  in  the  case  of  the  Executors  of  Hughtx 
v.  Hughes  (7  Term  Rep.,  350),  that  all  con- 
tracts are,  by  the  laws  of  England,  distin- 
guished into  agreements  by  specialty  and  agree- 
ments by  parol ;  and  that  if  an  agreement  be 
merely  written,  and  no  specialty,  it  is  an  agree- 
ment  by  parol,  and  a  consideration  must  be 
proved.  The  decision  of  the  House  of  Lords 
was  in  conformity  to  this  opinion  of  the 
judges,  and  it  must  be  considered  as  the  true 
rule  of  the  common  law. 

But  this  contract  is  valid  as  far  as  a  consid- 
eration is  in  question.  One  agrees  to  sell  and 
the  other  to  convey.  It  is  sufficient  if  the 
writing  be  signed  by  one  party  only  and  ac- 
cepted by  the  other.  This  takes  the  case  out 
of  the  statute  of  frauds.  (1  Eq.  Cas.  Abr.,  21, 
pi.  10;  1  Pow.  on  Cont.,  286;  1  Fonb.,  165, 
166.)  The  present  agreement  is  signed  by  the 
party  to  be  charged  therewith.  The  construc- 
tion  of  the  statute,  in  law  and  equity,  must  be 
the  same. 

But  from  the  lapse  of  near  four  years,  before 
the  plaintiff  gave  notice  that  he  insisted  on  the 
contract,  and  near  five  years  before  he  offered 
to  perform,  we  must  presume  the  contract  to 
have  been  rescinded.  (2  P.  Wms.,  82 ;  9  Mod. , 
2.)  Public  convenience  requires  this  construc- 
tion. The  circumstance  that  the  defendant 
incapacitated  himself,  does  not  control  the 
presumption.1  On  this  ground,  the  defendant 
is  entitled  to  judgment. 

LEWIS,  Ch.  J.,  was  of  the  same  opinion. 
Judgment  for  the  defendant. 

Distinguished— 42  N.  Y.,  533. 

Cited  in— 3  Johns.,  214 ;  14  Johns.,  487 ;  6  Cow.,  448 ; 
7  Cow.,  49 ;  9  Cow.,  50 ;  4  Denio,  535 ;  Clarke,  405 ;  5 
X.  Y.,  244 ;  24  X.  Y.,  59 ;  1  Lans.,  211 ;  1  Barb.,  130 :  4 
Barb.,  359;  26  Barb.,  298;  14  How.,  333;  30  How.,  440; 
2  Abb.,  267 ;  8  Abb.,  N.  8.,  424 ;  10  Leg.  Obs.,  43 ;  2  Rob., 
354;  5  Sand.,  105;  1  Sweeny,  657;  4  McLean,  359. 

1. — By  the  French  law,  though  the  mere  lapse  of 
time  within  which  a  contract  or  condition  is  to  be 
performed,  is  sufficient,  on  principles  of  natural 
justice,  to  dissolve  an  engagement;  yet,  by  the 
usages  of  France,  the  party  must  be  summoned  be- 
!  fore  a  magistrate,  who,  in  default  of  his  appear- 
ance, or  performance,  will  declare  the  agreement 
void ;  and  such  a  summons  and  order  of  a  judge 
seems  necessary,  according  to  the  same  usage,  even 
where  no  time  is  limited,  before  there  can  be  an  ex- 
tinguishment or  rescission  of  the  contract.  But 
though  no  such  sentence  or  order  is  obtained,  yet, 
if  a  considerable  time  has  elapsed,  a  presumption 
will  arise  that  the  contract  has  been  extinguished 
or  rescinded  by  the  tacit  consent  of  the  parties. 
(Pothier,  Trait,  dee  Oblig..  No.  636 :  Trait,  du  Contrat 
de  Vente,  No.  480.) 

tiltt 


68 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


180* 


«6*J     *WILKIE  r.  ROOSEVELT. 

Action  on  Note — Accommodation  Indorsement — 
Usury. 

Where  A  made  a  note  payable  to  B,  who  indorsed 
it,  merely  for  the  accommodation  of  A,  who  passed 
the  note  to  C  to  raise  money  on  it  by  having  the 
same  discounted  in  the  market,  and  C  discounted 
the  note  at  a  premium  of  three  and  one  fourth  per 
cent,  per  month,  and  after  deducting  the  discount 
applied  the  proceeds  to  the  payment  of  moneys  lent 
by  him  to  A,  and  afterwards  in  the  course  of  his 
business  passed  the  note  to  D,  who  brought  an 
action  against  B,  the  first  indorser,  it  was  held  that 
the  note,  though  indorsed  by  B  for  the  accommo- 
dation of  A,  passed  immediately  from  A  to  C,  and 
that  the  transaction  in  its  inception  was  usurious, 
and  the  note,  therefore,  void. 


Citation— 2  Johns.  Gas.,  60. 

THIS   was  an  action  of  aawmpsit,  brought 
against  the  defendant,  on  a  promissory 
note,  made  by  Jacob  Mark  &  Co.,  for  $1,- 
366.66,  dated  3d  June,  1799,  and  payable  in 
ninety  days,  to  the  defendant  or  his  order. 

At  the  trial  of  the  cause,  it  was  proved  by 
C.  W.  Goodrich  that  he  had  been  in  the  prac- 
tice of  receiving  notes  from  Mark  &  Co.,  for 
the  purpose  of  raising  money,  by  discounting 
them  in  the  market.  That  on  receiving  them 
he  credited  them  at  the  nominal  sum,  and 
afterwards  accounted  for  the  amount,  deduct- 
ing the  discount.  That  he  was  limited  as  to 
the  amount  of  the  discount  to  be  paid  by  Mark 
&  Co.  That,  under  a  general  agreement  to 
this  effect,  he  received,  on  or  about  the  3d 
June,  1799,  a  note  from  them  for  that  pur- 
pose, corresponding  in  every  particular  with 
the  present  note,  and  which  was  indorsed  by 
the  defendant ;  that  he  could  not  positively 
say  that  the  note  in  question  was  the  same  note 
he  so  received  ;  but  he  had  not,  to  his  knowl- 
edge, received  from  them  any  other  note, 
drawn  and  indorsed  by  the  same  parties,  and 
of  the  same  date  and  sum,  and  therefore  fully 
believed  it  was  the  same ;  that  this  note  was  to 
be  discounted,  and  the  proceeds  applied  to  the 
payment  of  moneys  which  had  been  lent  by 
him  to  Mark  &  Co.,  and  that,  deducting  the 
excess  beyond  legal  interest  on  their  money 
transactions,  there  would  still  remain  some 
balance  due  to  him.  A  memorandum  or 
account  of  the  note  was  then  offered  in  evi- 
dence, which  the  witness  Goodrich  acknowl- 
edged he  had  delivered  to  Mark  «fc  Co.,  in 
which  the  proceeds  of  a  note  corresponding 
precisely  with  the  present,  were  stated  to  be 
$1,244,  and  must,  therefore,  have  been  at- 
tended with  the  discount  of  about  three  and 
67*]  one  quarter  per  cent,  per  *month. 
Shortly  after  receiving  the  note,  Goodrich  de- 
livered it  to  the  plaintiff,  at  the  instance,  and 
in  presence,  of  one  Peck,  together  with  sev- 
eral other  notes,  in  payment  of  the  considera- 
tion money  for  the  purchase  of  a  vessel  which 
the  plaintiff  had  sold  to  Peck.  The  amount 
of  the  note  was  settled  in  account  between 
Goodrich  and  Peck. 

It  was  also  proved  by  one  Raymond,  a  clerk 
of  Mark  &  Co.,  that  they  were  in  the  habit  of 
delivering  notes  to  Goodrich  to  raise  money, 


NOTE. — Accommodation,  paper,  usury. 
See  Jones  v.  Hake,  2  Johns.  Cas.,  60,  and  note. 
020 


and  that  he  did  not  know  or  believe  that  any 
note  was  ever  delivered  to  him  by  them  for 
any  other  purpose,  excepting  a  note  of  $300. 

This  was  the  substance  of  the  evidence  011 
which  the  judge  charged  the  jury  that  the  ne- 
gotiation of  the  note,  in  the  manner  disclosed 
by  the  testimony,  rendered  it  usurious  and 
void ;  and  that  if  they  believed  the  note  in 
question  to  be  the  same  mentioned  by  the 
witness  Goodrich,  and  referred  to  in  the  memo- 
randum, they  ought  to  find  for  the  defend- 
ant. The  jury,  however,  found  a  verdict  for 
the  plaintiff. 

Mr.  S.  Jone#,  Jun. ,  for  the  plaintiff. 
Mr.  Morton,  contra. 

RADCLIFF,  J.     From  the  manner  in  which, 
the  testimony  of  Goodrich  is  stated  in  the  case, 
it  is  obvious  that  he  was  a  reluctant  witness. 
There  can,  however,  be  no  doubt,  upon  the 
evidence,  of  the  identity  of  the  note.      The 
i  witness,  at  the  time,  received  precisely  such  a 
i  note,  drawn  and  indorsed  by  the  same"  parties, 
J  bearing  the  same  date,   for  the  same  sum, 
j  payable  at  the  same  time,  and  he  knew  of  no- 
other  of  that  description,  and  fully  believed  it 
to  be  the  same.     Although  he  seems  cautiously 
to  have  repeated  that  he  was  not  positive  of 
the  fact,  he  went  as  far  as  any  witness  could 
do  to  identify  the  instrument.     The  verdict 
was,  therefore,  clearly  against  *evidence,  [*68- 
and  against  the  law,  as  directed  by  the  judge, 
and  if  that  direction  was  right,   the  verdict 
ought  not  to  prevail. 

I  consider  this  as  a  transaction  existing  im- 
mediately between  Mark  &  Co.  and  the  wit- 
ness Goodrich.  The  defendant,  who  indorsed 
the  note,  was  a  collateral  security  merely  for 
the  accommodation  of  Mark  &  Co.  He  neither 
paid  nor  received  any  value  or  consideration 
for  the  note.  It  passed  immediately  to  Good- 
rich, for  the  purpose  of  being  discounted  at 
usurious  interest,  and  to  be  applied  to  the 
payment  of  his  own  debt  against  Mark  &  Co. 
Receiving  the  note  for  his  own  benefit,  he 
might  elect  to  become  the  holder,  and  make 
the  discount  himself,  or  dispose  of  it  to  others. 
He  chose  the  former  mode,  and  in  the  char- 
acter of  holder,  negotiated  it,  through  Peck, 
to  the  plaintiff.  He  accordingly  charged 
Mark  &  Co.  with  the  discount,  under  color, 
indeed,  of  its  being  made  by  another,  but,  in 
fact,  made  by  himself.  He,  therefore,  must 
be  considered"  the  lender,  and  Mark  &  Co.  as 
the  borrowers,  at  a  usurious  interest.  The 
only  remaining  question,  then,  is,  whether  the 
form  of  the  transaction  shall  protect  the 
parties  against  the  effect  of  a  usurious  con- 
tract. If  that  were  allowed,  the  statute,  on 
every  occasion,  might  be  avoided,  and  would 
become  a  dead  letter.  The  necessity  of  the 
case  requires  a  different  rule,  and  it  has,  ac- 
cordingly, been  uniformly  held  that  no  such 
contrivance  or  shift  can  elude  the  statute. 
The  case  of  Jones  v.  Hake  (see  2  Johns.  Cases 
60)  in  this  court,  was  determined  on  the  same 
ground.  One  Watkins  there  made  a  note  to 
Hake,  which  was  indorsed  to  him  and  others, 
without  any  consideration,  and  for  the  accom- 
modation of  Watkins  merely.  It  was  then 
delivered  to  Hake,  as  a  broker,  who  procured 
it  to  be  discounted  by  Herriman,  at  an  usurious 
JOHNSON'S  CASES.  3. 


1802 


DUSENBUKY    V.    ELLIS. 


interest,  and  it  afterwards  came  to  Jones,  an 
innocent  holder.  We  decided  that  although 
Watkins  and  Herriman  were  unknown  to  each 
other,  it  was  to  be  considered  as  a  contract 
69*]  immediately  between  them.  *So  here, 
notwithstanding  the  note  was  made  payable  to 
Roosevelt,  and  indorsed  by  him,  it  was  essen- 
tially an  original  contract  between  Mark  &  Co. 
on  the  one  part,  and  Goodrich  on  the  other ; 
.and,  as  between  them,  was  clearly  founded  on 
usury,  and  therefore  void. 

For  these  reasons  I  am  of  opinion  that  the 
direction  of  the  judge  was  right,  and  that  the 
verdict  ought  to  be  set  aside. 

KENT,  J.  There  can  be  no  doubt,  on  this 
evidence,  of  the  identity  of  the  note.  Though 
the  witness  Goodrich  speaks  with  apparent 
•caution  and  reluctance,  the  evidence  appears 
to  me  to  be  irresistible  that  the  note  he  nego- 
tiated and  the  note  in  question  were  the  same  ; 
and  if  the  direction  of  the  judge  was  right, 
the  verdict  is  clearly  against  law  and  evidence, 
.and  ought  to  be  set  aside. 

The  Defendant,  who  indorsed  the  note,  must 
be  considered  merely  as  security,  and  as  hav- 
ing lent  his  name  for  the  accommodation  of 
Mark  &  Co.  He  neither  paid  nor  received 
.any  consideration  for  the  note.  It  passed  im- 
mediately from  Mark  &  Co.  to  Goodrich, 
for  the  purpose  of  being  discounted,  at  a  usu- 
rious interest,  and  to  be  applied  to  the  payment 
of  his  own  demand  against  Mark  &  Co.  He 
received  the  note  for  his  own  benefit,  and 
credited  Mark  &  Co.  with  the  proceeds,  after 
making  a  usurious  discoimt.  Goodrich  is, 
therefore,  to  be  considered  as  the  lender  of 
the  money.  He  took  to  himself  the  usurious 
•discount.  He  passed  the  note  to  Peck,  as  the 
real  holder,  and  for  the  amount  of  it.  The 
transaction  was,  therefore,  originally  and  in 
its  inception  usurious  between  Mark  &  Co. 
41  nd  Goodrich.  The  evidence  of  usury  appears 
to  me  to  be  decisive  and  unequivocal,  as  be- 
tween them.  The  account  rendered  by  Good- 
rich to  Mark  &  Co.  in  pursuance  of  their 
agreement  shows  the  rate  of  the  discount. 
When  a  case  appears  as  strongly  marked  as 
7O*]  this,  we  have  nothing  to  do  with  *the 
policy  of  the  defense.  It  is  our  duty  to  give 
effect  to  the  statute,  to  cause  it  to  be  observed, 
sind  to  suffer  no  contrivance  or  covin  of  the 
parties  to  evade  it. 

My  opinion,  therefore,  is,  that  the  verdict 
was  against  law  and  evidence,  and  ought  to  be 
set  aside  on  payment  of  costs. 

LEWIS,  Ch.  J,,  dissented. 
New  trial  granted. 

Cited  in— 15  Johns.,  55 ;  7  Wend.,  601 ;  72  N.  Y..  Ill ; 
7  Peters,  107 :  2  Cranch  C.  C.,  206 ;  2  McLean,  245 ;  3 
AVood.  &  M.,  187, 189. 


DUSENBURY  v.  ELLIS. 

Note — Signed  by   One  as    Attorney  —  Without 
Autliority — Personal  Liability. 

A  person  who  signs  a  note  in  the  name  of  another, 
as  his  attorney,  without  any  authority  for  that  pur- 
pose, is  personally  liable  on  the  note  to  the  party 
who  accepts  the  note  under  such  mistake  or  impo- 
sition. 

JOHNSON'S  CASES,  3. 


IN  error  on  certioi'a/ri  from  a  justice's  court. 
Ellis  sued  Dusenbury,  before  the  justice, 
on  a  promissory  note  for  $19.77,  given  by 
Dusenbury  to  Levi  Fish  or  order,  and  by  him 
indorsed  in  blank.  The  note  was  signed  by 
the  defendant  below  in  this  manner :  "  For 
Peter  Sharpe,  Gabriel  Dusenbury,  attorney." 
The  note  was,  otherwise,  in  the  usual  form, 
and  began  with  the  words  "  I  promise,"  &c. 
It  was  contended  that  the  defendant  was  not 
liable,  having  signed  the  note  merely  as  attor- 
ney for  Sharpe,  and  he  produced  his  letter 
of  attorney,  which,  however,  appeared  to  be 
nothing  more  than  the  usual  power  to  collect 
debts,  and  contained  no  authority  to  give 
notes,  or  bind  the  principal,  in  that  way.  The 
justice  gave  judgment  for  the  plaintiff  below. 

Mr.  Van  Antwerp  for  the  plaintiff  in  error. 
Mr.  Emott,  contra. 

Per  Curiam.  There  can  be  no  question  bu  t 
that  Dusenbury  signed  the  note,  without  hav- 
ing any  authority  *for  that  purpose.  [*71 
The  letter  of  attorney  could  not  bind  the  prin- 
cipal beyond  the  plain  import  of  it.  An 
authority  to  collect  debts  cannot,  by  any  pos- 
sible construction,  be  an  authority  to  give 
notes. 

The  only  question,  then,  is,  whether  Du- 
senbury was  not  personally  responsible  as  for 
his  own  note.  On  this  point  we  are  of  opin- 
ion that  if  a  person,  under  pretense  of  author- 
ity from  another,  executes  a  note  in  his  name, 
he  is  bound,  and  the  name  of  the  person  for 
whom  he  assumed  to  act  will  be  rejected  as 
surplusage.  The  party  who  accepts  of  a  note, 
under  such  mistake  or  imposition,  ought  to 
have -the  same  remedy  against  the  attorney 
who  imposes  on  him  as  he  would  have  had 
against  the  pretended  principal,  if  he  had  been 
really  bound. 

Judgment  of  affirmance. 

Criticised— 16  Minn.,  393. 

Reviewed— 26  N.  Y.,  123. 

Cited  in— 19  Johns.,  565 ;  1  Cow.,  536 ;  8  Cow.,  560, 
585;  1  Denio,  480;  9  N.  Y.,586;  52  N.  Y..  499;  35 
Barb.,  205 ;  26  How.,  483 ;  7  W.  Dig.,  575. 


HERRING 

ID. 

J.   SANGER,   who  was  Impleaded  with   Z. 
SANGER. 

1.  Note — Acceptance  from  One  for  Debt  of  Two 
— Receipt  no  Ej-tinfjuinhment  of  Debt.  2. 
Id. — Payable  at  Bank — Demand  of  Maker  Per- 
sonally. 

A  took  a  promissory  note  of  B  for  a  debt  due 
from  B  and  C,  as  partners,  after  the  partnership  was 
dissolved,  and  gave  a  receipt  for  the  note,  when 
paid,  to  be  in  full  of  the  debt.  In  an  action  against 
C  on  the  original  debt,  it  was  held  that  the  accept- 
ing the  note  was  no  payment  of  the  precedent  debt, 
and  that  C  was  liable.  Where  a  note  was  made 
payable  at  the  Bank  of  Albany,  and  a  demand  of 
payment  was  made  of  the  maker  personally  in 
Albany,  but  not  at  the  bank,  and  no  objection  made 
at  the  time,  the  demand  was  held  sufficient. 


NOTE— A  promissory  note  of  itself  does  not  dis- 
charge the  original  cause  of   action.     Mooring  v. 

(J21 


71 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


Citations— 1   Salk.,  12i;   7  Term   R.,   66;   1    Esp.  | 
Cases,  3,  4,  5,  6  ;  1  Term  R.,  655. 

rpHIS  was  an  action  of  assumpsit  for  goods 
J-  sold  and  delivered.  At  the  trial  of  the 
cause  a  verdict  was  given  for  the  plaintiff, 
subject  to  the  opinion  of  the  court  on  the  fol- 
lowing case : 

Jedediah  Sanger  and  Zedekiah  Sanger,  being 
partners  in  trade,  became  indebted  to  the 
plaintiff  in  the  amount  for  which  this  action 
is  brought.  After  they  had  dissolved  their 
partnership,  and  after  advertisement  of  such 
dissolution,  the  plaintiff's  agent  called  on  Z. 
Sanger,  one  of  the  defendants,  for  a  settle- 
72*]  ment,  and  received  for  the  *balance  a 
promissory  note  signed  by  Zedekiah  Sanger, 
payable  at  the  Bank  of  Albany,  and  dated  the 
llth  March,  1799.  The  plaintiff's  agent  gave 
a  receipt  for  the  note,  stating  that  when  paid 
it  should  be  in  full  of  J.  &  Z.  Sanger's  ac- 
count. 

Payment  of  the  note  had  been  demanded  of 
the  drawer,  when  in  New  York,  and  also  in 
Albany,  but  it  did  not  appear  that  it  had  ever  j 
been  demanded  at  the  Bank  of  Albany,  or  that 
the  drawer  was  ready,  or  had  offered,  to  pay 
it  there.  And  the  note  was  still  unpaid. 

Mr.  8.  Jones,  Jun.,  for  the  plaintiff. 
Mr.  Hopkins,  contra. 

KENT,  J.,  delivered  the  opinion  of  the  court : 
It  is  a  settled  rule  of  law  that  accepting  a  note 
for  a  debt  due  is  no  payment  of  the  debt,  un- 
less it  be  specially  so  agreed,  or  unless  the 
creditor  negotiates  the  note.  It  can  only  post- 
pone the  time  of  payment  of  the  debt  until  a 
default  in  the  payment  of  the  note.  (1  Salk. , 
134;  7  Term  Rep.,  66;  1  Esp.  Cases,  3,  4,  5, 
6 ;  1  Term  Rep. ,  655.)  In  this  case,  it  is  stated, 
that  by  the  express  agreement  of  the  parties, 
the  note  was  not  intended  to  discharge  the  pre- 
existent  debt,  and  the  receipt  of  the  plaint- 
iff's agent  was  given  with  the  express  view  and 
intent  of  holding  the  defendant  still  liable. 

The  only  question  that  could  be  made  in 
this  case  was,  whether  the  plaintiff  had  used 
due  diligence  in  making  a  demand  of  payment 
of  the  note.  Admitting  this  to  be  like  the 
case  of  a  creditor  accepting  a  bill  for  a  prior 
debt,  and  that  he  is  bound  to  use  diligence  to 
get  the  money,  and  to  give  notice  of  nonpay- 
ment ;  yet  the  plaintiff  has  done  all  that  was 
requisite  for  him  to  do.  He  demanded  the 
money  of  the  drawer  in  person  at  Albany,  and 
no  objection  being  made  to  the  place  of 
demand,  it  excused  the  plaintiff  from  the  neces- 
73*]  sity  of  making  the  *demand  at  the 
Albany  bank.  No  injury  could  possibly  have 
arisen  to  the  drawer  of  the  note  from  the 


plaintiff's  omission  to  go  to  the  bank.  The  per- 
sonal demand,  in  this  instance,  at  Albany, 
without  any  objection,  was  a  waiver  of  any 
further  demand,  and  I  am  satisfied  that  the 
justice  of  the  case,  as  well  as  the  law,  is  with 
the  plaintiff. 

Judgment  for  the  plaintiff .* 

Distinguished— 11  Johns.,  413. 

Cited  in— 9  Johns.,  311 ;  1  Cow.,  334;  11  Wend.,  15; 
26  N.  Y.,  406;  10  Hun.,  38;  47  Barb.,  36;  4  Wash.,  274. 
276;  2  Cranch  C.  C.,  471. 


HOLMES  ET  AL.  e.  LANSING,  Sheriff,  &c. 

1.  Escape  —  Action  for  —  Finding  on  Record  — 
Voluntary.  2.  U.  ft.  Constitution  —  Art.  1, 
Section  10—  Extent  of—  To  States—  Jail  Liber- 
ties. 3.  Bond  to  Sheriff  —  Jail  Liberties  — 
Waiver  —  Escape  —  Statute. 

In  an  action  against  a  sheriff  for  an  escape,  if  it  be 
averred,  or  found  on  the  record,  that  the  sheriff 
permitted  the  prisoner  to  escape,  it  is  equivalent  to 
a  finding  of  a  voluntary  escape. 

The  prohibition  in  the  10th  section  of  the  first 
article  of  the  Constitution  of  the  United  States 
does  not  extend  to  the  municipal  regulations  of  the 
present  States,  which  modify  the  process  and  pro- 
ceedings relative  to  the  recovery  of  debts,  as  es- 
tablishing jail  liberties,  &c. 

The  act  (sess.  24,  ch.  91),  as  to  jail  liberties,  is  im- 
perative on  the  sheriff,  who  is  bound  to  grant  the 
liberties  to  the  prisoner  on  his  tendering  a  sufficient 
bond;  but  as  this  bond  is  intended  only  for  the 
sheriff's  indemnity,  he  may  waive  it,  and  grant  the 
liberties  without  taking  the  bond  ;  and  he  will  not, 
therefore,  be  liable  for  an  escape.  £ 

Citations—  Carter,  212  ;  2  Leon.,  118  ;  Cro.  Jac.,  657  ; 
Rev.  Laws,  Vol.  I.,  p.  350,  sess.  24,  ch.  91  ;  2  Johns. 
Cas..  205  :  Act  of  March  30th.  1799. 


was  an  action  against  the  defendant, 
J-  as  sheriff  of  the  City  and  County  of  New 
York,  for  an  escape. 

It  was  found,  by  the  special  verdict,  that 
the  defendant,  as  sheriff  of  New  York,  did, 
"without  any  compensation  or  promise  there- 
for, permit  John  Evers,  who  was  charged  in 
execution  at  the  suit  of  the  plaintiffs,  to  go  at 
large  without  the  walls  of  the  prison,  but  with- 
in the  limits  of  the  liberties  thereof,  and  that 
he  so  permitted  him,  at  sundry  times,  in  the 
months  of  September,  October,  and  Novem- 

1.—  See  Rogers  &  Meritt  v.  Clapp,  2  Caines,  117  ; 
Holmes  &  Drake  v.  D'Camp,  1  Johns.  Rep.,  35  ; 
Markles  v.  Hatfield,  2  Johns.  Rep.,  455  ;  People  v. 
Howell.  4  Johns.  Rep.,  296;  Tobey  v.  Barber,  5 
Johns.  Rep.,  68. 


NOTE.— Escape,  Voluntary. 

See  Lansing  v.  Fleet,  2  Johns.  Cas.,  3,  and  note. 


Marine  Dock  and  Mutual  Ins.  Co.,  37  Ala.,  254 ;  Bill 
v.  Porter,  9  Conn.,  23 ;  Mines  v.  McDowell,  4  Ga., 
182;  Lord  v.  Bigelow,126  Mass.,  185;  Miller  v.Lums- 
den,  16  111..  161 ;  Jones  v.  Ransom,  3  Ind.,  327 ;  Au- 
burn City  Bank  v.  Hunsiker,  72  N.  Y.,  252 ;  Logan  v. 
Attix,  7  Iowa,  77 ;  Tobey  v.  Barber,  5  Johns.,  68  ; 
Johnson  v.  Weed,  9  Johns.,  310 ;  Hoan  v.  Clute,  15 
Johns.,  224 ;  Burdick  v.  Green,  15  Id.,  247 ;  Thayer  v. 
Peck,  93  111.,  357;  Jennison  v.  Parker,  7  Mich.,  355; 
Merrick  v.  Boury,  4  Ohio  St.,  60 ;  Mclntyre  v.  Ken- 
nedy, 29  Pa.  St.,  448;  Clark  v.  Young,  1  Cranch,  181 ; 
Case  v.  Sears,  44  Mich.,  195 ;  Mussen  v.  Price,  4  East, 
147 ;  Mardis  v.  Kennedy,  23  Ka.,  n  408 ;  Hickling  v. 
Hardey,  7  Taunt.,  312 ;  Little  v.  American,  etc.,  Co., 
67  Ind.,  fft ;  Wallace  v.  Agry,  4  Mason,  336. 

622 


A  note  ffiren  and  received  for  thai,  purpose  dis- 
charges prior  debt.  Shacfty  v.  Mandeville,  6  Cranch , 
253 ;  Miller  v.  Lumsden,  16 'ills.,  161 ;  Holmes  v.  De- 
Camp,  1  Johns.,  34;  Burden  v.  Halton,  4  Bing., 
454;  Smith  v.  Bettger,  68  Ind.,  254;  Ames,  etc.,  Co.  v. 
Tucker,  8  Mo.  App.,  95 ;  Teal  v.  Spangler,  72  Ind., 
380 ;  Swett  v.  Southworth,  125  Mass.,  417 ;  Meyer  v. 
Lathrop,  73  N.  Y.,  315 ;  Hunter  v.  Weteell,  17  Hup.. 
135. 

See  Murray  v.  Gouverneur,  1  Johns.  Cas.,  438,  and 
note. 

For  a  fun  discussion  of  Paj/ment  b?/  negotiable  bftt 
or  note,  see  Parsons  on  Contracts,  Vol.  II.,  chap.  7, 
and  authorities  there  cited. 

JOHNSON'S  CASKS,  3. 


1802 


PATRICK  v.  HALLKTT  AND  BOWNE. 


ber.  1798.  That  he  took  no  bond  from  the 
said  John  Evers,  as  is  mentioned  or  required 
in  the  act  for  regulating  the  liberties  of  jails. 
That  the  said  John  Evers  voluntarily  returned 
within  the  walls  before  the  commencement  of 
the  suit  against  the  defendant,  which  was  on 
the  18th  February,  1799." 

The  question  was,  whether  the  defendant 
was  responsible  to  the  plaintiffs  as  for  an  es- 
cape. 

74*]  *KENT,  /.,  delivered  the  opinion  of  the 
court: 

1.  If  it  is  found  that  the  sheriff  permitted  a 
person  to  go  at  large,  it  is  equivalent  to  finding 
that  he  voluntarily  suffered  him.     The  distinc- 
tion that  runs  through  all  the  books  is  between 
voluntary   and    negligent    escapes,    and    not 
between  voluntary  and  permissive  escapes.    In 
the  case  of    Vintner    v.    Allen  (Carter,   212) 
there  was  a  scire  facias  brought  on  a  judg- 
ment, and    the    defendant  pleaded    that    he 
was   in    prison,    in    custody   of    the  warden 
of  the  Fleet,   and   that  the    warden  permMt 
ilium  ire  ad  largum.     On  demurrer  to    this 
plea,  and  argument,  it  was  contended,  on  one 
side,  that  by  permission  must  be  understood 
negligent,  and  on  the  other  side,  that  it  must  be 
understood  voluntary.     Two  of    the  judges 
appeared,  in  the  first  instance,  to  differ  on  the 
import  of  the  word  permisit,  but  at  last  the 
court  concluded  it  to  be  a  plea  of  a  voluntary 
escape,  and  decided  upon  it  as  such.     In  the 
case  of  Philips  v.  Stone(2  Leon.,  118)  the  court 
said,  if  a  prisoner,  being  in  execution,  escape 
with  the  permission  of  the  jailer,  the  execu- 
tion is  utterly  extinguished,  and  the  prisoner 
discharged,  which  was  only,  at  common  law, 
in  cases  of  voluntary  escapes.     So  in  the  case 
of    Whiting  v.  Sir  G.  Reynal(Cro.  Jac.,  657), 
which  was  an  action  of  debt  against  the  mar- 
shal for  an  escape,  the  declaration  stated  that 
he  suffered  the  prisoner  to  go  at  large,  and 
the  court  held  this  equivalent  to  a  voluntary 
permission. 

It  might  be  easy  to  multiply  cases  where  the 
word  "voluntary"  has  been  used,  but  those  I 
have  referred  to,  artd  the  general  language  of 
all  the  books,  are  sufficient  to  show  that  if  it 
be  averred  or  found  on  the  record  that  the 
sheriff  permitted  a  man  to  escape,  the  court 
must  understand  it  to  be  an  escape  by  consent. 

2.  I  have  no  doubt  that  the  Act  of  the  5th 
April,  1798  (Rev.  Laws,  Vol.  I.,  p.  350,  sess.  24, 
ch.  91),  regulating  the  liberties  of  jails  was  a 
valid  act,  and  not  within  the  prohibition  of  the 
Constitution  of  the  United  States,  that  no  State 
75*]  should  pass  laws  impairing  *the  obliga- 
tion of  contracts.     This  law  was  not  intended 
to  impair  the  remedy  of  the  creditor  by  con- 
finement of  the  debtor's  body.     We  need  not 
give  any  opinion  whether  taking  away  the 
remedy  by  a  ca.  sa.  on  pre-existent  contracts 
would  infringe  the  provision  in  the  Constitu- 
tion, since  that  question  does  not  arise  on  this 
act.     It  is  only  a  regulation  concerning  the 
jails,  and  rendering    them  more    convenient 
and  healthy.     The  remedy  still  exists  in  force 
and  effect.     That  general  prohibition  cannot 
be  understood  to  apply  to  all  the  detail  of  mu- 
nicipal regulations,  rendering  more  easy,  or 
less  inconvenient,  the  process  and  proceedings 
for  the  recovery  of  debts.     The  manner  of  ar- 
JOHNSON'S  CASES,  3. 


resting  and  holding  to  bail ;  the  proceedings 
in  a  suit  to  judgment ;  the  time  and  mode  of 
taking  out  execution ;  the  regulation  of  sales 
on  execution  ;  the  discharge  of  persons  in  exe- 
cution, after  thirty  days  or  after  three  months, 
on  terms  ;  the  establishment  and  regulation  of 
the  liberties  of  jails,  are  provisions  which 
have  most  of  them  been  made  or  amended 
since  the  Constitution  of  the  United  Spates ; 
and  are  all,  more  or  less,  liable  to  the  same  ob- 
jection. The  Constitution  could  not  have  an 
eye  to  such  details,  so  long  as  contracts  were 
submitted  without  legislative  interference  to- 
the  ordinary  and  regular  course  of  justice,  and 
the  existing  remedies  were  preserved  in  sub- 
stance, and  with  integrity. 

As  to  the  interpretation  of  this  act,  I  remain 
of  the  opinion  which  was  given  by  the  late 
Chief  Justice  in  the  case  of  Dole,  Sheriff,  &c. 
v.  Moulton  et  al.  (2  Johns.  Cases,  205),  that  on 
tender  of  the  bond  prescribed  it  was  made  the 
sheriff's  duty  to  grant  the  prisoner  the  liberties ; 
that  the  words  "shall  permit,"  &c.,  "pro- 
vided," &c.,  are  imperative,  on  the  condition 
being  performed,  and  that  by  the  sound  con- 
struction of  the  act,  the  bonds  to  be  taken  were 
only  for  the  sheriff's  indemnity.  If  this  be 
the  true  construction  of  the  act,  it  must  fol- 
low that  the  sheriff  might  waive  his  indemnity 
and  grant  the  liberties  without  such  bond. 
The  jails  were  to  be  considered  as  *en-  [*7<> 
larged  from  the  four  walls  of  the  ancient  law 
to  the  assigned  limits ;  and  so  long  as  the 
prisoner  was  within  those  limits,  so  long  was 
he  to  be  considered,  in  judgment  of  law,  as  in 
prison.  The  Act  of  30th  March,  1799,  has  put 
this  construction  beyond  doubt  by  a  declara- 
tory section. 

The  court  are,  therefore,  of  opinion  that 
judgment  must  be  for  defendant. 

Judgment  fo-r  the  defendant.1 

Cited  in— 31  Wend.,  289 ;  11  N.  Y.,  287 ;  15  N.  Y.,  663 ; 
84  N.  Y.,  416;  20  Barb.,  197;  11  How.,  321;  26  How., 
85;  57  How.,  115;  5  Abb.  N.  C.,367;  4  Bosw.,  404;  2 
Park,  342;  4  Wheat.,  696 ;  2  Mason,  524. 


PATRICK  0.  HALLETT  AND  BOWNE. 

Marine      Insurance  —  Seaworthiness  —  Sudden 
Leak — Evidence — Latent  Defect. 

Where  a  vessel  was  seaworthy  at  the  time  she 
sailed,  and  on  the  morning  of  the  next  day,  suddenly 
sprung-  a  leak  and  was  lost,  without  any  stress  of 
weather,  or  other  visible  cause,  to  which  the  leak 
could  be  ascribed,  it  was  held  that  the  loss  was  to 
be  imputed  to  some  latent  and  inherent  defect  in 
the  vessel,  which  rendered  her  unseaworthy,  and 
for  which  the  insurer  was  not  liable. 

THIS  was  an  action  on  a  policy  of  insurance, 
dated  the  31  «t  December,  1796,  on  the  ves- 
sel  called   the  Peggy,   at  and    from    Turk's 
Island  to  New  York.     The  cause  was  tried  at 
the  New  York  Circuit,  the  8th  April,  1801, 

1.— See  4  Johns.  Rep.,  45;  5  Johns.  Rep.,  89,  182: 
6  Johns.  Rep.,  121 ;  7  Johns.  Rep.,  165, 168, 175,  289. 


NOTE.— Marine  insurance— teaunnrtMness. 

See  Silva  v.  Low,  1  Johns.  Cas.,  184;  Goold  v. 
Shaw,  Id.,  293;  Warren  v.  United  Ins.  Co.,  2  Johns. 
Cas.,  231,  and  notes. 

828 


76 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


before  Mr.  Justice  Kent,  when  the  jury,  with- 
out going  from  the  bar,  found  a  verdict  for 
the  plaintiff. 

The  deposition  of  Joseph  Millett,  mate  of 
the  Peggy,  taken  at  Baltimore  under  a  com- 
mission, was  read  in  evidence.  He  deposed 
that  the  Peggy  arrived  at  Turk's  Island  on  the 
8th  November,  1796,  and  remained  there  till 
the  12th,  when  she  went  to  sea,  tight,  staunch 
and  strong,  and  competent,  in  point  of  strength 
and  ability,  to  perform  the  voyage,  and  hav- 
ing on  board  a  full  cargo  of  salt,  bound  to 
New  York ;  that  in  the  evening  of  the  same 
day,  the  Severn,  a  British  ship  of  war,  pressed 
three  of  the  crew.  The  master  of  the  Peggy 
waited  till  8  o'clock  in  the  evening,  to  en- 
deavor to  get  back  his  men,  but  they  not  re- 
turning, and  the  Severn  having  made  sail,  the 
Peggy  put  about  in  order  to  return  to  Turk's 
Island  to  obtain  three  seamen  to  supply  the 
places  of  those  that  had  been  taken  out,  which 
7  7*]  was  a  measure  absolutely  *necessary,  as 
the  remainder  of  the  crew  were  not  sufficient 
for  the  navigation  of  the  vessel.  About  one 
o'clock  the  same  night  the  man  at  the  helm 
•called  out  to  the  witness  that  the  Peggy  was 
waterlogged,  and  he  went  on  deck  and  sounded, 
and  found  that  she  had  three  and  half  feet  of 
water  in  her  hold,  which  she  must  have  made 
after  12  o'clock,  at  which  time  the  pumps  were 
tried,  and  the  vessel  was  found  tight.  They 
tried,  but  could  not  keep  her  free,  and,  the 
next  day,  being  in  sight  of  Turk's  Island,  they 
quitted  her  in  the  boat,  and  she  was  wrecked 
on  one  of  the  islands.  The  witness  further 
deposed  that  the  loss  of  the  Peggy  was  occa- 
sioned by  the  sudden  springing  of  a  leak,  in 
the  manner  before  mentioned,  and  not  by  any 
storms,  violent  winds,  currents  or  accidents  of 
the  sea.  That  he  himself,  the  captain  and 
some  of  the  crew  made  a  protest  concerning 
the  manner  of  the  loss  of  the  Peggy  on  Turk's 
Island,  which  had  been  lost  in  Baltimore,  in 
Julylast.with  his  pocket-book,  but  which  pro- 
test was  substantially  the  same  with  what  the 
witness  stated  in  his'deposition. 

Christopher  Miller,  a  sea-captain,  testified 
that  he  thought  a  vessel  might  be  lost  by  many 
ways  within  a  day  or  two  after  she  sailed,  and 
jTet  be  seaworthy,  and  mentioned  several  in- 
stances in  which  it  might  happen,  such  as 
where  the  fluke  of  an  anchor  strikes  in  the 
ship's  bottom,  or  a  stone  is  forced  in,  while 
the  ship  lies  aground  in  a  dry-dock.  He 
knew  an  instance  of  a  fish  having  twice  forced 
its  horn  through  a  vessel's  bottom,  which 
made  her  leak  ;  but  in  that  case  the  ship's 
crew  lightly  felt  the  shock.  That  at  Turk's 
Island  the  water  was  seven  fathoms  deep,  and 
there  were  no  dry-docks. 

Hugh  Stocker,  a  sea-captain,  also  sworn  as 
a  witness  for  the  plaintiff,  was  of  opinion  that 
a  vessel  might  spring  a  leak  and  be  lost  imme- 
diately after  her  sailing  and  yet  be  seaworthy, 
and  mentioned  nearly  the  same  instances  as 
Miller,  the  other  witness  ;  but  being  asked 
whether  such  a  case  as  this  could  happen,  un- 
78*]  less  it  was  owing  *to  some  defect  in  the 
timbers  or  plank  of  the  vessel,  both  witnesses 
answered  that  it  might  have  happened  from  a 
butt  starting,  which  had  not  been  well  fast- 
tened,  or  from  some  such  trifling  defect.  Both 
witnesses  declared  that  new  vessels,  perfectly 
624 


seaworthy,  and  on  their  first  voyages,  some- 
times foundered  at  sea  from  causes  not  visible 
or  known.  Four  out  of  six  of  the  underwrit- 
ers on  the  policy  had  settled  the  loss  on  the 
first  production  of  the  protest  and  other 
papers.  The  judge  stated  the  law  to  be,  that 
if  the  vessel  was  not  seaworthy,  whether  the 
assured  knew  it  or  not,  the  policy  was  void. 
The  cause  was  argued  by 


Mr.  Pendleton  for  the  defendant,  and 
Messrs.     Troup    and     Hamilton     for 
plaintiff. 


the 


Per  Curiam.  On  the  facts  stated  in  the 
case,  we  are  of  opinion  that  the  law  will  in- 
tend a  want  of  seaworthiness,  because  no 
visible  or  rational  cause,  other  than  a  latent 
and  inherent  defect  in  the  vessel,  can  be 
assigned  for  the  loss  ;  and  insurers  do  not  in- 
sure against  latent  defects.  The  verdict  was, 
therefore,  against  the  conclusion  legally  to  be 
drawn  from  the  facts,  and  there  ought  to  be  a 
new  trial,  on  payment  of  costs. 

New  trial  granted. ' 

Cited  in-32  N.  Y.,  437 ;  8  Bosw.,  54. 
See  1  Johns.,  341. 


*THE  PEOPLE,   ex  relatione  PHILIP  [*79 
I.    ARCULARIUS  AND  JAMES  DRAKE, 

THE  MAYOR,  ALDERMEN,  AND  COM- 
MONALTY OF  THE  CITY  OF  NEW 
YORK. 

Person  in  Office— Under  Color  of  Right — Man- 
damus— Quo  Warranto. 

Where  a  person  is  already  in  office  by  color  of 
right,  the  court  will  not  grant  a  mandamus  to  ad- 
mit another  person,  who  claims  to  have  been  duly 
elected.  The  proper  remedy  is  by  an  information, 
in  the  nature  of  a  quo  ivarranto*i 

MR.  RIKER,  in  behalf  of  therelators,  moved 
for  a  mandamus  to  the  mayor,  &c. ,  of  the 
city  of  New  York,  commanding  them  to  ad- 
mit and  swear  the  relators,  as  .alderman  and 
assistant  alderman  of  the  5th  ward,  on  an 
affidavit  that  they  had  been  duly  elected,  &c. 

1.— This  cause,  after  a  second  trial,  came  before 
the  court  again  on  a  demurrer  to  the  evidence, 
which  was  substantially  the  same  as  stated  in  this 
case,  and  Mr.  Justice  Livingston,  in  delivering  the 
opinion  of  the  court  (Kent,  Ch.  J.,  dissenting),  laid 
down  the  docti-ine  that  if  the  vessel  be  seaworthy 
at  the  time  of  her  sailing,  and  afterwards  suddenly 
spring  a  leak  and  founder,  without  any  stress  of 
weather  or  apparent  cause,  it  is  a  loss  by  the  perils 
of  the  sea,  and  the  plaintiff  was  entitled  to  recover. 
1  Johns.,  Rep.,  211.  But  in  Talcot  v.  The  Com- 
mercial Insurance  Company  (2  Johns.  Rep.,  124), 
the  court  adhered  to  the  doctrine  laid  down  in  the 
above  case,  and  by  Marshall,  Park,  Valin,  Emerigon. 
and  other  foreign  writers  on  insurance,  "that  if 
the  ship  becomes  innavigable,  the  presumption 
shall  be,  that  it  proceeded  from  the  age  and  rotten- 
ness, or  other  defect  of  the  ship,  unless  it  be  made 
to  appear  to  have  been  occasioned  by  sea  damage  or 
some  unforeseen  accident"  (Marshall,  2d  edit.,  156 ; 
Pothier,  Trait  desAss.  n.,66;  Emerig.,  Vol.  I.,  p.  575, 
577,  580) ;  and  Mr.  Justice  Spencer,  in  delivering  the 
opinion  of  the  court  in  that  case,  considered  that 
this  legal  presumption  was  countervailed  by  pecul- 
iar circumstances  in  the  case  of  Patrick  v.  Hallett 
&  Bowno,  which  distinguished  that  case  from  the 
one  then  before  the  court.  See,  also,  Barnewell  v. 
I  Church,  1  Caines'  Rep.,  217,  245,  246;  1  Binney,  692. 

JOHNSON'S  CASES,  3. 


1802 


WARD  v.  HAIGHT. 


79 


He  asked  for  a  mandamus,  1.  To  the  corpora- 
tion generally,  to  admit  the  relators  ;  2.  To 
the  mayor  and  recorder,  to  swear  them ;  3. 
To  James  Roosevelt,  who  had  been  admitted 
;and  sworn  as  alderman  of  the  5th  ward  ;  and 
John  P.  Ritter,  the  assistant,  commanding 
them  to  desist  from  executing  their  offices,  or 
show  cause  to  the  contrary. 
|!  (jThe  application  was  afterwards  made,  for 
rules  to  show  cause  why  writs  of  mandamus 
should  not  issue. 
Messrs.  Biggs,  and  Hanson  contra. 

Per  Curiam.  Where  the  office  is  already 
filled  by  a  person  who  has  been  admitted  and 
sworn,  and  is  in  by  color  of  right,  a  mandamus 
is  never  issued  to  admit  another  person  ;  be- 
cause the  corporation,  being  a  third  party, 
may  admit  or  not,  at  pleasure,  and  the  rights 
of  the  party  in  office  may  be  injured,  without 
his  having  an  opportunity  to  make  a  defense. 
8O*]  The  proper  remedy  in  the  first  *instance, 
is  by  an  information  in  the  nature  of  a  quo 
warranw,  by  which  the  rights  of  the  parties 
.may  be  tried. 

Motion  denied. l 

Cited  in-4  Cow.,  333 ;  22  Wend.,  595 ;  3  Den.,  396 ; 
-5  Hill,  638  ;  27  N.  Y.,  386 ;  68  N.  Y.,  472 ;  20  Barb.,  305 ; 
-S.  C.,  12  How.,  128  ;  19  How.,  173;  11  Abb.,  20. 


WARD  v.  HAIGHT. 

Inquisition — Intention    of — Setting    Aside — Im- 
proper Evidence. 

An  inquest  of  office  is  to  inform  the  conscience  of 
the  court ;  and  an  inquisition  will  not  be  set  aside  on 
the  ground  of  the  admission  of  improper  evidence, 
unless  it  appears  that  injustice  has  been  done. 

MR.  RIGGS,  for  the  plaintiff,  moved  to  set 
aside  the  inquest  as  taken  in  this  cause, 
before  the  sheriff  of  New  York,  on  a  writ  of 
inquiry  of  damages,  on  the  ground  that  the 
plaintiff  had  admitted  improper  evidence  on  the 
part  of  the  defendant,  so  as  to  diminish  the 
•damages  to  which  the  plaintiff  was  entitled. 

Mr.  Hopkins,  contra. 

Per  Curiam.  An  inquest  of  office  is  in- 
tended to  inform  the  conscience  of  the  court, 
-and  they  will  not  interfere,  unless  it  appears 
that  injustice  has  been  done.  The  plaintiff 
does  not  show  that  his  damages  were  lessened 
by  the  admission  of  the  evidence  ;  and  it  is 
questionable  whether  it  was  not  proper  testi- 
mony. Where  the  inquisition  is  substantially 
right,  we  will  not  nicely  examine  the  legality 
of  the  evidence.  A  new  inquisition  would 
not,  probably,  vary  the  cause  ;  nor  do  the  ends 
•of  justice  require  our  interference. 

Motion  denied. 

1.— See  1  East,  38 ;  King  v.  Clarke. 
JOHNSON'S  CASES,  3.        X.  Y.  REP.,  BOOK  1. 


*DISBOROUGH  ET  AL. 
NEILSON  ET  AL. 


[*81 


1.  Contract  for  Future  Delivery — Tender — Re- 
fusal. 2.  Id. — Optional  an  to  One  and  Obligatory 
as  to  OtJier. 

Where  A  agreed  to  deliver  to  B  by  the  first  of  May, 
from  700  to  1,000  barrels  of  meal,  for  which  B  agreed 
to  pay  on  delivery,  at  the  rate  of  six  dollars  per 
barrel,  and  A  delivered  700  barrels,  and  also  before 
the  day  tendered  to  B  300  barrels  more  to  make  up 
the  1,000  barrels,  which  B  refused ;  it  was  held  that 
B  was  bound  to  receive  and  pay  for  the  whole  1,000 
barrels ;  the  delivery  of  any  quantity  between  700 
and  1,000  barrels,  being  at  the  option  of  A  only,  and 
for  his  benefit. 

A  contract  may  be  optional  as  to  one  party,  and 
obligatory  on  the  other. 

Citations— Doug.,  23;  1  Term.  R.,  132, 133;  Cowp., 
218;  2  Johns.  Cas.,  252. 

THIS  was  an  action  of  assumpsit.  The  par- 
ties on  the  22d  January,  1801,  entered 
into  a  written  agreement,  by  which  the  plaint- 
iffs agreed  to  deliver  to  the  defendants,  from 
the  15th  of  March  to  the  1st  of  May,  then 
next,  from  700  to  1,000  barrels  of  kiln  dried 
Indian  meal,  in  merchantable  order,  at  six 
dollars  per  barrel  ;  and  the  defendants  agreed 
to  pay  to  the  plaintiffs  two  thousand  dollars 
by  the  loth  March,  if  it  should  be  called 
for,  and  the  remainder  of  the  money  on  the 
delivery  of  the  meal.  The  plaintiffs  delivered 
to  the  defendants  between  the  month  of  Feb- 
ruary and  the  28th  April,  seven  hundred 
barrels  of  meal,  in  good  order,  which  were 
accepted  by  the  defendants  ;  and,  on  the 
same  28th  April  tendered  to  the  defendants 
three  hundred  barrels  more,  in  good  order,  to 
make  up  the  1,000  barrels,  but  the  defendants 
refused  to  accept  the  three  hundred  barrels, 
alleging  that  they  were  not  bound,  by  the  con- 
tract, to  receive  and  pay  for  more  than  seven 
hundred  barrels. 

The  only  question  was,  whether  the  defend- 
ants were  bound  to  receive  and  pav  for  the 
three  hundred  barrels,  so  tendered  by  the 
plaintiffs,  to  make  up  1,000  barrels. 

Mr.  Riggs  for  the  plaintiff. 
Mr.  Troup,  contra. 

Per  Curiam.  By  the  special  agreement  in 
this  case,  the  defendants  were  bound  to  re- 
ceive the  whole  1,000  barrels  of  meal,  if  ten- 
dered, within  the  time  specified.  It  was  at 
the  option  of  the  plaintiffs  only  to  deliver  any 
quantity,  from  700  to  1,000  barrels,  and  the 
stipulation  in  that  respect  was  for  their  bene- 
fit. It  does  not  follow  that  the  contract  was 
not  mutual.  There  was  a  sufficient  consider- 
ation *on  both  sides  ;  and  a  contract  may  [*82 
be  optional  with  one  of  the  parties,  in  part  or 
in  whole,  and  obligatory  on  the  other.  (Doug., 
23  ;  1  Term  Rep.,  132,  133  ;  Cowp.,  218  ;  Gile* 
v.  Bradley,  2  Johns.  Cases,  252.)  The  plaintiffs 
are,  therefore,  entitled  to  judgment. 

Judgment  for  the  plaintiffs. 

Cited  in— 70  N.  Y.,205;  6  Barb.,  181 ;  19  Barb.,  424  ; 
9  Boa.,  111. 

40  625 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


VAN  NUYS  v.  TERHUNE. 

1.  Trespass  Quare  Clausum  Fregit — Justifi- 
cation— Right  of  Freehold — Witness — Compe- 
tency. 2.  Competency  of  Witness — General 
Rule — Objection — Interest  in  the  Question. 

In  an  action  of  trespass  quare  clausum  freyit,  the 
defendant  justified  under  right  of  freehold  ;  and  it 
was  held  that  a  person  who  had  conveyed  the  prem- 
ises in  question  to  the  plaintiff,  with  covenants  of 
warranty,  was  a  competent  witness  to  prove  the 
trespass. 

The  general  rule  is,  that  if  a  witness  cannot  gain 
or  lose  by  the  event  of  a  suit,  or  if  the  verdict  can- 
not be  given  in  evidence,  for  or  against  him,  in  an- 
other suit,  the  objection  goes  to  his  credit  and  not 
to  his  competency. 

An  interest  in  the  question  only  does  not  disqual- 
ify a  witness,  but  the  objection  goes  to  his  credit 
only. 

THIS  was  an  action  of  trespass  quare  claus- 
um  fregit,  and  for  cutting  and  carrying 
away  wood,  &c.  The  defendant  pleaded  the 
general  issue,  and  justified  under  a  right  of 
freehold.  The  cause  was  tried,  at  the  King's 
Circuit,  in  June,  1801,  before  Mr.  Justice 
Lewis. 

At  the  trial  the  brother  of  the  plaintiff  was 
offered  as  a  witness  to  prove  the  trespass,  but 
it  appearing  that  he  had  sold  the  premises  in 
question  to  the  plaintiff,  and,  by  his  deed,  had 
covenanted  to  warrant  and  defend  the  premi- 
ses to  the  plaintiff,  he  was  objected  to  as  in- 
competent, on  the  ground  of  interest ;  but  the 
judge  determined  that  as  long  as  the  plaintiff 
relied  on  his  possession  only  to  enable  him  to 
sustain  the  action,  the  warranty  given  by  the 
witness  could  not  affect  his  testimony.  The 
witness  was  accordingly  admitted,  and  a  ver- 
dict taken  for  the  plaintiff,  subject  to  the  opin- 
ion of  the  court,  as  to  the  admissibility  of  the 
evidence. 

Mr.  Hopkins  for  the  plaintiff. 
Mr.  Riggs,  contra. 

Per  Curiam.  Although  the  title  may  come 
in  question  in  this  action,  and  then  the  wit- 
ness may  be  interested  in  supporting  the 
83*]  plaintiff's  title,  yet  so  long  *as  the  par- 
ties rely  on  the  actual  possession  only,  as  in 
this  case,  the  witness  has  no  interest.  His 
warrant}7  did  not  extend  to  indemnify  the 
plaintiff  against  any  trespass  which  might  be 
committed  on  the  premises.  He  is  not  re- 
sponsible on  his  covenant,  unless  the  plaintiff 
has  been  evicted  on  an  older  or  better  title ; 
for  unless  it  is  so  averred  the  eviction  may  be 
intended  to  be  by  a  title  derived  from  the 
grantee  himself.  The  plea  of  liberum  tene- 
mentum  did  not,  therefore,  necessarily  affect 
the  interest  of  the  witness.  He  had  not  even 
an  interest  in  the  question  put,  so  long  as  it 
related  to  the  possession  merely. 

The  rule  by  which  a  witness  is  excluded,  on 
the  ground  of  interest,  seems  to  have  fluctu- 
ated, at  different  periods,  but  on  a  careful  ex- 
amination of  all  the  authorities,  ancient  and 
modern,  the  general  rule  will  be  found  to  be, 
that  if  a  witness  will  not  gain  or  lose  by  the 
event  of  the  cause,  or  if  the  verdict  cannot  be, 
given  in  evidence  for  or  against  him,  in  an- 
other suit,  the  objection  goes  to  his  credit  only, 
and  not  to  his  competency.  Generally,  there- 
fore, an  interest  in  the  question  alone  will  not 


disqualify  the  witness,  but  the  objection  goes- 
to  his  credit  only.  We  do  not  mean  to  say 
but  that  there  may  be  some  technical  excep- 
tions to  the  rule,  but  the  rule,  in  its  general 
application,  is  correct,  and  is  the  one  adopted 
by  the  court.  We  are,  therefore,  of  opinion 
that  the  witness  was  competent,  and  that  the 
plaintiff  must  have  judgment.1 

Judgment  for  the  plaintiff. 

Cited  in— Post.,  190,  237;  10  Johns.,  22;  14  Johns.r 
81 ;  4  Wend.,  297 ;  7  Wend.,  236 ;  18  Wend.,  497 ;  Hall, 
633 ;  How.  Cas.,  624. 


*HESS  t>.  MORGAN.  [*84 

Justice's    Judgment — Body   Execution — Impris- 
onment— Action — Liability  of  Justice. 

Where  judgment  was  recovered  before  a  justice,, 
who  asked  the  defendant  if  execution  should  issue,, 
and  the  defendant  said  he  did  not  care  how  soon, 
and  did  not  state  that  he  was  a  freeholder  and  had 
a  family,  or  claim  any  exemption  from  imprison- 
ment; and  the  justice  thereupon,  without  any  di- 
rections from  the  plaintiff,  who  was  not  present, 
issued  an  execution  against  the  body  of  the  defend- 
ant, on  which  he  was  imprisoned  thirty  days;  in  an 
action  brought  by  him  against  the  justice,  for  as- 
sault and  battery  and  false  imprisonment,  it  was- 
held  that  the  justice  was  not  liable. 

Citation— 2  Johns.  Cas.,  49. 


was  an  action  of  assault  and  battery 
-L  and  false  imprisonment.  The  cause  was- 
tried  at  the  Herkimer  Circuit,  before  Mr.  Jus- 
tice Radcliff . 

The  defendant  was  a  justice  of  the  peace. 
In  a  suit  before  him,  brought  by  Jonas  Ooth- 
out  and  others  against  the  plaintiff,  a  judg- 
ment was  entered,  on  confession,  against  Hess, 
and  on  the  same  day  an  execution  was  issued 
against  his  body,  on  which  he  was  taken  and 
imprisoned  for  thirty  days. 

It  appeared  that  the  plaintiffs  in  that  suit 
were  not  present  when  the  judgment  was  ren- 
dered, having  sent  the  demand  to  the  justice  ; 
and  they  gave  no  particular  directions  con- 
cerning it,  except  that  the  debt  should  be  col- 
lected as  soon  as  possible. 

After  judgment  was  given,  the  justice  asked 
Hess  whether  execution  should  issue,  and  he 
answered  he  cared  not  how  soon  it  issued  ;  the 
sooner  the  better,  for  he  had  put  his  property 
out  of  his  hands.  The  execution  was  then  is- 
sued, and  delivered  by  the  justice  to  a  con- 
stable. 

Hess  said,  in  presence  of  the  justice,  that  he 
was  not  a  freeholder,  but  whether  he  made 
this  declaration  before  or  after  the  execution 
had  issued  the  witness  was  not  certain. 

A  verdict  was  taken  for  the  plaintiff,  sub- 
ject to  the  opinion  of  the  court,  on  a  case  con- 
taining the  above  facts.  If  the  court  should 
be  of  opinion  that  the  plaintiff  was  not  enti- 
tled to  recover,  a  judgment  of  nonsuit  was  to 
be  entered,  otherwise  the  verdict  was  to  stand, 
and  judgment  be  entered  thereon. 

Messrs.  Hildreth  and  Emott  for  the  plaintiff. 
Mr.  Gritswold,  contra. 

1— See  Gilb.  Law  of  Ev.,  122.  123 ;  1  Term  Rep., 
300 :  3  Term  Rep.,  24,  308 ;  7  Term  Rep.,  62,  63,  601, 
612;  2  Esp.  Cases,  488;  Peake's  Law  of  Ev.,  144. 
3d  ed. 

JOHNSON'S  CASKF,  3. 


1802 


JACKSON,  EX  DEM.  WOODWORTH,  v.  LINDSEY. 


85*]  *RADCLIFF,  J.,  delivered  the  opin- 
ion o  the  court : 

This  case  has  been  supposed  to  be  governed 
by  the  decision  in  the  case  of  Percival  v.  Jones 
(2  Johns.  Cases,  49),  but  I  think  it  is  distin- 
guishable from  it. 

In  that  case,  in  order  to  give  effect  to  the 
right  of  the  defendant  before  the  justice,  it 
was  necessary  to  adopt  the  construction  that 
the  execution  generally  issued  at  the  suit  of 
the  party  who  demanded  it,  that  the  justice  in 
relation  to  this  process  must  be  considered  as 
a  ministerial,  and  not  a  judicial  officer,  as  the 
clerk  and  not  as  the  judge.  But  still,  if  he 
issued  it,  as  the  agent  of  the  plaintiff,  without 
any  direction  or  authority  for  that  purpose, 
the  innocent  plaintiff  ought  not  to  be  affected 
by  his  improper  conduct,  and  it  must  be  con- 
sidered as  issued  at  his  peril.  In  that  case, 
too,  the  party  claimed  his  exemption  from  im- 
prisonment, and  alleged  the  facts  necessary  to 
entitle  him  to  it,  and  the  justice,  disregarding 
them,  voluntarily  issued  the  execution  without 
any  request  or  direction  from  the  plaintiff.  It 
was,  therefore,  held  that  the  plaintiff  was  not 
liable,  and  that  the  justice  alone  was  answer- 
able. But  in  the  present  case  it  does  not  ap- 
pear that  the  party  claimed  an  exemption  from 
the  process,  but,  on  the  contrary,  he  invited 
it,  and  said  he  did  not  care  how  soon  it  issued, 
and  the  sooner  the  better.  He  did  not  even 
assert  the  facts  which  entitled  him  to  the  ex- 
emption. It  is  true  he  said  he  was  not  a  free- 
holder, but  there  is  some  doubt  on  the  evi- 
dence whether  this  was  alleged  before  or  after 
the  execution  issued  ;  and  another  fact,  equal- 
ly necessary  to  protect  him  against  the  process, 
to  wit,  his  having  a  family,  was  not  at  all  al- 
leged. Although,  as  was  held  in  the  case  of 
Percival  v.  Jones,  it  was  not  incumbent  on  him 
to  prove  these  facts,  since  no  mode  of  proof  was 
directed  or  authorized  by  the  act,  still  he 
ought,  at  least,  to  have  asserted  his  claim  to 
the  exemption,  and  if  he.  did  not,  neither  the 
plaintiff  nor  the  justice  would  be  liable.  It  is 
86*]  *not,  of  course,  to  be  presumed  that  a 
person  sued  before  a  justice  is  no  freeholder, 
and  that  he  has  a  family.  The  general  pre- 
sumption would  be  otherwise,  and  it  was  nec- 
essary that  the  party  should,  at  least,  assert 
these  facts  and  claim  his  exemption,  to  put 
the  justice  and  plaintiff  on  their  guard  with 
respect  to  the  nature  of  the  execution  to  be 
issued.  He  ought  to  have  stated  that  he  came 
within  the  particular  description  of  the  act. 
His  silence  on  this  head,  and  especially  his 
declarations  to  the  justice  on  the  occasion, 
amount  to  an  aquiescence  or  submission  to  the 
process,  and  a  waiver  of  his  right  to  be  ex- 
empted from  it.  Neither  the  justice,  nor  the 
plaintiff  before  him,  under  such  circumstances, 
ought  to  be  considered  as  a  trespasser,  or  lia- 
ble to  this  action.  This  opinion  is  not  at 
variance  with  the  case  of  Percival  v.  Jones,  and 
the  reasoning  in  that  case  implies  the  excep- 
tion now  made. 

We  are,  therefore,  of  opinion,  that  judg- 
ment of  nonsuit  must  be  entered. 

Judgment  of  nonsuit. 

Cited  in— 8  Wend.,  615. 
JOHNSON'S  CASES,  3. 


JACKSON,  ex  dem.  WOODWORTH, 

v. 
LINDSEY. 

Kayaderosseras  Patent — Construction. 

The  commissioners  who  divided  Kayaderosseras 
patent,  in  1770,  adopted  the  true  construction  of  the 
patent,  as  to  the  northwestmost  head  of  the  Kay- 
aderosseras Creek ;  and  in  running  a  line  due  north, 
to  the  object,  where  the  course  mentioned  in  the 
patent  was  northerly. 

rPHIS  was  an  action  of  ejectment.  The  cause 
JL  was  tried  at  the  last  Washington  Circuit, 
when  a  verdict  was  taken  for  the  plaintiff, 
subject  to  the  opinion  of  the  court,  on  a  case 
agreed  upon. 

The  patent,  under  which  the  plaintiff  claimed 
title,  was  called  the  Kayaderosseras  patent, 
granted  November  2, 1708.  Part  of  the  descr'p- 
tion  of  the  land  granted  was  as  follows : '  'then^  e 
northerly  to  the  northwestmost  head  of  a  creek 
called  Kayaderosseras,  about  fourteen  miles, 
more  or  less ;  thence  eight  miles,  more  north.- 
erly;  thence  *easterly  or  northeasterly,  [*87 
to  the  third  falls  on  Albany  River,  about  twenty 
miles,  more  or  less."  The  patent  had  been 
divided  by  certain  commissioners,  in  1770,  who 
ran  a  boundary  line  from  the  head  of  the 
Kayaderosseras,  eight  miles  due  north,  and 
from  thence  to  the  third  falls,  which  they 
judged  to  be  the  construction  of  the  grant. 

The  only  question  was,  whether  the  con- 
struction adopted  by  the  commissioners,  and 
the  lines  run  by  them,  as  laid  down  on  their 
map  of  partition,  were  correct. 

Messrs.  Emott  and  Harison  for  the  plaintiff. 
Mr.  Van  Vechten,  contra. 

Per  Curiam.  The  construction  adopted  by 
the  commissioners  has  been  too  long  settled  to 
be  now  shaken.  It  is  the  ancient  and  original 
construction,  and  it  corresponds  with  the  other 
i  courses  and  distances,  as  laid  down  on  the 
map,  and  which  we  deem  to  be  correct.  The 
plaintiff  is,  therefore,  entitled  to  judgment. 

Judgment  for  the  plaintiff.1 
Cited  in— 13  Johns.,  495. 


BAZEN  x.  ROGET. 

Lost  Note  —  Bond  of  Indemnity  —  Payment  —  Sec- 
ond Payment  Voluntary  —  Action  on  Bond. 

A  note  was  lost  or  mislaid,  and  A,  the  maker,  hav- 
ing paid  the  amount  to  B,  the  holder,  took  his  bond 
of  indemnity  against  the  note,  &c.,  and  afterwards 
A,  having  a  demand  against  B'f  or  money,  B  refused 
to  pay,  without  first  deducting  the  amount  of  the 
note,  to  which  A  consented  and  took  the  balance, 
and  a  receipt  from  B  for  the  amount  of  the  note  as 
due,  and  afterwards  brought  an  action  against  B, 
on  his  bond  of  indemnity.  It  was  held  that  the  sec- 
ond payment  being  voluntary  on  the  part  of  A  and 
no  fraud  alleged  on  the  part  of  B,  no  action  could 
be  maintained  against  him  on  the  bond. 


was  an  action  of  debt  on  an  indemnifi- 
-L   cation  bond,  dated  the  31st  March,  1797. 

1.—  See   Jackson,  ex   dem.  Walton,  v.  Ogden,  I 
Johns.  Rep.,  156. 


88 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


88*]  The  condition  recited  *that  the  plaintiff 
had  given  the  defendant  two  promissory  notes, 
one  of  which  was  dated  the  30th  August,  1796, 
for  $74.28,  and  the  other  for  $1,181.76,  which 
notes  had  been  lost  or  mislaid,  and  that  the 
amount  of  them  had  been  paid  by  the  plaintiff 
to  the  defendant,  who  released  the  plaintiff 
from  the  same,  and  engaged  to  indemnify  him, 
&c.,  against  the  said  notes,  and  all  actions,  &c. 

It  appeared  that  the  plaintiff  afterwards 
called  on  the  defendant  for  money  in  his  hands, 
belonging  to  the  plaintiff,  who  refused  to  pay 
it  over,  without  detaining  out  of  it  the  sum  of 
$74.28,  on  a  note  due  to  him  from  the  plaintiff, 
and  which  was  one  of  the  notes  referred  to  in 
the  bond  ;  and  the  plaintiff  consented  to  receive 
the  balance,  with  that  deduction,  and  the  defend- 
ant paid  the  balance  and  gave  a  receipt,  as  fol- 
lows: "Received,  New  York,  26th  July,  1797,  of 
Thomas  Bazen,  $74  (which  I  have  detained 
upon  money  due  him),  on  account  of  a  note 
dated  30th  August,  1796,  for  $74.28,  due  me." 

A  verdict  was  found  for  the  plaintiff ;  and  a 
motion  was  now  made  to  set  aside  the  verdict, 
and  for  a  new  trial. 

Mr.  Riggs  for  the  defendant. 
Mr.  Hiker,  contra. 

Per  Curiam.  If  the  case  rested  on  the  bond 
alone,  no  doubt  the  plaintiff  ought  to  have 
been  indemnified  against  the  payment  of  the 
note  of  $74,  whether  demanded  by  the  defend- 
ant or  any  other  person,  to  whose  hands  the 
note  might  have  come ;  but  the  plaintiff  con- 
sented voluntarily,  and  after  a  full  opportunity 
for  consideration  to  allow  the  deduction  of 
this  note  from  the  money  due  to  him  in  the 
hands  of  the  defendant,  and  at  the  same  time 
8O*]  signed  a  receipt  for  the  balance,  *ac- 
knowledging  the  note,  so  deducted,  to  be  due 
to  the  defendant.  These  were  deliberate  acts, 
and  it  does  not  appear  that  he  made  any  pre- 
tension, at  the  time,  that  this  note  was  not  due 
to  the  defendant,  nor  of  any  advantage  being 
taken  by  the  defendant,  on  account  of  his  sit- 
uation. These  acts,  without  a  more  satisfac- 
tory explanation  of  the  conduct  of  the  parties 
on  that  occasion,  ought  to  conclude  the  plaint- 
iff, and  prevent  a  recovery  on  the  bond  in 
question.  As  no  fraud  is  shown  we  cannot 
intend  any.  By  paying  the  note  a  secdnd 
time,  we  must  intend  that  the  first  payment 
was  either  a  mistake,  or  that  some  composition 
took  place  between  the  parties.  The  last  pay- 
ment was  voluntary  ;  and  the  maxim  is,  wlenti 
non  fit  injuria.  The  verdict  must  be  set  aside, 
and  a  new  trial  granted. 

Motion  granted. 


MORGAN  v.  WOOD  WORTH. 

Promissory  Note — Demand  of  Second  Indorser 
— Notice  to  Prior  Indorser — Time. 

The  second  indoreer  of  a  promissory  note,  when 
called  upon  by  the  holder  to  pay,  in  default  of  the 
maker,  is  bound  to  take  up  the  note  and  give  notice 

NOTE.— Promissory  note,  notice  of  nonpayment, 
when  to  he  given. 

See  Bryden  v.  Bryden,  11  Johns.,  187,  and  note  in 
this  edition. 

628 


immediately  to  the  first  indorser,  and  if  he  fails  to 
give  such  notice  as  soon  as  he  receives  it  from  the 
Bolder,  the  preceding  indorser  is  not  liable  to  him. 

THIS  was  an  action  of  assumpsit  brought  by 
the  first  indorsee  against  the  first  indorser 
of  a  promissory  note.  The  note  was  drawn  by 
Marvell  Ellis,  payable  to  the  defendant  or  order, 
who  indorsed  it  to  the  plaintiff. 

At  the  trial  it  appeared  that  the  plaintiff  had 
indorsed  the  note  to  John  Atkinson  before  it 
became  due,  and  that  regular  notice  of  non- 
payment was  given  to  the  plaintiff,  as  indorser, 
and  the  plaintiff  was  afterwards  sued  by  At- 
kinson, and  obliged  to  pay  him  the  amount  of 
the  note.  The  plaintiff  resided  in  Lansing- 
burgh,  the  defendant  in  Troy,  and  Atkinson 
in  New  York.  Atkinson  sent  the  note,  which 
became  due  the  7th  October,  to  his  agent  in 
Lansingburgh,  some  time  before,  who  em- 
ployed a  notary  to  demand  payment  of  the 
note,  and  give  the  requisite  notice  to  the 
indorsers,  and  the  agent  *as  well  as  the  [*9O 
plaintiff,  supposed  that  due  notice  had  been 
given  by  the  notary,  until  informed  by  the 
defendant  to  the  contrary,  about  the  20th 
October. 

The  judge  nonsuited  the  plaintiff,  at  the 
trial,  with  liberty  to  move  the  court  to  set  aside 
the  nonsuit,  and  for  a  new  trial. 

Mr.  Van  Vechten  for  the  plaintiff. 
Messrs.  Hoffman  and  Hamilton,  contra. 

Per  Curiam.  When  the  plaintiff,  as  second 
indorser,  was  called  on  to  pay  the  note,  after 
default  of  the  maker,  he  ought  to  have  taken 
up  the  note  immediately,  and  have  given  im- 
mediate notice  over  to  the  defendant,  the  first 
indorser.  By  delaying  until  he  was  sued,  he 
must  suffer  for  his  neglect.  The  defendant 
ought  not  to  suffer  for  his  laches  or  default. 
It  is  a  settled  rule  that  a  notice  is  necessary 
to  the  first  from  the  last  indorser,  as  soon  as 
he  himself  receives  notice ;  because  he  ought 
instantly  to  take  up  the  note,  and  then  he 
becomes  the  real  holder.  The  motion  must  be 
denied. 

Motion  denied.1 

Cited  in— 6  Cow.,  309;  34  N.  Y.,  132  ;  25  Barb.,  140. 


THOMAS  t>.  STRIKER. 

Discharge  in  Insolvency — Judgment  of  Non  Pros 
Prior  thereto — Costs — Debt  Liquidated. 

Where  a  judgment  of  non  pros  on  a  certiorari  from 
a  justice's  court  was  obtained  in  October  Term,  and 
the  plaintiff  in  error  was  afterwards,  the  7th  No- 
vember, discharged,  under  the  Insolvent  Act,  it  was 
held  that  the  judgment  for  costs,  in  October  Term, 
constituted  a  debt  liquidated,  or  capable  of  liquida- 
tion, at  that  time,  and  was  discharged  by  the  cer- 
tificate. 

MR.  WHITING  moved  to  set  aside  a  fieri 
facias,  on  an  affidavit,  stating  that  on  the 
7th  November,  1801,  the  defendant  was  duly 
discharged  under  the  Insolvent  Act.  *It  [*t)l 

1.— See  Morgan  v.  Van  Ingen,  2  Johns.  Rep.,  204 ; 
Buyley  on  Bills,  83  Chitty,  3d  edit.,  1«6, 167 ;  Kyd.,  186 ; 
Pothier,  Trait,  du  Change,  79, 153. 

JOHNSON'S  CASES,  3. 


1802 


RUSSELL  v.  BALL. 


91 


appeared  that  a  judgment  of  non  pros  had  been 
given  on  a  certiorari  from  the  judgment  of  the 
justice's  court,  in  October  Term,  prior  to  the  7th 
November,  1801 ;  and  the  only  question  was, 
whether  the  plaintiff  was  entitled  to  a  fieri 
facias  for  the  costs  arising  on  the  judgment  of 
iion  pros  entered  at  the  last  October  Term. 

Mr.  8.  Jones,  Jun.,  contra. 

Per  Curiam.  It  is  enough  if  the  debt  was 
liquidated,  or  capable  of  being  liquidated,  at 
the  time  of  the  assignment,  and  before  the  dis- 
charge. Here  the  judgment  was  in  October 
Term,  and  the  costs  capable  of  liquidation  at 
that  time.  We  must  intend  that  the  assign- 
ment was  cotemporaneous  with  the  discharge. 

Motion  granted.1 


RUSSEL  «.  BALL. 

Change  of  Venue — Amended  Declaration — Plea 
to — Time. 

Where  the  twenty  days  for  pleading  are  expired,  | 
when  the  venue  is  changed  the  defendant  must  j 
plead  instanter  to  the  amended  declaration ;  and  if 
the  twenty  days  are  not  out,  he  ia  entitled  only  to 
the  remaining  days  within  which  to  plead  to  the  new 
declaration. 


MR.  WHITING,  for  the  defendant,  moved 
to  set  aside  the  default  and  judgment 
entered  in  this  cause,  for  irregularity. 

1.— But  see  Cone  v.  Whitaker,  3  Johns.  Cases,  380,  I 
381,  and  note.    See  also  Warne  v.  Constant,  5  Johns. 
Rep.,  3*5. 

JOHNSON'S  CASES,  3. 


It  appeared  that  the  plaintiff  filed  his  dec- 
laration, and  delivered  a  copy  thereof  to  the 
defendant's  attorney,  in  January  Term,  1840. 
In  April  Term  following,  on  motion  of  the 
defendant,  the  venue  was  changed  from  West- 
Chester  to  Columbia  County.  On  the  28th  July, 
1801,  the  plaintiff  filed  a  new  declaration,  with 
the  alteration  of  the  venue  only,  and  served  a 
copy  on  the  defendant's  attorney ;  and  on  the 
first  of  August  entered  a  default  for  want  of 
a  plea.  The  defendant's  attorney  swore 
*that  he  did  not  know  of  the  subsequent  [*9U 
proceedings  until  this  term ;  that  he  supposed 
the  defendant  was  entitled  to  twenty  days  to 
plead  to  the  amended  declaration,  and  that  the 
defendant  had  a  defense  on  the  merits. 


Mr.  Woodworth,  contra. 


Per  Curiam.  The  defendant's  attorney  was 
guilty  of  a  laches,  in  not  pleading  instanter  to 
the  new  declaration ;  for  if  the  rule  for  plead- 
ing has  expired  when  the  venue  is  changed, 
then  the  defendant  must  plead  forthwith  to  the 
amended  declaration.  If  the  twenty  days  are 
not  out,  he  has  only  the  remaining  days  within 
which  to  plead.  But  as  in  this  case  the  attor- 
ney acted  under  a  mistake  as  to  the  practice, 
and  swears  to  merits,  we  grant  the  motion,  on 
payment  of  costs. 

Motion  granted.* 

1.— See  Burrows  v.  Hillhouse,  6  Johns.  Rep.,  133. 

629 


[END  OP  JANUARY  TERM.] 


CASES  ADJUDftED 


SUPREME  COURT  OF  JUDICATURE 

OF  THE 

STATE   OF   NEW   YORK 


APRIL    TKRM,    18O2. 


•93*]      *HERBERT  r>.  HALLETT. 

1.  Marine  Insurance — On  Freight — Stranding 
— Return — Unlading — Loss  of  Freight — Neg- 
ligence— Right  to  Recover.  2.  Id. — Injury — 
Repair — Continuation  of  Voyage.  3.  Engage- 
ment* of  Insurer  of  Freight. 

Insurance  on  freight  from  New  York  to  Havana. 
"The  vessel,  in  a  gale  of  wind,  was  stranded  at  Sandy 
Hook,  but  in  three  or  four  days  returned  to  New 
York,  and  the  cargo,  which  was  unladen  and  con- 
-siderably  damaged,  was  also  brought  back  to  New 
York,  and  delivered  to  the  different  shippers.  The 
vessel  was  repaired  in  a  fortnight,  at  the  expense  of 
about  $120,  and  the  plaintiff  soon  after  sent  her  on 
-a  different  voyage.  It  was  held  that  the  insured 
had  no  right  to  recover,  as  he  ought  to  have  insisted 
on  carrying  on  the  goods,  so  as  to  entitle  himself  to 
the  freight;  and  having  lost  the  freight  by  his 
negligence  or  folly,  the  insurers  were  not  liable. 

If  the  ship  be  injured  by  the  perils  of  the  sea,  but 
capable  of  being  repaired  in  a  reasonable  time,  the 
owner  ought  to  repair  her  and  continue  the  voyage, 
so  as  to  claim  his  freight.  If  the  ship  be  in  a  ca- 
pacity to  proceed  on  her  voyage,  and  the  goods  are 
damaged,  the  owner  will  be  entitled  to  his  freight, 
if  he  offers  to  carry  them  on,  unless  the  goods  are 
physically  destroyed. 

Citation— 2  Burr.,  887. 

THIS  was  an  action  on  a  policy  of  insurance 
on  freight  of  goods  on  board  the  brig 
Eliza,  from  New  York  to  tjie  Havana.  The 
freight  was  valued  at  $2,200.  The  Eliza  sailed 
on  the  voyage  about  the  20th  of  January,  1800, 
and  having  anchored  in  a  small  bay  near 
Sandy  Hook,  was  driven  on  shore,  in  a  gale  of 
wind.  The  cargo  was  taken  out  by  the  plaint- 
iff and  brought  back  to  New  York.  The 
brig  was  also  brought  back,  about  the  third 
or  fourth  day  after  the  accident.  About 
two  or  three  weeks  from  the  time  she  first 
sailed,  she  was  sent  to  a  ship  yard  to  be 
repaired ;  and,  in  about  two  weeks  after,  she 
was  repaired,  at  the  expense  of  £44  16s,  but 
94*]  *a  much  larger  sum  would  not  have  been 
sufficient  to  put  the  hull  and  spars  in  as  good 
repair  as  when  she  sailed.  The  plaintiff  soon 
after  proceeded  in  the  vessel,  on  a  different 
voyage.  There  was  no  proof  of  an  abandon- 
ment by  the  plaintiff. 
The  vesssel  was  fully  laden  when  she  sailed. 

NOTE.— Marine  insurance  on  freight. 
See  note  to  Abbott  v.  Sebor,  supra,  39. 

JOHNSON'S  CASES,  3. 


Four  bills  of  lading  were  produced  at  the  trial: 

1.  For  the  plaintiff's  own  property,  contain- 
ing, among  other  things,  22,000  feet  of  lumber, 
some  provisions,   wine,    12  casks  of  porter, 
shocks,  35  casks  of  herrings,  and  40  casks  of 
bread.     There  was  no  invoice,  or  proof  of  the 
value  of  the  articles,  or  what  became  of  them, 
nor  what  was  the  proportion  of  the  freight  of 
them.     It  was,  however,  proved  that  the  casks 
of  porter  were  stove  and  some  bottles  broke, 
and  that  the  shocks  were  broken. 

2.  For  John  Hughes's  shipment  of  articles 
of  different  kinds  (fish,  wine,  and  raisins),  the 
invoice  of  which  was  about   $900,  and  the 
freight  marked  on  it  was  $345.     It  was  proved 
that  great  part  of  the  fish  and  raisins  were 
spoiled  and  destroyed,  and  that  part  of  the 
cargo  belonging  to  Hughes  was  abandoned  to 
the  underwriters  and  sold  at  auction,  for  their 
benefit,  for  about  $300. 

3.  For  14  barrels  of  pork ;  but  there  was  no 
account  of  the  value,  nor  what  became  of  them, 
nor  of  the  amount  of  the  freight. 

4.  For  onions  to  the  value  of  $70,  which  on 
their  return  to  New  York  were  not  worth  the 
cartage. 

It  was  the  opinion  of  the  shipper  of  the 
onions,  who  was  acquainted  with  the  cargo 
before  the  brig  sailed,  and  who  received  the 
goods  into  his  store  on  their  return,  that  most 
of  the  cargo  was  much  damaged,  and  the  voy- 
age so  broken  up  as  not  to  be  worth  pursuing. 

On  these  facts,  the  jury  found  a  verdict  for 
the  defendant. 

A  motion  was  made  for  a  new  trial,  on  the 
ground  that  *the  plaintiff  was  entitled  to  [*95 
recover  either  a  total  or  an  average  loss. 

Mr.  Hopkins  for  the  plaintiff. 

Messrs.  Pendleton  and  Hamilton,  contra. 

RADCMFF,  J.  A  motion  has  been  made  for 
a  new  trial,  and  the  general  question  is, 

Whether  the  plaintiff  be  entitled  to  recover 
any,  and  what  part  of  the  freight  insured. 

An  insurer  on  freight  engages  that  it  shall 
be  in  the  power  of  the  insured  to  earn  his 
freight,  that  is  that  the  subjects  necessary  to 
the  earning  of  freight,  the  ship  and  cargo, 
shall  not  be  injured  by  any  of  the  perils  in- 
sured against,  so  that  no  freight  can  be  earned 

631 


95 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1802" 


If  the  ship  and  cargo  both  remain  in  a  state  to 
continue  the  voyage,  it  is  in  his  power  to  earn 
freight,  and  he  ought  to  proceed.  If  by  any 
injuries,  either  to  the  ship  or  cargo,  the  voy- 
age be  so  broken  up  that  no  freight  can  be 
earned,  the  plaintiff  ought  to  recover  a  total  or 
partial  loss,  as  he  may  or  may  not  have  earned 
freight,  pro  rata  itineris. 

If  the  injury  be  confined  to  the  ship,  and 
that  can  be  repaired  in  a  reasonable  time,  it  is 
the  duty  of  the  owner  to  make  such  repairs, 
and  to  continue  the  voyage  and  earn  his 
freight.  On  the  other  hand,  if  the  injury  be 
sustained  by  the  goods  alone,  and  the  ship  be 
in  a  capacity  to  proceed,  the  owner  of  the  ship 
will  still  be  entitled  to  perform  the  voyage  and 
recover  his  freight,  unless  the  goods  be  physi- 
cally destroyed. 

if  these  principles  be  correct,  the  first  in- 
quiry in  the  present  case  is,  whether  the  ship 
was  in  a  capacity  to  proceed,  or  whether  the 
injury  was  such  as  might  have  been  repaired  in 
a  reasonable  time,  in  relation  to  the  intended 
voyage,  and  at  a  reasonable  expense.  The 
circumstance  of  the  ship  being  obliged  to  re- 
turn to  the  port  from  whence  she  sailed,  does  not 
96*]  alter  the  application  of  *this  rule.  The 
voyage  had  actually  commenced  on  which  the 
right  to  freight  attached,  and  the  return  to 
New  York  was  the  same  as  if  she  had  been 
driven  into  any  other  port.  It  appears  that 
she  was,  in  fact,  repaired  at  a  moderate  ex- 
pense within  a  fortnight,  and  proceeded  on 
another  voyage.  If  the  goods  were  in  a  con- 
dition to  be  reshipped,  a  detention  for  that 
period  would  not,  in  my  opinion,  be  sufficient 
to  justify  an  abandonment  of  the  voyage.  It 
was  still  incumbent  on  the  owner  to  use  due 
diligence  in  endeavoring  to  repair  her,  instead 
of  which  it  appears  that  he  suffered  the  vessel 
to  remain  two  or  three  weeks  without  taking 
any  measure  for  that  purpose,  and,  for  aught 
we  know,  without  any  wish  or  idea  of  pursu- 
ing the  voyage.  On  account  of  the  ship,  there- 
fore, I  think  there  was  not  such  an  impediment 
as  would  authorize  an  abandonment  of  the 
voyage,  and  prevent  her  from  earning  freight. 

2.  With  regard  to  the  cargo — its  total  value, 
or  the  degree  of  injury  it  received,  cannot  be 
ascertained  from  anything  stated  in  the  case. 
The  lumber  could  not  have  been  injured,  but 
all  the  other  articles  were  perishable  in  their 
nature,  and  probably  so  much  damaged  as, 
according  to  one  of  the  witnesses,  to  render 
the  voyage,  on  their  account,  not  worth  pur- 
suing. Still  they  physically  remained,  and 
were  either  retained  by  the  shippers,  or  aban-' 
doned  to  the  underwriters  and  sold  for  their 
benefit.  As  between  the  owner  of  the  ship 
and  the  proprietor  of  the  goods,  there  was  not, 
therefore,  a  total  loss.  Between  them  no  loss 
is  total  where  the  property  remains,  or  any 
part  is  saved,  and  taken  by  the  owner  to  his 
own  use.  It  requires  an  absolute  destruction 
of  the  subject  to  render  the  loss,  in  this  re- 
spect, total.  That  not  being  the  case,  with 
regard  to  any  of  the  property,  in  this  instance, 
and  the  ship  being  in  a  condition  to  be  repair- 
ed, and  the  plaintiff  having  a  right  so  to  do, 
and  to  perform  the  voyage,  he  ought  to  have 
proceeded,  and  the  owners  had  no  right  to 
97*]  demand  of  him  the  restoration  of  *the 
goods  without  payment  of  the  freight.  By 


j  delivering  up  the  property  to  them  he  relin- 
I  quished  his  title  to  freight,  as  against  the  de- 
fendants, and  cannot  call  on  them  for  it. 

It  is,  therefore,  unnecessary  to  decide  wheth- 
er an  abandonment  of  the  freight,  under  the 
circumstances  of  the  present  case,  was  req- 
uisite. It  is  equally  unnecessary  to  examine 
whether  any  freight  was  earned,  pro  rata  itin- 
eris.  The  latter  is  now  a  question  between  the 
plaintiff  and  the  shippers  only.  If  any  part 
j  was  earned  and  has  not  been  relinquished,  he 
has  his  remedy  against  them.  It  is  not  a  claim 
against  the  underwriters,  who,  in  either  case, 
are  not  liable  for  it.  I  am,  however,  inclined 
to  think  that  although  the  right  to  freight  is 
deemed  to  commence  from  the  loading  of  the 
goods  on  board,  it  is  a  defeasible  right,  de- 
pending on  the  success  of  the  voyage;  and 
that,  in  this  case,  no  part  of  the  iter  "being  per- 
formed, to  any  beneficial  purpose,  no  freight 
was  earned,  whether  we  regard  the  distance  or 
the  price  as  determining  the  rule. 

Deciding  the  case  on  these  principles,  the 
correctness  of  the  judge's  charge  at  the  trial  is 
not  material  to  be  further  considered.^;  It  was 
more  favorable  to  the  plaintiff  than  the  result 
of  my  opinion,  and  the  jury  having  found 
for  the  defendant,  I  think  their  verdict  ought 
not  to  be  disturbed. 

KENT,  J.  I  am  of  opinion  that  the  plaintiff" 
has  not  shown  himself  entitled  to  a  total  loss, 
or  facts  sufficient  to  disturb  the  verdict.  He 
must  show  that  he  was  prevented,  by  one  of 
the  perils  insured  against,  from  completing 
his  contract  for  carrying  the  cargo  from  New 
York  to  the  Havana.  But  he  has  not  sufficiently 
shown  this.  He  lost  the  freight  of  the  voyage- 
more  by  his  own  negligence  or  folly  than  by 
the  perils  of  the  sea.  The  brig  was  not  so  dis- 
abled but  that,  with  a  moderate  repair,  she 
could  have  performed  the  voyage.  The  plaint- 
iff *delayed  a  fortnight  before  he  sent  [*98- 
her  to  be  repaired.  She  was  then  repaired,  in 
a  fortnight,  for  £44  11»,  and  soon  proceeded 
on  a  different  voyage. 

If  a  freighted  ship  becomes  disabledjluring 
her  voyage  by  a  peril  insured  against,  the 
master  has  his  option  of  two  things  ;  either  to- 
refit,  in  a  reasonable  time,  or  to  hire  another 
ship  to  carry  the  goods ;  and  if  he  does  this, 
or  if  the  shipper  will  not  consent  to  it,  he  will 
be  entitled  to  the  whole  freight.  If  be  does 
neither,  he  can,  at  best,  recover  only  his  freight 
pro  rata  of  the  owner  of  the  cargo.  This  was. 
a  point  settled  in  the  case  of  Lvke  v.  Lydc  (2' 
Burr.,  887),  and  by  the  authorities  there  cited. 

What  is  convenient  time  to  refit  must  de- 
pend upon  the  particular  voyage  to  be  perform- 
ed, and  the  time  and  place  of  the  accident. 
No  definite  time  is  prescribed,  nor  does  the 
matter  appear  to  be  susceptible  of  any  definite 
rule.  Under  the  circumstances  of  the  present 
case  I  cannot  undertake  to  say  that  two  weeks 
was  an  unreasonable  time,  and  that  the  verdict 
ought,  for  that  reason,  to  be  set  aside. 

If  the  plaintiff  neglected  to  refit,  in  order 
to  entitle  himself  to  full  freight  against  the 
shipper  of  the  goods,  he  ought  not  to  recover 
it  of  the  insurer.  The  vessel  might  have 
earned  the  freight,  notwithstanding  the  acci- 
dent at  the  Hook,  if  the  plaintiff  had  made 
use  of  due  diligence  in  repairing  her.  The 
JOHNSON'S  CASES,  3. 


1802 


JACKSON,  EX  DEM.  JONES  ET  AL.,  v.  BRINCKERHOFF. 


98" 


vessel  was  refitted  at  a  small  expense,  and  in 
condition  to  go  to  sea  on  another  voyage.  We 
must  presume  she  might  have  gone  upon  the 
voyage  insured  with  the  same  facility  and 
probably  with  much  greater  promptness.  If 
the  plaintiff,  with  so  slight  an  injury  to  his 
vessel,  and  after  having  equipped  and  dis- 
patched her  so  soon  on  another  voyage,  could 
recover  his  full  freight  in  this  case,  his  vessel 
would  be  earning  the  freight  of  two  voyages, 
nearly  in  as  short  a  time  as  she  could  really 
have  performed  one.  It  would  be  a  tempta- 
tion to  infinite  abuse  and  fraud  to  allow  a 
plaintiff,  under  such  circumstances,  to  recover 
99*]  a  total  *freight  upon  his  policy.  It  would 
be  allowing  him  a  premium  for  his  negligence 
in  not  refitting  and  performing  the  voyage  in- 
sured. It  appears  to  me  that  the  same  peril, 
and  to  the  same  extent,  ought  to  exist  to  au- 
thorize a  recovery  on  a  policy  on  freight  as  on 
a  policy  on  the  ship  ;  and  that  before  the  in- 
sured can  recover,  in  either  case,  as  for  a  total 
loss,  the  ship  must  be  rendered  unable  to  per- 
form the  voyage.  A  slight  accident,  such  as 
the  splitting  of  a  sail,  or  loss  of  a  rudder, 
soon  after  the  vessel  breaks  ground,  and  when 
those  accidents  can  be  easily  and  speedily  re- 
paired, would  not  authorize  a  demand  for  a 
total  loss.  If,  in  a  like  case,  he  could  not  re- 
cover a  total  loss  on  a  policy  on  the  ship,  I  see 
no  good  reason  why  there  should  be  a  recov- 
ery for  a  total  loss  of  freight.  It  would  in- 
volve the  absurdity  of  assuming,  in  the  one 
case,  that  the  voyage  was  lost  by  the  peril,  and, 
in  the  other  case,  that  it  was  not  lost.  If  the 
policy  had  been  upon  the  ship,  there  would 
not  have  been  a  pretense  for  a  total  loss  ;  and 
I  am  of  opinion  there  is  no  ground  for  a  claim 
of  total  loss  of  freight. 

I  have  put  out  of  view  the  condition  of  the 
cargo  or  any  questions  of  fraud  that  may  have 
been  suggested  in  respect  to  it.  There  is  no 
doubt  but  that  the  vessel  was  interrupted  in 
her  voyage,  and  that  the  accident  arose  with- 
out any  fault  to  be  imputed  to  the  master. 

The  person  who  lets  his  ship  to  hire  is  not 
thereby  an  insurer  of  the  cargo  ;  and  I  have, 
therefore,  supposed  the  present  question  not 
to  be  influenced  by  any  considerations  result- 
ing from  the  damage  to  the  cargo. 

The  next  question  is,  whether  the  plaintiff 
is  not  entitled  to  an  average  loss,  as  his  vessel 
was  deprived,  by  a  peril  insured  against,  of 
the  opportunity  of  earning  freight,  at  least, 
for  a  few  days.  It  is  said  (Luke  v.  Lyde)  that 
a  plaintiff,  in  such  a  case,  is  not  obliged  to  re- 
fit, to  entitle  himself  to  a  ratable  freight  from 
the  shippers.  If  so,  then  whatever  freight  he 
was  entitle  to  from  them  we  are  to  intend  he 
1 OO*]  has  received,  as  he  held  *the  lien  for  it 
in  his  own  hands.  With  respect  to  the  freight 
for  the  residue  of  the  voyage,  I  can  easily 
perceive  that  a  plaintiff,  in  a  case  like  the  pres- 
ent, may  be  justly  entitled  to  the  indemnity 
from  the  insurer  for  the  loss  of  freight  during 
the  time  the  vessel  was  necessarily  interrupted 
in  the  voyage.  But  he  cannot  justly  be  en- 
titled to  freight  beyond  that  particular  time, 
since  his  neglect  to  repair  and  proceed  in  the 
voyage  when  repair  was  so  practicable,  ought 
to  be  deemed  a  waiver  of  any  further  com- 
pensation. 

The  plaintiff's  claim  upon  the  defendant  for 
JOHNSON'S  CASES,  3. 


ratable  freight,  is  reduced,  therefore,  to  t he- 
time  the  vessel  ceased  to  earn  freight  by  rea- 
son of  the  peril ;  and  the  great  difficulty  upon 
this  point  is  that  the  case  contains  no  just  and 
accurate  data  by  which  this  average  freight 
can  be  ascertained.  From  this  omission  to- 
f urnish  the  requisite  proof,  and  the  neglect  to 
repair  or  offer  to  go  on,  I  am,  upon  the  whole, 
of  opinion  that  the  plaintiff  is  not  entitled  to 
his  motion  for  a  new  trial. 

LEWIS,  Ch.  J.,  and  LIVINGSTON,  J.,  were  of 
the  same  opinion. 

THOMPSON,  J.,  not  having  heard  the  argu- 
ment, gave  no  opinion. 

Judgment  far  the  defendant.1 

Cited  in— 15  Johns.,  19 ;  18  Johns.,  210 :  44  N.  Y.,  441 ; 
15  Barb.,  54 ;  2  Duer,  217  ;  Abb.  Adm.,  505 ;   1  Story, 


*  JACKSON,  ex  dem.  JONES,  ET  AL.  [*1O1 

v. 
BRINCKERHOFF. 

Adverse  Possession  —  Conveyance  Void  —  Grant- 
or's Title  not  Extinguished  —  Estoppel  —  Matter 
in  pais  —  Statute  of  Uses. 

By  the  common  law  a  conveyance  of  land  by  a 
person,  against  whom  there  is  an  adverse  possession 
at  the  time,  to  a  third  person,  is  void  ;  but  the  title 
of  the  grantor  is  not  thereby  extinguished  or  de- 
vested  ;  nor  will  such  conveyance  inure,  by  way  of 
estoppel,  for  the  benefit  of  the  defendant  in  pos- 
session. 

A  stranger  or  third  person  cannot  avail  himself 
of  an  estoppel  by  a  mere  writing  or  a  matter  in  pain. 

No  person  can  be  technically  estopped  by  a  con- 
veyance under  the  statute  of  uses. 

Citations—  Co.  Litt.,  365  ;  Co.  Litt.,  852;  Cora.  Dig., 
80,  81  ;  Gilb.  on  Uses  and  Trusts,  100,  101  ;  Preem. 
Rep.,  475,  case  651  ;  Co.  Litt.,  214  a  ;  Plowd.,  88  ;  Cro. 
Car.,  484  ;  2  Co.,  56  a. 


was  an  action  of  ejectment  brought  to 
J-  recover  500  acres  of  lot  No.  85,  in  the 
town  of  Aurelius  in  the  County  of  Onondaga. 
On  the  trial  the  plaintiff  gave  in  evidence  a 
patent  for  the  lot  granted  to  Jacob  Jones,  a 
soldier  in  the  New  York  line  of  this  State, 
and  proved  that  the  said  Jacob  Jones  died 
about  fourteen  years  since,  without  issue,  leav- 
ing six  brothers  and  five  sister,  his  heirs-at- 
law  ;  that  Phrebe,  one  of  the  sisters,  married 
Isaac  Smith,  who,  together  with  her  husband, 
on  the  10th  September,  1796,  conveyed,  or  ex- 
ecuted a  deed  purporting  to  convey,  one  sixth 
part  of  the  lot  in  question  to  Peter  Talman, 
one  of  the  lessors  ;  that  Margaret,  another  of 
the  sisters,  marrried  Thomas  Ellison,  who, 
with  her  husband,  on  the  10th  November, 
1796,  in  like  manner  conveyed  one  sixth  part 
of  the  same  lot  to  Talman';  that  the  defend- 
ant was  in  possession  of  the  premises,  and  had 
been  so  from  the  10th  June,  1795,  claiming 
them  as  his  own. 

1.—  See  Griswold  v.  The  New  York  Insurance  Co.. 
1  Johns.  Rep.,  204,  and  S.  C.,  3  Johns.  Rep.,  321. 


NOTE.— Conveyance  of  land  held  adversely. 

See  Whitaker  v.  Cone,  2  Johns.  Cas.,  58,  and  note, 


101 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


Upon  this  evidence  the  defendant  moved  for 
a  nonsuit,  on  the  ground  that  the  deeds  to  Tal- 
man  were  executed  while  the  defendant  was 
in  possession,  holding  the  premises  adversely, 
and  were,  therefore,  illegal  and  void,  and  that 
they  operated  to  extinguish  the  claim  of  the 
gantors,  and  would  inure  to  the  benefit  of  the 
defendant,  who  was  in  possession.  This 
motion  was  overruled  by  the  judge  ;  and  the 
defendant  proved  that  previous  to  the  execu- 
tion of  the  above-mentioned  deed,  from  Isaac 
Smith  and  his  wife  to  Peter  Talman,  the  same 
Isaac  Smith  had  excuted  another  deed  to  one 
Abraham  Jones,  releasing  to  him  all  his  right 
and  title  to  the  real  and  personal  estate  of  his 
1O2*]  *brother-in-law,  the  said  Jacob  Jones, 
deceased.  Several  other  deeds  were  also  read 
iii  evidence  on  the  part  of  the  defendant,  of 
which  it  is  unnecessary  to  take  notice,  as  they 
did  not  present  any  question  between  the  par- 
ties, except  what  arose  from  the  consideration 
that  the  defendant  claimed  to  hold  the  prem- 
ises under  them,  and  under  the  deed  from 
Isaac  Smith,  last  mentioned,  by  all  of  which 
he  derived  his  title  from  the  same  source  as 
the  plaintiff,  that  is,  from  the  heirs  of  the  sol- 
dier who  was  the  original  patentee. 

The  plaintiff,  at  the  trial,  objected  to  the  in- 
troduction of  the  last-mentioned  deed  from 
Smith  to  Jones,  because  it  had  not  been  depos- 
ited in  the  office  of  the  clerk  of  the  County  of 
Albany,  pursuant  to  the  statute  of  the  8th 
January,  1794,  and  was  therefore  void,  as 
against  P.  Talman,  the  subsequent  purchaser, 
for  a  valuable  consideration.  The  judge  over- 
ruled this  objection,  on  the  ground  that  the 
defendant  was  in  possession  of  the  prem- 
ises, claiming  them  as  his  own,  at  the  time 
of  executing  the  deed  to  Talman,  which 
possession  was  sufficient  notice  to  every 
subsequent  purchaser,  and  took  the  case  out 
of  the  statute.  The  propriety  of  this  opinion 
was  not  controverted  on  the  argument,  nor 
made  a  question  in  the  cause.  The  judge,  at 
the  trial,  charged  the  jury  that  the  plaintiff 
was  entitled  to  recover  one  fourth  part  of  the 
premises,  and  they  found  a  verdict  accord- 
ingly. 

A  motion  was  made  to  set  aside  the  verdict, 
and  for  a  new  trial. 


Mr.   Van  Vechten  for  the  defendant. 
Mr.  Emott  for  the  plaintiff. 

RADCLIFF,  J.  The  question  litigated  between 
the  parties  respects  the  validity  or  operation  of 
the  deed  from  Ellison  and  his  wife  to  Talman. 
1O3*]  It  is  contended,  *on  the  principles 
on  which  the  motion  for  a  nonsuit  was  found- 
ed, that  this  deed,  being  executed  while  the 
defendant  was  in  possession  of  the  premises, 
claiming  them  in  his  own  right,  was  not  only 
illegal  and  void,  but  estops  Ellison  and  his 
wife  from  setting  up  their  title  against  any 
person,  and  extinguishes  it  forever. 

Admitting  that  the  possession  of  the  defend- 
ant was  adverse  to  the  title  of  the  plaintiff, 
which,  upon  the  whole  evidence,  I  think,  can- 
not be  maintained,  still  the  doctrine  of  estop- 
pels can  have  no  application  to  the  case.  Es- 
toppels are  said  to  be  odious,  and  are  not  favored 
in  law.  (Co.  Litt.,  365.)  They  are  extended 


I  only  to  certain  specific  cases,  and  are  subject 
to  precise  rules.  They  are  usually  distin- 
guished into  three  kinds  ;  by  matter  of  rec- 
ord, by  writing,  and  in  pais.  (Co.  Litt.,  852.) 
Strangers  as  well  as  parties  and  privies  may 
generally  take  advantage  of  estoppels  by  matter 
of  record  ;  but,  I  believe,  in  no  instance  can 
strangers  avail  themselves  of  an  estoppel  by 
mere  writing,  or  in  pats.  (Com.  Dig.,  80,  81  ; 
Gilb.  Uses  and  Trusts,  100,  101.)  Regularly, 
an  estoppel  must  be  reciprocal,  and  bind  both 
parties  ;  and  it  is  upon  this  principle  of  reci- 
procity that  it  is  confined  in  its  operation  to 
parties  and  to  privies  in  blood,  or  estate  only. 
It  extends  no  farther,  in  any  case,  except  where 
it  is  created  by  matter  of  record.  In  the  pres- 
ent instance,  therefore,  the  defendant  cannot 
protect  himself  on  this  ground,  for,  clearly,  he 
is  neither  a  party  to  the  deed  in  question  nor 
a  privy  in  blood  or  estate.  Although  the  deed 
from  Ellison  and  his  wife  be  considered  illegal, 
and  therefore  void,  it  does  not  estop  them  as 
against  the  present  defendant  from  asserting 
their  previous  title. 

Neither  can  it  annihilate  or  extinguish  that 
title.  The  general  maxim  is,  dormit  (diquando 
jus,  moritur  nunquam.  However  they  may  be 
concluded  as  between  them  and  other  parties, 
their  title  cannot  be  extinct,  and  must  prevail 
against  all  who  cannot  rebut  their  claim  by  a 
technical  estoppel.  The  title,  under  such  cir- 
cumstances, therefore,  remains,  and  [*1O4 
is  not  forfeited.  If  it  were,  the  grantors  would 
suffer  a  double  forfeiture ;  for  by  the  statute 
of  32  Hen.  VIII.,  adopted  here,  against  buying 
and  selling  pretended  titles,  they  are  already 
subjected  to  a  forfeiture  of  the  full  value  in 
damages. 

On  another  ground,  I  think  this  defense 
equally  untenable.  The  conveyance  by  Ellison 
and  his  wife  is  founded  on  the  statute  of  uses, 
and  I  conceive  it  to  be  a  principle  that  no  party 
is  technically  estopped  by  any  such  convey- 
ance. A  conveyance  in  pursuance  of  that 
statute  operates  upon  the  actual  right  of  the 
grantor  only.  It  transfers  that  right,  what- 
ever it  may  be,  where  he  is  in  a  capacity  to 
convey,  and  it  extends  no  farther.  It  is  not 
subject  to  all  the  rules,  built  on  feudal  princi- 
ples, which  apply  to  conveyances  at  common 
law.  Thus  it  is  held  not  to  work  any  discon- 
tinuance or  forfeiture,  as  conveyances  by  par- 
ticular tenants  in  certain  cases  are  held  to  do  : 
and  from  the  principle  that  its  operation  is 
commensurate  with  the  actual  right  of  the 
party,  and  is  governed  by  it,  I  think  it  follows 
that  it  cannot  be  affected  by  the  doctrine  of  es- 
toppels. It  was  accordingly  so  held,  at  an 
early  period,  by  Saunders,  J.  (Freem.  Rep., 
475.,  case  651.) 

On  these  general  grounds,  I  am  of  opinion 
that  the  verdict  was  proper,  and  that  there 
ought  to  be  judgment  for  the  plaintiff. 

KENT,  J.  A  motion  was  made,  on  the  part 
of  the  defendant,  for  a  new  trial,  on  two 
grounds : 

1st.  That  the  deeds  to  Talman  were  void  in 
respect  to  him,  by  reason  of  an  adverse  pos- 
session at  the  time. 

2d.  That  they    inure,  however,   by  way  of 
extinguishment  and  in  favor  of  the  defendant 
i  in  possession. 

JOHNSON'S  CASES,  8- 


1802 


GILBERT  v.  THE  COLUMBIA  TURNPIKE  COMPANY. 


104 


1.  There  is  no  doubt  but  that  by  the  common 
law  (Co.  Litt.,  214  a;  Plowd.,  88)  a  convey- 
ance to  a  third  person  of  lauds  held  adversely 
at   the   time,  was  void,  as  an  act  of  main- 
tenance.      Before    a    person    could    convey 
1O5*]   *lands  in  the  adverse  possession  of 
another,  he  was  under  the  necessity  of  reducing 
his  right  into  possession  by  suit.     This  rule  of 
the  common  law  has  never  been  altered.     It  is 
the  law  still,  and,  consequently,  the  deeds  to 
Talman  transferred  no  right  to  him,  as  the  de- 
fendant was,  at  the  time,  in  possession,  claim- 
ing the  lands  as  his  own.     The  right  of  the 
grantors  was  reduced  to  a  mere  right  of  entry 
or  an  action. 

2.  The  second  question  is,  whether,  in  conse- 
quence of    those  conveyances,   the  right  of 
Smith  and  Ellison,  and  their  wives,  or  either 
of  them,  was  extinguished  for  the  benefit  of 
the  defendant. 

I  am  satisfied,  upon  a  consideration  of  the 
question,  that  no  such  conclusion  results.  It 
would  be  a  conclusion  rigorous  and  highly  in- 
convenient with  us,  considering  the  facility 
with  which  real  property  circulates,  and  the 
distance  at  which  it  is  often  placed  from  the 
owner.  This  was  a  bonafide  sale  on  the  part 
of  the  heirs.  It  was  not  a  sale  of  a  pretended 
title,  as  a  matter  of  speculation,  but  of  a  valid 
right.  If  the  position  contended  for  by  the 
defendant  was  correct  there  would  have  been 
no  need  of  the  statute  punishment  for  selling  a 
pretended  title,  which  inflicts  on  the  seller  a 
forfeiture  of  the  value  of  the  lands  sold.  This 
doctrine  would  have  been  equally  effectual  by 
forfeiting  the  land  to  the  possessor,  instead  of 
a  common  informer.  I  am  not  for  extending 
the  punishment  contained  in  the  act  against 
buying  or  selling  pretended  titles  beyond  its 
express  provisions.  Although,  in  judgment 
of  law,  the  possession  of  land  may  be  notice  to 
the  owner,  yet  as  a  matter  of  fact,  it  is  very 
probable,  considering  how  thinly  scattered  the 
settlements  are  in  a  great  part  of  the  country, 
that  lands  may  be  sold  by  the  true  owner,  un- 
conscious of  any  adverse  possession.  In  the 
case  of  Fitzlwrbert  v.  Fitzhtrbert  (Cro.  Car. ,  484), 
one  point  moved  was,  that  if  A  after  a  dis- 
seisin, and  not  knowing  of  it,  levy  a  fine  to  a 
stranger,  whether  that  tine  would  bar  his  right, 
1O6*]  and  inure  to  *the  benefit  of  the  dis- 
seisor,  according  to  the  doctrine  in  Buckler's 
case.  (2  Co.,  56,  a.)  The  court  gave  no  opin- 
ion, but  two  of  the  judges,  feeling  the  mis- 
chievous consequences  of  the  doctrine,  agreed 
that  the  fine  should  not  inure  to  the  benefit  of 
the  disseisor,  but  to  the  use  of  the  conisor 
himself  ;  for  otherwise,  a  disseisin,  being  se- 
cret, may  be  the  cause  of  disinherison  of  any- 
one who  intends  to  levy  a  fine  for  his  own 
benefit.  The  mischiefs  apprehended  at  that 
time  in  England  would,  if  the  defendant's  doc- 
trine be  good,  be  felt  here  with  increased  force, 
owing  to  the  peculiar  circumstances  of  our 
country  which  I  have  suggested.  It  would 
become  a  serious  check  upon  the  necessary 
transfer  of  real  property,  or  would  lead  to 
great  fraud  and  injustice*.  I  am  clearly,  there- 
fore, of  opinion  that  the  defendant  ought  to 
take  nothing  by  his  motion. 

LIVINGSTON,  J.,  and  LEWIS,  Ch,  J.,  were  of 
the  same  opinion. 

JOHNSON'S  CASES,  3. 


THOMPSON,  J.,  not  having  heard  the  argu- 
ment of  the  cause,  gave  no  opinion. 

Motion  denied.1 

Cited  in— 1  Johns.,  163;  9  Wend.,  528;  2  Hill,  529; 
13  N.  Y.,  638 ;  10  Barb.,  107, 435 ;  24  Barb.,  57 ;  32  Barb., 
289 ;  4  Duer,  593 ;  60  Indiana,  485. 


*GILBERT 


[*1O7 


THE  COLUMBIA  TURNPIKE  COMPANY. 

1.  Taking  Lands  for  Public  Uses — Inquisition 
— Omission  to  state  Disagreement  between 
Owner  and  Defendant.  2.  Statute  affecting 
Private  Property — Proceedings  Under. 

Where  an  inquisition  taken  under  the  second  sec- 
tion of  the  act  amending  the  Act  to  establish  the 
The  Columbia  Turnpike  Company,  passed  March 
28, 1800  (sess.  23),  omitted  to  state  a  disagreement  be- 
tween the  owner  of  the  lands  mentioned,  and  the 
company,  and  that  the  judge  who  appointed  the 
commissioners  was  not  interested,  &c.,  it  was  held 
defective,  and  quashed. 

Where  a  special  power  is  granted  by  statute  affect- 
ing the  property  of  individuals,  it  must  be  strictly 
pursued ;  and  it  must  appear,  on  the  face  of  the 
proceedings,  that  the  directions  of  the  statute  have 
been  strictly  observed. 

Citations-4  Burr.,  2244 ;  Cowp.,  26 ;  1  Burr.,  377  ; 
7  Term  R.,  363. 

THIS  was  an  application  by  E.  Gilbert  to 
set  aside  an  inquisition,  found  by  three 
commissioners  appointed  under  the  2d  section 
of  the  act  amending  the  Act  establishing  the 
Columbia  Turnpike  Company,  passed  28th 
March,  1800.  It  is  enacted  by  that  section 
that  in  case  of  disagreement  between  the  com- 
pany and  any  owners  of  lands,  over  which  the 
turnpike  may  be  carried,  it  shall  be  lawful  for 
the  president  and  directors  to  apply  to  one  of 
the  judges  or  assistant  justices  of  the  Court 
of  Common  Pleas,  for  the  County  of  Colum- 
bia, not  interested  in  said  road,  who  it  required 
to  appoint,  in  writing,  three  commissioners, 
being  freeholders  of  the. county,  and  who  shall 
not  be  inhabitants  of  any  of  the  towns  through 
which  the  said  road  shall  pass,  which  commis- 
sioners shall  name  a  day  for  meeting  on  the 
said  lands  to  perform  the  duty  required  of 
them,  and  also  to  give  notice  to  the  owners  of 
their  appointment,  and  of  the  day  of  such 
meeting,  being  at  least  four  days  from  the  time 
of  giving  such  notice,  &c.,  and  that  each  of 
the  said  commissioners,  before  he  proceed  to 
execute  the  said  trust,  shall  take  an  oath  pre- 
scribed by  the  said  act,  and  shall  then  assess 
the  damages,  and  make  an  inquisition,  &c. 

The  proceedings  in  this  case  were  brought 
before  the  court  by  certiorari,  and  the  inquisi- 
tion taken  before  the  three  commissioners  re- 
cited that  John  Tryon,  one  of  the  judges  of 
the  Court  of  Common  Pleas,  had.  by  writing, 
under  his  hand,  pursuant  to  the  said  act, 
appointed  three  commissioners  for  the  pur- 
poses specified  in  the  act ;  that  they  were  free- 
holders of  the  said  county  ;  that  they  had  ap- 

1.— In  Williams  v.  Jackson,  ex  dern.Tibbetts  ctal.. 
in  the  Court  of  Errors,  5  Johns.  Rep.,  300,  the  decis- 
ion in  the  above  cause  was  recognized  and  sanc- 
tioned. 

63  r> 


107 


SUPKEMK  COURT,  STATE  OP  NEW  YORK. 


180* 


pointed  a  day  of  meeting  on  the  lands  in  ques- 
tion ;  that  notice  of  such  meeting  was  given 
to  the  owners,  at  least  four  days  before  such 
1O8*]  meeting ;  that  they  *had  taken  the 
oath,  as  prescribed  in  the  act,  and  viewed  the 
premises,  and  thereupon  they  proceeded  to 
make  the  assessment  and  the  inquisition  above 
mentioned.  But  it  did  not  appear  from  any  j 
part  of  the  proceedings  that  there  was  any  dis-  j 
agreement  between  the  company  and  the  own- 
ers of  the  lands  mentioned  as  to  the  damages 
sustained,  or  that  the  judge,  who  appointed 
the  commissioners  was  not  interested  in  the 
road ;  or  that  the  commissioners  so  appointed 
were  not  inhabitants  of  any  of  the  towns 
through  which  the  road  passed ;  or  that  the 
commissioners  gave  notice  in  writing  to  the 
owners  of  the  time  and  place  of  meeting  to 
assess  the  damages. 

On  these  objections,  amongst  others,  it  was 
moved  to  quash  the  inquisition. 

Messrs.  Champlin  and   Van  Vechten  for  the 
plaintiff. 
Mr.  Spencer,  contra. 

Per  Curiam.  This  is  the  case  of  a  special 
power  granted  by  statute,  and  affecting  the 
property  of  individuals,  which  ought  to  be 
strictly  pursued,  and  appear  to  be  pursued,  on 
the  face  of  the  proceedings.  (4  Burr.,  2244; 
Cowp.,  26;  1  Burr.,  377;  7  Term  Rep.,  363.) 
This  is  an  established  rule,  and  it  is  important 
that  it  should  be  maintained ;  especially,  in 
cases  which  so  materially  interfere  with  pri- 
vate rights.  It  does  not  appear  that  any  dis- 
agreement existed  between  the  parties,  or,  that 
in  consequence  of  any  disagreement,  the  com- 
pany applied  to  a  judge,  both  of  which  were 
requisite,  to  authorize  the  appointment  of  com- 
missioners. The  disagreement  and  consequent 
application,  were  the  foundation  of  the  whole 
proceedings,  and  without  them  the  judge 
could  have  no  jurisdiction  in  the  case.  As 
they  do  not  appear,  we  are  not  to  intend  they 
existed.  The  judge,  in  the  case  before  us,  is 
required  bv  the  act  to  have  no  interest  in  the 
road ;  ana  it  is  also  required  that  the 
1OO*]  Commissioners  shall  not  be  inhabit- 
ants of  any  of  the  towns  through  which  the 
road  shall  pass.  Neither  of  these  points, 
which  are  essential  to  an  important  result,  ap- 
pear to  have  been  complied  with,  and  both 
are  indispensable.  A  notice  to  the  owners,  it 
is  true,  is  alleged  to  have  been  given,  but  it  is 
not  stated  to  have  been  in  writing.  A  notice 
in  legal  proceedings  means  a  written  notice, 
and  we  think  the  act  itself,  in  this  instance, 
contemplates  such  a  notice.  In  certain  cases 
it  directs  the  notice  to  be  left  at  the  dwelling- 
house  of  the  party.  This  must  intend  a  writ- 
ten notice. 

On  these  grounds,  without  determining  the 
other  objections,  we  are  of  opinion  that  the 
inquisition  ought  to  be  set  aside. 

Motion  granted. 


Distinguished— 10  Wend.,  174. 

Cited  in— 11  Wend.,  94;  15  Wend.,  429;  20  Wend., 
187 ;  36  Wend.,  500 ;  5  Hill,  104 ;  5  N.  Y.,  440 ;  15  N.  ¥., 
189;  TIN.  Y.,  317;  72  N.  Y.,  16;  19  Barb.,  539;  53 
Barb.,  411 ;  67  Barb.,  391 ;  35  How.,  196 ;  38  Mich.,  141. 

036 


JACKSON,  ex  dem.  GANSEVOORT,  ET  AI.. 
v. 

LUNN. 

1.  Grant  by  letters  Patent — Acts  of  Ownership 
by  Another  and  His  Heirs — Time — Grant 
Presumed — Entry  on  Part — Claim  of  Whole 
— Presumptions.  2.  Marriage  with  AUen — 
American  Revolution —  Vested  Rights — Treaty. 
3.  Alien — Purchase —  Title  —  Descent  —  Office 
Found — Division  of  Empire. 

A  tract  of  land  was  granted,  by  letters  patent,  to- 
A  in  1735,  which  was  surveyed  and  laid  out  into  lots. 
In  1736  B  executed  leases  for  several  lots  to  different 
persons  for  lives,  reserving-  rent,  in  which  he  assert- 
ed his  claim  to  the  whole  tract,  and  exercised  va- 
rious acts  of  ownership,  until  his  death  in  1752,  and 
his  heirs  also  gave  leases  of  some  of  the  lots  In  1767, 
and  his  title  and  that  of  his  heirs  continued  to  be 
acknowledged  by  the  tenants,  and  remained  undis- 
puted until  after  the  year  1783.  In  an  action  of 
ejectment  brought  by  tne  heirs  of  B  against  C,  who 
had  been  in  possession  since  1772,  it  was  held  that  a 
grant  from  the  original  patentees  to  B  was  to  be 
presumed ;  that  entry  by  him  into  part,  with  a  claim 
to  the  whole,  was  to  be  considered  as  an  entry  into 
the  whole ;  and  that  the  entry  of  C  was  in  subordi- 
nation to  the  title  of  B. 

The  American  Revolution  worked  no  forfeiture 
of  previously  vested  rights  in  lands.  Where  a  Brit- 
ish subject  died  seized  of  lands  in  this  State  in  1753, 
leaving  daughters  in  England,  who  married  British 
subjects,  and  neither  they  or  their  wives  were  Amer- 
ican citizens,  it  was  held  that  the  husbands  of  the 
heiresses  might  be  joined  in  a  demise  with  their 
wives,  in  order  to  maintain  an  action  of  ejectment ; 
and  that  even  if  the  marriages  were  subsequent  to 
the  American  Revolution,  such  marriages  with 
aliens  would  not  impair  the  rights  of  the  wives,  nor 

Srevent  the  full  enjoyment  of  the  property,  accord- 
ig  to  the  laws  of  the  marriage  state;  especially, 
after  the  provision  contained  in  the  ninth  article 
of  the  Treaty  of  Amity  and  Commerce  with  Great 
Britian,  of  the  9th  November,  1794. 

Though  in  case  of  a  purchase  the  law  will  recog- 
nize the  title  of  an  alien  in  lands,  until  office  found: 
yet  in  case  of  a  descent  the  law  takes  no  notice  of 
an  alien  heir,  on  whom,  therefore,  the  inheritance 
is  not  cast.  But  where  the  title  to  land  in  this  State 
was  acquired  by  a  British  subject,  prior  to  the 
American  Revolution,  it  seems  that  the  right  of 
such  British  subject  to  transmit  the  same,  by  de- 
scent, to  an  heir,  in  esse,  at  the  time  of  the  Revolu- 
tion, continued  unaltered  and  unimpaired ;  the  case 
of  a  revolution  or  division  of  an  empire  being  an 
exception  to  the  general  rule  of  law  on  this  subject. 
The  objection  of  alienism  is  not  to  be  favored. 

Citations-  2  Johns.  Cas.,  29;  5  Co.,  53;  1  Bac.,  new 
ed.,  133, 134 ;  Pow.  on  Dev.,  317 ;  7  Term  R.,  398 ;  3 
Johns.  Cas.,  322;  3  Term  R.,  155;  12  Co.,  5;  Bull.,  74; 
Cowp.,  216, 217 ;  3  Johns.i-Cas.,  118 ;  Co.  Litt.,  252  b ; 
Co.  Litt.,  15  b. ;  12  Co.,  5 ;  Cowp.,  102,  111,  215 ;  3  Term 
R.,  157, 158,  159;  Bull.  N.  P.,  .4 :  2  Johns.  Cas..  29; 
Laws  of  U.  S.,  Vol.  II.,  p.  476 ;  7  Co.  1, 16,  a. ;  2  Johns. 
Cas.,  399 ;  Co.  Litt.,  2  b,  and  Harg.,  note  5 ;  Plowd., 
229  b.;  7  Co.  35  a.;  Com.  Dig.,  tit.  Alien,  ch.  1 ;  5  Co., 
52  b. ;  1  Leon.,  47 ;  4  Leon.,  82 ;  1  Vent.,  417  ;  1  Bos.  & 
Pull.,  48;  7  Term  R.,  398;  Co.  Litt.,  8  a.;  7  Co.;  27  b. 

THIS  was  an  action  of  ejectment  of  lands  in 
Montgomery    County.     The    cause  was 


NOTE.— Aliens,  their  rights  as  to  real  property. 

By  purchase  an  alien  can  take  and  hold  lands  until 
office  found.  Jackson  v.  Beach,  1  Johns.  Cas.,  399, 
and  note. 

B)l  descent  at  common  law  an  alien  cannot  take 
lands.  At  his  decease,  intestate,  his  lands  vest  in 
the  State  without  office  found.  He  has  no  inherit- 
able blood.  Fairfax  v.  Hunter,  7  Cranch.  603,  619 ; 
Slater  v.  Nason,  15  Pick.,  345;  Farrar  v.  Dean,  24 
Mo.,  16 ;  Levy  v.  McCartee,  6  Pet.,  102 ;  Movers  v. 
White,  6  Johns.  Ch.,  360. 

See  Jackson  v.  Adams,  7  Wend.,  367 :  Orrv.  Hodg- 
son, 4  Wheat.,  453:  People  v.  Conklin,  2  Hill,  67; 
Jackson  v.  Jackson,  7  Johns.,  314.  See,  also,  N.  Y. 
Rev.  Stat.  (7th  ed.),  p.  2165,  et  seq.,  and  special  stat- 
utes of  other  States. 

JOHNSON'S  CASES,  3. 


1802 


JACKSON,  EX  DEM.  GANSEVOORT,  ET  AL.  v.  LUNN. 


110 


HO*]  tried,  before  Kent,  J.,  at  *the  Mont- 
gomery Circuit,  in  June,  1801.  On  the  29th 
August,  1735,  letters  patent  were  granted  to 
Charles  Williams,  John  Wallis,  Thomas 
Cooper,  Thomas  Cockerill,  Peter  Bard,  Will- 
iam Crosby,  and  B.  Bard,  for  14,000  acres  of 
land,  including  the  premises  in  question  ;  and 
the  land  was  soon  after  surveyed  and  laid  out 
into  lots.  In  1736,  Sir  Peter  Warren  executed 
eleven  leases  for  lots,  parcel  of  the  tract,  to 
different  persons,  for  lives,  reserving  rent ; 
and  the  lessees  entered  and  enjoyed  the  de- 
mised premises.  In  the  leases  Sir  Peter  War- 
ren asserted  his  claim  to  the  whole  tract.  In 
1737  and  1742  Sir  Peter  Warren  paid  the  quit- 
rent  for  the  whole  lands.  He  died  in  1752, 
leaving  three  daughters,  one  of  whom,  Ann, 
married  Lord  Southampton,  and  Charlotte, 
another,  married  Lord  Abingdon,  and  Susan- 
nah, the  third,  married  General  Skinner,  and 
•died  in  the  autumn  of  1776,  leaving  an  infant 
daughter,  who  afterwards  married  Lord  Gage. 
In  1767  Oliver  Delancey,  an  attorney  for  the 
three  daughters  and  co-heiresses,  executed  two 
other  leases  for  two  other  lots  to  other  settlers 
for  twenty-one  years,  reserving  rent.  The 
co-heiresses  and  their  husbands  have  been  from 
their  birth,  and  still  are,  British  subjects,  and 
not  American  citizens.  There  were,  at  the 
commencement  of  the  American  war,  about 
one  hundred  settlers  on  the  lands,  who,  after 
entry,  had  agreed  with  the  agent  of  the  co- 
heiresses for  leases,  and  at  least  two  thirds  of 
the  lands  have  since  been,  and  are  now,  held 
under  title  from  the  co-heiresses.  Until  some- 
time since  the  American  war  the  settlers  on 
the  lands  generally  acknowledged  the  title  in 
the  co-heiresses  of  Sir  Peter  Warren,  and  it 
was  not  disputed  by  any  of  them  until  some 
time  after  the  late  war,  and  prior  to  the  com- 
mencement of  the  present  suit. 

The  defendant  proved  that  he  had  been  in 
possession  of  the  premises  for  twenty-nine 
years.  The  demises  in  the  declaration  of  each 
husband  and  wife  were  joint  demises.  The 
jury,  under  the  direction  of  the  judge,  found 
1 1 1*]  *a  verdict  for  the  plaintiff.  A  case 
was  reserved  for  the  opinion  of  the  court, 
which,  it  was  agreed,  either  party  might  turn 
into  a  special  verdict. 

Jfr.  Van  Vechten  for  the  plaintiff. 
Messre.  Cady  and  Gold,  contra. 

RADCLIFF,  ./.  The  objections  made  at  the 
trial,  and  raised  by  the  defendant,  on  the  ar- 
gument, are, 

1.  That  if  any  title  was  shown  by  the  plaint- 
iff it  was  proved  to  exist  in  such  of  the  lessors 
only  as  were  British  subjects,  and  therefore 
aliens,  and  incapable  of  recovering  or  holding 
any  real  property  in  this  State. 

2.  That  the  patent  of  Charles  Williams  and 
others,    produced    by    the    plaintiff  himself, 
showed  the  right,  if  any  existed,  to  be  vested 
in  persons  from  whom  the  plaintiff  had  not 
-deduced  any  title. 

3.  That  admitting  these  objections  to  be  re- 
moved, there  was  not  sufficient   evidence  of 
possession  in  Sir  P.  Warren  and  his  represen- 
tatives to  support  the  plaintiff's  title  to  re- 
•cover. 

The  objection,  founded  on  the  alienism  of 
JOHNSON'S  CASES,  3. 


all  the  lessors  except  one,  we  have,  in  effect, 
overruled  in  the  case  of  Kelly  v.  Harinon  (2 
Johns.  Cases,  29).  In  that  case,  we  adopted 
the  general  principle  that  a  dismemberment  of 
empire  ought  in  no  instance  to  affect  the 
previous  rights  of  individuals  with  regard  to 
property.  This  principle  alone  would  be  suffi- 
cient to  protect  the  rights  of  the  lessors,  who 
were  British  subjects,  which  were  acquired  at 
the  period  of  the  Revolution.  But  their  rights, 
I  think,  are  also  confirmed  by  the  Treaty  of 
1794.  the  9th  article  of  which  provides  that 
the  subjects  and  citizens  of  both  nations,  who 
hold  lands  in  the  territories  of  the  other,  shall 
continue  to  hold  them  according  to  the  nature 
of  their  estates  and  titles  therein,  and  may 
grant,  sell,  and  devise  the  same,  as  if  they  were 
natives;  and  that  neither  *they  nor  [*112 
their  heirs  or  assigns  shall,  so  far  as  may 
respect  the  said  lands,  and  the  legal  remedies 
incident  thereto,  be  regarded  as  aliens.  This 
treaty  proceeds  on  the  general  principle  already 
stated,  for  it  contemplates  the  subjects  and 
citizens  of  both  countries,  as  actually  holding 
lands  in  the  other,  and  it  declares  that,  in  this 
respect,  they  shall  be  regarded  as  natives,  and 
not  as  aliens. 

If  before  this  treaty  there  was  room  for 
doubt  whether  such  titles  could  be  transmitted 
by  descent,  as  well  as  by  purchase,  that  doubt 
must  be  removed,  for  it  provides  that  neither 
the  persons  so  holding,  nor  their  heirs  or 
assigns  shall,  in  that  respect,  be  treated  as 
aliens.  This  provision  being  produced  by  the 
actual  state  of  things,  resulting  from  the  polit- 
ical separation  of  the  two  countries,  and  in- 
tended to  confirm  or  restore  the  rights  of 
individuals,  as  they  previously  existed,  ought 
to  receive  a  liberal  construction,  and  be  ex- 
tended to  all  persons  actually  holding  lands, 
or  who,  if  the  Revolution  had  never  happened, 
would  be  entitled  to  hold  them,  by  descent  or 
otherwise.  With  this  interpretation,  the  death 
of  General  Skinner  and  his  wife,  although 
stated  to  be  in  the  fall  of  1776,  subsequent  to 
the  Declaration  of  Independence,  could  not 
deprive  their  infant  daughter  from  inheriting 
the  lands  in  question. 

On  the  general  question  of  alienism  it  may 
be  proper  further  to  state,  that  independent  of 
the  rights  of  the  lessors,  as  derived  from  the 
former  connection  between  this  country  and 
Great  Britain,  I  think  the  objection  is  not  well 
taken,  as  it  relates  to  those  who  acquired  their 
title  in  any  other  manner  than  by  descent. 
With  respect  to  aliens  in  general,  I  apprehend 
it  is  not  true  that  they  cannot  purchase  or  hold 
lands  under  any  circumstances.  On  the  con- 
trary, it  appears  to  have  been  settled  from  the 
time  of  Lord  Coke,  that  an  alien  may  take  by 
purchase,  and  even  maintain  an  action  for 
land,  if  the  crown  in  England,  or  the  people 
here,  do  not  interfere.  (5  Co.,  53;  *1  [*ll3 
Bac.,  new  edit,,  133,  134  ;  Pow.  on  Dev.,  317 ; 
7  Term  Rep.,  398,  per  Grose,  «/".) 

A  purchase  by  an  alien  is  not  regarded  as  an 
offense  which  necessarily  creates  a  forfeiture, 
but  the  government  may,  on  principles  of 
policy,  interfere  and  deprive  him  of  his  title. 
In  the  mean  time  the  estate  is  deemed  to  be 
vested  in  the  alien  to  every  purpose  until  office 
found,  or  until  his  death,  in  which  case,  as  he 
can  have  no  heirs,  and  the  title  cannot  descend, 

637 


113 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


it  immediately  reverts  to  the  people  without 
office.  This  doctrine  I  consider  as  also  recog- 
nized by  the  Court  of  Errors,  at  their  last 
session,  in  the  case  of  Hart  v.  Johnson  (see 
post),  as  well  as  by  the  English  authorities. 
It  follows  that  the  lessors,  as  aliens  merely, 
would  be  entitled  to  recover,  notwithstanding 
this  objection,  except  Lord  Gage  and  his  wife, 
who  claim  by  a  descent  cast  subsequent  to  the 
Declaration  of  Independence,  and  their  rights 
I  consider  to  be  protected  by  the  provision  in 
the  treaty.  The  defense  founded  on  the 
alienism  of  the  lessors,  is,  therefore,  untenable  ; 
and  I  cannot  perceive,  as  has  been  suggested, 
that  this  opinion  at  all  interferes  with  the  de- 
cision in  Netty  v.  Hari&vn.  In  that  case  no 
right  had  attached  or  was  vested  in  the  de- 
mandant at  the  period  of  the  Revolution,  nor 
did  this  provision  in  the  treaty  in  any  manner 
apply. 

The  other  objections  may  be  considered  in 
one  view.  It  is  no  doubt  true  that  a  plaintiff 
in  this  action  must  prevail  by  the  strength  of  his 
own  title,  and  if  a  legal  title  be  shown  to  exist 
in  another  he  must  be  defeated  of  his  recovery. 
But  such  an  outstanding  title  must  be  a  continu- 
ing or  subsisting  title.  It  is  not  sufficient  to  show 
that  at  any  distance  of  time  it  was  vested  in 
another.  If  that  were  sufficient  it  would  be  in 
the  power  of  a  defendant  in  ejectment,  on  most 
occasions,  to  hunt  up  the  original  grant  or 
patent,  comprehending  the  premises  in  contro- 
versy, and  oblige  a  plaintiff  to  deduce  a  chain 
of  paper  title  from  thence.  This  would  be 
attended  with  infinite  inconvenience,  and 
114*]  ought  not  to  be  required  *  where  other 
evidence  can  be  supplied.  The  plaintiff  in 
this  case  produced  the  patent,  and  professed  to 
claim  under  it,  although  he  could  not  show  a 
paper  title  derived  from  it.  It  issued  in  1735, 
and  the  very  next  year,  in  1736,  it  appears  that 
Sir  Peter  Warren  claimed  the  precise  tract 
thereby  granted,  and  accordingly  executed 
eleven  leases  for  life  for  different  parcels  of  the 
tract,  to  different  tenants,  who  took  possession 
and  held  under  him.  In  1737,  and  again  in 
1742,  he  paid  the  quitrents  for  the  whole  tract. 
In  1752  he  died  ;  and  in  1767  his  representatives, 
the  co-heiresses  above  mentioned,  executed  two 
other  leases  for  twenty -one  years,  for  other  lots 
of  the  same  tract.  At  the  commencement  of  the 
Revolution,  there  were  one  hundred  settlers  who 
had  all  agreed  to  take  leases  under  them.  Until 
a  few  years  ago  the  settlers  generally  acknowl- 
edged their  title,  which  was  not  disputed  till 
some  time  after  the  late  war.  During  all  this 
period  neither  the  original  patentees  nor  any 
other  person  appeared  to  claim  title  under  the 
patent  in  opposition  to  Sir  Peter  Warren  or 
his  representatives,  nor  does  the  defendant  set 
up  a  title  under  that  patent.  Under  those  cir- 
cumstances, and,  especially,  considering  that 
Sir  Peter  Warren,  within  one  year  after  grunt- 
ing the  patent,  exercised  ownership  by  placing 
tenant"  on  the  tract,  and  that  he  and  his  repre- 
sentatives have  continued,  at  different  periods, 
to  do  the  same,  without  interruption,  and  that 
their  title  was  not  till  lately  disputed,  I  think 
it  a  fair  and  well  founded  inference  that  their 
title  is  derived  from  the  same  patent,  and  is  not 
in  hostility  to  it,  and  that  a  deed  from  the 
patentees  to  Sir  Peter  Warren  may  with  pro- 
priety be  presumed.  From  the  first  acts  of 

038 


ownership  exercised  by  him  till  the  commence- 
ment of  the  late  war,  was  a  period  of  about  forty 
years,  and  grants  have  been  presumed  within 
a  less  period.  (3  Term  Rep.,  155  ;  12  Co.,  5; 
Bull.,  74;  Cowp.,  216,  217.) 

The  possessions  under  Sir  Peter  Warren  and 
his  representatives  ought,  therefore,  not  to  be 
considered  as  *founded  on  a  naked  [*115 
entry  without  right,  but  in  affirmance  and 
support  of  a  title  derived  from  the  original 
patentees.  Viewed  in  this  light,  the  possessions 
so  taken  must  be  construed  to  have  reference 
to  the  entire  contract,  and  the  plaintiff  is  en- 
titled to  the  effect  of  those  possessions  in  rela- 
tion to  the  whole.  This  brings  the  present 
case  within  the  principle  of  the  decision  in  the 
case  of  '1  he  Proprietors  of  Hit,  Manor  of  Living- 
ston (Jackson,  ex  dem.  Livingston,  v.  Schutt;  see 
post,  p.  118)  against  their  tenants,  in  which 
similar  proof  of  possession  was  admitted  as 
equivalent  to  an  actual  possession  of  the  whole, 
in  order  to  support  a  plaintiff's  title  in  eject- 
ment. 

From  the  situation  of  the  tract  in  the  present 
case,  it  did  not  admit  of  any  other  kind  of 
possession.  It  was,  in  its  native  and  unculti- 
vated state,  susceptible  only  of  a  gradual  and 
progressive  settlement.  The  possessions  were 
from  time  to  time  taken,  accordingly,  and 
these  possessions,  accompanied  with  title,  ought 
to  be  effectual  in  relation  to  the  whole,  and, 
prima  facie,  sufficient  to  entitle  the  plaintiff  to 
recover  in  this  action.  The  evidence  in  sup- 
port of  these  possessions  was,  therefore,  prop- 
erly admitted. 

The  possession  on  the  part  of  the  defendant,  if 
it  be  of  sufficient  duration  to  create  a  bar  un- 
der the  statute  of  limitations,  cannot  be  con- 
sidered as  originally  held  adversely  to  the 
plaintiff's  title,  for  it  is  stated  that  at  the  com- 
mencement of  the  war,  there  were  about  one 
hundred  settlers  on  that  tract,  who  had  agreed 
to  take  leases  from  the  lessors  of  the  plaintiff ; 
that  until  a  few  years  ago  the  settlers  generally 
acknowledged  their  title,  and  that  such  title 
was  not  disputed  till  some  time  after  the  war. 
Upon  this  evidence  there  is  no  ground  to  sup- 
pose that  any  of  the  possessions  previous  to 
the  war  were  held  adversely  to  the  title  of  the 
lessors,  and,  of  course,  the  statute  of  limita- 
tions cannot  apply. 

I  have  intentionally  laid  out  of  view  the 
propriety  of  admitting  or  rejecting  the  indent- 
ure which  was  offered  *in  evidence  on  [*1 1C 
the  part  of  the  plaintiff,  because  I  think  it  un- 
important to  the  decision  of  the  cause. 

Upon  the  whole,  I  am  of  opinion,  that  the 
alienism  of  the  lessors  of  the  plaintiff  does  not 
oppose  a  bar  to  their  recovery  ;  that  the  evi- 
dence of  possession  on  their  part  was  proper, 
and  prima  fade,  sufficient  to  put  the  defend- 
ant on  his  defense,  and  that,  therefore,  judg- 
ment ought  to  be  rendered  for  the  plaintiff. 

KENT,  J.  Two  questions  arise  in  this  case  : 
1.  Whether  the  lessors  of  the  plaintiff  have 
shown  a  sufficient  title  to  recover,  supposing 
no  disability  of  alienism  to  exist.  2.  If  they 
have,  then,  whether  the  objection  that  they 
are  aliens  is,  in  this  case,  sufficient  to  prevent 
a  recovery. 

1.  My  opinion  on  the  first  point  is  that  there 

was  evidence  sufficient  to  authorize  a  recov- 

JOHNSON'S  CASEB,  3; 


1802 


JACKSON,  EX  DEM.  GANSEVOORT,  ET  AJ,.  v.  LUNN? 


116 


ery,  and  that  the  jury  were  to  presume  a  grant 
from  the  original  patentees  to  Sir  Peter  War- 
ren. The  patent  was  granted  in  1735,  and  the 
tract  immediately  surveyed  and  laid  out  into 
lots.  The  very  next  year  Sir  Peter  Warren 
asserted  his  claim,  in  the  most  explicit  and 
formal  manner,  to  the  whole  tract,  and  took 
possession  of  it,  by  executing  eleven  leases 
for  different  lots  to  different  persons  for  lives, 
with  a  reservation  of  rent,  and  by  putting  the 
lessees  into  the  enjoyment  of  the  demised 
premises.  These  acts  of  ownership,  accom- 
panied with  a  claim  of  right  to  the  whole, 
may  well  be  considered  as  an  entry  into  the 
whole.  If  Sir  Peter  Warren  had,  at  the  time, 
as  he  declared,  a  title  to  the  whole  tract,  one 
action  would  have  been  sufficient  to  have  recov- 
ered the  whole  against  the  patentees,  in  whom 
the  joint  possession  of  the  whole,  at  the  time  of 
his  entry,  is  to  be  considered.  To  support  his 
claim,  as  against  them,  one  action  would  have 
been  sufficient,  and,  consequently,  there  could 
have  been  no  necessity  of  divers  entries.  The 
doctrine  of  several  entries  exists  where  there 
are  several  tenants  of  the  freehold,  or  the  lands 
lie  in  several  counties,  so  as  to  require  distinct 
117*]  *actions.  (Co.  Litt.,  252,  b.)  Where 
one  action  would  give  effect  to  a  claim,  one 
entry  in  pursuance  of  such  claim  will  be  co- 
extensive with  the  claim.  Thus,  where  the 
possession  is  in  no  one,  but  the  freehold  in 
law  is  cast  on  the  heir,  an  entry  by  him  into 
part  is  an  entry  into  the  whole.  (Co.  Litt.  ,155.) 

Sir  Peter  Warren  having,  therefore,  in  the 
year  1736  taken  possession  of  the  whole  tract 
under  a  claim  of  title,  he  continued  in  posses- 
sion to  the  time  of  his  death,  and  continued  to 
exercise  acts  of  ownership,  for  we  find  him,  in 
1737  and  1742,  paying  the  quitrent  of  the 
lands.  He  died  in  possession  in  the  year  1752, 
by  which  the  descent  was  cast  upon  his  heirs, 
being  his  three  daughters.  These  heirs,  in  the 
year  1767,  exercised  particular  acts  of  owner- 
ship over  the  tract,  by  leasing  two  other  lots 
for  twenty-one  years,  with  a  reservation  of 
rent ;  and  at  the  time  of  the  commencement  of 
the  American  war,  we  find  about  one  hun- 
dred settlers  on  the  land,  acknowledging  the 
title  of  the  heirs ;  and  that  title  was  generally 
acknowledged  by  the  settlers,  and  not  disputed 
by  any  of  them  until  some  time  after  the 
peace  of  1783 ;  and,  at  least,  two  third  parts 
of  the  whole  tract  are  held  under  the  title  of 
the  heirs.  Here,  then,  we  find  the  claim  of 
Sir  Peter  Warren  uniformly  asserted  and  ad- 
mitted from  the  year  1736  till  after  the  year 
1783,  or  a  period  of  near  fifty  years.  The  de- 
fendant came  into  posesssion  of  the  premises 
about  thirty-five  years  after  the  first  entry  by 
Sir  Peter  Warren,  and  it  is  necessarily  to 
be  inferred  from  the  case  that  he  entered  in 
subordination  to  his  claim ;  since  it  is  stated 
that  that  claim  was  not  disputed,  and,  conse- 
quently, admitted  by  all  the  settlers,  until 
many  years  after  the  entry  of  the  defendant. 

From  all  these  facts,  I  think  a  deed  from 
the  original  patentees  to  Sir  Peter  Warren  was 
to  be  presumed. 

Patents  and  grants  are,  in  a  variety  of  cases, 
to  be  presumed,  even  within  the  time  of  legal 
memory,  for  the  sake  of  quieting  an  ancient 
118*]  possession.  This  is  a  rule  of  *law,  re- 
peatedly admitted  and  sanctioned  by  the 
JOHNSON'S  CASES,  3. 


courts,  from  the  case  of  Bedle  v:  Beard  (12 
Co.,  5)  down  to  this  day.  (Cowp.,  102,  111 
216,  217;  3  Term  Rep.,  157,  158,  159;  Bull.  JVr. 
P.,  74.)  In  the  case  of  Keymerv.  Summer*, 
Justice  Yates  directed  a  jury  to  presume  a  grant, 
from  a  possession  of  nearly  thirty  years,  and 
this  case  has  received  the  subsequent  sanction 
of  Lord  Kenyon.  The  present  is  a  much 
stronger  case.  There  was  a  possession  of 
thirty-five  years,  and  a  descent  cast,  in  the 
mean  time,  and  the  defendant  then  entered, 
not  in  hostility,  but  in  obedience  to  that  right, 
and  acquiesced  in  it  for  a  number  of  years 
thereafter ;  and  even  now  sets  up  no  title  of 
his  own,  independent  of  possession. 

The  case  of  Jackson,  ex  dem.  Livingston,  v. 
Schutt,  which  was  decided  in  this  court  in  the 
year  1796,  is  a  case  in  point.  It  was  an  eject- 
ment for  lauds  within  the  manor  of  Living- 
ston, and  the  plaintiff  rested  his  title  entirely 
on  his  possession.  The  evidence  was,  that  the 
manor  of  Livingston  was  a  place  long  known 
and  established  by  law;  that  the  grandfather 
of  the  lessor  of  the  plaintiff  was  in  possession 
of  the  manor  as  early  as  1737,  and  continued 
so  until  his  death,  in  1750.  That  his  son  and 
heir  succeeded  him  in  the  possession,  and  re- 
tained it  during  his  life,  and  that  the  lessor  of 
the  plaintiff  held  the  premises  under  a  devise 
from  him.  That  the  grandfather  and  father 
of  the  lessor  were  reputed  to  be  in  possession 
of  the  whole  manor,  and  claimed  the  same  as 
their  right,  and  exercised  acts  of  ownership  in 
every  part,  and  made  coal  in  the  woods  all 
around  the  premises.  That  a  great  number 
of  people  lived  dispersed  throughout  the  man- 
or under  leases  from  those  ancestors.  That 
the  premises  lay  within  the  reputed  bounds  of 
the  manor,  and  had  not  been  occupied  for 
above  eight  years.  To  this  evidence  the  de- 
fendant demurred,  and  contended  in  this  court 
that  there  was  no  evidence  of  actual  posses.- 
sion  in  the  plaintiff ;  that  where  possession  is 
relied  on  it  ought  to  be  an  actual  one,  and  not 
one  merely  constructive;  *and  that  [*119 
possessions  in  different  parts  of  the  manor 
will  not  extend  to  a  possession  of  the  contigu- 
ous lands  when  no  grant  of  any  part  of  the 
land  is  shown.  The  counsel  for  the  plaintiff 
contended  that  ancient  and  continued  posses- 
sions is  favored  in  law  as  evidence  of  right, 
and  that  it  is  not  to  be  presumed  that  the 
rightful  owner  of  property  would  'be  so 
far  forgetful  of  his  interest  as  to  leave  it  for 
half  a  century  to  be  enjoyed  by  others.  That 
the  evidence  would  have  warranted  the  jury  to 
conclude  that  the  plaintiff  was  in  possession 
of  the  premises ;  that  possession  may  be  shown 
not  merely  by  a  visible  fence,  but  by  acts  of 
ownership  applicable  to  the  nature  of  the 
property,  and  that  it  was  not  requisite  to  show 
the  print  of  the  axe  or  plough  in  every  part  of 
a  tract  of  land  to  constitute  a  possession  of  it. 
Of  this  opinion  were  the  court,  and  gave  judg- 
ment for  the  plaintiff  which  was  afterwards, 
in  February,  1797,  unanimously  affirmed'in 
the  Court  of  Errors. 

I  am  satisfied  that  the  plaintiff  ought  to  re- 
cover, unless  the  objection  of  the  alienism  of 
the  lessors  is  sufficient  to  prevent  it ;  and  this 
brings  me  to  consider  the  second  question. 

2.  The  titles  of  two  of  the  lessors,  viz. ,  the 
'  wife  of  Lord  Southampton,  and  of  Lord  Ab- 

ess 


119 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1802 


ingdon,  were  vested  rights  at  the  time  of  our 
Revolution,  and  come  within  the  decision  of 
this  court  in  the  case  of  Kelly  v.  Harison  (Vol. 
II.,  29),  in  which  it  was  resolved  that  the  Revo- 
lution worked  no  forfeiture  of  a  previously 
vested  right.  Nor  were  their  husbands  inca- 
pacitated to  join  with  them  in  a  demise  of  the 
premises.  In  the  first  place,  it  is  not  stated  in 
the  case  when  they  were  married,  and  we  are 
not  to  intend  they  were  married  subsequent  to 
the  Revolution,  if  that  intendment  would 
thereby  create  a  disability.  It  lay  with  the 
party  interested  in  such  disability  to  show  it. 
The  court  are  not  to  help  a  party  in  creating, 
by  mere  intendment,  a  disability  to  defeat  a 
title.  But  if  it  were  to  be  admitted  that  the  two 
1 2O*]  marriages  in  question  *were  subsequent 
to  the  aera  of  our  independence,  would  not  avail 
the  defendant.  The  two  daughters  of  Sir  P. 
Warren,  having  vested  rights  prior  to  the  war, 
those  rights  were  not  to  be  impaired  in  conse- 
quence of  the  separation  of  the  two  countries. 
They  are  to  exist  in  equal  energy,  as  if  the 
separation  had  not  taken  place,  and,  conse- 
quently, the  marriages  of  the  heirs  with  aliens 
would  not  prevent  their  full  enjoyment  of  the 
property,  according  to  the  laws  of  the  marriage 
state.  And,  if  any  doubt  had  otherwise  ex- 
isted respecting  the  rights  of  the  wives  of 
lords  Southampton  and  Abingdon,  it  would 
be  removed  by  the  9th  article  of  the  Treaty  of 
Amity  and  Commerce  with  Great  Britain 
<Laws  of  the  United  State,  Vol.  II.,  p.  476),  by 
which  it  is  declared,  "that  British  subjects 
who  now  hold  lands  in  the  United  States  shall 
continue  to  hold  them,  according  to  the  nature 
and  tenure  of  their  respective  estates  and  titles 
therein,  and  may  grant,  sell  or  devise  the  same 
in  like  manner  as  if  they  were  natives ;  and 
that  neither  they  nor  their  heirs  or  assigns 
shall,  so  far  as  may  respect  the  said  lands,  and 
the  legal  remedies  incident  thereto,  be  regard- 
ed as  aliens."  This  provision  thus  removes  all 
objection  to  the  title  of  those  lessors,  or  to 
their  remedy  founded  on  the  joint  demise  of 
them  and  their  husbands,  so  far  as  their  alien- 
ism is  the  cause  of  the  objection. 

The  title  of  the  wife  of  Lord  Gage,  which  ac- 
crued subsequent  to  the  Declaration  of  Inde- 
pendence, is  not  so  easily  cleared  from  this 
objection.  The  court  cannot  avoid  taking 
notice  of  the  alienism  of  an  heir,  if  the  same  be 
shown  to  them.  The  alienism  of  a  demandant 
may  be  pleaded.  (Calvin's  case,  7  Co.,  1,  16  a.) 

In  the  case  of  Jackson,  ex  dem.  Cvlverhouse, 
\.  Beach  (2  Johns.  Cases,  399),  this  court  de- 
cided that  the  title  of  an  alien  was  to  be  recog- 
nized until  office  found.  But  that  was  the  case 
of  a  purchase,  and  there  is  an  essential  dis- 
tinction between  the  cases  of  an  alien  acquir- 
ing by  purchase  and  by  operation  of  law.  (Co. 
121*]  Litt.  2,  b.,  and  Harg.,  note  5 ;  *Plowd. 
229  b  ;  Calvin's  case  7  Co. ,  25  a).  In  the  one  case 
he  can  take  and  hold  the  lands  and  maintain 
an  action  for  them.  He  continues  seized  until 
the  inquest  of  office.  In  the  other  case  he 
cannot  take  at  all,  for  the  \awqiue  nihilfrustra, 
will  not  give  the  freehold  and  inheritance,  since 
the  alien  cannot  keep  it,  and  it  therefore  takes 
no  notice  of  an  alien  heir,  who,  as  he  cannot 
take  by  descent,  shall  not  impede  the  descent 
to  another.  For  the  same  reason,  an  alien 
cannot  take  by  courtesy,  dower,  &c.,  because 


they  are  estates  created  by  act  of  law.  (Com. 
Dig.,  tit.  Alien,  ch.  1 ;  5  Co.,  52  b;  1  Leon., 47 ; 
4 Leon.,  82.,  S.  C.;l  Vent.,  417;  1  Bos.  &  Pull., 
48;  7  Term  Rep.,  398.) 

But  notwithstanding  the  wife  of  Lord  Gage 
is  to  be  regarded  as  an  alien,  and  that  alien 
heirs  cannot  take,  there  are  circumstances  in 
the  present  case  that  ought,  perhaps,  to  exempt 
it  from  the  operation  of  these  general  principles 
of  law.  The  mother  of  the  wife  of  Lord  Gage 
was,  on  the  4th  July,  1776,  lawfully  seized  of 
an  undivided  third  part  of  the  premises ;  and 
it  is  settled  that  the  Revolution  did  not  work 
a  forfeiture  of  her  right,  nor  impair  it.  One 
of  the  inherent  properties  of  the  fee  which  she 
held  was  its  capacity  to  be  transmitted  by  de- 
scent, and  if  her  issue,  then  alive  and  born, 
and  living  in  England,  were  by  the  Revolution 
rendered  incapable  of  taking  those  lands  by 
inheritance,  the  Revolution  did,  in  fact,  impair 
one  of  the  most  valuable  ingredients  in  her  title. 
It  destroyed  her  then  existing  inheritable 
blood,  and  imposed  on  her  the  necessity  of  sell- 
ing the  land  to  an  American  citizen,  in  order 
to  save  it  from  escheating  at  her  death.  This 
would  be  a  rigorous  alternative,  and  is  alto- 
gether inconsistent  with  what  I  understand  to 
be  the  true  doctrine  that  the  Revolution  left 
the  mother,  as  to  the  lands  in  question,  in  the 
same  state  as  if  it  had  not  taken  place.  Her 
right  remained  equally  full  and  perfect.  It  is, 
perhaps,  therefore,  *the  better  opinion  [*122 
that  as  to  titles  to  land  acquired  previous  to 
the  Revolution,  the  right  of  the  British  subject 
to  transmit  the  same  by  descent  continued  un- 
altered and  unimpaired,  at  least  as  to  the  heirs 
in  esse,  at  the  time  of  the  Revolution.  This 
admission  will  not  contravene  the  general  rule 
that  a  natural-born  subject  cannot  transmit  his 
inheritance  to  an  alien  heir  (Co.  Litt.,  8  a), 
because  this  is  the  peculiar  and  extraordinary 
case  of  a  revolution,  in  which  the  heir  was  not 
an  alien  when  the  Revolution  took  place.  We 
did,  accordingly,  in  the  case  of  KeUy  v.  Har- 
ison,  allow  the  alien  widow  her  dower  in  all 
the  lands  owned  by  her  husband  at  the  time  of 
the  Revolution,  although  the  husband  was 
then  alive.  As  to  lands  which  might  have 
been  subsequently  acquired,  either  by  the  an- 
cestor or  the  husband,  the  analogy  between  the 
two  cases  might,  perhaps,  continue  the  same. 
It  ought  further  to  be  observed  that  the  case  of 
a  revolution  is  an  exception  to  all  general  rules, 
and  general  rules  ought  to  be  so  cautiously 
applied  as  not  to  work  injustice  or  infringe 
upon  private  rights.  Lord  Coke  observes,  m 
Calvin's  case  (7  Co.,  27  b),  that  "albeit  the 
kingdoms  (of  England  and  Scotland)  should, 
by  descent,  be  divided  and  governed  by  several 
kings,  yet  all  those  who  were  born  under  one 
natural  obedience  while  the  realms  were  unit- 
ed, should  remain  natural-born  subjects,  and 
not  become  aliens  by  such  a  matter,  ex  post 
facto."  They  would  accordingly  be,  as  he  ex- 
presses it,  ad  fidem  utriusque  regia.  This 
objection  of  alienism  is  not,  at  any  time,  to  be 
favored,  since  the  policy  of  the  Legislature  has 
been  so  frequently  delared  in  favor  of  aliens 
holding  lands ;  but  it  applies  with  peculiar 
harshness  in  the  case  of  an  infant  heir,  who 
became  incapacitated  (as  is  said)  in  consequence 
of  a  revolution  in  the  government. 

Again,  this  case  may,  perhaps,  be  considered 
JOHNSON'S  CASES,  3. 


1802 


JACKSON,  EX  DEM.  GANSEVOORT,  ET  AL.  v.  PARKEK. 


122 


as  included  within  the  equity  of  the  Treaty  of 
1794.  It  appears  that  the  title  of  the  wife  of 
123*]  Lord  Gage,  as  a  co-heir,  had  *been,  and 
still  is  admitted  by  the  other  heirs,  and  that 
under  her  claim  as  heir  she  is  to  be  adjudged 
to  have  been  in  possession  of  the  premises  ;  for 
at  least  two  thirds  of  the  whole  patent  is  held 
under  title  derived  as  well  from  her  as  the  other 
•co-heirs,  and  her  title,  as  well  as  that  of  the 
others,  was  generally  acknowledged,  and  never 
disputed  until  some  time  after  the  late  war. 
Being  thus,  in  fact,  in  possession  as  heir,  and 
holding  the  lands,  she'  may  without  much  vio- 
lence be  embraced  by  the  terms  ' '  British  sub- 
jects who  now  hold  lands  in  the  United  States," 
&c.  These  words  ought  to  have  a  very  liberal 
interpretation,  in  advancement  of  their  bene- 
ficial end.  They  ought  to  apply,  in  further- 
ance of  the  amicable  intention  of  the  two 
nations,  to  every  British  subject  who,  at  the 
time  of  the  treaty,  was  in  the  enjoyment  of 
lands  within  the  United  States,  and  whose  title 
thereto  would  be  valid,  independent  of  the  plea 
of  alienism.  In  all  such  cases  the  treaty  may 
be  considered  as  doing  away  the  plea.  This 
treaty  also  explains  what  shall  be  understood 
to  be  an  unimpaired  right  of  the  alien,  and  is 
a  very  high  authority  in  favor  of  the  explana- 
tion I  have  suggested,  that  the  titles  of  British 
subjects  existing  prior  to  the  Revolution  should 
preserve  their  full  capacity  of  being  transmit- 
ted by  inheritance.  The  treaty  says  that 
British  subjects  who  now  hold  lands,  &c.,  shall 
continue  to  hold  them,  and  that  neither  they 
nor  their  heirs  or  assigns  shall,  so  far  as  may 
respect  the  said  .lands,  be  regarded  as  aliens. 
This  authority,  which  is  in  pari  materia,  and 
in  explanation  of  an  alien's  right  continuing 
unimpaired,  comes  strongly  in  corroboration 
of  the  principle  for  which  I  contend. 

I  am,  therefore,  of  opinion,  that  judgment 
ought  to  be  given  for  the  plaintiff. 

LEWIS,  Ch.  J.,  and  LIVINGSTON,  J.,  were 
of  the  same  opinion,  and  stated  their  reasons 
at  length. 

124*]  *THOMPSON,  J.,  not  having  heard  the 
argument  of  the  cause,  gave  no  opinion. 

Judgment  for  tlie  plaintiff.1 

Overruled-3  Hill,  81. 

Distinguished— 5  Denio,  549 ;  21  N.  Y.,  212 ;  79  N. 
Y.,  101. 

Reviewed— 6  Cow.,  723. 

Cited  in— 10  Johns.,  380 ;  4  Wend.,  548 ;  7  Wend., 
338,  368 ;  10  Wend.,  16 ;  13  Wend.,  547;  16  Wend.,  627; 
22  Wend.,  283;  6  Johns.  Ch.,  365;  13  N.  Y.,  539;  26 
Barb.,  408 ;  28  Barb.,  661 ;  32  Barb.,  265 ;  66  Barb.,  101 ; 
7  Leg.  Obs.,  190. 


JACKSON,  ex  dem.  GANSEVOORT,  ET  AL. 
PARKER.2 

1.  Legal  Possession  of  Lands — Entry  and  Posses- 
sion by  Another — Statute  of  Limitations.  2. 
Adverse  Entry — Not  Presumed. 

Where  the  legal  possession  of  lands  was  in  the 
heirs  of  A  under  a  claim  of  title  and  a  descent  in 
1752,  and  B  afterwards  entered  on  the  land  and 

1. — See  Dawson's  Lessee  v.  Godfrey,  4Cranch,  321 ; 
Lambert  v.  Paine,  3  Cranch,  97 :  Mcllvaiae  v.  Coxe. 
2Cranch,  209;  4  Cranch,  211;  Hunter  v.  Fairfax,  1 
Munf .  Virg.  Rep.,  218 ;  Reed  v.  Reed,  lb.,  611. 

2. — See  Jackson,  ex  dem.  Gansevoort,  v.  Lunn, 
ante,  p.  109. 

JOHNSON'S  CASES,  3.        N.  Y.  REP.,  BOOK  1. 


made  improvements,  and  his  possession  was  con- 
tinued for  thirty-seven  years ;  but  it  did  not  appear 
that  he  entered  under  claim  or  color  of  title,  or 
hostile  to  the  heirs  of  A,  whose  title  was  not  dis- 
puted until  after  1783,  it  was  held  that  the  legal  in- 
tendment  was  that  B  entered  under  the  title  of  the 
heirs  of  A,  and  that  the  statute  of  limitations  could 
not  begin  to  run  till  after  the  possession  of  the  de- 
fendant was  held  adversely  to  the  heirs  of  A. 

An  entry  adverse  to  the  lawful  possessor  is  not  to 
be  presumed,  but  must  be  proved. 

THE  facts  in  this  case  were  the  same  as  in 
the  last  preceding  case,  except  that  it  was 
found  that  one  Robert  Cain,  entered  into  pos- 
session of  the  premises,  about  thirty-seven 
years  ago,  and  built  a  house  and  cleared  and 
inclosed  thirty  acres,  and  made  improvements 
thereon ;  and  that  the  possession  had  passed 
from  one  to  another,  until  it  came  to  the  de- 
fendant. 

Mr.  Van  Vechten  for  the  plaintiff. 
Mr.   Cody,  contra. 

Per  Curiam.  The  additional  facts  do  not 
vary  this  case  from  the  other,  as  to  the  conclu- 
sions to  be  drawn  from  it.  The  possession  of 
the  premises,  at  the  time  of  the  entry  of  Cain, 
being  in  the  heirs  of  Sir  Peter  Warren  under 
claim  of  title,  sanctioned  by  a  descent  cast, 
and  his  entry  not  being  under  any  claim  or 
color  of  title,  nor  appearing  to  be  hostile,  the 
intendment  of  law  will  be  that  he  entered 
under  and  in  obedience  to  the  'right  [*125 
of  the  heirs.  An  entry  adverse  to  the  lawful 
possessor  is  not  to  be  presumed.  It  must  ap- 
pear by  proof.  In  this  case  it  is  found  that 
the  title  of  the  heirs  was  not  disputed  by  any 
of  the  settlers  until  after  the  peace  of  1783. 
The  statute  of  limitations  could  not  begin  to 
run  until  the  possession  of  the  defendant  was 
avowedly  held  in  opposition  to  the  right  of 
the  heirs,  and  the  time  when  that  took  place 
was  long  within  the  period  of  twenty  years. 

We  are,  therefore,  of  opinion,  that  judgment 
must  be  given  for  the  plaintiff. 

Judgment  for  the  plaintiff. 

Cited  in— 2  Cai.,  185;  20  Johns.,  403;  84  N.  Y..  44; 
15  Barb.,  496;  37  Super,  199. 


DUNCAN  v.  DUBOYS. 

1.  Insolvent  Debtor — Inventory  —  Claim  Due 
From  United  States — Omission  to  Insert — 
Discharge  Void.  2.  Evidence — Statute  Book 
— Private  Act  —  Against  Party  Benefilted 
Thereby.  3.  New  Trial — Technical  Objection 
— Evidence. 

Where  an  insolvent  debtor  omitted  to  insert  in 
the  inventory  of  debts  due  to  him  a  claim  on  the 
United  States  for  services  during  the  war,  for  which 
claim  he  received  a  compensation,  after  his  dis- 
charge, it  was  held  that  the  concealment  was  f  radu- 
lent,  and  his  discharge  void. 

It  seems  that  the  printed  statute  book  containing 
a  private  act  may  be  given  in  evidence  against  the 
party  for  whose  benefit  the  act  was  passed,  for  he 
is  presumed  to  be  connusant  of  it,  and  cannot  be  sur- 
prised by  the  evidence. 

A  new  trial  will  not  be  granted  on  the  mere  tech- 
nical objection  as  to  the  admission  of  a  printed 
statute  book  in  evidence,  when  it  appears  that  the 
printed  statute  was  correct,  and  an  exemplification 
of  it,  on  a  new  trial,  would  be  the  same  evidence. 

41  641 


125 


SUPREME  CotTRT,  STATE  OP  NEW  YORK. 


1802 


Citations-Gilb.,  13  ;  12  Vin.,  81,  pi.  2. 


was  an  action  of  debt  on  a  bond.  The 
defense  was  a  discharge  under  the  Insolv- 
ent Act,  granted  by  the  Court  of  Common 
Pleas  for  Dutchess  County,  on  the  17th  Janu- 
ary, .1793.  The  plaintiff,  on  the  trial,  gave  in 
evidence  various  facts  to  show  that  the  dis- 
charge was  fraudulent  and  void. 

But  from  the  opinion  of  the  court  it  is  neces- 
sary to  state  only  that  the  defendant  made  no 
mention  in  his  inventory  of  a  claim  he  had 
upon  the  United  States  for  commutation  for 
half  pay  ;  and  to  prove  such  claim,  the  plaint- 
iff offered  in  evidence  an  Act  of  Congress  of 
the  4th  June,  1794,  from  the  printed  statute 
book,  which  was  objected  to,  but  admitted  by 
the  judge;  and  it  was  further  proved  that  the 
defendant,  since  his  discharge,  had  admitted 
that  he  had  received  from  the  United  States 
some  compensation  for  his  services  during  the 
war. 

126*]  *The  judge  charged  the  jury  that  if 
the  defendant  had  not  obtained  three  fourths 
in  amount  of  his  creditors  to  subscribe  his 
petition,  the  discharge  was  void,  and  the  jury 
found  a  verdict  for  the  plaintiff. 

A  motion  was  made,  on  the  part  of  the  de- 
fendant, for  a  new  trial,  on  the  ground  of  the 
admission  of  improper  testimony,  and  for  mis- 
direction of  the  judge. 

Mr.  8.  Thompson  for  the  defendant. 
Mr.  Hopkins,  contra. 

Per  Curiam.  The  general  rule  undoubtedly 
is,  that  the  printed  statute  book  is  not  evidence 
of  private  acts,  although  there  are  instances  in 
which  the  printed  statute  book  has  been  ad- 
mitted as  evidence  of  a  private  act.  (Gilb., 
13;  12  Vin.,  81  ;  pi.,  2.)  Perhaps,  the  reason 
why  the  printed  statute  book  is  excluded,  that 
the  statutes  are  not  considered  as  already 
lodged  in  the  minds  of  the  people,  does  not 
apply  to  the  case  of  a  private  statute  given  in 
evidence  by  the  opposite  party  against  the 
party  for  whose  benefit  the  act  was  passed  ; 
for  it  cannot  then  be  intended  as  not  lodged  in 
in  his  mind,  and  so  cannot  operate  as  a  sur- 
prise upon  him.  This  exception  applies  the 
more  strongly  in  the  present  case,  because  the 
private  act,  admitted  on  the  trial  of  this  cause, 
had  been  published  in  a  volume  certified  to 
have  been  collated  and  compared  with  the 
original  rolls. 

But  without  giving  any  definitive  opinion  on 
the  admissibility  of  the  statute  book,  it  was 
shown,  on  the  argument  for  a  new  trial,  that 
the  printed  book  was  correct,  by  a  production 
of  an  exemplification  of  the  private  act.  There 
would,  therefore,  be  no  use  in  a  new  trial  on 
that  ground  merely,  because  the  evidence  on 
such  new  trial  would,  in  that  respect,  be  pre- 
cisely the  same.  This  is  a  peculiar  case,  in 
which  it  would  be  of  no  use  to  the  parties 
now  to  discuss  the  technical  objection. 
127*]  *Considering,  then,  the  act  of  Con- 
gress, as  regularly  in  evidence,  it  is  conclusive 
proof  of  a  claim  or  demand  existing  in  favor  of 
the  defendant  against  the  United  States,  at  the 
time  he  presented  his  inventory  and  obtained 
his  discharge.  * 

The  compensation  allowed  by  Congress  was 
042 


not  gratuitous,  but  founded  on  a  valid  pre-ex- 
istent  demand.  It  was  an  act  authorizing  the 
settlement  of  the  account  of  the  defendant  for 
his  services  in  the  late  war.  But  the  debts 
and  demands  of  the  insolvent,  as  well  against 
the  public  as  against  individuals,  ought  to  be 
exhibited  and  assigned  for  the  benefit  of  his 
creditors.  The  defendant  must  be  presumed 
connusant  of  this  claim  when  he  obtained  the 
benefit  of  the  Insolvent  Act ;  he  must  have 
had  this  account  against  the  United  States 
for  his  services,  and  it  was  a  fraud  upon  his 
creditors  to  withhold  that  claim,  so  that  he 
might  afterwards  appropriate  the  result  of  it 
to  himself. 

We    are,   therefore,   of    opinion,    that    the 
defendant  take  nothing  by  his  motion. 

LIVINGSTON,  J.,  not  having  heard  the  argu- 
ment of  the  cause,  gave  rio  opinion. 

THOMPSON,   J.,  having  been  concerned  as 
counsel,  gave  no  opinion. 

Motion  denied. 

Cited  in— 2  Cai.,  226;  4  Wend.,  497;  1  Abb.,  315;  19 
Abb.,  431 :  4  Duer,  656 ;  1  Rob.,  145. 


*NASE  e.  PECK. 


[*128 


1.  Writ  of  Right — Issue  on  Question — Evidence. 
2.  Possession — Time — Wrongful  Entry — Pre- 
sumptions. 3.  Evidence  by  Tenant  of  Title  in 
Another  than  Demandant—  Admissibility. 

On  the  issue  on  a  writ  of  rig-ht,  the  only  question 
is,  which  of  the  parties  has  the  better  right;  and  the 
evidence  to  establish  the  right  is  subject  to  the  same 
rules  as  in  other  cases. 

Where  the  ancestor  of  the  demandant  was  in  pos- 
session of  the  premises  in  question,  fifty-one  years 
ago,  and  died  in  possession  forty-one  years  ago.leav- 
ing  the  demandant  his  only  son,  this  was  held  suffi- 
cient evidence  to  rebut  the  presumption  of  right  in 
the  tenant,  arising  from  a  possession  of  thirty-eight 
years  only  commenced  by  wrong.  And  a  patent 
dated  in  1697,  produced  in  evidence  by  the  .tenant, 
not  for  the  purpose  of  deducing  a  title  to  himself, 
but  to  show  a  title  out  of  the  demandant,  was  held 
not  sufficient  to  repel  the  conclusion  in  favor  of  the 
demandant,  as  the  jury  might  presume  a  title  in  the 
ancestor  of  the  demandant,  derived  from  the  patent. 

THIS  was  a  writ  of  right  for  the  recovery  of 
lands  in  Dutchess  County.  The  demand- 
ant counted  on  the  seizin  of  his  father,  Hend- 
rick  Nase,  deceased.  Issue  was  joined  upon 
the  mere  right.  The  cause  was  tried  at  the 
Dutchess  Circuit,  in  September  last,  before 
Mr.  Justice  Radcliff. 

At  the  trial,  it  was  proved  by  the  tenant  that 
Joseph  Harris  was  in  possession  of  the  prem- 
ises thirty -eight  years  ago,  and  improved  them 
as  his  own,  and  continued  in  possession  fifteen 
or  sixteen  years,  and  died  in  possession  ;  that 
his  family  remained  in  possession  two  or  three 
years  afterwards,  when  his  son  Joseph  became 
of  age  and  took  the  exclusive  possession.  From 
him  the  possession  was  regularly  transmitted 
to  the  tenant. 

On  the  part  of  the  demandant  it  was  proved 
that  his  father  was  in  possession  fifty-one 
years  ago,  and  improved  the  premises  as  his 
own  ;  that  he  died  about  forty-one  years  ago, 
in  possession,  leaving  the  demandant  his  only 
JOHNSON'S  CASES,  3. 


1802 


KEMBLE  AND  GOUVERNEUR  v.  RHINELANDER  ET  AL. 


128 


son  ;  that  the  premises  were  vacant  for  two  or 
three  years,  until  the  demandant,  by  his  ten- 
ant, took  possession  of  fifty  acres,  being  part 
of  the  premises ;  and  that  soon  after  Joseph 
Harris  came  into  possession,  and  took  that 
part  of  the  premises  which  had  been  in  the 
occupation  of  the  tenant  of  the  demandant,  by 
cutting  a  possession  fence  around  it. 

The  tenant  then  offered  in  evidence  a  patent 
of  the  Great  Nine  Partners,  dated  27th  May, 
1697,  the  boundaries  of  which,  it  was  alleged, 
included  the  premises.  To  this  proof  the 
demandant  objected,  unless  it  was  intended, 
on  the  part  of  the  tenant,  to  deduce  a  title 
therefrom  to  himself.  This  objection  was 
overruled  by  the  judge,  and  the  patent  was 
read.  The  tenant  did  not  deduce  any  title  to 
himself,  under  the  patent,  but  claimed  to  hold 
under  it. 

1 29*]  *On  this  testimony  the  judge  directed 
the  assize,  that  if  they  believed  the  boundaries 
of  the  patent  included  the  premises  in  question,- 
to  find  for  the  tenant,  and  they  found  a  verdict 
accordingly. 

Mr.  G.  Van  Ness  for  the  demandant. 
Mr.  S.  Thompson,  contra. 

Per  Curiam.  Upon  the  issue  in  this  action, 
the  mere  right  was  in  question  between  the 
parties.  This  principle  we  must  not  lose  sight 
of.  It  is  clearly  and  firmly  established,  as  the 
leading  point  of  inquiry  in  the  writ  of  right. 
The  evidence  requisite  to  establish  this  right  is 
under  the  same  rules  and  regulations  as  in 
other  cases. 

The  possession  of  the  tenant  for  thirty-eight 
years  was,  in  the  first  instance,  evidence  of 
this  right.  This  presumption  of  right  was, 
however,  repelled  by  the  prior  possession  of 
the  ancestor  of  the  demandant,  and  which  was 
attended  with  circumstances  that  rendered  it 
very  high  evidence  of  right.  It  existed  thir- 
teen years  prior  to  the  tenant's  possession.  It 
continued  till  a  descent  was  cast  in  favor  of 
the  demandant ;  it  was  destroyed  by  a  posses- 
sion commencing  on  the  part  of  the  tenant,  by 
abatement  at  least,  if  not  by  disseizin. 

To  encounter  the  conclusion  resulting  from 
the  demandant's  proof,  the  tenant  produced  the 
patent  of  the  Great  Nine  Partners,  dated  up- 
wards of  a  century  ago,  not  to  deduce  a  title 
from  it  to  himself,  but  to  show  a  title  out  of 
the  demandant. 

This  was,  however,  a  departure  from  the 
true  question  between  the  parties,  to  wit,  which 
of  them  had  the  better  right.  If  it  lay  with 
the  tenant  to  show  it,  still  the  direction  of  the 
judge  was  wrong.  The  assize  might  well  have 
presumed  a  title  in  the  demandant,  derived 
from  the  patent,  since  his  ancestor  was  the 
13O*]  occupant,  *and  apparent  owner,  fifty- 
one  years  ago,  and  thirteen  years  prior  to  the 
commencement  of  the  tenant's  tortious  posses- 
sion. This,  at  least,  ought  to  have  been  left  to 
the  assize  for  them  to  presume. 

We  are  of  opinion,  therefore,  that  the  direc- 
tion was  wrong,  and  that  the  finding  of  the 
assize  was  against  evidence,  and  that  a  new 
trial  ought  to  be  awarded. 

LIVINGSTON,  J.,  not  having  heard  the  argu- 
ment, gave  no  opinion. 
JOHNSON'S  CASES,  3. 


THOMPSON,  J.,  having  been  counsel  in  the 
cause,  gave  no  opinion. 

New  trial  granted. 
Cited  in— 2  Wend.,  61. 


KEMBLE  AND  GOUVERNEUR 

v. 
RHINELANDER  ET  AL. 

1.  Marine    Insurance — Capture — Judgment  of 
Foreign   Court — "Prize" — Not    Conclusive — 
'2.     Unlawful  Trade — Penalty  of  Forfeiture 
— Only  Attaches  During  Voyage. 

Insurance  on  cargo,  at  and  from  Surinam  to  a 
port  of  discharge  in  the  United  States.  The  vessel 
was  captured  by  the  British  and  carried  into  Barba- 
does,  and  there  condemned,  with  the  cargo,  as  good 
and  lawful  prize,  and  on  the  ground  of  a  circuitous 
trade  between  Surinam  and  Amsterdam.  It  was 
held  that  the  decision  of  the  Admiralty  Court,  not 
being  conclusive,  there  was  not  sufficient  evidence 
to  warrant  the  condemnation,  and  that  the  insured 
were  entitled  to  recover  for  a  total  loss.  Even  if  a 
neutral  could  not  lawfully  carry  on  a  trade  between 
the  mother  country  of  a  belligerent  and  its  colonies, 
which  was  not  allowed  to  such  neutral  in  time  01 
peace,  yet  the  penalty  of  forfeiture  can  attach  only 
during  the  existence  of  such  unlawful  trade,  which 
cannot  affect  or  vitiate  a  subsequent  lawful  voyage. 

Citations— 2  Johns.  Gas.,  451 ;  8  Term  R.,  562 ;  Puf- 
fendorf ,  torn.  2,  558 ;  Valin.,  torn.  2,  248 ;  1  Black  R., 
313. 

THIS  was  an  action  on  an  open  policy  of  in- 
surance on  the  cargo  of  the  ship  Maria 
and  Eliza,  at  and  from  Surinam,  to  her  port 
of  discharge  in  the  United  States.  The  pre- 
mium was  twelve  and  one  half  per  cent.  The 
policy,  dated  23d  August,  1799,  declared  the 
insurance  to  be  for  account  of  Mungo  Mackay, 
Jun.,  of  Boston.  The  ship  sailed  from  Suri- 
nam, the  10th  August,  1795,  and  was  captured 
the  next  day  by  an  English  ship  of  war,  car- 
ried into  Barbadoes,  and  there  libeled  and 
condemned  as  good  and  lawful  prize  ;  the  ship, 
as  being  adopted  by,  and  sailing  under  the 
special  license  and  protection  of  the  enemies 
of  Great  Britain,  and  the  goods,  as  being  the 
presumed  property  of  the  same  enemies,  and 
as  otherwise  being  both  liable  to  confiscation. 
*The  evidence  offered  consisted  of  [*131 
the  proceedings  against  the  ship  and  cargo,  in 
the  Vice-Admiralty  Court  of  Barbadoes.  The 
captain,  on  his  examination  in  preparatory, 
testified  that  the  ship  and  cargo  belonged  to 
Mungo  Mackay,  Jun.,  of  Boston;  that  the 
cargo,  amounting,  by  invoice,  to  $49,916,  was 
consigned  to  Mackay,  on  his  account  and  risk; 
that  he  was  present  at  the  purchase  of  the  ship 
by  Mackay,  who  had  a  bill  of  sale  of  her, 
dated  in  November,  1796 ;  that  the  witness  had 
made  four  voyages  in  the  ship  between  Boston 
and  Surinam  ;  that  Mackay  had  lived  in  Bos- 
ton twelve  years.  He  further  testified  that 
Mackay  had  been  master  of  the  ship  for  two 
years,  and  had  made  three  voyages  in  her, 
between  Amsterdam  and  Surinam,  in  1795  and 
1796  ;  and  while  Mackay  commanded  her  the 
ship  was  considered  as  a  trading  vessel  between 


NOTE.— Judgment  of  Foreiffn  Court. 

See   Vandenheuvcl  v.    United  Insurance  Co.,   2 


Johns.  Cas.,  451,  and  note. 


043 


131 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


Amsterdam  and  Surinam,  and  once  brought 
out  public  dispatches  from  Holland.  That  the 
ship  was  purchased  by  Mackay  from  citizens 
of  the  United  States,  her  former  owners,  at 
Amsterdam,  where  she  then  lay  in  November, 
1796  ;  and  the  bill  of  sale  was  executed  there, 
in  presence  of  the  American  consul,  one  of 
the  owners  and  partner  in  trade,  then  at  Am- 
sterdam. That  the  cargo  carried  from  Boston 
to  Amsterdam,  in  the  first  voyage,  had  been 
previously  brought  from  Surinam  to  Boston  in 
the  same  ship,  and  part  of  the  cargo  taken  in 
at  Amsterdam,  after  discharging  such  first 
cargo,  was  carried  first  to  Boston  and  then  to 
Surinam ;  and  that  he  believed  Mackay  had 
been  in  the  habit  of  carrying  on  a  trade 
between  Amsterdam  and  Surinam,  by  the  way 
of  Boston  ;  that  the  ship  had  no  greater  privi- 
leges at  Surinam  than  other  neutral  ships,  and 
that  Mackay  had  no  partner  there. 

The  mate  and  supercargo  also  testified  that 
they  believed  Mackay  to  be  the  owner  of  the 
ship  and  cargo. 

The  ship  had  all  the  papers  usually  carried 
by  American  vessels.  The  outward  cargo,  in 
the  last  voyage,  was  purchased  by  Mackay  at 
132*]  Boston,  and  paid  for  by  him,  *and  the 
return  cargo  on  board  at  the  time  of  the  capt- 
ure was  purchased  with  the  proceeds  of  the 
outward  cargo.  At  the  time  of  subscribing 
the  policy,  the  defendants  knew  that  Mackay 
was  a  citizen  of  the  United  States,  residing  at 
Boston  ;  but  no  communication  was  made  to 
them  that  the  ship  had  formerly  been  engaged 
in  trade  between  Holland  and  Surinam,  by  the 
way  of  Boston,  nor  that  she  had  been  pur- 
chased in  Holland. 

Several  documents  annexed  to  the  admiralty 
proceedings  were  also  read  in  evidence.  Those 
which  are,  in  any  way,  material  to  mention 
here,  were,  1.  A  certificate  from  a  colonial 
committee,  at  Amsterdam,  dated  April  24, 
1797,  mentioning  that  the  ship  was  lading  by 
Mackay,  with  articles  for  Boston,  and  from 
thence,  by  such  opportunities  as  Mackay 
should  think  proper,  to  Surinam  ;  and  that 
they  should  avail  themselves,  from  time  to 
time,  of  the  services  of  Mackay,  for  the  re- 
turn cargo,  by  the  way  of  America,  and  testi- 
fying the  great  and  eminent  services  rendered 
by  Mackay  to  the  Batavian  republic. 

2.  A  letter  of  instructions  from  Mackay  to 
Downe,  the  captain,  dated  Boston,  March  28, 
1799,  and  a  letter  from  Holdwilder  &  Co.,  the 
correspondents  of  Mackay,  dated  at  Surinam, 
August  3d,  1799. 

There  was  the  usual  abandonment  to  the 
defendants  ;  and,  at  the  trial,  before  Mr. .Jus- 
tice Kent,  a  verdict  was  found  for  the  plaint- 
iffs, subject  to  the  opinion  of  the  court  on  a 
case  containing  the  facts  above  stated. 

The  cause  was  argued,  at  the  last  term,  by 

Mr.  Hamilton  for  the  plaintiffs,  and 
Messrs.     Pendleton    and    Hanson  for     the 
defendants. 

RADCLIFP  J.  The  insurance  being  for  ac- 
count of  Mr.  Mackay,  Jun.,  of  Boston,  I  con- 
sider as  equivalent  to  a  representation  that  he 
was  the  owner,  and  the  insurance  for  his  bene- 
fit. He  being  an  American,  residing  at  Bos- 
133*]  ton,  *and  so  knowing  to  the  parties,  at 
at  the  time  of  affecting  the  policy,  the  insur- 
644 


ance  is  clearly  to  be  considered  as  made  on 
American  or  neutral  property.  But,  in  conse- 
quence of  the  decision  of  the  Court  of  Errors, 
since  the  argument  of  this  cause,  in  the  case  of 
VandenJieuvel  v.  The  United  Insurance  Com- 
pany (2  Johns.  Cases,  451)  and  other  cases,  the 
sentence  of  the  admiralty,  although  it  should 
be  construed  to  deny  the  truth  of  the  represen- 
tation, cannot  now  be  considered  as  conclu- 
sive of  that  fact.  It  becomes,  perhaps,  a  ques- 
tion of  some  moment  what  is  now  to  be 
deemed  the  effect  of  such  a  sentence.  But 
waiving  this  question,  and  viewing  the  sen- 
tence in  any  light,  and  admitting  the  testi- 
mony on  which  it  was  founded  as  proper  to 
be  received  here,  I  think  the  other  evidence  in 
the  cause  controls  what  appeared  in  the  ad- 
miralty, and  is  decisive  in  favor  of  the  plaint- 
iffs' right  to  recover.  It  is  expressly  proved 
that  the  outward  cargo,  on  the  voyage  from 
Boston  to  Surinam,  was  purchased  at  Boston 
by  Mackay,  and  that  the  return  cargo  insured 
by  the  defendants  was  procured  with  the  pro- 
ceeds of  the  outward  cargo.  It  must,  therefore, 
clearly  have  been  the  property  of  Mackay, 
who  is  an  American.  Nothing  appeared  in 
the  admiralty  that  can  countervail  this  positive 
and  unequivocal  testimony. 

Whether  the  vessel  was  formerly  engaged 
in  a  trade  from  Holland  to  Surinam,  by  the 
way  of  Boston,  cannot,  in  any  way,  be  ma- 
terial to  the  voyage  in  question.  This  was  a 
distinct  enterprise,  originating  in  Boston,  and, 
for  anything  that  appears,  was  finally  to  ter- 
minate there.  Admitting  the  vessel  to  have 
been  formerly  employed  in  illicit  trade,  it 
could  not  effect  the  cargo  on  this  voyage.  In 
the  case  of  Bird  v.  Appleton  (8  T.  Rep.,  562), 
it  was  decided  by  the  Court  of  K.  B.  that  an 
insurance  on  a  vessel  which  had  been  pre- 
viously employed  in  an  illegal  traffic,  and  on  a 
cargo  the  proceeds  of  such  traffic  was  valid. 
It  would  be  attended  with  consequences  most 
extensively  injurious,  if  the  former  conduct 
of  parties  might  thus  be  scrutinized,  and 
*made  the  ground  of  invalidating  a  [*134 
subsequent  insurance.  To  render  an  insur- 
ance void  on  this  ground,  the  illegality  should 
exist  during  the  voyage  insured. 

Besides,  it  does  not  appear  from  the  case 
that  the  trade  from  Holland  to  Surinam  was 
in  fact  illegal,  or  interdicted  by  the  belliger- 
ents. If  it  were  so,  it  can  only  be  noticed 
as  a  fact  of  public  notoriety,  and,  as  such, 
must  have  been  known  to  the  insurers  as  well 
as  the  insured. 

I  am,  therefore,  of  opinion,  that  there  ought 
to  be  judgment  for  the  plaintiffs. 

KENT,  J.  The  declaration  in  the  policy, 
that  the  insurance  was  for  the  account  of 
Mungo  Mackay,  Jun.,  of  Boston,  was  equiva- 
lent to  saying  that  the  cargo  was  his  property. 
The  question,  then,  is,  whether  that  aver- 
ment was  not  supported  by  the  facts. 

It  is,  perhaps,  sufficient  that  the  property 
did  belong  to  Mackay,  even  if  it  were  to  be 
admitted  that  the  property  was  not  enti- 
tled to  the  privileges  of  neutral  property,  in 
respect  to  the  voyage  in  question.  A  war- 
ranty must  be  literally  complied  with,  but 
this  strict  compliance  ought  to  operate  in  fa- 
vor as  well  as  against  the  insured,  whenever 
JOHNSON'S  CASES,  3. 


1802 


VANDERVOORT  ET  AL.  v.  THE  COLUMBIAN  INSURANCE  COMPANY. 


134 


he  can  bring  himself  within  the  terms  of  it. 
But  this  point  is  not  here  material,  for  the 
voyage  was  lawful,  and  Mackay,  in  respect  to 
it,  entitled  to  the  privileges  of  his  neutral  char- 
acter. 

The  condemnation  of  the  ship  and  cargo,  in 
the  Vice- Admiralty  Court  at  Barbadoes,  was,  no 
doubt,  upon  the  ground  that  this  ship  was  en- 
gaged in  a  circuitous  trade  between  Amster- 
dam and  Surinam.  Since  the  decision  of  the 
Court  of  Errors,  in  the  case  of  Vandenheuvel 
v.  The  United  Insurance  Company  (2  Johns. 
Cases,  451),  these  condemnations  are  open  for 
examination,  and  we  are  bound  to  see  whether 
they  are  warranted  by  law.  The  belligerent 
rule  is,  that  a  neutral  shall  not  be  concerned 
in  carrying  on  the  colonial  trade,  between  the 
135*]  mother  country  of  the  enemy  *and  its 
colonies,  which  was  not  permitted  in  the  time 
of  the  previous  peace.  This  rule  first  became 
a  subject  of  interesting  discussion  in  the  war 
of  1756,  though  it  appears  to  have  been  as- 
serted and  practiced  upon  long  before.  That 
England  and  Holland  asserted  it,  as  early  as 
the  beginning  of  the  last  century,  appears 
from  the  letter  of  Puffendorf  to  Groningius, 
which  was  published  in  1701,  and  which  Bar- 
beyrac  has  inserted  in  the  notes  to  his  French 
translation  of  Puffendorf  (torn.  2,  558).  He 
says,  the  English  and  Dutch  declare  that  they 
were  willing  to  leave  to  neutrals  the  commerce 
which  they  were  accustomed  to  carry  on  in 
time  of  peace  ;  but  that  they  ought  not  to  be 
permitted  to  avail  themselves  of  the  war  to 
augment  it,  to  the  prejudice  of  the  English 
and  Dutch.  Puffendorf  admits  that  there  is 
no  absurdity  in  this  declaration,  though  he  is 
evidently  against  it.  The  French  ordinance 
of  1704  (Valin,  torn.  2,  p.  248)  is  bottomed 
upon  the  existence  of  the  same  rule,  and  its 
regulations  are  made  to  inforce  it,  and  to  pre- 
serve to  neutrals  the  same  trade  which  they 
had  been  accustomed  to  enjoy  during  peace. 
In  the  war  of  1756  the  operation  of  this  rule 
awakened  great  attention.  Mr.  Jenkinson,inhis 
"  Discourse  on  the  conduct  of  Great  Britain  in 
respect  to  Neutral  Nations,"  written  in  1757, 
considers  it  as  unjust  and  illegal  for  neutrals 
to  avail  themselves  of  the  pressure  of  war  to 
engage  in  a  new  species  of  traffic  not  permitted 
in  peace,  and  which  the  necessity  of  one 
belligerent  obliges  him  to  grant  to  the  detri- 
ment, or,  perhaps,  to  the  destruction  of  the 
other.  On  the  other  hand,  Hubner,  who  pub- 
lished his  treaties  De  la  saisie  des  Batimens 
Neutres,  in  1759,  says,  he  does  not  see  why 
neutrals  may  not  avail  themselves  of  this  ad- 
vantage presented  by  the  war,  though  he  ad- 
mits that  the  lawfulness  of  this  species  of 
trade  is  a  question  of  some  uncertainty.  In 
the  case  of  Berens  v.  Eucker,  which  came  be- 
fore Lord  Mansfield  in  1760  (1  Black.  Rep., 
313),  the  same  principle,  though  stated  as  a 
136*] particular  case  only,  was  laid  down.  *He 
said  that  if  a  neutral  ship  traded  to  a  French 
colony  with  all  the  privileges  of  a  French 
ship,  it  might  be  looked  upon  as  a  French 
ship,  and  become  liable  to  captuVe.  Since 
that  time,  and  particularly  since  the  year 
1793,  the  subject  has  undergone  much  greater 
research  and  investigation.  To  what  extent 
the  rule  can  now  be  considered  as  legitimate 
is  a  question  not  necessary  to  the  decision  of 
JOHNSON'S  CASES,  3. 


this  case ;  and  none  of  the  decisions  of  Sir 
Wm.  Scott,  though  they  have  given  the  great- 
est practical  illustration  of  the  rule,  go  so  far 
as  to  reach  it.1  Mackay  had  quitted  the 
Dutch  trade  between  the  mother  country  and 
her  colony,  and  had  been  lately  engaged  in 
carrying  on  trade  between  Boston  and  Sur- 
inam. This  particular  voyage  before  us  was 
detached  from  even  a  circuitous  trade  between 
Amsterdam  and  Surinam,  for  the  outward 
cargo  was  purchased  at  Boston,  and,  with  the 
proceeds  of  it,  he  purchased  the  return  cargo. 
The  unlawful  trade  that  Mackay  and  his 
vessel  might  have  been  engaged  in  formerly, 
could  not  vitiate  or  poison  a  subsequent  law- 
ful traffic.  The  penalty  of  forfeiture  could 
attach  only  during  the  existence  of  the  illegal 
trade  ;  the  moment  that  was  abandoned  Mac- 
kay re-assumed  his  neutral  character  and  priv- 
ilege. A  contrary  decision  would  be  exces- 
sively embarrassing  and  mischievous,  and  is 
wholly  inadmissible.  Judgment  ought,  there- 
fore, to  be  rendered  for  the  plaintiffs. 

LEWIS,  Ch.  J. ,  was  also  of  opinion  that  the 
plaintiffs  were  entitled  to  judgment,  and  de- 
livered his  reasons  at  length. 

LIVINGSTON,  J.,  and  THOMPSON,  J.,  con- 
curred. 

Judgment  for  the  plaintiffs. 

Cited  in— 48  N.  Y.,  637:  1  Daly,  18;  2  Duer,  570; 
2  Curt,  613. 


*VANDERVOORT  ET 


[*137 


THE    COLUMBIAN    INSURANCE    COM- 
PANY. 

1.  Commission  —  To  Examine  Witnesses  Abroad 
—  Discretionary.  2.  Nature  of  Evidence  —  and 
Materiality  must  be  shown. 

The  granting1  of  commissions  to  examine  wit- 
nesses abroad,  rests  in  the  sound  discretion  of  the 
court. 

Where  a  motion  was  made,  on  the  usual  affidavit, 
to  examine  the  Portuguese  Secretary  of  State,  at 
Lisbon,  in  an  action  on  a  policy  of  insurance,  where 
the  loss  happened  on  the  coast  of  Brazil,  the  court 
refused  a  commission  unless  the  party  would  dis- 
close the  nature  and  object  of  the  evidence  he 
wished  to  obtain,  and  show  how  it  was  material. 


was  an  application,  in  behalf  of  the 
-     defendants,  for  a  commission  to  be  sent 
to  Lisbon,  to  examine  the  Secretary  of  State 
for  Foreign  Affairs  of  the  Kingdom  of  Portu- 
gal, as  a  witness  for  the  defendants. 

The  motion  was  made  in  due  season,  and 
the  affidavit  on  which  it  was  founded  was  in 
the  usual  form.  It  was  shown  on  the  part  of 
the  plaintiffs,  by  affidavit,  that  the  loss,  which 
was  the  subject  of  the  action,  happened  at 
Para,  on  the  coast  of  Brazil,  in  South  America  ; 
and  by  the  same  deposition,  and  by  a  certifi- 
cate of  the  Portuguese  consul  (admitted  by 
consent),  it  appeared  that  the  Portuguese  sec- 
retary, at  and  long  before  the  time  of  the  loss, 

l._See  1  Rob.  Adm.  Rep.,  296;  2  Rob.  Adm.  Rep., 
101,  142,  153,  368  ;  3  Rob.  Adm.  Rep.,  193,  233  ;  4  Rob. 
Adm.  Rep.,  341  ;  5  Rob.  Adm.  Rep.,  368,  395,  399. 

645 


137 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


and  since,  was  either  at  London  or  in  Portu- 
gal, the  plaintiffs,  therefore,  insisted, 

1.  That  being  remote  from  the  place  of  ac- 
tion, it  was  scarcely  possible  he  could  be  per- 
sonally acquainted  with  any  fact  material  to 
the  defendants'  defense  which  might  not  as 
well  be  proved  by  other  witnesses. 

2.  That  if  he  were  a  material   witneps,  it 
would  be  improper  to  issue  a  commission  to 
examine  him,  because  it  might  involve  an  in- 
quiry into  his  official  concerns,  and  the  af- 
fairs of  his  government,  which  he  ought  not 
and  could  not  be  required  to  disclose. 

Messrs.  Hanson  and  Hamilton  for  the 
plaintiffs. 

Messrs.  Troup,  Hoffman,  and  C.  I.  Bogert, 
for  the  defendants. 

Per  Curiam.  An  application  for  a  commis- 
sion, in  general,  rests  in  the  sound  discretion  of 
the  court,  and  we  ought  to  grant  or  refuse  it,  ac- 
cording to  circumstances,  and  as  it  may  appear 
138*]  essential  to  the  discovery  of  truth,  *or 
to  prevent  delay.  It  is  not,  on  the  general  affi- 
davit, always  a  matter  of  course,  as  it  would 
be  in  the  first  instance,  on  putting  off  a  trial 
on  account  of  the  temporary  absence  of  a  ma- 
terial witness.  The  effect  is  very  different. 
Our  process,  to  obtain  the  testimony  desired, 
is  not  compulsory ;  the  delay  which  it  may 
occasion  must  be  proportioned  to  the  distance 
and  difficulty  of  procuring  it,  and  may  some- 
times hang  up  a  cause  for  an  uncertain  or  in- 
definite period.  Besides,  the  act  places  it 
wholly  in  our  discretion,  and  directs  that  we 
shall  be  satisfied  of  the  propriety  of  the  meas- 
ure. It  is,  therefore,  in  the  first 'instance,  com- 
petent for  the  plaintiff-  to  oppose  the  applica- 
tion, if  he  can  show  reasonable  grounds  on 
which  it  ought  to  be  denied. 

In  the  present  case  the  circumstance  of  the 
witness  being  a  foreign  minister  has  been  much 
relied  upon,  but  that  alone  would  not  be  a 
sufficient  reason  for  refusing  the  application. 
It  would  be  improper  to  attempt  to  examine 
him  in  relation  to  his  official  duty  or  concerns, 
but  he  may  be  a  witness  to  other  facts,  and  to 
such  his  examination  ought  to  be  confined. 
The  interrogatories  to  be  put  to  him  might  be 
regulated  accordingly,  or,  if  improper,  he 
might,  although  he  submitted  to  a  general  ex- 
amination, refuse  to  answer  them.  A  witness, 
although  generally  sworn,  is  in  no  instance 
bound  to  answer  improper  questions,  either  in 
relation  to  himself  or  others.  If  examined 
here  in  court  the  rule  would  be  the  same.  His 
oath  is  always  general,  and  is  understood  to 
be  thus  qualified. 

But  from  the  situation  of  this  minister,  there 
is  great  reason  to  doubt  the  propriety  or  neces- 
sity of  examining  him  as  a  witness.  It  is 
highly  probable  that  he  can,  personally,  know 
nothing  of  the  matters  in  controversy  between 
these  parties.  If  the  object  is  to  prove  by  him 
the  general  laws  of  Portugal  in  relation  to  her 
colonies,  they  may  be  proved  as  facts  by  other 
witnesses,  and  probably  by  some  within  the 
reach  of  our  process,  or  by  others  whose  testi- 
mony might  be  more  easily  obtained.  If  any 
139*]  *private  or  secret  regulations  are  ex- 
pected to  be  discovered  from  his  testimony,  it 
would  be  improper  to  send  a  commission  to 
646 


examine  him  for  that  purpose,  since  it  would 
be  evidently  improper  for  him  to  answer  in- 
terrogatories respecting  them.  If  the  object  is 
to  prove  the  existence  of  any  documents  in  his 
possession,  they  may  be  liable  to  the  same  ob- 
jection, and  we  ought  first  to  be  satisfied  that 
they  do  exist,  and  of  the  purpose  they  are  in- 
tended to  answer. 

There  would  be  no  hardship  on  the  defend- 
ants to  oblige  them,  therefore,  to  disclose  their 
defense  on  an  application  which  is  for  their 
benefit,  and  is  to  delay  the  plaintiffs — the 
terms  of  granting  the  commission  being  wholly 
in  our  discretion. 

On  the  whole,  we  think  that  enough  is 
shown  by  the  plaintiffs,  to  render  the  propriety 
of  issuing  the  commission  doubtful  and  suspic- 
ious, and  it  is  incumbent  on  the  defendants  to 
remove  this  doubt  by  showing  the  particular 
object  of  the  commission,  and  specifying  the 
evidence  they  want  to  obtain,  and  in  what 
manner  it  is  material.  If  they  pursue  the  ap- 
plication, by  doing  this,  we  shall  then  be  better 
able  to  judge  of  'the  propriety  of  granting  it. 
We  are,  therefore,  of  opinion  that  the  appli- 
cation ought  not  to  succeed,  under  the  circum- 
stances which  now  appear.  4 

Motion  denied.1 

Cited  in— 7  Wend.,  514;  Sand.,  688. 


*HUNT  v.  LEON. 


[*14O 


Trespass — Assault  and  Battery — Damages  Un- 
der Five  Dollars — Full  Costs  Discretionary. 

In  an  action  of  trespass,  assault  and  battery, 
where  the  damages  found  by  the  jury  are  under  $5, 
the  judge,  notwithstanding' the  verdict  or  pleadings, 
may,  in  his  discretion,  refuse  a  certificate  to  entitle 
the  plaintiff  to  full  costs,  if  he  is  satisfied  on  the  evi- 
dence that  the  assault  and  battery  were  not  suffi- 
ciently proved. 

Citation— Sess.  24,  ch.  170,  sec.  5-8. 

THIS  was  an  action  of  assault  and  battery, 
in  which  a  verdict  was  found  for  the 
plaintiff  for  one  cent  damages ;  and  the  judge, 
before  whom  the  cause  was  tried,  supposing 
he  had  no  discretion,  granted  a  certificate  to 
give  full  costs,  under  the  statute,  but  which 
he  would  have  otherwise  refused. 

Mr.  M.  Livingston  for  the  plaintiff. 
Mr.  Biker,  contra. 

Per  Oui-iam.  If  an  assault  and  battery  be 
sufficiently  proved,  or  the  title  to  lands  comes 
in  question,  and  it  so  appears  to  the  judge,  he 
is  bound  to  certify,  and  has  no  discretion.  The 
cases  under  the  section  relative  to  wilful  and 
malicious  trespasses,  equally  apply  to  this  sec- 
tion (sess.  24,  ch.  170,  sec.  5-8).  But  neither  the 

1.  On  a  subsequent  day  the  application  for  a  com- 
mission was  renewed,  on  an  affidavit  of  the  defend- 
ants, stating  that  they  expected  to  prove  by  the 
Portuguese  Secretary  of  State,  at  Lisbon,  the  laws 
of  Portugal,  relative  to  the  trade  with  the  Brazils, 
and  an  authentic  copy  of  the  judicial  proceedings  at 
Para,  relative  to  the  brig  Aurora  and  her  cargo, 
seized  for  illicit  trade  with  the  Brazils.  The  coun- 
sel also  exhibited  a  copy  of  a  letter,  proved  by  affi- 
davit, from  the  Portuguese  Secretary  of  State, 

JOHNSON'S  CASES,  3. 


1802 


LEARNED  ET  AL.  v.  DUVAL. 


140 


verdict  nor  form  of  pleading  conclude  the 
judge  ;  and  if,  on  the  evidence,  he  is  not  satis- 
fied that  the  assault  and  battery  were  suffi- 
ciently proved,  he  is  not  bound  to  certify. 

Motion  granted. 


141*]  *LEARNED  ET  AL. 

v. 
DUVAL,  an  Absconding  Debtor. 

Recorder  of  New  York — Acting  as  Commissioner 
— Power  of  this  Court  Over  Proceedings — 
Discretion — Supersedeas — Certiorari. 

This  court  has  the  same  power  over  the  proceed- 
ings of  the  recorder  of  New  York,  while  acting1  as 
commissioner,  as  when  acting-  as  recorder ;  but  they 
will  not  exercise  the  power  where  the  recorder  has 
a  discretion  by  the  act,  and  has  acted  definitively, 
as  in  granting1  a  supersedeas  under  the  act  as  to 
absconding  debtors.  The  regular  course  is  to  bring- 
up  the  proceedings  of  the  recorder,  by  certyorari, 
not  by  an  order  of  this  court. 

MR.  JONES,  in  behalf  of  the  plaintiffs,  pre- 
sented a  petition  to  the  court,  praying  an 
order  on  the  recorder  of  the  city  of  New  York, 
.as  commissioner,  to  return  the  proceedings,  and 
to  set  aside  a  supersedeas  granted  by  him,  under 
the  21st  section  of  the  act  relative  to  abscond- 
ing debtors,  which  was  alleged  to  have  been 
allowed,  after  an  appeal  had  been  interposed, 
and  upon  inadequate  security. 

Mr.  C.  I.  Bogert,  contra. 

Per  Ouriam.  This  court  have  the  same 
power  over  the  recorder,  while  acting  as  com- 
missioner, as  when  acting  as  recorder.  But 
there  can  be  no  use  in  having  the  proceedings 
brought  up  in  this  case.  The  discretion  of  the 
judge  or  commissioner  is  absolute  and  defini- 
tive as  to  the  competency  of  the  security ;  and 
as  a  supersedeas  issued,  by  which  the  property 
was  discharged,  the  act  of  the  recorder  must 
necessarily  be  final.  As  we  could  not  correct 
the  proceedings  in  this  case,  there  would 
be  no  use  in  granting  the  order  prayed  for. 
The  regular  course  of  proceeding  is  not  by  an 
order.  The  proper  mode  of  bringing  up  the 
proceedings  is  by  a  certiorari  directed  to  the 
recorder. 


Motion  denied. 
Cited  in— 16  Johns.,  14. 


*CROWNINGSHIELD  ET  AL.  [*142 

THE    NEW    YORK  'INSURANCE    COM- 
PANY. 

Marine  Insurance — On  Goods — Liberty  to  Touch 
— Deviation  —  Agreement  —  Additional  Pre- 
mium— Deviation  not  to  Prejudice — Action — 
Return  of  Premium — Ground  of  Mistake. 

Where  goods  were  insured  in  1796,  from  Salem  to 
Europe,  and  from  thence  to  the  East  Indies,  and 
back  to  the  United  States,  with  liberty  to  touch, 
stay  and  trade  at  any  ports  or  places  on  the  out- 
ward and  homeward  passages,  &c.  The  ship  sailed 
to  Bordeaux,  and  from  thence  she  went,  succes- 
sively, to  the  Isle  of  France,  Tranquebar,  Pon- 
dicherry and  Madras,  from  whence  she  returned  to 
Pondicherry  and  sailed  thence  to  the  Isle  of  France, 
and  from  thence  in  1797,  back  to  Calcutta,  and  from 
thence  home. 

By  a  memorandum,  written  by  the  insurers  in  the 
margin  of  the  policy,  in  March,  1798,  it  was  agreed, 
for  an  additional  premium  of  ten  per  cent,  paid  by 
the  insured,  the  ship  having  returned  to  the  Isle  of 
France  from  Calcutta,  and  sailed  again  to  the 
coast  of  India,  that  the  same  should  not  pre*""Uce 
the  insured. 

It  was  held  that  the  memorandum  was  an  agree- 
ment by  the  insurer  and  not  a  warranty  by  the 
insured,  and  that  it  covered  all  previous  deviations, 
and  resumed  the  risk  from  the  Isle  of  France  back 
to  the  East  Indies,  and  that  the  insured  were  not, 
therefore,  entitled  to  a  return  of  the  additional 
premium,  on  the  ground  of  a  mistake  in  the  repre- 
sentation as  to  the  actual  deviation  which  had  taken 
place,  and  which  might  not  be  cured  by  the  memo- 
randum. 

THIS  was  an  action  of  ansumpsit,  for  the 
return  of  a  premium  on  a  policy  of  insur- 
ance on  goods  on  board  the  ship  Belisarius, 
"from  Salem  to  one  or  more  ports  in  Europe, 
and  at  and  from  thence,  or  either  of  them,  to 
any  port  or  ports,  place  or  places  in  the  East 
India  or  China  seas,  with  liberty  to  touch,  stay 
and  trade,  at  any  of  the  ports  and  places,  on 
her  outward  and  homeward  passages,  in  port 
and  at  sea,  at  all  times  and  in  all  places,  as 
well  on  this  as  on  the  other  side  of  the  Cape 
of  Good  Hope,  until  her  safe  arrival  at  her 
port  of  discharge  in  the  United  States,  &c. 
The  ship  sailed  in  October,  1796,  from  Salem 
and  arrived  at  Bordeaux ;  from  thence  she 
sailed  to  the  Isle  of  France,  thence  to 
Tranquebar,  thence  to  Pondicherry,  thence  to 
Madras,  from  thence  she  returned  to  Pondi- 
cherry, and  from  thence  sailed  to  the  Isle  of 
France ;  and  in  October,  1797,  sailed  from 
thence  back  to  Calcutta,  where  she  arrived  in 
December,  1797,  and  left  Calcutta,  on  her 
return  home,  in  February,  and  touched  at 
Tranquebar,  the  Isle  of  France,  and  the  Isle  of 
Bourbon,  from  whence  she  sailed  for  America, 
and  arrived  at  Salem,  in  July,  1798. 


NOTE.— Marine  insurance,  return  of  premium. 
See  Holmes  v.  United  Insurance  Co.,  2  Johns.  Cas., 
339,  and  note. 


.stating  his  official  information  as  to  the  case,  and 
an  expectation  of  receiving  the  judicial  proceedings 
from  Para,  &c. 

It  appeared  that  the  action  was  on  a  policy  on  the 
brig  Aurora  and  her  cargo,  from  New  York  to  Rio 
Janeiro,  with  liberty  to  go  to  one  other  port,  on  the 
coast  of  Brazil,  and  back  to  New  York.  The  prop- 
erty was  warranted  "  free  from  any  charge,  damage 
or  loss,  which  may  arise  in  consequence  of  a  seizure 
or  detention,  for  or  on  account  of  any  illicit  or  pro- 
hibited trade,"  &c. 

THE  COURT  (Lewis,  Ch.  J.,  dissenting)  granted  the 
commission,  with  the  limitation  that  it  should  not 

JOHNSON'S  CASES,  3. 


stay  the  proceedings  beyond  the  next  November 
Circuit;   although  Radcliff,  J.,  and  Thompson,  J., 
thought  it  was  not  a  case  strictly  within  the  act,  as 
the  documentary  evidence  did  not  require  a  com- 
mission, and  that  it  was  not  necessary  to  examine  a 
witness  abroad,  as  to  the  laws  of  Portugal.    Kent, 
J.,  was  of  opinion,  since  the  object  of  the  cominis- 
j  sion  had  been  disclosed,  that  it  was  within  the  act, 
!  and  ought  to  be  granted  without  hesitation,  as  the 
!  witness  might  prove  the  laws  of  Portugal,  which 
i  were  stated  to  have  been  fluctuating  during  the  late 
war,  and  might  be  known  only  to  a  person  resident 
in  Portugal. 

647 


142 


SUPREME  COURT,  STATE  OP  NEW  YORK 


1802 


In  March,  1798,  the  following  memorandum 
was  written,  by  the  defendants,  in  the  margin 
of  the  policy.  "The  ship  Belisarius  having 
returned  to  the  Isle  of  France  from  Calcutta, 
and  from  thence  proceeded  again  to  the  coast 
of  India  ;  it  is  agreed,  that  in  consideration  of 
an  additional  premium  of  ten  per  cent.,  hereby 
143*]  *acknowledged  to  be  received,  the 
same  shall  not  prejudice  this  insurance." 

A  verdict  was  taken,  by  consent,  for  the 
plaintiffs,  subject  to  the  opinion  of  the  court 
on  a  case,  containing  the  above  facts. 

The  return  of  the  additional  premium  of  ten 
per  cent,  was  claimed  by  the  plaintiffs,  on  the 
ground  that  the  actual  deviation  was  not 
understood  by  the  plaintiffs,  and  the  agree- 
ment founded  on  a  mistake.  That  the  actual 
was  different  from  the  supposed  deviation, 
and  the  policy  being  avoided  by  the  deviation 
which  took  place  was  not  revived  by  the  memo- 
randum, so  that  the  additional  premium  was 
paid  without  consideration. 

648 


Mr.  C.  I.  Bogert  for  the  plaintiffs. 
Messrs.  Hoffman  and  Hamilton,  contra. 

Per  Curiam.  The  object  of  the  memo- 
randum was  to  cover  all  previous  deviations, 
and  the  ship  was  again  to  sail,  and  the  risk 
was  renewed  from  the  Isle  of  France  back  to 
the  East  Indies,  on  the  same  Her  or  voyage 
described  in  the  policy,  beyond  that  place.  It 
is  not  like  a  warranty  by  the  insured.  It  is  an 
agreement  by  the  insurer,  who,  in  case  of  loss, 
could  not  object  to  pay,  on  the  ground  of  a 
previous  deviation.  The  representation  that 
the  ship  had  before  come  from  Calcutta,  was 
wholly  immaterial  to  the  risk,  and  could  not 
affect  the  interest  of  either  party.  Having,, 
then  run  the  risk  under  the  memorandum, 
the  defendants  are  entitled  to  retain  the 
premium. 

Judgment  for  the  defendants. 

JOHNSON'S  CASES,  3. 


[END  OF  APRIL  TERM.] 


CASES   ADJUDGED 


SUPREME  COURT  OF  JUDICATURE 


STATE   OF   NEW  YOKK, 


IN 


JULY    TERM,    18O3. 


145*] 


*CARPENTER 

0. 
BUTTERFIELD. 


1.  Commencement  of  Suit — What  is  Set-off — 
Purchase  of  Plaintiff's  Note—Before  Arrest — 
Not  Admissible.  2.  Eight  of  Action  Vested — 
Right  to  Recover — What  Acts  can  Deprive. 
3.  Set-off — Must  Exist  at  Commencement  of 
Suit  Fictio  Juris. 

The  issuing  of  the  writ  in  a  cause  is,  for  every  ma- 
terial purpose,  the  commencement  of  the  suit. 

Where  a  defendant,  after  a  writ  issued  against 
him,  of  which  he  had  notice,  and  before  he  was  ac- 
tually arrested,  purchased  a  promissory  note,  made 
by  the  plaintiff,  which  was  indorsed  to  him  for  the 
avowed  purpose  of  setting1  it  off  against  the  plaint- 
iff's demand ;  it  was  held  that  the  set-off  was  not 
admissible.  Where  a  right  of  action  is  vested,  and 
an  action  commenced,  nothing  can  deprive  the 
plaintiff  of  his  right  to  recover,  except  some  act- 
done  by  himself  in  relation  to  that  right. 

A  debt  or  demand,  to  be  set  off  under  the  statute, 
must  be  an  existing  debt  or  demand,  at  the  time  of 
the  commencement  of  the  plaintiff's  suit. 

Citations— 3  Term  R.,  186 ;  Doug.,  112,  note;  Doug., 
106 ;  Doug.,  108  ;  3  Term  R.,  188,  note ;  Barnes,  453 ; 
6  Term  R.,  59 ;  3  Term  R.,  186 ;  3  Term  R.,  509 ;  Co. 
Litt.,  248,  b;  2  Ld.  Raym.,  1527. 

THIS  was  an  action  of  covenant,  on  a  scaled 
note,  dated  the  10th  March,  1797,  by  which 
the  defendant  promised  to  pay  the  plaintiff 
£96  on  the  1st  May,  1798,  &c. 

The  cause  was  tried  at  the  Washington  Cir- 
cuit, in  1801.  The  defendant  offered  in  evi- 
dence, by  way  of  set-off,  a  promissory  note, 
made  by  the  plaintiff,  to  Joseph  Dickson,  or 
order,  and  by  him  indorsed  to  the  defendant, 
for  a  valuable  consideration. 

It  appeared  that  the  under-sheriff  went  to 
the  house  of  the  defendant,  for  the  purpose  of 
arresting  him  on  the  writ,  issued  in  this  cause, 
and  found  the  door  shut,  and  was  informed 
by  the  defendant,  who  knew  the  sheriff  had 
the  writ,  and  had  come  to  arrest  him,  that  he 
would  not  suffer  himself  to  be  arrested,  until 
146*]  he  could  procure  a  *negotiable  note, 
then  in  the  hands  of  Dickson,  to  be  indorsed 
JOHNSON'S  CASES,  3. 


to  him,  which  he  intended  to  purchase  as  a 
set-off  against  the  plaintiff's  demand,  and  that 
as  soon  as  he  could  have  the  indorsement 
made,  he  would  submit  to  an  arrest  and  give 
bail.  The  sheriff  went  away,  and  the  defend- 
ant afterwards  procured  the  note  to  be  in- 
dorsed to  him,  and  gave  bail  in  this  cause. 
On  this  evidence,  the  judge  refused  to  admit 
the  set-off,  and  a  verdict  was  found  for  the 
plaintiff. 

A  motion  was  made  to  set  aside  the  vefdict, 
and  for  a  new  trial,  on  the  ground  of  the  mis- 
direction of  the  judge. 

Mr.  Woodworth  for  the  defendant. 
Mr.  Champlin,  contra. 

THOMPSON,  J.  The  question  submitted  to 
the  determination  of  the  court  in  this  cause  is, 
whether  a  promissory  note,  purchased  by  the 
defendant,  and  indorsed  by  him,  after  the 
issuing  of  the  writ,  and  before  the  return 
thereof,  may  be  set-off,  under  a  plea  of  pay- 
ment, against  the  plaintiff's  demand.  I  con- 
sider the  issuing  of  the  writ  in  a  cause,  as  to 
every  material  purpose  whatever,  the  com- 
mencement of  the  action. 

The  statute  authorizing  a  set-off  declares 
that  if  two  or  more  persons,  dealing  together, 
be  indebted  to  each  other,  and  one  sue  the 
other,  the  defendant  may  set-off  his  demand, 
&c.  On  a  fair  and  reasonable  interpretation 
of  this  part  of  the  statute,  it  would  seem  that 
the  debt  or  demand,  which  the  defendant  can 
set-off,  must  be  an  existing  demand,  in  the 
defendant,  at  the  time  when  the  plaintiff's  suit 
is  commenced.  In  the  present  case  the  note 
was  purchased  by  the  defendant,  after  he 
knew  the  writ  was  in  the  hands  of  the  sheriff, 
and  an  attempt  had  been  made  to  serve  it ; 
and  he  purchased  the  note  for  the  *ex-  [*147 
press  purpose  of  setting  it  off  against  the 
plaintiff's  demand.  It  was  an  act,  therefore, 
not  done  in  good  faith,  and  ought  not  to  be 
tolerated  further  than  the  strict  rules  of  law 
will  require.  The  plaintiff,  when  he  com- 
menced his  suit,  had  a  good  cause  of  action. 


147 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1802 


and  a  legal  and  undeniable  right  to  recover, 
and  to  suffer  the  defendant  to  defeat  that  right, 
by  any  subsequent  collateral  demand,  would 
subject  the  plaintiff  to  the  payment  of  costs, 
for  doing  an  act  which  he  had  a  legal  right  to 
do.  If  the  plaintiff  should,  by  his  own  act, 
after  the  commencement  of  the  suit,  furnish 
the  defendant  with  a  good  defense,  he  may 
plead  it  puts  darrein  continuance.  Though  it 
would  defeat  the  recovery,  and  subject  the 
plaintiff  to  the  payment  of  cdsts,  yet  that 
would  be  a  damage  arising  from  his  own  act, 
pending  the  suit,  and  knowing,  at  the  same 
•time,  that  it  might  affect  that  particular  action. 
As  if  he  should  give  a  release  or  discharge, 
or  accept  a  direct  payment  of  his  demand.  A 
plaintiff  cannot  give  in  evidence,  a  demand 
arising  after  the  commencement  of  his  suit. 
Pleas  of  set-off  are  in  the  nature  of  cross  ac- 
tions. Wherever  there  is  a  plea  of  payment, 
the  time  alleged,  in  all  the  precedents  of  the 
books,  and,  I  believe,  in  universal  practice,  is, 
^'that  before  the  exhibition  of  the  bill,  or  com- 
mencement of  the  suit,  the  defendant  paid," 
«fcc.  If  the  defendant,  on  the  trial,  should 
offer  in  evidence  a  demand  accrued  after  the 
time  laid  in  his  plea,  it  would,  in  my  opinion, 
be  inadmissible  ;  because  the  judgment  could 
not  be  pleaded  in  bar  to  an  action  afterwards 
commenced,  for  the  same  demand,  as  it  would 
appear  to  have  originated  after  the  day  laid  in 
the  record.  No  possible  injury  can  result  to 
the  defendant  from  adopting',  as  the  general 
rule  on  this  subject,  the  one  that  I  have  laid 
down.  He  does  not  lose  his  demand  ;  and  in 
the  case  now  before  the  court  it  is  stated  that 
the  defendant  paid  a  full  and  valuable  consid- 
eration for  this  note;  he,  therefore,  could  have 
had  no  other  object  in  view  than  to  subject  the 
148*]  plaintiff  to  the  payment  of  costs.  *It 
appears  to  me,  that  to  adoot  the  rule  contended 
for  by  the  defendant's  counsel  would  greatly 
embarras  the  circulation  of  this  species  of 
paper,  as  it  would  be  unsafe  for  any  man 
to  commence  an  action  against  another"  while 
he  had  any  paper  afloat  that  would  become 
due  at  any  time  before  it  should  be  neces- 
sary for  the  defendant  to  plead.  If  the  de- 
fendant could,  in  any  way,  have  availed 
himself  of  this  note  as  a  set-off,  he  ought  to 
have  laid  a  day  in  the  plea,  subsequent'to  the 
time  when  the  note  was  indorsed  to  him  ;  and 
such  a  plea,  on  demurrer,  would  have  been 
bad.  The  case  of  Evans  \.  Prosser  (3  Term 
Rep.,  186)  is  in  point,  and  decides  the  whole 
question.  In  that  case,  one  of  the  pleas  was 
' '  that  the  plaintiff,  at  the  time  of  the  plea 
pleaded,  was  indebted,"  &c..  and,  on  demurrer, 
the  court  determined  that  the  plea  was  bad  ; 
that  it  ought  to  allege  that  the  plaintiff,  at  the 
•commencement  of  the  suit,  was  indebted,  <fcc. 
In  that  case,  Mr.  Justice  Buller  takes  notice  of 
the  case  of  Reynolds  v.  Burling  (Doug.,  112, 
note),  in  which  it  is  said,  that  actio  non  goes  to 
the  time  of  plea  pleaded,  and  not  to  the  com- 
mencement of  the  suit,  and  denies  that  such  a 
doctrine  is  maintainable.  The  judgment  of 
the  court  in  Evans  v.  Prosser  clearly  overrules 
the  decision  in  Reynolds  v.  Burling,  and  also  in 
Sullivan  v.  Montague  (Doug.,  106),  so  far  as 
that  case  bears  on  the  present  question,  and 
must  in  my  judgment,  be  considered  as  over- 
turning all  prior  cases  which  appear  to  coun- 


tenance  a  contrary  doctrine.  It  may  be  said 
that  the  statute  of  set-off  ought  to  receive  a 
liberal  construction,  because  it  tends  to  pre- 
vent multiplicity  of  suits  ;  the  argument  has 
weight.  Still  it  is  to  be  observed  that  it  is  not 
compulsory  on  a  party  to  set  off  his  demand. 
He  has  a  right,  if  he  chooses,  to  waive  a  set-off 
and  resort  to  his  action,  and  by  this  means 
to  defeat  all  the  beneficial  effects  of  the  statute 
in  this  respect.  This  statute  ought  not  to  receive 
a  construction  which  tends  in  its  consequences 
to  countenance  fraud  and  unfair  practices,  or 
to  *render  uncertain  the  rights  and  [*14O 
remedies  of  individuals.  Lpon  the  whole, 
therefore,  I  am  of  opinion  that  a  note  indorsed 
to  a  defendant,  after  the  commencement  of  a 
suit  against  him  (and  especially  when  obtained 
for  the  express  purpose  of  defeating  the  action, 
as  in  the  present  case),  ought  not  to  be  ad- 
mitted as  a  set-off ;  and  that  a  new  trial  ought 
not  to  be  granted. 

RADCLJFF,  J.    The  defense  upon  the  note 
purchased,  I  understand,  rests  on  two  grounds. 

1.  That  in  this  case,  and  in  general,  the  or- 
dinarv  proceedings  in  this  court  are  analogous 
to  the  proceedings  by  bill    in  the  K.  B.  in 
England  ;  that  the  capias  is  a  process  to  brin» 
in  the  defendants  merely;    that  the  bill  and 
declaration  are,  in  contemplation  of  law,  the 
same,  and  the  actual  filing  of  the  declaration 
and  not  the  time  of  issuing  the  capias,  is  the 
commencement  of  the  suit. 

2.  That  in  every  case  the  defense  in  the 
plea  relates  to  the  time  of  pleading,  that  the 
general    form    of    pleading    actio    non,  &c., 
shows  that  it  goes  to  that  time  only,  and  not 
to  the  commencement  of  the  suit,  and  that, 
therefore,  it  is  sufficient  if  the  defense  existed 
at  the  time  of  pleading. 

In  relation  to  the  first  ground  of  defense,  it 
is  admitted  that  the  general  practice  of  this 
court  is  borrowed  from  the  K.  B.,  although, 
in  many  respects,  alterations,  according  to 
circumstances,  have  been  gradually  intro- 
duced. Our  proceedings  are,  however,  ordi- 
narily supposed  to  be  by  bill,  but  the  process 
thereon  by  capias  here,  and  by  Bill  of  Middle- 
sex in  England,  are  not  the  same.  The  capias 
is  generally  the  first  process  here,  in  every 
county,  and  runs  in  the  name  of  the  people, 
and  bears  a  teste.  The  Bill  of  Middlesex  is  a 
mere  order  or  command  of  the  court,  and  has 
no  teste,  and  is  confined  to  the  county  in  which 
the  court  sits.  In  every  other  county  a  lalitat 
is  the  first  process,  grounded  on  a  supposed 
previous  return  of  a  Bill  of  Middlesex.  Ad- 
mitting our  practice,  in  general,  to  *be  [*15O 
analogous  to  that  of  the  K.  B.,  it  must  also  be 
admitted  that  the  modern  English  authorities 
consider  the  declaration  as  the  exhibition  of 
the  bill,  and  the  commencement  of  the  suit. 
Still,  I  think  it  would  not  be  difficult  to  show 
that  these  authorities  are  not  strictly  correct, 
and  have  confounded  the  original  bill,  which 
used  to  be  filed,  and  which  is  yet  supposed  to 
be  filed,  before  the  issuing  of  any  process, 
with  the  subsequent  declaration  in  the  cause. 
But  I  conceive  it  unnecessary  to  examine  this 
point,  because  those  very  authorities  admit, 
and  I  take  the  law  to  be  settled,  that,  for 
every  material  purpose,  the  time  of  taking  out 
the  first  process  is  to  be  considered  as  the 
JOHNSON'S  CASES,  3. 


1802 


CARPENTER  v.  BUTTERFIELD. 


150 


actual  commencement  of  the  suit.  With  re- 
gard to  legal  fictions,  it  is  a  general  maxim 
that  in  fictione  juris  semper  subsistit  equitas. 
Wherever  it  may  contribute  to  the  advance- 
ment of  justice,  the  fiction  is  maintained,  but 
is  never  allowed  to  work  an  injury  or  preju- 
dice to  any  party.  For  this  reason,  the  real 
time  of  suing  out  the  Bill  of  Middlesex  or 
latitat  in  England,  and  the  capias  here,  when 
it  becomes  material  to  the  rights  of  either  par- 
ty, is  regarded  as  the  actual  commencement  of 
the  suit.  Thus  to  a  plea  of  the  statute  of  lim- 
itations, the  plaintiff  may  reply  the  actual 
time  of  suing  out  his  bill,  or  latitat,  to  show 
that  his  action  was  commenced  within  the 
period  prescribed  by  the  statute.  So  on  a  plea 
of  tender,  and  in  suits  by  the  assignees  of 
bankrupts,  and  in  all  those  cases  where  the 
right  of  action  is  limited  to  a  short  period, 
both  parties  have  an  equal  advantage  to  show 
the  truth  as  it  substantially  is  ;  and  the  actual 
time  of  suing  out  the  process  is  regarded  as 
the  real  commencement  of  the  suit,  in  opposi- 
tion to  the  general  fiction  of  law.  This  devia- 
tion from  legal  fictions  is  founded  on  a  princi- 
ple which,  from  its  nature,  cannot  be  confined 
to  particular  cases,  and  must  be  applicable, 
whenever  it  becomes  essential  to  the  rights  of 
cither  party.  Testing  the  present  case  by  this 
principle,  the  real  question  is,  whether,  in  jus- 
tice and  sound  legal  policy,  we  ought  not  to 
151*]  abandon  *the  fiction,  and  consider  the 
suing  out  of  the  process  as  the  real  commence- 
ment of  the  action. 

The  plaintiff  here  appeared  in  the  character 
of  a  fair  creditor.  The  defendant  was  justly 
indebted  to  him.  To  recover  his  debt  he  com- 
menced this  action,  and  the  debtor,  aware  of 
the  process,  concealed  himself  to  avoid  the 
service ;  and  afterwards,  to  gain  an  advan- 
tage, and  defeat  the  plaintiff  of  his  action,  he 
purchased  the  note  in  question,  in  order  to 
constitute  a  set-off,  and  then  submitted  to  the 
process.  At  what  time  the  note  became  due 
does  not  appear.  It  being  negotiable,  and  in 
circulation,  the  plaintiff  could  not  know  in 
whose  hands  to  find  it,  unless  it  was  presented 
for  payment.  It  does  not  appear  to  have  been 
presented,  and  the  defendant  kept  it  till  the 
plaintiff  declared  in  the  action,  and  then 
pleaded  it,  by  way  of  set-off,  and  contends 
that,  by  a  fiction  of  law,  he  must  succeed 
and  charge  the  plaintiff  with  the  costs  of  an 
action  justly  and  fairly  commenced.  It  may 
often  happen  that  a  note,  before  it  becomes 
due,  may  be  thus  purchased  and  kept  for  this 
purpose  ;  and  by  a  little  artifice,  every  mer- 
chant may,  in  this  way,  be  exposed  to  be  de- 
feated, in  a  suit  rightfully  commenced,  and 
improperly  subjected,  at  least,  to  the  payment 
of  costs.  I  think  the  fiction  carried  to  this 
extent,  instead  of  being  subservient  to  the  ends 
of  justice,  and  supporting  a  fair  course  of 
dealing, -would  tend  to  injustice,  and  open  a 
door  for  practices  which  ought  not  to  be  en- 
couraged. Whatever,  therefore,  may  be  the 
ficjion  with  respect  to  the  commencement  of  a 
suit  by  bill  in  this  court,  I  think  this  is  one  of 
those  cases  in  which  fair  dealing  and  legal 
policy  require  that  we  should  reject  the  fiction 
and  adopt  the  time  of  suing  out  the  first  pro- 
cess, as  the  actual  commencement  of  the  suit. 

2.  The  second  ground  taken,  by  the  defend- 
JOHNSON'S  CASES,  3. 


ant  is,  that  the  defense  contained  in  every  plea 
relates  to  the  time  of  pleading,  and  that  it  is 
sufficient  if  it  then  exists.  This  position,  in 
many  cases,  is  true ;  but  it  is  not  universally 
so.  It  is  also  true  that  actio  non,  <fec. ,  a.s  stated 
by  Lord  *Mansfield,  in  the  cases  of  [*J52 
Sullivan  v.  Montague  (Doug.,  108),  and  Rey- 
nolds v.  Peering  (3  Term  Rep.,  188,  note),  goes, 
in  all  cases,  to  the  very  time  of  pleading,  and 
not  to  the  commencement  of  the  action ; 
but  this  introductory  form  of  pleading  is  by 
no  means  decisive  of  the  question.  It  is  a 
mere  allegation  that  the  plaintiff  ought  not 
then  to  maintain  his  action  ;  but  the  cause  or 
reason  why  he  ought  not  to  maintain  it,  may, 
consistently  with  this  allegation,  have  arisen 
before  or  after  the  commencement  of  the 
action  ;  and  the  subsequent  form  of  the  plea 
shows  that,  in  general,  it  refers  to  a  time  ante- 
cedent to  the  bringing  of  the  action,  ante  exhi- 
bitionem  bittce,  or  ante  impetrationem  brevis,  and 
not  to  the  precise  time  of  pleading,  or  to  any 
period  after  the  commencement  of  the  action. 
Still  it  may,  in  many  cases,  properly  refer  to 
and  allege  a  time  subsequent  to  the  beginning 
of  the  action,  and  up  to  the  very  time  of 
pleading ;  as  where  the  defense  arises  upon 
some  act  done  by  the  plaintiff  himself,  as  a  re- 
lease made,  or  a  payment  accepted  by  him 
subsequent  to  the  commencement  of  the  suit. 
In  those  and  in  similar  cases,  the  defendant 
may,  in  his  plea,  state  the  real  time,  although 
after  the  action  brought,  and  the  plea  will  be 
good;  or  if  the  matter  of  his  defense  arise 
subsequent  to  his  plea,  he  may  plead  it  puts 
darrein  continuance.  But  in  all  those  cases 
the  matter  of  his  defense  must  arise  from  some 
act  of  the  plaintiff,  done  in  relation  to  the  suit 
or  to  the  claim  on  which  his  suit  is  founded. 
I  am  sensible  that  the  case  of  Reynolds  v.  Beer- 
ing  stands  in  opposition  to  this  distinction.  A 
judgment  obtained  by  the  defendant  against 
the  plaintiff,  after  the  action  commenced,  was 
there  permitted  to  be  pleaded,  by  way  of  set- 
off.  But  that  case  was  overruled  by  the  court 
in  Ecans  v.  Prosser,  and  Mr.  Justice  Buller  ob- 
served, that,  perhaps,  the  court  did  not  con- 
sider the  strict  law  so  much  as  the  justice  of 
that  particular  case,,  and  that  the  point  could 
not  be  supported.  The  propriety  of  setting  off 
a  judgment  obtained  after  action  brought,  and 
the  cases  of  a  *tender,  are  similar  to  [*153 
the  purchase  of  the  note  in  the  present  case. 
They  appear  to  me  to  rest  on  the  same  princi- 
ple, and  I  agree  with  Justice  Buller,  that  the 
propriety  of  such  set-off  cannot  be  maintained. 
The  true  ground  of  the  objection  to  such  a 
defense  is,  that  when  a  right  of  action  is  abso- 
lutely vested,  and  the  action  itself  commenced, 
nothing  can  deprive  the  plaintiff  of  his  right 
to  recover,  except  some  act  done  or  suffered 
by  himself  in  relation  to  that  right. 

I  am,  therefore,  of  opinion  that  the  set-off 
cannot  be  admitted,  and  that  the  plaintiff  is 
entitled  to  judgment. 

KENT,  J.  The  question  is,  whether  a  nego- 
tiable note  purchased  after  writ  was  sued  out, 
and  for  the  express  purpose  of  being  set  off 
against  the  plaintiff's  demand,  can  be  thus  set 
off  ? 

I  have  looked  into  the  English  authorities 
on  this  subject,  and  they  are  found  to  differ. 

651 


153 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1802 


The  first  case  I  have  met  with  is  that  of  Lucax  v. 
Marsh  (Barnes,  453;  Mich.,  18  Geo.  II.),  in 
which  the  court  observed  (although  the  obser- 
vation was  not  material  to  the  point  then  before 
them  )  that  in  case  of  set-off,  where  an  in- 
dorsed note  is  set  off  by  the  defendant  against 
the  plaintiff's  demand,  it  must  be  proved  that 
the  name  of  the  indorser  was  written  before 
plea  pleaded.  This  case,  with  this  opinion  of 
the  court,  was  lately  cited,  with  approbation, 
by  Lord  Kenyon,  in  the  case  of  Dickwn  v.  Ev- 
ans (6  Term  Rep.,  59),  wherein  he  remarks,  also 
(and,  as  it  appears  to  me,  very  incorrectly), 
that  the  cases  which  have  been  decided  on  the 
statutes  of  set-off  are  uniform. 

The  next  case  is  that  of  Sullivan  v.  Mon- 
tague (Doug.,  106),  in  which  a  question  arose 
whether  a  certificate  which  did  not  exist  at 
the  time  of  the  commencement  of  the  action, 
could  be  taken  advantage  of  on  the  general 
issue,  it  going  to  the  merits  of  the  action  ;  and 
the  Court  of  K.  B.  all  seemed  to  agree  that 
154*]  matter  happening  after  *the  beginning 
of  the  suit,  but  before  plea  pleaded,  might  be 
given  in  evidence;  and  Lord  Mansfield  observed 
that  the  words  of  the  plea,  actio  non  habere 
debet,guia,  &c.,  goes  in  every  case,  to  the  time 
of  pleading,  not  to  the  commencement  of  the 
action. 

The  next  case  is  that  of  Reynolds  v.  Beerling 
(Doug.,  112,  note;  3  Term  Rep.,  188,  note  in 
K.  B.,  25  Geo.  III. ),  wherein  the  court  deter- 
mined, on  demurrer,  that  a  judgment  recov- 
ered after  action  brought,  and  before  plea 
pleaded,  might  be  pleaded  by  way  of  set-off. 
But  the  court  said,  they  decided  this  case  on 
the  authority  of  Sullivan  v.  Montague.  Thus 
far  the  decisions  appear  to  have  been  uni- 
formly in  favor  of  the  affirmative  of  the  ques- 
tion before  us.  But  the  case  of  Evans  v. 
Prosser  ( 3  Term  Rep. ,  186 )  is  subsequent  to 
the  others,  and  decidedly  to  the  contrary.  To 
an  action  of  assumpsit,  the  defendant  pleaded 
that  before  and  at  the  t^  3  of  the  plea  pleaded, 
the  plaintiff  was  indebted  to  him  on  a  promis- 
sory note  payable  to  a  third  person,  and  in- 
dorsed to  the  defendant ;  and,  on  demurrer, 
the  court  decided  that  the  case  of  Reynolds  v. 
Beerling  was  not  to  be  supported,  and,  conse- 
quently, that  the  defense  must  relate  to  the 
commencement  of  the  action,  and  judgment 
was  given  for  the  plaintiff. 

This  last  case  was  sanctioned  by  Lord 
Kenyon,  in  the  case  of  Hankey,  &c.,  Assignees, 
&c.,  v.  Smith  &c.  (3  Term  Rep.,  509),  decided 
at  the  same  term.  He  observes  that  the  mutu- 
al credit  in  that  case,  within  the  set-off  act 
was  constituted  by  taking  the  bill  on  the  one 
hand,  and  selling'  the  sugars  on  the  other ; 
though,  if  the  bill  had  come  into  the  defend- 
ant's hands,  ex  post  facto,  as  after  the  action 
was  brought,  it  would  have  been  otherwise. 

From  this  review  of  the  cases  it  will  appear 
that  they  cannot  afford  decisive  ground,  as 
Io5*]  authorities,  for  the  determination  *of 
the  present  action.  The  language  of  our  act 
relative  to  set-off  seems  rather  to  apply  exclu- 
sively to  matter  existing  at  the  commencement 
of  the  suit.  It  says  that  if  two  or  more  per- 
sons dealing  together  be  indebted  to  each 
other,  and  one  of  them  commence  an  action, 
<fcc.  It  seems  to  relate  to  the  situation  of  the 
parties  when  the  suit  is  brought,  and  requires 
652 


that  they  must  then  be  indebted  to  each  other. 
The  doctrine  cannot  universally  be  true,  that 
matter  happening  after  the  commencement  of 
a  suit,  and  before  plea  pleaded,  may  be  set  up 
against  the  plaintiff.  "  If  a  man,"  says  Coke 
(Co.  Litt.,  248  b),  "be  tenant  or  defendant 
in  a  real  or  personal  action,  and,  hanging  the 
suit,  he  entereth  into  religion,  by  this  the  writ 
is  not  abated,  because  it  is  by  his  own  act." 
So  it  has  been  determined  (2  Ld.  Raym.,  1527) 
that  if  a  feme  sole  marry,  after  writ  taken  out 
against  her,  she  cannot  plead  her  coverture, 
and  defeat  the  plaintiff's  writ.  Indeed,  it  is 
agreeable  to  justice  and  sound  principle,  and 
so  I  take  the  rule  to  be,  that  if  a  plaintiff  has  a 
valid  cause  of  action  when  he  commences  his 
suit,  it  shall  not  be  in  the  power  of  the  defend- 
ant to  defeat  the  action,  and  charge  him  with 
costs,  by  an  act  of  his  own  afterwards  and  to 
which  the  plaintiff  is  not  a  party.  In  the 
present  case,  if  the  defendant  was  to  prevail 
it  would  be  by  an  act  done  mala  fide,  for  it  is- 
stated  that  he  purchased  the  note  after  he  had 
knowledge  of  the  commencement  of  the  suit, 
and  for  the  express  purpose  of  defeating  the 
plaintiff's  action.  Such  an  abuse  of  the  set-off 
act  can  never  be  permitted.  The  doctrine  of 
set-off  was  taken  from  the  civil  law,  and  was 
introduced  to  advance  justice  and  prevent  a 
circuity  of  action.  It  was  never  permitted 
for  the  purpose  of  fraud.  Without,  theref ore, 
giving  any  opinion  as  to  the  general  question  v 
whether  matter  arising  after  suit  brought,  and 
before  plea  pleaded,  may  *not  be  [*15C> 
pleaded  or  given  in  evidence,  I  am  satisfied 
that  in  this  case  the  set-off  cannot  be  allowed. 

LEWIS,  Ch.  J.,  and  LIVINGSTON,  /.,  dis- 
sented. 

Motion  denied.1 

Overruled— 6  Hill,  11. 

Distinguished— 82  N.  Y.,  23. 

Approved-40  N.  J.  L.,  287. 

Cited  in— Col.  &  Cai.,  173 ;  2  Johns.,  348 ;  12  Johns., 
181 ;  15  Johns.,  326 ;  17  Johns.,  &5,  347 ;  19  Johns.,  324 ; 
8  Cow.,  205;  3  Wend.,  172;  7  Wend.,  124;  13  Wend., 
496 ;  14  Wend.,  658 ;  19  Wend.,  221,  305 ;  6  Barb.,  506  ; 
7  Abb.  N.  S.,  244 ;  1  Bias.,  265 ;  5  Mason,  213. 


PARAGE  «.  DALE. 

Marine  Insurance  on  Vessel — Capture  —  Re- 
Capture  —  Salvage  —  Bottomry  Bond  —  Sale 
at  Auction  —  Benefit  of  all  Concerned  —  Pur- 
chase by  Captain  —  No  Money  Paid  Down  — 
Abandonment  —  Measure  of  Damages. 

Insurance  on  a  vessel  at  and  from  New  York  to 
Trinidad,  and  at  and  from  thence  to  St.  Thomas. 

The  ship  left  Trinidad  in  ballast,  and  while  in  her 
course  to  St.  Thomas,  she  was  captured  by  the 
French,  and  recaptured  by  an  American  frigate, 
and  carried  into  St.  Christopher's,  where,  by  an 
agreement  with  the  re-captors,  the  ship  was 
appraised  and  one  third  salvage  allowed.  The 
captain  borrowed  $1,030  on  bottomry,  and  paid  8600 
for  salvage,  and  $430  for  expenses  and  repairs.  The 
shin  was  valued  in  the  policy  at  $4,000. 

The  merchants  of  whom  the  captain  borrowed 
the  money  put  up  the  ship  for  sale  at  auction  for 
the  benefit  of  all  concerned,  and  she  was  struck  off 
to  the  captain  at  her  appraised  value,  for  the  bene- 

1.  See  2  Johns.  Rep.,  342,  346 ;  1  Caines,  69 ;  4  East, 
502,  507 ;  Le  Bret  v.  Papillon. 

JOHNSON'S  CASES,  3. 


1802 


FORBES  ET  AL.  v.  CHURCH. 


156 


— T— 

fit  of  all  concerned ;  but  no  money  was  paid  by 
him.  The  ship  sailed  to  St.  Thomas,  and  arrived 
at  New  York  in  safety,  where  the  insured  aban- 
doned for  a  total  loss.  It  was  held  that  the  insured 
had  no  right  to  abandon,  and  that  the  insurer  was 
liable  only  for  the  salvage  and  expenses,  being  the 
amount  of  the  bottomry  bond. 

THIS  was  an  action  on  a  policy  of  insurance 
on  the  brig  Penelope,  at  and  from  New 
York  to  Trinidad,  and  at  and  from  thence  to 
St.  Thomas,  dated  the  6th  September,  1799, 
valued  at  $4,000,  the  sum  insured.  The  Penel- 
ope sailed  on  the  voyage  insured,  arrived  with 
her  cargo  safe  at  Trinidad,  and  left  that  place, 
in  ballast  for  St.  Thomas,  and  on  the  3d  De- 
cember, on  her  passage  to  St.  Thomas,  was 
captured  by  a  French  privateer,  and,  three 
days  after,  recaptured  by  an  American 
frigate,  who  carried  her  to  St.  Christopher's, 
where  she  arrived  on  15th  December.  It  was 
there  agreed  between  the  agent  of  the  United 
States'  ships,  and  the  captain,  that  one  third 
part  of  the  gross  appraised  value  of  the  ship 
should  be  paid  for  salvage,  in  order  that  she 
might  be  ready  to  proceed  with  the  first  con- 
voy, and  the  captain  not  having  any  funds  to 
pay  the  salvage,  and  fit  out  the  brig  for  the 
voyage  to  New  York,  borrowed  of  Gould  & 
Palmer  $1,030.60  on  bottomry.  The  Penel- 
157*]  ope  *was  appraised  at  $1,800,  of  which 
$600  was  paid  for  the  salvage.  It  appears 
that  Gould  &  Palmer  then  put  up  the  brig  at 
auction,  on  terms  purporting  to  be  for  the 
benefit  of  all  concerned,  and  she  was  struck 
off  to  the  captain  at  $4,000,  subject  to 
the  bottomry.  Gould  &  Palmer  gave  the 
captain  a  receipt  for  the  purchase  money,  he 
binding  himself  to  account  with  the  owners 
and  underwriters  and  all  concerned  for  the 
difference  between  the  bottomry  and  the  pur- 
chase money,  no  part  of  the  latter  being  paid. 
The  brig  then  sailed  for  St.  Thomas,  where 
she  was  originally  bound,  and  from  thence  to 
New  York,  where  she  arrived  about  the  mid- 
dle of  January,  1800,  and,  on  the  20th  of  the 
same  month,  the  plaintiff  abandoned  to  the 
underwriters,  and  claimed  a  total  loss.  The 
abandonment  was  refused ;  but  on  the  llth 
February,  the  underwriters  tendered  to  the 
plaintiff  $1,033,  as  the  full  amount  for  which 
they  were  liable,  which  the  defendant  re- 
fused. 

The  defendant  pleaded  the  general  issue, 
and  gave  notice  that  he  should  insist  on  the 
tender,  the  amount  of  which  was  paid  into 
court. 

RADCLIFF,  J.,  delivered  the  opinion  of  the 
-court : 

On  this  case  the  question  is,  whether  the 
plaintiff  is  entitled  to  recover  a  total  or  a 
partial  loss. 

I  cannot  perceive  any  ground  on  which  the 
claim  for  a  total  loss  can  now  be  maintained 
During  one  period  of  the  voyage  the  loss 
might  have  been  considered  as  total,  but  the 
plaintiff,  if  he  knew  the  situation  of  his  ves 
sel,  did  not  act  upon  it,  by  offering  to  abandon 
to  the  underwriters,  as  he  ought  to  have  done 
to  subject  them  to  the  payment  of  a  total  loss 
If  he  did  not  know  of  her  situation  until  he: 
arrival  at  this  port,  the  time  for  abandon 
ment  had  elapsed.  The  advice  of  her  recov 
.  JOHNSON'S  CASES,  3 


jry  was  necessarily  cotemporary  with  the  ad- 
ice  of  her  loss,  and  in  that  situation  he  could 
lave  no  election  to  abandon.  After  her  re- 
capture and  being  carried  *to  St.  [*158 
Christopher's,  it  does  not  appear  that  her  con- 
lition  presented  a  case  for  abandonment. 
She  was  appraised  at  $1,800.  The  amount  of 
he  salvage  was  one  third.  The  additional 
xpenses  for  the  whole  voyage  to  St.  Thomas, 
and  from  thence  to  New  York,  were  $430.60, 
making,  with  the  salvage,  $1,030 .,60.  The  in- 
surance, however,  extended  to  St.  Thomas 
only,  and  the  voyage  from  St.  Christopher's 
o  that  place  is  short,  and  appears,  in  this  in- 
stance, to  have  been  performed  in  three  days. 
Deducting  the  proportion  of  those  expenses 
which  ought  to  be  applied  to  the  voyage  from 
St.  Thomas  to  New  York,  which  was  not  in- 
sured, the  residue  added  to  the  salvage  (ad- 
mitting her  appraisement  at  $1,800  to  be  just) 
would  not  constitute  a  loss  of  half  'her  value, 
and,  therefore,  on  that  ground,  it  is  not  a  case 
of  abandonment. 

I  consider  the  sale  by  Gould  &  Palmer  for 
;he  benefit,  as  it  is  said,  of  all  concerned,  and 
the  purchase  by  the  captain,  as  having  no  in- 
luence  on  this  question.  It  was,  at  best,  an 
die  ceremony,  in  relation  to  the  parties  to 
this  insurance ;  and  if  the  appraisement  was 
;he  criterion  to  regulate  the  salvage,  it  must 
have  been  equally  so  to  every  other  purpose. 

But  there  is  another  ground  which  alone 
is  decisive  against  a  recovery  for  a  total  loss. 
The  voyage  insured  was  wholly  performed, 
and  I  know  of  no  case  in  which  the  insured 
can  abandon  after  the  voyage  is  completed, 
and  he  is  informed  that  it  is  so.  The  object 
of  the  insurance  is  then  at  an  end,  and  if  any 
loss  has  been  sustained  the  parties  must  be 
governed  by  the  circumstances  of  the  case,  as 
they  are  then  found  to  exist.  The  contract  is 
satisfied  if  that  loss  is  paid,  and  it  can,  of 
course,  be  no  other  than  a  partial  loss.  We 
are,  therefore,  of  opinion,  according  to  the 
agreement  of  the  parties,  that  a  nonsuit  must 
be  entered. 

Judgment  of  nonsuit.    ' 
Cited  in— 15  Wend.,  459. 


*FORBES  ET  AL. 
CHURCH. 


[*159 


1.  Marine  Insurance — On  Cargo — Capture  — 
Voyage  Intended  —  Policy  not  Attached.  2. 
Demurrer — To  Evidence  —  Effect  of  .  3.  Wit- 
ness —  Impeachment— By  Party  CaUing  Him. 

Insurance  on  the  cargo  of  a  Prussian  ship,  from 
New  York  to  St.  Andero,  in  Spain. 

The  order  for  insurance  mentioned  that  the  ship 
would  have  a  clearance  for  Hamburg.  In  an 
action  on  the  policy,  the  only  evidence  given  at  the 
trial  was  the  bill  of  lading  and  the  protest  of  the 
captain,  admitted  by  consent.  The  former  stated 
that  the  goods  were  shipped  for  Hamburg,  on 
account  of  persons  in  Stettin;  and  the  captain 
stated  that  the  ship  sailed  from  New  York,  bound 
to  Hamburgh,  and  that  she  continued  in  such  m- 

653 


159 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


tended  voyage  until  being  off  Cape  Ortegal,  and 
meeting  with  contrary  winds  he  resolved  to  put  into 
St.  Andero,  as  safer  than  to  attempt  to  reach  Ham- 
burg, at  that  season,  and  while  proceeding  to- 
wards St.  Andero,  the  ship  was  captured  by  the 
British  and  carried  into  Guernsey.  On  a  demurrer 
to  this  evidence,  it  was  held  that  the  vessel  sailed 
on  a  voyage  for  Hamburg,  and  not  for  St.  Andero, 
and  that  the  policy  not  having  attached,  the 
plaintiff  could  not  recover,  but  was  entitled  only  to 
a  return  of  premium. 

On  a  demurrer  to  'evidence,  every  fact  which  the 
jury  could  legally  infer  from  the  evidence  is  ad- 
mitted by  the  demurrer. 

Citations— Doug.,  119 ;  2  Hen.  BL,  87. 

rpHIS  was  an  action  on  a  policy  of  insurance 
_L  on  the  cargo  of  the  Prussian  ship  De  Hoop, 
from  New  York  to  St.  Andero  in  Spain. 

On  the  trial,  it  was  proved  that  the  defend- 
ant subscribed  to  the  policy  ;  that  the  ship 
was  a  Prussian  ship  ;  that  the  plaintiffs  aban- 
doned their  interest  in  due  time,  after  hearing 
that  the  ship  had  been  captured  by  a  British 
privateer,  and  that  the  broker,  on  affecting 
the  insurance,  showed  his  order  for  that  pur- 
pose to  the  defendant,  which  mentioned  that 
the  ship  would  have  a  clearance  for  Ham- 
burg. A  bill  of  lading  of  the  goods  shipped 
by  the  plaintiffs,  and  signed  by  the  captain, 
was  also  read  in  evidence,  from  which  it 
appeared  that  the  goods  were  shipped  for 
Hamburg,  on  account  of  persons  in  Stettin. 
The  captain's  protest,  taken  under  oath,  be- 
fore a  notary  in  the  Island  of  Guernsey,  and 
which  was  read  by  consent,  also  stated  that 
the  ship  was  bound  from  New  York  to  Ham- 
burg ;  that  she  sailed  on  that  voyage  on  the 
14th  December,  1798  ;  that  after  experiencing 
boisterous  weather,  by  which  the  ship  sus- 
tained some  injury,  and  which  was  repaired 
as  well  as  circumstances  would  admit,  she 
continued  on  her  said  intended  voyage  until 
the  16th  January,  when  she  made  Cape  Or- 
tegal ;  that  on  account  of  contrary  winds,  and 
the  appearance  of  bad  weather,  the  captain 
thought  it  most  advisable  to  put  into  St.  An- 
dero, and  lay  there  at  quarantine,  rather 
than  proceed  to  Hamburg,  where  it  was  prob- 
able, at  that  season,  the  ice  would  occasion 
damage  to  the  ship,  if  not  effectually  pre- 
vent her  from  arriving  there  ;  and  as  the 
1OO*]  *wind  was  favorable  to  proceed  to  St. 
Andero,  he  determined  to  do  so,  and,  on  his 
way  to  that  place,  on  the  17th  January,  after 
making  Cape  Pinas,  he  was  captured  by  a 
British  privateer  and  taken  to  the  Island  of 
Guernsey,  a  distance  of  several  hundred  miles 
north  from  Cape  Pinas.  To  this  evidence  the 
defendant  demurred,  and  the  plaintiffs  joined 
in  demurrer. 


Mr.  Hoffman  for  the  plaintiffs. 
Messrs.  Pendleton  and  Hamilton,  contra. 

"  RADCLIFF,  J.,  delivered  the  opinion  of  the 
court : 

The  rule  as  to  the  construction  of  the 
evidence  upon  a  demurrer  is  well  settled  by 
the  cases  of  Cocksedge  v.  Fanshaw  (Doug., 
119),  and  Gibson  v.  Hunter  (2  Hen.  Bl.,  87). 
The  principles  adopted  in  those  cases  are  so 
obvious  and  just,  that  no  question  can  arise, 
except  on  the  application  of  them.  The  rule 
6*4 


is,  that  every  fact  which  the  jury  could 
legally  infer  from  the  evidence  is  admitted  by 
the  demurrer.1  The  fact  in  question  here  is, 
whether  the  vessel  sailed  on  the  voyage  in- 
sured. If  there  be  any  evidence  to  that  effect, 
or  to  justify  that  conclusion,  the  plaintiffs 
will  be  entitled  to  judgment ;  if  otherwise, 
the  voyage  insured  never  existed,  and  the 
policy  never  attached. 

Were  it  proper  to  travel  out  of  the  evidence, 
and  indulge  conjecture  respecting  the  probable 
intent  of  this  voyage,  considering  the  course 
pursued  in  performing  it,  and  the  geographical 
situation  of  the  vessel  when  captured,  I  might 
be  induced  to  believe  that  her  real  distination 
was  for  St.  Andero,  in  Spain.  But,  judging 
from  the  evidence  alone,  there  is  nothing  to 
warrant  that  conclusion.  At  the  time  of  effect- 
ing the  insurance,  it.  is  true,  the  plaintiffs 
represented  the  voyage,  as  intended  *f  or  [*  1 6 1 
St.  Andero,  and  that  the  vessel  would  at  the 
same  time  have  a  clearance  for  Hamburg. 
But  this  is  evidence  of  intention  merely,  and 
founded  on  the  declaration  of  the  insured. 
Whatever  credit  may  be  due  to  it,  it  is  not 
any  evidence  of  a  voyage  being  actually  under- 
taken, and  pursued  to  St.  Andero.  All  the 
testimony  in  the  cause  relative  to  the  com- 
mencement and  prosecution  of  the  voyage,  goes 
to  prove  the  destination  for  Hamburg.  The 
captain's  protest  states  that  the  vessel  was 
bound  for  Hamburg ;  that  she  sailed  on  that 
voyage  on  the  14th  December,  that  she  con- 
tinued on  that  voyage,  until  the  16th  January, 
when  she  made  Cape  Ortegal,  and  that  on 
account  of  the  state  of  the  winds,  the  appear- 
ance of  bad  weather,  and  the  probability  of 
injury  from  ice,  in  proceeding  immediately  to 
Hamburg  at  that  season,  he  was  induced  to 
put  into  St.  Andero,  and  on  his  way  to  that 
place  he  was  captured.  There  is  not  a  particle 
of  evidence  to  prove  that  the  voyage  was  ever 
undertaken  for  St.  Andero,  but  the  contrary 
is  proved.  There  appears,  therefore,  nothing 
from  which  any  legal  inference  could  be  made 
by  the  jury  that  the  vessel  sailed  on  the  voyage 
insured.  It  is  improper  to  substitute  conjecture 
in  opposition  to  this  proof  ;  and  it  is  incompetent 
for  the  plaintiffs  to  deny  the  whole  tenor  of 
their  own  evidence.  The  captain  is  their  own 
witness  ;  they  cannot  impeach  his  veracity,  and 
without  impeaching  it,  it  is  impossible  to  sup- 
pose that  the  vessel  sailed  for  St.  Andero.  If 
the  plaintiffs  were  permitted  to  impeach  this 
witness,  there  is  no  other  evidence  on  which 
it  could  be  done,  and  they  have  founded  their 
right  of  recovery  upon  his  testimony.  The 
only  legal  inference  that  can  be  made,  there- 
fore, is,  that  the  vessel  sailed  for  Hamburg, 
and  not  for  St.  Andero.  It  follows,  that  the 
policy  never  attached,  and  that  the  plaintiffs 
cannot  maintain  their  action  upon  it.  Still,  as 
the  risk  never  commenced,  and  no  actual 
fraud  appears,  the  plaintiffs,  according  to  the 
former  determinations  of  *this  court,  [*1O2 
are  entitled  to  a  return  of  the  premium,  and 
for  that  only  we  are  of  opinion  they  ought  to 
have  judgment. 

Judgment  accordingly. 


1.— See  1  Johns.  Rep.,  241 ;  5  Johns.  Rep.,  128, 129. 
JOHNSON'S  CASES,  3. 


1802 


DUFF  v.  LAWRENCE  AND  VAN  ZANDT. 


162 


DUFF  t>.  LAWRENCE  AND  VAN  ZANDT. 

1.  Charter  of  Vessel^— Loading  and  Unloading — 
Stipulated  Time — Capture — Release — Refusal 
to  Grant  Entry  Into  Port — Demurrage.  2. 
New  Trial — Mistake  of  Fact  by  Court — New 
Trial — Costs. 

A  ship  was  let  to  freight  for  a  voyage  from  New 
York,  to  Gibraltar,  Cadiz  and  Malaga,  all  or  either  of 
the  said  ports,  at  the  option  of  the  atfreighters.  and  as 
they  and  their  assigns  might  direct;  and  they  were  al- 
lowed forty  working  days  for  unloading  and  loading 
in  Europe,  and  they  covenanted  that  in  case  the  ship 
should,  by  the  order  or  through  any  default,  neglect 
or  delay  of  them,  their  factors  or  assigns,  be 
detained  longer  than  forty  working  days,  for  un- 
loading the  cargo  in  Europe,  to  commence  when- 
ever she  was  ready  to  deliver  her  cargo  at  any  of 
the  said  ports,  and  to  continue  until  she  should 
depart  from  thence,  they  would  pay  the  shipowner 
£5  10s.  sterling  per  day  for  demurrage. 

The  ship  on  her  voyage  was  taken  by  a  British 
cruiser  and  carried  into  Gibraltar  the  16th  May,  and 
was  released,  and  on  the  5th  June,  sailed  for  Cadiz, 
where  she  arrived  the  10th  June,  and  performed 
a  quarantine  of  seven  days.  On  the  21st  June  the 
captain  applied  to  the  custom-house,  but  was 
refused  an  entry  on  the  ground  that  she  had  pre- 
viously been  at  a  British  port ;  but  she  was  under 
no  restraint  of  government,  and  might  have  left 
Cadiz  at  any  time.  After  repeated  applications  by 
the  supercargo,  permission  was  given  to  the  ship  to 
enter  on  the  26th  August,  and  she  then  landed  her 
cargo  and  took  in  another,  with  which  she  arrived  at 
New  York  on  the  28th  September. 

In  an  action  brought  by  the  ship  owner  against 
the  aff  reighters  for  demurrage,  it  was  held  that  the 
prohibition  to  enter  at  Cadiz,  being  permanent  in 
its  nature,  and  the  defendants  having  an  option  to 
go  to  another  port,  and  the  ship  at  liberty  to  sail 
when  she  pleased,  the  detention  afterwards  was  at 
the  instance  and  for  the  benefit  of  the  defendants, 
who  were,  therefore,  liable  for  the  demurrage,  after 
the  expiration  of  the  forty  working  days,  to  com- 
mence from  the  21st  June,  when  the  captain  was 
refused  permission  to  enter. 

Citations— Beawes,  136 ;  8  Term  R.,  259 ;  Abbott, 
338,  343;  Valin.tom.  1,  p.  628;  Pothier,  Trait  Chart. 
Part.,  No.  102 ;  Abbott,  339,  340. 

THIS  was  an  adfton  of  covenant  upon  a 
charter-party  to  recover  damages  for 
demurrage.  The  charter-party  was  dated  20th 
February,  1799.  The  plaintiff  let  to  freight 
to  the  defendants,  the  ship  Liberty,  for  a 
voyage  from  New  York  to  Gibraltar,  Cadiz 
and  Malaga,  and  all  or  either  of  them,  at  the 
option  of  the  defendants,  and  as  might  be 
directed  by  them  or  their  assigns,  and  back  to 
New  York. 

The  charter-party  contained  the  usual  cov- 
enants that  the  ship  should  be  ready  and  sail, 
&c.,  dangers  of  the  sea,  and  the  restraint  of 
princes  and  rulers  excepted.  The  plaintiff  also 
covenanted  that  the  defendants  should  be 
allowed  forty  working  days  in  Europe  to  dis- 
charge, and  load  the  cargoes,  and  fifteen  days 
for  unloading  in  the  port  of  New  York,  and 
the  boats  and  crew  of  the  vessel  should  render 
assistance,  &c.  The  defendants,  on  their 
part,  covenanted  to  pay  for  freight  to  Gibral- 
163*]  tar  and  Cadiz,  *or  either  of  them,  and 
back  to  New  York,  £1,300  sterling,  and  one 
half  of  the  port  charges  at  Cadiz ;  and  that  if 
the  vessel  proceeded  to  Malaga,  to  pay  the 
further  sum  of  £100  sterling,  with  all  the  port 
charges  at  Malaga,  &c.  The  defendants 
further  covenanted  that  in  case  the  ship 
should,  by  the  orders,  or  through  any  default, 
neglect  or  delay  of  the  defendants,  their 
factors  or  assigns,  be  detained  longer  than 
JOHNSON'S  CASES,  3. 


forty  working  days  for  the  discharging  and 
unloading  the  cargo  in  Europe,  to  commence 
whenever  she  was  ready  to  deliver  her  cargo,  at 
any  of  the  said  ports,  and  to  continue  until 
she  was  despatched  from  thence,  they  would 
pay  to  the  plaintiff  for  such  demurrage  at  the 
rate  of  £5  10*.  sterling  per  day,  and  every 
day,  as  the  same  shall  grow  due. 

The  ship  sailed  from  New  York  on  the  15th 
April,  1799,  and  on  the  16th  May  following 
was  taken  by  an  armed  schooner  and  carried 
into  Gibraltar.  On  the  5th  June  following 
the  ship  sailed  from  Gibraltar  to  Cadiz,  and 
arrived  there  on  the  10th.  On  the  1st  day  of 
October  she  sailed  from  thence  for  New  York, 
where  she  arrived  in  December  following. 
Upon  her  arrival  at  Cadiz  the  ship  was  obliged 
to  perform  quarantine  for  seven  days.  She 
might  have  left  Cadiz  when  she  pleased,  there 
being  no  restraint  by  government. 

The  defendants  proved  that  the  ship  arrived 
at  Cadiz  from  Gibraltar  on  the  10th  Juce,  and 
commenced  her  quarantine  on  the  llth,  which 
expired  on  the  18th  of  June.  On  the  21st  of 
June  the  captain  went  to  the  custom-house 
with  his  papers,  and  was  refused  an  entry,  on 
account  of  having  previously  been  at  a  British 
port ;  but  after  repeated  applications  on  the 
part  of  the  supercargo,  permission  was  given 
for  the  ship  to  enter  on  the  26th  August.  She 
then  landed  her  cargo,  took  in  another,  and 
sailed  for  New  York  oh  or  about  the  28th  Sep- 
tember. 

A  verdict  was  taken  for  the  plaintiff,  subject 
to  the  opinion  of  the  court,  on  a  case  contain- 
ing the  above  facts. 

*  Messrs.  Harison  and  Hoffman  for  [*164r 
the  plaintiff. 
Messrs.  Hamilton  and  C.  I.  Bogert,  contra. 

THOMPSON,  J.  On  the  part  of  the  plaintiff, 
it  is  contended  that  the  forty  working  days 
allowed  the  defendants  in  the  charter-party 
commenced  immediately  on  the  arrival  of  the 
vessel  at  Cadiz,  to  wit,  the  10th  of  June.  If 
so,  the  verdict  is  right. 

On  the  part  of  the  defendants,  it  is  con- 
tended that  the  forty  working  days  commenced 
on  the  day  the  vessel  was  admitted  to  enter  at 
Cadiz,  to  wit,  on  the  26th  day  of  August.  If 
so,  the  plaintiff  ought  not  to  recover  anything 
for  demurrage. 

The  principle  question  arising  out  of  this 
case,  for  the  determination  of  the  court,  seems 
to  be  when,  in  contemplation  of  law,  the  forty 
working  days  allowed  the  defendants  in  Eu- 
rope to  unload  and  load  their  cargo  commenced. 
The  vessel  was  chartered  on  a  voyage  from 
New  York  to  Gibraltar,  Cadiz  and  Malaga,  all 
or  either  of  them,  as  might  be  directed  by  the 
defendants ;  and  the  agreement  between  the 
contracting  parties,  as  to  the  commencement 
of  the  forty  working  days,  w^s  that  they  were 
to  begin  whenever  the  vessePwas  ready  to  de- 
liver her  cargo  at  any  of  the  said  ports.  It  be- 
comes material,  therefore,  to  examine  when 
she  might  be  said  to  be  ready  to  deliver  her 
cargo.  The  covenant  and  agreement,  on  the 
part  of  the  owner  of  the  vessel,  is  that  he  will 
carry  and  deliver  the  goods,  unless  prevented 
by  some  of  the  impediments  mentioned  in  the 
charter-party.  There  may,  therefore,  many 

655 


164 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


occurrences  take  place,  and  loss  or  injury  arise 
in  consequence  thereof,  which  were  not  in  the 
contemplation  of  the  parties  at  the  time  the 
charter-party  was  entered  into,  and  of  course 
not  provided  for,  and  which  must  be  borne  by 
them  respectively,  as  it  shall  happen  to  fall ; 
as,  in  the  present  case,  the  damage  sustained 
165*1  in  consequence  *of  this  vessel  being 
obligea  to  perform  quarantine,  ought  to  be 
borne  by  the  owner  of  the  ship  ;  for  it  was  a  tem- 
porary prohibition,  and  in  no  manner  provided 
for  in  the  contract,  and  which  the  ship  owner 
ought  to  submit  to,  without  prejudice  to  the 
freighter.  It  was  the  duty  of  the  captain  to 
remain  at  Cadiz  until  the  quarantine  had  ex- 
pired, if  requested  by  the  freighters,  and  it 
would  have  been  a  breach  of  the  contract  if  he 
should  had  departed  immediately.  But  when 
the  prohibition  is  permanent,  it  cannot  be  the 
duty  of  the  ship  owner  to  detain  his  vessel  any 
length  of  time.  It  would  be  idle,  and  without 
benenUto  the  freighters,  or  any  of  the  parties  | 
concerned.  It  would  be  imposing  unreasonable 
conditions  upon  the  ship  owner,  and  such  as  it 
would  be  impossible  for  him  to  comply  with. 
Under  such  circumstances,  I  should  suppose  it 
would  not  be  a  breach  of  the  contract  if  he 
should  depart  immediately.  The  vessel  could 
not,  in  strictness,  be  said  to  be  ready  to  deliver 
her  cargo  until  she  was  duly  entered,  and  per- 
mitted to  unload  ;  and  had  the  delay  to  enter 
her  been  occasioned  by  the  default  or  neglect 
of  the  captain,  or  by  reason  of  any  temporary 
prohibition,  1  should  be  inclined  to  think  the 
forty  working  days  ought  not  to  commence 
until  after  the  vessel  had  been  entered  and  was 
in  a  capacity  to  deliver  her  cargo.  But  the 
prohibition  here  seemed  to  be  permanent  in  its 
nature.  The  reason  assigned  for  refusing  her 
an  entry  was,  because  she  had  previously  been 
to  a  British  port.  This  reason,  whether  a  good 
one  or  not,  must  always  continue  to  exist,  and 
could  riot  be  removed  by  any  subsequent 
events.  It  amounted  to  a  permanent  prohibi- 
tion ;  and  had  Cadiz  been  the  only  port  of  de- 
livery, I  should  suppose  she  might  have  re- 
turned immediately  without  forfeiting  a  right 
to  freight.  The  supercargo  probably  suppos- 
ing the  objection  to  the  entry  of  the  ship  not 
well  grounded,  was  induced  to  make  attempts 
166*]  to  remove  it,  and,  by  *repeated  appli- 
cations (as  is  expressly  stated)  obtained  per- 
mission to  have  her  entered  at  the  custom-house. 
It  is  here  proper  to  observe  that  those  solici- 
tations were  all  on  the  part  of  the  supercargo, 
not  the  captain.  The  reasons,  probably,  lor 
being  thus  solicitous  to  dispose  of  the  cargo  at  j 
Cadiz,  were  that  if  he  went  to  Malaga  there  | 
was  an  additional  freight  of  one  hundred 
pounds  sterling  to  be  paid.  The  same  objec- 
tion would  doubtless  lie  against  an  entry  at 
Malaga  ;  and,  perhaps,  learning  that  the  mar- 
ket at  Cadiz  was  better  than  at  Malaga,  and 
knowing  also  that  forty  days  were  allowed, 
before  anything  was  payable  for  demurrage, 
he  was  induced  to  make  the  repeated  applica- 
tions which  he  did  to  obtain  an  entry  of  the 
vessel,  and  which,  eventually,  proved  success- 
ful. Under  these  circumstances,  therefore,  I 
think  the  delay  must  be  considered  to  have 
been  at  the  request,  and  for  the  benefit,  of  the 
freighters,  and  that  the  forty  working  days 
commenced  on  the  21st  day  of  June,  being  the 

6S6 


day  the  captain  went  to  the   custom-house  to 
enter  his  vessel  and  was  refused. 

If  demurrage  was  allowed  by  the  jury  for 
the  whole  time  the  vessel  lay  at  Cadiz,  to  wit, 
from  the  10th  of  June  (deducting  forty  days), 
as  appears  to  be  the  fact  from  the  statement  of 
the  case,  then  there  ought  to  be  a  deduction 
from  the  verdict  for  eleven  days. 

LIVINGSTON,  J.,  having  been  concerned  as 
counsel  in  the  cause,  gave  no  opinion. 

RADCLIFF,  J.  From  the  state  of  this  case, 
and  the  course  of  the  argument,  it  appears  that 
the  plaintiff  lays  considerable  stress  on  the  ex- 
pression in  the  charter-party,  that  he  should 
perform  the  voyage  and  deliver  the  cargo,  in 
good  order,  at  the  ports  of  delivery,  the  danger 
of  the  seas  and  the  restraint  of  princes  and 
rulers  excepted.  Hence  it  was  argued  that  the 
detention  at  Cadiz,  previous  to  the  entry  of 
the  vessel,  being  occasioned  by  the  act  of 
*the  government  there,  was  not  imput-  [*167 
able  to  the  plaintiff,  but  an  event  which,  by 
force  of  those  terms  in  the  contract,  ought  to 
render  the  defendants  liable  for  the  demurrage. 
But  it  is  evident  that  this  expression  forms  an 
exception  merely  in  the  covenant  on  the  part 
of  the  plaintiff.  He  engaged  to  peform  the 
voyage,  the  danger  of  the  seas  and  the  re- 
straints of  princes  and  rulers  excepted.  It  is 
an  exception  for  his  benefit.  It  diminishes  the 
extent  of  his  engagement  merely,  and  imposes 
no  obligation  or  responsibility  on  the  opposite 
party.  It  is  to  be  found,  as  of  course,  in  al- 
niost  every  charter-party,  and  can  never  be 
construed  to  extend  farther  than  to  exonerate 
the  master  and  ship  owners  against  the  effects  of 
the  casualties  mentioned  in  it,  and,  therefore, 
can  have  no  influence  on.  the  question  before 
us. 

Another  ground  relied  upon  by  the  plaintiff 
is,  that  by  the  terms  of  twe  charter-party  the 
the  defendants  had  a  right  to  proceed  to 
another  port  (Malaga),  and  ought  to  have  pro- 
ceeded, and  by  not  doing  so,  the  detention  at 
Cadiz  was  imputable  to  them,  and  is  to  be  con- 
sidered as  their  act,  for  which  they  are  re- 
sponsible. It  appears  to  me  a  sufficient  answer 
to  this,  to  say  that  Malaga  is  another  port  of 
Spain,  and  the  same  cause  which  prevented 
the  entry  of  the  vessel  at  Cadiz,  "her  having 
been  in  a  British  port,"  must  equally  have 
operated  to  prevent  her  entry  at  Malaga  ;  and 
that  if  the  defendants  would  otherwise  have 
been  obliged  to  proceed  to  Malaga,  the  experi- 
ment, under  those  circumstances,  must  have 
been  nugatory,  and  therefore  unreasonable. 
But  independent  of  this  observation,  the  de- 
fendants were  not,  by  the  contract,  under  any 
obligation  to  proceed  to  Malaga. 

They  had  a  right  to  go  to  any  one  or  all  of 
the  ports  mentioned  in  the  charter-party,  and 
to  make  their  election.  This  provision  was 
expressly  for  their  benefit,  and  having  elected 
to  proceed  to  Cadiz,  the  outward  voyage  ter- 
minated there.  Besides,  they  could  not  pro- 
ceed to  Malaga  without  paying  an  additional 
freight,  and  it  appears  to  *me  extra-  [*168 
ordinary  to  insist  that,  contrary  to  their  inter- 
est, they  should  be  obliged  to  incur  this  addi- 
tional burden  when  the  option  of  those  differ- 
ent ports  was  granted  them  by  the  contract. 
JOHNSON'S  CASES,  3. 


1802 


DUFF  v.  LAWRENCE  AND  VAN  ZANDT. 


168 


By  this  construction,  their  option  to  go  to  any 
•  of  those  ports,  which  is  an  important  stipula- 
tion in  the  contract,  would  be  wholly  defeated. 
I,  therefore,  consider  their  election  of  the  port 
of  Cadiz  as  properly  exercised,  and  the  case  as 
resting  on  the  same  ground  as  if  the  destina- 
tion had  been  direct  and  solely  to  that  port. 

Placing  these  considerations  out  of  view,  the 
-question  remains,  whether  the  period  of  deten- 
tion at  Cadiz  before  the  vessel  was  permitted 
to  enter,  shall  be  considered  as  part  of  the 
forty  working  days  mentioned  in  the  charter- 
party,  and  entitle  the  plaintiff  to  demurrage 
beyond  that  time.  Demurrage  is  an  allow- 
ance made  to  the  master  of  a  ship,  by  the 
the  freighters,  for  staying  longer  in  a  place 
than  the  time  first  appointed  for  his  departure. 
It  generally  depends  on  positive  contract,  and 
is  inserted  in  the  charter-party  ;  but  it  may  also 
-arise  from  the  customs  or  usages  of  particu- 
lar countries.  In  the  present  case,  being  con- 
tained in  the  charter-party,  it  must  be  gov- 
erned by  the  positive  agreement  between  the 
parties.  The  plaintiff  engaged  to  carry  and 
deliver  the  cargo  at  Cadiz,  and  there  take  in 
.another  cargo.  For  these  purposes,  to  wit, 
for  the  time  to  be  occupied  in  discharging  the 
one  cargo  and  taking  in  another,  he  agreed  to 
allow  the  defendants  the  period  of  forty  work- 
ing days,  and  the  defendants,  if  they  detained 
him  longer  for  those  purposes  agreed  to  pay 
him  the  demurrage.  According  to  the  plain 
sense  of  the  contract,  the  plaintiff,  who  was  to 
•deliver  as  well  as  to  carry  the  goods,  must 
-have  been  in  a  capacity  to  deliver  before  the 
forty  days  could  commence,  and  before  he 
could  claim  the  demurrage.  The  defendants 
were  to  have  forty  working  days,  and  this  ex- 
cludes running  days,  or  days  of  any  other  de- 
scription. If  the  vessel  was  detained  by  the 
169*]  orders,  default,  neglect  or  delay  *of  the 
defendants,  beyond  those  working  days,  for 
the  purpose  of  discharging  and  unloading  the 
cargo  in  Europe,  to  commence  whenever  she 
was  ready  to  deliver,  then  the  demurrage  was 
to  accrue.  It  could  in  no  other  event  accrue, 
according  to  the  terms  of  the  contract.  I  do 
not  mean  to  be  understood,  that  the  plaintiff 
obligated  himself  by  the  contract  to  obtain  the 
entry,  nor  to  express  an  opinion  whether  he 
would  be  entitled  to  freight.  These  are  dis- 
tinct questions  from  the  claim  of  demurrage. 
The  inability  to  enter  was  not  the  fault  of 
either  party,  but  the  demurrage  always  pro- 
ceeds upon  the  idea  of  a  default,  in  not  being 
prepared  at  the  time  stipulated  for  that  pur- 
pose. Here  was  no  default,  and  the  contract 
does  not  extend  to  the  case  of  a  detention  for 
this  cause.  The  truth  is,  that  neither  party, 
in  framing  the  charter-party,  contemplated 
the  event  which  happened.  The  prohibition 
took  place  subsequent  to  the  voyage  com- 
menced, and  it  was  not  anticipated  nor  in- 
cluded within  any  of  the  provisions  of  the  con- 
tract. Not  being  within  the  covenant  on  the 
part  of  the  defendants,  the  plaintiff  cannot 
recover  as  for  demurrage  on  the  covenant.  If 
he  has  any  remedy,  it  must  be  in  a  different 
shape.  But  I  think  he  is  not  entitled  to  re- 
cover in  any  form  of  proceeding.  Although 
we  have  no  adjudged  case  on  this  question, 
we  find  it  laid  down  in  Beawes,  136,  who,  on  a 
subject  of  this  nature,  is  an  authority  entitled 
.JOHNSON'S  CASES,  3.  N.  Y.  REP.,  BOOK 


to  some  respect.  1st.  That  "if  before  the  de- 
parture of  the  ship  there  should  happen  an 
embargo,  occasioned  by  war,  reprisals,  or  oth- 
erwise, with  the  country  to  which  the  ship  is 
bound,  so  that  she  cannot  proceed  on  her  voy- 
age, the  charter-party  shall  be  dissolved,  with- 
out damages  or  charges  to  either  party,  and 
the  merchant  shall  pay  the  charges  of  unlad- 
ing his  goods."  2d.  "  If  the  port  be  only  shut 
and  the  vessel  stopped  for  a  time,  the  charter- 
party  shall  be  valid,  and  the  master  and  mer- 
chant shall  be  reciprocally  obliged  to  wait  the 
opening  of  the  port,  and  the  *liberty  [*17O 
of  the  ship,  without  any  pretensions  for  dam- 
ages on  either  side." 

Whether,  in  this  instance,  the  prohibition 
was  permanent,  or  admitted  of  exceptions, 
does  not  absolutely  appear.  The  order  to  re- 
fuse an  entry  to  all  vessels  coming  from  British 
ports,  might  or  might  not  be  unlimited  in 
point  of  time.  It  is  not  probable  that  it  was 
unlimited  with  regard  to  neutral  vessels,  com- 
ing from  such  ports,  nor  that  it  applied  indis- 
criminately to  vessels  carried  in  by  force,  and 
in  consequence  of  a  capture,  as  well  as  to  oth- 
ers. This  case,  from  its  nature,  must  have 
formed  a  reasonable  exception,  and  it  appears 
that  the  parties  themselves  viewed  it  in  that 
light,  for  they  continued  to  repeat  their  efforts 
to  obtain  permission  to  enter,  and  finally  suc- 
ceeded. Their  conduct  affords  decisive  proof 
that  the  prohibition  was  not  permanent,  or  did 
not,  in  its  just  construction,  apply  to  their 
vessel  in  her  peculiar  situation  ;  and  I  think  it 
ought  clearly  to  appear  to  be  a  case  of  perma- 
nent and  absolute  prohibition,  before  we 
should  consider  it  as  such,  and  absolve  the 
parties  from  the  obligation  of  their  contract. 
According  to  the  spirit  of  the  authority  from 
Beawes,  so  long  as  there  appeared  a  reason- 
able prospect  of  success,  it  was  the  duty  of 
both  parties  to  persevere,  and  neither  could 
claim  damages  from  the  other.  It  is  unneces- 
sary to  examine  what  would  have  been  their 
respective  rights  and  duties,  if  the  prohibition 
had  been  decisive  and  permanent,  without  any 
rational  ground  to  hope  for  an  entry.  From 
the  conduct,  of  the  parties,  we  must  suppose 
the  case  afforded  a  reasonable  expectation  of 
success  ;  and,  considering  it  as  independent  of 
the  covenant  or  charter-party,  I  think  the 
rule  from  Beawes  ought  to  be  adopted,  as 
founded  in  reason  and  justice,  and  a  due  re- 
gard to  the  rights  of  all  concerned.  In  the 
case  of  Hadley'v.  Clark  (8  Term  Rep.,  259),  it 
was  held  that  an  embargo,  until  the  further 
order  of  council  (terms  *equally  unlim-  [*  1 7 1 
ited)  was,  from  its  nature,  but  a  temporary 
interruption,  and  did  not  dissolve,  but  merely 
suspended  the  contract  between  the  parties ; 
and  even  after  two  years,  when  the  embargo 
was  taken  off,  the  ship  owner  was  held  an- 
swerable to  the  merchant  for  the  nonperform- 
ance  of  his  contract.  In  that  case,  as  there 
was  no  provision  in  the  contract  to  regulate 
the  conduct  of  the  parties  in  relation  to  such 
an  impediment,  the  court  held  that  the  inter- 
ruption not  being  in  its  nature  permanent, 
they  were  bound  to  enforce  the  contract,  how- 
ever hard  it  might  be,  and  that  none  but  the 
parties  themselves  could  dissolve  it.  (See, 
also,  Abbott,  338,  343 ;  Valin,  torn.  1,  p.  628  ; 
Pothier,  Trait.  Chart.  Part.,  No.  102.) 
1.  42  657 


171 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


The  priiiciple  of  this  case  applies  to  the 
present,  and  supports  the  doctrine  on  which  I 
rely.  I  therefore  think  that  the  plaintiff  is 
not  entitled  to  recover,  on  any  ground,  and,  of  j 
course,  that  there  ought  to  be  a  new  trial. 


KENT,  J.  The  question  appears  to  me  to  be 
attended  with  some  difficulty,  though  I  incline 
to  think  there  are  principles  to  be  met  with  on 
the  subject,  which  will  enable  us  to  decide 
with  safety,  under  the  particular  cicumstances 
of  this  case. 

The  defendants  had  the  option  of  three 
ports  in  Europe,  to  which  to  go  and  discharge 
their  cargo,  and  they  elected  Cadiz.  Their 
rights,  after  such  election,  will,  in  many  re- 
spects, be  as  perfect  as  if  but  one  port  was 
mentioned  in  the  contract ;  and  yet,  if  a  per- 
manent impediment  arises  before  that  port, 
and  they  have  an  election  to  go  to  another,  and 
still  persist  at  the  prohibited  port,  it  alters, 
very  much,  the  nature  and  equity  of  the 
transaction,  in  respect  to  a  compensation  in 
damages  by  the  owner  of  the  ship. 

I  consider,  in  the  first  place,  that  the  prohi- 
bition here  mentioned  was  permanent  in  its 
nature ;   as  much  so  as  hostilities,  or  a  total 
prohibition  of  commerce  at  the  port ;  because, 
the  reason  of  prohibition  was  founded  upon 
172*]  the  *existing  war.     It  grew  out  of  the 
war,  and  there  was  every  other  reason,  at  the 
time,  to  conclude  it  would  be  co-existent.     It 
was  because  the  vessel  had  been  at  a  British,  i 
or  in  other  words,  an  enemy's  port.      It  could  j 
hardly  be  considered  in  the  light  of  an  embar-  j 
go,  which  is  taken  universally  to  mean  only  a  | 
temporary  restraint.  Hostilities,  say  the  books,  i 
dissolve  those  kind  of  contracts ;   because  no 
person  can  foresee  the  termination  of  hostili- 
ties ;  but  embargoes  do  not,  as  they  are  only 
temporary  restraints.      (Abbott,  340.)     That 
the  prohibition,   in  the  present  instance,  in 
fact,  terminated  in  a  few  months,  makes  no 
alteration  in  the  case ;   for  war  might  equally 
have  terminated  in  that  time.     It  is  the  nature 
of  the  prohibition,  at  the  time  it  is  met  by  the 
merchant,  and  the  conclusion  that  might  ra- 
tionally be  drawn  from  it,  that  distinguish  the 
cases. 

If,  therefore,  the  prohibition  in  question  had 
arisen  from  our  own  government,  either  before 
or  after  the  commencement  of  the  voyage,  it 
would  have  dissolved  the  contract.1  (Abbott, 
338,  339.)  But  as  it  arose  from  the  government 
of  another  country,  it  does  not  dissolve,  nor 
absolutely  excuse,  the  performance  of  the  con- 
tract ;  because  the  laws  of  one  nation  do  not 
give  effect  to  the  positive  institutions  of  anoth- 
er inconsistent  with  its  own.  (Abbott,  340.) 

Here,  then,  are  two  important  ingredients  in 
the  present  case  ;  1.  The  merchant  had  reserved 
to  himself  an  option  to  go  to  another  port, 
and  he  chooses  to  remain  at  this ;  2.  The  ves- 
sel was  not  permitted  to  enter,  by  a  prohibition 
permanent  in  its  nature  ;  I  may  add,  3.  That 
although  the  vessel  was  at  liberty  to  depart, 
the  defendants  preferred,  under  these  circum- 
stances, to  detain  her  for  their  benefit.  How 
long  she  might  be  so  detained  was  altogether 


1.— See  M'Bride  v.  The  Marine  Insurance  Com- 
pany, 5  Johns.  Rep..  399. 

«58 


uncertain,  because  no  person  could  foresee 
when  the  prohibition  would  cease.  And,  in 
such  a  case,  with  a  choice,  and  an  ability  on 
the  part  of  the  defendants  to  go  to  another 
port,  and  with  such  an  impediment  *be-  [*  1 7  3 
fore  them,  if  they  continued  at  Cadiz,  I  think 
it  equitable,  at  least,  that  they  should  pay  de- 
murrage when  they  preferred  to  detain  the- 
vessel  there.  They  ought  not  to  be  permitted 
afterwards  to  say  that  the  vessel  was  not  ready 
to  deliver  her  cargo.  The  contract  would  not 
have  mutuality,  if  the  defendants  could  detain 
the  vessel  against  such  an  indefinite  prohibi- 
tion, or  go  to  another  port,  as  they  pleased,  and 
yet  make  the  plaintiff  no  compensation  for  the 
detention.  It  appears  to  me  this  would  not  be 
just ;  and  is,  therefore,  not  the  sound  construc- 
tion of  the  contract. 

The  plaintiff,  by  the  terms  of  the  contract, 
was  excused  on  his  part  from  delivering  the 
cargo,  by  the  restraint ;  and  it  was  observed, 
upon  the  argument,  that  an  excuse  to  the  one 
party  ought  not  to  be  the  basis  of  an  action 
against  the  other.  But  his  excuse  is  not  the 
basis  of  the  action.  The  action  is  founded  on 
the  act  of  the  defendants,  in  detaining  the 
plaintiff,  in  the  face  of  the  prohibition ;  and 
when  they  had  at  the  time  a  stipulated  liberty, 
and  the  vessel  a  permission,  to  go  to  a  neigh- 
boring port.  If  the  defendants  had  the  author- 
ity contended  for,  I  do  not  see  where  the 
proposition  would  be  limited.  They  might 
have  kept  the  vessel  there  until  the  end  of  the 
war,  if  the  restraint  had  lasted  so  long.  This 
abuse  of  the  contract  cannot  be  admitted  ;  and 
I  conclude  that  the  forty  working  days  com- 
menced as  soon  as  the  refusal  to  enter  was 
made  known  to  the  defendants,  and  they 
elected  to  remain  there  notwithstanding. 


LEWIS,  Cli.  J.,  was  of  the  same  opinion. 


N.  B.  After  the  opinion  of  the  court  wa«^ 
given,  the  counsel  for  the  defendants  stated 
that  the  court  had  relied  on  a  fact  which  they 
could  have  shown  did  not  exist,  viz.,  the  per- 
manency of  the  prohibition ;  and  as  they  did 
not  apprehend  that  it  would  have  been  mate- 
rial, they  prayed  a  new  trial,  in  order  to  explain 
that  fact,  and  *read  affidavits  to  that  [*1  74 
effect.  The  court  considering  the  fact  material, 
and  that  the  defendants  had  been  surprised,  as 
to  the  point,  stayed  the  entry  of  this  judg- 
ment, and  granted  a  new  trial,  on  the  payment 
of  costs. 

On  the  second  trial  of  the  cause  it  was  proved, 
by  parol  evidence,  that  the  prohibition  was 
general  and  unlimited ;  and  the  jury  having 
found  a  verdict  for  the  plaintiff,  a  motion  was 
made  to  set  aside  the  verdict.  On  the  second 
argument  the  judges  adhered  to  their  opinions, 
as  above  stated  ;  the  judgment  was  given  for 
the  plaintiff  in  November,  1803. 


Judgment  for  the  plaintiff. 


Approved— 2  Ben..  343. 

Distinguished—  Hill  &  D.,  53;  8.  C.,  3  Le*.  Obs..  9. 

Cited  in— 4  E.  D.  Smith,  73 ;  2  Ben..  340. 

JOHNSON'S  CASES,  3- 


1802 


DENN,  EX  DEM.  C.  R.  GOLDEN,  v.  CORNELL. 


174 


DENN,  ex  dem.  C.  R.  COLDEN, 

v. 
CORNELL. 

Witt — Devise — Evidence    of— Previous     Convey- 
ance— Estoppel  of  Heirs  by  Language  of  Witt. 

A.  by  his  will  and  testament,  among'  other  things, 
devised  as  follows :  "And  whereas  I  have  conveyed 
to  my  son  C.  my  lands  at  C.,  and  to  my  son  D.  my 
lands  at  F.,  I  give  and  devise  all  my  remaining-  lands 
and  tenements,  and  real  estate  whatsoever,  to  my 
sons  C.  and  D.  and  my  daughter,"  &e. 

It  was  held,  that  the  recital  in  the  will  was  evi- 
dence of  a  conveyance  of  the  farm  in  F.  to  D.,  and 
that  C.  as  heir  of  the  testator  was  estopped  by  the 
recital  to  deny  that  theifarm  was  conveyed  to  D., 
and  that  the  necessary  intendment  from  the  lan- 
guage of  the  clause  in  the  will  was,  that  it  was  a 
conveyance  in  fee  to  D. 

Citations— 1  Salk.,  286 ;  6  Mod.,  44 ;  8  Mod.,  33,  34 ; 
Dyer,  169 a;  1  Mod.,  113;  Willes'  Rep..  Ill;  Co.  Litt., 
352  b;  Roll.  Abr.,  870,  872;  Cro.  Eliz.,  756,  757; 
Styles,  103. 

THIS  was  an  action  of  ejectment  for  a  farm 
called  Spring  Hill,  in  Flushing,  in 
Queen's  County. 

The  plaintiff  proved  that  John  Willett  was 
long  ago  seized  of  the  premises,  and  that,  on 
the  12th  May,  1762,  they  were  conveyed  by 
him  and  Thomas  Willett  to  Lieutenant-Gov- 
ernor  Cadwallader  Colden,  who  was  seized 
thereof  from  that  time  to  his  death,  in  Septem- 
ber, 1776,  and  the  lessor  of  the  plaintiff  de- 
duced a  title  from  him,  as  heir-at-law. 

The  defendant  gave  in  evidence  the  will  of 
Lieutenant-Governor  Colden,  dated  20th  May, 
1775,  in  which  there  was  the  following  clause  : 
"And  whereas  I  have  conveyed  to  my  son  Cad- 
wallader, my  lands  at  Coldenham,  and  to  my 
son  David,  my  lands  in  the  township  of  Flush- 
ing, I  give  and  devise  all  my  remaining  lands 
and  tenements,  and  real  estate  whatsoever,  to 
my  sons'  Cadwallader  and  David,  and  to  my 
daughter,"  &c.  At  the  conclusion  of  the  will 
were  these  words  :  "And  before  the  sealing 
and  publishing  of  this  my  will,  and  to  prevent 
any  misunderstanding,  I  declare  that  the  ex- 
1 7  o*]penses  of  *supporting  my  family  includ- 
ing my  son  David,  his  wife  and  children,  and  of 
the  improvements  of  the  farm  at  Spring  Hill, 
has  been  paid  during  my  life,  or  shall  be  paid 


NOTE.— Recitals— Estoppel. 

As  a  general  rule  all  parties  to  deeds  and  their 

Crivies,  and  parties  claiming  under  wills,  are  bound 
y  recitals  contained  in  them — see  Greenleaf  on  Ev., 
Vol.  I.,  sec.  23,  note  (in  which  this  case  is  discussed), 
and  authorities  there  cited ;  Nash  v.  Turner,  1  Esp.,  i 
217 ;  Bowman  v.  Taylor,  2  Ad.  &  Ell.,  278 ;  Lanison 
v.  Tremere,  1  Ad.  and  Ell.,  792 ;  Stow  v.  Wyse,  7 
Conn.,  214 ;  Douglass  v.  Scott,  5  Ohio,  194 ;  Byrne  v. 
Moorehouse,  22  111.,  603 ;  Crane  v.  Morris,  6  Pet.,  598;  ! 
Torrey  v.  Bank  of  Orleans,  9  Paige,  649 ;  Rossel  v. 
Wickham.  36  Barb.,  386;  Jefferson  v.  Howell,  1 
Houst.  (Del.),  178;  Allen  v.  Allen,  45  Pa.  St.,  468; 
Wilson  v.  Land  Co.,  77  N.  C.,  445;  Buchanan  v. 
Kimes,  58  Teun.,  275;  Knight  v.  Thayer,  125 
Mass.,  25;  American  Bank  v.  Banks,  101  U.  8., 
240;  Esterbrook  v.  Savage,  21  Hun.,  145;  Root  v. 
Wright,  21  Hun.,  344;  Morris  v.  Daniels,  35  Ohio  St., 
407 ;  Welsch  v.  Belleville  Savings  Bank,  94  111.,  191 ; 
Farra  v.  St.  C.  Coll.,  16  Eq.,  24;  Re  Smith,  2  J.  &  H., 
594 ;  Sherratt  v.  Oakley,  7  T.  R.,  492 ;  Smith  v.  Fitzger- 
ald, 3  V.  &  B.,  2 ;  Quihampton  v.  Garing,  24  W.  &  R., 
917 ;  Nugent  v.  Nugent,  I.  R.  8  Eq.,  78 ;  Ives  v.  Dod- 
son,  9  Eq.,  401 ;  Aird  v.  Quick,  12  Ch.  D.,  291. 

The  government  is  estopped  by  recitals  in  statutes 
and  public  documents.  See  Greenleaf  on  Ev.,  Vol. 
I.,  sec.  491,  and  authories  there  cited. 

JOHNHON'S  CASES,  3. 


out  of  my  estate;  and  that  no  part  thereof 
shall  be  chargeable  to  my  son  David."  This 
will  was  republished  on  the  7th  August,  1776. 

The  defendant  gave  in  evidence  the  act  of 
attainder  of  David  Colden,  and  deduced  a  title, 
in  pursuance  thereof,  under  the  State. 

He  further  proved  that  David  resided  on  the 
premises  with  his  father  for  some  years,  and 
that  after  the  death  of  the  testator  he  contin- 
ued thereon,  using  the  land  as  his  own,  until 
he  left  the  State,  in  the  years  1783 ;  that  the 
lands  at  Coldenham  were  held  by  Cadwallader, 
the  devisee,  during  his  life,  as  his  own,  and  by 
his  widow  and  children,  as  their  own,  since 
his  death. 

The  plaintiff  then  proved,  by  two  witnesses, 
who  resided,  the  one  in,  and  the  other  near,  the 
family  of  Lieutenant-Governor  Colden,  that 
they  understood  from  him,  and  from  David 
and  his  wife,  that  David  was  to  have  no  more 
than  a  life  estate  in  the  premises,  and  that 
Cadwallader  was  to  have  the  remainder  in  fee. 

On  these  facts,  a  verdict  was  found  for  the 
defendant.  A  motion  was  made  on  the  part 
of  the  plaintiff  to  set  aside  the  verdict,  and  for 
a  new  trial. 

Messrs.  Colden  and  Troup  for  the  plaintiff. 
Messrs.  Jones  and  Riggs,  contra. 

KENT,  J.,  delivered  the  opinion  of  the  court: 

This  case  was  brought  before  the  court  on  a 
former  occasion.  A  verdict  had  been  found 
for  the  plaintiff,  on  evidence  to  the  same  effect 
as  that  contained  in  the  present  case,  except 
that  there  is  now  the  additional  testimony  of  the 
two  witnesses  who  resided  in  or  near  the" family 
of  the  testator.  The  court  awarded  (April 
Term,  1801)  a  new  *trial,  and  for  the  [*176 
reasons,  as  I  understood,  and  on  my  part 
meant,  that  the  verdict  was  against  evidence, 
as  the  recital  in  the  will,  added  to  the  parol 
proof,  was  decisive  evidence  of  the  fact  of  a 
conveyance  of  the  premises  to  David,  and  that 
the  necessary  intendment  from  the  case  was, 
that  the  conveyance  was  in  fee. 

The  verdict  is  now  in  conformity  with  that 
opinion;  and  if  it  was  correct  at  the  time,  the 
additional  proof  thrown  into  this  case  can  have 
no  material  influence  upon  it. 

I  remain  of  the  same  opinion  as  before,  that 
the  recital  is  evidence  of  the  conveyance,  and 
indeed  I  consider  that  the  heir  of  the  testator 
is  estopped  by  the  recital  in  the  will  to  d<jnv 
that  the  premises  were  conveyed  to  David.  It 
is  an  act  of  his  ancestor,  to  whom  he  is  a  privy. 
The  authorities  are  general! v  to  this  effect.  (1 
Salk.,  286;  6  Mod..  44;  S.  C.,  8  Mod.,  33,  34; 
Dyer,  169,  a.;  1  Mod.,  113.)  With  respect  to 
the  force  of  recitals  the  law  is  examined  and 
laid  down  with  great  clearness  and  precision 
by  Ch.  J.  Willes,  when  giving  the  opinion  of 
the  court  in  the  case  of  Shelty  v.  Wright 
(Willes'  Rep.,  111).  "There  are,"  he  observes, 
"some  general  sayings  in  the  books,  that  no 
one  shall  be  estopped  by  a  recital,  as  in  Co. 
Litt.,  352,  b,  and  in  1  Roll.  Abr.,  870  and  872. 
But  there  are  more  cases  in  which  it  was  held 
that  a  man  may  be  estopped  ;  and  there  is  a 
distinction  laid  down  that  a  person  shall  not 
be  estopped  by  a  general  recital,  but  shall  by 
the  recital  of  a  particular  thing.  Accordingly, 
there  are  several  cases  of  recitals  where  it  was 


176 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


held  that  the  party  was  estopped.  In  a  case 
reported  in  Cro.  Eliz.,  756,  757,  and  another 
in  Styles,  103,  it  was  held  that  the  recital  in 
the  condition  of  a  bond  of  a  particular  indent- 
ure, or  of  a  particular  sum  due,  is  an  estoppel 
to  plead  that  there  is  no  such  indenture,  or  no 
such  sum  due  ;  and  it  is  said  in  2  Leon.,  11. 
that  where  the  recital  is  material  the  party 
shall  be  estopped."  From  these  authorities 
177*1  the  court  concluded,  in  that  case,  *that 
The  defendant  was  estopped  by  the  recital  in  a 
bond  of  a  particular  fact,  from  denying  that 
fact.  In  the  present  case  the  will  contains  a 
recital  of  a  particular  fact,  viz.,  that  he  had 
conveyed  the  premises  in  question  to  David. 
By  this  recital  the  lessor  of  the  plaintiff  is 
estopped,  as  heir  to  the  testator,  from  denying 
that  the  testator  conveyed  the  premises  to  his 
son  David,  and  the  only  question  is,  what 
estate  must  be  intended  to  have  been  conveyed? 
Here  I  remain  of  the  same  opinion  as  on  the 
former  occasion,  that  the  necessary  intend- 
ment,  from  the  language  of  the  will,  was  a 
conveyance  in  fee.  It  is  the  obvious  and 
ordinary  import  of  the  words  that  the  whole 
interest  was  conveyed.  It  is  equivalent  to 
saying,  I  have  transferred,  I  have  alienated, 
or  I  have  disposed  of  my  lands,  and  I  have, 
consequently,  no  longer  any  right  or  interest 
in  them.  In  this  case  the  testator  has  added 
words  in  confirmation  of  this  import  and  opera- 
tion of  the  preceding  words  ;  for  he  says,  that 
"whereas  he  has  conveyed  the  premises  to 
David,  he  devises  all  the  remainder  of  his 
estate  whatsoever,"  &c.,  thereby  evidently 
meaning  that  the  premises  were  no  longer  sub- 
ject to  his  disposition,  and  that  none  of  his 
estate  was  to  be  left  undisposed  of,  although 
the  premises  were  thus  excepted  out  of  the 
residuary  devise.  The  parol  proof  in  the  case, 
I  think,  was  inadmissible  to  explain  the  con- 
tents of  the  conveyance,  or  what  was  intended 
by  the  word  "convey;"  this  being,  if  an 
ambiguity  at  all,  an  ainMyuitas  patens,  or  one 
appearing  on  the  face  of  the  instrument  itself, 
and  it  is  the  peculiar  and  exclusive  province  of 
the  court  to  interpret  writings.  The  meaning 
of  them  is  not  a  matter  in  pats.  However, 
admitting  and  giving  full  consideration  to  the 
parol  proof,  it  would  not  alter  the  conclusion 
I  have  drawn  from  the  words  of  the  will,  that 
the  conveyance  was  in  fee. 

We  are,  accordingly,  therefore,  of  opinion 
that  the  plaintiff  take  nothing  by  his  motion. 

178*]  *RADCLIFP,  J.,  said  that  he  agreed 
in  the  opinion  just  delivered,  except  as  to  one 
point,  which  was  not  raised  on  the  argument 
for  a  new  trial,  in  April  Term.  1801,  that  is,  as 
to  the  recital  in  the  will  being  an  estoppel.  He 
did  not  think  the  doctrine  of  estoppels  con- 
nected with  this  case ;  that  estoppels  were 
odious,  and  not  to  be  favored,  and  apply  only 
in  certain  specific  cases,  and  are  to  be  gov- 
erned by  strict  and  precise  rules ;  and  he 
doubted  whether,  in  any  case,  a  technical 
estoppel  could  arise  upon  a  will,  and  if  it 
could,  the  recital  in  the  present  case  was  too 
general  and  uncertain  to  create  an  estoppel. 
<Co.  Litt.,  3526.) 

Motion  denied. 

Cited  in— 12  Wend.,  670 ;  9  Paige,  659 ;  1  Keyes.  227 ; 
Abb.  A  pp.  Dec.,  339. 

660 


LENOX 

0. 
THE  UNITED  INSURANCE  COMPANY. 

1.  Marine  Insurance — Goods  or  Cargo — GOOI!M 
on  Deck — Jettisoned — General  Average.  2. 
Adjustment —  Under  Laws  of  Foreign  Coun- 
try— Lex  Loci. 

Goods  laden  on  deck  are  not  covered  by  a  policy 
on  goods  or  cargo,  unless  expressly  mentioned. 

And  though  expressly  mentioned  in  a  policy  of 
insurance ;  yet  in  case  they  are  thrown  overboard  to 
lighten  the  vessel  in  a  storm,  and  for  the  preserva- 
tion of  the  ship  and  cargo,  &c.,  they  are  not  to  be 
brought  into  general  average ;  but  the  ship's  boat, 
making  part  of  the  same  jettison,  was  held  to  be 
general  average.  The  adjustment  of  a  general 
average  in  the  port  of  destination,  according  to  the 
laws  of  a  foreign  country,  is  not  conclusive  on  par- 
ties who  have  entered  into  a  contract  here,  who  are 
governed  only  by  the  law  of  this  State. 

THIS  was  an  action  of  awumpsit  on  a  policy 
of  insurance,  "on  40,550  pipe  staves  on 
the  deck  and  in  the  hold"  of  the  brig  Retalia- 
tion, on  a  voyage  from  New  York  to  Lisbon, 
valued  at  the  sum  insured.  The  vessel  sailed 
on  the  voyage  insured,  the  21st  February,  1800, 
and  in  consequence  of  a  violent  storm  it  be- 
came necessary,  for  the  preservation  of  the 
ship  and  cargo,  as  well  as  the  lives  of  the  crew, 
to  lighten  the  vessel,  by  throwing  overboard 
all  the  staves  on  the  deck  of  the  vessel,  and 
also  to  cut  the  tackle  by  which  the  boat  was 
fastened  to  the  stern,  by  which  means  the  boat 
and  all  the  staves  laden  on  deck  were  wholly 
lost. 

On  the  arrival  of  the  vessel  at  Lisbon,  a 
difference  arose  between  the  captain  and  the 
consignees  of  the  cargo  as  to  the  adjustment 
of  the  general  average,  by  reason  of  the  jettison. 
The  matter  was  left  to  arbitrators,  who  .de- 
termined that,  according  to  the  law  and  usages 
*of  the  port  of  Lisbon,  the  boat  and  [*lt9 
staves  thrown  overboard  were  to  be  brought 

NOTE. — Marine  Insurance. 

Goods  laden  on  deck,  on  grounds  of  public  policy, 
are  held  not  to  be  covered  by  a  general  policy  on 
cargo,  property,  or  goods;  a  special  provision  is 
necessary  to  bring  such  goods ;  within  the  policy. 
Wolcott  v.  Eagle  Ins.  Co.,  4  Pick.,  429;  Adams  v. 
Warren  Ins.  Co.,  22 ;  Id.,  163 ;  Taunton  Copper  Co.  v. 
Merchants'  Ins.  Co.,  22 ;  Id.,  108 ;  Milward  v.  Hibbert, 
3Q.  B.,  120;  Smith  v.  M.  &  F.  Ins.  Co.,  11  La.,  142; 
Brooks  v.  Oriental  Ins.  Co.,  7  Pick.,  259;  Uoss  v. 
Thwaite,  Park  Ins.,  25. 

Exceptions.  When  by  weUr-estahltehed  usage,  and 
when  property  insured  by  name  is  of  such  a  nature 
as  to  be  usually  stowed  upon  deck,  property  is  thus 
carried,  the  above  rule  does  not  apply.  Milward  v. 
Hibbert.  3  Q.  B.,  120 ;  Taunton  Copper  Co.  v.  Mer- 
chants' Ins.  Co.,  22  Pick.,  108 ;  Merchants'  Ins.  Co.  v. 
Shillito,  15  Ohio  St.,  559 ;  Rogers  v.  Mechanics'  Ins. 
Co.,  1  Story,  603. 

Foreign  adj-ustment.  A  foreign  adjustment  is  not 
binding  on  the  parties,  they  having  contracted  with 
reference  to  their  domestic  law.  This  is  the  doc- 
trine of  the  principal  case. 

See,  also,  Farmer  v.  Whitmore,  4  M.  &  S.,  141 ;  Shiff 
v.  La.  St.  Ins.  Co.,  6  Mart.  La.  N.  S.,  629. 

Contra.  A  foreign  adjustment  is  binding  on  the 
parties.  This  is  specially  applicable  to  cases  in 
which  the  adjustment  was  made  in  a  foreign  port 
from  necessity,  and  not  until  such  necessity  arose. 
Walpole  v.  Ewer,  Park  on  Ins.  (8th  ed.),  898 ;  New- 
man v.  Cazalet,  Park  on  Ins.,  899 ;  Strong  v.  Fire- 
men's Ins.  Co.,  11  Johns.,  323 ;  Depau  v.  Ocean  Ins. 
Co.,  5  Cow.,  63;  Loring  v.  Neptune  Ins.  Co.,  20  Pick., 
411;  Peters  v.  Warren,  1  Story,  403;  Dalgish  v. 
Davidson,  5  D.  &  R.,  6 ;  Simonds  v.  White,  2  B.  &  C.. 
805 ;  Lewis  v.  Hall,  Id.,  430. 

See  Parsons  on  Marine  Ins.,  Vol.  II.,  360-370,  and 
notes. 

JOHNSON'S  CASES,  3. 


1802 


CLEMENT  v.  BRUSH. 


179 


into  general  average,  and  that  the  value  of  the 
staves  was  to  be  computed  according  to  the 
price  they  would  have  brought  at  Lisbon,  had 
they  arrived  in  safety  with  the  residue  of  the 
cargo. 

The  consignees  of  the  cargo  at  Lisbon  paid 
the  general  average,  according  to  the  award  of 
the  arbitrators,  which  was  admitted  to  be  in 
conformity  to  the  mercantile  law  and  custom 
of  Portugal. 

On  a  case  containing  the  above  facts  it  was 
agreed  that  if  the  court  should  be  of  opinion 
that  the  throwing  over  the  staves  constituted 
only  a  partial  loss,  a  judgment  should  be 
entered  for  the  plaintiff  for  f 461. 48  ;  but  if  the 
court  should  be  of  opinion  that  the  defendants 
were  bound  by  the  adjustment  of  the  general 
average  made  at  Lisbon,  then  judgment  should 
be  given  for  the  plaintiff  for  $1,073.11,  unless 
the  court  should  think  the  boat  cut  from  the 
stern,  ought  to  be  brought  into  general  average  ; 
in  which  case,  $52.12  was  to  be  added  to  the 
amount  of  the  partial  loss  on  the  staves  as 
stipulated. 

Mr.  D.  A.  Ogden  for  the  plaintiff. 
Mr.  Troup,  contra. 

Per  Curiam.  The  policy  in  this  case  ex- 
pressly covers  the  lading  on  deck,  which 
would  not  otherwise  be  included  in  a  general 
insurance  on  goods.  The  defendants  are,  there- 
fore, liable  ;  but  whether  for  a  partial  loss,  or 
a  general  average,  depends  on  the  propriety  of 
charging,  as  general  average,  a  loss  of  the 
lading  on  deck.  This,  we  think,  ought  not  to 
be  done.  An  insurance  does  not  reach  goods 
on  deck,  unless  expressly  mentioned.  They 
are  not  considered  as  a  part  of  the  cargo,  in 
which  the  other  shippers  are  interested.  The 
owners  of  the  cargo  under  cover,  ought  not, 
18O*]  therefore,  to  contribute  *to  the  jettison 
of  the  goods  on  deck.  The  plaintiff  is,  there- 
fore, entitled  only  to  a  partial  loss.  It  was 
decided  differently  at  Lisbon,  the  port  of  des- 
tination, and  the  law  there  is  stated  to  be 
otherwise;  but  the  parties  to  this  contract  must 
be  considered  as  having  in  view  the  law  of  this 
State,  and  must  be  governed  by  it.  The  boat, 
however,  being  a  necessary  part  of  the  ship's 
furniture,  and  being  cut  away  for  the  general 
benefit,  was  properly  brought  into  general 
average.  The  plaintiff,  therefore,  must  have 
judgment  for  the  partial  loss  of  the  staves,  and 
the  general  average  on  the  boat,  amounting  to 
$518.62. 

Judgment  accordingly. ' 

Overruled— 11  Johns.,  332 ;  5  Cow.,  63 ;  1  Hall,  445. 

Cited  in— 3  Cai.,  20;  2  Johns.,  136;  21  Wend.,  195;  30 
N.  Y.,  269 ;  60  N.  Y.,  173 ;  85  N.  Y.,  476 ;  4  Bosw.,  217 ;  4 
Daly,  21,  28;  14  Wall.,  605. 

1.— See  Marshall  on  Ins.,  3d  edit.,  319,  727 ;  Park,  20. 


CLEMENT   P.  BRCSII. 

1 .  Partnership — Power  of  one  Partner — By  Seal. 
'  2.  Specialty — In    Name    of   Firm — By    One 

Partner — For  Firm  Debt — Extinguishment — 

Release — Liability. 

One  partner  cannot  bind  his  copartners  by  seal. 

Where  one  partner  gave  a  specialty,  which  he- 
signed  with  the  name  of  the  firm,  for  a  simple  con- 
tract debt  of  the  firm,  and  the  creditor  afterwards 
executed  a  release  of  all  demands  against  the  other 
partner,  on  account  of  the  partnership  debt,  it  was 
held  that  giving-  the  specialty  was  an  extinguish- 
ment of  the  simple  contract  or  partnership  debt ; 
and  that  the  specialty,  being1  the  proper  and  sole 
debt  of  the  partner  executing  it,  was  not  affected  by 
the  release  given  to  the  other  partner,  as  to  the 
partnership  debt. 

THIS  was  an  action  of  covenant  on  a  single 
bill. 

The  defendant  and  Andrew  Howell  were 
partners  in  trade  under  the  firm  of  Brush  «k 
Howell,  and,  as  such,  became  indebted  to  the 
plaintiff,  in  Philadelphia,  to  the  amount  of 
£102  2«.  for  goods  sold  to  them,  to  secure  the 
payment  of  which  Brush  gave  the  plaintiff,  on 
the  15th  December,  1790,  a  single  bill,  as  fol- 
lows :  "Two  months  after  date,  we  promise 
to  pay  Jacob  Clement  or  order,  £102  2*.,  with 
interest,  as  witness  pur  hands  and  seals.  Brush 
&  Howell.''  The  signature  of  Brush  &  How- 
ell was  written  by  Brush,  who  also  affixed  the 
seal. 

On  the  10th  December,  1796,  the  plaintiff, 
with  the  other  creditors  of  Brush  &  Howell, 
executed  and  delivered  *to  Howell  a[*181 
writing,  engaging,  in  consideration  of  the  mis- 
fortunes of  Howell,  and  of  one  fourth  of  the 
principal  of  their  debts  (besides  what  had  been 
paid),  to  be  paid  the  one  half  in  twenty  days, 
and  the  other  half  in  six  months,  that  they 
would  not,  on  fulfillment  of  the  agreement 
on  the  part  of  Howell,  ask  or  demand  of  him 
any  of  the  residue  of  the  debts  due  them  from 
the  said  firm  ;  "  but  they  would,  and  did  there- 
by exonerate  and  forever  discharge  the  said 
Howell  of  and  from  all  claims  and  demands 
against  the  said  firm.  It  not  being,  however, 
the  intention  of  the  said  writing,  to  acquit,  re- 
lease or  abate,  in  any  measure,  their  just  de- 
mands against  Brush,  the  other  partner." 

It  was  agreed,  on  a  case  containing  the  above 
facts,  that  if  the  court  should  be  of  opinion 
that  the  plaintiff  was  not  entitled  to  recover,  a 
judgment  of  nonsuit  should  be  entered,  other- 
wise a  judgment  for  the  plaintiff,  for  $331.99. 

Mr.  Riggs  for  the  plaintiff. 
Mr.  Ilarison,  contra. 

Per  Curiam.  One  partner  cannot  bind  his 
copartner  by  seal.'2  The  defendant  Brush,  who 
executed  it,  is  alone  bound  by  the  specialty  ; 

2.— 7  Term  Rep.,  207 ;  2  Games'  Rep.,  254,  255. 


NOTE. —Powers  of  Copartners—Specialties.  One 
Partner  cannot  hind  his  copartners  by  deed. 

Under  the  common  law,  the  relation  of  partner- 
ship does  not  authorize  one  partner  to  bind  the  oth- 
ers, by  any  instrument  under  seal,  for  any  partner- 
ship obligation,  arising  within  the  scope  of  the  part- 
nership business  or  otherwise.  To  authrize  him  so  to 
do  he  must  be  constituted  an  agent  for  that  purpose 
by  an  instrument  of  equal  dignity ;  i.  e.,by  one  under 
seal.  Such  instrument  only  binds  the  partner  exe- 
cuting it.  Co.  Litt.,  486 ;  3  Kent,  47,  48 ;  Story  on 

JOHNSON'S  CASES,  3. 


Partnership,  sees.  117  to  121;  Parsons  on  Partner- 
ship, 178  to  184;  Harrison  v.  Jackson,  7  T.  R.,  207; 
Green  v.  Beak's.  2  Caines,  254 ;  Thoinason  v.  Frere, 
10  East,  418;  MeKee  v.  Bank,  7  Ohio,  175:  Gerard  v. 
liasse,  1  Ball.,  119 :  Skinner  v.  Dayton,  19  Johns.,  513 ; 
U  S.  v.  Astley,  3  Wash.  C.  C.,  508;  Pasey  v.  Bullitt, 
1  Blackf .,  99 ;  Cadcy  v.  Shepard,  U  Pick.,  400:  Van- 
Deusen  v.  Blum,  18  Pick.,  229;  Sloo  v.  State  Bank,  1 
Scam.  (111.),  441;  Snyder  v.  May,  19  Pa.  St.,  235; 
County  v.  Gates,  20  Mo.,  315 ;  Mackay  v.  Bloodgood, 
9  John's.,  285 ;  McXaughton  v.  Partridge,  11  Ohio, 223 ; 


181 


SUPREME  COUIIT,  STATE  OF  NEW  YORK. 


1802 


and  it  being  a  debt  of  a  higher  nature,  it  ex- 
tinguished the  simple  contract  or  partnership 
debt. '  The  law  of  Pennsylvania,  where  these 
transactions  took  place,  is  not  stated  in  the 
case,  and,  therefore,  we  could  not,  judicially, 
take  notice  of  it,  if  it  were  different  from  the 
law  of  this  State  ;  but  it  was  admitted  OH  the 
argument  to  be  the  same.  The  release  by  the 
plaintiff  and  the  other  creditors  to  Howell, 
siibsequent  to  the  giving  the  single  bill,  admit- 
ting that  it  operated  to  discharge  the  partnership 
182*J  debts,  did  not  apply  *to  or  discharge 
the  single  bill  or  specialty,  which  was  the 
proper  debt  of  the  defendant  alone.  The 
plaintiff  is,  therefore,  entitled  to  judgment. 

Judgment  for  the,  plaintiff. 

Reviewed— 98  Ills.,  35. 

Cited  in— 3  Johns.,  70 : 13  Johns.,  310 ;  19  Johns.,  63 ; 
1  Wend.,  335 ;  12  Wend.,  55 ;  21  Wend.,  453 ;  Hill  &  D., 
393 ;  6  Bosw.,  578 ;  1  Duer,  18 ;  1  Hall,  294 ;  3  Cranch  C. 
C.,  697. 


DUPUY 
THE  UNITED  INSURANCE  COMPANY. 

Marine  Insurance — On  Vessel — Repairs — Value 
of  New — Partial  Loss. 

Where  the  expense  of  repairs  of  a  vessel  are  equal 
to  half  her  value  or  more,  the  insured  may  abandon 
for  a  total  loss,  and  the  amount  is  to  be  taken,  with- 
out deducting  one  third,  new  for  old ;  which  rule 
applies  only  to  a  case  of  partial  loss. 

1.— Bee  Tom  v.  Goodrich,  2  Johns.  Rep.,  213. 


NOTE. — Marine  1  nsurance— Abandonment. 

By  the  English  rule  the  loss  must  be  too  great  to 
justify  repairs;  by  the  American  rule  the  loss  need 
only  equal  half  or  more,  to  justify  abandonment. 
Grainger  v.  Martin,  4  Best  &  G.,  9 ;  Benson  v.  Chap- 
man, 6  Man.  &  G.,  810 ;  Gordon  v.  Ins.  Co.,  2  Pick., 
249;  Smith  v.  Ins.  Co.,  7  Met.,  448;  Clarkson  v. 
Phoenix  Ins.  Co.,  9  Johns.,  1 ;  Waddell  v.  Cal.  Ins.  Co., 
10  Johns.,  61 ;  Fontaine  v.  Phoenix  Ins.Co.,  11  Id.,  293  ; 
Mag-asen  v.  N.  Eng.  Ins.  Co.,  1  Story,  157 ;  Hubbell  v. 
Gt.  Western  Ins.  Co.,  74  N.  Y.,  246.  See  Parsons  on 
Marine  Ins.,  Vol.  II.,  ch.  4. 

There  is  some  conflict  of  authority  on  the  question 
of  the  deduction  of  one  third  new  for  old.  Orrok 
v.  Ins.  Co.,  21  Pick.,  456 ;  Hall  v.  Ocean  Ins.  Co..  21 
Id.,  472;  Brooks  v.  Ins.  Co.,  7  Id.,  259;  Center  v.  Am. 
Ins.  Co.,  7  Cow.,  564 ;  Peele  v.  Merch.  Ins.  Co.,  3  Mason, 
27;  Penzant  v.  Mtc.  Ins.  Co.,  15  Wend.,  453;  Smith  v. 
Bell,  2Caines'  Cas..  153;  Bradlie  v.  Md.  Ins.  Co.,  12 
Peters,  378. 


But  see  contra.  Smith  v.  Bell  et  ah,  decided  in  the 
Court  of  Errors  in  1805.  (2  Caines'  Cases  in  Error. 
153). 

THIS  was  an  action  on  a  policy  of  insurance 
on  the  brig  Abby,  from  New  York  to  St. 
Sebastians,  and  back  ;  valued  at  $5,000,  being 
the  sum  insured.  The  plaintiff  claimed  for  a 
total  loss  by  the  perils  of  the  sea. 

The  vessel,  during  her  voyage,  met  with  a 
violent  storm,  which  obliged  her  to  put  into 
Kinsale,  in  Ireland,  where  her  cargo  was  sold 
for  the  benefit  of  the  insurers,  who  afterwards 
paid  a  total  loss.  The  vessel  was  repaired  at 
Kinsale  ;  and  the  expense  of  repairs  amounted 
to  $2,795.50,  including  five  per  cent,  commis- 
sions on  the  amount,  and  excluding  the  ex- 
penses charged  as  general  average,  the  vessel's 
proportion  of  which  was  $377.50  ;  and  exclud- 
ing also  money  charged  for  the  captain,  mate, 
and  crew,  during  the  time  the  vessel  was  re- 
pairing, &c.,  amounting  to  £212  sterling. 

The  plaintiff  duly  abandoned  on  the  first  in- 
formation of  the  accident ;  but  the  defendants 
refused  to  accept  the  abandonment.  The  ves- 
sel, after  being  repaired,  returned  to  New 
York,  where  she  was  sold,  by  consent,  for  the 
benefit  of  whom  it  might  concern,  without 
prejxidice  to  the  rights  of  parties. 

A  verdict  was  found  for  the  plaintiff,  subject 
to  the  opinion  of  the  court,  on  a  case  contain- 
in  » the  above  facts. 

The  principal  question  raised,  and  that  on 
which  the  court  decided  the  case,  was  whether, 
in  estimating  the  *expense  of  repairs,  [*  1 83 
in  order  to  determine  whether  it  amounted  to 
more  than  a  moiety  of  the  value  of  the  subject, 
one  third  was  to  be  deducted,  as  new  for  old. 

Mr.  Hanson  for  the  plaintiff. 
Mr.  Troup,  contra. 

Per  Curiam.  Where  the  repairs  are  equal 
to  half  the  value  and  more,  the  insured  has  a 
right  to  abandon.  The  rule  is  general,  and 
has  no  reference  to  the  distinction  of  new  for 
old.  It  is  the  actual  expenditure  or  damage 
which  is  taken  into  view  ;  and,  on  the  aban- 
donment, the  insurer  has  the  benefit  of  the  re- 
pairs. The  rule  of  deducting  one  third,  new 
for  old,  is  applicable  only  in  a  case  of  partial 
or  average  loss.  In  the  present  case  there  was 
a  clear  cause  for  an  abandonment,  as  for  a 


Hoskinson  v.  Eliot,  62  Pa.  St.,  393;  Sutlive  v.  Jones, 

61  Ga.,  676. 

A  custom-house  bond  for  duties  given  by  one 
partner  does  not  bind  the  firm,  but  only  the  execut- 
ing member.  Tom  v.  Goodrich,  2  Johns.,  213 ;  Walden 
v.  Sherbune,  15  Johns.,  409,  423:  U.  S.  v.  Astley,  3 
Wash.  C.  C.,  508 ;  contra  by  Stat.  Act  Mar.  1, 1823,  ch. 
21,  sec.  25,  3  U.  S.  Stat.  at  Large. 

Such  deed  does  bind  all  the  partners  when  issued  by 
the  assent  of  aU. 

English  doctrine  is,  that  such  assent,  whether  given 
before  or  after  the  execution  of  the  deed,  must, 
itself  be  under  seal.  Hunter  v.  Parker,  7  M.  &  W., 
322;  Wallace  v.  Kelsall,  7  M.  &  W.,  464;  Steiglitz  v. 
Eggington,  Holt  N.  P.,  141. 

The  American  doctrine  is  more  liberal,  and  some 
of  the  decisions  sustain  the  instrument,  treating1  the 
seal  as  surplusage  so  far  as  it  applies  to  copartners, 
in  <;ases  where  the  seal  is  unnecessary  to  the  validity 
of  the  contract  and  where  it  falls  within  the  scope 
of  the  partnership  business.  Schmertz  v.  Shreeve, 

62  Pa.  St.,  457 ;  Purviance  v.  Sutherland,  2  Ohio  St., 
478;  Smeetzer  v.  Mead,  5  Mich.,107 ;  1  Am.  Lead.  Cas., 
5  ed.,  450,  544 ;  Gibson  v.  Warden,  14  Wall.,  244 ;  Wood- 

M2 


ruff  v.  King,  47  Wis.,  261 ;  Lucas  v.  Bank  of  Darien, 
2  Stewart,  280. 

And  the  instrument  is  sustained  where  the  other 
partners,  by  assent  or  acts,  ratify  it.  Johns  v.  Bat- 
tin.30 Pa.  St.,  84 ;  Smith  v.  Kerr, 3 Comst.,  144 ;  Gwinn 
v.  Rooker,  24  Mo.,  291 ;  Ely  v.  Hair,  16  B.  Mon.,  230. 

Contra.    Little  v.  Hazzard,  5  Harr.,  291. 

Also  in  instruments  affecting  real  estate.  Wilson 
v.  Hunter.  14  Wis.,  683;  Haynes  v.  Seachrest,  13 
Iowa,  455 ;  Lowery  v.  Drew,  18  Tex.,  786 ;  Herbert  v. 
Hanrick,  16  Ala.,  581. 

Deed  executed  by  one  partner  in  the  presence  of 
the  others  binds  all,  as  it  amounts  in  law  to  an  exe- 
cution by  all  the  partners.  Ball  v.  Demsterville,  4 
T.  R.,  313;  Burn  v.  Burn,  3  Ves.,  573;  Brutton  v. 
Burton,  1  Chitty,  707 ;  Steiglitz  v.  Eggington,  1  Holt 
N.  P.,  141 ;  Maekay  v.  Bloodgood,  9  Johns.,  285;  Hal- 
sey  v.  Whitney,  4  Mason,  208. 

One  partner  man  bind  his  copartner  hyarelease  un- 
der seal,  of  a  debt  due  the  partuershio.  Perry  v.  Jack- 
son, 4  T.  R.,  519;  Swan  v.  Steele,  7  East,  211 ;  Pierson 
v.  Hooker,  3  Johns.,  68 ;  Bulkley  v.  Dayton,  14  Johns., 
387;  Morse  v.  Bellows.,  7  N.  H.,  587;  McBride  v.  Ho- 

JOHNSON'S  CASES,  3. 


1802 


RICE  v.  CLENDINING  AND  AUAMH. 


188 


total  loss  ;  and  the  plaintiff  is,  therefore,  entitled 
to  judgment. 

Judgment  for  the  plaintiff '.' 

Overruled— 2  Cai.  Cas.,  153;  HJohns..  315. 
Followed— 4  Cow.,  245;  4  Wend.,  55. 
Cited  in— 3  Mason,  76. 


RICE  «.  CLENDINING  AND  ADAMS. 

•Shipping — Landing  and  Storing  Cargo  at  Quar- 
antine—  Whose  Expense. 

Where  a  vessel,  on  her  arrival  in  the  port  of  New 
York,  is  ordered  to  perform  quarantine  and  the 
•cargo  is  landed  and  stored  at  the  quarantine  ground, 
the  shipper  or  consignee  of  the  goods  is  bound  to 
pay  the  expense  of  landing  and  storage. 

Citation— Abbott,  part  3,  ch.  3,  sec.  12. 

THIS  was  an  action  of  assumpsit.  Goods 
were  shipped  on  board  of  the  plaintiff's 
vessel,  at  Wilmington,  for  the  defendants,  at 
New  York.  On  arriving  in  the  harbor,  the 
vessel  was  stopped  at  the  quarantine  ground, 
184*]  under  *the  act  of  the  Legislature  in 
regard  to  quarantine,  and  the  cargo,  including 
the  goods  of  the  defendants,  was,  by  order  of 
the  health  officer,  landed  and  stored  ;  and  the 
goods  were  afterwards  brought  up  to  the  city 
and  delivered  to  the  defendants  by  the  plaint- 
iff, who  had  paid  the  storage  at  Staten  Island, 
-and  the  expense  of  transportation.  The  de- 
fendants offered  to  pay  the  expense  of  trans- 
portation, but  refused  to  pay  the  storage,  to 
recover  the  amount  of  which  the  present  suit 
was  brought. 

Mr.  Bogert  for  the  plaintiff. 
Mr.  Wort-man,  contra. 

Per  Curium.  The  impediment  in  this  case 
did  not  come  into  the  view  of  either  party 
when  the  contract  for  the  voyage  was  made. 
The  damages  which  either  party  sustained 
were  not  within  the  provisions  of  the  contract, 
and  the  detention  and  expenses  of  the  ship 
must  be  borne  by  her  owners,  and  the  expenses 
•on  the  cargo  by  the  shippers. 

The  law  compelled  the  goods  to  be  put  on 
shore,  and  the  responsibility  of  the  master 
thereupon  ceased.  Such  is  the  established 
usage  in  the  port  of  London,  where  ships,  in 
coming  from  Turkey,  are  obliged  to  perform 

1. — But  see  Smith  v.  Bell  et  al.,  2  Caines'  Cases  in 
Error,  153,  which  came  up  on  a  bill  of  exceptions  to 
the  opinion  of  the  judge  at  Nisi  Prius,  given  in  pur- 
suance to  the  above  decision.  The  majority  of  the 
Court  of  Errors  concurred  in  the  opinion  of  Lansing, 
Ch.  J.,  that  to  constitute  a  technical  total  loss  of  a 
•ship,  by  perils  of  the  sea,  she  must  be  injured  to  the 
.amount,  at  least,  of  half  her  value,  after  deducting 
one  third,  new  for  old. 


quarantine.  The  consignee  sends  a  person  to 
take  care  of  the  goods,  at  his  own  expense ; 
and,  if  he  neglects  to  do  so,  the  master  is  not 
held  responsible  for  any  damage  arising  from 
sending  them  on  shore.  (Abbott,  part  3,  ch.  8, 
sec.  12.)  We  are,  therefore,  of  opinion  that  the 
plaintiff  is  entitled  to  judgment. 

Judgment  for  the  plaintiff. 


•WINTON  v.  SAIDLER.       [*185 
STEWART  ET  AL.  v.  CURRIE. 

1.  Witness  —  Indorser  of  Negotiable  Note  — 
Competency — To  Impeach  Validity.  2.  Id. — 
Id. — Discharged  in  Bankruptcy —  Usuriou* 
Consideration. 

A  person  is  not  a  competent  witness  to  impeach 
the  validity  of  a  negotiable  note  or  instrument 
which  he  has  made  or  indorsed,  though  he  is  not  in- 
terested in  the  event  of  the  suit. 

The  payee  and  indorser  of  a  promissory  note,  who 
had  been  discharged  under  the  bankrupt  law  of  the 
United  States,  and  had  released  all  his  interest,  was 
held  to  be  an  incompetent  witness,  to  prove  that  the 
note  was  given  for  an  usurious  consideration. 

Citations— 1  Term  R.,  296 ;  3  Term  R.,  34 ;  Peake, 
6,  52;  Peake,  117,  224;  Esp.  N.  P.,  17;  7  Term  R., 
604;  Peake,  40;  Esp.  Cases,  298,  299;  1  Esp.  N.  P. 
Cases,  176 ;  7  Term  R.,  601 ;  ante,  p.  82 ;  1  Black  R., 
365;  1  Mod.,  383;  Bull.  N.  P.,  286;  Cowp.,  197;  Saver, 


fPHESE  were  actions  of  assumpsit.  The  first 
JL  suit  was  by  the  plaintiff,  as  indorsee, 
against  the  defendant,  as  indorser  of  a  promis- 
sory note,  payable  to  John  M.  Smith,  or  order, 
who  indorsed  it.  Smith,  since  indorsing  the 
note,  had  been  discharged  under  the  bankrupt 
law  of  the  United  States,  and  had  released  all 
his  interest  in  the  residue  of  his  estate  to  his 
assignees',  who  had  accepted  the  release ;  and 
at  the  trial  he  was  offered  as  a  witness  on  the 
part  of  the  defendant,  to  prove  that  the  note 
was  made  and  indorsed  for  a  usurious  consid- 
eration. The  plaintiff's  counsel  objected  to 
the  competency  of  the  witness ;  and,  by  con- 
sent, a  verdict  was  taken  for  the  plaintiff,  sub- 
ject to  the  opinion  of  the  court  on  the  question 
as  to  his  admissibility  as  a  witness. 

The  second  suit  was  by  the  plaintiffs,  as 
indorsees  against  the  defendant,  as  maker  of  a 
promissory  note,  payable  to  John  M.  Smith  or 
order,  who  indorsed  it  to  the  plaintiffs.  Smith, 
under  the  same  discharge  and  release,  was 
offered  by  the  defendant  as  a  witness,  to  prove 
that  the  note  was  made,  indorsed  and  delivered 
to  R.  &  H.  Stewart,  for  an  usurious  considera- 
tion. Being  objected  to,  as  incompetent,  a 
verdict  was  also  found  for  the  plaintiffs,  sub- 
ject to  the  opinion  of  the  court  as  to  his  admis- 
sibility as  a  witness. 


e-an,  1  Wend.,  326 ;  Curtwell  v.  Brown,  5  Johns.,  263 ; 
U.  S.  v.  Astley,  3  Wash.  C.  C.,  511. 

The  tendency  of  the  American  courts  is  to  restrict 
the  general  rule  that  one  partner  cannot  bind  his 
•copartners  by  deed. 

Extinguishment  of  Partnership  Liability.  If  a 
•creditor  accepts  a  security  of  one  partner,  especially 
•of  a  higher  or  negotiable  nature  for  the  entire  debt, 
AS  a  satisfaction  thereof,  wholly  or  in  part,  it  will 
extinguish  the  partnership  debt  and  leave  the  part- 
jier  executing  such  security  alone  responsible.  Story 

JOHNSON'S  CASES, 3. 


on  Partnership,  sec.,  155  and  authorities  cited :  Reed 

v.  White,  5  Esp.,  89;  Meonearch  v.  Clay,  14  East  239; 

Thompson  v.  Percivale,  5  B.  &  Ad.,  925 ;  Harris  v. 

!  Lindsay,  4  Wash.  C.  C.,  271 ;  Gandolfo  v.  Appleton, 

!  40  N.  Y.,  533;  Gates  v.  Hughes,  44  Wis.,  332;  Tillott- 

I  son  v.  Tillotteon,  34  Conn.,  335;  Haskisson  v.  Eliot. 

1.62  Pa.  St.,  393;  I.  Smith's  Lead.  Cas.,  7  Am.  ed.,  459, 

i  619;  Lingensfelser  v.  Simon,  49  Ind.,  82;  Mason  v. 

i  Eldred.    6   Wai'.,  231;    Sypher   v.  Savery,    39    la., 

'258. 

Contra  by  statutes  in  Pa.,  Ky.  &  Mo. 

868 


185 


SUPREME  COURT,  STATE  OF  NEW  YORK 


1802- 


Mr.  Riker  for  the  plaintiffs. 
Mr.  Munro,  contra. 

The  causes  were  argued  the  first  day  of  Jan- 
uary Term,  and  the  judges  now  delivered  their 
opinions  seinatim. 

LEWIS,  Ch.  J.,  and  LIVINGSTON,  J.,  were 
of  opinion  that  the  witness  was  inadmissible  ; 
and  the  reporter  regrets  that,  on  so  important 
and  difficult  a  question,  he  is  unable  to  state 
the  reasons  on  which  that  opionion  was 
founded.  The  following  are  the  opinions  of 
the  other  judges. 

186*]  *RADCLIFF,  J.  There  is  no  objec- 
tion to  this  witness  on  the  ground  of  interest ; 
for  that,  if  any  existed,  was  released  to  his 
assignees. 

The  only  material  question  is,  whether,  being 
a  payee  and  indorser  of  a  negotiable  note,  he 
can  be  admitted  to  impeach  its  validity,  in  the 
hands  of  any  other  person.  The  objection  on 
this  ground  is  of  modern  date,  and  the  first 
case  in  the  English  books  immediately  affect- 
ing the  question,  is  the  one  of  Walton  v.  Shelly, 
in  the  year  1786.  (1  Term  Rep. ,  296.)  In  that 
case  Lord  Mansfield  and  the  Court  of  King's 
Bench  unanimously  adopted  the  principle 
that  no  person  should  be  permitted,  by  his  own 
testimony,  to  invalidate  an  instrument  to 
which  he  was  a  party.  This  rule  was  adopted 
on  the  ground  of  public  policy,  and  appears, 
for  some  time  to  have  bepn  received  in  prac- 
tice, and,  under  different  qualifications,  applied 
to  several  cases  at  Nisi  Prim.  Lord  Kenyon, 
in  Bent  v  Baker  (3  Term  Rep.,  34),  is  reported 
to  have  said  that  he  agreed  to  the  principle 
that  when  a  person  has  signed  a  negotiable 
instrument  he  shall  not  be  permitted  to  invali- 
date it  by  his  own  testimony  ;  and  in  Charing- 
lon  v.  Milner,  and  Humphrey  v.  Moxon,  at  Nisi 
Pnus  (Peake,  6,  52),  he  seems  to  have  adopted 
it,  at  least  so  far  as  to  exclude  a  witness  from 
giving  testimony  to  destroy  his  own  security, 
by  showing  it  void  in  its  creation.  Afterwards, 
in  Adams  v.  Lingard  and  Rich  v.  Topping 
(Peake,  117,  224 ;  Esp.  N.  P.,  171),  he  held  a 
different  opinion,  and  in  a  late  case,  of  Jor- 
daine  v.  Lashbrook  (7  Term  Rep.,  604),  decided 
at  bar,  he  contradicts  the  report  of  Bent  v. 
Ba/cer,  and  denies  he  ever  used  the  expression 
there  ascribed  to  him.  At  the  same  time,  Mr. 
Justice  Buller,  in  two  other  cases  at  Nisi  Prius  \ 
(Peake,  40 ;  Esp.  Cases,  298,  299),  appears  to 
have  adhered  to  the  principle  laid  down  in 
Walton  v.  Shetty.  Under  the  influence  of  these 
opposite  opinions  the  rule  on  this  subject 
fluctuated  in  the  English  courts,  until  it  was 
settled  by  the  decision  in  Jordaine  v.  Lash- 
brook.  In  that  case,  the  rule  adopted  in  Wai-  \ 
ton  v.  Shelly  was  exploded,  by  a  majority  of 
187*]  the  Court  *of  King's  Bench;  for, 
although  the  case  may  be  considered  as  gov- 
erned by  the  express  provisions  of  the  English 
Stamp  Act,  and  as  a  question  concerning  the 
revenue,  yet  the  court  also  proceed  on  general 
grounds,  and  with  the  exception  of  Mr.  Justice 
Ashurst,  who  had  concurred  in  the  first 
opinion  with  Lord  Mansfield,  plainly  overrule 
the  decision  in  Walton  v.  Shelly. 

I  have  thus  briefly  stated  the  cases  in  the  p 
English  books,  on  the  question  before  us,  i 
664 


from  which  it  appears  that  the  rule  which  ex- 
cluded a  witness  under  similar  circumstances, 
has  been  introduced  and  exploded  since  the 
year  1786,  and  there  being  no  determination  in 
our  courts  on  the  subject,  it  is  considered  as 
res  integra,  and  free  from  the  influence  of  any 
controlling  authority. 

The  ground  of  objection  is  against  the  com- 
petency of  the  witness,  not  against  the  nature 
of  the  defense.  As  to  the  nature  of  the  de- 
fense, it  is  generally  true  that  the  policy  of 
our  law  will  not  suffer  the  innocent  holder  of 
negotiable  paper  to  be  injured  by  any  transac- 
tion between  the  original  parties.  The  case  of 
usury,  and  some  others  are,  however,  excep- 
tions" to  this  rule ;  and,  if  this  were  not  a  case 
of  usury,  from  the  facts  offered  to  be  proved, 
the  plaintiffs  were  privy  and  parties  to  the 
original  transaction,  and  of  course  particeps 
criminis,  and  equally  subject  to  the  conse- 
quences of  this  defense  as  if  they  had  been  the 
immediate  payees  of  the  note. 

As  to  the  mere  competency  of  the  witness, 
it  is  certain  that  the  objection  is  not  founded 
on  any  general  rule  of  evidence.  He  has  no 
interest,  and  is  not  rendered  infamous  by  any 
crime,  to  disqualify  him  from  being  a  witness. 
The  objection-  rests  on  a  supposed  principle 
of  policy  that  no  man  shall  be  permitted  to 
invalidate  his  own  act.  This,  in  many  cases, 
is  true,  particularly  in  relation  to  acts  done  by 
the  parties  in  the  suit ;  but,  I  apprehend,  it  is 
not  the  correct  principle  of  mercantile  law. 
The  policy  of  our  commercial  law  has  estab- 
lished a  rule,  which  is  general,  that  no  defense 
which  might  exist  between  the  original  parties, 
except  in  the  specific  cases  *already  [*188 
mentioned,  shall  be  set  up  against  the  inno- 
cent holder  of  negotiable  paper.  It  is  not 
directed  to  the  exclusion  of  any  witness,  or 
any  particular  mode  of  proof,  which  would  be 
admitted  in  other  cases,  but  applies  to  the 
nature  of  the  defense.  It  excludes  the  defense 
itself,  upon  any  species  of  proof.  It  forms  an 
objection,  not  to  the  witness,  but  to  the  entire 
defense.  I  cannot  perceive  any  legal  or  jus- 
tifiable principle  to  authorize  a  different  appli- 
cation of  the  rule.  As  between  the  original 
parties  to  a  written  instrument,  it  is  certain 
there  are  many  cases  in  which  they  may  im- 
peach its  validity.  A  mere  want  of  consider- 
ation in  simple  contracts,  and  an  illegal  con- 
sideration, in  all  cases,  are  admitted  to  be 
shown,  to  invalidate  such  instruments.  In 
the  instance  of  negotiable  paper,  the  reason 
and  justice  of  the  case  require  that  an  inno- 
cent holder  should  not  suffer.  In  general,  he 
is,  therefore,  protected ;  but  still,  in  the  case 
of  usury,  which  is  the  case  before  us,  and  in 
gaming  contracts,  in  consequence  of  express 
provisions  by  statute,  he  cannot  be  protected. 
As  far  as  the  provisions  extend,  however  hard 
in  their  operation,  we  are  bound  to  carry  them 
into  effect ;  and  the  examination  of  the  facts 
must  be  governed  by  the  same  rules  of  evi- 
dence that  are  applicable  to  other  cases.  If 
the  innocent  holder  of  a  usurious  note  is  liable 
to  be  defeated  of  his  remedy  in  the  same  man- 
ner as  the  original  usurer,  we  are  not  at  liberty 
to  adopt  a  different  rule  of  evidence  in  order 
to  protect  him  from  it.  All  persons  dealing  in 
mercantile  paper  know  that  they  are  liable  to- 
meet  this  defense ;  and  it  appears  to  me  incon- 
JOHNSON'S  CASES,  3. 


1802 


WTNTON  v.  SAIDLEB. 


18$ 


sistent  to  admit  the  defense  itself,  and  to  re- 
fuse the  mode  of  proof  adopted  in  ordinary 
cases. 

The  objection  that  the  witness  in  this  case 
comes  to  impeach  the  integrity  of  his  own 
conduct  applies  to  his  credit,  and  may,  under 
different  circumstances,  have  more  or  less 
weight.  It  is  not,  of  itself,  sufficient  to  ex- 
clude him.  The  maxim  of  the  civil  law,  nemo 
allegans  suam  turpitudinem  est  audiendm,  how- 
189*]  ever  it  may  be  there  *applied,  is  not 
adopted  into  our  own  law  to  the  extent  now 
pretended.  In  our  law  there  are  many  cases 
in  which  witnesses  are  admitted,  although 
they  are  not  compelled  to  prove  facts  which 
show  their  own  turpitude.  Such  is  the  com- 
mon case  of  a  particeps  criminu,  and  many 
others  that  might  be  mentioned.  They  are 
received  in  those  cases  as  admissible  witnesses, 
and  their  credit  is  to  be  weighed  by  a  jury. 

The  argument  of  public  policy,  I  think,  has 
no  application  beyond  the  limits  I  have  men- 
tioned. To  carry  it  farther  appears  to  me 
rather  fanciful  than  solid,  and,  in  reality,  adds 
no  security  to  mercantile  paper,  which  the 
policy  of  our  statute  law  will  tolerate. 

If  it  were  important  in  a  commercial  view, 
it  is  not  probable  that  the  rule  would  so  soon 
have  been  abandoned,  in  a  country  depending 
so  essentially  on  the  interests  of  commerce. 
Indeed,  Lord  Mansfield  himself,  who  may  be 
considered  as  its  author,  does  not  place  it  on 
that  ground  solely,  but  equally  applies  it  to 
the  case  of  a  deed  or  any  other  paper.  On  a 
full  examination  of  the  subject,  I  am  satisfied 
that  the  objection,  as  founded  on  legal  policy, 
is  properly  applied  to  the  nature  of  the  defense 
only,  and  not  to  the  competency  of  the  wit- 
ness, or  any  particular  species  of  evidence.  In 
this  view  of  the  subject  I  have  no  doubt  the 
witness  was  competent ;  and,  of  course,  I  am 
of  opinion  that  a  verdict  ought  to  be  entered 
for  the  defendant. 

KENT,  .7.  The  witness  offered  was  not  in- 
terested in  the  event  of  the  cause,  nor  was  he 
incompetent  on  the  ground  of  infamy.  If  in- 
admissible, it  must  be  from  a  rule  of  public 
policy,  according  to  the  doctrine  laid  down  by 
the  Court  of  K.  "B.,  in  the  year  1786,  in  the 
case  of  Walton  v.  Shelly  (1  Term  Rep.,  296), 
which  was,  that  no 'man  should  be  permitted 
to  give  testimony  to  invalidate  a  paper  or  deed 
1OO*]  which  he  had  signed.  It  seems  to  *be 
admitted  in  the  English  courts  that  this  was 
the  first  case  in  which  the  doctrine  was  judi- 
cially determined  and  settled.  It  was,  however, 
soon  questioned  by  the  judges  at  Ni»  Prius, 
and  one  of  them,  who  had  concurred  in  the 
original  decision,  thought  proper  to  confine 
the  rule  to  the  subject  of  negotiable  paper.  (1 
Esp.  N.  P.  Cases,  176,  299f  Peake,  117,  224; 
3  Term  Rep.,  34.)  At  last,  in  the  case  of  Jor- 
daine  v.  Lfishbrook  et  al.  (7  Term  Rep. ,  601),  in 
the  year  1798,  the  Court  of  K.  B.  rejected  the 
rule,  in  as  solemn  a  manner  as  it  had  been 
originally  established. 

This  court  has  never  given  any  opinion  on 
the  question,  and  as  the  recent  and  contradic- 
tory decisions  in  England  afford  us  no  positive 
guide,  we  must  examine  the  rule  upon  the 
general  principles  of  the  law  of  evidence. 

The  general  rule,  prior  to  the  case  of  Walton 
JOHNSON'S  CASES,  3. 


v.  Shelly,  was,  that  if  a  witness  capable  of 
being  sworn  was  not  shown  positively  to  be 
incompetent  because  interested,  or  because  in- 
famous, he  was  to  be  admitted  ;  and  the  courts 
used  to  incline  to  let  objections  go  rather  to 
the  credit  than  to  the  competency  of  witnesses, 
as  being  the  course  most  favorable  to  the  in- 
vestigation of  truth.  The  question  of  interest 
has,  at  length,  been  rescued  from  a  series  of 
vibrating  decisions,  and  brought  to  this  plain 
standard,  viz.,  will  the  the  witness  gain  or 
lose  by  the  event  of  the  cause?  This  was  the 
decision  in  England,  in  the  case  of  Bent  v, 
Baker  (3  Term  Rep. ,  34).  and  was  recogni/ed 
and  established  by  this  court,  at  the  last  Jan- 
uary Term,  in  the  case  of  Van  Nvya  v.  Ter- 
hune.  (Ante,  p.  82.)  Incompetency  on  the 
ground  of  interest  being  thus  clearly  defined 
and  limited,  I  am,  for  the  reasons  which 
guided  the  decision  in  that  case,  against  en- 
larging the  incompetency  of  witnesses,  on  any 
other  ground,  beyond  the  established  practice. 
I  think  it  neither  convenient  to  the  public,  nor 
favorable  to  justice  ;  and  the  reasoning  of  the 
court  in  the  case  of  Jordaine  v.  La&hbrook 
carries  conviction  to  my  mind.  If  a  partv  be 
at  *liberty  to  invalidate,  by  other  [*lf)l 
proof,  the  negotiable  paper  which  he  has 
signed  and  circulated  ;  if  instrumentary  wit- 
nesses may  be  admitted  and  heard  to  impeach 
the  instrument  which  they  have  attested  (1 
Black.  Rep.,  365);  if  it  be  the  universal  prac- 
tice in  criminal  cases,  and  not  unfrequently  in 
civil  (1  Mod.,  283;  Bull.  2V".  P.,  286;  Cowp., 
197 ;  Sayer,  289),  to  allow  a  witness,  who  was 
aparticeps  enminis,  to  allege  his  own  turpitude; 
and  if  public  policy  and  good  morals  forbid 
any  shelter  or  security  to  fraud,  and  invite 
persons  to  come  forward  and  expose  violations 
of  law  (none  of  which  positions  can  well  be 
denied),  I  see  no  sufficient  reason  for  adopting 
the  rule  in  Walton  v.  Shelly.  If  'the  interest 
of  negotiable  paper  be  much  concerned  in  the 
establishment  of  that  rule  (of  which  I  doubt) 
that  interest  must  yield  to  the  general  princi- 
ples of  law  and  to  public  convenience.  The 
maxim  of  the  civil  law,  that  nemo  alltgans  sua/u 
turpitudinem  est  audiendus,  which  Lord  Mans- 
field cited,  in  the  case  of  Walton  v.  Shelly, 
must  certainly  be  received  with  many  limita- 
tions ;  for,  as  a  general  rule,  it  is  contradicted 
by  daily  experience.  The  case  of  Clarke  \. 
S'hee  &  Johnson  (Cowp.,  197),  in  K.  B.  in  1774, 
is  a  very  strong  case  to  show  that  it  has  no 
application  to  witnesses,  even  in  civil  suits. 
It  was  an  action  of  assumpsit  for  money  lent, 
and  the  plaintiff  called  his  clerk  as  a  witness, 
after  he  had  released  him,  to  prove  that  he 
had  received  the  plaintiff's  money,  in  the 
course  of  his  business,  to  a  large  amount,  and 
had  paid  it  to  the  defendant,  upon  the  chances 
of  the  coming  up  of  tickets  in  the  State  lot- 
tery, contrary  to  the  Lottery  Act.  The  witness 
was  objected  to  as  a  partteepa  erintmw,  and, 
consequently,  incompetent,  because  no  man 
should  be  admitted  to  prove  his  own  turpi- 
tude ;  and  this  witness  was  called  to  prove 
himself  guilty  of  a  breach  of  trust,  in  embe/.- 
zling  his  master's  money,  and  also  of  a  breach 
of  the  act  of  Parliament.  The  other  side  con- 
tended that  being  released,  and,  consequently, 
disinterested,  the  plaintiff,  an  innocent  man, 
had  a  right  *to  his  testimony.  Lord  [*1*>2 

Mi 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


Mansfield  said  there  could  be  no  doubt  of  his 
competency,  and  he  cited  the  case  of  Bush  v. 
Butting  (Sayer,  289),  in  the  time  of  Sir  D. 
Ryder,  which  was  an  action  of  debt  on  the 
statute  of  2  Geo.  II.  against  bribery,  where  a 
man  who  had  taken  the  bribery  oath,  was 
held  a  competent  witness  to  prove  himself 
bribed,  and  in  that  opinion  all  the  court  con- 
curred. 

The  maxim  nemo  attegam,  &c. ,  is  applicable 
to  parties  rather  than  to  witnesses ;  and  it 
goes  no  more  to  the  exclusion  of  witnesses  in 
•civil,  than  in  criminal  cases.1 

My  opinion,  accordingly,  is,  that  the  witness 
offered  in  the  cases  stated  was  a  competent 
witness,  and  that  judgment  ought  to  be  for 
the  defendants. 

THOMPSON,  J.  This  was  an  action  of  axsump- 
#it,  brought  by  the  indorsee  against  the  in- 
dorser  of  a  promissory  note,  drawn  by  John 
M.  Smith. 

It  is  stated  in  the  case  that  Smith,  the  payee, 
has  taken  the  benefit  of  the  Bankrupt  Act  since 
making  the  note,  and  has  released  to  his 
Assignees  all  interest  in  the  residue  of  his 
estate. 

Smith  is  offered,  on  the  part  of  the  defend- 
ant, to  prove  that  this  note  was  made  for  a 
usurious  consideration,  and,  of  course,  void. 

The  question  submitted  to  the  decision  of 
this  court  is,  whether  John  M.  Smith  was  a 
competent  witness  to  prove  that  fact. 

The  circumstances  under  which  this  ques- 
tion presents  itself,  are  so  weighty  and  im- 
193*]  portant,  that  it  is  with  some  *diffi- 
•dence  that  I  approach  the  decision.  Having 
been  argued  before  I  came  to  the  bench,  I  am 
left  to  decide  it,  xinaided  by  the  light  which 
might  have  been  thrown  upon  it  by  the  coun- 
sel concerned,  and  the  difference  of  opinion 
between  m'y  brethren  imposes  upon  me  the 
task  of  deciding  the  question.  On  recurrence 
to  the  authorities  cited,  there  appears  to  be  no 
•case  prior  to  the  year  1775  in  which  this  point 
came  directly  under  consideration ;  and  in 
those  referred  to  since  that  period,  there  ap- 
pears to  be  great  contrariety  of  decision,  and 
diversity  of  opinion.  The  question,  therefore, 
comes  before  this  court  as  one  new  and  alto- 
gether unsettled,  and  must  depend  upon  the 
reason,  justice,  propriety  and  policy  of  the 
rule  to  be  adopted.  Smith,  in  the  present 
case,  could  not  be  considered  as  interested  in 
the  event  of  the  cause ;  neither  was  he,  by 
conviction,  rendered  infamous,  so  as  to  exclude 
his  testimony.  There  are  also  considerations 
of  public  policy  which  weigh  strongly  in  my 
mind,  in  favor  of  the  admission  of  this  wit- 
ness. It  is  certainly  right  and  proper  that  the 
statute  against  usury  should  be  enforced,  and 
I  do  not  hesitate  to  declare,  that  I  feel  it  my 
indispensable  duty,  so  long  as  that  statute  re- 

1. — Evans,  in  a  note  to  the  translation  of  Pothier 
on  Obligations  (Vol.  II.  p.  318),  in  remarking  on  the 
decision  in  Walton  v.  Shelly,  says,  very  justly,  that 
the  real  principle  of  the  maxim  cited  by  Lord  Mans- 
field, is  no  more  than  that  a  person  shall  not  found 
any  claim  or  defense  upon  nis  own  iniquity,  aud 
that  it  had  no  relation  to  the  case  of  a  witness ;  that 
it  would  be  difficult  to  conceive  that  a  person  would 
be  inclined,  as  a  witness,  to  state  his  own  miscon- 
duct, in  opposition  to  the  truth,  unless  he  appeared 
to  have  some  motive  for  doing  so,  connected  with 
the  event  of  the  cause. 

664 


mains  in  force,  strictly  to  exercise  all  the  con- 
stitutional and  legal  powers  vested  in  this 
court  for  the  purpose  of  carrying  it  into  effect. 
But  although  refusing  to  admit  a  party  to  a 
note  as  a  competent  witness  to  prove  the 
usury  may,  perhaps,  render  it  more  difficult 
to  establish  the  fact,  yet  I  think  a  contrary 
decision  would  be  fraught  with  mischiefs  far 
more  pernicious.  The  rule  as  laid  down  by 
Lord  Mansfield,  in  the  case  of  Walton  v.  Shelly, 
"that  no  man  shall  be  admitted  to  invalidate 
his  own  paper,  and  especially  negotiable 
paper,"  seems  to  be  founded  in  so  much  good 
sense,  and  on  such  sound  principles  that  I  think 
it  ought  not  to  be  shaken.  Although  the 
interest  of  bona  fide  holders  of  a  promissory 
note  may  be  materially  affected  by  admitting 
the  original  consideration  to  be  at  all  impeached, 
yet  I  take  *this  principle  to  be  too  well  [*194 
settled  now  to  admit  of  doubt,  that  a  note 
given  for  a  usurious  consideration,  though  in 
the  hands  of  a  fair  purchaser  without  notice, 
is  void.  The  necessity  of  the  case  requires 
the  law  to  be  thus  settled,  otherwise  the  statute 
would  become*  a  dead  letter.  But  to  extend 
the  principle  so  far  as  to  admit  the  maker  of 
the  note  himself  to  invalidate  an  instrument 
which  he  has  signed  and  put  into  circulation, 
as  a  bona  fide  transaction,  seems  to  be  too 
much  jeopardizing  the  rights  of  third  persons, 
and  clogging  the  circulation  of  this  species  of 
paper,  which  the  Legislature  have  thought 
proper  to  encourage,  and  to  open  so  wide  a 
door  to  fraud  and  imposition,  and  afford  so 
great  a  temptation  to  perjury,  that  it  would 
be  attended  with  evils  incalculable. 

As  contradictory  decisions  on  this  point  have 
been  made  in  England,  it  may  not  be  im- 
proper to  examine  the  cases  in  which  the  ques- 
tion arose,  and  to  see  on  which  side  the  weight 
of  argument  and  authority  lies. 

No  case  prior  to  that  of  Walton  v.  Shelly  is 
to  be  found  in  which  this  question  is  directly 
raised.  Yet  the  counsel  in  that  cause  admit 
the  rule  as  laid  down  by  Lord  Mansfield  to  be 
correct,  but  denied  its  application,  because  the 
action  was  not  founded  on  the  notes  in  ques- 
tion. Their  language,  as  stated  by  the  re- 
porter, is  this:  "  If  there  is  no  objection  to 
this  evidence  in  point  of  interest,  the  only 
consideration  is,  whether  the  witness  shall  be 
permitted  to  invalidate  his  own  security.  They 
admitted  the  propriety  of  the  general  rule 
that  no  person  ought  'ever  to  be  permitted  to 
invalidate  any  instrument  or  cash  paper  to 
which  he  has  contributed  to  give  a  currency, 
by  affixing  his  name.  But,"  say  they,  "  that 
rule  has  only  been  adopted  where  the  action 
has  been  brought  on  such  specific  note.  There 
the  evidence  of  the  indorser  could  not  be  re- 
ceived, because  it  tends  to  impeach  his  own 
security."  And,  indeed,  the  judges,  in  de- 
livering their  *opinions  in  that  cause,  [*lf)5 
speak  of  it  as  a  rule  never  before  doubted. 
The  maxim  of  the  civil  law,  nemo  allegans 
mam  turpitudinem  est  audiendus,  is  certainly 
founded  in  good  sense.  It  seems  repugnant 
to  the  sound  principles  of  morality  and  pro- 
priety that  any  man  should  be  permitted,  and 
much  more  compelled,  to  come  into  a  court 
of  justice  and  allege  his  own  crimes ;  and 
atlhough  perhaps  a  witness,  under  such  cir- 
cumstances, might  not  carry  much  weight 
JOHNSON'S  CASES,  3. 


1802 


RIGGS  v.  DENNISTON. 


195 


with  a  jury,  if  the  objection  went  to  his  credit, 
and  not  to  his  competency,  yet  it  appears  to 
me  too  dangerous  a  principle,  and  too  injurious 
to  commerce,  to  be  adopted.  I  do  not  mean 
to  adopt  the  maxim  above  quoted,  in  its  fullest 
extent,  and  to  say,  that  in  no  case  shall  a  man 
be  heard,  to  allege  his  own  turpitude,  but  I 
think  it  is  contrary  to  sound  principles  that 
he  should  be  compelled  to  do  it.  So  far  as  the 
decision  in  this  case  of  Walton  v.  Shelly  ought 
to  have  weight,  it  is  the  unanimous  opinion  of 
the  court,  against  the  admission  of  the  witness. 

In  the  case  of  Bent  v.  Baker,  Lord  Kenyon, 
who  appears  some  years  afterwards  to  have 
•changed  his  opinion,  admits  the  rule,  as  laid 
down  by  Lord  Mansfield,  to  be  proper  when 
applied  to  negotiable  paper.  His  language,  as 
stated  by  the  reporter,  is  this:  "It  has  been 
said,  that  a  person  cannot  be  admitted  to  give 
evidence  to  invalidate  an  instrument  which  he 
himself  has  executed,  but  I  cannot  assent  to 
that  as  a  general  proposition.  I  entirely  agree 
with  the  distinction  taken  by  my  brother  Bul- 
ler,  that  where  a  person  has  signed  a  negoti- 
able instrument,  he  shall  not  be  permitted  to 
invalidate  it  by  his  own  testimony. "  It  is  true 
Lord  Kenyon,  some  years  afterwards,  in  the 
oase  of  Rich  v.  Topping  (1  Esp.  Rep.,  173), 
denied  that  he  made  use  of  the  words  imputed 
to  him  in  Brent  v.  Baker. 

In  the  case  of  Charrington  v.  Milmr  (Peake 
N.  P.,  6),  he  again  recognizes  the  same  prin- 
ciple. It  was  an  action  by  the  indorsee  of  a 
promissory  note  against  the  maker.  The 
196*]  *indorser  was  called  to  prove  that  the 
note  had  been  paid.  The  witness  was  objected 
to  on  the  ground  that  a  man  should  not  be 
permitted  to  invalidate  his  own  paper.  Lord 
Kenyon  admitted  the  witness,  stating  that  he 
was  competent,  because  his  evidence  did  not 
go  to  prove  the  note  originally  void,  clearly 
implying  that  had  the  object  of  his  testimony 
been  to  show  that  the  note  was  originally 
void,  he  would  not  have  been  competent. 

The  same  point  was  decided  by  Justice  Bul- 
ler,  at  Nisi  Prius,  in  the  case  of  Phetheon  v. 
Whitmore.  (Peake  N.  P.,  40.) 

In  the  case  of  Humphrey  v.  Moxon  (Peak. , 
32),  Lord  Kenyon  again  recognized  the  same 
principle,  and  speaks  of  it  as  a  point  well  set- 
tled. He  says,  "the  courts  have  laid  down  a 
rule  that  a  man  shall  not  destroy  his  own 
security."  Lord  Kenyon,  however,  afterwards, 
in  the  case  of  Adams  v.  Lingard  (Peake,  117), 
ruled  otherwise,  at  Nisi  Prius,  and  admitted 
the  indorsee  of  a  bill  of  exchange  to  invali- 
date it. 

In  the  case  of  Jordaine  v.  Lashbrooke,  the 
question  again  came  before  the  Court  of  King's 
Bench,  when  Lord  Kenyon,  together  with 
Justices  Grose  and  Lawrence,  decided  that  the 
payee  of  a  bill  of  exchange,  in  an  action  by 
the  indorsee  against  the  acceptor,  was  compe- 
tent to  prove  the  bill  void  in  its  creation,  Jus- 
tice Ashhurst  dissenting.  Thus  we  find  differ- 
ent decisions  at  different  periods,  in  the  Court 
of  King's  Bench ;  and,  on  some  occasions,  I 
think  it  may  fairly  be  said  that  Lord  Kenyon 
has  differed  with  himself.  Under  all  these 
circumstances,  this  question  seems  to  be  unset- 
tled in  the  English  courts.  No  decisions  have 
there  taken  place  that  can,  in  any  measure, 
influence  the  determination  of  this  court. 
JOHNSON'S  CASES,  8. 


Believing,  as  I  do,  that  to  admit  a  party  to  a 
negotiable  note  to  come  forward  as  a  witness 
to  impeach  that  note,  would  greatly  embarrass 
|  trade  and  commerce,  and  almost  entirely  pre- 
vent the  circulation  of  this  species  of  paper, 
and  that  if  it  did  not  have  thin  effect,  *it  [*  1 9 7 
would  open  a  door  to  innumerable  frauds  and 
impositions  upon  bona  fide  holders  of  nego- 
tiable paper,  and  that  it  would,  in  its  conse- 
quences, hold  out  strong  temptations  to  perjury 
and  corruption,  I  think,  on  the  whole,  that 
principles  of  sound  policy  and  morality  demand 
the  decision  that  a  party  to  a  negotiable  note 
ought  not  to  be  admitted  as  a  witness  to  inval- 
idate it.  I  confine  myself,  in  this  decision,  to 
the  particular  case  of  negotiable  notes,  and  do 
not  mean  to  say,  generally,  that  in  no  cast- 
whatever,  a  party  to  any  instrument  shall  be 
permitted  to  impeach  it. 

Judgment  for  the  plaintiffs.* 

Overruled  — 5  Cow.,  25,  153,  159;  8  Cow.,  672;  3 
Wend.,  416. 

Explained — 17  Johns.,  180. 

Distinguished— 10  Johns.,  232 ;  18  Johns.,  168. 

Cited  in— Post,  211 ;  1  Cai.,  267 ;  1  Johns.,  572 ;  2 
Johns.,  169;  2  Johns.  Ch.,  192;  Hoff.,  594 ;  2  McLean, 
245. 


*RIGGS  «.  DENNISTON.     [*198 

1.  Libel—  Counselor  at  Law  —  Witness  —  Client'* 
Secrets.      2.    Id.  —  Commissioner    of   Bank- 
ruptcy —  Charging    Various   Offenses  —  Justiji-* 
cation  —  Pleading. 

To  charge  a  counselor  at  law  with  offering'  him- 
self as  a  witness,  in  Order  to  divulge  the  secrets  of 
his  client,  is  libelous  ;  and  it  is  not  a  sufficient  jus- 
tification, that  he  disclosed  matters  communicated 
to  him  by  his  client,  which  had  no  relation  or  perti- 
nency to  the  cause  in  which  he  was  engaged. 

The  secrets  of  his  client,  which  the  counsel  is 
bound  to  keep,  are  the  communications  and  instruc- 
tions of  the  client,  relative  to  the  management  or 
defense  of  his  cause. 

To  charge  a  commissioner  of  bankruptcy  with 
being  a  misanthropist,  a  partizan,  stripping  the 
unfortunate  debtors  of  every  cent,  and  then  depriv- 
ing them  of  the  benefit  of  the  act,  &c.,  is  libelous. 
And  to  make  out  a  justification  of  the  charge,  the 
defendant  must  show  that  the  plaintiff,  as  commis- 
sioner, willfully  perverted  the  law  to  such  oppressive 
purposes. 

Whether  the  law  allows  a  justification  of  a  libel 
which  does  not  charge  any  indictable  offense. 
Qucere. 

Citation—  Cowp.,  687;  4  Term  R.,  432;  Laws  of  U. 
8.,  Vol.  v.,  p.  60  ;  2  Vent.,  193  ;  Cro.  Jac.,  27  :  Cro.  Eli/.. 
434. 


was  an  action  for  a  libel.  The  case 
-L  came  before  the  court  on  demurrer  to  the 
pleas. 

The  following  is  a  brief  statement  of  the 
pleadings.  The  declaration  contained  three 
counts: 

1.—  Peake,  in  his  Law  of  Evidence,  3d  ed.,  190,  in 
1808,  and  Chitty,  in  his  Treatise  on  Bills  and  Notes, 
2d  ed.,  p.  282,  considers  the  rule  laid  down  in  the  case 
of  Walton  v.  Shelly  as  no  longer  existing,  after  the 
solemn  decision  of  the  court,  in  the  case  of  Jqr- 
daine  v.  Lashbrooke,  and  the  competency  of  a  wit- 
ness seems  to  rest  wholly  on  the  question  of  inter- 
est. See,  also,  Kent  v.  Lower,  and  Shuttlewortli  v. 
Stephens,  1  Campb.  N.  P.,  177,  408,  and  Mnundrcl  v. 
Kennett,  Ih.,  note  ;  Stevens  v.  Lynch,  2  Campb.  J\". 
P.,  332. 

667 


198 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1802 


The  first  count  stated  that  the  plaintiff  was 
a  counselor  at  law,  of  this  and  other  courts, 
and  also  a  commissioner  of  bankruptcy,  under 
the  act  of  Congress ;  and  that  the  defendant, 
maliciously  intending  to  defame  and  injure 
him,  as  counselor  and  commissioner,  did,  on 
the  20th  April,  1801,  falsely  and  maliciously, 
print  and  publish  in  a  newspaper,  to  the  fol- 
lowing effect,  viz :  "Since  the  establishment  of 
our  independence  there  has  been  no  man 
appointed  to  an  office,  so  unqualified  to  fill  it 
as  C.  8.  Riggs  (meaning  the  plaintiff)  is  that  of 
commissioner  of  bankruptcy.  Is  the  misan- 
thropist and  the  violent  partizan  (meaning  the 
plaintiff)  a  fit  character  to  intrust  the  liberties 
of  our  fellow-citizens  with?  Mr.  Riggs  (mean- 
ing the  plaintiff)  has  given  no  ocular  demon- 
stration to  the  contrary.  He  (meaning  the 
plaintiff)  has  defeated  nearly  one  third  of  all 
the  unfortunate  debtors  that  have  been  before 
him  (meaning  the  plaintiff),  first  stripping 
them  of  every  cent  they  have  in  the  world, 
then  depriving  them  of  the  benefit  of  the  act 
made  for  their  relief,  under  the  most  trifling 
pretenses ;  and,  by  that  means,  cutting  off  a 
number  of  valuable  members  from  society ; 
that  property  being  taken  from  them  (mean- 
ing the  said  unfortunate  debtors),  they  have  no 
way  of  bringing  their  creditors  to  a  settlement ; 
and,  in  that  embarrassed  situation,  they  can 
follow  no  business,  and,  perhaps,  thrown  into 
a  gaol,  and  there  expire  for  want.  Oh !  how 
grateful  must  this  be  to  the  feelings  of  this 
1&9*]  misanthropist  *(meaning  the  plaintiff), 
more  so  than  to  keep  unfortunate  debtors  in 
gaol  for  petty  law  costs,  when  his  (meaning 
the  plaintiff's)  client  is  willing  to  liberate  the 
poor  sufferer  that  has  been  in  confinement  for 
years  ;  more  so  than  if  they  had  succeeded  in 
depriving  the  debtors  of  the  benefit  of  the 
limits ;  nay,  even  more  so  than  to  receive  a  fee 
of  $50  as"  a  counselor  (meaning  to  intimate, 
•fee.,  that  the  plaintiff  had  been  so  employed), 
and  then  to  offer  himself  (meaning  the  plaint- 
iff, and  that  he  had  voluntarily  offered  him- 
self, &c.)  as  an  evidence  against  his  client,  in 
order  to  divulge  the  secrets  he  (meaning  the 
plaintiff)  received  as  counselor,  &c.  (meaning 
thereby  that  he  had  divulged  his  client's  secrets, 
contrary  to  his  duty,  &c.).  I  (meaning  the 
defendant)  cannot  but  contrast  the  conduct  of 
the  two  sets  of  commissioners.  (Meaning  one 
set,  whereof  the  plaintiff  was  not  one,  antl  one 
set  whereof  the  plaintiff  was  one.)  The  one 
(meaning  the  set  whereof  the  plaintiff  was  not 
one)  acts  according  to  the  intent  and  meaning 
of  the  law,  &c.  They  do  not  pervert  it  into 
an  ex  post  facto  law,  and  because  a  man  can- 
But  in  Coleman  v.Wise  (2  Johns.  Rep.,  165), Spencer, 
J.,  in  delivering'  the  opinion  of  the  court,  considered 
the  rule  laid  down  by  a  majority  of  the  court,  in  the 
case  of  Winton  v.  Saidler,  as  too  solemnly  settled  to 
be  disturbed.  The  same  rule  appears  to  have  been 
adopted,  on  the  authority  of  Walton  y.  Shelly,  in  the 
Supreme  Court  of  Pennsylvania,  in  the  case  of 
Stille  v.  Lynch  (2  Dallas,  194),  and  in  the  Supreme 
Court  of  Massachusftts,  in  the  cases  of  Warren- v. 
Merry  (3  Mass.  Rep.,  27),  and  Churchill  v.  Sutter,  (4 
Mass.  Rep.,  156).  The  Supreme  Court  of  Errors,  in 
the  State  of  Connecticut,  in  Allen  v.  Holkins  (1  Day's 
Rep.,  17),  appear  to  have  adopted  the  rule  laid  down 
in  Walton  v.  Shelly,  in  its  full  extent,  that  a  person 
was  not  a  competent  witness  to  impeach  a  deed  or 
instrument  in  writing'  which  he  had  subscribed.  But 
in  Webb  v.  Danf  orth  (1  Day's  Rep.,  101),  the  same 
court  held  that  a  party  to  a  written  instrument 

668 


not  tell  the  loss  and  profit  of  a  transaction,  or 
discount  paid  upon  a  note,  things  that  had 
taken  place  years  before,  &c.,  to  cut  him  off 
from  society,"  &c.  (meaning  to  insinuate* and 
have  it  believed  that  the  plaintiff  had,  as  com- 
missioner, &c.,  willfully  and  knowingly,  per- 
verted the  law,  &c.,  for  illegal  and  oppressive 
purposes). 

The  second  count  was  to  the  same  effect, 
except  that  it  charged  the  libel  as  injurious 
only  to  the  plaintiff,  as  commissioner. 

The  third  count  was  similar,  but  charged 
the  libel  as  injurious  only  to  him  as  a  coun- 
selor. 

The  plea  to  the  first  count  stated,  by  way  of 
justification : 

1.  That,  on  the  fourth  day  of  August,  1800. 
Nathaniel  G.  Ingraham  employed  the  plaintiff, 
as  counsel,  in  a  case  brought  against  him  by 
Seixas  &  Abrahams,  and  paid  *him  [*2OO 
$50.     That  Ingraham  then  informed  him,  as- 
a  secret  communicated  to  counsel,  that  he  had 
concealed  himself  to  avoid  being  arrested  in 
that  cause,  and  had,  for  that  purpose,  left  the 
city  ;  which  secret  the  plaintiff  did  afterwards 
divulge  to'W.  W.  Woolsey,  and  afterwards, 
on  the  30th  December,  1800,  at  an  inquest  holden 
before  the  district  judge,  to  inquire  whether 
Ingraham  had  become  a  bankrupt,  the  plaint- 
iff came  and  offered   himself    as  a  witness 
against  Ingraham,  in  order  to  divulge  the  said 
secret.  v 

2.  That  the  plaintiff,  before  the  publication, 
•fee.,  did  wrongfully  and  unlawfully  use  his 
power,  as  commissioner ;  for  that  he,  as  com- 
missioner, did,  for  one  hour,  examine  a  cer- 
tain Napthali  Judah,  in  the  absence  of  the 
other  commissioners  (the  said  Napthali  being^ 
then  a  bankrupt),  and  did  require  answers  to 
questions  put  to  him,  without  giving  the  said 
Napthali  a  reasonable   time  to  make  correct 
answers,  and  did  cause  such  examination  to  be 
reduced  to  writing,  and  compel  the  said  Nap- 
thali to  sign  the  same,  with  the  intent  that 
such  examination  should  be  used  by  the  com- 
missioners, in  deciding  whether  the  said  Nap- 
thali was  entitled  to  the  benefit  of  the  act,  &e. 

3.  That  the  plaintiff,  before  the  publication, 
«&c.,  did,  without  assigning  any  reason,  refuse, 
as  commissioner,  &c.,  to  certify  in  the  case  of 
the  said  Napthali,  and  in  the  case  of  John 
Blagge,  who  had  before  been  under  examina- 
tion as  a  bankrupt,  and  who  were  entitled  to 
their  certificates. 

4.  That  the  plaintiff,  before  the  publication, 
&c.,  did,  as  commissioner,  &c.,  examine  the 
said  John  Blagge,  then  before  him  as  a  bank- 
rupt; and  also  the  said  Napthali  and  the  said 

mijjht  be  a  witness  to  facts,  subsequent  to  its  exe- 
cution. 

So  in  Warren  v.  Merry,  the  Supreme  Court  of 
Massachusetts  held  that  the  maker  of  a  note  was  a 
competent  witness  to  prove  any  facts  happening 
after  he  negotiated  the  nott',  if  he  was  not  interested ; 
and  this  court,  in  Baker  v.  Arnold  (1  Caines,  258),  held 
that  the  indorser  of  a  note  was  a  competent  witness 
to  prove  that  the  indorsement  was  made  after  the 
note  was  due ;  though  Livingston,  J.,  and  Thompson, 
J.,  thought  the  witness  iricomix-tent,  within  the 
principle  laid  down  in  Winton  v.  Saidler. 

See,  further,  Barinir  v.  Reeder  (I  Hen.  &  Mun., 
174),  in  the  Supreme  Court  of  Virginia,  the  opinion 
of  Lyon,  J.,  who  adopts  the  case  of  Walton  v.  Shelly 
as  the  best  law.  The  Supreme  Court  of  South  Caro- 
lina, in  the  case  of  Canty  v.  Sumter  (2  Bay's  R»:p.>,  83, 
also  adopted  the  rule  of  that  case,  scd  ausere. 

JOHNSON'S  CASES,  3. 


1802 


RIGGS  v.  DENNISTON. 


200 


X.  G.  Ingraham,  also  bankrupts,  touching  the 
loss  and  profit  on  transactions  many  years  be- 
fore the  bankrupt  law  was  in  force,  and  be- 
cause they  could  not  tell,  &c.,  the  plaintiff,  as 
commissioner,  under  such  pretenses,  did  de- 
prive them  of  the  benefit  of  the  act.  There- 
20 1*]  fore,  *the  defendant  published  the 
words  in  the  first  count,  as  he  lawfully  might. 

There  were  pleas  of  justification  to  the  like 
effect,  to  the  second  and  third  counts  in  the  dec- 
laration ;  except  that  the  matter  of  justification 
in  the  second  plea  was,  in  conformity  to  the 
second  count,  confined  to  the  plaintiff's  con- 
duct as  commissioner,  and  in  the  third  plea  to 
his  conduct  as  counselor. 

The  fourth  plea  was  to  the  whole  declara- 
tion, and  to  the  effect  "that  at  the  time  of 
printing  and  publishing  the  words,  the  same 
were  true ;  wherefore,  the  defendant  printed 
-and  published  them  as  he  lawfully  might,"  &c. 

There  was  a  special  demurrer  to  the  first 
plea,  because — 

1.  It  did  not  deny  any  of  the  libelous  mat- 
ters set  forth  in  the  first  count,  nor  set  forth 
Any  legal  justification   or  excuse  for  a  great 
part  of  the  libelous  words 

2.  That  the  first  count  sets  forth  the  mean- 
ing of  the  words  by  inuendoes,  and  the  plea 
.admits  not  only  the  publishing  the  words,  but 
the  inuendoes,  and  does  not  allege  any  fact 
tending  to  justify  them  in  the  sense  they  are 
.stated  to  have  been  published.     It  neither  ex- 
pressly admits,  nor  traverses  and  denies  the 
inuendoes. 

3.  That  the  pretended  justification  does  not 
meet  and  justify  the  allegations  in  the  bill, 
neither  as  to  the  direct  charges,  nor  as  to  the 
meaning,  &c. 

4.  That  the  plea  alleges  the  plaintiff  did  cer- 
tain acts  as  commissioner,  in  the  absence  of 
the  other  commissioners ;    but   does  not  de- 
scribe who  those  absent  commissioners  were. 

5.  That  the  plea  alleges  a  certain  examina- 
tion was  intended  to  be  used  on  the  inquiry, 
whether,  &c.,  which  allegation  is  impertinent 
and  senseless. 

There  were  also  special  demurrers,  to  the 
like  effect,  to  the  second  and  third  pleas. 

The  special  demurrer  to  the  fourth  plea 
stated  that  the  plea  did  not  set  forth  one  fact 
to  show  the  truth  of  the  libel,  nor  any  matter 
of  fact  on  which  an  issue  could  be  taken,  and 
was  too  general  and  uncertain. 

2  O2*]      *Mr.  Hopkinx  in  support  of  the  de- 
murrer. 
Mr.  Biker,  contra. 

KENT,  J.,  delivered  the  opinion  of  the  court: 
There  can  be  no  doubt  but  that  the  charges 
contained  in  the  declaration  are  libelous,  and 
actionable.  They  were  published  of  the  plaint- 
iff, in  relation  to  his  profession  and  office,  and 
tended  to  injure  and  disgrace  him.  They 
charged  him  with  a  want  of  fidelity  in  his  pro- 
fession, and  with  partial  and  oppressive  con- 
duct as  a  commissioner.  They  were  printed, 
and  consequently  had  a  wider  circulation  and 
more  permanent  existence.  The  only  ques- 
tion, therefore,  that  can  arise  upon  the  record, 
is,  whether  the  pleas  contain  matter  which 
amount  in  law  to  a  justification  of  the  libel. 

One  charge  in  the  libel  is,  that  the  plaintiff 
.JOHNSON'S  CASES,  3. 


had  voluntarily  offered  to  divulge  the  secrets 
intrusted  to  him  by  his  client,  contrary  to  his 
duty  as  a  counselor.  The  first  plea  (to  which 
I  now  confine  myself)  states,  by  way  of  justi- 
fication of  this  charge,  that  the  plaintiff  being 
employed  by  Nathaniel  G.  Ingraham  in  a 
certain  cause,  was  informed  by  him,  as  a  se- 
cret, that  he  (Ingraham)  had  concealed  himself 
and  left  the  city,  to  avoid  being  arrested  in 
that  cause ;  and  that  the  plaintiff  afterwards 
divulged  this  secret  to  W.  W.  Woolsey,  and, 
again,  at  an  inquest  held  before  the  district 
judge,  offered  himself  as  witness  against  his 
client,  in  order  to  divulge  that  secret.  The 
fact  of  his  having  divulged  this  secret  to  Wool- 
sey, I  consider  as  irrelative  and  impertinent. 
The  libel  charges  the  plaintiff  with  a  breach  of 
trust  and  duty  as  counsel,  in  that  he  volunta- 
rily offered  himself  as  an  evidence  to  divulge 
the  secret.  The  disclosure  to  Woolsey  was  no 
answer  whatever  to  the  libel,  nor  does  that  dis- 
closure appear  to  have  been  intended,  nor 
could  it,  in  judgment  of  law,  have  operated  to 
theinjury  or  prejudice  of  his  client.  The  nature 
of  the  privilege  of  a  counselor  *is,  that  [*2O3 
he  shall  not  disclose  his  client's  secrets  in  any 
action.  The  law  has  an  eye  to  the  disclosure 
only  as  a  witness,  and  the  libel  pointed  only  to 
such  disclosure.  I  therefore  lay  the  fact  of 
that  part  of  the  disclosure  out  of  view. 

The  other  fact,  that  the  plaintiff,  at  the  in 
quest,  offered  himself  as  a  witness,  in  order  to 
divulge  the  secret  is  objected  to,  as  insuffi- 
ciently alleged,  because  it  is  not  averred  that 
he  voluntarily  offered  himself,  and  whether 
voluntary  or  not,  was  traversable.  A  volun- 
tary offer  is  here  to  be  understood,  and  the 
meaning  of  the  allegation  is  certain  to  a  com- 
mon intent,  which  is  well  enough  in  a  plea. 
The  plaintiff  might  have  traversed  the  fact, 
and  the  defendant  would  have  been  bound,  on 
the  trial,  to  have  shown  the  offer  to  have  been 
voluntary,  for  that  is  the  gist  of  this  part  of  the 
libel,  and  the  intendment  of  the  plea.  This 
allegation  in  the  plea  can  have  no  other  rea- 
sonable intendment.  It  is  the  language  of  the 
libel  itself,  which  is  admitted  to  mean  a  volun- 
tary offer,  and,  according  to  the  just  observa- 
tion of  Lord  Ch.  J.  De  Grey  (Cowp.,  687),  a 
man  cannot  defame  in  one  sense  and  defend 
himself  in  another. 

But  the  fact  which  the  plaintiff  offered  to 
divulge  does  not  amount  to  a  justification  of 
the  libel.  What  the  law  understands  by 
secrets  between  the  attorney  and  his  client,  are 
communications  made,  as  instructions,  for  con- 
ducting the  cause,  and  not  any  extraneous  or 
impertinent  communications  (4  Term  Rep., 
432) ;  and  it  does  not  appear  that  the  fact  in 
question  had  any  pertinency  to  the  merits  of 
the  cause  in  which  the  plaintiff  was  employed. 
Whether  Ingraham  had  or  had  not  concealed 
himself  to  avoid  the  process,  could  not  be  any 
matter  of  instruction  in  the  defense.  It  had 
no  relation  to  it,  and  was,  as  Lord  Kenyon 
observes  (4  Term  Rep. ,  432),  a  mere  gratis  dic- 
tum, which  the  plaintiff  was  under  no  obliga- 
tion to  keep  secret  in  his  character  as  counsel. 
At  any  rate,  it  was  incumbent  on  the  defendant 
to  have  *stated  that  the  fact  commu-  [*2O4 
nicated  had  connection  with  the  instructions 
for  a  defense,  and  so  have  given  the  plaintiff 
an  opportunity  to  traverse  that  allegation. 

66!) 


204 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


The  plea,  therefore,  as  far  as  it  justifies  the 
libel  upon  the  plaintiff  as  a  counselor,  is  bad. 
Another  part  of  the  libel  charges  the  plaintiff 
with  having  willfully  and  knowingly  perverted 
the  law,  while  acting  as  commissioner  of  bank- 
rupts, for  illegal  and  oppressive  purposes. 
The  facts  stated  in  the  plea,  by  way  of  justifi- 
cation of  these  charges,  are,  that  the  plaintiff, 
as  commissioner,  separately  examined  Nap- 
thali  Judah,  and  required  his  answers,  without 
giving  him  a  reasonable  time  to  make  correct 
ones ;  that  the  plaintiff,  without  assigning  any 
reason,  refused  to  certify  as  commissioner  in 
the  cases  of  Napthali  Judah  and  John  Blagge ; 
and  that  he  examined,  as  commissioner,  Judah, 
Blagge  and  Ingraham,  touching  transactions 
that  happened  many  years  before  the  Bank- 
rupt Act  was  passed,  and  because  they  could 
not  answer,  refused  them  their  certificates. 
My  opinion  on  these  facts  is,  that  neither  of 
them  amounts  in  law  to  a  justification,  because 
neither  of  them  import,  with  certainty,  even 
to  a  common  intent,  that  the  plaintiff  willfully 
perverted  the  law  for  illegal  and  oppressive 
purposes.  They  may  all  be  true,  and  yet 
consist  with  rectitude  of  intention. 

The  examination  of  Judah,  in  the  absence 
of  the  other  commissioners,  may  have  been 
legal,  for  what  appears  to  the  contrary.  If 
the  bankrupt  be  in  execution,  or  cannot  be 
brought  before  the  commissioners  (which 
might  have  been  the  case  here )  any  one  of 
them  may  attend  and  take  his  discovery 
(Laws  of  United  States,  Vol.  v.,  p.  60),  and  what 
amounted  to  reasonable  time  to  give  a  cor- 
rect answer  was  matter  of  opinion.  There 
is  nothing  in  this  transaction  that  by  a  com- 
mon intent  implies,  or  that  is  averred  to  mean, 
depravity  of  heart,  and  in  that  consisted  the 
essence  of  the  libel.  The  same  remark  applies, 
and  with  stronger  force,  to  the  other  fact 
2O5*J  *of  withholding  the  certificates.  The 
plea  does  not  meet  and  justify  the  charges. 
It  is  substantially  defective. 

There  are  other  charges  in  the  libel  which 
the  plea  has  not  attempted  to  answer  or  justify, 
and  which  charges  were  clearly  libelous,  be- 
cause they  threw  contumely  and  odium  upon 
the  plaintiff,  in  his  character  as  commissioner. 
These  charges  represented  him  as  a  misan- 
thropist, a  violent  partizan,  as  stripping  unfor- 
tunate debtors  of  every  cent,  of  being  gratified 
in  their  distresses,  &c.  It  is  unnecessary,  at 
present  to  examine  the  question  whether  the 
the  law  will  allow  of  a  justification  to  such 
charges  which  do  not  fix  upon  the  party  any 
indictable  offense.  It  is  sufficient  to  observe, 
that  in  respect  to  the  plea  now  in  question,  no 
justification  is  set  up  in  answer  to  them  ;  and 
as  the  plea  does  not,  therefore,  either  by  deny- 
ing or  justifying,  meet  the  whole  matter  or 
gravamen  contained  in  the  count,  it  is  for 
that  reason  also  bad.  (2  Vent.,  193;  Cro.  Jac., 
27;  Cro.  Eliz.,  484.) 

I  have  confined  myself  hitherto  to  the  first 
plea,  but  the  second  and  third  pleas  being  to 
the  same  effect,  the  same  remarks  will  apply 
to  them.  The  fourth  plea  contains  only  a 
general  allegation  that  the  words  in  the  libel 
were  true.  If  those  charges  in  the  libel,  such 
as  misanthropy,  &c. ,  to  which  no  justification 
is  set  up,  be  capable  of  being  justified  (and  on 
which  point  we  give  no  opinion),  this  general 
670 


allegation  is  sufficient,  because  such  a  char- 
acter as  the  libel  bestows  upon  the  plaintiff 
is  not  formed  by  one  specific  act,  but  by  habit- 
ual conduct.     However,  as  to  other  parts  of 
the  libel,  the  plea  is  too  general  and  vague. 
It  ought  to  have  stated  the  precise  facts  which 
j  were  to  justify  the  charges,  so  that  the  plaint- 
j  iff   might  have  an   opportunity  of   denying 
!  them. 

Upon  the  whole,  we  are  of  opinion  that  all 
the  pleas  are  bad,  and  that  judgment  ought  to 
be  for  the  plaintiff. 

Judgment  for  the  plaintiff ,l 

Overruled-40  N.  J.  Law,  271. 
Cited  in— 9  Johns.,  215;  20  Johns.,  206;   8  Wend., 
618 ;  6  Hill,  420 ;  1  Denio,  359 ;  3  Crunch  C.  C.,  38. 


*WILKIE  v.  ROOSEVELT.  [*2O« 

1.  Promissory  Note — Action  on  —  Defense — 
Usury —  Verdict  against  Charge  of  Court  — 
New  Trial  —  Decision  Disregarded  —  Third 
Tj-ial — Costs.  2.  Id.  —  Usurious  Contract — 
Innocent  Third  Parties — Proof.  3.  Question* 
of  Law  and  Fact — How  Determined. 

In  an  action  on  a  promissory  note  the  defense  wag 
usury,  and  the  judge,  at  the  trial,  charged  the  jury 
that  the  note  was  usurious  ( see  ante,  p.  66 ),  and  that 
they  ought  to  find  for  the  defendant,  but  the  jury 
found  a  verdict  for  the  plaintiff;  and  the  court 
afterwards  set  aside  the  verdict,  and  granted  a  new 
trial.  On  the  second  trial,  the  jury,  on  substantially 
the  same  evidence,  notwithstanding  the  opinion  of 
the  court,  found  a  verdict  for  the  plaintiff,  and  the 
court  set  aside  the  verdict,  as  against  law,  and 
granted  a  third  trial. 

If  a  promissory  note  is  given  for  an  usurious  con- 
tract, it  is  absolutely  void,  even  in  the  hands  of  an 
innocent  person,  who  has  taken  it  in  the  fair  and 
regular  course  of  trade,  without  knowledge  of  the 
usury. 

Citations— 2  Johns.  Cas.,  60;  ante,  p.  185;  4  Burr., 
2108 ;  1  Term  R.,  170, 171. 

ON  a  second  trial  of  this  cause  ( see  ante,  p. 
66),  the  jury  again  found  a  verdict  for 
the  plaintiff,  and  a  motion  was  now  made  to 
set  aside  the  verdict,  and  for  a  new  trial,  on  a 
case  containing  substantially  the  same  facts  as 
appeared  in  the  former  case. 

The  only  difference  was  that  Mark,  one  of 
the  drawees,  who  had  been  discharged  under 
the  Insolvent  Act,  and  whose  interest  was  re- 
leased, was  admitted  as  a  witness ;  but  this 
evidence  did  not  vary  from,  but  rather  corrob- 
orated that  given  by  the  other  witnesses  at  the 
former  trial. 

1. — In  August,  1802,  a  jury  of  inquiry  assessed  the 
damages  of  the  plaintiff  at  $500. 


NOTE—  Verdict  against  law  and  evidence — Ujntr}/. 
Where  the  verdict  is  manifestly  against  law  a  new 
trial  will  be  granted.  Hall  v.  Downs,  Brayt  (  Vt.), 
168 ;  Dillingham  v.  Snow,  5  Mass.,  547 ;  Cunningham 
v.  Magoun,  18  Pick.,  13 ;  Thomas  v.  Brown,  1  McCord 
(  S.  C.T,  557 ;  Cresman  v.  Caster,  2  Browne  ( Pa.),  123 ; 
U.  8.  v.  Duval,Gilpin,356;  Brock  v.  Garrett,  16  Ga., 
487 ;  Martin  v.  Matfleld,  49  Call.,  43. 

Where  a  verdict  is  clearly  against  evidence  a  new 
trial  irttt  he  granted.  Gantzinger  v.  Weightman,  2 
i  Cranch  C.  C.,  478 ;  Wilson  v.  Jones,  3  Blatchf .,  227 ; 
j  Lyle  v.  Rollins,  25  Cal.,  437:  Cook  v.  Jones,  28  Ga., 
i  589;  Goulden  v.  Lawrence,  33  Ga.,  159;  Clement  v, 
!  Bushway,  25  111.,  200;  Henry  v.  Eddy,  34  111.,  508; 

JOHNSON'S  CASES,  3. 


1802 


WILKIE  v.  ROOSEVELT. 


206 


As  the  case  is  important,  in  respect  to  the 
statute  against  usury,  as  only  three  judges 
were  on  the  bench  when  the  first  motion  for  a 
new  trial  was  argued,  and  as  a  difference  of 
opinion  existed  among  them,  it  may  be  useful, 
particularly  in  regard  to  the  power  exercised 
by  the  court  in  granting  new  trials,  to  state 
the  judgment  of  the  court,  after  the  second 
argument,  on  a  motion  for  a  third  trial  of  the 
cause. 

The  motion  was  argued  by 

Messrs.  Jones  and  Hamilton  for  the  defend- 
ant, and 

Messrs.  Golden  and  Hoffman  for  the  plaint- 
iff. 

THOMPSON,  J.  Two  questions,  arising  out 
of  the  above  case,  present  themselves  for  the 
consideration  of  this  court. 

1.  Whether  this  note  was  given  for  a  usuri- 
ous consideration. 

2.  If  so,  whether  the  court  ought  again  to 
interfere  and  grant  a  new  trial. 

Usury  consists  in  extorting  or  taking  a  rate 
2O  7*]  of  interest  *for  money,  beyond  what 
is  allowed  by  law.  It  is  not  necessary  that 
money  should  be  actually  advanced  in  orfler 
to  constitute  the  offense  of  usury,  but  any  pre- 
tense or  contrivance  whatever  to  gain  more 
than  legal  interest,  where  it  is  the  intent  of  the 
parties  to  contract  for  a  loan,  will  make  that 
contract  usurious. 

It  is  admitted  that  the  parties  to  this  suit 
are  innocent,  and  that  Edward  Wilkie  paid  a 
valuable  consideration  for  the  note.  This, 
however,  cannot  affect  the  present  question, 
for  if  this  note  was  given  upon  an  usurious  con- 
tract it  is  absolutely  void,  even  in  the  hands 
of  an  innocent  person,  who  may  have  taken 
it  in  a  fair  and  regular  course  of  trade  without 
any  notice  of  the  usury.  If  the  contract  was 
usurious  in  its  inception,  no  subsequent  trans- 
actions will  cure  it ;  but  if  the  original  con- 
tract was  not  usurious,  nothing  done  after- 
wards could  make  it  so. 

Taking  these  principles  as  settled,  how 
stood  the  fact  in  this  cause,  as  applicable  to 
them? 


From  the  facts,  as  stated  in  the  case,  there 
can  be  no  doubt  but  the  note  in  question  is 
the  same  note  which  Mark  &  Co.  executed, 
and  which  was  indorsed  by  James  I.  Roose- 
velt, and  delivered  to  Charles  W.  Goodrich. 
That  being  the  case,  the  note  was  given  for 
the  sum  of  $1,366.66,  payable  in  ninety  days. 
It  appears  evident,  also,  from  the  testimony 
of  Goodrich  and  Mark,  and  from  the  account, 
or  memorandum  that  was  kept  of  their  money  . 
concerns,  that  Mark  &  Co.  were  credited  only 
for  the  sum  of  $1,244,  on  account  of  that  note. 
There  can  be  no  doubt,  then,  that  the  interest 
or  premium  allowed  in  this  transaction  was 
$122.66,  which  is  a  rate  of  interest  far  beyond 
what  is  allowed  by  law.  These  facts  are 
strongly  fortified  by  the  circumstances  that 
Mark  &  Co.  were  much  in  want  of  money,  and 
that  about  the  time  when  application  was  made 
for  the  money,  and  the  note  given,  Goodrich 
told  Mark  the  rate  of  *interest  would  [*2O8 
be  higher  than  usual,  and  more  than  two  per 
cent,  pfer  month  was  mentioned.  If ,  therefore, 
these  witnesses  are  to  be  credited,  there  cannot 
remain  a  doubt  but  that  this  was  an  usurious 
contract.  The  application  to  Goodrich  was 
for  the  purpose  of  loaning  some  money  to 
answer  present  exigencies,  and  the  whole 
transaction  shows  that  it  was  a  borrowing  and 
lending,  between  Mark  and  Goodrich,  and 
that  the  manner  in  which  the  business  was 
conducted  was  for  the  purpose  of  concealment, 
and  to  evade  the  statute.  Proof  of  usury 
generally  depends  on  circumstances,  and 
where  those  circumstances  are  so  strong  as  to 
produce  absolute  conviction  in  the  mind,  they 
are  certainly  entitled  to  as  much  weight  a"s 
direct  and  positive  testimony.  Although  I 
consider  Mark  as  an  incompetent  witness,  yet 
his  testimony  must  be  taken  into  consideration, 
in  deciding  the  present  question  ;  for  to  reject 
it  now  would  be  depriving  the  party  of  an  op- 
portunity of  proving  the  same  facts  by  other 
witnesses,  if  in  his  power  to  do  it. 

I  come  now  to  the  second  point,  to  wit, 
whether  this  court  ought  to  interfere  and 
grant  a  new  trial.  The  granting  of  new  trials 
is  matter  of  sound  discretion  in  the  court, 
under  all  the  circumstances  of  the  case.  It  is, 


State  v.  Miller,  10  Min.,  313;  Wells  v.  Waterhouse, 
22  Me.,  131;  Garlies  v.  Little,  14  N.  J.  L.,  373;  Yale 
v.  Yale,  13  Conn.,  185;  Wait  v.  McNeil,  7  Mass.,  261; 
Curtis  v.  Jackson,13  Mass.,  507 ;  Tilley  v.  Spaulding-,  44 
111.,  80 ;  Toledo,  &c.,  Ry.  Co.  v.  Godriard,  25  Ind.,  185 ; 
Bondrean  v.  Bondrean,  45  111.,  480;  Booth  v.  Small, 
25  la,  177;  Clark  v.  Whitaker,  19  Conn.,  319; 
Marble  v.  Bouhotel,  3o  111.,  240 ;  Crofts  v.  Plumb, 
11  Wend.,  143 ;  Holmau  v.  Dord,  12  Barb.,  336 ;  Mann 
v.  Witbeck,  17  Barb.,  388 ;  Breese  v.  State,  12  Ohio 
St.,  146;  McAfee  v.  Robertson,  41  Tex.,  355;  Halpin 
v.  Third  Av.  Ry.  Co.,  40  N.  Y.  Sup.  Ct.,  175;  Mills  v. 
Scott,  99  U.  S.,  25 ;  A.  T.  &  S.  F.  Ry.  Co.  v.  Maher,  23 
Kan.,  163;  Darling  v.  West,  51  la.,  259. 

To  justify  a  new  trial,  the  verdict  should  be  decid- 
edly against  the  weight  of  evidence.  McDuffie  v. 
Stewart,  30  Ga.,  6(51 ;  Chicago,  etc.,  Ry.  Co.  v.  Hutch- 
ins,  34  111.,  108;  Havelick  v.  Havelick,  18  la.,  414; 
State  v.  Collins.  20  la.,  85 ;  Browning  v.  State,  33 
Miss.,  47 ;  Johnson  v.  Blanchard,  5  R.  I.,  24 ;  Baker  v. 
Bonesteel,  2  Hilt.  (N.  Y.),  397 ;  Warren  v.  Cummings, 
37  Wis.,  81;  Cheney  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  16 
Hun,  415 ;  Miller  v.  Citizens',  etc..  Ins.  Co.,  13  W.  Va., 
116 ;  Clark  v.  Hatfleld,  88  111.,  440 ;  McNeill  v.  Ross, 
44  Wis.,  539 ;  Tolford  v.  Tolford,  Wis,,  547 ;  Phyfe  v. 
Masterson,  45  N.  Y.  Super.  Ct.,  338 ;  Buck  v.  Steffey, 
65  Ind.,  58 ;  Lennon  v.  Goodrich,  89  111.,  438 ;  Blake 
v.  McMullen,  91  111.,  32 ;  Allen  v.  Wheeler,  54  la., 
628. 

A  second  or  subsequent  new  trial  will  not  be  granted 

JOHNSON'S  CASES,  8. 


without  the  clearest  conviction  of  error.  Eastman 
v.  Wight,  4  Ohio  St.,  156 ;  Gibson  v.  Hill,  23  Tex.,  77  ; 
Coffin  v.  Newburyport  Marine  Ins.  Co.,  9  Mass., 
436 ;  Barrett  v.  Rogers,  7  Mass.,  297 ;  Fowler  v.  yEtna 
Ins.  Co.,  7  Weiid.,  270;  Dorsey  v.  Daughwty,  1  A.  K. 
Marsh,  (  Ky.),  182 ;  Carlin  v.  Chicago  etc.  Ry.  Co..  37 
Iowa,  316 ;  Emery  v.  Hawley,  1  Wyo.  Tcr.,  303. 

Verdict  without  evidence  not  permitted  to  stand 
even  after  three  trials.  Lodge  v.  Railroad,  10  Phila. 
(Pa.),  153. 

A.  conflict  of  evidence  doe*  not  justify  a  new  trial. 
Newell  v.  Rush,  23  Ind.,  210 ;  Pilmer  v.  State  Bank, 
19  Iowa,  112;  Dixon  v.  Merritt,  6  Min.,  160;  Lisbon 
v.  Bath,  23  N.  H.,  1;  Easterly  v.  Cole,  1  Barb.,  235; 
People  v.  Townsend,  37  Id.,  520 ;  Marble  v.  Fay,  49 
CaL,  585 ;  People  v.  Simpson,  50  Id.,  304 ;  Thompson 
v.  State,  55  Ga.,  47;  O'Shields  v.  State,  Ga.,  696; 
Clifford  v.  Luhring,  69  111.,  401 ;  Kightlinger  v.  Egan, 
75  111.,  141 ;  Miller  v.  Bathasser,  78  111.,  302. 

But  see  Chicago,  etc.,  Ry.  Co.  v.  Stumps,  69  111.. 
409. 

Usury.  As  to  security  usurious  in  its  inception, 
see  Jones  v.  Hake,  2  Johns.  Cas.,  60,  and  note  in  this 
edition. 

As  to  security  not  usurious  in  its  inception,  con- 
cerning which  a  subsequent  usurious  agreement  was 
made,  see  Bush  v.  Livingston,  2  Caines'  Cas. ,  66,  and 
note. 

As  to  when  usurious  notes  are  void  or  voidablt,  see 
statutes  on  the  subject. 

671 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1802 


undoubtedly,  for  the  furtherance  of  justice, 
that  the  powers  of  the  court,  and  the  powers 
of  the  jury,  should  be  confined  within  their 
proper  limits.  That  the  jury  should  be  the 
triers  of  the  fact,  and  the  court  judges  of  the 
law.  And  although,  after  two  verdicts,  the 
court  will  proceed  with  the  utmost  caution 
and  deliberation  in  granting  another  trial,  yet 
when  the  verdict  is  against  law,  there  can  be 
,  no  question  as  to  the  right  of  this  court  again 
to  interfere,  and  I  think  there  can  be  but  little 
doubt  as  to  the  duty  of  the  court  to  exercise 
that  right.  I  do  not  consider  this  as  one  of 
those  cases  where  the  rigorous  execution  of 
extreme  legal  justice  is  hardly  reconcilable  to 
conscience,  and  that  on  that  ground  the  court 
ought  not  again  to  grant  a  new  trial.  If  the 
2OO*]  statute  against  *usury  is  an  uncon- 
scieiitious  defense,  or  the  law  impolitic,  it  is 
the  province  of  the  Legislature  to  repeal  it. 
But  as  long  as  it  remains  in  force,  it  is  the 
indispensable  duty  of  a  court  and  jury  to  carry 
it  into  effect.  And  from  an  attentive  examin- 
ation of  all  the  circumstances  of  this  case,  I 
cannot  discover  any  plausible  grounds  the  jury 
could  have  taken  in  giving  their  verdict,  con- 
sistent with  the  law  arising  from  the  facts. 
Considering,  therefore,  the  verdict  as  both 
against  law" and  evidence,  I  am  of  opinion  that 
A  new  trial  ought  to  be  granted. 

RADCLIKF,  /.  This  is  an  application  to  set 
aside  a  second  verdict  obtained  by  the  plaint- 
iff, on  a  note  alleged  to  be  usurious.  The 
facts  stated  in  the  present  case  are  sub- 
stantially the  same  as  appeared  on  the  first 
trial,  and  on  which  a  new  trial  was  awarded. 
The  witnesses  are  the  same,  except  that  Jacob 
Mark  was  examined  on  the  second  trial, 
instead  of  his  clerk ;  and  if  there  be  any 
difference  in  the  effect  of  their  testimony,  it  is 
that  Mark  supports  the  other  proof  to  establish 
the  usury  more  fully  than  his  clerk.  On  this, 
as  on  the  former  occasion,  there  is  no  doubt, 
on  the  evidence,  as  to  the  fact  of»  usury.  The 
proof  is  direct  and  complete,  and  if  the 
principles  heretofore  adopted  by  the  court  in 
this  cause  and  in  the  case  of  Jones  v.  Hake  (2 
Johns.  Cases,  60)  be  correct,  there  is  no  doubt 
of  the  fact  of  usury.  There  exists  no  con-1 
trariety  of  evidence  on  which  the  mind  can 
balance.  The  charge  of  the  judge,  at  the  last 
trial,  as  applied  to  the  evidence,  was  also 
explicit  in  favor  of  the  defendant,  and  I, 
therefore,  think  it  unnecessary  to  express  an 
opinion  as  to  the  other  points  suggested  in  it. 

The  only  question  is,  whether  in  a  case  of 
usury,  after  two  verdicts,  where  no  opposite 
testimony  appears,  the  verdict  of  the  jury 
ought  to  prevail  against  the  law  and  evidence. 
I  consider  it  as  a  verdict  against  law  as  well  as 
evidence,  for  where  the  facts  are  fully  and 
21O*]  satisfactorily  *proved,  and  no  contro- 
versy exists  respecting  them,  the  decision  upon 
them  must  be  a  decision  of  law  as  much  as 
upon  a  special  verdict. 

In  setting  aside  the  former  verdict,  and  in 
the  case  of  Jones  v.  Halce,  we  have  already 
determined  that  the  nature  of  this  defense  is 
not  a  reason  for  submitting  implicitly  to  the 
verdict  of  a  jury.  Without  expressing  an 
opinion  as  to  the  expediency  of  the  act  in 
question,  or  as  to  the  morality  of  the  trans- 
672 


action,  or  of  this  defense,  we  have  considered 
ourselves  controlled  by  the  statute,  and  not  at 
liberty  to  say  this  is  one  of  those  cases  of  hard- 
ship and  unconscientious  defense,  in  which  if 
a  party  has  succeeded  in  obtaining  the  verdict 
of  a  jury,  we  will  not  interfere  to  disturb  it. 
The  Legislature  have  considered  the  practice 
of  usury  as  an  evil ;  they  have  declared  it 
unlawful  and  corrupt,  and  have  anxiously 
provided  every  guard  in  their  power  against  it. 
After  this  expression  of  their  sense,  I  cannot 
think  myself  authorized  to  view  it  in  a  differ- 
ent light,  or  to  permit  a  statute  intended  by 
them  as  an  important  regulation  of  public 
policy,  to  be  evaded  or  controlled,  on  the  idea 
that  its  provisions  are  unjust  or  uuconscien- 
tious.  I  therefore  consider  this  defense  as 
standing  on  the  same  ground  with  any  other 
arising  on  a  question  of  property,  and  subject 
to  the  same  rules ;  and  I  can  see  no  cause  for 
the  apprehension,  that  to  award  another  trial, 
under  the  circumstances  of  this  case,  would  in 
any  degree  interfere  with  the  privilege  of  trial 
by  jury.  I  am  inclined  to  respect  that  privi- 
lege as  highly  as  any  of  its  advocates,  but  to 
preserve  that  mode  of  trial  in  its  purity,  and 
to  maintain  the  confidence  which  it  ought  to 
possess,  it  is  necessary  to  direct  it  to  its  proper 
objects,  and  to  restrain  the  license  of  juries, 
when  they  step  out  of  their  province,  and 
undertake  to  decide  the  law,  in  opposition  to 
the  opinion  of  the  court  and  to  a  positive 
statute.  If  this  were  not  the  case,  judges, 
instead  of  being  judges  of  law.  would  become 
mere  chairmen  of  forms,  or  *at  best  [*2 1 1 
advisers  of  juries,  and  the  latter  would  finally 
determine  the  law  on  every  subject.  The 
fluctuations  and  evils  attending  such  a  system 
would  be  incalculable  ;  and  could  not  be  toler- 
ated in  any  country.  It  is  sufficient  to  say 
that  such  is  not  our  system.  As  a  court,  we 
are  bound  to  administer  justice,  according  to 
law,  and  when  we  see  the  law  manifestly 
evaded,  it  is  our  duty  to  correct  the  evil.  In 
the  present  case  there  is  no  doubt  of  the  facts. 
In  contemplation  of  law  they  present  a  case  of 
usury.  Being  clearly  of  this  opinion,  for  the 
reasons  given  on  setting  aside  the  former  ver- 
dict, I  think  this  verdict  ought  not  to  prevail 
any  more  than  the  first. 

On  the  trial,  an  objection  was  made  to  the 
incoinpetency  of  Mark,  one  of  the  witnesses, 
and  who  was  one  of  the  makers  of  the  note, 
on  the  ground  that  he  could  not  be  admitted 
to  impeach  its  validity  in  the  hands  of  any 
other  person.  This  objection  has  been  con- 
sidered as  valid  in  the  case  of  Winton  v. 
Saidler  (ante,  p.  185),  decided  in  the  present 
term,  and  the  witness  must,  therefore,  now  be 
considered  as  incompetent.  But  what  he  has 
said  does  not,  in  any  degree,  vary  the  merits  of 
this  cause.  The  testimony  of  Goodrich  is  full 
and  complete  on  the  subject,  and  he  is  not 
opposed  by  any  other  evidence.  I  am,  there- 
fore, of  opinion,  there  ought  to  be  another 
trial. 

KENT,  J.  This  is  the  second  application 
for  a  new  trial  in  this  cause.  A  verdict  was 
formerly  obtained  for  the  plaintiff  on  testi- 
mony to  the  same  effect  as  that  contained  in 
the  present  case,  and  a  new  trial  was  awarded, 
at  the  last  January  Term,  because  the  verdict 
JOHNSON'S  CASES,  3. 


1802 


JACKSON,  EX  DEM.  GOMEZ,  ET  AL.  v.  HENDRICKS. 


211 


was  clearly  against  evidence.  I  was  of  opin- 
ion in  that  case,  that  Goodrich  was  to  be  con- 
sidered the  lender  of  the  money,  and  that  the 
evidence  of  usury,  between  him  and  the  drawer 
of  the  note,  was  decisive  and  unequivocal. 

The  testimony  in  the  present  instance  is 
certainly  as  strong  as  it  was  on  the  former 
212*]  occasion,  and  the  question  *now  is, 
whether  there  be  any  reasonable  evidence  at 
all  in  support  of  the  verdict ;  or  whether  we 
are  to  consider  the  verdict  as  the  result  of  the 
prejudice  of  the  jury  against  the  defense,  and 
of  their  determination  to  resist  it. 

I  admit  that  if  Goodrich,  when  he  passed 
the  note  to  Peck,  acted  merely  as  agent  of  the 
drawers,  and  passed  the  note  as  belonging  to 
them,  and  not  as  his  own  property,  there  was 
no  usury  in  the  case;  because  it  is  stated  that 
Peck  settled  with  him  for  the  amount  of  the 
note.  But  I  do  not  conceive  any  reasonable 
•color  for  such  a  construction.  Goodrich  states 
that  he  received  the  note  to  be  discounted,  and 
that  the  proceeds  were  to  be  applied  in  pay- 
ment of  money  lent  by  him  to  the  drawers. 
Goodrich,  therefore,  received  the  note  for  his 
own  use  and  benefit,  and  he  passed  it  to  Peck 
as  his  own  property.  The  amount  of  it  was 
settled  between  them.  There  is  no  intima- 
tion, no  conduct,  from  which  to  infer  that 
he  acted  as  agent.  In  the  account  ren- 
dered by  him  to  the  drawers,  the  note  is 
charged  by  him  to  them,  and  they  are  credited 
with  the  proceeds  of  it.  In  fact,  Goodrich 
charged  them  with  an  interest,  at  the  rate  of 
about  three  and  one  half  per  cent,  per  month. 
The  clear  truth  of  the  case  is  that  Goodrich 
took  the  note,  as  he  states,  in  payment  of 
money  lent,  and  was.  to  charge  them  with  such 
an  interest  for  the  money  advanced,  by  way 
of  discount  on  the  note,  as  his  conscience 
should  allow  him  to  take,  provided,  however, 
that  it  was  not  to  exceed  such  a  rate  of  inter- 
est, for  he  says  he  was  limited  in  the  allow- 
ance of  discount.  I  cannot  avoid  seeing  and 
believing  that  this  was  a  usurious  transaction 
between  Goodrich,  as  the  lender,  and  Mark  & 
Co.  as  borrowers  of  the  money.  The  defend- 
ant who  indorsed  the  note  only  lent  his  name 
by  way  of  accommodation.  The  negotiation 
was,  directly  and  wholly,  between  Goodrich 
and  the  drawers.  If  a  case  of  such  palpable 
213*]  usury  as  this  is  not  within  *the  act,  or 
if  a  jury  will  not  listen  to  a  plea  of  usury  sup- 
ported like  the  present,  there  is  an  «nd  to  the 
statute. 

It  had  better  be  formally  repealed,  for  it 
would  be  a  dead  letter.  I  am  perfectly  satis- 
fied that  if  the  jury  had  thought  the  defense 
a  just  and  honorable  one,  they  would  not  have 
hesitated  in  finding  for  the  defendant,  and 
shall  we  permit  hostility  to  the  law  to  triumph? 
On  this  question  I  have  no  hesitation;  and 
thinking,  as  I  do,  that  on  the  issue  between 
the  parties,  there  is  no  ground  at  all  for  the 
verdict,  and  that  it  is  a  verdict  absolutely 
against  law,  I  am  for  granting  a  new  trial. 
(4  Burr.,  2108,  1  Term  Rep.,  170,  171.) 

I  put  out  of  view  every  consideration  drawn 
from  the  hardship  of  the  case;  as  that  the 
plaintiff  is  an  innocent  holder,  and  the  defense 
summumjus  and  contrary  to  good  faith.  This 
might,  and  would  deserve  weight,  if  the  case 
was  doubtful;  if  there  was  evidence  on  both 
JOHNSON'S  CASES,  3.  N.  Y.  REP..  BOOK  1. 


sides;  if  we  could  believe  that  the  jury  delib- 
erated with  a  steadfast  and  single  eye  to  the 
credibility  of  the  testimony,  and  the  just  con- 
clusions to  be  drawn  from  it,  and  did  not  suf- 
fer the  policy  of  the  statute  to  mingle  with 
their  deliberations,  and  to  influence  their 
judgments.  But  if  a  statute  be  constitutional 
m  its  provisions,  and  clear  and  precise  in  its 
injunctions,  the  courts  are  bound  to  see  it  res- 
pected and  obeyed.  It  is  not  for  them  to  ar- 
rest its  operation,  merely  because  they  question 
its  policy. 

There  is  no  ground  to  disbelieve  the  testi- 
mony of  Goodrich,  who  discloses  the  whole 
transaction  fully;  and  as  to  the  identity  of  the 
note,  I  cannot  see  any  possible  doubt. 

I  am  for  a  new  trial,  and  that  without  costs, 
as  I  consider  this  a  verdict  against  law. 

LEWIS,  Oh.  J.,  and  LIVINGSTON,  J.,  dis- 
sented. 

New  trial  granted. 
Cited  in— 15  Johns.,  56. 


*JACKSON,  ex  dem.  GOMEZ  ET  AL.,  [*214 

v. 

HENDRICKS. 

SAME,  ex  dem.  SAME, 

v. 
MARMET  AND  HENDRICKS. 

Feme  Covert  —  Seizin  —  Death  —  Descent  Sus- 
pended —  Tenant  by  Gurtesy  —  Inheritance  — 
Stock  of  Descent  —  Statute  of  Descents. 

A,  a  /erne  covert,  died  seized  of  lands,  in  June,  1795, 
leaving  a  husband  and  two  sons  and  three  daugh- 
ters. The  husband  continued  seized,  as  tenant  by 
the  courtesy,  until  his  death,  in  1798.  B,  the  eldest 
son,  died  abroad,  in  1784,  an  infant  intestate,  and 
without  issue.  C,  the  other  son,  on  the  death  of 
his  father,  entered  as  heir  to  his  mother.  It  was 
held,  that  the  descent  was  suspended  during  the 
tenancy  by  the  courtesy,  and  that  A,  being  last 
seized,  was  the  stock  of  descent  ;  and  as  she  died  be- 
fore the  statute  of  descents,  .0,  the  second  son,  took 
the  inheritance,  as  sole  heir  to  his  mother. 


were  actions  of  ejectment.  The 
J_  causes  were  tried  at  the  last  June  sittings, 
in  New  York,  before  Mr.  Justice  Radcliff, 
when  verdicts  were  taken,  by  consent,  for  the 
plaintiffs,  in  each  cause,  for  three  undivided 
seventh  parts  of  the  premises  in  question,  sub- 
ject to  the  opinion  of  the  court,  on  the 
following  case.  Esther  Hendricks  died  seized 
of  the  premises  in  question,  in  June,  1775, 
intestate,  leaving  a  husband  and  two  sons 
and  three  daughters.  Mordecai  was  the 
oldest,  and  Haman,  the  defendant,  the  second 
son.  The  daughters  were  married  and  with 
their  husbands  were  lessors  of  the  plaintiff. 
The  husband  of  the  intestate  was  seized,  dur- 
ing his  lifetime,  as  tenant  by  the  courtesy,  until 
his  decease,  on  the  27th  September,  1798.  On 
his  death,  Haman,  one  of  the  defendants,  en- 
tered as  heir-at-law  to  his  mother,  and  con- 
tinued to  hold  against  his  sisters,  the  lessors, 
and  the  other  defendant  was  his  tenant.  Mor- 
decai, the  eldest  son,  died  at  the  age  of  thirteen, 
intestate,  and  without  issue,  in  March,  1784, 


43 


673 


214 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


having  been,  for  several  years,  previous  to 
and  at  the  time  of  his  death,  out  of  the  United 
States. 

Mr.  Hoffman  for  the  plaintiff. 
Messrs.  Ha/rison  and  Riggs.  contra. 

Per  Curiam.  The  statute  of  descents  does 
not  apply  to  these  cases ;  and  it  expressly  de- 
clares that  in  all  cases  not  mentioned  in  it,  the 
common  law  shall  govern.  In  the  case  of 
dower,  and  by  the  courtesy,  the  descent  is  sus- 
pended during  the  continuance  of  those  es- 
215*]  tales,  and  the  *heir  is  not  seized,  so  as 
to  form  a  new  stock  of  descent,  or  to  consti- 
tute a  possessiofratris,  Esther  Hendricks  died 
in  1775,  and  her  husband  continued  in  pos- 
session, as  tenant  by  the  courtesy,  until  1798. 
674 


Mordecai,  the  eldest  son,  died  while  an  infant,, 
abroad,  and  before  entry,  fourteen  years  before 
the  death  of  his  father,  and  so  not  being  seized 
he  could  not  transmit  the  inheritance.  Hi& 
mother  was  the  person  last  seized,  from  whom 
the  defendant  must  claim  an  immediate  de- 
scent. She,  nor  her  eldest  son,  Mordecai,  is 
the  stock  of  descent.  The  inheritance  relates 
back  to  her,  and  as  she  died  before  our  statute 
of  descents  was  passed,  the  defendant  became 
her  sole  heir.  In  both  cases,  therefore,  there 
must  be  judgment  for  the  defendants.1 

Judgment  for  the  defendants. 
Cited  in— 16  Johns.,  99 ;  2  Den.,  25. 

1.— See  Watkins  on  Descents,  65,  66,  67,  85, 110, 118,. 
123 ;  Litt.  sec.  394 ;  Co.  Lltt.,  41.  b ;  7  V iner,  568,  E  2  ; 
Gilb.  Tenures,  15, 16. 

JOHNSON'S  CASES,  3. 


[END  OF  JULY  TERM.] 


CASES   ADJUDGED 


SUPREME  COURT  OF  JUDICATURE 

OP  THE 

STATE   OF  NEW  YORK, 


OCTOBER    TKRM,    1SO2. 


217*] 


*LAWRENCE 


THE  NEW  YORK  INSURANCE  COM- 
PANY. 

1.  Marine  Insurance  —  Partial  Loss  —  Calculation 
of  —  Rule.  2.  Id.  —  Fluctuations  of  the  Market 
—  Freight  —  Duties  —  Port  Charges. 

The  rule  by  wlfich  to  calculate  a  partial  loss,  in 
case  of  a  policy  of  insurance  on  goods,  arising  from 
sea  damage,  is  the  difference  between  the  gross  pro- 
ceeds of  the  sound  and  damaged  ;  that  is,  a  propor- 
tion of  the  prime  cost  of  the  damaged  goods  corre- 
soonding  to  the  proportion  of  the  diminution  of 
the  gross  proceeds  thereof. 

The  insurer  on  goods  has  nothing  to  do  with  the 
fluctuation  of  the  market,  or  the  freight  or  duties 
and  port  charges  on  the  goods  after  their  arrival  at 
the  port  of  destination. 

Citations—  2  Burr.,  1167  ;  Burns  on  Ins.,  166  ;  Park, 
53  ;  Burns  on  Ins.,  154,  167  ;  Abbott,  292. 


was  an  action  on  a  policy  of  insur- 
ance  on  the  cargo  of  the  brig  America, 
on  a  voyage  from  New  York  to  Cadiz.  The 
cargo,  which  consisted  of  logwood  and  tobac- 
co, cost,  in  New  York,  $8,189.50;  $8,000  was 
insured  thereon  by  the  defendants.  During 
the  voyage  to  Cadiz,  thirty-eight  hogsheads 
and  three  tierces  of  the  tobacco  (which  cost, 
in  New  York,  $3,361.81)  were  damaged  by  sea- 
water.  If  the  thirty-eight  hogsheads  and 
three  tierces  had  arrived  at  Lisbon  undamaged, 
they  would  have  sold  for  $4,971.55  ;  and  the 
freight  of  them  would  have  been  $971  ;  but, 
on  account  of  the  damage  they  had  sustained, 
they  sold,  at  Cadiz,  for  no  more  than  $921.86. 
The  jury  found  a  verdict  for  the  plaintiff, 
subject  to  the  opinion  of  the  court  as  to  the 
218*]  amount  of  damages  *to  be  recovered, 
on  the  following  question,  whether  the  insured 
ought  to  receive  from  the  insurers  a  propor- 
tion of  the  prime  cost  of  the  damaged  to- 
bacco, corresponding  to  the  proportion  of  the 
diminution  of  the  net  proceeds  of  the  same 
article,  in  consequence  of  the  damage,  or 
whether  he  ought  to  receive  a  proportion  of 
the  prime  cost,  corresponding  to  the  propor- 
tion of  the  diminution  of  the  gross  proceeds 
of  the  sale  ?  If  the  court  should  be  of  opin- 
JOHNSON'S  CASES,  3. 


ion  that  the  loss  ought  to  be  calculated  upon 
the  net  proceeds,  then  the  jury  found  the 
damages  to  be  $3,443.60 ;  but  if  the  court 
should  be  of  opinion  that  the  loss  ought  to  be 
calculated  upon  the  gross  proceeds  of  the 
sale,  then  the  jury  found  the  damages  to  be 
$2,530.06. 

Mr.  Hamilton  for  the  plaintiff. 
Mr.  Hoffman,  contra. 

THOMPSON,  J.  The  different  modes  of  cal- 
culation adopted  by  the  parties  in  this  cause, 
produce  very  different  results.  Although  the 
decision  is  of  consequence,  as  it  respects  the 
event  of  this  cause,  yet,  in  many  other  points 
of  view,  it  is  of  more  importance  that  the 
principle  should  be  settled,  than  which  way  it 
is  determined.  Although  no  case  is  to  be 
found  wherein  the  question  has  immediately 
and  directly  come  under  consideration,  yet  I 
think  principles  have  been  settled,  which,  if 
we  adopt,  will  require  that  we  take  the  gross 
produce  of  the  sales,  in  order  to  make  the  cal- 
culation of  the  average  loss. 

The  mode  of  calculating  an  average  loss, 
as  laid  down  in  the  case  of  Leiris  v.  Rucker, 
(2  Burr.,  1,167),  a'nd  which  is  admitted  to  be 
the  true  rule,  is,  "to  take  the  proportion  of 
the  difference  between  the  price  of  the  sound 
and  the  damaged  articles  at  the  port  of  deliv- 
ery ;  and  for  the  insurer  to  pay  that  propor- 
tion upon  the  value  of  the  goods  specified  in 
*the  policy."  Although  in  that  case  it  [*21i> 
is  not  expressly  stated  whether  the  calcula- 
tion was  made  upon  the  gross  or  net  pro- 
ceeds, at  the  port  of  delivery,  yet  I  think  it 
is  fairly  to  be  inferred,  from  the  sum  stated, 
that  it  was  made  upon  the  gross  proceeds.  It 
is  there  said  that  the  price  of  the  damaged 
sugar  was  twenty  pounds  per  hogshead,  and  of 
the  sound  twenty-three  pounds  per  hogshead, 
and  on  these  sums  the  proportion  of  the 
prime  cost  was  ascertained.  It  is  here  partic- 
ularly to  be  noted  that  the  term  price  is  made 
use  of.  In  mercantile  language  there  is  a 
material  difference  between  the  terms  "price" 
and  "value."  In  the  case  of  Johnston  v.  Shed- 
don  (Burns  on  Insurance,  166),  Mr.  Oliphant,  a 

675 


219 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


very  respectable  merchant  examined  on  the 
trial,  recognizes  this  distinction,  and  says  that 
"  value  "  is  what  comes  net  into  the  merchant's 
pocket ;  and  by  "price,"  I  presume,  from  what 
he  says,  he  meant  the  gross  sum  for  which  the 
goods  sold.  Thence,  I  infer,  that  if  the  net 
proceeds  were  to  be  taken  as  the  standard,  the 
language  of  the  rule  in  Lewis  v.  Rucker  would 
have  been,  that  you  must  take  the  difference 
between  the  "value"  instead  of  the  "price" 
of  the  sound  and  damaged  goods,  &c.  The 
contract  of  insurance  is  a  contract  of  indem- 
nity, and  the  underwriters  never  ought  to  be 
made  liable  to  pay  more  than  a  total  loss.  To 
adopt  the  rule  contended  for  by  the  plaintiff's 
counsel,  would,  I  think,  produce  that  result ; 
for  the  damaged  tobacco  sold  at  Cadiz  for  $921.- 
86,  and  the  freight  and  charges  upon  it  amount- 
ed to  $971.  The  prime  cost  of  the  tobacco  in 
New  York  was  $3,361.81,  and  the  loss  which 
the  underwriters  are  to  pay,  by  the  plaintiff's 
mode  of-  calculating,  is  $3,443.60,  which  is 
$81.79  more  than  the  total  logs.  Thus  the 
underwriters  are  in  a  worse  situation  than 
they  would  have  been  had  the  whole  of  the 
damaged  tobacco  been  thrown  overboard.  No 
rule  that  produces  such  consequences  can,  in 
my  judgment,  be  correct. 
2  2O*]  *It  is  laid  down  (Park,  53)  that,  as 
between  the  owners  of  the  goods  and  the  un 
derwriters  upon  the  cargo,  the  underwriters 
havs  nothing  to  do  with  the  freight.  Where 
the  loss  is  total  no  freight  is  due ;  but,  as  be- 
tween the  owners  of  the  ship  and  cargo,  no 
loss  is  total  where  part  of  the  property  is 
saved.  In  the  present  case,  then,  freight 
would  be  due,  and  to  take  that  into  view  in 
the  calculation,  would  be  making  the  under- 
writer on  the  cargo  indirectly  answerable  for 
the  freight,  which  would  be  contrary  to  his 
engagement  by  the  policy. 

In  the  case  of  Johnstone  v.  Sheddon,  the  wit- 
ness, Mr.  Oliphant,  who  settled  the  average, 
professed  to  pursue  the  rule  laid  down  in 
Lewis  v.  Rucker,  and  although  the  case  is  im- 
perfectly reported,  yet,  from  what  can  be  col- 
lected from  it,  and  from  what  fell  from  Lord 
Kenyon,  I  am  inclined  to  think  the  rule  there 
adopted,  was  to  take  the  "gross  price  of  the 
sound  and  damaged  goods  in  order  to  settle 
the  average.  Lord  Kenyon  .says  the  damaged 
and  sound  goods  must  be  taken  free  from  the 
duties,  in  order  to  make  the  calculation,  and 
puts  it  on  the  same  footing  as  if  the  goods  had 
been  sold  on  board  the  vessel,  before  any  duties 
or  charges  had  accrued.  On  the  whole,  I  am 
of  opinion  that  the  underwriters  ought  to  pay 
a  proportion  of  the  prime  cost  of  the  dam- 
aged goods  corresponding  to  the  proportion  of 
the  diminution  of  the  gross  produce  of  the  sales. 
The  other  mode  of  calculation  appears  to  me 
to  be  making  the  underwriters  upon  the  cargo 
indirectly  answerable  for  the  freight,  duties 
and  charges,  with  which  they  have  nothing  to 
do  by  the  terms  of  the  contract ;  and  more 
especially,  because  it  would,  in  many  instances, 
and  certainly  in  the  case  now  before  the  court, 
make  the  underwriter  pay  more  than  a  total 
oss. 

LIVINGSTON,  «7.  and  RADCLIFP,  J.,  were  of 
the  same  opinion. 

221*]      *KENT,  J.     The  plaintiff  ought  to 
676 


recover  a  proportion  of  the  prime  cost  of  the 
damaged  tobacco,  corresponding  to  the  pro- 
portion, of  the  diminution  of  the  gross  pro- 
ceeds thereof.  In  the  case  of  Lewis  v.  Rucker 
(2  Burr.,  1167),  it  was  settled,  that  the  insurer 
was  to  pay  on  damaged  goods  the  like  propor- 
tion of  the  sum  at  which  they  were  valued  in 
the  policy  as  the  price  of  the  damaged  goods 
bore  to  the  price  of  the  sound  goods  at  the 
port  of  delivery ;  but  the  distinction  between 
the  net  and  gross  proceeds,  at  the  port  of  de- 
livery, was  not  then  expressly  raised  or  con- 
sidered. Afterwards,  in  the  case  of  Johnstone 
v.  Sheddon,  which  was  tried  before  Lord  Ken- 
yon, at  Nisi  Prius  (see  Burn  on  Insurance,  154, 
167),  the  damages,  in  a  case  like  the  present 
were  liquidated  according  to  the  calculation  of 
a  Mr.  Oliphant,  who  said  he  went  upon  the 
principles  laid  down  in  Lewis  v.  Rucker,  and 
determined  the  damages  by  what  come  net 
into  the  pocket  of  the  plaintiff  from  the  dam- 
aged goods,  compared  with  what  he  would 
have  received  net,  if  they  had  been  sound,  and 
taking  such  a  proportion  as  they  bore  to  each 
other,  out  of  the  sum  insured.  He  observed, 
further,  that  the  loss  sustained  by  the  duty 
being  the  same  on  the  damaged  as  the  sound, 
was  a  certain  effect  of  the  damage,  and  ought 
to  be  made  good  by  the  insurer ;  and  that  he 
had  been  in  the  constant  habit  of  settling  av- 
erage losses.  Lord  Kenyon  observed  that  the 
ground  on  which  Mr.  Oliphant  went  was  ex- 
tremely clear. 

This  nisi  prius  decision  is  in  favor  of  taking 
the  net  proceeds,  at  the  port  of  delivery,  and 
those  are  'all  the  cases  to  be  met  with,  that  look 
toward  the  question.  A  dictum  of  a  late  very 
accurate  writer,  seems,  however,  to  intimate 
an  opinion  in  favor  of  the  gross  proceeds.  The 
mode  of  settling  a  contribution  to  a  general 
average,  says  Abbott  (p.  292),  in  cases  where 
the  average  is  adjusted  *after  the  [*222 
ship's  arrival  at  the  place  of  destination,  is  to 
value  the  goods  at  the  clear  price  which  they 
would  have  fetched  at  the  place  of  destination  ; 
for,  in  this  case,  equity  requires  that  the  per- 
son whose  loss  has  procured  the  arrival  of  the 
ship  should  be  placed  in  the  same  situation 
with  those  whose  property  had  arrived,  by 
considering  his  goods  as  having  arrived  there 
also.  The  clear  price  mentioned  must  be  the 
same  as  the  net  proceeds  ;  and  he  then  observes 
that  this  rule  does  not  exist  as  between  mer- 
chant and  insurer,  for  there  the  prime  cost  is  the 
only  value,  because  the  contract  of  insurance 
is  a  contract  of  indemnity  against  loss,  and  not 
a  contract  of  security  of  gain. 

I  think  the  calculation  on  the  net  proceeds 
cannot  be  the  just  rule,  because  it  may  lead  to 
this  result,  that  the  net  proceeds  exceed  the 
prime  cost.  Thus,  from  the  facts  stated  in 
the  present  case,  it  appears  that  the  prime  cost 
of  the  damaged  tobacco  was  $3,361.81 ;  and 
that  calculating  the  loss  upon  the  net  proceeds, 
the  insurer  is  to  pay  $3,443.60,  or  $81.79  more 
than  the  prime  cost.  This,  on  the  first  view 
of  it,  must  be  an  erroneous  rule,  since  it  is  the 
prime  cost  with  the  duties  and  expenses  till 
the  goods  are  put  on  board,  that  is  to  be  the 
standard  of  the  indemnity  of  insurance.  "If 
goods  arrive,"  says  the  case  of  Lewis  v.  Rucker, 
"lessened  in  value  by  damage  received  at  sea, 
the  nature  of  an  indemnity  speaks  demonstra- 
JOHNSON'S  CASES.  3. 


1802 


LENOX  v.  THE  UNITED  INSURANCE  COMPANY. 


222 


bly,  that  it  must  be  by  putting  the  insured  in 
the  same  situation  (relation  being  had  to  the 
prime  cost  or  value  in  the  policy)  which  he 
would  have  been  in  if  the  goods  had  arrived 
free  from  damage,  i.  e.,  by  paying  such  pro- 
portion or  aliquot  part  of  the  prime  cost  or 
value  in  the  policy,  as  corresponds  with  the 
proportion  or  aliquot  part  of  the  dimunition 
in  value,  occasioned  by  the  damage."  It  is 
impossible,  then,  from  the  result  found  in  this 
case,  that  only  a  due  proportion  of  the  value 
in  the  policy  has  been  preserved,  by  the  calcu- 
223*]  lation  on  the  net  *proceeds.  If  so,  the 
insurer  is  in  a  worse  situation  than  he  would 
have  been  in  if  the  damaged  tobacco  had  been 
totally  lost  at  sea.  A  rule  with  this  conse- 
quence can  never  be  right.  This  net  amount 
must  have  been  produced  by  including  port 
charges  and  freight ;  and  such  charges  ought 
not  to  fall  on  the  insurer  upon  the  cargo.  It 
must  have  embraced  expenses  for  which  the 
insurer  is  not  responsible  ;  and  although  I  do 
not  know  exactly  the  data  on  which  it  was 
formed,  I  am  satisfied  that  it  is  turning  the 
policy  into  a  security  for  gain,  or  covering 
charges  not  within  the  indemnity. 

I  am,  therefore,  for  the  calculation  on  the 
gross  proceeds. 

LEWIS,  Gh.  J. ,  was  of  the  same  opinion,  and 
delivered  his  reasons  at  length,  and  showed, 
by  various  calculations,  that  if  the  net  pro- 
ceeds were  taken  as  the  rule,  the  insurer  on 
the  goods  would  have  to  indemnify  for  freight, 
port  duties,  &c.,  which  could  not  be  right. 

Per  totam  Curiam,  according  to  that  opinion. 
Judgment  far  the  plaintiff .* 


224*]        *LENOX 

v 
THE  UNITED  INSURANCE  COMPANY. 

Marine  Insurance — Loss — Time  of  Payment — 
Capture — Abandonment —  Preliminary  Proof 
— Sufficiency  of. 

A  policy  of  insurance  on  goods  contained  a  clause 
that  the  loss  was  to  be  paid  "  thirty  days  after  proof 
thereof."  The  property  having  been  captured,  the 
insured  abandoned,  and  as  proof  of  the  loss  and  in- 
terest, laid  before  the  insurers  the  protest  of  the 
master,  in  the  usual  form,  stating  the  loss,  and  the 
bill  of  lading  and  invoice.  This  was  held  to  be  suffi- 
cient preliminary  proof,  within  the  meaning  of  the 
policy,  to  entitle  the  plaintiff  to  bring  his  action 
after  the  expiration  of  the  thirty  days.  Strict 
technical  proof,  or  the  oath  of  the  party  or  of  wit- 
nesses, is  not  requisite  in  such  case. 

1.— The  case  of  Johnstone  y.  Shedden,  tried  before 
Lord  Kenyon,  at  IV.  P.,  and  cited  in  the  above  cause, 
afterwards  came  before  the  Court  of  King's  Bench, 
who  overruled  the  decision  of  Lord  Kenyon,  found- 
ed on  the  net  proceeds,  and  decided  (July,  1802)  that 
the  calculation  of  the  partial  loss  must  be  made  be- 
tween the  gross  proceeds  of  the  sound  and  damaged 
g-oods.  This  decision  was  made  by  Lawrence,  J., 
Grose,  J.,  and  Le  Blanc,  J.,  Lord  Ellenborough,  Ch. 
J.,  who  had  succeeded  to  Lord  Kenyon,  giving  no 
opinion,  as  the  case  was  argued  before  he  came  to 
the  bench.  (2  East,  581.)  This  decision,  however, 
was  not  known  here,  until  after  judgment  was 
given  in  the  above  cause. 

JOHNSON'S  CASES,  3. 


Citations— Cro.  Eliz.,  236 :  Cro.  Jac.,  381 ;  Hob.,  92 ; 

1  Lutw.,  665 ;  3  Bulst.,  55 ;  1  Bulst.,  40 ;  Cro.  Jac.,  488 ; 

2  Keb.,  239 ;  Hob..  217 ;  3  Esp.,  242 ;  2  Dallas,  280;  3 
Esp.  Cas.,  242 ;  3  Bulst.,  84 ;  Palm.,  166 ;  2  Ball.,  282. 

THIS  was  an  action  on  a  policy  of  insurance, 
dated  the  13th  March,  1800,  on  three  boxes 
of  muslins,  on  board  of  the  vessel  called  the 
Rambler,  at  and  from  New  York  to  Monte 
Christe,  &c.  The  goods  were  valued  at  $2,- 
610,  the  sum  insured.  The  vessel  was  capt- 
ured by  the  French,  during  the  voyage,  and 
the  plaintiff  abandoned  for  a  total  loss.  By 
the  policy,  the  loss  was  made  payable  "thirty 
days  after  proof  thereof."  The  plaintiff,  at 
the  time  he  abandoned  and  claimed  a  total 
loss,  exhibited  to  the  defendants  the  custom- 
ary protest  of  the  master,  stating  the  loss,  and 
the  bill  of  lading  and  invoice  of  the  goods. 
The  two  latter  were  not  sworn  to,  and  the  de- 
fendants refused  to  admit  the  invoice,  without 
the  oath  of  the  plaintiff,  which  he  declined  to 
give,  as  not  requisite  on  his  part. 

At  the  trial  the  interest,  loss  and  abandon- 
ment were  fully  proved  by  the  plaintiff,  and 
the  jury  found  a  verdict  for  the  plaintiff,  for 
a  total  loss. 

A  motion  was  made  to  set  aside  the  verdict, 
and  for  a  new  trial. 

Mr.  Hamilton  for  the  plaintiff. 
Messrs.  Harison  and  Troup.  contra. 

THOMPSON,  J.  The  true  question  arising 
out  of  the  above  case,  and  which  is  submitted 
to  the  decision  of  the  court,  appears  to  be,  to 
determine  what  is  the  construction  to  be  given 
to  that  part  of  the  policy  which  declares, 
' '  that  the  loss  is  made  payable  in  thirty  days 
after  proof  thereof."  On  the  part  of  the  de- 
fendant it  is  contended,  that  proof  of  loss  is  a 
condition  precedent ;  that  the  plaintiff  com- 
menced his  action  prematurely,  without  pro- 
ducing to  the  underwriters  the  kind  [*225 
of  proof  contemplated  by  the  policy  ;  that  the 
proof  previously  necessary  to  be  exhibited 
must  be  proof  of  interest  as  well  as  loss,  and 
that  by  witnesses,  or  at  least  by  the  oath 
of  the  party  himself.  In  the  present  case,  no 
such  proof  was  offered  before  the.  commence- 
ment of  the  plaintiff's  action.  The  evidence 
of  loss  and  interest  exhibited  to  the  defend- 
ants, consisted  of  the  customary  protest,  and 
the  bill  of  lading  and  invoice  of  the  muslins  ; 
but  the  bill  of  lading  was  not  sworn  to.  On 
the  part  of  the  plaintiffs,  it  is  contended,  that 
these  were  all  that  were  necessary  to  be  offered 
in  order  to  satisfy  the  terms  of  the  contract. 

It  is  a  governing  rule,  in  expounding  poli- 
cies of  insurance,  as  well  as  other  contracts, 
that  the  intent  of  the  parties  ought  to  be 
sought  after  and  carried  into  effect,  where  it 
can  be  discovered  from  the  instrument  itself. 
Proof,  in  strict  legal  construction,  means  evi- 
dence before  a  court  or  jury,  in  a  judicial 
way.  It  is  certain,  however,  that  such  could 
not  have  been  the  understanding  of  the  parties 
to  this  contract,  as  to  the  meaning  of  the  term. 
And  it  was  not  contended  by  the  defendants' 
counsel  that  such  kind  of  proof  was  contem- 
plated, but  that  proof  collateral,  and  out  of 
court,  would  satisfy  the  terms  of  the  contract  ; 
that  this  proof  must  be  either  by  witnesses,  or 
by  the  affidavit  of  the  plaintiff. 

677 


225 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1802 


The  parties  to  a  contract  have  undoubtedly 
a  right  to  modify  it  as  they  think  proper,  and 
to  impose  on  each  other  such  restrictions  as 
they  shall  choose,  if  not  illegal.  So  that,  if  it  was 
clearly  inferrible  from  the  instrument  that  it 
was  the  intent  of  the  parties  that  before  the  loss 
was  payable,  proof  by  witnesses,  or  by  the 
oath  of  the  party,  of  both  loss  and  interest, 
must  be  exhibited  to  the  underwriters,  the 
contract  ought  to  be  so  construed  as  to  carry 
that  intention  into  effect.  But  I  think  the 
terms  do  not  necessarily  warrant  such  an  in- 
ference, and  all  rational  presumption  is  against 
such  conclusion.  It  is  not  fairly  to  be  presumed 
that  the  plaintiff  would  lay  himself  under 
226*J  Restrictions  that  might  totally  prevent 
a  recovery  in  case  of  a  loss  ;  and  such  might 
be  his  situation  in  case  it  was  necessary  for 
him  to  produce  proof  by  witnesses,  of  his  inter- 
est and  loss,  before  he  could  bring  his  action, 
as  no  mode  is  provided  in  the  law  to  compel 
witnesses  to  appear  before  any  officer  or  magis- 
trate to  attest  to  such  facts.  Although  it  was 
in  the  power  of  the  plaintiff,  by  his  own  affi- 
davit, to  attest  to  his  interest,  yet,  in  my  judg- 
ment, that  ought  not  to  be  required,  unless  it 
was  essential,  in  order  to  satisfy  the  terms  of  the 
contract.  And  although  I  do  not  think  it  nec- 
essary, for  the  purpose  of  deciding  the  pres- 
ent question,  to  determine  how  far  voluntary 
oaths  ought  to  be  tolerated,  yet  I  do  not  hesi- 
tate to  say,  they  ought,  very  rarely,  if  ever,  to 
be  administered. 

It  is  a  circumstance  worthy  of  notice,  that 
by  this  policy,  the  loss  is  made  payable  in 
thirty  days  after  proof  of  loss  only,  and  not 
after  proof  of  loss  and  interest ;  and  although 
on  the  trial  it  is  incumbent  on  the  insured  to 
prove  his  interest  as  well  as  loss,  yet  he  would 
be  bound  to  do  this,  independent  of  this  clause 
in  the  policy.  This  is  a  clause  peculiar  to  our 
own  policies,  and  I  cannot  think  it  ought  to 
receive  a  construction  that  will  impose  on  the 
insured  the  necessity  of  producing  the  same 
that  would  be  requisite  on 


proof  preliminarily, 
the  trial,  to  entitle 


ting,  therefore,  that  proof  necessarily  implies 
evidence,  under  oath,  still,  as  to  loss  (which 
is  all  that  is  expressly  required  by  the  policy), 
the  protest  of  the  captain  furnishes  that  spe- 
cies of  proof.  It  was  stated  in  argument,  by 
the  plaintiff's  counsel,  and  not  denied  by  the 
defendants,  that  policies  had  lately  undergone 
an  alteration  in  this  clause.  That  formerly 
the  loss  was  made  payable  in  so  many  days 
after  proof  of  loss  and  interest,  but  that  lately 
the  word  interest  had  been  expunged.  Tak- 
ing this,  then,  as  a  fact,  it  would  afford  a 
strong  inference  that  it  was  the  intention  of 
the  parties  to  dispense  with  any  proof  of  in- 
227*]  terest,  as  a  *preliminary  step  under 
this  clause  ;  at  all  events,  that  nothing  more 
should  be  required  than  the  usual  documents, 
to  wit,  the  invoice  and  bill  of  lading.  The  in- 
terest of  commerce,  as  well  as  the  convenience 
of  parties,  demands  this  construction,  unless 
forbidden  by  the  terms  of  the  contract,  and 
more  especially  as  the  clause  is  peculiar  to 
our  own  policies.  One  of  the  principal  objects 
of  this  clause,  no  doubt,  was,  to  give  the  un- 
derwriters time  to  determine,  after  being  ap- 
prised of  the  loss,  whether  they  would  pay 
without  a  suit ;  and  for  the  purpose  of  fur- 
078 


nishing  them  with  evidence  on  which  to 
ground  their  determination,  they  ought  to 
have  offered  what  may  afford  them  a  reason- 
able satisfaction,  according  to  the  course  of 
mercantile  business.  I  am.  therefore,  of  opin- 
ion, that  the  documentary  proof,  to  wit,  the 
protest,  bill  of  lading,  and  invoice  of  the  goods 
insured,  were  all  the  preliminary  proofs  nec- 
essary for  the  plaintiff  to  exhibit  to  the  un- 
derwriters, previous  to  his  bringing  his  action, 
according  to  the  legal  import  and  true  intent 
and  meaning  of  this  clause  in  the  policy  ;  and 
more  especially,  in  the  present  case,  as  it  is 
stated,  that  the  plaintiff's  interest  and  loss  were 
fully  proved  on  the  trial,  and  the  only  possible 
benefit  resulting  to  the  defendants  from  the 
contrary  construction,  would  be  to  turn  the 
plaintiff  round  to  bring  a  new  suit.  This  con- 
sideration ought  not,  however,  to  influence 
the  decision,  if  it  was  clearly  made  necessary 
by  the  contract,  that  the  preliminary  proof 
should  be  different  from  that  offered.  But  as 
I  do  not  think  that  requisite,  I  am  of  opinion, 
the  verdict  ought  not  to  be  set  aside. 

RADCLIFF,  J.  The  question  is,  whether  by 
the  terms  of  the  policy,  the  plaintiff  was  ob- 
liged to  make  oath  of  his  interest  in  the  cargo 
before  he  was  entitled  to  demand  payment  of 
the  defendants.  The  proof  required  on  this 
occasion  was  the  plaintiff's  own  oath,  and  not 
proof  by  witnesses,  or  any  other  species  of  evi- 
dence. Proof  in  *general,  in  a  legal  [*228 
sense,  means  proof  by  witnesses,  and  if  it  be 
contended  that  the  defendants  had  a  right,  in 
this  instance,  to  demand  legal  proof  of  the 
loss,  thirty  days  before  bringing  the  action, 
that  proof  ought  to  have  been  by  witnesses, 
or,  at  least,  by  some  evidence  which  would  be 
admitted  in  a  court  of  justice,  and  not  proof 
by  the  oath  of  the  party.  The  contract  does  not 
require  the  oath  of  the  party,  and  without  such 
a  provision  in  the  contract,  the  policy  of  the 
common  law  will  certainly  not  tolerate  the 
principle  that  one  party  may  impose  on  an- 
other the  necessity  of  swearing  to  his  right  of 
action  before  he  shall  be  entitled  to  recover. 
It  is  not  competent  to  any  one  thus  to  judge 
his  adversary  upon  oath.  A  party  to  a  suit  is 
not  even  bound  to  disclose  the  particular 
grounds  of  his  action,  or  any  fact  of  his  de- 
fense, either  directly  or  collaterally,  except 
when  he  comes  to  ask  a  favor,  and  his  con- 
duct is  liable  to  suspicion,  as  on  putting  off  a 
trial  to  an  unusual  period.  If  it  could  on  any 
principle  be  allowed,  I  think  the  party  de- 
manding it  ought  to  be  concluded  by  it,  and 
not  be  permitted  thus  to  entrap  his  adversary, 
by  professing  a  reliance  on  his  veracity,  and 
afterwards  disputing  it.  If,  therefore,  the 
terms  of  the  policy  admit  of  any  other  inter- 
pretation, we  ought  to  adopt  it,  and,  I  think, 
they  evidently  admit  of  a  different  and  more 
rational  construction.  The  expression  is  gen- 
eral, "thirty  days  after  proof  of  loss."  It 
must  be  taken  in  connection  with  the  subject 
matter,  and  according  to  the  usual  course  of 
such  proceedings.  The  loss  itself  is  usually 
proved  by  the  protest  of  the  captain,  and  this, 
as  far  as  it  goes,  is  proof  upon  oath,  and  thus 
far  the  expression  "proof  of  loss"  may  be 
technically  proper  ;  and  I  believe  that  thus 
far  only  was  proof  upon  oath  originally  con- 
JOJTNSON'S  CASES,  3. 


1802 


LENOX  v.  THE  UNITED  INSURANCE  COMPANY. 


228 


templated.  As  far  as  proof  of  interest  may  be 
required,  independent  of  the  captain's  protest, 
I  think  it  can  only  be  construed  to  mean  the 
usual  documentary  proofs  attending  the  sub- 
ject, the  bill  of  lading,  invoice  and  other 
229*]  papers,  if  there  be  any.  *These  sat- 
isfy the  terms  of  the  expression,  granting 
that  proof  of  loss  also  implies  proof  of  inter- 
est, which  may  admit  of  some  question.  The 
parties  in  this  case  could  not  mean  legal  proof, 
which  can  only  be  taken  in  a  course  of  legal 
proceeding.  They  plainly  referred  to  a  dif- 
ferent mode  of  proof,  before  the  commence- 
ment of  any  legal  process  ;  and  I  think  could 
only  have  contemplated  the  production  of  that 
species  of  evidence  which  would  satisfy  a  rea- 
sonable mind.  They  must  have  had  in  view 
the  existing  laws  of  the  country  to  govern 
their  contract,  and  could  not  mean  that  an  ex- 
trajudicial  mode  of  inquiry  should  be  insti- 
tuted to  obtain  a  new  species  of  proof.  Such 
a  proceeding  is  unknown  to  the  law,  and 
wholly  unauthorized.  There  is  no  tribunal 
before  which  such  proof  could  be  made,  and 
no  one  authorized  to  examine  or  decide  upon 
it.  Indeed,  I  am  strongly  inclined  to  think 
that  no  magistrate  has  authority  to  take  the 
proof  required  by  the  defendants.  Mr.  Justice 
Blackstone,  in  his  Commentaries,  says,  that  it 
is  much  to  be  questioned  how  far  any  magis- 
trate is  justifiable  in  taking  a  voluntary  affi- 
davit, in  any  extrajudicial  matter,  and  we 
ought  not  to  give  a  construction  to  this  con- 
tract which  would  require  a  proceeding  alto- 
gether novel,  and  in  itself  improper. 

The  cases  which  have  been  cited  on  the  argu- 
ment are  extremely  loose,  and  have  established 
no  certain  rule  on  the  subject.  In  the  case  of 
Tedcastle  v.  HollweU  (Cro.  Eliz.,  236),  the  de- 
fendant covenanted  to  pay  in  one  month  after 
notice  of  the  goods  which  might  be  embezzled 
by  an  apprentice,  the  same  (the  embezzlement) 
being  sufficiently  proved.  Gawdy  and  Fenner, 
two  of  the  justices,  conceived  the  proof  ought 
to  be  before  action  brought  by  some  collateral 
means,  but  in  what  manner,  or  by  what  means, 
they  did  not  say,  and  the  case  was  decided  on 
-a  different  ground. 

In  Gold  v.  Death  (Cro.  Jac.,  381  ;  Hob.,  92  ; 
1  Lutw.,  665  ;  3  Bulst.,  55),  the  covenant  was 
23O*]  to  pay  in  three  months  *after  due 
proof  thereof  made  by  the  confession  of  the 
apprentice,  or  otherwise  howsoever,  and  notice 
thereof  given.  The  court  resolved  that  the 
proof  intended  was  proof  before  action  brought, 
which  could  not  be  by  trial,  but  ought  to  be  in 
such  manner  as  it  may  ;  and  if  made  to  the 
defendant,  they  said  it  ought  to  be  only  by 
witnesses  who  will  affirm  it  before  him  ;  and 
if  to  be  made  to  J.  S.  (a  third  person)  by  wit- 
nesses produced  before  him  ;  and  Dodderidge, 
J. ,  added,  that  the  proof  referred  to,  being  the 
confession  of  the  party,  it  was  sufficient  if  he 
confessed  it  under  his  hand.  The  expressions, 
confession  under  his  hand,  witnesses  produced 
before  him,  or  who  will  affirm  it  before  him, 
in  the  sense  there  used,  do  not  imply  proof 
upon  oath  ;  and  that  case  was  decided  on  the 
ground  of  the  party  having  confessed  it  under 
his  hand,  which  was  held  sufficient. 

In  Cockaine  v.  Goodlage  (1  Bulst.,  40),  where 
the  condition  of  a  bond  was  to  pay  in  three 
months  after  demand,  and  due  proof  made  of 
JOHNSON'S  CASES,  3. 


embezzlement  by  an  apprentice,  the  court  held 
that  proof  was  necessary  to  be  made  three 
months  before  the  suit  was  brought,  and  that 
it  might  have  been  proved  by  an  account  stat- 
ing the  arrearages,  &c. 

The  case  of  Lee  v.  Fydge  (Cro.  Jac.,  488), 
turned  on  a  defect  in  the  plea,  and,  at  most, 
decided  only  that  the  mode  of  proof  ought  to 
have  been  set  forth. 

In  Tracy  v.  C'heshue  (2  Keb.,  239),  the  con- 
dition was  to  pay  by  a  certain  day,  all  such 
sums  of  money  as  should  appear  to  be  due. 
The  court  decided  that  by  proof  generally,  is 
meant  proof  to  a  jury,  and  that  there  was  no  dif- 
ference between  a  condition  to  pay  what  is 
due  and  what  shall  appear  to  be  due.  In  that 
case  Twisden,  J. ,  at  first  dissented,  saying  that 
proof  by  such  a  day  cannot  be  by  jury,  and, 
therefore,  may  be  by  note,  affidavit  or  other- 
wise, but  he  afterwards  agreed  with  the  rest  of 
the  court,  on  the  general  ground.  There  is 
nothing  in  that  case  in  any  way  applicable  to 
the  one  before  us,  but  the  dictum  of  Justice 
Twisden,  the  result  of  his  first  impression, 
*and  which  he  afterwards  relinquished  [*231 
as  foreign  from  the  point  decided. 

In  Crock/lay  v.  Woodward  (Hob.,  217),  the 
court  agreed,  that  where  the  form  of  proof 
was  appointed  by  the  parties,  that  should  pre- 
vail, as  in  Gold's  case  above  mentioned  ;  as  if 
it  were  to  be  made  by  certificate  in  writing,  or 
by  witnesses  before  two  aldermen,  or  the  like, 
which  proof  could  not  be  judicial. 

The  case  of  Abel  v.  Potts  (3  Esp.,  242),  re- 
lated to  the  competency  of  the  proof  of  inter- 
est at  the  trial.  In  the  case  of  Camberling  v. 
M 'Call  (2  Dallas,  280),  there  was  no  sort  of 
proof  offered  before  the  action  was  commenced. 

None  of  these  cases  apply  to  the  present, 
unless  it  be  that  of  Crockhay  v.  Woodward,  in 
which  the  court  agreed  to  the  general  princi- 
ple that  the  form  of  pfroof  appointed  bv  the 
parties  should  prevail,  as  if  it  were  appointed 
to  be  made  by  certificate,  or  by  witnesses  be- 
fore two  aldermen,  or  the  like.  It  is  a  suffi- 
cient answer  to  say  that  in  the  case  before  us, 
the  form  of  proof  was  not  prescribed,  and  that 
the  expression  is  after  "  proof  of  loss  "  gener- 
ally. But  for  the  reasons  already  given,  I 
should  not  be  inclined  to  subscribe  to  the  cor- 
rectness or  authority  of  that  case,  in  relation 
to  the  supposed  proof  by  witnesses  before  two 
aldermen.  That  mode  of  proof  appears  to 
have  been  mentioned  merely  incidentally  by 
the  court,  in  reasoning  on  the  subject,  and  was 
not  distinctly  considered. 

Upon  the  whole,  I  am  of  opinion,  that  there 
is  no  adjudged  case  which  is  decisive  of  the 
question  before  us,  and  that  on  principle  and 
reason,  and  according  to  the  usual  course  of 
such  proceedings,  the  proof  offered  by  the 
plaintiff  was  sufficient. 

KENT,  J.  The  only  question  raised  in  this 
case  is,  whether  the  plaintiff  produced  to  the 
defendants  proof  *of  loss,  before  bring-  [*232 
ing  his  suit,  sufficient  to  entitle  him  to  recover? 

The  plaintiff  exhibited  the  protest,  bill  of 
lading  and  invoice.  This  species  of  proof  has 
been  aptly  termed  documentary  evidence. 
The  interest  of  the  assured  may  be  proved  by 
such  documents.  The  bill  of  lading  is  always 
received  as  a  document  of  the  goods  laden  on 

879 


232 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1802- 


board,  and  in  the  present  case,  the  authentic- 
ity of  the  handwriting  of  the  master  was  not 
questioned.  The  protest  is,  in  mercantile 
understanding,  high  evidence  of  loss ;  and  it 
may  well  have  been  intended  by  the  parties, 
since  the  strict  proof  requisite  on  a  trial  was 
surely  never  within  their  contemplation.  As 
long  as  the  words  of  the  policy  can  be  satisfied, 
by  furnishing  the  papers  that  were  produced, 
we  ought  not  to  extend  them  so  far  as-  to  in- 
clude proof  by  the  oath  of  witnesses,  or  the 
oath  of  the  party,  which  seems  to  have  been 
required  in  the  present  case.  The  law  will  not 
sanction  an  oath  administered,  at  the  instance 
of  an  individual,  when  there  is  not  a  lispcndens, 
unless  there  be  a  positive  provision  for  the 
case.  Many  difficulties  would  arise  under  the 
construction  that  the  parties  intended  proof  by 
witnesses.  These  difficulties  are  avoided  by 
confining  the  words  to  the  vouchers  respecting 
the  property  on  board,  and  as  to  the  loss,  and 
such  vouchers  are  to  be  furnished  to  the  in- 
surer, not  in  the  light  of  proof,  technically 
considered,  but  as  reasonable  information  or 
notice,  upon  which  he  is  to  act. 

Something  analogous  to  this  was  the  case  of 
Abel  v.  Potts  (3  Esp.,  Cases,  242),  in  which  there 
was  a  memorandum  in  the  policy,  that  the  loss 
was  to  be  adjusted  within  three  months  after 
advice  of  the  loss.  These  words  were  liberally 
construed  to  mean  not  exclusively  a  direct 
notice  from  the  insured,  but  the  entry  of  the 
capture  in  Lloyd's  books,  with  presumptive 
evidence  that  the  insurers  must  have  seen 
them,  was  held  sufficient. 
233*]  *It  is,  perhaps,  unnecessary  to  ex- 
amine the  cases  which  were  cited  to  show  that 
a  stipulation  of  the  parties  that  proof  by  wit- 
nesses or  the  oath  of  the  party  should  be  fur- 
nished, would  be  a  valid  stipulation,  because, 
for  the  reasons  already  given,  the  words  in  the 
present  case  can  be  sufficiently  answered,  with- 
out resorting  to  proof  beyond  the  documents 
that  were  furnished.  My  present  impression 
is  against  the  validity  of  a  stipulation,  that  a 
party  shall  not  be  entitled  to  sue  and  recover, 
on  a  just  demand,  until  he  shall  have  furnished 
the  opposite  party  with  proof,  by  the  oath  of 
himself  or  of  witnesses ;  and  it  appears  to  me, 
on  examination,  that  none  of  the  cases  afford 
us  a  direct  judicial  decision  to  that  effect. 
(See  Tedcastle  v.  Holloway,  Cro.  Eliz.,  236; 
Gold  v.  Death,  Hob.,  92;  Cro.  Jac.,  381;  3 
Bulst.,  54,  S.  C.;  Year  Book,  10  Edw.  IV.,  pi. 
11.,  a  dictum  of  two  judges  ;  Palm.,  166  ;  1 
Bulst.,  40  ;  Cockainev.  Goodlage,  2  Dall.,  282.) 
None  of  them  go  further  than  dicta,  or  collater- 
al sayings,  and  none  define  the  mode  or  man- 
ner of  the  proof.  I  wish,  however,  to  be 
understood  as  not  giving  any  definitive  opinion 
upon  that  point,  as  it  is  sufficient  to  say  that, 
in  the  present  instance,  the  requisite  proof  was 
produced. 

I  am  of  opinion,  accordingly,  that  the  plaint- 
iff is  entitled  to  judgment. 

LIVINGSTON,  J.,  dissented. 

LEWIS,  Ch.  J.,  not  having  heard  the  argu- 
ment, gave  no  opinion. 
Judgment  for  the  plaintiff.1 

1.— See  Talcot  v.  Marine  Insurance  Company,  2 
Johns.  Rep.,  130;  Haff  v.  Marine  Insurance  Com- 
pany, 4  Johns.  Rep.,  132 ;  Johnston  v.  Columbian  In- 

680 


*JACKSON,  ex  dem.  WOODHULL    [*234r 
ET  AL., 

n. 
RUMSEY. 

1.  Evidence — Record  of  Will  Proved  Under  the 
Statute — Impeachment  of  Witt.  2.  Witness — 
Ejectment —  Competency — Devisee. 

The  record  of  a  will  proved  under  the  statute 
(sess.  24,  ch.  9,  sec.  6),  is  not  conclusive  upon  the 
heir,  so  as  to  prevent  the  admission  of  evidence  to 
impeach  its  validity.  The  record  of  a  will,  like  that 
of  a  deed,  is  only  prima  facie  evidence  of  its  authen- 
ticity. 

A  person  who  was  a  tenant  under  a  devisee  of 
part  of  the  estate  devised,  was  held  to  be  a  compe- 
tent witness,  in  an  action  of  ejectment  brought  by 
the  heir  against  a  tenant,  who  held  part  of  the 
premises  under  the  testator  or  devisee,  and  part 
under  the  witness,  in  order  to  impeach  the  validity 
of  the  will. 

Citations— Rev.  Laws,  sess.  24,  ch.  9,  sec.  6 ;  2  Atkw 
324,  424;  3  Atk..  17;  ante,  p.  82;  3  Term  Rep.,  27; 
Peake's  Evid.,  105. 

THIS  was  an  action  of  ejectment.  The  les- 
sors of  the  plaintiff  proved  themselves  the 
heirs  of  Nathaniel  Woodhull,  who  died  siezed 
of  the  premises  in  question.  The  defendant 
then  offered  the  record  of  a  will  of  Nathaniel 
Woodhull,  proved  and  recorded,  agreeably  to 
the  statute,  in  the  Court  of  Common  Pleas  of 
Orange  County,  and  which  was  read  in  evi- 
dence to  the  jury.  By  this  will,  it  appeared 
that  Elizabeth  Woodhull  was  the  sole  devisee 
of  all  the  estate  of  the  testator. 

The  lessors,  in  order  to  prove  that  the  testa- 
tor was  non  c&mpos  at  the  time  of  executing  the 
will,  or  that  the  will  had  been  obtained  by  un- 
fair practices,  offered  Samuel  Strong  as  a  wit- 
ness. The  witness  was  objected  to,  because  it 
appeared  that  he  was  a  tenant  under  Elizabeth 
Woodhull,  of  part  of  the  real  estate  claimed  by 
her,  under  the  will ;  and  that  the  defendant 
held  a  part  of  the  premises,  either  under  a 
contract  made  with  the  testator,  in  his  lifetime, 
or  under  Elizabeth  Woodhull,  the  devisee,  and 
the  residue  of  the  premises  under  the  witness, 
as  tenant ;  that  his  evidence,  therefore,  went 
to  impeach  the  title  under  which  he  held,  and 
also  to  impeach  the  title  he  had  conveyed  to- 
the  defendant,  who  was  his  tenant.  The  judge 
before  whom  the  cause  was  tried,  thinking  the 
objection  well  founded,  rejected  the  witness, 
and  the  point  was  reserved,  as  a  ground  for  a 
motion  for  a  new  trial.  It  was  further  ob- 
jected, on  the  part  of  the  defendant,  that  no 
evidence  could  be  received  to  invalidate  the 
will,  after  it  had  been  duly  proved  and  re- 
corded, according  to  the  statute ;  that  any 
evidence  to  impeach  the  validity  of  its  execu- 
tion must  be  given  at  the  time  and  place  when 
and  where  the  will  is  offered  to  be  proved,  and 
before  it  is  recorded.  But  this  *ob-  [*235 
jection  was  overruled  by  the  judge,  and  sev- 
eral witnesses  were  examined  on  the  part  of 
the  plaintiff  to  invalidate  the  will.  The  jury 
found  a  verdict  for  the  defendant. 

A  motion  was  afterwards  made  to  set  aside 
the  verdict,  and  for  a  new  trial,  for  the  misdi- 
rection of  the  judge. 

surance  Company,  7  Johns.  Rep.,  315;  Barker  v 
Phoenix  Insurance  Company,  8  Johns.  Rep.,  307,  317'- 

JOHNSON'S  CASES,  3.. 


1802 


BATES  v.  THE  NEW  YORK  INSURANCE  COMPANY. 


235 


Messrs.  Hamilton  and  Everston  for  the  plaint- 
iff. 
Messrs.  Hoffman,  Rt'ggs,  and  Jones,  contra. 

KENT,  J. ,  delivered  the  opinion  of  the  court : 
Two  questions  were  raised  on  the  argument 
of  this  case. 

1.  Whether  the  record  of  the  will  was  con- 
clusive, so  that  no  evidence  was  admissible  to 
impeach  the  validity  of  the  will. 

2.  Whether   Samuel   Strong  was  a  compe- 
tent witness. 

1.  The  will  was  proved  under  the  Act  of  4th 
April,  1786  (Laws.  Vol.  I.,  p.  276'),  which 
enacts  "  that  where  real  estate  shall  be  devised 
by  will,  &c.,  the  executors,  or  other  persons 
interested,  may  cause  the  will  to  be  brought  be- 
fore the  Court  of  Common  Pleas  of  the  county 
where  the  lands  lie,  and  the  court  shall  cause 
the  witnesses  to  be  examined  in  open  court, 
and  if  it  shall  appear  that  the  will  was  duly 
executed,  and  the  testator  of  sane  mind,  &c., 
the  court  shall  direct  the  will  and  proof 
to  be  recorded.  But  the  court  shall  not 
proceed  to  examine  the  witnesses,  &c.,  un- 
until  notice  shall  be  given  to  the  heirs,  or  if 
not  to  be  found  within  the  State,  fixed  up  at 
the  last  place  of  abode  of  such  testator,  at  least 
fifteen  days  before  such  examination  ;"  and  the 
statute  further  adds,  ' '  that  the  records  of  wills, 
so  proved  and  recorded,  shall  be  as  good  and 
effectual  in  all  cases,  as  the  original  wills  would 
be,  if  produced  and  proved." 

I  am  satisfied,  from  the  plain  letter  of  the 
236*]  statute,  that  *it  never  intended  that 
the  proof  so  taken  should  be  conclusive  upon 
the  heir.  The  words  of  the  act  do  by  no 
means  warrant  such  a  construction ;  and  it 
would  be  unreasonable  to  adopt  it,  without  the 
most  positive  injunction,  since  the  notice  to  the 
heir  is  so  short,  as  in  case  of  his  absence  from 
the  State,  the  proof  may  take  place  without 
his  knowledge,  and,  consequently,  without  any 
opportunity  on  his  part  to  controvert  it.  The 
instance  of  probates  of  wills  of  chattels,  which 
are  held  to  be  conclusive  upon  the  courts  of 
common  law,  was  cited  upon  the  argument,  as 
analagous  to  the  present  case,  but  the  reason 
for  such  conclusiveness  does  not  apply  here. 
The  spiritual  courts  in  England  have  exclusive 
jurisdiction  in  the  case  of  probates  of  wills,  and, 
for  that  reason,  the  courts  of  law  cannot  pass 
a  judgment  concerning  a  will,  in  opposition  to 
the  decision  of  the  Ecclesiastical  Court.  Nor 
does  there  seem  to  be  any  ground  for  the  sug- 
gestion that  the  statute  had  an  eye  to  this  mode 
of  proof,  as  a  substitute  for  the  mode  of  estab- 
lishing a  will  in  chancery ;  for  if  a  question  of 
fraud  in  obtaining  the  will,  or  on  the  sanity 
of  the  testator,  arises  in  that  court,  it  is  never 
tried  there ;  but  an  issue  at  law  is  uniformly 
directed.  (2  Atk.,  324,  424;  3  Atk.,  17.)  This 
statute  proof  is  more  like  the  case  of  a  bill  to 
perpetuate  testimony,  for  it  directs  the  proof 
to  be  reduced  to  writing,  and  to  be  entered 
upon  record,  which  would  be  altogether  use- 
less, if  the  record  of  the  will  was  conclusive. 
The  record  of  a  will,  therefore,  like  that  of  a 
deed,  is  only  prima  facie  evidence  of  its  au- 
thenticity, and  may  be  repelled  by  contrary 
proof. 

1. — Rev.  Laws,  sess.  24,  ch.  9,  sec.  6. 
JOHNSON'S  CASES,  3. 


2.  With  respect  to  the  second  question,  I 
have  looked  into  the  cases,  and  find  no  rule 
established  that  will  exclude  the  witness.  He 
cannot  be  considered  as  interested,  for  the 
verdict  being  between  other  parties  could  not 
be  produced  in  evidence  for  or  against  him  iu 
a  subsequent  suit  to  which  he  was  a  party. 
This  is  the  test  by  which  to  ascertain  the  inter- 
est of  a  witness,  being  the  *rule  recog-  [*237 
nized  by  this  court  in  the  case  of  Van  Nuys  v. 
Terhune  (ante, ,82).  And,  indeed,  were  it  oth- 
erwise, the  interest,  in  order  to  exclude  the 
witness,  must  not  have  arisen  after  the  fact  to 
which  he  is  called  to  testify  happened,  and  by 
his  own  act,  without  the  interference  or  con- 
sent of  the  party  by  whom  he  is  called ;  be- 
cause, in  that  case,  it  would  be  in  the  power 
of  the  witness,  and  even  of  the  adverse  party, 
to  deprive  the  person  wanting  his  testimony 
of  the  benefit  of  it.  (Brent  v.  Baker,  3  Term 
Rep.,  27;  Peake's  Evid.,  105.)  The  witness 
offered,  was  not,  therefore,  incompetent  on 
the  score  of  interest.  But  the  ground  on 
which  his  exclusion  was  ruled  at  the  trial  was 
the  relationship  in  which  he  stood,  as  landlord 
to  the  defendant,  and  as  tenant  to  the  devisee 
under  the  will.  This  relationship,  however, 
cannot  disqualify  a  witness  in  a  controversy  in 
which  a  stranger  to  the  relationship  is  a  party, 
and  calls  for  the  testimony.  The  objection 
must  be  confined  to  the  cases  in  which  such  a 
person  comes  forward  as  a  party,  to  impeach 
the  title  which  he  has  created  or  holds  under 
another.  It  is,  however,  not  necessary  to  say 
how  far  a  party  shall  be  prevented  from 
attacking  such  a  connection.  It  is  sufficient 
to  observe,  that  when  called  as  a  witness,  by 
a  third  person,  the  objection  will  not  avail. 
The  interests  of  the  third  person  are  para- 
mount, and  control  the  objection. 

The  verdict  ought,  therefore,  to  be  set  aside, 
for  the  misdirection  of  the  judge,  in  rejecting 
the  witness,  and  a  new  trial  awarded,  with 
costs  to  abide  the  event  of  the  suit. 

New  trial  granted. 

Cited  in-«  Cow.,  249;  1  Hill,  543;  6  N.  Y.,  199;  14 
Hun.,  7 ;  2  Redf ..  332 ;  «  Rob.,  227 ;  37  N.  J.  L.,  319. 


*BATES  [*23S 

v. 

THE    NEW    YORK    INSURANCE     COM- 
PANY. 

Subscription — Shares — Payments  by  Installments 
— Assignment — Knowledge  of — Demand  of 
Transfer — Set-off— Assignor's  Debt — Payment 
by  Assignee — Transfer — Action  for  Money 
Paid  and  Accrued  Dividends. 

A  subscribed  fifty  shares  in  The  New  York  Insur- 
ance Company,  attifty  dollars  each,  the  amount  to 
be  paid  in  five  installments  of  ten  dollars  on  each 
share ;  and  by  the  articles  of  association,  no  transfer 
of  any  share  could  be  made  until  all  the  installments 
were  paid  in. 


NOTE.— Stock.  Liability  of  for  debts  of  share- 
holders. 

At  the  common  law  there  is  no  lien  ag-aiiist  stock 
for  debts  in  favor  of  the  corporation  issuing  it. 
Steamship  Dock  Co.  v.  Harvee,  53  Pa.  St.,  280;  Mass. 
Iron  Co.  v.  Hooper,  7  Cush.,  183 ;  F.  and  M.  Bank  v. 
Wasson,  48  la.,  336 ;  Heart  v.  State  Bank,  2  Dev.  Eq., 
Ill ;  Sargent  v.  Franklin  Ins.  Co.,  8  Pick.,  90 ;  Dris- 

681 


238 


SUPREME  COURT,  STATK  OF  NEW  YORK. 


1802 


A,  after  paying:  the  two  first  installments,  on  the 
22d  of  July,  1796,  assigned  the  shares,  and  all  his  in- 
terest therein,  to  B,  who  punctually  paid  the  three 
remaining  installments  to  the  company,  at  the  times 
at  which  they  were  respectively  payable. 

The  company  knew  of  the  assignment  to  B  on  the 
the  20th  of  January,  1797,  and  between  that  time  and 
the  20th  of  January- 1798,  three  dividends  had  been 
declared  on  the  stock  of  shares  by  the  company, 
which  amounted  to  $525.  The  company  held  three 
notes  of  A  given  for  premiums  of  insurance,  one  of 
which,  dated  the  3d  of  June,  1796,  was  for  $1,001, 
and  became  due  in  December,  1796 ;  and  the  others, 
dated  in  September,  1796,  became  due  in  March  fol- 
lowing ;  and  they  applied  the  $525  due  for  the  divi- 
dends, towards  the  payment  of  A's  notes,  after  de- 
ducting which  sum,  and  the  sum  for  return  of  pre- 
miums, there  remained  due  to  the  company,  on  the 
notes  of  A,  $465 ;  and,  when  B,  on  the  20th  of  Janu- 
ary, 1798,  paid  the  last  installment,  and  demanded  a 
transfer  of  the  shares  to  him,  the  company  refused 
to  make  the  transfer  until  the  balance  due  from  A 
(who  was  then  insolvent)  was  paid  to  them.  B  paid 
the  $465  to  the  company,  who  thereupon  made  the 
transfer  to  him. 

In  an  action  for  money  had  and  received,  &c., 
brought  by  B  against  the  company,  to  recover  back 
the  $465,  and  also  the  dividends,  after  the  20th  of 
January,  1797,  it  was  held  that  the  action  would  lie, 
and  that  the  plaintiff  was  entitled  to  recover  the  $465 
paid  by  him,  but  not  the  dividends  received  by  the 
defendants,  prior  to  the  20th  of  January,  1798,  as  the 
defendants  had  an  equitable  lien  on  that  money,  in 
their  hands,  to  pay  the  note  of  A,  which  was  act- 
ually due  to  them,  before  they  had  notice  of  the 
assignment  to  B. 


Citations— 2  Str.,  913 ;  4  Term  R.,  485 ;  4  Term  R., 
561 ;  1  Esp.  Cas.,  279 ;  1  Term  R.,  285. 


fPHIS  was  an  action  of  asmmpmt  for  money 
I.  had  and  received  to  the  plaintiff's  use. 
Plea,  non  assumpsit.  At  the  trial  the  defend- 
ants waived  all  exceptions  to  the  form  of  the 
action,  and  rested  on  the  merits  only. 

Norman  Butler  subscribed  for  fifty  shares  in 
The  New  York  Insurance  Company,  each 
share  being  of  the  value  of  $50.  On  the  22d 
day  of  July,,  1796,  Butler  assigned  to  the 
plaintiff  all  his  right  and  interest  in  the  fifty 
shares.  By  the  articles  of  association  of  the 
defendants,  the  sum  of  $10  on  each  share  was 
payable  at  five  different  installments  ;  on  the 
first  of  May,  1796,  the  20th  of  July,  1796, 
the  20th  of  January,  1797,  the  20th  of 
July,  1797,  and  the  20th  of  January,  1798.  It 
appeared  by  the  articles  of  association,  that  no 
transfer  of  any  share  could  be  permitted  or  be 
valid,  until  all  the  installments  on  such  shares 
were  paid.  The  two  first  installments  were 


paid  by  Butler,  and  the  three  last  by  the 
plaintiff,  who  regularly  received  a  notice  of 
such  payment  being  due,  from  the  secretary  of 
the  company,  directed,  however,  to  Norman 
Butler.  It  was  also  proved  by  the  secretary  of 
the  company,  that  on  the  20th  day  of  January, 

1797,  he  knew  of  the  assignment  from  Butler 
to  the  plaintiff  ;  and  that,  from  that  day  to 
the  20th  of  January,  1798,    three  dividends 
were  made,  amounting  in  the  whole  to  $525  on 
the  fifty  shares  ;  which  sum  *the  de-  [*23J) 
fendants  had  credited  on  three  certain  notes 
given  by  Norman  Butler  to  them.     The  first 
note  was  dated  3d  of  June,  1795,  for  $1,001.25 
payable  in  six  months,   and  -the  other  two 
amounted  to  $251.25,  dated  the  21st  of  Sep- 
tember, 1796,  payable  six  months  after  date, 
which  notes  were  given  for  premiums  of  in- 
surance ;  and  by  return  of  premiums,  the  sum 
due  on  the  three  notes  was  reduced  to  $990  ; 
and  after  crediting  the  $525,  the  amount  of 
the  three  dividends,  a  balance  remained  due 
from  Butler  to  the  defendants  of  $465.     The 
defendants    refused    to    transfer    the    shares 
which  had  been  assigned  to  the  plaintiff  by 
Butler  until  that  sum  was  paid,  which  the 
plaintiff  accordingly  paid,   and  the  transfer 
was  made.     Butler,    on  the  20th  of  January, 

1798,  was  insolvent ;  and  on  that  day  the  last 
installment  was  paid  on  the  fifty  shares,  and 
the  plaintiff  requested  a  transfer  to  be  made, 
which  the  defendants  refused  to  make  until 
the  balance  due  on  the  three  notes  above  men- 
tioned was  paid.     It  was  also  proved  by  the 
secretary  of  the  company,  that  it  was  common 
to  make  assignments  of  stock,  and  that  it  was 
their  practice  to  send  notices,  when  the  install- 
ments became  due,  to  the  persons  to  whom  the 
stock  had  been  assigned. 

The  jury  found  a  verdict  for  the  plaintiff  for 
'  ~ ,  subject  to  the  opinion  of  the  court,  on  a 
case  containing  the  above  facts  ;  and  the  ques- 
tions raised  for  the  determination  of  the  court 
were,  whether  the  plaintiff  ought  to  recover 
anything,  and  if  so,  whether  he  should  re- 
cover the  $990,  being  the  amount  of  the  three 
dividends  made  after  his  assignment,  together 
with  the  money  paid  by  him  in  order  to  pro- 
cure the  transfer  ;  or,  whether  he  should  re- 
cover only  the  $465,  the  money  demanded  of 
him,  and  paid  at  the  time  the  transfer  of  the 
stock  was  made. 


coll  v.  Bradley  Mfg.  Co.,  59  N.  Y.,  96 ;  Vansands  v. 
Middlesex  Co.  Bank,  26  Conn.,  144. 

But  dividends  may  be  retained  as  a  set-off,  Hager 
v.  Union  National  Bank,  Sargent  v.  Franklin  Ins. 
Co.,  63  Me.,  509 ;  8  Pick.,  90. 

Such  lien  exists  only  when  given  by  act  of  incor- 
poration, or  reserved  in  by-laws  made  in  pursuance 
of  such  act,  of  which  assignee  is  bound  to  take 
notice.  See  above  cases ;  also.  Union  Bank  v.  Laird, 
2  Wheat.,  390;  Bank  of  Com.  Appeal.,  73  Pa.  St.,  59; 
Pierson  v.  Bank  of  Wash.,  3  Cranch  C.  C.,363;  Ar- 
nold v.  Suffolk  Bank,  27  Barb.,  424 ;  Tuttle  v.  Wal- 
ton, 1  Ga.,  43;  Dobbins  v.  Walton,  37  Ga.,  617; 
Newberry  v.  Detroit,  Etc.,  Co.,  17  Mich.,  141 ; 
St.  Louis  Perpetual  Ins.  Co.  v.  Goodfellow,  9 
Mo.,  149 ;  M.  M.  Co.  v.  Levy,  54  Pa.  St.,  227 ;  Brent 
v.  Bank  of  Wash.,  10  Pet.,  595;  Byron  v.  Carter. 
22  La.  Ann.,  98;  Merchants'  Bank  v.  Merchants' 
Bank,  45  Mo.,  513;  Matter  of  Bigelow,  2  Ben.,  469; 
German  Bank  v.  Jefferson,  10  Bush.,  326 ;  Re  General 
Exchange  Bank,  L.  R.,  6  ch.  ap..  818 :  Re  Stockton, 
etc..  Iron  Co..  Rolls,  Ct.,  L.  R.,  2  ch.  D.,  101,  Marawetz 
on  Private  Corporations,  sec.  332,  and  authorities 
there  cited. 

Such  lien  does  not  overreach  prior  assignment. 
Neale  v.  Janney,  2  Cranch  C.  C.,  188. 

682 


Lien  may  be  waived.  Hill  v.  Pine  River  Bank,  45 
N.  H.,  300. 

See,  also,  on  this  general  subject,  Helen  v.  Smig- 
gert,  12  Ind.,  194 ;  Planters',  etc.,  Ins.  Co.  v.  Selina 
Bank,  63  Ala.,  585;  Mechanics'  Bank  v.  N.  Y.  &.  N. 
H.  R.  Co.,  13  N.  Y.,  600;  McCready  v.  Rumsey,  6 
Duer,  574. 

Last  two  cases  are  to  the  effect  that  assignee  takes 
subject  to  all  obligations  of  assignor. 

Assignee  of  shares,  even  before  transfer  on  the 
books  of  the  company,  has  superior  right  to  attach- 
ing creditors,  of  assignor,  having  notice.  Black  v. 
Zacharie,  3  How.,  483,  511-512;  Hunterdon  Bank  v. 
Nassau  Bank,  17  N.  J.  Eg..  496 ;  Boston  Music  Hall 
As'n  v.  Cory,  129  Mass.,  435;  Colt  v.  Ives,  31 
Conn.,  25;  Dickinson  v.  Central  National  Bank, 
129  Mass.,  279;  Scripture  v.  Frenchtown  Soap- 
stone  Co.,  5  N.  H.,  571 ;  Sergent  v.  Essex  Ma- 
rine Ry.,  9  Pick.,  201 ;  Fisher  v.  Essex  Bank,  5 
Gray,  373;  Sargent  v.  Franklin  Ins.  Co.,  8  Pick.,  90; 
Com'l  Bank  of  Buffalo  v.  Kortright,  22  Wend.,  362; 
Gilbert  v.  Manchester  Iron  Co.,  11  Wend.,  628. 

Special  case*  unricr  statutes:  Blanchard  v.  Ded- 
ham  Gas  Co.,  12  Gray,  213:  Application  of  Thomas 
Murphv,  51  Wis.,  519;  Skohegan  Bank  v.  Cutler,  49 
Me..  315. 

JOHNSON'S  CASES,  3. 


1802 


BATES  v.  THE  NEW  YORK  INSURANCE  COMPANY. 


239 


Messrs.    Peridleton    and     WilMns    for    the 
plaintiff. 
Mr.  Hoffman,  contra. 

24O*]  *TnoMPSON,  J.,  delivered  the  opin- 
ion of  the  court : 

We  are  of  opinion  that  judgment  ought 
to  be  given  for  the  plaintiff  ;  but  the  ques- 
tion as  to  the  amount,  seems  to  divide  itself 
into  two  distinct  considerations.  In  the 
first  place,  whether  the  $465  were  paid  under 
such  circumstances  of  compulsion  that  the 
plaintiff  ought  to  recover  it  back,  or 
whether  it  must  be  considered  as  a  voluntary 
payment,  and  coming  within  the  rule  volenti 
non  Jit  injuria.  And,  in  the  second  place, 
whether  the  defendants,  holding  those  notes 
against  Butler,  were  authorized  to  appropriate 
the  dividends  on  those  shares  to  the  payment 
of  the  notes  after  they  had  received  notice  of 
the  assignment  of  the  stock  to  the  plaintiff. 

The  equitable  extension  of  this  kind  of  ac- 
tion has  of  late  been  so  liberal  that  it  will  lie 
to  recover  money  obtained  from  anyone,  by 
extortion,  imposition,  oppression,  or  taking  an 
undue  advantage  of  his  situation.  In  the 
present  case,  there  was,  at  least,  an  undue  ad- 
vantage taken  of  the  plaintiff's  situation.  He 
had  purchased  of  Norman  Butler  the  fifty 
shares ;  a  regular  assignment  was  made  to 
him  ;  but  the  transfer  could  not  be  completed 
without  the  assent  of  the  defendants.  He  had 
given  notice  to  the  defendants  of  the  assign- 
ment, and  had  paid  them  three  installments, 
amounting  to  $1,500  ;  and  no  information  ap- 
pears to  have  been  given  to  him  by  the  com- 
pany that  they  had  any  demand  against  But- 
ler, who  had  now  become  insolvent,  and  the 
plaintiff  had  no  mode  of  indemnifying  himself, 
for  the  money  paid  Butler,  or  for  the  install- 
ments which  he  had  paid,  but  by  some  means 
•or  other  procuring  a  transfer  of  the  stock 
which  he  had  purchased,  which  the  defend- 
ants refused  to  make,  unless  he  paid  them  the 
$465,  which  was  not  then  due  from  Butler  to 
them.  The  purchase  of  the  stock  had  been 
made  by  the  plaintiff,  and  the  business  trans- 
acted according  to  the  usage  and  practice  be- 
fore adopted  by  the  defendants,  and  he  had 
reasonable  grounds  to  believe,  when  he  made 
the  purchase,  that  the  transfer  would  be  made 
241*]  *to  him,  agreeably  to  the  former  prac- 
tice of  the  company,  and  which  they  in  equity 
-and  good  conscience  were  bound  to  do.  The 
money  being  inequitably  demanded  of  him,  he 
must  be  presumed  to  have  paid  it,  relying  on 
his  legal  remedy  to  recover  it  back.  In  the 
•case  of  Astly  v.  Reynolds  (2  Str.,  913),  money 
paid  under  circumstances  less  coercive  than  in 
the  present  case,  was  recovered  back  in  this 
form  of  action.  In  that  case  the  plaintiff  had 
pawned  some  plate  to  the  defendant,  and, 
when  he  came  to  redeem  it,  the  defendant  re- 
fused to  deliver  it  up  unless  he  was  paid  an  ex- 
horbitant  premium,  which  was  paid,  and  an  ac- 
tion brought  to  recover  the  money  back.  The 
<;ourt,  in  giving  judgment,  said  that  it  was  a 
payment  by  compulsion  ;  the  plaintiff  might 
have  such  an  immediate  want  of  his  goods 
that  an  action  of  trover  would  not  do  his  busi- 
ness ;  that  where  the  rule  volenti  non  fit  in- 
juria is  applied,  it  must  be  where  the  party 
had  his  freedom  of  exercising  his  will.  In  the 
JOHNSON'S  CASES,  3. 


case  of  Irving  v.  Wilson  (4  Term  Rep. ,  485), 
and  also  of  Hunt,  Executor,  &c.,  v.  Stokes  (4 
Term  Rep. ,  561).  the  same  principles  are  fully 
recognized  and  adopted. 

It  is  contended,  on  the  part  of  the  defend- 
ants, that  this  was  a  voluntary  payment,  and, 
therefore,  not  recoverable  back  ;  and  to  estab- 
lish this,  two  cases  have  been  cited,  Brown  v. 
M'Kinnaly  (1  Esp.  Cases,  279)  and  Size  v. 
Dickason(\  Term  Rep.,  285).  But  on  exami- 
nation, those  cases  do  not  compare  with  the 
present.  The  former  case  appears  to  have 
been  decided  on  the  ground  that  the  monej'  for 
which  the  action  was  brought  had  been  paid 
pending  a  former  suit,  and  that  the  plaintiff, 
Brown,  might  have  interposed,  as  a  defense  in 
that  action,  the  same  matter  on  which  he  then 
relied  to  recover,  and  that  to  allow  him  to  sus- 
tain his  action  would  be  to  try  every  such 
matter  twice.  In  the  latter  case  the  money  for 
which  the  action  was  brought,  in  equity  and 
conscience,  belonged  to  the  defendant ;  and 
although  the  plaintiff  could  not  in  law  have 
been  compelled  to  pay  it,  yet  *after  he  [*242 
had  voluntarily  paid  it,  the  court  on  that 
ground  refused  to  sustain  an  action  to  recover 
it  back.  On  the  whole,  we  are  of  opinion  that 
the  $465  could  not,  under  all  circumstances, 
be  considered  a  voluntary  payment,  but  as 
made,  in  some  measure,  by  compulsion,  an 
undue  advantage  having  been  taken  of  the 
plaintiff's  situation,  and  that  he  ought  to  re- 
cover it  back. 

The  second  question  with  respect  to  the 
dividends  appropriated  by  the  defendants,  in- 
volves points  of  greater  doubt  and  difficulty. 
From  the  case  it  appears  that  the  assignment 
from  Butler  to  the  plaintiff  was  made  on  the 
22d  of  July,  1796,  but  it  does  not  appear  that 
notice  of  it  was  given  to  the  defendants  until 
the  20th  of  January,  1797,  and  the  three  divi- 
dends were  made  after  that  period.  Had 
the  money  been  actually  paid  over  to  Norman 
Butler  after  the  defendants  received  notice  of 
the  assignment,  we  should  be  inclined  to  pro- 
tect the  rights  of  the  assignee,  and  consider  it 
a  payment  wrongfully  made,  and  that  the 
plaintiff  ought  to  recover  the  amount.  But  in 
the  present  case,  the  defendants  had,  at  the 
time  of  receiving  the  notice,  an  equitable  lien 
on  this  money  ;  all  the  three  notes  given  by 
Butler  to  the  defendants  were  dated  prior  to 
the  notice,  .and  the  one  for  $1,001.25  was 
actually  due  at  the  time  they  received  notice 
of  the  "assignment  ;  and,  after  deducting  the 
amount  of  the  return  premiums,  there  was  a 
balance  due  on  that  note  of  $738.75,  which 
was  more  than  sufficient  to  absorb  the  three 
dividends  amounting  only  to  $525.  By  the 
terms  of  the  association,  the  defendants  could 
not  be  called  upon  to  transfer  the  stock  until 
the  20th  of  January,  1798,  being  the  day  on 
which  the  last  installment  for  the  shares  was 
paid  ;  and  they  were  then  bound  to  make  the 
transfer,  and  would  not  have  been  justifiable 
in  denying  it  until  another  dividend  was  made, 
so  as  to  satisfy  the  residue  of  their  demand 
against  Butler.  We  wish  to  be  understood 
that  our  opinion  of  the  defendants'  right  to 
apply  the  three  dividends  of  $525  *to  [*243 
the  payment  of  their  demand  against  Butler, 
is  founded  on  the  circumstance  that  the  first 
note  was  actually  due  when  they  received 

683 


243 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


notice  of  the  assignment.  The  money  being 
in  their  hands,  they  had  a  right  to  consider  it 
as  appropriated  to  the  payment  of  that  de- 
mand ;  and  it  is  unnecessary  to  say  what 
would  have  been  our  decision  had  the  note 
not  been  due.  We  are  therefore  of  opinion 
that  the  plaintiff  is  entitled  to  recover  the  $465 
only,  with  the  interest  from  the  20th  of  Janu- 
ary, 1798. 

Judgment  accordingly. 

Cited  in-3  Paige,  361 ;  59  N.  Y.,  108 ;  60  N.  Y., 
501;  21  How.,  273;  1  Abb.,  27;  3  Daly,  220;  6  Duer, 
579 ;  4  E.  D.  Smith,  701 ;  3  Blatchf .,  251,  252. 


COIT   AND   WOOLSEY  v.  HOUSTON. 

Action  on  Note — Pleading — Accord  and  Satis- 
faction— By  Merchandise — No  Time  or  Place 
of  Delivery — Tender  of  Delivery — Neglect  to 
Receive. 

A  being  indebted  to  B  by  a  promissory  note,  for 
$1,167,  it  was  agreed  in  writing  between  them  that 
A  should  deliver  to  B  as  much  coal  at  $10  per 
chaldron,  as  would  amount  to  the  sum  due  on  the 
note,  the  coal  to  be  of  the  like  quality  with  that 
purchased  by  A  of  B  out  of  a  certain  ship.  No 
time  or  place  was  fixed  for  the  delivery.  A  having 
in  his  coal-yard  a  large  quantity  of  coal,  and  suffi- 
cient of  the  quality  mentioned,  though  consisting 
of  different  kinds,  immediately  afterwards,  and  at 
different  times,  tendered  to  B  the  coal,  in  satisfac- 
tion of  the  note,  and  B  made  no  objection  to  the 
place  or  mode  of  delivery,  but  said,  at  one  time,  he 
would  send  and  take  them,  and  at  another,  that  he 
was  not  ready  to  receive  them,  and  finally  neglected 
to  take  them.  In  an  action,  afterwards  brought 
by  B  against  A,  on  the  note,  it  was  held  that  the 
agreement  for  the  delivery  of  the  coal  was  valid, 
and  that  the  tender  on  the  part  of  A  was  equiva- 
lent to  a  performance,  so  as  to  bar  the  plaintiffs' 
action,  and  might  be  pleaded  by  way  of  accord  and 
satisfaction. 

Citations— Plowd.,  5,  11 ;  Sir  T.  Jones,  168 ;  Sir  T. 
Raym.,  450 ;  2  Str.,  573 ;  2  Wils.,  86 ;  5  Term  R.,  141 ;  2 
Term  K.,  24 ;  Cro.  Eliz.,  193,  304 ;  Co.  Litt.,  210,  a,  b ;  1 
Ch.  Cas.,  29 ;  2  P.  Wms.,  378 ;  3  Term  R.,  554 ;  Doug., 
Co.,  694 ;  2  Johns.  Cas.,411 ;  Cro.  Jac.,  245 ;  1  Wils.,  117 ;  9 
79  a,  b. ;  L.  Raym.,  203 ;  Bacon,  Vol.  I.,  24 ;  L.  Raym.; 
450;  Sir  T.  Jones,  258;  5  Term  R.,  143;  Poth.  Trait, 
des.  Oblig.,  p.  2,  ch.  6,  sec.  9,  sec.  4,  n.  22 ;  Domat,  bk. 
1,  tit.  2,  sec.  4,  art.  7 ;  2  Ersk.,  480,  481 ;  2  H.  Black., 
318,  319 ;  Roll.  Abr.,  tit.  Accord.,  129,  pi.  14 ;  2  Term 
R.,  5. 

THIS  was  an  action  of  assumpsit  brought 
by  the  plaintiffs,  as  indorsees,  against  the 
defendant  as  indorser,  of  a  promissory  note 
given  by  P.  and  G.  Skidmore  to  William  Bur- 
rail,  for  $1,167.33,  payable  the  14th  day  of 
November,  1800.  The  defendant  pleaded  non 
assumpsit,  with  notice  that  he  should  give  in 
evidence  an  agreement,  in  the  words  following, 
to  wit:  "We  do  agree  to  deliver  to  Coit  & 
Woolsey  as  much  coal  as  will  amount,  at  ten 
dollars  per  chaldron,  to  principal,  interest  and 
charges  of  the  note  which  they  now  hold 
against  us,  the  said  coal  to  be  of  an  equal 
quality  with  the  coal  we  purchased  from  them, 
from  the  ship  New  York,  Captain  John  Sea- 
ward, which  was  from  Glasgow.  New  York. 
244*]  *December  24,  1800.  Paul  Skidmore, 
William  Houston,  William  Burrall." 

The  notice  further  stated,  that  the  defend- 
ant had  offered  and  tendered  the  coal  on  the 
agreement,  and  that  the  plaintiffs  refused  to 
accept  it ;  and  further,  that  he  had  deliv- 
684 


ered,  and  the  plaintiffs  accepted,  the  coal  in 
full  satisfaction  of  the  note.  From  the  testi- 
mony stated  it  appeared  that  the  defendant 
had  a  large  quantity  of  coal  in  a  coal-yard, 
in  Roosevelt  Street.  There  were  300  or  400 
chaldrons,  which  was  generally  as  good  as 
that  received  from  the  ship  New  York,  but  it 
lay  in  bulk,  and  no  considerable  quantity  of 
one  kind  could  be  taken  without  mixing  with 
others.  The  market  price  of  coal  at  the  time 
was  about  $10.  Shortly  after  the  above  agree- 
ment, the  defendant  had  cartmen  and  laborers 
ready  to  deliver  the  coal  to  the  plaintiffs. 
About  the  beginning  of  February,  1801,  the 
plaintiffs  offered  the  coal  for  sale  to  William 
Dodge,  saying  they  were  obliged  to  take  it 
back.  On  the  26th  or  27th  of  December, 

1800,  the  plaintiffs  were  requested  by  the  de- 
fendant's clerk  to  take  away  the  coal  from 
Roosevelt  Street,  which  they  said  they  would 
do.     It  also  appeared  that  the  defendant,  soon 
after  the  contract,  repeatedly  called  and  re- 
quested the  plaintiffs  to  take  away  the  coal. 
And  at  one  time,  one  of  the  plaintiffs  prom- 
ised to  call  next  morning  and    look   at  it. 
This  the  witness  thought  was  between  Christ- 
mas and  New  Year.     Another  witness  said  it 
was  in  March.     A  witness  testified  that  he  was 
present  at  a  time  when  much  conversation 
took  place  between  the  parties  on  the  subject, 
and  the  plaintiffs  did  not  pretend  that  the  de- 
fendant had  ever  said  he  was  unable  or  un- 
willing to  deliver  the  coal.     In  the   spring  of 

1801,  the  defendant  called  on   the  plaintiffs, 
and  tendered  the  coal,  saying  it  was  ready 
for  them ;   and  the  plaintiffs  answered   that 
they  were  not  ready  to  receive  it,  and  would 
take  it  when  they  pleased.     On  the  part  of 
the  defendant  it  was  proved  that  on  the  llth 
of  February,  1801,  the  defendant  called  at  the 
counting-house  *of  the  plaintiff  and  [*245 
told  their  clerk  that  he  had  come  to  inform  the 
plaintiffs  that  he  could  not  deliver  the  coal 
because  Burrall  detained  them.     The  witness 
informed  the  plaintiffs  of  this,  and  the  present 
suit  was  soon  after  commenced. 

It  also  appeared  that  the  plaintiffs  had  never 
taken  any  part  of  the  coal,  but  that  the  de- 
fendant, in  the  winter  of  1802,  took  from  the 
yard  all  that  remained,  being  upwards  of  one 
hundred  chaldrons,  the  yard  then  lying  open. 

On  the  part  of  the  plaintiffs,  it  was  con- 
tended that  the  agreement  respecting  the  coal 
could  not  operate  as  a  satisfaction  of  the  note 
in  question  without  a  delivery,  and  accept- 
ance, in  fact,  of  the  coal. 

On  the  part  of  the  defendant  it  was  insisted 
that  there  was  an  actual  acceptance  of  the 
coal,  and  if  not,  there  was,  at  least,  a  tender 
and  refusal  to  receive,  which  was  equivalent 
to  an  acceptance. 

Messrs.   Hopkins  and  Biggs  for  the  plaint- 
iffs. 
Messrs.  Hamilton  and  Etertson,  contra. 

THOMPSON,  J.  The  first  point  which  pre- 
sents itself  for  consideration  is  the  agreement 
set  up  by  the  defendant  as  a  satisfaction  of  the 
note.  It  is  said  that  this  agreement  is  a  mere 
nudum  pactum  ;  that  there  was  no  considera- 
tion ;  that  it  contained  no  mutuality,  inas- 
much as  the  plaintiffs  did  not  agree  to  accept  ; 
JOHNSON'S  CASES,  3. 


1802 


COIT   AND   "VVOOLSEY   V.    HOUSTON. 


245 


that  it  contained  no  sufficient  certainty,  and 
was  nothing  more  than  a  proposition  to  pay. 
But,  on  examination,  I  cannot  consider  this 
agreement  so  defective.  The  whole  circum- 
stances stated  show  that  the  transaction  was 
fair  and  honest  on  the  part  of  the  defendant. 
The  coal  was  to  be  delivered  at  $10  per  chal- 
dron, which,  according  to  the  case,  appears  to 
have  been  the  then  market  price.  The  con- 
sideration was  the  money  due  on  the  note  in 
question,  and  although  no  time  is  fixed  for 
the  delivery  of  the  coal,  yet,  in  judgment 
24©*]  *of  law,  they  were  to  be  delivered  im- 
mediately, or  on  demand.  It  appears  to 
me,  therefore,  that  this  agreement  contains 
all  the  essential  requisites  to  a  valid  contract, 
and  upon  which  an  action  might  be  sustained, 
in  case  of  a  refusal  to  deliver  the  coal.  This 
being  the  case,  it  remains  to  be  considered 
whether  this  contract  can  be  set  up  by  the  de- 
fendant as  a  satisfaction  for  the  note.  I  do 
not  think  the  present  case  directly  involves 
A  determination  of  the  abstract  question, 
whether  accord  without  satisfaction  would 
be  a  good  plea.  As  a  general  rule,  or  prin- 
ciple of  law,  as  applicable  to  a  plea  of  this 
kind,  it  has  been  frequently  decided  that  a  plea 
of  accord  simply,  without  satisfaction,  would 
be  bad.  And  the  rule,  I  have  no  doubt,  is  a 
sound  one,  that  it  must  appear  upon  the  face 
of  the  pleadings,  either  that  the  party  has 
actually  received  the  thing  pleaded,  as  a  satis- 
faction, or  that  the  contract  set  up  as  the  sub- 
stitute shall  afford  him  redress  for  the  original 
demand.  The  leading  reason  which  appears 
to  govern  almost  all  the  cases  that  determine 
that  a  plea  of  accord  only  is  bad,  is,  that  an 
.action  could  not  be  sustained  on  the  accord  on 
the  ground  of  a  nudum  pactum.  But  this 
reason  ceases  where  the  agreement  set  up  as 
the  substitute  will  sustain  an  action,  and 
afford  complete  redress. 

From  an  examination  of  the  authorities,  I 
think  I  am  warranted  in  adopting  as  a  general 
rule,  that  an  agreement,  in  order  to  be  an 
effectual  plea  in  bar,  must  be  executed  and 
satisfied  with  a  recompense  in  fact,  or  with  an 
action,  or  other  remedy  to  execute  it  and  re- 
cover a  recompense.  (Plowd.,  5,  11  ;  Sir  T. 
Jones,  168.)  And  in  the  case  of  Case  v.  Bar- 
ber (Sir  T.  Raym.,  450),  accord,  without  satis- 
faction, but  with  tender,  was  pleaded,  and  the 
court  held  it  good,  saying  that  formerly  it  was 
held  necessary  that  the  agreement  should  ap- 
pear to  have  been  executed,  yet  of  late  it  had 
been  held  that  upon  mutual  promises  an 
action  lies,  and  consequently,  there  being 
equal  remedies  on  both  sides,  an  accord  may 
247*]  be  *pleaded  without  execution,  as  well 
as  an  arbitrament.  If  I  am  correct,  then, 
that  the  agreement  to  deliver  the  coal  was 
such  a  one  as  would  sustain  an  action,  and  afford 
a  remedy  to  the  plaintiffs  for  their  demand,  it 
comes  within  this  rule  and  decision.  It  is 
said,  however,  that  these  judgments  have  been 
overruled  by  later  decisions.  There  is  cer- 
tainly much  obscurity,  and,  perhaps,  some 
contradiction,  in  the  books,  on  this  subject ; 
yet  from  the  authorities  cited  by  the  plaintiffs' 
counsel,  it  does  not  appear  to  me  that  the 
great  and  leading  principles  contained  in  the 
above  cases  are  materially  contradicted.  Most 
of  these  cases  were  decided  on  demurrer, 
JOHNSON'S  CASES,  3. 


either  to  the  form  of  the  plea,  or  the  nature  of 
the  satisfaction  disclosed  by  it. 

In  the  case  of  Patne  v.  Martin  (2  Stra.,  573), 
the  question  came  before  the  court  on  demurrer, 
and  turned  on  the  insufficiency  of  the  covenant 
of  acceptance. 

In  the  case  of  Preston,  v.  Chrismas  (2  Wils., 
86),  the  judgment  was  given  on  the  ground  that 
a  release  of  the  equity  of  redemption  was  no 
satisfaction  in  law. 

In  the  case  of  Jaine*  v.  David  (5  Term  Rep. , 
141),  the  question  arose  on  a  demurrer  to  the 
plea  which  was  accord  without  satisfaction, 
and  the  court  adjudged  it  insufficient. 

In  the  case  of  Heathcvte  v.  Orook&hank*  (2 
Term  Rep.,  24),  the  decision  turned  on  the 
question  of  nudum  pactum,  and  that  the  sum 
tendered  was  less  than  the  original  demand. 

In  the  two  cases  cited  from  Cro.  Eliz.,  193,' 
304,  one  was  decided  on  the  ground  that  the 
accord  and  tender  was  for  a  less  sum  than  the 
original  demand  ;  and  the  other  was  an  action 
of  debt  on  bond,  and  the  accord  and  satisfac- 
tion set  up,  was  a  promise  by  parol  to  pay  a 
sum  of  money  at  a  day  subsequent  to  the,  day 
mentioned  in  the  bond,  and  was  merely  exec- 
utory ;  and,  being  by  parol,  could  not  dis- 
charge the  bond. 

*I  do  not  think  the  present  case  [*248 
comes  within  any  of  the  principles  decided  in 
those  cases.  The  plea  is  tantamount  to  a  plea 
of  accord  and  satisfaction.  There  is  no  ob- 
jection here  to  the  amount  of  the  satisfaction. 
The  full  principal  and  interest  of  the  note  were 
to  be  paid  in  coal,  at  the  price  agreed  on, 
which  appeared  to  be  the  market  price  at  that 
time. 

If  the  plaintiffs  had  actually  received  the 
coal,  the  satisfaction  would  have  been  com- 
plete ;  and  no  possible  objection  could  be 
raised  against  it.  Or  if  the  sale  of  the  coal 
would  be  considered  as  complete,  or  the 
plaintiffs,  by  their  own  acts,  waived  anything 
further  being  done,  on  the  part  of  the  defend- 
ant, in  order  to  complete  the  sale,  and  the  coal 
remained  afterwards  at  their  risk,  I  cannot  see 
why  satisfaction  was  not  in  fact  received. 
Those  were  points,  however,  properly  sub- 
mitted to  the  determination  of  the  jury,  who, 
by  their  verdict,  have  decided  the  fact,  and,  I 
think,  in  a  manner  fully  justified  by  the  testi- 
mony. The  plaintiffs,  after  the  agreement 
for  the  coal,  offered  them  for  sale  to  Dodge, 
and  when  requested  by  the  defendant  to  take 
it  away,  they  promised  to  do  it.  The  only 
objection  with  them  seemed  to  be  that  it  was 
not  at  that  time  convenient ;  not  that  they  con- 
sidered the  contract  for  the  sale  of  the  coal  as 
incomplete,  or  that  anything  further  was  to 
be  done  on  the  part  of  the  defendant,  in  order 
to  complete  it.  There  was  no  pretense  that  the 
coal  were  to  be  brought  by  the  defendant  to 
the  plaintiffs'  store,  or  yard.  These  were 
circumstances  from  which  the  jury  might 
infer  an  actual  acceptance  at  the  place  where 
the  coal  lay,  and  that  they  were  there  at  the 
risk  of  the  plaintiffs.  Although  I  do  not  think 
it  necessary,  for  the  purpose  of  determining 
the  present  question,  to  say  that  in  all  cases  a 
tender  and  refusal  shall  be  equivalent  to  an 
actual  acceptance,  yet  I  think  it  a  rule  founded 
in  good  sense,  and  one  that  is  not  contradicted 
by  the  general  tenor  of  the  authorities. 

685 


248 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1802 


Whether,  in  this  case,  there  was  a  tender 
249*]  *and  refusal,  were  questions  for  the 
determination  of  the  jury.  And  even  admit- 
ting there  was  no  actual  legal  tender,  it  would 
not,  in  my  judgment,  alter  the  result.  The  party 
to  whom  it  is  to  be  made,  has,  undoubtedly,  a 
rigth  to  waive  that  ceremony,  and  I  think  the 
circumstances  here  are  fully  sufficient  to 
warrant  such  an  inference.  When  it  is  said 
that  a  tender  and  refusal  is  equivalent  to  an 
actual  performance,  it  is  not  to  be  understood 
that  it  amounts  to  an  absolute  discharge  of 
the  party  from  all  liability  on  the  contract. 
In  the  case  of  a  tender  of  money,  it  only  dis- 
charges the  subsequent  interest  and  costs. 
And  in  the  case  of  goods,  like  the  present,  it 
only  exonerates  the  party  from  responsibility 
for  their  safe  keeping.  But  as  long  as  he  con- 
tinues in  possession  of  the  goods,  he  will  be 
bound  to  deliver  them  on  demand.  And  if  he 
should  dispose  of  them,  he  would  be  answer- 
able for  the  avails.  On  the  whole,  I  think  it  a 
rule  fully  warranted  by  the  authorities,  that  a 
contract  or  agreement  which  will  afford  a  com- 
plete recompense  to  a  party  for  an  original 
demand,  ought  to  be  received  as  a  substitute 
and  satisfaction  for  such  demand,  and  is  suffi- 
cient to  support  a  plea  of  accord  and  satisfac- 
tion. This  appears  to  me  to  be  a  rule  founded 
on  sound  principles,  and  one  calculated  for 
the  furtherance  of  justice.  In  the  present 
case,  the  plaintiffs'  remedy  must  be  upon  the 
agreement  for  the  sale  of  the  coal,  in  which 
case  complete  justice  can  be  dispensed,  ac- 
cording to  the  true  intent  and  meaning  of 
the  parties.  I  am,  therefore,  of  opinion  that 
no  new  trial  ought  to  be  granted. 

LIVINGSTON,  J.,  concurred.  The  substance 
of  his  opinion  was  as  follows : 

There  were  acts  equivalent,  under  the  cir- 
cumstances of  the  case,  to  a  tender  of  the 
coal ;  and  that  amounted  to  a  performance 
of  the  new  agreement  on  the  part  of  the 
defendant.  The  contract  of  the '24th  Decem- 
ber, 1800,  was  no  doubt  valid.  The  plaint- 
25O*]  iffs  accepted  it,  and  became  *par- 
ties  to  it,  and  there  was  a  consideration  on 
each  part.  The  plaintiffs  were  to  receive  coal 
in  payment  of  the  note,  at  a  fixed  valuation. 
The  defendant  was  to  receive  his  note  in  re- 
turn. There  was  a  benefit  accruing  to  each 
party.  The  contract  was  also  sufficiently 
certain,  and  each  might  have  demanded  per- 
formance instantly. 

The  time  and  place  of  the  tender  were  here 
sufficiently  supplied.  It  is  a  rule  that  money 
must  be  tendered  to  the  payee  in  person,  or 
where  the  payee  resides,  when  no  place  certain 
is  fixed.  (Co.  Litt.,  210.  a,  b;  1  Ch.  Cas., 
29.)  But  this  rule  must,  of  necessity,  be  dif- 
ferent, when  bulky  articles  are  the  object  of 
the  tender.  In  many  cases,  the  removal  of  the 
article  to  the  residence  of  the  payee  would  be  im- 
possible ;  and  in  the  present  case  it  would  have 
been  attended  with  great  difficulty,  as  the  coal 
could  only  have  been  removed  in  parcels,  and 
there  was  no  proper  place  where  they  could 
have  been  deposited.  It  is,  therefore,  an 
obvious  dictate  of  reason  and  justice,  that 
when  no  time  and  place  are  given,  the  party 
who  is  to  deliver  may  inform  the  other  party 
that  the  cumbersome  article  is  ready,  at  a 
686 


certain  place,  and  if  no  objection  be  made, 
the  appointment  of  the  place  will  be 
good.  Pothier  prescribes  the  same  rule  in 
the  French  law.1  So  money,  in  bulk,  has 
been  tendered  at  a  place  appointed  by  a  mort- 
gageor,  and  sanctioned  by  Lord  Ch.  King, 
because  no  objection  was  made.  (2  P.  Wms., 
378.)  A  tender  in  bank  notes  is  also  good, 
when  no  objection  is  made.  (Buller,  J.,  3 
Term  Rep.,  554.)  Silence  will  give  effect  to 
an  act  otherwise  doubtful ;  but  here  was  every 
reason  to  infer  an  acquiescence  on  the  part  of 
the  plaintiffs  as  to  the  place  of  delivery.  The 
tender,  therefore,  was  good,  there  being  no 
objection  made  as  to  the  want  of  any  of  the 
requisite  formalities.  It  was  unnecessary  for 
the  defendant  to  go  on  further,  for  *the  [*25 1 
plaintiffs  were  satisfied  with  what  he  had 
done,  and  said  they  would  send  and  take 
away  the  coal.  It  is  settled  that  the  act  of  one 
party  will  cure  an  imperfect  tender,  or  waive 
the  necessity  of  one  altogether.  (Doug.,  694  ; 
Judah  v.  Kemp,  October  Term,  1801,  2  Johns. 
Cases,  411.)  Such  a  tender  of  performance  of 
a  valid  agreement,  ought  to  be  equivalent  to 
performance,  in  order  to  avoid  circuity  of 
action.  To  enforce  payment  of  the  note,  in 
spite  of  the  agreement  and  tender,  would  be 
unreasonable,  and  the  law  does  not  permit  it. 
It  is  a  principle  settled,  that  if  a  person  is  to 
acquire  a  right  to  a  debt  or  duty  by  previously 
doing  some  act,  this  right  is  as  completely 
vested  by  an  offer  to  do  it  and  a  refusal,  as  if 
the  act  had  been  actually  performed,  or,  in 
other  words,  a  tender  and  refusal  is  equiva- 
lent to  a  performance.  (Cro.  Jac.,  245; 
Doug.,  694;  1  Wils.,  117.)  On  tender  of  the 
coal,  in  the  present  case  (for  a  tender  and 
acquiescence  or  acceptance  must  certainly  be 
of  as  much  force  as  tender  and  refusal),  the 
defendant  acquired  a  right  to  the  note,  and 
might  have  brought  trover  for  it,  which  could 
not  be,  if  the  plaintiffs  can  now  sue  upon  the 
note.  The  cases  that  look  to  the  contrary  do 
not  decide  against  this  principle,  if  they  are 
carefully  examined.  In  Peyton's  case  (9  Co. , 
79  b.)  a  tender  and  refusal  were  not  before 
the  court ;  and  in  the  case  in  Sir  T.  Jones,  6, 
it  does  not  appear  whether  the  new  agreement 
was  valid.  So  in  Cock  v.  HonycJiurch  (T. 
Raym.,  203),  there  was  no  tender  pleaded  of 
the  attorney's  bill ;  and  the  new  editor  of 
Bacon  (Vol.  I.,  24),  observing  on  this  case, 
says,  that  if  the  defendant  had  demanded  the 
bill,  and  tendered  a  reasonable  sum,  it  might 
have  been  good.  On  the  other  hand,  the  case 
of  Case  v.  Barber  (T.  Raym.,  450),  and  those 
in  Sir  T.Jones,  258  and  168,are  in  point.  The  doc- 
trine is,  that  if  no  action  lies  on  the  mutual  prom- 
ise, such  agreement  is  no  bar.  In  a  late  case,  also, 
in  K.  B.  (5  Term  Rep.,  143),  Grose,  J.,  admit- 
ted that  there  were  some  cases  in  which  it  had 
been  held,  that  where  one  party  has  satisfied 
the  other,  as  far  as  he  could,  by  tender  and 
*refusal,  it  might  be  pleaded.  There  f*252 
are  cases  that  say  that  the  agreement  is  bad, 
but  none  that  say  that  tender  and  refusal  on  a 
valid  agreement  substituted  to  the  other,  and 
on  which  an  action  lies,  might  not  be  pleaded. 

1.— Trait,  du  Contrat  de  Vent,  No.  52,  p.  2,  ch.  1, 
art.  2,  sec.  2.  S'ii  n'y  a  point  de  lieu  exprime,  la  livrai- 
son  doit  se  faire  au  lieu  ou  est  la  chose;  c'ettt  a  r 
acheteur  a  V  envoyer  chercher,  <5cc. 

JOHNSON'S  CASES,  3_ 


1802 


COIT  AND   WOOLSEY   V.    HOUSTON. 


252 


Pothier  (Trait,  des  Oblig.,  p.  2,  ch.  6,  sec.  9, 
sec.  4,  n.  22)  is  very  clear  to  the  same  effect. 
' '  One  may,  by  the  pact  constitutce  pecunice, 
promise  to  pay,  in  lieu  of  the  sum  due,  another 
sum  or  thing.  Let  us  suppose  that  my  debtor 
of  thirty  pistoles,  promises  to  pay  me  six 
puncheons  of  wine,  of  his  own  vintage,  in  pay- 
ment of  the  thirty  pistoles.  This  pact  does  not 
destroy  the  first  obligation,  and  I  may,  by 
virtue  of  it,  demand  of  my  debtor  the  thirty 
pistoles  ;  but  as,  by  the  pact,  I  have  agreed 
that  he  might  pay  me,  instead  of  that  sum, 
six  puncheons  of  wine,  he  may,  by  pleading 
the  pact  (per  exceptionem  pactf),  "and  tendering 
the  wine,  require  to  be  discharged  from  the 
demand  of  the  thirty  pistoles.  By  means  of 
this  plea,  of  which  he  may  avail  himself,  the 
first  obligation,  which  was  a  pure  and  simple 
obligation  to  pay  me  precisely  thirty  pistoles, 
receives  a  modification,  and  becomes  an  agree- 
ment to  pay  thirty  pistoles,  with  the  power  of 
paying  six  puncheons  of  wrine  instead  of  that 
sum." 

RADCLIFF,  J.  It  will  be  unnecessary  in  this 
case  to  repeat  the  facts  which  have  been  stated, 
except  so  far  as  they  may  be  material  to  dis- 
tinguish the  grounds  on  which  I  differ  from 
the  opinions  already  delivered ;  and  it  is  equal- 
ly unnecessary  to  renew  the  discussion  of 
several  points  in  which  I  fully  agree  with  my 
brethren. 

I  consider  the  contract  for  the  sale  and  de- 
livery of  the  coal  in  satisfaction  of  the  plaint- 
iff's debt  as  valid,  and,  of  course,  that  it  is 
sufficient  to  support  an  action  for  its  nonper- 
formance  against  the  party  in  default  on  either 
side.  It  is  founded  on  a  good  consideration, 
and,  being  in  writing,  it  cannot  be  affected  by 
the  statute  of  frauds.  I  also  agree,  that  in 
relation  to  these  parties,  and  for  the  purpose 
of  effectuating  this  contract,  a  tender  and  ref  us- 
2.53*]  al  *would  be  equivalent  to  an  actual 
performance,  and  entitle  the  vendor  to  the 
price,  and  the  vendee  to  the  possession  of  the 
article  which  was  the  subject  of  the  contract. 
An  omission  or  neglect  to  accept  the  article 
when  duly  tendered,  is  also  equivalent  to  a 
refusal,  and  will  subject  the  party  in  default 
to  the  like  consequences.  These  appear  to  me 
to  be  plain  principles,  founded  in  equity,  and 
supported  both  by  the  civil  law  and  the 
authorities  in  our  own  law.  But  on  the  facts 
in  this  case,  two  other  questions  arise : 

1st.  Whether  there  was  a  competent  or  legal 
tender  of  the  coal  by  the  defendant;  and, 

2d.  Whether,  if  the  tender  was  sufficient, 
he  has  not  abandoned  his  right  to  demand  the 
price  for  which  they  were  sold,  and  is  entitled 
only  to  an  indemnity  for  the  diminution  of 
value. 

With  regard  to  the  first  question,  it  appears 
that  the  coal,  at  the  time  of  the  tender,  remain- 
ed in  the  defendant's  coal-yard,  mixed  with 
other  coal,  and  not  separated  from  them.  If 
they  had  been  separated,  he  would  have  done 
everything  he  could  to  effect  a  delivery.  I 
have  no  doubt,  that  in  relation  to  a  cumbrous 
article,  it  was  sufficient,  on  his  part,  to  offer 
to  deliver,  as  the  plaintiffs  should  direct ;  for, 
from  its  nature,  it  was  not  susceptible  of  any 
other  tender.  But  still,  it  may  be  questioned 
whether  the  defendant  did  all  that  was  neces- 
JOHNSON'S  CASES,  3. 


sary,  and  in  his  power  to  do.  He  was  to 
deliver  a  precise  quantity,  and  of  certain  qual- 
ity, according  to  the  agreement.  I  am  in- 
clined to  think  that  he  ought,  in  strictness,  to 
have  separated  the  quantity  sold,  in  order 
to  make  a  specific  tender,  and  to  ascertain 
that  it  corresponded  with  the  quality  con- 
tracted for.  For  want  of  this,  it  was  left  to 
calculation,  and  subject  to  conjecture  and 
uncertainty,  whether  a  sufficient  quantity  of 
the  like  quality  was  to  be  found  in  a  pro- 
miscuous heap,  and  the  purchaser  was  not 
bound  to  submit  to  the  risk  of  that  uncertain- 
ty. *He  was  entitled  to  receive  a  par-  [*254 
ticular  quantity,  of  a  specified  nature,  and 
unmixed  with  other  coal.  Although  we  have 
no  direct  authority  in  our  own  or  the  English 
courts  to  this  point,  it  appears  to  me  to  con- 
sist with  reason ;  and  by  the  civil  law  it  is 
established  that  when  provisions  or  other 
commodities  are  sold  by  the  bulk,  for  a  gross 
price,  the  sale  is  perfect,  for  it  is  known  with 
certainty  what  is  sold ;  but  if  the  price  is 
regulated  at  the  rate  of  so  much  for  every 
piece,  pound  or  measure,  as  in  the  present  case, 
the  sale  is  not  perfect,  except  as  to  so  much 
only  as  is  actually  counted,  weighed  or  meas- 
ured ;  for,  till  then,  it  is  not  known  with  cer- 
tainty what  is  sold.  (Domat,  bk.  1,  tit.  2,  sec. 
3,  art.  7.)1  The  like  principle  is  adopted  in 
the  Scotch  law  (2  Ersk.,  480,  481),  and  the 
reason  on  which  it  is  founded  appears  to  me 
correct.  If,  therefore,  the  tender  be  insuffi- 
cient, it  follows  that  the  defendant's  plea  can- 
not, on  any  ground,  be  maintained. 

2.  But  admitting  the  tender  to  be  sufficient, 
the  second  question  is,  whether  the  defendant 
has  not  waived  his  title  to  demand  the  full 
price  of  the  coal.  This  proceeds  on  the  idea 
that  he  had  an  undoubted  right  to  deliver  the 
coal  at  the  stipulated  price,  and  that  the  plaint- 
iffs were  bound  to  accept  it.  In  good  faith 
they  could  not  refuse,  nor  could  they,  by  their 
own  act,  in  any  way  deprive  him  of  the  full 
benefit  of  his  contract. 

Without  stating  the  evidence  under  this 
head  more  --at  large,  it  unequivocally  appears 
that  no  part  of  the  coal  was,  in  fact,  at  any 
time,  delivered  ;  that  they  remained  in  the  de- 
fendant's coal-yard,  mixed  with  other  coal, 
from  which  they  were  never  separated,  and 
that  finally,  the  defendant  *removed  [*255 
from  the  yard  all  the  coal  that  remained, 
amounting  to  upwards  of  100  chaldrons,  which 
were  either  sold  or  disposed  of  by  him,  since  it 
is  not  pretended  that  any  of  them  were  kept 
for  the  plaintiffs.  I  think  the  circumstance 
of  the  plaintiffs'  having  previously,  on  the  1st 
February,  offered  to  sell  to  Mr.  Dodge  the  coal 
of  the  cargo  of  the  ship  New  York,  saying 
that  they  were  obliged  to  take  them  back,  can- 
not, in  opposition  to  this  evidence,  be  con- 
sidered as  any  proof  of  its  having  actually 
been  delivered  or  received  by  the  plaintiffs. 


1. — Though  it  is  true,  in  such  cases,  that  the  con- 
tract of  sale  is  not  perfect  or  complete  until  the 
goods  are  counted,  weighed  or  measured,  so  as  to 
change  the  property,  and  put  the  goods  at  the  risk 
of  the  vendee,  yet  the  contract  of  sale  is  so  far  com- 
plete and  existing  as  to  give  the  vendee  an  action 
for  the  delivery  of  the  thing,  on  tendering  the  price, 
and  the  vendor  his  action  for  the  price,  on  tender- 
ing the  delivery  of  the  thing  sold.  (See  Pothier, 
Control  du  Vente,  part  4,  No.  308 ;  and  6  East,  625.) 

087 


255 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1802 


Allowing  that  circumstance  its  utmost  weight, 
it  is  evidence  only  of  a  constructive  and  not 
an  actual  delivery. 

It  is  therefore  certain  that  the  contract  was 
never  carried  into  effect ;  that  the  accord  was 
never,  in  fact,  executed,  and,  of  course,  that 
the  defense  is  not  maintained,  unless  it  be  on 
the  ground  of  the  tender  and  refusal  to  accept. 
I  consider  it  as  equally  clear,  that  by  force  of 
the  contract  alone,  which  was  merely  executo- 
ry, the  property  was  not  changed ;  but  on 
making  the  tender,  if  that  was  competent,  the 
•defendant  had  an  election  to  consider  it 
changed,  and  to  become  the  bailee  for  the 
plaintiffs,  or  to  affirm  the  property  to  continue 
in  himself,  and  demand  the  difference  between 
its  actual  value  and  the  price  agreed  upon.  If 
he  elected  to  consider  the  property  changed, 
it  would  remain  in  his  possession  at  the  charge 
and  risk  of  the  plaintiffs,  and  subject  to  their 
direction.  He  could  not,  in  the  character  of 
bailee,  dispose  of  it  for  his  own  benefit.  The 
moment  he  did  so,  he  treated  it  as  his  own, 
and  affirmed  the  property  to  continue  in  him- 
self, and  could  only  demand  the  difference 
between  the  value  and  the  price  which  was 
stipulated.  The  same  rule  prevails  in  the 
civil  law  (1  Domat,  tit.  2,  sec.  4,  art.  7),  by 
which  it  is  declared,  "that  if,  in  default  of 
payment  of  the  price,  the  seller  finds  himself 
obliged  to  detain  or  take  back  the  thing  sold, 
and  its  value  be  diminished,  the  buyer  will  be 
bound  to  indemnify  the  seller  for  this  diminu- 
tion, as  far  as  the  price  which  was  agreed  on 
256*]  amounts  *to."  "And  this  rule,"  it  is 
added,  "  is  a  consequence  of  the  nature  of  the 
contract  of  sale,  for  the  sale  being  perfected,  the 
full  price  is  due,  whatever  change  may  hap- 
pen to  the  thing  sold."  I  consider  this  do'c- 
trine  as  recognized  in  our  own  courts,  in  the 
case  of  contracts  foi>  stock,  and  particularly 
in  the  case  of  Radcliff  &  Heermance  v.  Yeo- 
mans;  and  it  appears  to  me  to  prescribe  the 
just  and  rational  rule  on  the  subject. 

I  therefore  think  that  the  defendant,  by  the 
sale  or  disposition  of  the  coal  subsequent  to 
the  tender,  determined  his  election  to  consider 
the  property  as  his  own,  and  cannot  after- 
wards demand  the  full  price  for  which  they 
were  sold  to  the  plaintiffs.  He  cannot  retain 
the  whole  property,  and  at  the  same  time 
demand  the  whole  price.  He  is  entitled  to 
recover,  in  damages,  a  sum  equal  to  the  differ- 
ence in  value  only,  and,  of  course,  the  verdict 
which  allows  him  the  whole  price  ought,  in 
my  opinion,  to  be  set  aside.  It  is  unnecessary 
to  say  whether  such  damage  could  be  set-off 
in  the  present  action. 

KENT,  J.  Without  examining  particularly 
all  the  questions  raised,  I  think  this  case  may 
be  decided  upon  this  single  point,  whether 
there  was  evidence  of  a  satisfaction  received, 
or  performance  tendered,  sufficient  to  warrant 
a  verdict. 

There  can  be  no  doubt  of  the  law,  that  an 
accord  executory  is  no  bar,  and,  on  the  other 
hand,  that  an  accord  executed  is  a  satisfaction. 
(2  Hen.  Black.,  318,  319.)  So  if  a  contract  be 
to  pay  money,  and  by  an  accord  there  be  given 
other  things,  as  a  horse,  or  gold  ring,  in  satis- 
faction, it  will  be  good.  (9  Co.,  79,  a,  6.) 
Again,  if  an  accord  be  executory,  in  the  first 
688 


instance,  and  be  afterwards  executed  at  a 
future  day,  it  is  then  good.  The  case  in  Roll. 
Abr.,  tit.  Accord,  129,  pi.  14,  is  to  this  effect: 
"If,  as  the  case  states,  an  accord  be,  that  the 
defendant  will  do  a  certain  thing  at  a  future 
day,  in  satisfaction  of  the  action,  and  he  does 
it  at  the  day,  this  is  a  good  bar  to  *the  [*257 
action,  although  it  was  executory  at  the  time 
of  the  accord  made,  since  he  hath  accepted  it 
in  satisfaction." 

In  the  present  case,  there  was  evidence  that 
the  coal  was  ready  to  be  delivered  to  the 
plaintiffs,  in  pursuance  of  the  agreement 
which  they  had  accepted;  that  it  was  gener- 
ally of  the  quality  specified,  and  that  there 
was  a  sufficient  quantity  ready;  that  between 
the  25th  and  30th  December,  1800,  that  is, 
immediately  after  the  agreement  was  made, 
the  defendants  repeatedly  offered  the  coal  to 
the  plaintiffs,  and  they  said,  at  one  time,  they 
would  call  the  next  morning  and  look  at  the 
coal,  and  at  another  time,  that  they  would  call 
and  bring  away  the  coal,  and  send  a  person  to 
examine  it;  that,  afterwards,  on  the  first  of 
February  following,  they  offered  for  sale  the 
coal  of  the  cargo  of  the  ship  New  York,  say- 
ing they  were  obliged  to  take  it  back.1  From 
these  facts,  the  jury  might  infer  that  the  de- 
fendant had  performed  the  agreement  upon 
his  part,  by  an  acceptance  on  the  part  of  the 
plaintiffs;  and  it  may  be  held  that  the  plaint- 
iffs were  properly  concluded  or  estopped  by 
their  own  declarations  made  at  the  time  of  the 
offer,  and  their  act  in  pursuance  thereof,  from 
denying  an  acceptance  of  the  coal. 

Upon  this  ground  alone  the  verdict  may  be 
permitted  to  rest.  The  justice  of  the  case  is 
clearly  with  the  defendant.  The  case  shows 
the  many  uniform  and  sincere  efforts  on  the 
part  of  the  defendant  to  fulfil  the  agreement 
which  he  had  made  with  the  plaintiffs,  and 
it  shows,  also,  efforts  on  the  part  of  the 
plaintiffs  to  avoid  a  performance  of  the  agree- 
ment they  had  accepted  from  the  defendants. 

If,  therefore,  we  find  declarations  and  acts 
of  the  plaintiffs,  at  one  time,  sufficient  to  form 
a  basis  for  a  conclusion  against  them,  a 
jury  were  well  warranted  to  lay  hold  of 
*those  declarations  and  acts,  and  bind  [*258 
the  plaintiffs  to  them. 

It  is  unnecessary,  perhaps,  to  discuss  the 
rights  of  the  parties  as  to  the  coal,  in  conse- 
quence of  subsequent  waste  or  loss  of  it 
as  it  lay  in  the  yard,  or  in  consequence  of 
the  subsequent  sale  of  the  residue  of  it  by 
the  defendant  after  the  suit  was  brought.  In 
the  view  I  have  taken  of  the  case,  the  defend- 
ant became  trustee  to  the  plaintiffs,  for  the 
safe  keeping  of  the  coal.2  The  modifications 
and  contingencies  under  which  the  plaintiffs 
accepted  of  the  coal  are  not  now  material. 
It  is  sufficient  to  say,  their  acceptance  was 
sufficient  to  give  the  defendant  a  right  to  the 
note  in  lieu  of  which  the  coal  were  received, 
and,  consequently,  to  bar  any  action  the 
plaintiffs  might  afterwards  bring  upon  the 
note.  If  concluded  at  all,  they  are  equally  so 
against  alleging  any  imperfection  in  the  sale 
of  the  coal,  to  do  away  the  force  of  their  own 
declaration  and  act. 

1.— See  Chaplin  v.  Rogers,  1  East,  192. 
2.— See    Pothier,  Contrat  de  Vente,  p.  2,  ch.  J, 
sec.  3. 

JOHNSON'S  CASES,  8 


1802 


CONROY  v.  WARREN. 


258 


However,  I  press  none  of  these  points. 
The  evidence  tended  to  the  conclusion  drawn 
by  the  jury;  and  as  the  Court  of  K.  B.  (2  Term 
Rep.,  5)  observed,  on  a  like  motion  for  a  new 
trial,  that  as  it  did  not  require  much  penetra- 
tion to  see  where  justice  lay,  they  would  not 
exercise  their  discretion  in  sending  down  the 
cause  to  be  retried  on  a  technical  objection  in 
point  of  law.  My  opinion,  therefore,  is,  that 
the  motion  of  the  plaintiffs  ought  to  be  denied. 

LEWIS,  Ch.  J. ,  not  having  heard  the  argu- 
ment, gave  no  opinion. 

Motion  denied.1 

Overruled— 16  Barb.,  599. 

Distinguished— 19  Wend.,  517. 

Cited  in— 16  Johns.,  88 ;  4  Wend.,  530 ;  26  Wend., 
556 ;  5  Hill,  547 ;  16  N.  Y..  585 ;  21  N.  Y.,  347 ;  IE.  D. 
Smith,  308. 


259*]      *CONROY  v.  WARREN. 

1.  Bill,  NoteorClieck — Pay  able  to  Bearer — Con- 
sideration— Proof  of  Fraud  Suggested.  2. 
Bank  Check — Presentment — Delay  in — Does 
not  Release  Maker,  3.  Id. — Stamp  Act. 

The  holder  of  a  note,  check  or  bill,  payable  to 
bearer,  need  not  prove  a  consideration,  unless  it  is 
suggested  that  the  possession  has  been  obtained  by 
fraud. 

A  bank  check  must  be  presented  for  payment 
within  a  reasonable  time.  Where  a  check  was 
-drawn  in  March,  1800,  and  was  not  presented  until 
October  following1,  and  the  drawer,  after  the  date 
of  the  check,  had  drawn  large  sums  from  the  bank, 
and  payment  was  refused  because  the  drawer  had 
no  money  when  the  check  was  presented,  it  was 
held  that  the  drawer  was  liable,  notwithstanding 
the  delay  in  presenting,  as  it  did  not  appear  that  he 
had  sustained  any  damages  by  the  delay. 

Bank  checks  are  not  within  the  Act  of  Congress 
(Cong.  5,  sess.  1,  ch.  1.  sec.  11, 6th  July,  1797),  laying  a 
-duty  on  stamped  paper. 

Citations— Chitty,  9, 51, 147 ;  3  Burr.,  1516 ;  2  Show., 
247;  1  Bl.  Rep.,  485;  Doug.,  636;  2  Dallas,  146;  ante, 
p.  5 ;  Act  of  Congress,  July  6, 1797. 

THIS  was  an  action  of  assumpsit,  tried  at  the 
New  York  sittings  in  April,  1802. 
The  declaration  contained  two  counts;  the 
first  upon  a  check  drawn  by  the  defendant 
upon  the  Branch  Bank  of  the  United  States, 
in  the  city  of  New  York.  The  second  count 
was  for  money  had  and  received.  The  check 
was  dated  the  28th  March,  1800,  payable  to 
No.  912,  or  bearer,  for  $1,000,  and  was  proved 
to  have  been  signed  by  the  defendant;  but  to 
whom  the  check  was  first  given  did  not  ap- 
pear. The  declaration  alleged  that  it  was 
given  by  the  defendant  to  the  plaintiff.  It 
was  presented  to  the  bank  for  payment,  on 
the  20th  October,  1800,  and  payment  was  re- 
fused. It  appeared  that  the  defendant,  after 
the  date  of  the  check,  had  drawn  large  sums 
of  money  out  of  the  bank,  and  payment  was 

1.— See  Harrison  v.  Close  &  Wilcox,  2  Johns.  Rep., 
44 ;  Bayley  &  Bogert  v.  Ogden,  3  Johns.  Rep.,  399 ; 
Slingerland  v.  Morse,  8  Johns.  Rep.,  474. 


refused  because  the  defendant  had  not  the 
amount  of  the  check  in  bank.  The  check 
was  not  stamped.  The  defendant's  counsel 
moved  for  a  nonsuit,  stating,  as  the  grounds 
of  the  motion,  the  three  following  points: 

1.  The  plaintiff  had  not  showed  that  he  be- 
came possessed  of  the  check  bonafide,  and  for 
a  valuable  consideration,   which,   under  the 
circumstances  of  the  case,  ought  to  have  been 
done. 

2.  That  the  check  was  not  stamped. 

3.  That  the  check  was  not  presented   for 
payment  in  due  time. 

All  these  objections  were  overruled  by  the 
judge,  and  a  verdict  found  for  the  plaintiff 
for  the  amount  of  the  check  and  interest. 

A  motion  was  made  to  set  aside  the  verdict, 
and  for  a  new  trial. 


*Mr.  Evertson  for  the  defendant. 
Mr.  Golden,  contra. 


[*260 


NOTE. — Presentment  of  bank  check  for  payment  to 
be  within  reasonable  time,  effect  of  delay. 

Compare  Cluger  v.  Armstrong,  ante,  5 ;  Robinson 
v.  Ames,  20  Johns.,  146:  Smith  v.  Janes,  20  Wend., 
192;    Wethey   v.  Andrews,  3  Hill,  582;  Aymar  v. 
Beers,  7  Cow.,  705 ;  Brower  v.  Jones,  3  Johns.,  230 ;  | 
Gowan  v.  Jackson,  20  Johns.,  176. 

JOHNSON'S  CASES,  3.        N.  Y.  REP.,  BOOK  1. 


THOMPSON,  J.  As  to  the  first  objection,  it 
is  contended,  that  in  all  cases  where  a  check 
is  made  payable  to  the  bearer,  it  is  incumbent 
on  the  holder  to  prove,  on  the  trial,  that  he 
paid  a  valuable  consideration  for  it.  This  ob- 
jection I  think  not  well  taken;  although,  gen- 
erally speaking,  simple  contract  debts  are  not 
considered  of  equal  solemnity  with  specialties, 
and  not,  perhaps,  so  necessarily  importing  a 
valuable  consideration,  and  as  not  to  be  en- 
forced without  this  proof.  Yet  I  take  it  to  be 
well  settled,  that  with  respect  to  bills  of  ex- 
change and  promissory  notes,  they,  in  this  res- 
pect, stand  on  the  same  footing  with  special- 
ties, and,  prima  facie,  import  a  consideration. 
(Chitty,  9.)  This  principle  seems  necessary, 
for  the  purpose  of  strengthening  and  facili- 
tating that  commercial  intercourse  which  is 
carried  on  through  this  species  of  paper.  The 
reason  of  the  rule  is  equally  applicable, 
whether  the  bill  or  note  be  made  payable  to 
bearer  or  order;  and  I  can  see  no  good  reason 
why  it  should  not  apply  to  bank  checks. 
(Chitty,  51.)  Where,  however,.!!^  instrument 
is  made  payable  to  bearer,  so  that  no  indorse- 
ment is  necessary,  in  making  a  transfer,  and 
there  are  any  circumstances  of  suspicion  at- 
tending the  manner  in  which  the  holder  be- 
came possessed  of  it,  it  is  necessary  he  should 
show  ithat  he  paid  a  valuable  consideration,  or 
that  he  came  fairly  by  it.  As,  if  it  had  ap- 
peared that  the  check  had  been  lost,  it  would 
have  been  such  a  circumstance  of  suspicion 
as  to  impose  on  the  holder  the  necessity  of 
proving  that  he  came  to  the  possession,  bona 
fide;  as  in  the  case  of  Grant  v.  Vaughan  (3 
Burr.,  1516),  cited  by  the  defendant's  counsel. 
No  such  circumstance  of  suspicion  appears  in 
the  present  case.  But  so  far  as  anything  on 
that  subject  is  to  be  collected  from  the  case, 
*the  check  was,  at  first,  given  by  the  [*261 
defendant  to  the  plaintiff.  If  any  inference, 
in  this  respect,  unfavorable  to  the  plaintiff's 
right  to  recover,  is  to  be  drawn  from  his  delay  in 
presenting  the  check  for  payment,  it  was,  at 
least,  a  circumstance  proper  to  be  submitted  to 
the  jury,  and  for  them  to  determine  whether  the 
plaintiff  became  possessed  of  the  check  fairly, 
and  for  a  valuable  consideration.  In  this 
point  of  view  there  is  not  a  sufficient  ground 
for  a  nonsuit. 

44  6S!> 


261 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802" 


As  to  the  second  objection,  I  think  it  not 
necessary,  by  the  act  of  Congress,  that  checks 
should  be  stamped.  The  statute  imposing 
those  duties,  in  describing  the  instruments  re- 
quired to  be  stamped,  says,  "  any  bonds,  bills, 
single  or  penal,  foreign  or  inland  bills  of 
exchange,  promissory  notes,  or  other  notes  for 
the  security  of  money,"  &c.  If  a  check  is  at 
all  included,  it  must  be  under  the  latter  gen- 
eral description,  "  other  notes  for  the  security 
of  money."  Checks  are  a  species  of  paper  so 
common  and  in  such  general  use  and  circula- 
tion, that  it  is  fairly  to  be  presumed  that  if  it 
had  been  the  intention  of  the  Legislature  to 
include  them,  they  would  have  been  described 
by  their  appropriate  and  universal  name.  A 
check  is  not,  in  common  parlance,  and  iu  mer- 
cantile language,  a  note  for  the  security  of 
money.  It  is  a  draft  or  order  for  the  payment 
of  money  ;  and  I  believe  it  has  never  been  con- 
tended that  a  mere  order  or  request  to  pay 
money,  requires  a  stamp.  In  the  English 
Stamp  Act,  checks,  drafts  and  orders,  are  par- 
ticularly mentioned  ;  and  this,  I  think,  affords 
a  strong  presumption  that  they  were  not 
intended  to  be  included  in  the  act  of  Congress. 
So  far  as  usage  and  practice  will  afford  an 
exposition  of  the  construction  of  the  statute, 
it  will,  I  believe,  be  universally  against  the 
opinion  that  checks  require  a  stamp.  I  think 
the  statute  ought  not  to  be  construed  to  extend 
to  instruments  not  coming  clearly  within  it. 
I,  therefore,  consider  this  objection,  also,  insuf- 
ficient. 

262*]  *The  third  objection,  that  the  check 
was  not  presented  in  due  time,  appears  to  me 
not  to  be  without  some  weight.  It  is  not  easy 
to  be  solved  why  the  check,  which  was  dated 
the  28th  of  March,  1800,  was  not  presented  for 
payment  until  the  October  following.  What 
shall  be  considered  a  reasonable  time  within 
which  a  holder  of  a  bill  or  check  shall  present 
it  for  payment,  or  whether  it  is  within  the  prov- 
ince of  the  court  or  jury  to  determine  that 
point,  seems  to  have  been  a  subject  of  much 
discussion  in  England.  (Chitty,  147.)  But 
the  better  opinion  appears  to  be,  that  it  is  a 
question  for  the  determination  of  the  court ; 
and  this  must  be  decided,  in  almost  every 
instance,  by  the  particular  circumstances  of 
the  case.  The  best  general  rule,  undoubtedly, 
is,  that  when  a  note  or  bill,  is  either  payable 
on  demand,  or  where  no  time  of  payment  is 
expressed,  that  it  should  be  presented  as  soon 
as  possible  under  all  the  circumstances.  This 
rule  is  for  the  protection  of  the  rights  of  the 
third  person,  who  may  actually  be  responsi- 
ble ;  and,  in  most,  if  not  all  the  cases  in  the 
books,  where  the  question  as  to  the  delay  or 
laches  of  the  holder  has  been  brought  under 
consideration,  the  suit  was  not  against  the 
party  liable  in  the  first  instance,  but  against 
some  one  through  whose  hands  the  instrument 
has  passed  by  negotiation  in  the  course  of 
business.  In  such  case  it  is  right  and  proper 
that  the  holder  should  show  due  diligence,  as 
the  drawer  might  otherwise  sustain  a  loss  liy 
the  holder's  delay.  It  might,  perhaps,  under 
these  circumstances,  be  incumbent  on  the 
plaintiff  to  show  that  the  defendant  has  sus- 
tained no  damage  by  the  delay.  I  think  the 
circumstance  of  the  defendant's  having  drawn 
from  the  bank  large  sums  of  money  after  the 

MO 


date  of  the  check,  affords  an  inference  to  that 
effect,  sufficient  to  throw  the  onux  probandi  of 
actual  damages  on  the  defendant.  The  de- 
fendant is  here  presumed  to  have  received  a 
full  and  valuable  consideration  for  the  check, 
and  is  in  justice  bound  to  pay  it.  He  has 
withdrawn  his  funds  from  the  bank.  There 
is  no  evidence  or  circumstance*  to  war-  [*263 
rant  an  inference  that  he  has  sustained  any 
damage  by  the  delay.  From  aught  that 
appears  in  the  case,  the  check  was  originally 
given  by  the  defendant  to  the  plaintiff,  and 
has  never  passed  through  any  other  hands, 
and  no  third  person  is  injured  by  the  delay.  I 
am,  therefore,  of  opinion,  that  no  rule  or  prin- 
ciple of  law,  applicable  to  negotiable  paper, 
will  be  violated  in  giving  judgment  for  the 
plaintiff ;  and  that  no  new  trial  ought  to  be 
granted. 

LIVINGSTON,  J.,  and  RADCLIFF,  J.,  were  of 
the  same  opinion. 

KENT,  J.  I  am  of  opinion,  also,  that  the 
motion  ought  to  be  denied.  1.  Hintoris  case 
(2  Show.,  247),  in  which  Ch.  J.  Pemberton 
ruled  that  the  bearer  of  a  bill,  who  sued  in  his 
own  name,  must  prove  a  consideration,  does 
not  state  whether  the  bill  had  been  previously 
lost  or  stolen.  It  is  a  short  and  loose  note  of 
that  decision,  and  as  it  literally  stands,  it  can- 
not be  law. 

.  But  in  the  case  of  Grant  v.  Vouglian  (3  Burr. , 
1516;  1  Black.  Rep.,  485),  the  bill  had  been 
lost,  and,  therefore,  when  the  court  lay  down 
the  rule  generally,  that  if  the  bearer  sue  he 
must  entitle  himself  to  recover  on  a  valid  con- 
sideration, we  must  consider  the  rule  as  apply- 
ing to  the  subject  matter  then  before  the 
court,  which  was  the  case  of  a  lost  bill.  The 
law  is  now  understood  to  be,  that  a  bearer  of 
a  bill  or  note  payable  to  bearer,  need  not  prove 
a  consideration,  unless  he  possesses  it  under 
suspicious  circumstances.  (Chitty,  51.)  A 
note  indorsed  in  blank,  and  one  payable  to- 
bearer  are  of  the  same  nature.  They  both  go 
by  delivery,  and  possession  proves  property  in 
both  cases.  If  a  question  of  mala  fde  posaesido 
arises,  that  is  a  matter  of  fact  to  be  raised  by 
the  defendant  and  submitted  to  the  jury. 
This  doctrine  is  so  laid  down  by  Lord  Mans- 
field, in  the  case  of  Peacock  v.  Rhodes  (Doug., 
636),  and  it  has  been  cited  and  sanctioned 
since.  *(2  Dallas,  146.)  In  a  case  in  [*264 
this  court,  Livingston  v.  Clinton  (decided  in 
July  Term,  1799),  the  law  was  laid  down  to 
the  same  effect,  that  if  a  note  be  indorsed  in 
blank,  the  court  never  inquires  into  the  right 
of  the  plaintiff,  whether  he  sues  in  his  own 
right  or  as  trustee.  Any  person  in  possession 
of  the  note  may  sue,  and  may,  in  court,  if 
necessary,  fill  up  the  blank  and  make  it  pay- 
able to  himself.  A  decision  to  the  like  effect 
was,  in  March,  1800,  affirmed  in  the  Court  of 
Errors,  in  the  case  of  Cooper  v.  Kerr.  In  the 
case  before  us,  there  were  no  circumstances 
sufficient  to  raise  a  suspicion  of  a  fraudulent 
possession  by  the  plaintiff,  or  to  repel  the  pre- 
sumption of  property  arising  from  possession. 

2.  In  the  case  of  Cniger  v.  Armstrong  & 
Bamwatt  (ante,  p.  5),  I  considered  it  as  a  set- 
tled rule,  that  a  check  must  be  presented  for 
payment  in  a  reasonable  time,  otherwise,  the 
JOHNSON'S  CASES,  3_ 


THE  PEOPLE  v.  GUERNSEY. 


264 


holder  takes  upon  himself  the  risk  of  the 
banker's  responsibility ;  and  that  drawing  a 
check  was  an  appropriation  of  as  much  money 
as  it  amounted  to,  in  the  hands  of  ihe  bank. 
In  the  present  case,  the  bank  did  not  fail,  but 
it  was  the  act  of  the  defendant  himself  which 
defeated  the  payment  of  the  check  by  drawing 
out  the  money  which,  in  good  faith,  was  to  be 
considered  as  appropriated  for  the  payment  of 
the  check.  There  is,  therefore,  no  reason  or 
justice  in  the  present  case,  that  the  defendant 
should  not  pay,  because  it  was  not  presented 
at  the  bank  between  March  and  October.  And 
although  checks  are  now  considered  as  sub- 
stantially the  same  as  inland  bills,  I  know  of 
no  case  which  goes  the  length  of  exonerating 
the  drawer,  where  the  responsibility  of  the 
bank  has  remained  good,  and  where  he  was 
himself  the  cause  of  the  nonpayment,  by  with- 
drawing the  money.  And  to  allow  the  de- 
fendant to  avail  himself  of  the  nonpayment  at 
the  bank,  would  be  to  permit  him  to  avail 
himself  of  his  own  fraud. 

3.  I  do  not  consider  the  check  as  coming 
within  the  act  of  Congress  laying  a  duty  on 
stamped  paper.  The  act  specifies  only  bonds, 
foreign  or  inland  bills  of  exchange,  promis- 
2O5*]  sory  *notes,  or  other  notes  for  the 
security  of  money.  The  act  is  to  be  taken 
strictly,  and  none  of  these  expressions  will 
reach  the  case  of  checks,  as  they  do  not, 
strictly  and  technically,  answer  either  of  those 
descriptions ;  and  it  is  a  rule  of  construction 
that  when  a  statute,  and  more  especially  a 
statute  with  penalties  for  neglect,  specifies 
particulars,  all  other  particulars  not  enumer- 
ated are  excluded.  The  contemporary  and 
uniform  exposition  of  this  act  has  been  that  it 
is  not  applicable  to  checks ;  and  they  are  too 
frequent  and  notorious  a  species  of  paper  to 
have  been  omitted  by  mistake.  I  am  satisfied, 
therefore,  upon  all  the  points,  that  the  defend- 
ant must  take  nothing  by  his  motion. 

LEWIS,  Oh.  J.,  was  of  the  same  opinion. 
Judgment  for  the  plaintiff. 

Distinguished— 24  Hun,  289. 

Cited  in— 10  Johns.,  232;  6  Cow.,  455,491;  7  Cow., 
176 ;  5  Wend.,  602 ;  6  Wend.,  622 ;  12  Wend.,  407 ;  13 
Wend.,  553;  14  Wend.,  587;  21  Wend.,  374;  2  Hill, 
428 ;  7  Hill,  384 ;  16  Abb.,  147  ;  17  Id.,  10 ;  1  Duer,  323 ; 
4  Duer,  129;  2  Hall,  463,  557  ;  1  Sheld.,  396;  36  Super., 
514 ;  38  Super.,  195 ;  17  Wall.,  504 ;  2  McLean,  228 ;  2 
Story,  513;  2  Story,  516,  517,  520. 


THE  PEOPLE  v.  GUERNSEY. 

Indictment — Omisxion    in   Conviction — Removal 
— Judgment  Arrested. 

Where  an  indictment  was  found  at  the  general 
sessions  of  the  peace,  of  the  county  in  which  the 
defendant  was  convicted  at  the  oyer  and  terminer, 
and  the  indictment  was  removed  into  this  court, 
with  a  caption  stating  that  the  grand  jury  were 
sworn  and  charged,  omitting  the  words  "  then  and 
there,"  on  motion  in  arrest  of  judgment,  the  omis- 
sion of  those  words  was  held  fatal,  and  the  judg- 
ment arrested. 

Citations— 1  Mod.,  26;  2  Keb.,  583;  1  Vent.,  60;  12 
Mod.,  88,  502 ;  2  Stra.,  901 ;  2  Hawk.,  308,  sec.  17 ;  1 
Johns.  Gas..  179;  Bracton,  fol.  122,  b,  ch.  8,  sec.  4;  1 
Bl.  Com.,  117 ;  Hale,  Vol.  II.,  p.  165. 

THE  defendant  was  convicted,  at  the  oyer 
and  terminer  in  Chenango,  of  extortion, 
JOHNSON'S  CASES,  3. 


upon  an  indictment  found  at  the  general  ses- 
sions of  the  peace ;  and  the  same  being  re- 
moved into  this  court,  with  a  caption  thereto, 
a  motion  was  made,  on  the  part  of  the  de- 
fendant, in  arrest  of  judgment,  because  the 
caption  of  the  indictment  states  that  the  grand 
jury  were  sworn  and  charged,  without  saying 
"then  and  there,"  and  thereby  omitting  the 
venue  in  respect  to  the  jury. 

Mr.  Spencer,  Attorney-General,  for  the  peo- 
ple. 
Mr.  Hoffman  for  the  defendant. 

KENT,  J.,  delivered  the  opinion  of  the 
court  : 

This  *being  an  objection  to  form  £*26O 
merely,  the  strength  of  it  must  rest  altogether 
on  positive  authority. 

In  the  case  of  The  King  v.  Turrfeth  (1  Mod., 
26 ;  2  Keb.,  583  ;  1  Vent.,  60),  which  was  on 
an  indictment  found  at  the  quarter  sessions, 
the  words  "then  and  there  charged  and 
sworn,"  were  omitted,  and  the  whole  Court  of 
K.  B.  held  the  the  omission  fatal,  and  quashed 
the  indictment.  The  clerk  of  the  crown  office 
informed  the  court  that  that  was  always  the 
course,  and  that  the  above  words  were  neces- 
sary where  the  caption  is  recited  to  be  taken. 

This  case,  which  appears  in  three  different 
reporters,  is  pretty  decisive,  to  show  the  prac- 
tice at  that  day,  and  that  if  a  caption  be  set 
forth,  it  must  have  those  words  as  a  requisite 
part. 

There  are  two  anonymous  cases  in  12  Mod., 
(p.  88,  502),  in  one  of  which  the  want  of  the 
words  "then  and  there  charged,"  was  held 
fatal,  and  in  the  other  it  is  said  that  no  heed 
was  taken  to  the  exception.  These  cases, 
therefore,  leave  the  question  where  they  found 
it,  without  being  of  any  influence  either  way ; 
for  the  one  case  is  equal  in  authority  to  the 
other.  Neither  case  states  whether  the  in- 
dictment was  found  at  the  quarter  sessions,  or 
in  the  K.  B.  or  oyer  and  terminer,  which  is  a 
material  part  of  the  inquiry  ;  and,  lastly,  12 
Mod.  is  not  a  book  of  authority. 

In  the  case  of  Tlie  King  v.  Morris  (2  Stra., 
901),  after  conviction  on  an  indictment,  the 
judgment  was  arrested  because  the  words  ad 
tune  et  ibidem  were  left  out  as  to  the  swearing 
of  the  jury,  and  the  case  of  Tfie  King  v. 
Turneth  was  referred  to. 

This  authority,  at  the  distance  of  above 
fifty  years  from  the  other,  establishes  the  law 
with  great  force  and  effect. 

That  case,  like  the  present,  was  a  motion  in 
arrest  of  judgment,  after  conviction ;  and 
although  it  does  not  state  in  what  court  the 
indictment  was  found,  the  inference  from 
*that  omission  cannot  be  injurious  to  [*2(>7 
the  authority  of  the  decision,  as  applied  to  the 
present  case. 

A  distinction  is  noticed  in  the  books  be- 
tween indictments  in  inferior  courts  and  indict- 
ments in  the  K.  B.  or  grand  sessions  for  coun- 
ties palatine.  (2  Hawk.,  308,  sec.  17.)  In  the 
former,  many  words  in  the  caption  are  held 
fatal  which  are  not  so  in  the  latter  courts ;  and 
it  was  said  by  the  counsel  for  the  people  that 
the  sesssions  for  counties  palatine  were  analo- 
gous in  rank  to  the  general  sessions  of  the 
peace  with  us.  But  I  apprehend  this  is  a  mis- 

691 


367 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1802 


take.  In  the  case  of  The  People  v.  The  Gen- 
eral Sessions  of  the  County  of  Chenango  (1  Johns. 
Cases,  179),  on  the  question  respecting  the 
power  of  that  court  to  grant  new  trials,  this 
court  decided  that  the  general  sessions  of 
the  peace  in  the  several  counties,  had  uni- 
formly been  regarded  by  law  and  in  practice  as 
inferior  courts ;  and  that  they  were  to  be  con- 
sidered, within  the  reason  and  meaning  of  the 
law,  as  inferior  courts. 

On  the  other  hand,  the  courts  of  counties 
palatine  have  always  been  regarded,  in  the 
English  law,  among  the  superior  courts.  They 
were  originally  clothed  with  jura  regalia. 
They  had,  in  the  age  of  Bracton  (fol,  122  b, 
ch.  8,  sec.  4;  1  Bl.  Com.,  117),  as  he  expresses 
it,  regalem  potestatem  in  omnibus,  and  they  are, 
at  this  day,  privileged  as  to  pleas,  so  that  no 
692 


inhabitant  is  compelled  to  appear  and  answer 
out  of  the  same,  except  for  error  and  in  cases 
of  treason,  &c. 

To  all  these  authorities  I  know  of  nothing 
to  be  opposed,  unless  it  be  the  form  of  the 
caption  of  an  indictment  from  the  sessions,  as 
given  in  Hale  (vol.  2,  p.  165),  in  which  the 
words  "then  and  there"  are  omitted.  Prece- 
dents are,  no  doubt,  in  many  cases,  of  good 
authority,  but  a  single  precedent,  in  opposi- 
tion to  such  adjudged  cases,  cannot  avail.  We 
are  of  opinion,  therefore,  that  the  judgment 
must  be  arrested. 

Judgment  arrested. 

Cited  in— 19  N.  Y.,  579 ;  37  N.  Y.,  122 ;  19  Hun,  603 ; 
44  How.,  245 ;  4  Abb.,  N.  8.,  94 ;  13  Abb.,  N.  S.,  438 ;  4 
Trans.  App.,  37 ;  3  Park,  632. 

JOHNSON'S  CASES,  3. 


[END  OP  OCTOBER  TERM.] 


CASES   ADJUDGED 


IN  THE 


SUPREME  COURT  OF  JUDICATURE 


TERM,    1SO3. 


269*J  *STEINBACK  t>.  RHINELANDER 

ET   AL. 

SAME  v.  CHURCH. 

Marine  Insurance —  Without  Authority — Mis- 
take of  Fact — No  Interest — Action  for  Return 
of  Premium  —  Witness  —  Competency  —  No 
Risk. 

A  was  at  Trinidad,  in  Cuba,  where  he  received 
vessels  and  cargoes  consigned  to  him  by  B  and  C,  of 
New  York,  and  in  which  A,  B  and  C  were  jointly 
interested.  In  April,  1800,  A  purchased  a  prize  ves- 
sel, and  sent  her  with  a  small  cargo,  on  the  29th  May, 
to  the  Havana.  On  the  return  of  a  vessel  from 
Trinidad  to  New  York,  which  had  been  sent  out  by 
B  and  C  to  A,  B  was  informed  by  the  master  that  A 
had  purchased  a  prize  vessel  called  the  Chance,  and 
that  she  was  to  come  to  New  York  with  a  cargo ; 
and  B,  without  receiving  any  information  from  A 
himself,  or  any  order  for  the  purpose,  on  the  16th 
June,  caused  the  vessel  and  cargo  to  be  insured  at 
and  from  Trinidad  to  New  York,  and  paid  the  prem- 
ium. The  broker,  at  the  time  he  effected  the  policy, 
told  the  insurer  that  the  plaintiff  did  not  know 
whether  the  vessel  and  cargo  had  been  purchased 
for  A  or  B  or  C,  and  that  he  had  no  orders  to  have 
them  insured ;  but  that  A  had  the  funds  of  B  and 
C,  and  they  had  just  heard  the  vessel  was  coming  to 
New  York.  The  policy  was  effected  for  account  of 
A  or  C  or  B  and  C,  or  any  other  person,  &c.,  in  the 
usual  form. 

The  vessel  not  having  come  to  New  York,  B  after- 
wards brought  an  action  against  the  insurers  to 
recover  back  the  premium,  and,  at  the  trial,  A,  who 
had  been  previously  released  by  B,  was  admitted  as 
a  witness,  and  testified  that  the  vessel  and  cargo 
were  his  sole  property,  and  were  purchased  on  his 
own  account,  and  that  neither  B  nor  C,  nor  any 
other  person,  had  any  interest  in  them  ;  and  that  he 
sent  her  to  the  Havana,  and  though  he  wrote  to  B 
and  C  in  May,  he  never  informed  them  of  the  pur- 
chase, or  ever  gave  any  orders  to  them,  or  to  any 
other  person,  to  have  the  vessel  insured  in  New 
York. 

It  was  held  that  A,  under  the  circumstances,  was 
a  competent  witness ;  that  B  was  not  his  agent ;  and 
that  the  supposed  interest  of  B  being  a  mistake,  no 
risk  was  run,  and  that  the  plaintiff  was,  therefore, 
entitled  to  a  return  of  premium. 


NOTE. — Marine  Insurance,  return  of  premium. 

See  Holmes  v.  United  Ins.  Co.,  2  Johns.  Cos.,  329; 
Juhel  v.  Church,  2  Johns.  Cas.,  333;  Delavignev. 
United  Ins.  Co.,  1  Johns.  Cas.,  310,  and  notes. 

JOHNSON'S  CASES,  3. 


Citations— Cowp.,  666;  Doug.,  566;  Marshall,  549; 
8  Term  R.,  154;  1  Atk.,  545,  548;  2  Atk.,  359;  Mar- 
shall, 193. 

THE  first  action  was  for  a  return  of  premium 
on  a  policy,  dated  6th  June,  1800,  on  the 
body  of  the  schooner  *Chance,  at  and  [*27O 
from  Trinidad,  in  the  island  of  Cuba,  to  New 
York,  purporting  to  be  made  by  the  plaintiff , for 
account  of  himself,  or  Peter  Malibran,  or  John 
Murray  &  Son  and  the  plaintiff,  or  whoever 
else,  &c.  The  vessel  was  valued  in  the  policy 
at  $7,000,  and  the  premium  was  twenty  per 
cent. 

It  was  proved  at  the  trial,  by  the  broker  who 
effected  the  policy,  that  the  plaintiff  informed 
him  that  Captain  Brown,  of  the  ship  Albe- 
marle,  who  had  just  arrived  from  Trinidad, 
had  informed  him  that  Malibran  had  pur- 
chased at  Trinidad  the  shooner  Chance,  a  prize 
vessel,  and  had  sent  to  the  Havana  fora  crew, 
and  that  she  Was  coming  to  New  York ;  but 
that  he  did  not  know  whether  she  had  been 
purchased  for  Malibran  or  for  the  plaintiff,  or 
for  Murray  &  Son  and  the  plaintiffs,  they  hav- 
ing funds  there  in  his  hands ;  that  the  plaint- 
iff informed  him  he  had  no  orders  for  insur- 
ance from  Malibran :  and  these  facts  the 
broker  communicated  to  the  underwriters. 

It  was  further  proved  by  John  Murray  that 
the  plaintiff  mentioned  to  him  the  information 
he  had  received  from  Captain  Brown, .  and 
that  he  proposed  to  insure,  and  that  the 
schooner  was  intended  to  be  sent  from  Trini- 
dad to  New  York.  It  was  also  proved  by 
a  clerk  of  the  plaintiff  that  the  plaintiff 
had  not  (as  he  had  heard)  any  orders  from 
Malibran  for  insurance,  and  that  Malibran  had 
wrote  several  letters  to  the  plaintiff,  in  April 
and  May,  1800,  and  none  of  them  contained 
any  advice  to  that  effect. 

The  deposition  of  Malibran,  which  had  been 
taken  de  bene  esse,  by  consent,  saving  all  just 
exceptions,  was  produced  and  read  in  evidence, 
he  having,  previous  to  his  examination,  been 
released  by  the  plaintiff  of  all  claims  for  the 

693 


270 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


premium,  and  the  release  accepted,  and  his 
general  character  proved  to  be  good.  Mali- 
bran  stated  that  in  April,  1800,  he  purchased,  at 
Trinidad,  the  schooner  Chance  ;  that  about  the 
271*]  time  of  the  purchase,  Captain  *Brown, 
master  of  the  ship  Albemarle,  was  there  under 
charter  to  the  plaintiff,  and  consigned  by  him  to 
Malibran ;  that  Malibran  advised  with  Captain 
Brown  about  employing  the  schooner,  and 
suggested  sending  her  with  a  cargo  to  New 
York,  but  never  positively  determined  so  to 
do ;  that  Captain  Brown  sailed  for  New  York 
before  Malibran  had  made  up  his  mind  as  to 
the  destination  of  the  vessel,  and  without 
expressing  any  order  or  desire  that  Brown 
should  get  the  vessel  insured ;  that  soon  after 
Brown  sailed,  Malibran  determined  to  send  the 
schooner  with  a  small  cargo  to  the  Havana, 
and  wrote  to  his  correspondent  at  the  Havana, 
on  the  31st  May,  1800,  stating  "that  although 
by  the  indorsed  bill  of  lading,  the  schooner 
Chance  appeared  to  be  bound  for  New  York 
(which  was  done  for  fear  of  cruisers),  his  orders 
were  to  the  captain  to  go  to  the  Havana,  and 
wait  for  further  instructions ;  that  his  corres- 
pondent at  Havana  must  get  the  vessel  and 
cargo  insured,  for  $6,000 ;  that  the  vessel  had 
sailed  on  the  29th  May,  and  that  should  the 
vessel  arrive  before  him  at  the  Havana,  and 
any  good  offer  appear,  the  correspondent  was 
to  sell  both  vessel  and  cargo."  Malibran 
further  stated  that  the  letter  was  sent  by 
express,  by  land,  and  did  not  arrive  until 
the  day  or  day  after  the  arrival  of  the 
vessel,  so  that  the  insurance  from  Trinidad 
to  the  Havana  was  saved ;  that  the  vessel 
and  cargo  were  solely  his  property,  and  the 
vessel  had  no  other  cargo  on  board  than,  that 
mentioned  in  the  invoice  and  bill  of  lading, 
consisting  of  sugars,  hides,  braziletto  and 
fustic,  amounting  to  $1,773;  and  both  the 
invoice  and  bill  of  lading  stated  the  voyage  to 
be  to  New  York,  and  that  the  cargo  was  con- 
signed to  the  plaintiff,  and  belonged  to  Mali- 
bran  ;  that  the  invoice  and  bill  of  lading  were 
on  board  on  the  voyage,  and  the  letter  was 
signed  by  the  captain  and  was  dated  27th 
May ;  that  he  never  determined  to  send  the 
vessel  to  New  York,  nor  was  any  part  of  the 
272*]  *cargo  put  on  board  with  that  view  ; 
that  the  bills  of  lading,  &c.,  were  made  out 
for  New  York,  merely  to  prevent  capture,  to 
which  the  vessel  would  have  been  liable  in 

foing  from  one  Spanish  port  to  another  ;  that 
[alibran  never  wrote  or  ordered  the  plaintiff 
to  effect  the  insurance  on  the  vessel  or  cargo, 
and  that  although  he  wrote  to  the  plaintiff  by 
Captain  Brown,  he  never  mentioned  the  pur- 
chase of  the  vessel,  or  that  he  intended  to  send 
her  or  any  vessel  to  the  United  States ;  that 
Brown  was  dead,  and  he,  Malibran,  was  unin- 
terested in  this  suit,  and  that  he  never  wrote 
or  ordered  any  person  to  insure  the  said  vessel 
or  cargo,  from  Trinidad  to  New  York. 

An  affidavit  of  the  captain  made  at  the 
Havana,  on  the  4th  August,  1800,  stated  that 
no  property  was  shipped  on  board  the  schooner, 
at  Trinidad,  except  what  was  specified  in  the 
bill  of  lading,  &c. 

Malibran,  on  his  cross-examination,  further 
stated  that  he  purchased  the  vessel  on  the  2d 
April,  1800,  and  that  she  cost,  with  repairs, 
$2,110 ;  and  that  he  had  it  in  contemplation  to 
694 


send  her  to  New  York  ;  that  he  wrote  to  his 
correspondent  to  obtain  American  papers  at  the 
Havana  for  the  vessel,  and  also  sent  there  for 
the  captain  ;  that  Captain  Brown  sailed  from 
Trinidad  the  last  of  April  or  first  of  May,  and 
that  he  wrote  by  him  to  Murray  &  Son,  and  to 
the  plaintiff,  and  also  to  the  same  persons  in 
May,  by  other  opportunities  ;  that  the  name  of 
the  plaintiff  was  inserted  in  the  invoice  and 
bill  of  lading,  because  he  was  his  friend  and 
correspondent ;  that  he,  Malibran,  was  at  Trin- 
idad to  receive  such  cargoes  as  should  be  sent 
by  Murray  &  Son  and  the  plaintiff,  who  were 
jointly  interested  in  such  cargoes,  and  he,  Mali- 
bran,  was  also  interested  in  them  ;  but  that 
Murray  &  Son  and  the  plaintiff  had  no  interest 
in  the  schooner  or  her  cargo.  The  jury  found 
a  verdict  for  the  plaintiff  for  $426.20,  being 
the  whole  amount  of  the  premium. 

*The  second  action  was  for  the  [*273 
return  of  the  premium  on  the  insurance  of  the 
cargo,  and  the  same  evidence  was  given  as  in 
the  first  cause  ;  it  was  further  proved  that  Cap- 
tain Brown  was  a  person  in  the  confidence  of 
the  plaintiff ;  that  in  the  plaintiff's  books  Mali- 
bran  was  charged  with  the  premium  of  insur- 
ance, and  with  subsequent  advances  to  counsel 
for  advice  respecting  the  vessel. 

The  plaintiff  also  offered  in  evidence  a  case 
made  by  him  with  the  opinion  of  counsel, 
notice  to  produce  which  at  the  trial  had  been 
previously  given  to  him  by  the  defendants ; 
but  the  defendants'  counsel  declined  reading 
the  paper  on  their  part,  and  it  was  then  read 
by  the  counsel  for  the  plaintiff. 

A  verdict  was  also  found  for  the  plaintiff, 
for  the  amount  of  the  premium. 

A  motion  was  made  to  set  aside  the  verdict, 
and  for  a  new  trial,  on  two  grounds  : 

1.  Because  Malibran  was  an  incompetent 
witness,  and  his  testimony  ought  to  have  been 
rejected. 

2.  Because,  admitting  the  evidence,  the  facts 
in  the  case  did  not  entitle  the  plaintiff  to  a 
return  of  the  premium. 

Messrs.  Pendleton,  Hamilton,  and  Harison,  for 
the  defendants. 
Messrs.  Golden  and  Hoffman,  contra. 

THOMPSON,  J.  The  objections  stated  to 
Malibran's  competency  are  on  the  ground  of 
interest,  and  because  his  name  appears  in  the 
policy,  which  purports  to  be  made  by  the 
plaintiff  for  account  of  himself,  or  Peter  Mali- 
bran,  or  John  Murray  &  Son  and  the  plaintiff. 
I  think,  under  the  circumstances  stated  in  the 
case,  Malibran  was  a  competent  witness.  It 
has  been  settled  in  this  court,  that  it  must  be 
an  interest  in  the  event  only,  that  will  totally 
exclude  a  witness.  Whatever  objection  might 
have  been  raised  on  the  score  of  interest, 
appears  to  me  to  have  been  removed  by  the 
release  from  the  plaintiff  to  the  witness,  as  far, 
at  any  rate,  as  respected  *this  suit.  It  [*274 
is  said,  also,  that  as  the  interest,  in  the  vessel 
turns  out  to  be  Malibran's,  he  must  be  con- 
sidered as  the  principal  and  the  plaintiff  as  his 
agent,  and  that  the  principal  ought  not  to  be 
permitted  to  disaffirm  the  acts  of  his  agent. 
Admitting  this  principle  to  be  a  sound  one,  it 
cannot  be  applied  here,  without  assuming  a 
fact  which  does  not  appear  in  the  case,  to  wit, 
JOHNSON'S  CASES,  3. 


1803 


STEINBACK  v.  RHINELANDER  ET  AL. 


274 


that  the  plaintiff  was  the  agent  of  Malibran. 
No  evidence  whatever  appears,  that  will  afford 
any  ground  to  conclude  that  the  plaintiff  was 
either  the  general  agent  of  Malibran,  or  that 
he  was  in  any  way  authorized  or  requested  to 
effect  this  insurance.  On  the  contrary,  the 
fact  is  negatived,  as  far  as  it  could  possibly 
be,  by  proof.  Nor  can  I  see  any  principle  of 
general  policy,  which  can  be  urged  to  exclude 
this  witness.  Because  his  name  appears  in  the 
policy,  is  not,  of  itself,  in  my  judgment,  a  suf- 
ficient objection,  when,  at  the  same  time,  it 
appears,  that  it  was  altogether  unauthorized, 
.and  without  his  knowledge,  and,  as  I  consider 
it,  by  mistake,  or  rather  through  want  of  cor- 
rect information,  as  to  the  situation  of  this 
vessel  in  point  of  interest.  All  these  circum- 
stances with  respect  to  Malibran's  situation 
were  proper  to  urge  against  the  credibility  of 
the  witness  ;  but  they  have  been  decided  upon 
by  the  jury,  whose  province  it  was  to  give 
them  their  just  weight. 

With  respect  to  the  second  objection,  this, 
like  many  other  cases,  is  one  where  the  gen- 
eral rules  of  law  seem  not  so  much  controverted 
.as  their  applicability  to  the  case.  The  pre- 
mium paid  by  the  insured,  and  the  risk  which 
the  insurer  takes  upon  himself,  are  considera- 
tions each  for  the  other.  The  insurer  shall 
not  be  exposed  to  the  risk,  without  receiving 
the  premium  ;  nor  shall  he  retain  the  premium, 
which  was  the  price  of  the  risk,  if  in  fact  he 
runs  no  risk.  The  rule  laid  down  by  Lord 
Mansfield,  in  the  case  of  Tyrie  v.  Fletcher 
<Cowp.,  666;  Doug.,  566),  is,  that  where  the 
risk  has  not  commenced,  whether  this  be 
•owing  to  the  fault,  pleasure,  or  will,  of  the 
275*]  insured,  *the  premium  must  be  re- 
turned ;  and  the  reason  assigned  is,  that  a 
policy  of  insurance  is  a  contract  of  indemnity, 
;and  if  no  risk  is  run,  the  consideration  for  the 
premium  fails.  But  if  the  risk  has  once  com- 
menced, there  shall  be  no  return  of  premium  ; 
.and  Marshall  (549)  lays  it  down  as  a  general 
rule,  that  if,  through  mistake,  misinformation, 
•or  any  other  innocent  cause,  an  insurance  be 
made  without  any  interest  whatever  in  the 
thing  insured,  there  shall  be  a  return  of  pre- 
mium ;  and,  to  illustrate  the  rule,  this  case  is 
put,  that  if  a  man,  supposing  he  has  goods  on 
board  a  certain  ship  to  the  value  of  $1,000, 
insures  to  that  amount,  but  afterwards  finds 
either  that  he  has  no  goods  at  all  on  board,  or 
has  goods  only  to  the  amount  of  half  the 
insurance  ;  in  the  one  case  he  shall  be  entitled 
to  a  return  of  the  whole  premium,  in  the  other, 
to  a  return  of  a  moiety.  Testing  the  present 
case  by  those  rules,  I  think  the  plaintiff  is 
entitled  to  a  return  of  premium.  Although 
many  circumstances  appear  somewhat  obscure, 
and  might  afford  grounds  of  suspicion  of 
unfairness  in  the  transaction,  unaccompanied 
with  the  explanation  given  them  by  Malibran, 
yet,  he  being  considered  a  competent  witness, 
.•and  his  credibility  a  point  for  the  determina- 
tion of  the  jury,  whose  verdict  decides  that 
full  credit  was  due  to  him,  we  must  resort  to 
his  testimony  for  a  true  solution  of  the  case 
.und  which,  I  think,  must  remove  all  doubts  on 
the  question. 

He  states,  in  the  most  direct  and  explicit 
terms,  that  the  plaintiff  was  not  his  agent ;  that 
he  never  authorized  or  requested  him  to  get 
JOHNSON'S  OASES,  3. 


the  vessel  or  cargo  insured  ;  that  the  plaintiff 
had  no  interest  in  either;  but  that  the  pur- 
chase was  made  on  his  own  account,  and  that 
he  never  did  send,  or  determine  to  send,  her 
on  a  voyage  to  New  York.  No  parol  testi- 
mony appears  to  contradict  those  facts,  nor  is 
there  any  circumstances  to  render  them  improb- 
able, except  the  bill  of  lading  and  invoice  of 
the  cargo,  by  which  it  would  appear  that  she 
was  intended  for  New  York.  Those  papers, 
however,  Malibran  swears,  were  merely 
*colorable,  and  were  only  for  the  [*276 
purpose  of  deceiving  privateers ;  and  that  the 
name  of  the  plaintiff  was  inserted,  as  con- 
signee, because  he  was  his  friend.  This 
practice  of  procuring  colorable  papers,  whether 
!  censurable  or  otherwise,  is  known  to  be  fre- 
quent ;  and  I  do  not  know  that  it  ever  has 
been  decided  that  the  insured  was  to  be  con- 
cluded or  prejudiced  thereby.  There  is  no 
evidence  whatever  that  the  plaintiff  was  in 
any  manner  interested  in  this  vessel.  Malibran 
was  his  agent,  and  consignee  of  the  cargo  of 
the  ship  Albemarle,  belonging  to  the  plaintiff, 
and,  of  course,  had  funds  of  his  in  his  hands ; 
but  this,  by  no  means,  shows  a  general  part- 
nership, or  that  the  plaintiff  was  concerned  in 
all  the  speculations  of  Malibran.  The  relation 
given  by  Captain  Brown,  likewise,  strongly 
corroborated  the  testimony  of  Malibran,  with 
respect  to  the  plaintiff's  having  no  interest  in 
the  vessel  or  cargo,  and,  by  no  means  contra- 
dicts it  as  to  their  destination.  Captain  Brown 
sailed  shortly  after  Malibran  had  made  the 
purchase  of  this  schooner,  and  before  he  had 
finally  determined  where  lie  should  send  her. 
If  Malibran  had  considered  the  plaintiff  in 
any  manner  concerned  in  this  transaction,  or 
had  wished  an  insurance  for  New  York,  it  is 
inconceivable  why  some  intimation  of  it  was 
not  given,  either  to  Captain  Brown,  or  in  the 
letters  written  to  the  plaintiff,  or  to  Murray. 
Another  circumstance  in  corroborration  of 
Malibran's  testimony,  that  the  papers  were 
merely  colorable,  is  his  letter  to  his  agent  at 
the  Havana,  by  which  it  appears  that  he  made 
a bona  fide  attempt  to  get  insurance  from  Trini- 
dad to  the  Havana ;  and  his  failing  to  do  so 
was  merely  accidental,  •  owing  to  the  heavy 
rains  which  detained  the  express  who  carried 
his  orders  for  insurance.  It  seems  a  little  ex- 
traordinary that  the  plaintiff  should  obtain 
this  insurance  without  having  some  intimation 
from  Malibran  of  his  interest,  or  a  request  to 
insure.  These,  however,  are  only  circum- 
stances that  would  go  to  the  credit  of  Mali- 
bran,  as  he  expressly  denies  the  facts.  But  I 
think  the  transaction  *susceptible  of  [*277 
an  explanation  that  will  acquit  the  plaintiff  of 
suspicion  of  unfairness.  Malibran  was  the 
consignee  of  the  cargo  of  the  ship  Albemarle 
(belonging  to  the  plaintiff),  and  having  the 
proceeds  in  his  hands,  the  plaintiff  did  not 
know  but  they  might  be  appropriated  to  the 
purchase  of  this  schooner  and  cargo ;  and, 
although  no  information  to  that  effect  had 
been  received,  yet  he  thought  it  most  prudent 
to  obtain  insurance,  relying,  probably,  on  his 
right  to  demand  the  premiums  again,  if  he  had 
acted  in  good  faith,  and  had  been  mistaken  with 
respect  to  the  voyage,  or  his  interest  in  the 
vessel.  This  also  accounts  for  the  entries  in 
the  plaintiff's  books,  as  to  the  charge  of  the 

695 


277 


SUPREME  COUKT,  STATE  OP  NEW  YORK. 


1803'. 


premiums,  they  being  made  at  the  time  the 
policy  was  effected,  and  while  the  plaintiff  was 
ignorant  of  the  true  situation  of  the  business. 
It  was  said,  on  the  argument,  that  this  being 
an  insurance  at  and  from  Trinidad  to  New 
York,  the  policy  attached  immediately,  and  it 
is  immaterial  on  what  voyage  she  afterwards 
sailed ;  the  risk  commenced  while  she  lay  in 
port.  Admitting  the  full  extent  of  this  posi- 
tion as  a  general  rule,  still  it  cannot  be  applied 
here,  for  the  policy  could  not  attach,  or  the 
insured  recover,  in  case  of  a  loss,  unless  he 
had  an  interest  in  the  subject  of  insurance. 
If,  therefore,  the  whole  of  this  vessel  was  the 
property  of  Malibran,  the  underwriters  never 
could  have  been  made  liable  to  the  the  plaint- 
iff, in  case  of  a  loss,  he  not  having  any  interest 
in  the  subject  insured.  v 

On  the  whole,  I  am  of  opinion  that  the 
plaintiff  had  no  interest  whatever  in  this 
schooner ;  that  the  policy  was  effected  through 
mistake,  for  want  of  correct  information  on 
the  subject,  the  insured  supposing  at  the  time 
he  might  have  an  interest,  when  in  fact  he  had 
none  ;  so  that  there  could  be  no  insurance  on 
account  of  the  plaintiff  himself ;  that  he  was 
totally  unauthorized  by  Malibran  to  get  insur- 
ance on  his  account ;  that  the  vessel  never  did 
sail  on  the  voyage  described  in  the  policy,  and 
that  no  risk  has  been  run  by  the  underwriters. 
278*]  The  premium,  *therefore,  was  paid 
without  consideration,  and  through  mistake, 
and  ought,  in  my  opinion,  to  be  returned. 

I  am,  therefore,  against  granting  a  new 
trial ;  and,  for  the  same  reasons,  I  think  the 
verdict  ought  to  stand  in  the  suit,  also,  on  the 
policy  on  the  cargo. 

RADCLIFF,  J.,  and  LEWIS,  Ch.  J.,  con- 
curred. 

LIVINGSTON,  J.,  having  been  concerned  as 
counsel  in  the  cause,  gave  no  opinion. 

KENT,  J.  The  two  cases  contain  some 
material  points  of  difference  between  each 
other,  but  there  are  certain  questions  that 
equally  apply  to  both,  and  those  I  shall  first 
consider. 

The  plaintiff  insured  in  both  cases,  on  the 
account  of  himself  or  of  Peter  Malibran,  or  of 
Murray  &  Son  and  himself ;  but  it  is  stated  as 
a  fact  that  Malibran  alone  purchased  the  ves- 
sel, and  there  is  no  evidence  to  rebut  the  pre- 
sumption that  he  was  the  sole  owner.  The 
plaintiff,  then,  contracted  with  the  under- 
writers as  agent  for  Malibran,  in  whom  the 
property  existed ;  and  the  first  question  that 
arises  is,  whether  he  can  now  be  permitted  to 
deny  that  he  was  an  agent,  in  opposition  to 
his  own  act  and  contract  with  the  defendants. 
To  permit  this  would  be  opening  a  door  to 
infinite  fraud  and  abuse,  and  would  be  de- 
structive to  fair  dealing  and  to  commercial 
confidence.  The  broker  may  have  told  the 
defendants  that  the  plaintiff  had  no  orders 
from  Malibran  to  insure,  but  this  could  only 
allude  to  special  instructions  in  that  case,  and 
could  not  be  understood  as  a  denial  of  his 
general  authority  as  agent,  and  under  which  it 
must  be  intended  that  the  insurance  was  made. 
His  act  is  conclusive  evidence  against  him, 
that  he  had  or  assumed  to  have  that  authority. 
696 


An  unauthorized  agent  cannot,  indeed,  bind 
or  affect  the  person  for  whom  he  acts ;  but  he 
himself  ought  not  *to  be  capable  of  [*279 
rescinding  his  own  contract.  Third  persons 
whose  rights  are  involved  by  his  assumed 
agency  can  hold  him  to  his  own  declarations 
and  engagements.  The  plaintiff,  therefore, 
who  contracted  with  the  defendants,  as  agent, 
cannot  be  permitted,  in  a  suit  between  him 
and  them,  arising  on  the  same  contract,  to- 
deny  himself.  In  respect  to  them  he  must  be 
deemed  bound.  This  is  a  sound  principle  of 
justice  and  public  policy.  The  question  then 
arises,  is  Malibran  a  competent  witness  for 
him,  after  the  point  is  established  that  he  was 
the  agent  of  Malibran,  or  at  least,  that  it  does 
not  lie  with  him  to  deny  it?  If  he  was  Mali- 
bran's  agent  in  effecting  the  insurance,  then 
Malibran  has  an  interest  in  the  recovery  of  the 
premium  ;  for  the  premium,  if  recovered  back, 
will  belong  to  Malibran,  as  the  cestui  qve  trust,. 
and  for  whose  benefit  the  premium  was  paid. 
The  release  from  the  plaintiff  to  Malibran  is 
here  interposed  as  destroying  that  interest ;. 
but  that  release  only  operates  to  take  away 
any  future  action  that  the  plaintiff  might  have 
against  Malibran,  by  way  of  indemnity  for  the 
loss  of  the  premium.  It  does  not  prevent  any 
further  demand  of  Malibran  against  the  plaint- 
iff, in  case  the  premium  should  be  recovered. 
To  produce  that  effect,  Malibran  ought,  also,, 
to  have  released  the  plaintiff.  They  should 
have  interchanged  releases,  in  order  to  do 
away  all  objection  on  the  ground  of  interest  ; 
but  the  release  only  comes  from  the  plaintiff.. 
Suppose  a  recovery  by  the  plaintiff,  what  is 
there  to  prevent  a  suit  by  Malibran  against 
the  plaintiff,  for  the  premium  so  received  to- 
his  use?  The  plaintiff  had  insured,  as  agent 
of  Malibran,  and  for  his  benefit,  and  the  pre- 
sumption is,  until  the  contrary  be  shown,  that 
payment  by  an  agent,  for  and  on  account  of 
his  principal,  is  payment  with  the  principal's- 
money ;  because,  in  judgment  of  law,  it  is  a 
payment  by  the  principal  himself,  and  the 
money,  when  returned,  will,  of  course,  belong 
to  the  principal. 

*If  the  point  once  be  established  [*28O 
that  the  plaintiff  is,  in  respect  to  the  present 
suit,  prevented  from  denying  that  he  appeared 
in  his  true  character  when  he  appeared  before 
the  defendants  as  agent  of  Malibran,  all  these 
consequences  are  to  be  presumed  ;  and  whether 
the  premium  that  he  advanced  was  of  his  own 
proper  money,  or  that  of  his  principal,  will  re- 
main to  be  ascertained  when  he  and  his  principal 
shall  come,  hereafter,  to  settle,  or  to  litigate  with 
each  other.  In  the  present  suit  all  such  in- 
quiries must  be  precluded  ;  and  we  are  now  to- 
hold  the  plaintiff  to  his  assumed  character,  in 
which  only  the  defendants  are  to  know  him. 
With  them  he  contracted  as  agent,  and  with 
them  he  cannot  lay  that  character  aside.  Be- 
tween him  and  his  principal,  the  real  truth  of 
the  transaction  can  be  disclosed,  and  the  mis- 
take, if  any,  corrected. 

These  principles  appear  to  me  to  be  solid, 
and  founded  on  essential  principles  of  law,  of 
commerce,  of  convenience  and  of  good  faith  ; 
and  the  result  is  clear  and  inevitable,  that  as  to 
the  present  suits  we  cannot  but  regard  the 
recovery  that  may  be  had  as  inuring  to  the 
use  of  Malibran  ;  and  he  not  having  released 
JOHNSON'S  CASES.  3. 


1803 


JACKSON,  EX  DEM.  LEWIS  ET  AL.,  v.  LAROWAY. 


280 


that  interest  is  directly  interested  in  the  event 
of  the  present  suits,  and  ought,  therefore,  to 
be  considered  as  an  incompetent  witness. 

The  agency  of  the  plaintiff,  and  the  incom- 
petency  of  Malibran  as  a  witness  being  estab- 
lished, we  are  next  to  see  how  the  cases  stand, 
under  the  control  of  these  positions. 

In  the  case  of  the  insurance  on  the  vessel, 
the  law  is,  that  if  the  insurer  could  ever  have 
been  called  upon,  under  any  circumstances,  to 
pay  ;  if  there  was  a  risk  once  begun,  although 
founded  upon  a  contingent  interest,  there  can- 
not be  a  return  of  premium.  (8  Term  Rep., 
154.)  The  insurance  on  the  vessel  was  at  and 
from  Trinidad  in  Cuba,  to  New  York.  These 
28 1*]  words  include  the  time  the  *ship  is  in 
port,  or  if  she  be  not  a  natiye  of  the  port,  but 
had  arrived  there  from  abroad,  then  these 
words  include  all  the  time  from  her  first  arri- 
val. (1  Atk. ,  545,  548  ;  2  Atk. ,  359 ;  Marshall, 
193.)  In  the  present  case,  the  vessel  was 
brought  into  Trinidad,  as  a  prize,  and  pur- 
chased by  Malibran,  shortly  before  the  policy 
was  effected ;  and  this  information  was  re- 
ceived by  the  plaintiff,  and  communicated  to 
the  defendants,  together  with  the  additional 
fact,  that  a  crew  had  been  sent  for,  and  that 
the  vessel  was  coming  to  New  York.  In  such 
a  case,  the  words  "at"  and  "from "  must  be 
considered  as  reaching  back  to  the  time  of  the 
purchase,  in  April,  as  being  equivalent  to  the 
first  arrival  on  a  voyage.  This  is  no  more  than 
a  reasonable  and  just  interpretation  of  the 
words  in  the  present  case.  There  can  be  no 
doubt,  then,  but  that  the  defendants  ran  a  risk 
on  the  vessel,  for  if  she  had  been  lost,  while 
lying  at  Trinidad,  and  before  any  orders  to 
effect  insurance  for  the  Havana,  Malibran 
could  have  sued  the  defendants,  and  they 
would  have  been  left  without  defense.  His 
interest  would  be  ascertained  beyond  a  doubt, 
and  have  reduced  to  certainty  the  identity  of 
the  insured.  The  declared  intent  of  the  voy- 
age to  New  York,  the  sending  to  Havana  for 
American  papers,  and  the  documentary  ship 
papers,  would  all  have  established  the  voyage 
to  have  been  intended  for  New  York,  "and 
would,  I  think,  have  concluded  the  defend- 
ants. If  it  lay  with  them  to  show  that  the 
plaintiff  effected  the  insurance,  without  any 
authority,  yet  Malibran  could,  at  his  election, 
have  affirmed  the  agency,  and  availed  himself 
of  the  policy,  equally  as  if  he  had  previously 
made  the  plaintiff  his  agent,  for  omnis  rati/ia- 
bitio^  mandato  cequiparatur.  The  risk  on  the 
vessel  may,  therefore,  be  considered  as  having 
commenced  against  the  defendants,  and  there 
ought  not  to  be  any  return  or  apportionment 
of  the  premium. 

I  may  add,  that  this  conclusion  appears 
equally  inevitable,  if  Malibran's  testimony  be 
received,  and  it  should  be  also  admitted  that 
282*]the  plaintiff  acted  as  agent,  without  *au- 
thority.  Neither  of  those  questions,  let  the 
decision  of  them  be  either  way,  affect  the  case, 
as  to  the  return  of  the  premium,  in  the  policy 
on  the  vessel.  The  defense,  in  either  point  of 
view  is  equally  solid. 

In  the  other  case,  that  of  the  insurance  on 
the  cargo,  the  question  as  to  the  competency  of 
Malibran's  testimony  is  all-important,  for  if 
that  was  admissible  I  should  incline  to  acqui- 
esce in  the  verdict.  But  being  excluded,  the 
JOHNSON'S  CASES,  3. 


plaintiff  has  shown  no  title  to  the  premium, 
because  he  has  not  shown  that  the  voyage  was 
altered  or  abandoned. 

It  lay  with  him  to  make  out  his  case,  and 
without  that  testimony  he  shows  nothing  to 
entitle  him  to  recover.  The  case  stated  for 
counsel  which  the  plaintiff  read  on  the  trial, 
must  be  considered  as  his  testimony,  and  not 
that  of  the  defendants.  The  previous  notice 
to  produce  that  case  was  only  for  the  benefit 
of  a  perusal  of  it  by  the  defendants,  and  did  not 
render  it  incumbent  on  them  to  offer  it  in  evi- 
dence after  they  had  perused  it.  Nothing  can 
be  considered  as  testimony  of  a  party,  until  it  is 
offered  to  the  court,  and,  in  this  instance,  the 
case  called  for  was  never  offered  by  the  defend- 
ants. It  was  first  offered  by  the  plaintiff,  and  it 
being  his  testimony,  if  amounted  to  nothing 
more  than  his  own  declarations,  and  those,  too, 
not  under  oath,  and  was  certainly  improper 
and  inadmissible. 

I  am,  therefore,  of  opinion  that  in  both 
cases  the  verdict  ought  to  be  set  aside,  and 
new  trials  awarded,  for  the  admission  of  im- 
proper testimony,  and  because  the  verdicts  are 
against  evidence. 

Judgment  for  the  plaintiff,  in  both  causes. 
Cited  in— 16  Johns.,  14 ;  4  Wend.,  79 ;  1  Mason,  137. 


*JACKSON,  ex  dem.  LEWIS  ET  AL.,    [*283 

v. 
LAROWAY. 

1.  Evidence  —  Will  not  Properly  Proved  and  lie- 
corded.  2.  Id.  —  Ancient  Deed  —  Presumption 
of  Genuineness  —  Possession  Under  —  Proof 
of—  General  Rule. 

A  will  executed  in  1723,  and  which  had  been 
proved  by  the  witnesses  in  1733  and  1744,  and  re- 
corded, but  not  in  a  manner  authorized  by  law,  was 
allowed  to  be  read  in  evidence,  on  the  trial  of  an 
action  of  ejectment  in  1801,  as  an  ancient  deed  ; 
though  actual  possession  did  not  follow  and  accom- 
pany the  will,  that  being1  explained  by  the  peculiar 
situation  of  the  property  in  question  and  other  cir- 
cumstances shown,  to  raise  a  presumption  of  the 
existence  and  genuineness  of  the  will. 

Citations—  Trials  per  pais,  370  ;  Loft's  Law  of  Ev., 
p.  104;  Bull.,  255;  2  Bac.;  new  ed.,  tit.  Ev.,  p.  647; 
Trials  per  pais,  230  ;  12  Vin.,  84,  tit.  Ev.;  3  Salk.,  154  ; 
1  Keb.,  877,  pi.  27  :  2  Keb.,  126,  pi.  79  ;  Gilb.,  p.  89  ; 
Peake,  72,  73  ;  Fleta,  lib.  6,  ch.  34  ;  1  Inst.,  6  b;  1  Roll. 
Rep.,  132;  Skin.,  239;  2  Mod.,  323;  1B1.  Rep..  SB; 
1  Ld.  Raym.,  731,  732. 


was  an  action  of  ejectment  for  lands  in 
-L  the  town  of  Windham,  in  the  County  of 
Greene,  late  part  of  the  County  of  Ulster. 

The  plaintiff  claimed  title  under  a  patent 
granted  to  Johannis  Hardenbergh,  Leonard 
Lewis  et  al.,  dated  the  23d  April,  1708.  After 
producing  the  patent,  he  proved  that  Leonard 
Lewis,  the  patentee,  under  whom  he  claimed, 
died  upwards  of  sixty  years  before  the  trial. 
He  then  offered  in  evidence  a  writing  purport- 
ing to  be  the  original  will  of  Leonard  Lewis, 
and  to  have  been  duly  executed  in  the  pres- 
ence of  three  witnesses,  bearing  date  the  20th 


NOTE. — Evidence— Ancient  Deeds. 

See  note  to  Jackson  v.  Blanshan,  3  Johns.,  292. 


283 


SUPREME  COUKT,  STATE  OF  NEW  YORK. 


1803 


February,  1723,  upon  which  there  appeared 
several  indorsements,  as  follows :  1.  A  certifi- 
cate of  Johannis  Van  Kleeck,  a  justice  of  the 
peace  of  the  former  colony  of  New  York, 
dated  the  23d  August,  1733,  stating  that  one 
of  the  witnesses  to  the  will  had  appeared  be- 
fore him,  and  deposed  to  the  execution  of  the 
will,  by  the  testator,  as  his  voluntary  act  and 
deed  ;  2.  A  certificate  of  Jacobus  Ter  Bos,  one 
of  the  judges  of  the  Court  of  Common  Pleas 
of  Dutchess  County,  dated  the  9th  October, 
1733,  stating  the  like  proof,  before  him,  by 
another  of  the  subscribing  witnesses  ;  3.  A 
certificate  of  the  clerk  of  Dutchess  County, 
dated  the  21st  July,  1735,  that  the  will  was 
recorded  in  his  office ;  4.  A  certificate,  dated 
the  16th  May,  1744,  signed  by  a  judge  and  two 
assistant  justices  of  fhe  Court  of  Common 
Pleas  of  Dutchess  County,  and  also  by  the 
clerk  of  the  same  court,  stating  that  the  will 
had  been  proved  before  them,  in  open  court, 
by  the  two  witnesses  above  mentioned,  who 
deposed,  that  they  saw  the  testator  sign,  seal, 
publish,  and  declare  the  same,  as  his  last  will ; 
that  he  was  of  sound  mind ;  that  they  sub- 
284*]  scribed  their  names  thereto,  *as  wit- 
nesses, and  that  they  also  saw  the  other  wit- 
ness subscribe  his  name  thereto  as  such. 

The  plaintiff  also  offered  to  prove  the  hand- 
writing of  the  clerks  to  the  indorsements  above 
mentioned,  and  of  the  judge  who  signed  the 
indorsement,  certifying  the  proof  of  the  will 
in  open  court,  and  contended  that  under  those 
circumstances,  the  will  ought  to  be  received  as 
an  ancient  deed.  It  was  objected  to  by  the 
defendant,  and  overruled  by  the  judge. 

The  plaintiff  then  deduced  a  title  derived 
from  the  heir-atrlaw  of  Leonard  Lewis,  and 
proved  that  the  premises  were  occupied, 
about  twenty  years  before  the  trial,  by  one  Jan 
Laroway,  who  died  in  possession  about  nine  or 
ten  years  ago,  and  that  the  defendant  held  the 
same  possession ;  and,  in  order  to  prove  that 
the  premises  were  comprehended  within  the 
patent  above  mentioned,  he  offered  in  evidence 
an  indenture,  bearing  date  the  1st  June,  1787, 
executed  by  William  Cockburn,  as  attorney 
for  the  then  principal  proprietors,  under  the 
patentees  mentioned  in  the  patent  (except  the 
representatives  of  Leonard  Lewis),  on  the  one 
part,  and  by  Jan  Laroway  and  others,  on  the 
other  part,  by  which  indenture,  Jan  Laroway 
acknowledged  that  the  premises  lay  within  the 
patent,  and  accepted  a  confirmation  or  convey- 
ance from  the  patentees,  who  thereby  granted 
the  same  to  him  and  his  heirs,  reserving  cer- 
tain mines  and  minerals,  and  the  rent  of  three 
bushels  of  wheat,  to  be  paid  by  Jan  Laroway 
and  the  other  parties  of  the  second  part,  to 
the  representatives  of  the  patentees,  and  the 
heirs  of  Leonard  Lewis.  This  indenture  ap- 
peared to  have  been  made  for  the  purpose  of 
settling  and  extinguishing  the  claim  of  all 
the  patentees,  under  the  patent,  to  the  prem- 
ises in  question ;  but  the  indenture  was  also 
objected  to,  and  overruled  by  the  judge. 

The  plaintiff  then  proved,  by  parol  testi- 
mony, that  the  premises  lay  within  the  patent. 
285*]  *The  defendant  proved  that  Jan 
Laroway  possessed  the  premises  in  the  year 
1753 ;  that  he  died  in  possession  about  ten  or 
twelve  years  before  the  trial,  and  that  the  de- 
fendant, who  was  a  younger  son  of  seven 


children,  had  been  in  possession  ever  since  his 
father's  death.  The  defendant  also  offered  in 
evidence  a  deed  for  a  tract  of  land,  including 
the  premises,  from  G.  V.  Bergen  and  others  to 
Isaac  Van  Alstine,  Martinus  Van  Alstine,  and 
Jan  Laroway,  dated  the  2d  October,  1753, 
wishout  proof  of  its  due  execution  by  the  par- 
ties, as  an  ancient  deed,  and  as  evidence  that 
Jan  Laroway  entered  and  held  the  premises 
adversely,  which  was  objected  to  by  the  plaint- 
iff's counsel  and  admitted  by  the  judge. 

The  defendant  then  insisted  that  it  having 
been  proved  that  Jan  Laroway  was  in  posses- 
sion of  the  premises  above  five  years  previous 
to  his  death,  and  having  died  seized,  and  the 
defendant  being  one  of  his  heirs,  the  plaintiff's 
right  of  entry  was  tolled  by  the  descent  cast. 
The  plaintiff  contended  that  as  the  defendant 
appeared  to  be  only  one  of  seven  children 
who,  by  pur  statute,  were  equally  entitled  to 
the  inheritance,  it  was  to  be  inferred  that  he 
did  not  take  as  heir,  but  as  a  purchaser,  and 
that,  therefore,  it  was  not  to  be  considered  as 
a  case  of  a  descent  cast.  The  judge  decided 
that  the  possession  of  the  defendant  was  to  be 
deemed  the  possession  of  all  the  heirs,  and  that 
the  adverse  possession  of  the  deceased  consti- 
tuted a  disseisin,  which,  with  the  descent  cast, 
barred  the  plaintiff's  right  td  recover. 

The  plaintiff  submitted  to  a  nonsuit,  with 
leave  to  move  the  court  to  set  it  aside  and  grant 
a  new  trial. 

Messrs.  Golden  and  Janes  for  the  plaintiff. 
Messrs.  Hoffman  and  Biggs,  contra. 

RADCLIFF,  J.  The  questions  which  have 
been  made  on  this  case  are: 

*1.  Whether  the  will  of  Leonard  [*286 
Lewis  ought  not  to  have  been  admitted  in 
evidence. 

2.  Whether  the  indenture,  dated  the  1st 
June,    1787,    ought    not    to    have    been    ad- 
mitted. 

3.  Whether    there    was    a    disseisin    and 
descent  cast,  so  as  to  bar  the  plaintiff's  right  of 
entry. 

As  to  the  first  question  I  think  there  can  be 
no  doubt  as  to  the  general  position,  that  a  will 
concerning  real  property  may,  under  certain 
circumstances,  be  given  in  evidence,  as  an 
ancient  deed.  It  is  generally  within  the  same 
reason,  and  is  supported  by  the  additional 
consideration,  that  until  lately,  no  mode  was 
provided  to  perpetuate  the  proof  of  wills  re; 
specting  real  estates,  similar  to  that  in  the  case 
of  deeds.  It  has  also  been  expressly  applied 
to  the  case  of  an  ancient  writing  (not  a  deed), 
proved  to  have  been  found  among  the  deeds 
and  muniments  of  an  estate,  on  the  ground  that 
its  being  found  there  created  a  presumption 
that  it  was  fairly  obtained  and  preserved  for 
use.  (Trials  per  pats,  370.)  The  particular 
ground  on  which  the  will  in  question  was  re- 
fused, I  understand  to  be,  that  it  did  not 
appear  that  the  actual  possession  of  the  prem- 
ises had  accompanied  it.  Here  it  is  necessary 
to  state*  that  the  premises  are  part  of  the  great 
Hardenbergh  Patent ;  that,  until  the  year  1753, 
the  premises  were  in  a  wild  and  uncultivated 
state,  and  actually  in  the  possession  of  no  one ; 
at  least,  it  does  not  appear  that  they  were  so 
possessed,  before  that  period,  and  the  con- 
JOHNSON'S  CASES,  3. 


1803 


JACKSON,  EX  DEM.  LEWIS  ET  AI,.,  v.  LAROWAY. 


286 


trary  is  to  be  presumed,  not  only  from  the 
general  state  of  the  country,  but  from  the  facts 
in  the  case  itself ;  and  it  may  be  added,  that 
although  possession  was  taken  by  the  defend- 
ant's ancestors,  in  the  year  1753,  yet  it  does  not 
appear  that  the  heirs  or  representatives  of  L. 
Lewis  had  any  notice  of  that  possession  till  a 
long  time  after. 

The  general  rule  on  this  subject  I  take  to  be, 
that  a  deed  appearing  to  be  of  the  age  of  thirty 
years  may  be  given  in  evidence,  without  proof 
of  its  execution,  if  the  possession  be  shown  to 
287*]  have  accompanied  it,  or  where  no  *pos- 
session  has  accompanied  it,  if  such  account  be 
given  of  the  deed,  as  may  be  reasonably  ex- 
pected under  all  the  circumstances  of  the 
case,  and  will  afford  the  presumption  that  it  is 
genuine.  This  rule  is  founded  on  the  necessity 
of  admitting  other  proof,  as  a  substitute  for 
the  production  of  witnesses  who  cannot  be 
supposed  any  longer  to  exist.  A  correspond- 
ent possession  is  always  high  evidence  in  sup- 
port-of  such  a  deed;  but  where  no  such 
possession  appears,  other  circumstances  are 
admitted  to  account  for  it,  and  raise  a  legal 
presumption  in  its  favor. 

The  English  authorities  (Loft's  Law  of  Ev. , 
p.  104 ;  Bull.,  255 ;  2  Bac.,  new  ed.,  tit.  Ev.,  p. 
647  ;  Trials  per  pais,  220  ;  12  Vin.,  84,  tit.  Ev., 
3  Salk.,  154;  1  Keb.,  877;  pi.  27;  2  Keb.,  126, 
pi.  79)  on  this  subject,  plainly  distinguish  be- 
tween the  case  of  an  ancient  deed,  supported 
by  possession,  and  by  other  circumstances. 
They  expressly  state  that  where  possession  has 
not  gone  along  with  the  deed,  the  party  ought 
to  give  some,  account  of  it,  to  entitle  it  to  be 
read  in  evidence ;  and  I  think  this  extent  of  the 
rule  is  founded  on  reason,  and  is  essential  to 
the  ends  of  justice.  In  the  present  case,  we 
have  these  facts:  the  will  is  dated  in  1723;  the 
premises  remained  in  their  natural  state,  un- 
occupied, till  1753,  when  the  defendant's  an- 
cestor took  the  possession  ;  the  precise  time  of 
the  testator's  death  is  not  ascertained,  but  for 
a  period  of  thirty  years  subsequent  to  the  date 
of  the  will,  the  premises  were  not  actually  pos- 
sessed by  anyone. 

The  possession  of  lands  in  that  situation  has 
been  construed  by  our  courts,  to  be  vested  in 
the  party  who  shows  a  paper  title.  The  want 
of  an  actual  possession  under  such  circum- 
stances ought  not  to  operate  to  the  prejudice 
of  anyone,  and  is  sufficiently  accounted  for 
to  remove  any  objection,  on  that  ground 
against  the  introduction  of  the  will,  if  it  does 
not  afford  an  argument  in  its  favor.  I  think, 
also,  that  this  observation  applies  with  equal 
force  to  all  the  period  during  which  the  repre- 
288*]  sentatives  of  L.  *Lewis  were  not  ap- 

Srised  of  the  actual  possession  taken  by  the 
efendant's  ancestor.  This  state  of  the  case 
ought,  at  least,  to  induce  us  more  easily  to  ad- 
mit of  collateral  circumstances,  to  show  the 
probable  authenticity  or  the  will,  and  to  adopt 
the  principle,  that  if  otherwise  reasonably  ac- 
counted for,  it  ought  to  be  received.  No  other 
account  was  offered  to  be  given  of  the  will, 
than  what  may  be  collected  from  the  indorse- 
ments upon  ifc;  and  the  proof  of  the  handwrit- 
ing of  the  clerks,  and  of  one  of  the  judges  who 
certified  the  last  two  indorsements.  These  in- 
dorsements cannot  be  received  as  evidence  of 
the  due  execution  of  the  will,  because  the 
JOHNSON'S  CASES,  3. 


proofs  which  they  certify  were  wholly  unau- 
thorized, either  by  the  statute  or  common  law. 
But  I  think  the  proof  of  the  handwriting  of 
those  persons  ought  to  have  been  received, 
with  a  view  to  show  the  antiquity  of  the  instru- 
ment, and  that  it  existed  at  the  periods  when 
those  certificates  bear  date.  For  this  purpose, 
I  think  the  evidence  was  proper,  and  would 
tend  to  show  the  existence  of  the  will,  as  early, 
by  one  of  the  indorsements,  as  the  year,  1735, 
and,  by  the  other,  as  early  as  1744.  This,  in 
my  opinion,  would  be  a  more  satisfactory  ac- 
count of  the  will  than  to  show  that  it  had  been 
found  among  the  evidences  of  the  testator's 
estate,  or  among  the  archives  of  his  family, 
which,  in  similar  cases,  has  been  admitted  to 
be  sufficient. 

Considering,  therefore,  the  situation  of  the 
property  in  question,  that  from  its  nature,  it 
was  not  susceptible  of  actual  enjoyment  until 
a  long  period  after  the  date  of  the  will,  that 
no  adverse  possession  was  taken  till  the  year 
1753,  and  that  the  antiquity  of  the  will  "and 
its  probable  existence,  as  genuine,  has  been 
shown  as  far  as  could  be  reasonably  expected, 
I  think  it  ought  to  have  been  received  on  the 
footing  of  an  ancient  deed. 

Without  entering  into  an  examination  of  the 
two  other  points,  I  am  of  opinion  that  a 
new  trial  ought  to  be  granted. 

*LIVINGSTON,  J.,  and  THOMPSON,  J.,  [*289 
were  of  the  same  opinion. 

KENT,  J.  The  first  question  that  arises 
upon  this  case  is,  whether  the  will  of  Leonard 
Lewis  ought  to  have  been  admitted  in  evi- 
dence. 

There  was  no  statute  existing  at  the  time  to 
authorize  the  proving  or  recording  the  will,  in 
the  manner  it  was  done,  as  far  as  it  was  to  be 
considered  a  devise  of  real  estate.  The  Act  of 
the  llth  November,  1692,  authorized  the 
county  courts  in  Dutchess,  Ulster,  &c.,  to 
take  the  examination  of  witnesses  to  wills, 
and  to  certify  those  examinations  into  the 
secretary's  office  at  New  York,  to  the  end 
that  probates  thereof  might  be  granted  accord- 
ingly ;  and  if  the  estate  did  not  exceed  in  value 
£50,  the  county  courts  were  authorized  them- 
selves to  grant  probates  and  letters  of  admin- 
istration. This  Act  related  onlv  to  wills  of 
chattels.  The  Act  of  the  30th  October,  1710. 
for  the  better  settlement  and  assurance  of 
lands,  declared  that  all  deeds  and  writings 
relating  to  real  estate,  being  acknowledged 
and  recorded  in  the  secretary's  office,  or  in  the 
county  records,  where  such  lands  lie,  such 
deed  or  writing,  or  the  transcript  thereof, 
should  be  good  evidence.  This  act  could  not 
have  related  to  wills,  because  it  speaks  only  of 
deeds  and  writings  acknowledged.  This 
meant  only  proof  by  the  confession  of  the 
party,  and  not  proof  by  the  witnesses ; 
whereas  in  the  present  case, the  will  was  proved, 
after  the  death  of  the  testator,  and  the  validity 
of  every  such  proof  and  county  record  was 
confined  to  the  county  where  the  lands  were 
situated.  At  the  time  of  the  proof  of  this 
will  in  Dutchess  County,  and,  indeed,  prior 
to  the  date  of  the  will,  Ulster  was  a  distinct 
county,  with  its  own  courts  and  records. 

I  put  out  of  view,  therefore,  the  indorse- 
ments on  the  will,  as  not  being  of  any  force  or 

(J9J) 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


29O*]  consideration  in  the  *present  case. 
They  were  null,  at  least,  with  respect  to  lands 
in  the  County  of  Ulster. 

The  will,  if  admissible  at  all,  must  be  in  the 
character  of  an  ancient  deed. 

At  the  time  the  will  was  offered  and  over- 
ruled, there  was  no  evidence  of  any  possession 
having  gone  along  with  the  deed.  If  any  evi- 
dence, afterwards,  arose,  even  of  a  construct- 
ive possession,  it  was  not  until  the  plaintiff's 
claim  under  the  will  had  been  abandoned,  and 
a  claim  set  up  to  be  deduced  from  a  different 
source.  The  deed,  when  presented,  appeared 
as  a  naked  parchment,  without  any  collateral 
support,  unless  it  be  the  indorsements  I  have 
mentioned. 

No  authority  authorizes  the  admission  of 
such  a  writing.  There  are  several  loose  dicta 
to  be  found,  that  an  ancient  deed  proves 
itself ;  and  these  dicta,  are  silent  as  to  the  cir- 
cumstance that  possession  must  have  accom- 
panied it.  But,  whenever  we  can  discover  the 
facts  in  the  cause,  in  which  these  sayings 
arose,  we  perceive  that  possession  was  an 
ingredient  in  the  case.  There  is  no  case 
which  lays  down  the  rule,  in  positive  terms, 
that  an  ancient  deed  is  admissible,  without 
proof,  and  without  possession  having  gone  with 
it ;  but  there  are  several  cases  which  directly 
state  the  rule  of  evidence  to  be,  that  a  deed  is  not 
admissible,  as  an  ancient  deed,  without  pos- 
session, and  without  proof  of  its  execution. 
It  is  stated  in  Gilb.,  p.  89,  to  have  been  ruled, 
a  century  ago,  that  if  possession  has  not  gone 
along  with  an  ancient  deed,  the  presumption 
in  its  favor  fails,  if  they  give  no  account  of  its 
execution.  This  rule  is  more  fully  and  ex- 
plicitly laid  down  by  Peake  (72,  73).  He 
observes,  "that  a  deed  of  thirty  years' stand- 
ing requires  no  further  proof  of  its  execution 
than  the  bare  production,  provided  the  pos- 
session has  been  according  to  the  provisions  in 
the  deed ;  but  as  this  rule  is  founded  on  pre- 
sumption, it  does  not  apply  to  cases  where 
there  are  circumstances  to  raise  a  contrary 
presumption,  as  if  the  possession  had  not  been 
291*]  according  to  the  deed,  or  it  appears  *to 
have  been  razed,"  &c.  "  In  all  these  cases,"  he 
adds,  "it  will  be  incumbent  to  give  the 
ordinary  evidence  of  the  execution  of  the 
deed." 

This  rule  regarding  possession,  as  supplying 
proof,  has  been  of  very  ancient  standing,  and 
has  received  a  pretty  uniform  sanction. 

In  the  treatise  by  the  name  of  Fleta,  this 
doctrine  is  laid  down  in  the  chapter  on  the 
proof  of  deeds,  "  that  if  no  witnesses  are  pro- 
duced who  saw  the  execution  of  the  charter, 
yet  the  grant  will  prevail,  if  homage  was 
taken,  and  there  hath  been  continual  seisin." 
(Fleta,  lib.  6,  ch.  34.)  Lord  Coke  says,  in 
respect  to  the  same  subject,  that  if  all  the  wit- 
nesses to  a  charter  of  feoffment  be  dead,  then 
violent  presumption,  which  stands  for  proof, 
is  continual  and  quiet  possession.  (1  Inst., 
6  b.)  In  the  case  of  Isack  v.  Clarke  (1  Roll. 
Rep.,  132),  the  court  observed,  that  if,  at  the 
assizes,  a  deed  of  feoffment  be  given  in  evi- 
dence of  above  forty  years  old  (which  made  it 
an  ancient  deed),  and  there  be  no  proof  of 
livery  ;  yet  if  possession  hath  been  held  all  the 
time  according  to  the  deed,  this  is  good  evi- 
dence to  .the  jury.  Again,  in  the  case  of 
700 


James  v.  Trollop  (Skinner,  239;  2  Mod.,  323), 
it  was  advanced  at  law,  by  Holt,  then  at  the 
bar,  that  when  a  deed  before  time  of  memory 
(which  was  then  sixty  years,  or  the  time  taken 
in  a  writ  of  right)  is  supported  by  usage  after, 
such  deed  is  pleadable  and  good ;  and  the 
Chief  Justice  approved  of  this  distinction.  The 
last  case  I  shall  mention  to  this  effect  is  that  of 
Forbes  v.  Wale  (1  Black.  Rep.,  532);  there,  an 
old  bond  of  thirty-two  years'  standing  was 
offered  in  evidence  before  Lord  Mansfield, 
without  any  proof  of  its  execution.  It  AVUS 
objected  that  it  could  not  be  read  until  proved, 
there  having  been  no  payment,  or  any  other 
mark  of  authenticity,  and  that  if  the  length  of 
the  date  was  alone  sufficient  to  establish  it,  a 
knave  had  nothing  to  do  but  forge  a  bond, 
with  a  very  ancient  date.  The  judge  allowed 
the  distinction,  and  directed  the  bond  to  be 
proved.  It  must  be  admitted  that  an  ancient 
deed  *brought  forward  to  disturb  in-  [*292 
heritances  and  challenge  title,  has  no  bet- 
ter claims  to  indulgence  than  an  ancient 
bond. 

These  authorities  go  strongly  to  the  point 
that  an  ancient  deed,  standing  naked  and 
unassisted,  will  be  of  no  avail,  but  that  if  it  be 
supported  by  seisin,  possession,  or  usage,  it 
may  be  received. 

The  only  doubt  that  could  arise  is,  whether 
the  indorsements  on  the  will  be  not  giving 
some  account  of  its  execution,  according  to  the 
expression  in  Gilbert.  But  after  the  current  of 
authorities  which  go  to  ascertain  what  is  re- 
quired to  supply  the  proof  by  witnesses,  such 
a  loose  expression  cannot  be  understood  to 
mean  anything  different  from  proof  arising 
from  possession  according  to  the  deed,  or  some 
other  proof  strictly  legal.  The  proof  in 
Dutchess  County,  such  as  it  was,  was  com- 
pletely coram  non  judice,  as  far  as  it  concerns 
the  subject  matter  now  in  controversy.  In- 
deed, it  does  not  appear  that  the  proof  in 
Dutchess  was  authorized  in  any  case,  or  for 
any  purpose  whatsoever.  It  was  even  there  a 
nullity,  if  I  understand  the  statute  by  virtue  of 
which  it  was  said  to  be  taken.  But  admitting 
such  proof  was  equivalent  to  a  probate  of  a 
will,  a  regular  probate  could  not  have  been 
admitted.  It  never  has  been  admitted, unless  as 
a  copy,  where  the  original  will  was  proved 
to  have  been  lost ;  nor  even  then,  unless  ac- 
companied with  other  circumstantial  proof, 
although  the  will  had  grown  to  be  ancient. 
(1  Ld.  Raym.,  731,  732,) 

I  am  of  opinion  that  the  admission  of  the 
will  was  properly  overruled. 

LEWIS,  Ch.  J.,  not  having  heard  the  argu- 
ment, gave  no  opinion. 

New  trial  granted.* 


Criticised— 4  Denio,  213. 

Explained— 5  Cow.,  225. 

Approved— 7  Wend.,  343. 

Cited  in-6  Cow.,  180;  4  Wend..  282;  11  Wend.,  602; 
1  Keyes,  268;  2  Abb.  App.  Dec.,  S5;  6  Barb.,  113;  11 
Barb.,  539;  63  Barb.,  104;  33  How.,  468. 


1. — See  Jackson,  ex  dem.  Burhans.  v.  Blanshan,  3 
Johns.  Rep.,  292;  Peake's  Ev.,  3d  edit.,  110-112:  & 
Terra  Rep.,  259. 

JOHNSON'S  CASES,  3. 


1803 


LIVINGSTON  v.  HASTIE  &  PATRICK. 


292 


293*]  *LIVINGSTON 


HASTIE  &  PATRICK. 

Marine  Insurance  —  On  Goods  —  Capture  — 
Abandonment  —  Release  WitJiout  Knowledge  of 
Insured  —  Arrival  —  Subsequent  Tender  arid 
Refusal  —  Sale  for  Inmrer'n  Benefit  —  Waiver 
of  Abandonment. 

Insurance  on  goods  f  roin  NewYork  to  New  Orleans, 
and  at  and  from  thence  to  New  York.  On  the  home- 
ward voyage,  the  vessel  and  cargo  were  captured, 
and  the  insured  received  information  of  the  capture 
on  the  30th  December,  and  abandoned  to  the  insurers 
on  the  21st  January,  though  the  property  was  in 
fact  released  and  in  safety  on  the  15th  January,  but 
unknown  to  the  insured.  The  abandonment  was 
held  void  ;  and  the  property  having  arrived  at  the 
port  of  New  York,  the  insured  tendered  it  to  the 
insurers,  who  refused  to  accept  it,  and  it  was  put  in 
store,  and  sixty  days  after,  was  sold  by  the  insured 
for  the  benefit  of  the  insurers  ;  this  was  held  not  to 
be  a  waiver  of  the  abandonment. 

Citation—  1  Johns.  Cas.,  147. 


was  an  action  on  an  open  policy  of 
-L  insurance  on  goods  laden  on  board  the 
Snow  Frederick,  at  and  from  New  York  to 
New  Orleans,  and  at  and  from  thence  to  New 
York.  The  vessel  sailed  from  New  Orleans, 
and  during  her  homeward  voyage,  on  the  14th 
November,  1799,  was  captured  by  a  British 
cruiser  and  carried  into  New  Providence. 
The  plaintiff  received  information  of  the  capt- 
ure on  the  20th  December,  and  on  the  30th  of 
December  the  plaintiff  received  information 
from  his  agent  at  New  Providence  that  no 
attempt  would  be  made  against  the  plaintiff's 
property  in  the  vessel.  On  the  20th  January, 
1800,  the  plaintiff  received  information  that 
the  vessel,  which  also  belonged  to  the  plaint- 
iff, was  libeled,  and  that  the  trial  would  prob- 
ably take  place  the  27th  December,  1799  ;  and 
on  the  21st  January,  the  plaintiff  made  an 
abandonment  to  the  defendants.  The  vessel 
and  cargo  were  liberated  on  the  15th  January, 
and  arrived  in  safety,  in  New  York,  the  loth 
February,  1800.  The  captors  appealed  from 
the  decision  of  the  Vice-Admiralty  Court  at 
New  Providence. 

On  the  arrival  of  the  vessel  and  cargo  in 
New  York,  the  plaintiff  tendered  the  property 
which  had  been  insured,  and  abandoned  to 
the  defendants,  who  refused  to  accept  it  ;  and 
made  no  offer  to  pa}r  for  the  costs  and  expense 
attending  it,  in  consequence  of  the  capture. 
The  plaintiff,  on  the  loth  April,  1800,  sold  the 
property  for  the  benefit  of  the  insurers,  and 
credited  the  defendants  with  the  net  proceeds, 
and  claimed  the  balance. 

A  verdict  was  found  for  the  plaintiff,  sub- 
ject to  the  opinion  of  the  court  on  a  case  con- 
taining the  above  facts,  with  liberty  to  either 
party  to  turn  the  case  into  a  special  verdict. 

294*]    *Mr.  W.  Morton  for  the  plaintiff. 
Mr.  Pendleton,  contra. 

Per  Curiam.  Two  questions  have  been 
made:  1.  Whether  the  abandonment  was  valid, 

NOTE.—  Marine  Insurance,  what  determines  right 
of  abandonment.    See  note  to  Mumford  v.  Church, 
1  Johns.  Cas.,  147. 
JOHNSON'S  CASES,  3. 


the  subject  having  been  released,  and  in  safety 
at  the  time  of  the  abandonment,  though  the 
fact  was  unknown  to  the  plaintiff.  2.  Whether 
the  abandonment  was  afterwards  waived  by 
the  plaintiff. 

The  first  question  has  already  been  decided 
in  the  case  of  Mumford  v.  Church  (1  Johns. 
Cases,  147).  As  to  the  second  point,  it  is  con- 
tended that  the  plaintiff  having  kept  the  prop- 
erty for  sixty  days  after  its  arrival  in  New 
York,  before  it  was  sold,  he  must  be  deemed 
to  have  appropriated  it,  and  waived  the 
abandonment.  This  inference  from  that  naked 
fact,  is  not  to  be  allowed.  The  cargo  arrived 
on  the  15th  February,  and  the  plaintiff  imme- 
diately tendered  it  to  the  defendants,  who 
refused  to  receive  it.  It  was  then  put  in  a 
store,  where  it  lay  until  it  was  sold.  This 
may  have  been  done  by  the  plaintiff,  in  good 
faith  or  not,  as  trustee  or  agent  of  the  defend- 
ants ;  and  whether  it  was  for  their  benefit  or 
not,  we  cannot  infer,  from  this  single  fact, 
thus  unexplained,  that  there  was  a  waiver  of  the 
abandonment.  We  are  of  opinion,  therefore, 
that  the  plaintiff  is  entitled  to  judgment. 

LEWIS,  Ch.  J.,  and  LIVINGSTON,  J.,  being 
related  to  the  plaintiff,  declined  giving  any 
opinion. 

Judgment  for  the  plaintiff. 


*JACKSON,  ex  dem.  SMITH  ET  AL.,  [*295 

v. 
WILSON. 

Ejectment  —  Lease  —  Clause  of  Re-  Entity  for  Non- 
payment of  Rent  —  Judgment  of  Ouster  —  By 
Default  —  Bar  —  Statute. 

Where  a  landlord,  in  1786,  brought  an  action  of 
ejectment  against  his  tenarit,  holding  under  a  lease 
containing  a  clause  of  re-entry  for  nonpayment  of 
rent,  and  recovered  judgment  against  the  casual 
ejector  by  default,  under  the  statute,  and  possession 
was  thereupon  delivered  to  the  landlord,  who  exe- 
cuted a  lease  and  gave  possession  to  another  person  ; 
and  the  tenant  under  the'  first  lease,  afterwards 
brought  an  action  of  ejectment,  in  1790,  for  the 
same  premises,  against  the  tenant  under  the  second 
lease,  it  was  held  that  the  judgment  by  default  was 
prima  facie,  regular,  and  a  sufficient  bar  ;  and  that 
the  defendant  was  not  obliged  to  show  an  affidavit, 
or  any  of  the  prerequisites  to  a  recovery,  required 
by  the  statute.  (Sess.  24,  ch.  36,  sec.  23.) 

Citation—  Burr.  Rep.,  614. 


was  an  action  of  ejectment.  Both 
1  parties  derived  title  from  Alexander  Col- 
den,  the  elder.  The  cause  was  tried  at  the 
Rensselaer  Circuit,  in  May,  1802.  The  plaint- 
iff produced  in  evidence  a  lease  from  Colden 
to  John  Griffith,  dated  8th  October,  1772,  for 
the  premises,  for  the  life  of  the  lessee,  at  the 
yearly  rent  of  £5  5s.  The  lease  contained  a 
clause  of  re-entry  for  nonpayment  of  rent,  &c. 
The  defendant  offered  to  prove  a  re-entry 
of  the  landlord,  and  produced  a  record  of  a 
judgment  in  ejectment,  recovered  in  conse- 
quence thereof,  by  default,  against  the  casual 
ejector,  in  July  Term,  1786.  It  was  objected 
that  the  defendant,  to  warrant  the  judgment, 
ought  to  produce  the  affidavit,  that  no  suffi- 
cient distress  could  be  found  on  the  premises, 

701 


295 


SUPREME  COURT,  STATE  OF  NEW  YORK. 


1803 


•fee.,  but  the  judge  overruled  the  objection, 
on  the  ground  that  the  judgment  was  prima 
facie  evidence  of  a  recovery,  either  under  the 
statute  or  at  common  law. 

The  defendant  then  offered  to  prove  by  parol 
that  possession  was  delivered  under  the  judg- 
ment in  ejectment ;  but  it  was  objected  by  the 
plaintiff  that  the  writ  of  hab.  poss.  ought  to  be 
produced.  The  judge  decided  that  parol  evi- 
dence was  admissible. 

A  witness,  who  was  deputy-sheriff  in  1786 
and  1787,  testified  that  he  served  the  declara- 
tion in  ejectment ;  but  that  he  made  no  affi- 
davit of  the  want  of  a  sufficient  distress  on 
the  premises,  countervailing  the  arrears  of 
rent ;  nor  was  it  proved  at  the  trial  that  any 
such  affidavit  was  made.  After  the  judgment, 
the  witness  received  a  writ  of  hab.  poss.  by 
virtue  of  which  he  turned  out  the  tenant,  and 
delivered  possession  to  the  agent  of  Golden, 
the  landlord.  The  defendant  then  gave  in 
evidence  a  lease  of  the  premises  from  the  heir 
of  Golden  to  him,  for  twenty-one  years,  dated 
296*]  *the  15th  March,  1794,  by  virtue  of 
which  lease  the  defendant  entered  and  took 
possession. 

Under  the  direction  of  the  judge,  the  jury 
found  a  verdict  for  the  defendant. 

A  motion  was  made  to  set  aside  the  verdict, 
and  for  a  new  trial. 

Mr.  Woodworth  for  the  plaintiff. 
Mr.  Van  Vechten,  contra. 

Per  Curiam.  The  case  of  Doe,  ex  dem. 
Hotchkiss,  v.  Lewis  (Burr.  Rep.,  614)  is  in  point. 
That  was  an  action  of  ejectment,  brought  by  a 
tenant  on  his  lease  ;  and  the  defendant  set  up 
a  judgment  by  default,  in  ejectment,  in  bar ; 
and  it  was  contended  that  an  affidavit  that  a 
half  year's  rent  was  due,  and  no  distress  to  be 
found,  ought  to  have  been  produced,  as  re- 
quired by  the  statute,  previous  to  a  recovery. 
There  was  an  acquiescence  under  the  judg- 
ment for  near  twenty  years,  and  it  was  held 
that  it  was  not  necessary  to  produce  the  affi- 
davit ;  but  that  the  judgment  was  to  be  pre- 
sumed regular.  Here  there  has  been  an  acqui- 
escence for  near  fourteen  years. 

It  was  stated  as  a  fact,  in  that  case,  that  the 
ejectment  was  under  the  statute.  Here  that 
fact  is  to  be  presumed,  for  the  defendant 
insisted  upon  it,  at  the  trial,  and  produced  the 
judgment ;  and  the  plaintiff  did  not  deny  the 
allegation  that  it  was  an  ejectment  under  the 
statute  for  nonpayment  of  rent ;  but  objected 
merely  that  the  affidavit  of  no  sufficient  dis- 
tress being  found  ought  to  have  been  pro- 
duced. Whether  it  was  a  proceeding  under 
the  statute,  or  at  common  law,  is  immaterial. 
We  must  presume  that  the  judgment  was 
regular,  and  that  everything  necessary  to 
entitle  the  landlord  te  recover  had  been  per- 
formed. It  follows,  that  we  must  consider 
the  necessary  affidavit  as  having  been  filed,  or, 
if  otherwise,  that  all  the  requisites  attending 
297*]  an  actual  entry  at  *common  law  were 
previously  complied  with.  This  presumption 
is  strengthened  by  the  fact  that  the  judgment 
has  stood  near  fourteen  years,  and  remains  in 
full  force.  It  would  be  unreasonable,  and 
extremely  inconvenient,  to  require  the  land- 
lord, at  this  time,  to  prove  all  the  prerequisites 
702 


to  a  right  of  recovery  in  the  first  action.  We 
are  of  opinion,  therefore,  that  the  motion 
ought  to  be  denied. 

Rule  refused. 
Cited  in-11  Johns.,  4. 


DENNIS  t>.  CUMMINS. 

Contract  to  Convey  Land — Breach — Liquidated 
Damages. — Penalty. 

A  and  B  entered  into  a  written  agreement,  by 
which  A  agreed  to  convey  to  B  700  acres  of  land  to 
be  appraised,  in  part  payment  for  a  farm,  valued  at 
$3,7oO,  which  B  agreed  to  sell  to  A,  and  it  was  cove- 
nanted that  in  case  either  party  failed  to  fulfil  the 
agreement,  the  party  failing  to  perform,  "  should 
forfeit  and  pay  to  the  party  who  should  fulfil  the 
agreement,  the  sum  of  $2,000,  as  damages." 

It  was  held  that  the  §2,000  was,  according  to  the 
intention  of  the  partie_s,  as  inferred  from  the  whole 
agreement,  to  be  considered  as  a  penalty,  and  not  as 
stipulated  damages. 

Citations— 4  Burr.,  2228 ;  2  Term  Rep.,  34. 

THIS  was  an  action  of  debt,  for  $2,000, 
founded  on  an  agreement  made  between 
the  parties,  for  the  exchange  of  certain  lands, 
whereby  the  plaintiff  agreed  to  let  the  defend- 
ant have  700  acres  of  land,  in  the  County  of 
Ontario,  at  the  appraisal  of  men,  in  part  pay- 
ment for  a  farm  which  the  defendant  agreed 
to  sell  the  plaintiff,  lying  in  the  town  of  Ca- 
naan, in  the  County  of  Columbia,  valued  at 
$3,750.  The  agreement,  after  mentioning  the 
terms  of  the  exchange,  contained  the  follow- 
ing covenant :  "  And  it  is  further  covenanted 
in  and  by  the  said  agreement,  by  and  between 
the  said  parties,  that  in  case  of  failure  to  ful- 
fil the  aforesaid  agreements  or  covenants,  on 
the  part  of  either  of  the  said  parties,  that  the 
party  not  fulfilling  the  said  agreement  shall 
forfeit  and  pay  to  the  other  party  who  shall 
fulfil  the  said  agreement,  the  sum  of  $2,000 
damages."  And  the  question  now  submitted 
to  the  court  was,  whether  that  sum  was  to  be 
considered  in  the  nature  of  a  penalty,  or  as 
damages  liquidated  and  agreed  on  between 
the  parties,  to  be  recovered  against  the  party 
in  default. 

The  case  was  submitted  to  the  court  with- 
out argument. 

•"THOMPSON,  J.,  delivered  the  opin-  [*298 
ion  of  the  court : 

I  think  this  sum  ought  to  be  considered  as 
a  penalty,  and  not  as  liquidated  damages. 
The  real  intention  of  the  parties  ought  to 
be  sought  after,  and  carried  into  effect. 


NOTE— Penalty— Liquidated  Damages. 

The  entire  penalty  was  recoverable  at  common  law 
in  case  of  forfeiture  until  courts  of  equity  inter- 
posed to  prevent  the  recovery  of  more  than  was 
warranted  by  good  conscience.  Blk.  Com.,  book  2, 
ch.  20,  p.  341 ;  Sedgwick  on  Damages,  Vol.  II.,  203 ; 
Hale  v.  Thomas,  1  Vern.,  349;  Steward  v.  Rumball, 
2Vern.,509;  Duvall  v.  Terry,  Shaw.,  Par.  Cas.,  15. 

By  act  of  4  Anne,  ch.  161,  sec.  12 and  13,  the  rule  of 
law  was  modified  to  conform  to  the  practice  of 
equity,  and  this  legislation,  having  been  followed 
in  this  country,  it  is  now  the  general  rule  here  as  in 
England.  See  statutes  of  the  various  States.  Under 
this  rule  the  recovery  is  only  the  amount  of  dam- 
ages actually  shown  to  have  been  sustained.  Lord 
v.  Gaddis,  9  la.,  265;  Hallock  v.  Slater,  Id.,  599; 
Brown  v.  Belloms,  4  Pick.,  178 ;  Moore  v.  PlatteCo., 

JOHNSON'S  CASE*,  3. 


1803 


THE  PEOPLE  v.  FKANKLIN. 


298 


where  it  can  be  discovered  from  the  instru- 
ment itself.  If  recurrence  be  had  to  this 
agreement,  it  never  can  be  presumed  that  the 
parties  had  the  sum  in  view  as  the  measure  of 
damages  ;  for  the  full  value  of  the  defendant's 
property,  which  was  to  be  exchanged,  was 
only  $3,750,  and  the  value  of  the  plaintiff's 
considerably  less.  It  would  be  a  strange  con- 
struction to  suppose  that  the  damages,  on  a 
failure  in  fulfilling  such  a  bargain,  should  be 
$2,000.  It  is  true  that  where  it  is  clearly  in- 
ferable, from  the  nature  and  terms  of  the  con- 
tract, that  the  parties  have  estimated  and 
liquidated  the  damages,  and  have  inserted  that 
sum,  as  the  amount  to  be  paid,  in  case  of  non- 
performance,  the  court  would  be  bound  so  to 
consider  it.  The  cases,  however,  in  the  books 
(4  Burr.,  2228  ;  2  Term  Rep.,  34),  where  pen- 
alties have  been  considered  in  the  nature  of 
liquidated  damages,  are  either  where  it  ap- 
pears from  the  contract  that  the  penalties  have 
barely  exceeded  the  damages  sustained,  or 
where,  from  the  nature  and  circumstances  of 
the  case,  no  rule  for  estimating  the  actual 
damages  could  be  adopted,  or  it  was  mani- 
festly the  intention  of  the  parties  that  the  sum, 
inserted  should  be  considered  as  a  compensa- 
tion, and  not  as  a  penalty.  But  those  cases 
by  no  means  compare  with  the  present.  This 
is  a  case  of  strict  penalty,  and  for  which  there 
does  not  appear  to  be  any  equivalent  to  the 
other  party.  To  consider  this  $2,000  as  the 
measure  of  the  damages  in  the  present  case, 
would  be '  excessive  and  unreasonable  in  the 
extreme.  We  are,  therefore,  of  opinion  that 
it  must  be  viewed  only  in  the  nature  of  a  pen- 
alty, and  that  the  plaintiff  ought  to  assign 
299*]  *breaches  under  the  statute,  and  as- 
sess the  damages  by  a  jury. 

Judgment  accordingly.1 

Cited  in  —7  Cow.,  310 ;  17  Wend.,  454 ;  2  Edw.,  475  • 
60  N.  Y.,  412 ;  12  Barb.,  373 ;  16  Abb.  N.  S.,  405. 

1.— In  Astley  v.  Weldon  (2  Bos.  &  Pull.,  346),  Lord 
Eldon,  and  the  other  judges  of  the  Court  of  C.  B., 
acknowledge  the  difficulty  of  laying  down  any  prin- 
ciple for  the  decision  of  cases  of  this  nature.  That 
case  was  an  action  of  assumpsit,  on  an  agreement 
made  with  a  theatrical  performer,  in  which  it  was 
stipulated,  at  the  conclusion,  "that  if  either  party 
neglected  to  perform  the  agreement,  according  to 
the  tenor  and  effect  and  true  intent  and  meaning 
thereof,  he  should  pay  to  the  other  the  full  sum  of 
£200,  to  be  recovered,"  &c.  And  the  court  held  that 
the  sum  was  a  penalty,  and  not  liquidated  damages. 

The  different  adjudications  on  this  subject  are 
stated,  and  examined,  by  Mr.  Evans,  in  the  appen- 
dix to  his  translation  of  Pothier  on  Obligations. 
(Vol.  II.,  p.  93-98.)  He  inclines  to  the  opinion  that 
the  penalty  ought  to  be  regarded  as  stated  damages, 
unless  there  is  some  particular  reason,  in  the  nature 
of  the  contract,  to  the  contrary ;  and  his  observa- 
tions are  calculated  to  excite  doubts  as  to  the  cor- 
rectness of  the  above  decision. 


THE  PEOPLE  v.  FRANKLIN. 


Forgery— Bitt    of    Exchange— Insufficiency     of 
Indictment. 

In  an  indictment  for  forging  a  bill  of  exchange 
or  bank  bill,  it  is  not  necessary  to  insert  the 
marks,  letters  or  figures  used  in  the  margin  of  the 
Dill,  for  ornament,  or  the  more  easy  detection  of 
forgeries,  as  such  marks  or  cyphers  form  no  part  of 
the  bill. 

rPHE  prisoner  was  indicted  for  forging  a  bill 
-L  of  exchange,  drawn  by  George  Desbrough, 
Commissary-General  of  the  British  wind- 
ward and  leeward  islands,  on  the  commission- 
ers of  the  treasury  in  London. 

The  bill  produced  in  evidence  contained 
various  letters  and  marks,  in  cypher,  in  the 
margin,  which  were  used  in  the  genuine  bills, 
for  the  purpose  of  rendering  the  detection  of 
forgery  more  easy,  and  which  marginal  letters 
or  cyphers  were  omitted  in  the  description  of 
the  bill  in  the  indictment. 

It  was  objected  that  the  variance,  in  this  re- 
spect, between  the  bill  described  in  the  indict- 
ment, and  the  one  offered  in  evidence  was 
fatal. 

Per  Curiam.  It  was  not  necessary  to  insert 
the  marginal  cyphers  or  marks  in  the  indict- 
ment, for  they  make  *no  part  of  the  [*3OO 
bill.  It  might  as  well  be  required  that  the 
water-marks  and  a  fac  simile  of  all  the  en- 
graved ornaments  used  in  a  bank  bill,  for  the 
more  easy  detection  of  forgeries,  should  be  in- 
serted in  an  indictment.2 

Cited  in— 52  N.  Y.,  305. 


HILDRETH   v.    HARVEY,  Impleaded  with 
BEECKER. 

Attorney — Death — Notice  to  Appoint  Another. 

Where  the  attorney  of  a  party  dies,  actual  notice 
or  warning  must  be  given  to  him  to  appoint  an- 
other attorney.  A  notice  put  up  in  the  clerk's  of- 
fice, or  a  notice  of  the  proceedings  in  the  cause,  is 
not  sufficient. 

Citation— 2  Johns.  Cas.,  411. 

MR.  VAN  VECHTEN,  for  the  defendant, 
moved  to  set  aside  the  interlocutory  judg- 
ment, final  judgment,  and  execution  in  this 
cause,  on  the  ground  that  the  defendant's  attor- 
ney died  before  the  entry  of  the  judgment,  and 
that  the  defendant  had  not  been  warned  to  ap- 
point a  new  attorney,  pursuant  to  the  direc- 

2.— See  Commonwealth  v.  Bailey,  1  Mass.  Rep.,  62. 


8  Mo.,  467 ;  Jackson  v.  Baker,  2  Edw.  (N.  Y.),  471 ; 
Colwell  v.  Lawrence,  38  Barb.,  643  :  Thoroughgood 
v.  Walker,  2  Jones  (N.  C.),  L.  15;  Curry  v.  Larer.  7 
Pa.  St.,  470 ;  Bearden  v.  Smith,  11  Rich.  (S.  C.),  L. 
554;  Robinson  v.  Cathcart,  2  Cranch  C.  C.,  590; 
Wilcus  v.  Kling,  87  111.,  107 ;  Kennedy  v.  Rich- 
ardson, 70  Ind.,  524;  Scofield  v.  Tompkins,  95 
111.,  190;  Burr  v.  Todd,  41  Pa.  St.,  206 ;  S.  C.,  35  Am. 
Rep.,  160 ;  Berry  v.  Harris,  43  N.  H.,  376 ;  Ricketson 
v.  Richardson,  19  Cal.,  330;  Dehler  v.  Held,  50  111., 
491 ;  Battey  v.  Holbrook,  11  Gray,  212. 

This  rule  applies  to  statutory  7>onc?,s.  Bennett  v. 
Brown,  31  Barb.,  ]58 ;  20  N.  Y.,  99 ;  Silsbe  v.  Lucas,  53 
111.,  479. 

But  parties  may  agree  on  luruidated,  stipulated,  or 
stated  damages,  and  whether  the  sum  mentioned  is 

JOHNSON'S  CASES,  3. 


a  penalty  or  liquidated  damages  is  a  question  of 
construction.  Perkins  v.  Lyman,  11  Mass.,  76 ;  Fo- 
ley  v.  McKeegan,  4  la.,  1 ;  Gomer  v.  Saltmarsh,  11 
Mo.,  271;  Brewster  v.  Edgerly,  13  N.  H.,  275;  Lind- 
say v.  Ansley,  6  Ired.  (N.  C.),  L.  186 ;  Maurice  v. 
Bradey,  15  Abb.  (N.  Y.)  Pr.,  173 ;  Hosmer  v.  True, 
19  Barb.,  106;  Streeper  v.  Williams,  48  Pa.  St.,  450; 
Durst  v.  Swift,  11  Tex.,  273 ;  Cowell  v.  Burroughs, 
53  Pa.  St.,  329;  Williams  v.  Vance,  9  S.  C.,  344; 
Gowen  v.  Garrish,  15  Me.,  273;  Iveson  v.  Althrop.  1 
Wyo.  Ter.,  71 ;  De  Lavcllette  v.  Wendt,  75  N.  Y., 
579 ;  Birdsall  v.  St.  By.  Co.,  8  Daley  (N.  Y. ),  419 ; 
Louis  v.  Brown,  7  Or.,  326. 

For  a  full  discussion  on  this  subject  see  Sedgwick 
on  damages,  7th  Ed.,  Vol.  II.,  pp.  200-264  and  authori- 
ties there  cited. 

703 


300 


SUPREME  COURT,  STATE  OP  NEW  YORK. 


1803 


tious  of  the  act.  (Sess.  24,  ch.  32,  sec.  5.) 
The  affidavit  which  was  read,  also  stated  that 
the  defendant  had  a  good  and  substantial  de- 
fense. 

Mr.  Etnott,  contra,  read  an  affidavit,  stating 
that  the  attorney  lived  in  the  same  town  with 
the  defendant,  who  must  have  known  when 
he  died  ;  that  a  notice  had  been  put  up  in  the 
clerk's  office,  directed  to  the  defendant,  re- 
questing him  to  appoint  another  attorney,  and 
that  notice  of  executing  the  writ  of  inquiry 
had  been  sent  to  the  defendant  by  post. 

Per  Guriain.  The  statute  is  peremptory  and 
decisive,  that  "where  any  attorney  shall  die, 
or  cease  to  act,  or  be  put  out  of  the  roll,  the 
person  for  whom  he  was  attorney  shall  be 
warned  to  appoint  another  attorney  in  his 

704 


place."  A  constructive  notice  or  warning  is 
not  sufficient,  nor  is  it  enough  that  the  de- 
fendant knew  of  the  death  of  his  attorney.  A 
notice  put  up  in  the  clerk's  office,  or  of  execut- 
ing a  writ  of  inquiry,  is  not  such  notice  as  the 
act  *requires.  The  final  judgment  and  [*3O1 
execution  must  be  set  aside  with  costs  ;  but  the 
interlocutory  judgment,  having  been  entered 
previous  to  the  death  of  the  attorney, 
must  stand.  It  appears  to  have  been  entered 
after  argument  on  demurrer ;  and,  according 
to  the  decision  in  Seaman  v.  Has/an  (2  Johns. 
Cases,  411),  it  is  too  late  after  judgment  is  en- 
tered up,  and  the  term  over,  to  apply  for  leave 
to  withdraw  the  demurrer. 

Cited  in— Col.  and  Cai.,  486 ;  81  N.  Y.,  232. 

JOHNSON'S  CASES,  3. 


[END  OK  JANUARY  TERM.] 


CASES   ADJUDGED 


IN   THE 


COURT  FOR  THE  CORRECTION  OF  ERRORS 


STATE  OF  NEW    YORK, 


IN 


FEBRUARY,    18O2,    A7V  1_>    MARCH.    18O3. 


3O3*}  *DOMINICK  LYNCH  AND  THOMAS 
STOUGHTON,  Appellants, 

•  v. 

JOSEPH  IGNATIUS  DE  VIAR,  Adminis- 
trator of  DON  DIEGO  DE  GARDOQUI,  De- 
ceased, Respondent. 

Commercial  Adventure — Interest  in  Considera- 
tion Paid — Account  Rendered — Refusal  to 
Settle — Recovery — Interest. 

A,  in  1789,  advanced  to  B,  a  merchant,  a  sum  of 
money,  in  consideration  of  which  B  engaged  that  A 
should  be  interested  in  certain  commercial  advent- 
ures of  B,  in  proportion  to  the  sum  advanced ;  and 
promised  to  render  an  account  to  A  of  the  proceeds, 
and  pay  to  him  his  proportion  thereof. 

In  September,  1794,  B  rendered  an  account  of  the 
adventures  to  A,  and  offered  to  come  to  a  settlement, 
if  A  would  give  up  the  written  engagement  of  B, 
which  was  refused.  A  died,  and  his  administrator 
in  1799  filed  a  bill  against  B  for  an  account,  &c.,  and 
it  was  held  that  A  was  entitled  to  recover,  not  only 
the  principal  of  the  balance  due  for  his  proportion 
of  the  proceeds  of  the  adventures ;  but  interest  from 
the  time  B  received  the  money,  or,  at  least,  from 
the  time.he  offered  to  come  to  a  settlement  in  Sep- 
tember. 

THE  respondent,  on  the  30th  July,  1799,  filed 
his  bill  against  the  appellants,  in  the 
Court  of  Chancery ;  alleging,  among  other 
things,  that  the  intestate,  Don  Diego,  in  his 
lifetime,  and  between  the  years  1789  and  1794, 
made  advances  of  considerable  sums  of  money 
to  the  appellants,  then  carrying  on  trade,  as 
copartners,  under  the  firm  of  Lynch  &  Stough- 
ton.  In  consideration  of  these  advances,  the 
appellants  engaged  to  the  respondent  to  give 
him  an  interest,  proportioned  to  the  advances, 
3O4*]  in  *several  cargoes  of  goods  and  mer- 
chandise, to  be  shipped  by  the  appellants  to 
Canton  and  other  foreign  parts. 

The  cargoes  were  accordingly  shipped  by 
the  appellants,  and  were  afterwards  sold  by 


I  them  or  their  factors,  in  foreign  parts,  to  great 
'  profit.  The  proceeds  of  the  cargoes  were  in- 
vested in  other  cargoes  and  shipped  to  the  ap- 
pellants, in  the  city  of  New  York,  where  the 
same  arrived,  and  were  afterwards  sold  by 
the  appellants  to  great  profit,  and  the  proceeds 
of  the  sales  were  received  by  the  appellants. 

Gardoqui,  in  his  lifetime,  often  applied  to 
the  appellants,  and  requested  them  to  render 
him  an  account  of  the  cargoes  and  of  the  sales 
thereof,  and  to  pay  him  what,  upon  a  balance 
of  the  account,  should  be  found  fairly  due  him  ; 
and  the  appellants  neglected  to  comply  with 
these  requests. 

Gardoqui  died  intestate,  on  the  12th  Novem- 
ber, 1798,  and  administration  upon  his  estate 
was  granted,  in  due  form  of  law,  to  the  re- 
spondent. 

The  respondent  afterwards  applied  to  the 
appellants,  and  requested  them  to  render  him, 
as  the  administrator  of  Gardoqui,  an  account  of 
the  cargoes  and  of  the  sales  thereof,  and  to  pay 
to  him  what,  upon  a  balance  of  the  account, 
should  be  found  fairly  due  to  the  estate  of 
Gardoqui ;  but  the  appellants  neglected  to 
comply  with  the  request.  The  bill  concluded 
with  a  prayer  for  a  discovery,  for  an  account, 
and  for  the  payment  to  the  respondent  of  the 
balance  which  should  be  found  justly  due  to 
the  estate  of  Gardoqui. 

The  appellants,  in  their  answer,  admitted 
that  on  or  about  the  18th  February,  1789,  being 
copartners  in  trade  under  the  firm  of  Lynch  <fc 
Stoughton,  they  received  of  Gardoqui,  in  his 
lifetime,  the  sum  of  $11,250,  for  which  they 
gave  him  the  following  written  acknowledg- 
ment, to  wit : 

*"  We  do  hereby  acknowledge  to  have  [*3O5 
received  from  the  Honorable  Don  Diego  De 
Gardoqui,  eleven  thousand  two  hundred  and 
fifty  dollars,  for  the  purposes  hereafter  ex- 
pressed : 


JOHNSON'S  CASES,  3. 


N.  Y.  REP.,  BOOK  1. 


45 


705 


305 


COURT  OF  ERRORS,  STATE  OF  NKW  YORK. 


1803: 


"  Three  thousand  seven  hundred  and  fifty 
dollars,  or  fifteen  hundred  pounds  currency,  to 
which  amount  we  have  ceded,  and  do  hereby 
interest  Don  Diego  De  Gardoqui  in  the  ad- 
venture of  the  ship  Jenny,  Captain  William 
Thompson,  and  cargo,  from  New  York  to 
Canton,  in  China,  and  from  thence  to  New 
York,  upon  equal  terms  with  ourselves,  in  like 
manner  and  same  condition. 

"  Seven  thousand  five  hundred  dollars,  or 
three  thousand  pounds  currency,  for  so  much 
interest  we  do  also  cede  to  him  in  the  advent- 
ure of  the  brigantine  Anthony,  Captain  Rich- 
ard Puller,  and  cargoes  out  and  home,  destined 
on  a  voyage  to  Canton  in  China,  for  which 
place  she  sailed  the  7th  February,  from  this 
port.  And  we  do  further  promise,  that  accord- 
ing as  sales  may  be  made,  and  proceeds  re- 
ceived, of  the  said  cargoes,  or  either  of  them, 
we  will  account  with  and  remit  him,  his  heirs 
or  executors,  his  due  proportion  of  the  above 
adventures,  without  any  charge  of  commission 
on  our  part.  New  York,  the  18th  Februarv, 
1789." 

The  answer,  after  referring  to  schedules  an- 
nexed, for  particular  accounts  of  the  several 
adventures  of  the  ship  Jenny  and  brigantine 
Anthony,  and  their  cargoes,  stated  that  the 
appellants,  as  long  ago  as  the  6th  day  of  Sep- 
tember, 1794,  gave  to  the  respondent,  who  was 
then  the  attorney  in  fact  of  Gardoqui,  true 
copies  of  the  accounts  contained  in  the  sched- 
ules ;  and  by  a  letter  dated  the  4th  day  of  Jan- 
uary,1796,  and  written  by  the  appellants  to  the 
respondent,  they  offered  to  come  to  a  settle- 
ment with  him,  if  he  would  give  up  to  them 
their  written  acknowledgment,  which  offer 
was  not  complied  with  ;  and  they  denied  that 
the  respondent,  since  the  death  of  Gardoqui, 
had  applied  to  the  appellants  for  an  account,  &c. 
3OO*]  *That  the  appellants  were  willing 
and  ready  to  come  to  an  account  with  the 
respondent,  and  to  pay  him  whatever,  upon 
such  an  account,  might  appear  to  be  due  to  the 
estate  of  Gardoqui,  if  the  respondent  was  in 
possession  of  the  written  acknowledgment, 
without  the  delivery  of  which  to  the  appellants, 
they  insisted  that  it  would  be  dangerous  and 
unsafe  for  them  to  pay  to  the  respondent  any 
part  of  the  money  which  may  be  due  thereon. 

To  this  answer  the  respondent  filed  a  repli- 
cation ;  but  no  witnesses  were  examined  on 
either  side. 

On  the  17th  day  of  May,  1800,  His  Honor  the 
Chancellor  referred  it  to  one  of  the  masters  in 
chancery,  to  take  and  state  the  account  between 
the  parties,  and  to  make  report  thereon. 

On  the  26th  day  of  June,  1800,  the  master  to 
whom  the  reference  was  made  reported  that 
the  accounts  annexed  to  the  answer  of  the  ap- 
pellants, contained  a  correct  statement  of  the 
matters  in  controversy  between  the  parties,  and 
of  their  respective  advances  and  disbursements 
in  relation  thereto ;  that  after  deducting  the 
sum  of  $597.50,  for  Don  Diego  De  Gardoqui's 
proportion  of  debts  irrecoverable,  and  of 
storage,  there  was  a  balance  due  to  his  estate, 
from  the  appellants,  of  $9,632.77,  and  that 
upon  this  balance,  he  (the  master)  had  calcu- 
lated interest  at  seven  per  cent,  from  the  6th 
day  of  September,  1794,  when  the  appellants 
closed  the  accounts  relating  to  those  advent- 
ures, to  the  date  of  the  report,  to  $3,918.68, 

706 


which,  being  added  to  the  principal  sum,  made- 
a  balance  of  $13,551.45,  due  from  the  appel- 
lants to  the  estate  of  Gardoqui. 

On  the  18th  day  of  September,  1800,  the 
Chancellor  ordered  that  the  report  stand  con- 
firmed, unless  cause  were  shown  to  the  contrary 
in  eight  days. 

No  cause  having  been  shown  against  the 
confirmation  of  the  report,  the  cause  was 
finally  heard  on  the  6th  day  of  May,  1801. 
The  appellants'  counsel  insisted  : 

*1.  That  the  appellants  ought  not  to  [*3O7 
be  charged  with  any  interest. 

2.  That  in  case  the  written  acknowledgment 
above  mentioned  was  not  returned  to  the- 
appellants,  they  ought  not  to  pay  any  money 
to  the  respondent,  without  being  properly  in- 
demnified against  the  acknowledgment. 

The  Chancellor,  on  the  6th  day  of  May, 
1801,  decreed  that  the  report  stand  confirmed, 
and  that  the  appellants,  upon  the  respondent's 
giving  siich  indemnity  against  the  account- 
able receipt  in  the  appellants' answer  set  forth, 
as  in  the  opinion  of  one  of  the  masters  in 
chancery  should  be  adequate,  pay  to  the  re- 
spondent the  sum  reported  due  with  interest, 
until  the  day  of  payment,  with  costs  to  be- 
taxed  by  a  master. 

From  that  part  of  the  decree  allowing  inter- 
est, the  defendants  below  appealed,  and  they 
insisted  that  the  interest  ought  to  be  disal- 
lowed— 

1.  Because  there  was  no  default  in  the  appel- 
lants in  not  paying  the  money,  and,  therefore, 
they  ought  not  to  be  charged  with  payment  of 
interest. 

2.  Because  it  was  entirely  owing  to  the 
negligence  of  the  respondent,  or  his  intestate, 
that  the  balance  was  not  paid  long  ago.  It  was 
by  his  fault  that  the  note  was  lost,  and  he 
never  offered  an  indemnity. 

3.  Because  the  account  was  never  settled 
between  the  parties. 

The  respondent,  on  the  contrary,  insisted 
that  the  interest  ought  to  be  allowed — 

1.  Because  it  appeared,  from  the  master's 
report,  that  the  principal  sum  reported  by  him 
to  be  due  from  the  appellants  to  the  respond- 
ent, is  the  balance  of  the  principal  sum  stated 
and  admitted  by  the  appellants  themselves,  on 
the  6th  September,  1794,  to  be  then  due  to  the 
respondent's  intestate. 

2.  Because  it  did  not  appear  that  the  balance 
so  stated  and  admitted  by  the  appellants  to  be 
due,  had  ever  been  tendered  in  due  form  of 
law,  either  to  the  respondent's  *intes-  [*3O8 
tate,   or  to  the  respondent ;   neither  do  the 
appellants  allege  or  pretend  that  the  balance 
has  remained  in  their  hands,  without  being 
used  for  their  own  private  benefit. 

3.  Because  interest  is  nothing  more  than 
the  compensation  which  the  debtor,  who  with- 
holds the  money  of  his  creditor,  pays  to  him 
for  the  profit  which  the  former  has  had  an 
opportunity  of  making  by  the  use  of  the  money 
of  the  latter ;  and  this  compensation  being  dic- 
tated by  justice  and  equity,  is  allowed  both  in 
courts  of  law  and  of  equity. 

4.  Because  it  is  a  settled  rule  at  law  and  in 
equity  that  a  balance  of  a  stated  account  shall 
carry  interest  from  the  time  the  account  is 
stated  and  the  interest  reported  by  the  master 
is  calculated  in  conformity  to  that  rule. 

JOHNSON'S  CASES,  3.. 


1803 


DOMINICK  LYNCH,  ETC.,  v.  JOSEPH  IGNATIUS  DE  VAIR,  ETC. 


308 


Mr.  Hoffman  for  the  appellants. 
Mr.  Troup,  contra. 

RADCMFF,  J.  This  is  an  appeal  from  a 
decree  of  the  late  Chancellor,  by  which  the 
appellants,  who  were  the  defendants  below, 
were  adjudged  to  pay  to  the  respondent  the 
sum  of  $9,632.77,  being  the  balance  of  moneys 
received  by  them  to  the  use  of  the  respondent's 
testator,  Don  Diego  de  Gardoqui,  and  also  the 
further  sum  of  $3,918.68  for  the  interest  of 
that  balance.  The  principal  sum  is  admitted 
by  the  appellants  to  be  due  to  the  respondent, 
and  the  only  question  between  the  parties 
relates  to  the  allowance  of  interest. 

From  the  state  of  the  case  before  this  court, 
it  does  not  appear  how  soon  the  voyages  were 
accomplished,  or  when  the  several  adventures 
terminated.  The  first  account  of  the  proceeds 
appears  to  have  been  rendered  by  the  appel- 
lants on  the  6th  September,  1794,  nearly  four 
years  and  a  half  after  the  commericement  of 
3O9*]  of  the  enterprise.  *By  that  account, 
the  proceeds  were  admitted  to  be  $9,632.77, 
the  principal  sum  above  stated,  which  sum 
was  thereby  acknowledged  to  have  been 
received  by  the  appellants.  The  reason 
assigned  by  them  for  not  paying  it,  as  alleged 
in  their  answer,  is,  that  they  could  not  do  it 
with  safety,  without  the  return  of  the  written 
acknowledgment  above  mentioned  ;  and  that 
on  the  4th  January,  1796,  they  offered  by  letter 
to  come  to  a  settlement  with  the  respondent,  if 
he  would  deliver  up  that  paper.  The  respond- 
ent, who  was  the  complainant  below,  replied 
to  their  answer  and  thereby  put  them  to  the 
proof  of  its  contents.  This  fact,  therefore,  of 
their  offering  to  come  to  a  settlement  on  the 
4th  January,  1796,  is  not  admitted  by  the 
pleadings,  and  there  being  no  proofs  in  the 
cause,  it  cannot  strictly  be  considered  as  in 
evidence.  But  whether  proved  or  not,  I 
think  it  unimportant  to  a  decision  of  the 
merits. 

On  these  facts,  the  respondent  contends  that 
the  appellants  ought  to  be  held  liable  to  the 
payment  of  interest,  on  several  grounds, 
which,  however,  may  be  reduced  to  two :  1st. 
That  the  account  rendered  by  them  on  the  6th 
September,  1794,  is  to  be  considered  as  assented 
or  agreed  to  on  the  part  of  Gardoqui  and  his 
administrator,  the  present  respondent,  and  is 
to  be  viewed  as  an  account  stated  between 
them,  and,  therefore,  carrying  interest.  2d. 
That  the  principal  sum  was  due  at  the  moment 
the  appellants  received  it,  and  they  were 
guilty  of  a  default  in  not  immediately  paying 
it  to  Gardoqui,  and  therefore  ought  to  pay  the 
interest. 

The  first  point,  I  think,  is  not  supported  by 
the  facts.  It  is  true,  the  account  was  ren- 
dered by  the  appellants,  and  a  balance  stated 
by  them  to  be  due  to  Gardoqui,  but  his  assent 
to  that  balance  does  not  appear,  and  the  pre- 
sumption of  acquiescence,  arising  from  his 
silence,  is  rebutted  by  the  conduct  of  the  pres- 
ent respondent,  and  the  claim  set  up  in  his 
bill,  filed  in  the  court  below.  He  does  not,  in 
his  bill,  proceed  on  the  principle  of  an  account 
3 1O*]  stated,  *or  any  precise  balance  admitted 
to  be  due,  but  treats  the  demand  as  open  and 
unsettled,  and  prays  a  discovery  and  an 
account  de  now  of  the  whole  proceeds,  and 
JOHNSON'S  CASES,  3. 


the  payment  of  the  balance  which  shall  be 
found  due  on  such  account.  He  thereby  dis- 
affirmed any  previous  settlement,  and  de- 
stroyed the  presumption  of  an  acquiescence 
in  the  account,  as  it  had  been  rendered  by  the 
appellants.  If  the  account  had  been  in  fact 
settled,  he  might,  as  has  been  observed,  have 
sued  at  law  without  appealing  to  a  court  of 
equity. 

2.  But  on  the  second  ground,  I  think  the 
respondent  is  entitled  to  recover  the  interest. 
The  proceeds  of  these  speculations  were 
received  by  the  appellants  in  cash.  The  pro- 
portion due  to  Gardoqui  was  so  much  money 
in  their  hands,  received  to  his  use.  It  is  a  set- 
tled rule  that  money  received  to  the  use  of 
another,  and  improperly  retained,  always  car- 
ries interest.  In  this  case,  too,  the  appellants 
expressly  agreed  and  promised  to  pay  the 
money  when  received.  But  they  attempt  to 
excuse  the  nonpayment,  by  alleging  that  the 
redelivery  of  the  written  acknowledgment  was 
essential  to  their  security.  The  idea  of  danger 
from  this  paper  is  altogether  imaginary,  it  is 
no  more  than  an  accountable  receipt,"  an  evi- 
dence of  a  special  agreement  by  simple  con- 
tract merely,  and  not  an  instrument  which, 
under  any  circumstances,  can  operate  to  their 
prejudice.  From  its  nature,  it  is  incapable  of 
being  negotiated,  and  by  a  counter  receipt,  or 
the  payment  of  the  money,  would  be  effect- 
ually discharged.  The  nondelivery  of  this 
harmless  paper  cannot,  therefore,  justify  the 
appellants  in  retaining  the  money.  I*  am, 
accordingly,  of  opinion,  that  the  decree  of  the 
Chancellor,  in  respect  to  the  interest,  was 
proper,  and  ought  to  be  affirmed.  But  I  am 
also  of  opinion,  that  it  is  incorrect  in  respect 
to  the  indemnity  which  it  requires  against  this 
innocent  receipt.  In  this  particular  it  is  in- 
consistent in  principle.  If  an  indemnity  be 
necessary,  the  appellants  were  not  in  fault, 
and  ought  not  to  be  liable  *to  the  pay-  [*3 1 1 
ment  of  interest,  nor  to  the  costs  which  were 
awarded  against  them  in  the  suit  below.  If  it 
was  unnecessary,  it  ought  not  to  have  been 
decreed.  No  party  ought  to  be  compelled  to 
do  a  useless  or  nugatory,  act,  which  may  be 
attended  with  real  inconvenience,  and  particu- 
larly so  in  the  case  of  an  administrator,  like 
the  present,  whose  administration  of  his  intes- 
tate's estate,  may  be  incommoded  and  embar- 
rassed by  the  responsibility .  which  might  be 
apprehended  to  flow  from  it. 

On  the  whole,  I  am  of  opinion  that  the 
decree,  as  to  the  allowance  of  interest,  ought 
to  be  affirmed  ;  and  as  to  the  indemnity  which 
it  requires,  it  ought  to  be  so  amended  as  to 
dispense  with  that  condition. 

This  being  the  unanimous  opinion  of  the 
court,  it  was  thereupon  ordered,  adjudged 
and  decreed,  that  the  decree  of  the  Court  of 
Chancery  be  affirmed,  as  to  the  sum  decreed  to 
be  paid  by  the  appellants  to  the  respondent; 
but  that  the  same  be  so  modified  and  altered 
as  to  dispense  with  the  security  thereby  re- 
quired. 


Judgment  of  affirmance. 


Cited  in-5  Cow.,  615. 


re; 


311 


COURT  OF  ERRORS,  STATE  OK  NEW  YOKK. 


1803 


EZRA  HICKOCK,  Appellant, 

V. 

THOMAS  SCRIBNER,  Respondent. 

1.  Assignment  of  Land*  and  Lease  in  Fee  — 
Security —  Contingent  Agreement  to  He-assign 
Possession  —  Sale  —  Bill  to  Redeem  —  Non- 
joinder of  Parties  —  Amendment — Costs.  2. 
BiU  in  Equity — Necessary  Parties  —  Demur- 
rer—  Amendment. 

A  being  indebted  to  B  on  the  23d  March,  1787, 
assigned  to  hi  in  as  security  for  the  payment  of  the 
debt,  certain  lands  and  a  leatee  in  fee  for  the  same. 
B  executed  a  bond  to  A,  conditioned  that,  in  case 
the  debt  and  interest  were  paid  on  or  before  the 
first  of  June,  1788,  he  would  re-assign  the  lease  and 
premises  to  A,  and  give  him  a  receipt  for  the  debt. 
The  debt  not  being  paid  at  the  time,  B  took  posses- 
sion of  the  premises  under  the  assignment,  in  July, 
1793,  and  assigned  his  interest  in  the  lease  and  prem- 
ises to  C  and  D,  who  took  possession  thereof.  A 
afterwards  brought  a  bill  to  redeem  the  premises, 
on  the  ground  that  the  transaction  between  him 
and  B  amounted  to  a  mortgage,  and  on  appeal  from 
the  decree  of  the  Court  of  Chancery,  it  was  held 
that  C  and  D  ought  to  have  been  made  parties  to 
the  suit,  and  that  the  decree  of  the  court  below,  for 
that  reason  was  reversed,  with  liberty  to  the  respond- 
ent to  have  his  bill  dismissed  in  the  court  below,  or 
to  amend  it,  by  adding  all  proper  parties ;  and  in 
that  case,  the  evidence  taken  to  stand,  as  between 
the  present  parties,  saving  all  just  exceptions,  and 
that  each  party,  in  this  court,  pay  his  own  costs. 

Citations— 1  Cas.  in  Cha.,  87;  1  Vern.,  110;  2Atk., 
51 ;  2  Atk.,  238 ;  1  Ch.  Cas.,  2,  3 ;  15  Vin.,  442,  443 ;  3  P. 
Wins.,  311,  note;  Bunb.,  53 :  3  Atk.,-238 ;  3  Atk.,  39 ;  3 
Eq.  Abr.,  594,  sec.  3  ;  1  Ch.  Cas.,  2. 

rpHIS  case  came  before  the  court  on  appeal 
JL  from  the  decree  of  the  Court  of  Chancery. 
312*]  *A  preliminary  question  was  raised, 
and  to  which  the  arguments  of  the  counsel 
and  the  decision  of  the  court  were  confined, 
namely,  whether  all  proper  parties  to  the  suit 
were  before  the  court  below. 

It  is  unnecessary,  therefore,  to  state  the 
facts  in  the  case,  further  than  may  be  suffi- 
cient to  understand  the  point  decided. 

Thomas  Scribner,  the  respondent,  being  in- 
debted to  Ezra  Hickock,  the  appellant,  in  the 
sum  of  £143  18*.  M.,  on  the  23d  of  March, 
1787,  assigned  to  him,  as  a  security  for  the 
payment  of  that  debt,  certain  lands  in  the 
patent  of  Kayaderosseras,  together  with  a 
lease  in  fee,  which  he  held  for  the  same. 
Hickock  thereupon  executed  to  Scribner  a 
bond,  in  the  penalty  of  £400,  conditioned  that, 
in  case  the  debt,  with  interest,  was  paid  on  or 
before  the  first  day  of  June.  1788,  he  would 
re-assign  the  lease  to  Scribner,  and  pass  his 
receipt  for  the  debt.  On  the  19th  of  January, 
1789,  the  debt  and  interest  being  unpaid,  the 
parties  in  this  cause,  and  John  Mahony,  who 
was  then  in  possession  of  the  premises,  en- 
tered into  articles  of  agreement,  by  which  the 


NOTE.— Parties  in  equtty-^what  necessary. 

That  all  who  may  tie  affected  by  the  demand  should 
be  made  parties,  see  Story's  Equity  Jurisprudence, 
Vol.  I.,  sec.  28,  and  Vol.  II.,  sec.  1526 ;  Story's  Eq.  PL, 
sec.  72-238;  Mitford  and  Tyler,  Eq.  PI.  and  Pr.,  18, 
134.  and  256 ;  Cooper  on  Eq.  PL,  21-12 ;  West  v.  Ran- 
dall, 2  Mason,  190 ;  Brasher  v.  Van  Cortland,  2  Johns. 
Ch.,  242 ;  De  la  Vergne  v.  Evertson,  1  Paige,  181 ; 
Russell  v.  Clark,  7  Cranch,  79 ;  Mechanics'  Bank  v. 
Set-on,  1  Pet.,  299 ;  Story  v.  Livingston,  13  Pet.,  .359; 
McConnell  v.  McConnell,  11  Vt.,  290;  New  London 
Bank  v.Lee,  11  Conn.,  112;  Prentice  v.  Kimball,  19 
111.,  320;  Bailey  v.  Mayrick,  36  Me.,  50;  Armstrong 
v.  Pratt,  2  Wis.,  299. 

708 


parties  to  this  suit,  Hickock  and  Scribner, 
jointly  covenanted  that  Mahony  should  keep 
and  remain  in  quiet  possession  until  the  15th 
of  November  then  next  ensuing,  of  a  certain 
saw-mill  (part  of  the  premises),  and  which  is 
described  in  the  covenant  as  lately  the  prop- 
erty of  Scribner,  and  then  the  property  of 
Hickock  ;  and  Mahony,  on  his  part,  cove- 
nanted, among  other  things,  to  allow  Scribner 
the  liberty  of  sawing  logs  until  the  time  above 
mentioned,  when  he  was  to  deliver  the  saw- 
mill to  Hickock.  Hickock,  by  his  agent, 
accordingly  received  possession  of  the  mill, 
and,  on  the  9th  day  of  July,  1792,  in  consider- 
ation of  the  sum  of  £200,  released  his  right  in 
the  premises  to  Darling  Hickock  and  Daniel 
Boardman.  Great  improvements  had  been 
made  upon  the  premises  since  the  date  of  the 
articles  of  agreement,  the  extent  or  effect  of 
which  it  is  not  necessary  here  to  state.  The 
respondent  brought  his  bill  *in  the  [*313 
court  below,  to  redeem  the  lands,  on  the 
ground  that  the  original  transaction  was 
to  be  deemed  a  mortgage,  and  that  no  sub- 
sequent transaction  had  taken  away  his  right 
of  redemption. 

In  the  bill  to  redeem,  Darling  Hickock  and 
Daniel  Boardman  were  not  made  parties. 
The  appellant,  in  his  answer,  disclosed  the 
sale  to  them,  and  objected,  on  the  hearing  of 
the  cause,  in  the  court  below,  that  they  were 
not  made  parties,  which  objection  was  over- 
ruled ;  and  the  court  below,  in  its  decree,  or- 
dered that  the  appellant  deliver  up  to  the 
respondent  the  mortgage  deed,  to  be  can- 
celled, and  also  the  possession  of  the  premises  ; 
but  no  notice  was  taken,  in  any  order  or  decree 
in  the  court  below,  of  the  assignees  of  the 
appellant. 

The  case  was  argued  by 

Mr.  Hoffman  for  the  appellant,  and  by 
Messrs.   Emott   and    P.   W.    Yates    for  the 
respondent. 

RADCLIFF,  J.  The  facts  necessary  to  be 
noticed,  in  order  to  decide  the  preliminary 
question,  which  has  been  discussed,  are  briefly 
as  follows : 

The  respondent,  on  the  23d  of  March,  1787, 
being  indebted  to  the  appellant,  in  the  sum  of 
£143  18s.  dd.,  assigned  to  him  as  a  security 
for  the  payment  of  this  debt  a  certain  lease, 
under  which  the  respondent  then  held  the 
premises  in  question ;  and  the  appellant,  at 
the  same  time,  executed  to  the  respondent  a 
bond,  conditioned  that  if  the  debt,  with  the 
interest,  should  be  paid  by  the  first  of  June, 
1788,  the  appellant  should  re-assign  the  lease 
to  the  respondent ;  that  the  money  not  being 
paid  to  the  appellant,  in  the  year  1788,  as 
stated  by  the  respondent,  or  in  January,  1789, 
as  alleged  by  him,  took  possession  of  the 
premises  under  the  assignment.  The  respond- 
ent contends  that  the  assignment  and  bond 
must  be  considered  as  one  transaction,  and  as 
creating  a  mortgage  *of  the  estate  only.  [*3 14 
The  appellant  insists  that  it  was  not  a  mort- 
gage, and  that  if  it  was,  he  took  possession  in 
pursuance  of  a  new  agreement,  by  which  the 
respondent  relinquished  all  title  to  the  equity 
of  redemption,  and  that  he,  the  appellant, 
accepted  the  premises  in  satisfaction  of  his 
JOHNSON'S  CASES,  3. 


1803 


EZRA  HICKOCK  v.  THOMAS  SCRIBNKU. 


314 


debt.  This  agreement  is  also  denied,  and  j 
presents  a  question  on  the  evidence  merely,  I 
which  I  think  it  is  unnecessary  now  to  deter-  \ 
mine.  It  further  appears  that  subsequent  to 
the  assignment,  to  wit,  on  the  16th  of  July, 
1792,  he  again  assigned  the  lease  to  his  son,  Dar- 
ling Hickock,  and  his  son-in-law,  Daniel  Board- 
man,  who  then  were,  and  since  have  been,  in 
possession  of  the  premises,  claiming  them 
under  that  assignment.  I  state  this  fact  to 
appear,  independent  of  its  being  alleged  in  the 
answer  of  the  appellant,  because  it  is  admitted 
that  an  original  assignment  of  similar  import 
was  agreed  by  the.  counsel  in  writing,  to  be 
read  in  evidence  in  the  court  below,  and  that 
the  copy  now  produced  was  afterwards  there 
read,  and  used  before  the  master  and  auditors 
as  a  substitute  for  the  original,  which  was 
said  to  be  lost  or  mislaid,  and  the  copy  comes 
up  regularly  among  the  other  proofs  in  the 
cause.  It  is,  therefore,  properly  in  evidence. 
To  this  it  is  answered  that  the  assignment 
to  Hickock  and  Boardman  was  not  bonafide, 
but  accompanied  with  full  notice  of  the  situa- 
tion of  the  appellant's  title,  an'd  therefore  col- 
lusive and  void.  It  was  rightly  admitted  that 
if  made  bonstfide,  and  the  assignees  received 
it  without  such  notice,  they  would  stand  in  the 
light  of  innocent  purchasers,  and  ought  not  to  j 
be  affected  by  any  secret  condition  attending 
the  previous  assignment  to  the  appellant. 

On  this  state  of  the  case,  without  entering 
more  minutely  into  the  testimony,  I  am  of 
opinion  that  the  decree  was  erroneous  and 
ought  to  be  reversed — 

1.  Because  Hickock  and  Boardman,  and  the 
several  other  persons  holding  an  interest  de- 
rived from  the  assignment  to  them,  ought  to 
315*]  have  been  made  parties  to  a  *siiit,  in 
which  the  complainant  claims  the  redemption 
and  seeks  a  reconveyance  of  property  vested  in 
them.  If  they  were  apprised  of  the  appel- 
lant's title,  as  a  mortgagee  merely,  and  a  fraud 
existed,  they  were  parties  to  the  fraud.  It  is 
obvious  that  the  decision  of  this  question  must 
immediately  affect  their  rights.  If  settled  in 
favor  of  the  respondent,  it  goes  to  establish  a 
fact  which  at  once  determines  their  title  to  the 
estate.  It  was,  therefore,  necessary  to  make 
them  parties.  I  am  not  inclined  to  look  for 
authorities  in  support  of  an  opinion  on  this 
point.  I  consider  it  a  maxim  of  natural  jus- 
tice and  of  universal  law,  an  axiom,  not  now 
to  be  proved,  that  no  man  ought  to  be  affected 
in  his  rights  by  the  judgment  or  decree  of  any 
court  without  an  opportunity  of  being  pre- 
viously heard  in  his  defense.  Hickock  and 
Boardman,  the  assignees  of  the  appellant,  and 
the  numerous  other  persons  claiming  under 
them,  have  not  had  this  opportunity.  Hick- 
ock and  Boardman,  at  least,  are  implicated  in 
the  charge  of  fraud.  It  is  immaterial  what 
may  be  our  opinion  as  to  this  charge,  on  the 
evidence  now  before  us.  It  is  sufficient  that 
it  is  made  and  litigated  between  the  parties. 
Hickock  and  Boardman  have  an  equal  right 
to  answer  it,  to  meet  it  with  proofs,  and  to 
defend  the  title  for  themselves.  The  case  is 
still  stronger,  as  it  respects  the  other  persons 
claiming  under  them.  I  believe  they  are  not 
immediately  charged  with  a  knowledge  of  the 
fraud,  nor  can  it  be  presumed  that  at  the  time 
of  their  becoming  interested,  they  were  all 
JOITNSON'B  CASES,  3. 


apprised  of  the  situation  of  the  appellant's 
title.  They,  therefore,  may  be  innocent  pur- 
chasers, and  in  that  case  ought  not  to  be  dis- 
turbed by  the  decree.  If  the  respondent  had 
not  sought  to  redeem  the  mortgage,  and  to 
obtain  a  reconveyance  and  possession  of  the 
premises,  a  decree  might  probably  have  been 
made  against  the  appellant  for  the  value  of 
the  premises,  deducting  the  amount  of  the 
mortgage  and  improvements,  &c.,  on  the  prin- 
ciple, *that  the  title  had  been  conveyed  [*3 1 0 
to  innocent  purchasers,  without  notice,  who 
could  not  be  affected.  So,  also,  on  an  assign- 
ment of  the  promises,  without  the  consent  of 
the  mortgageor,  he  might  have  been  held 
liable  for  the  subsequent  profits,  but  these  do 
not  appear  to  have  been  the  objects  of  the  re- 
spondent, or  of  the  decree.  He  charges  the 
subsequent  purchasers,  or  some  of  them,  with 
being  parties  to  the  fraud,  and  seeks  a  re-con- 
veyance of  the  title  and  a  delivery  of  the  pos- 
session already  vested  in  them.  It  was,  there- 
fore, indispensable  to  make  them  parties. 

2.  The  decree,  I  think,  is  also  erroneous  in 
another  particular.  It  requires  the  appellant, 
on  being  paid  his  original  debt  and  interest,  to 
re-assign  the  lease  to  the  respondent,  and  to 
redeliver  the  possession  of  the  premises  to 
him.  The  lease  was,  in  fact,  previously 
assigned,  and  the  possession  delivered  to  Hick- 
ock and  Boardman.  I  say,  in  fact,  assigned, 
because,  whether  fraudulently  or  not,  is  im- 
material to  this  question. 

Admitting  the  fraud,  still  it  was  not  in  the 
power  of  the  appellant  to  compel  a  reconvey- 
ance from  Hickock  and  Boardman,  either  to 
himself  or  to  any  other.  He  could  not  say  to 
them,  I  have  committed  a  fraud  in  making  the 
assignment  to  you,  I  therefore  demand  a  re- 
conveyance ;  for  it  is  a  maxim  that  no  one  can 
found  a  right  on  his  own  fraudulent  acts,  even 
against  a  particeps  crfminis.  The  decree  was, 
therefore,  morally  impossible  to  be  performed, 
and  must  necessarily  be  erroneous.  If  it  be 
true  that  the  assignees  of  the  appellant  and 
those  claiming  under  him,  were  connusant  of 
the  fraud,  the  respondent,  if  he  sought  a  re- 
conveyance, ought  to  have  made  them  parties  ; 
and  the  title  being  vested  in  them,  if  they  had 
notice  of  the  respondent's  equity,  they  might 
have  been  decreed  to  reconvey.  ( 1  Cas.  in 
Ch.,  87.; 

The  general  rule  on  the  subject  of  parties, 
and  the  manner  in  which  the  want  of  them  may 
be  supplied,  has  been  stated  by  the  counsel  on 
the  argument.  That  rule  *is,  that  the  [*3 1 7 
bill  must  call  all  necessary  parties,  who  may 
be  affected  by  the  demand  before  the  court. 
If,  upon  the  face  of  the  bill,  it  is  apparent 
that  any  whose  rights  may  be  affected  are  not 
made  parties,  the  defendant  may  demur,  or  if 
the  want  of  parties  do  not  appear,  he  may 
plead  it.  ( 1  Vern.,  110  ;  2  Atk.,  51.)  If  it  be 
disclosed  by  the  answer,  the  complainant  may 
immediately  amend,  by  adding  the  proper  par- 
ties ;  and  a  bill  in  chancery  usually  contains  a 
corresponding  clause,  praying  that  the  names 
of  all  confederates,  when  discovered,  may  be 
inserted.  That  court  is,  at  all  times,  vigilant 
in  requiring  proper  parties  against  whom  its 
decrees  are  to  operate.  It  will  arrest  the  pro- 
ceedings in  any  stage  of  the  cause,  in  order  to 
obtain\hem,  and  will  r.ot  finally  decree,  if  the 

709 


COURT  OP  ERRORS,  STATE  OF  NEW  YORK. 


1803 


want  of  parties  appear  on  the  hearing  of  the 
cause.  If  it  does,  the  decree  may  be  reversed, 
and  if  not  reversed,  yet  none  but  such  as  were 
parties  to  the  suit,  and  their  representatives, 
can  be  bound  by  it.  On  these  general  prin- 
ciples, I  think  the  present  decree  is  certainly 
erroneous.  I  have  not  particularly  noticed 
the  authorities  on  this  subject,  because  they 
are  to  be  found  in  almost  every  book  of  prac- 
tice. 

The  case  of  Tates  v.  Ilambly  (2  Atk.,  238), 
mentioned  by  the  repondent's  counsel,  does  not 
warrant  the  position  for  which  they  contend  ; 
neither  does  the  case  of  Venable  v.  Foyle  ( 1  Ch. 
Cas. .  2,  3 ;  15  Vin. ,  442,  443 ),  which  was  princi- 
pally relied  upon.  In  the  last  case,  it  appears  bjp 
the  original  report  that  the  bill  was  filed  against 
the  assignee  as  well  as  the  mortgagee,  that  the 
latter  pleaded  several  outlawries  against  the 
complainant,  in  bar  of  her  suit,  for  which 
reason  she  could  not  proceed  against  him. 
The  assignee,  however,  answered  on  the  mer- 
its, and  in  this  situation  of  the  cause  it  was 
decreed  among  other  things,  that  he  should 
convey  and  procure  all  claiming  under  him  to 
convey  to  the  complainant,  free  from  incum- 
brances.  Afterwards,  Foyle,  the  assignee, 
finding  it  impossible  to  execute  this  decree,  on 
318*]  the  very  *objection  now  made,  filed  a 
cross-bill  to  be  relieved  against  it,  offering  to 
perform  as  far  as  he  was  able,  and  alleging  a 
fraud  between  the  mortgageor  and  mortgagee. 
At  the  same  time  another  bill  was  exhibited 
by  the  mortgagee  against  the  mortgageor 
claiming  the  premises  by  a  title  paramount, 
and  this  claim  being  supported,  the  cause 
went  off  on  that  ground.  The  case  is,  there- 
fore, not  applicable,  and  I  think,  in  its  final 
disposition,  rather  tends  to  a  contrary  result. 

On  the  whole,  therefore,  I  am  of  opinion 
that  the  several  decretal  orders  in  this  cause 
be  reversed,  and  that  the  respondent  have 
leave  to  dismiss  his  own  bill  in  the  court 
below,  or  amend  it  by  adding  new  parties,  as 
he  shall  be  advised.  I  am  sensible  that  it  is  in 
our  discretion  finally  to  dismiss  the  bill ;  but 
considering  that  the  appellant  did  not  appeal 
from  the  first  decretal  order  on  which  this 
question  arose,  and  has  suffered  the  respond- 
ent to  go  to  the  examination  of  witnesses,  and 
a  final  hearing  in  the  court  below,  I  think  he 
has  also  been  guilty  of  a  laches,  and  that  the 
respondent  ought  to  be  permitted  to  dismiss 
his  bill,  or  add  new  parties  as  he  shall  elect. 

KENT,  ./.  A  preliminary  question  has  been 
raised  and  argued  in  this  cause,  to  wit,  whether 
all  proper  parties  were  made  defendants  in  the 
court  below. 

Until  this  question  is  decided,  it  has  been 
thought  unnecessary,  and  indeed  premature, 
to  investigate  the  merits  of  the  controversy. 

It  is  proved  that  an  assignment  of  the  inter- 
est of  the  appellant  was  made  at  the  time,  and 
in  the  manner  stated  in  the  answer.  This  ap- 
pears, also,  from  a  copy  of  the  original  assign- 
ment among  the  exhibits  in  the  cause. 

It  is  a  principle  well  settled  that  all  persons, 
materially  interested  in  the  subject,  ought  to 
be  parties  to  the  suit,  so  that  a  complete 
decree  may  be  made.  The  object  of  this  rule 
is  to  make  the  performance  of  the  order 
319*]  *of  the  court  perfectly  safe  to  those 
710 


who  are  compelled  to  obey  it,  and  to  prevent 
future  litigation.  And  it  is  a  general  rule  that 
every  person  is  to  be  adjudged  a  party  in 
interest,  against  whom,  if  the  cause  be  brought 
to  a  hearing,  the  plaintiff  can  have  a  decree. 
(3  P.  Wms.,  311,  note.) 

To  apply  this  rule  to  the  present  case.  If 
the  fact  be  (which  we  must  take  for  granted) 
that  the  appellant  did,  in  July,  1792,  assign  or 
convey  all  his  right  in  the  premises  to  Darling 
Hickock  and  Daniel  Boardman,  for  a  valuable 
consideration,  the  rule  I  have  stated  has  not 
been  observed.  The  object  of  the  suit  below 
was  to  be  re-invested  with  the  title  to  the 
premises,  and  this  could  not  possibly  be  ob- 
tained, without  recalling  the  title  transferred 
to  the  assignees  of  the  appellant  ;  but  that  title 
cannot  be  recalled  without  their  consent,  or 
until  they  have  had  an  opportunity  to  be  heard. 
When,  therefore,  the  decree  ordered  the  ap- 
pellant to  deliver  the  possession  of  the  premises 
to  the  respondent,  it  ordered  him  to  do  what, 
in  judgment  of  law,  was  impossible,  since  he 
had  no  longer  any  control  over  the  title  or 
possession.  Oile  of  the  cases  cited  is  decisive 
to  show  what  ought  to  have  been  the  course 
of  proceeding  in  this  case.  (Bunb. ,  53  ;  3  Atk. , 
238.)  A  bill  was  brought  to  redeem,  and  the 
defendant,  in  his  answer,  set  forth,  that  the 
right  was  not  in  him,  but  he  was  only  trustee 
for  A,  and  he  made  this  objection  at  the  hear- 
ing, that  A  ought  to  have  been  made  a  party, 
and  as  the  plaintiff  had  omitted  to  amend  his 
bill  and  make  A  a  party  after  the  disclosure 
by  the  plea,  the  bill  was  dismissed.  So  in  the 
present  case,  as  the  appellant  disclosed  in  his 
answer  that  the  title  to  the  premises  was  not 
in  him,  but  in  two  other  persons,  and  made 
that  objection  at  the  hearing,  the  complainant 
ought  to  have  amended  his  bill,  or  it  should 
have  been  dismissed.  The  only  question  that 
seems  to  have  been  made  in  the  books  where  a 
mortgagee  has  assigned  over  the  mortgage, 
and  a  bill  is  brought  to  redeem,  is  not 
*whether  the  assignee  ought  not  to  be  [*32O 
a  party,  but  whether  the  mortgagee  must  be 
joined  with  him.  (3  Atk.,  39  ;  3  Eq.  Abr., 
594,  sec.  3.)  The  cases  are  pro  and  con  on 
that  point.  That  the  assignee  must  be  a  party 
is,  indeed,  a  rule  founded  on  such  obvious 
principles  of  equitable  policy,  and  so  conso- 
nant to  the  general  current  of  authority,  that 
I  perceive  no  ground  to  deny  or  doubt  it. 

The  only  case  that  was  cited  by  the  respond- 
ent's counsel,  as  containing  a  contrary  doctrine, 
was  the  ancient  case  of  Venables  v.  Foyle.  (1 
Ch.  Cas.,  2.)  On  examination,  that  case  will 
be  found  directlv  against  the  position  for  which 
it  was  cited.  Tlie  mortgageor  filed  his  bill  to 
redeem  against  the  mortgagee,  and  his  assignee 
also,  and  both  appeared  to  the  suit.  The 
decree  was,  afterwards,  that  the  original  mort- 
gagee should  account  for  the  profits,  both  before 
and  after  the  assignment,  and  should  procure 
a  conveyance  to  the  plaintiff.  This  he  was 
unable  to  do,  and  was  obliged  to  exhibit  a 
cross-bill  against  the  plaintiff,  in  which  he 
stated  his  inability  to  comply  with  the  former 
decree.  This  produced  another  bill  by  the 
assignee,  and  the  result  of  this  multifarious 
litigation  was,  that  the  original  decree  was  va- 
cated. As  far  as  the  decree  in  the  case  cited 
ordered  the  mortgagee  to  reconvey  and  pro- 
JOHNSON'S  CASES,  3. 


1803 


AYLMER  JOHNSON  v.  EPHRALM  HART. 


320 


•cure  a  reconveyance,  it  proved  to  be  idle  and  i 
nugatory  ;  hut  it  goes  to  establish  the  general  i 
rule  that  the  assignee  of  a  mortgagee  is  a  nec- 
essary party  to  the  suit. 

It  was  suggested  and  urged  at  the  argument 
that  the  assignment  by  the  appellant  was  col- 
lusive and  fraudulent,  and  consequently,  that 
it  was  not  to  be  regarded.  Whether  this  be  so 
or  not,  it  cannot  be  a  just  ground  for  decision, 
to  the  prejudice  of  the  assignees,  until  they 
.are  brought  into  court  to  receive  and  repel  the 
suggestion. 

It  has,  however,  been  observed,  that  the  de- 
•cree  cannot  affect  them,  as  it  is  only  compul- 
sory upon  the  appellant.  But  this  shows 
strongly  the  error  of  the  decree.  It  cannot 
321*]  *be  obeyed  by  the  appellant.  The 
rights  of  all  the  parties  interested  are  not  settled, 
and  it  leads  necessarily  to  fresh  litigation.  If 
the  assignment  was  collusive,  the  assignees 
ought  to  have  been  brought  in  and  ordered  to 
•convey. 

[t  has  been  observed,  that  admitting  the  force 
-of  this  objection,  the  appellant  comes  now  too 
late  to  object  to  the  want  of  parties,  and  that 
he  ought  to  have  appealed  from  the  first  de- 
cree in  the  cause.  There  is  some  weight  in 
this  remark,  and  it  may  be  good  ground  to 


AYLMER  JOHNSON,  Appellant, 

v.    . 
EPHRAIM  HART,  Respondent. 

Foreclosure — Mortgage  of  Third  Party — Held  CM 
Security — Parties — Non-joinder —  Dismissal — 

Costa. 

A  being1  indebted  to  B  by  a  promissory  note,  in  the 
sum  of  81,191  as  collateral  security  for  the  payment, 
indorsed  to  B  another  note  made  by  0  to  A  or  order, 
for  $1,551,  and  at  the  same  time  delivered  to  B  a 
mortgages  executed  by  C  to  A,  to  secure  the  pay- 
ment ot  the  note  so  indorsed ;  but  made  no  assign- 
ment of  the  mortgage  in  writing.  B  filed  a  bill 
against  C  for  the  sale  of  the  mortgaged  premises,  to 
pay  his  note.  It  was  held,  that  by  the  indorsement 
of  the  note,  and  delivery  of  the  mortgage,  B  had  an 
equitable  (if  not  a  legal)  interest  in  the  mortgage  ; 
but  that  A,  if  he  had  not  the  legal  estate,  was  inter- 
ested ui  the  subject,  and  ought  to  have  been  made  a 
party,  as  he  was  entitled  to  recover  back  the  mort- 
gage on  payment  of  the  $1,491.  And  the  decree  of 
the  Court  of  Chancery  ordering  a  sale,  &c.,  was  re- 
versed, with  liberty  to  B  to  have  his  bill  dismissed, 
or  to  add  proper  parties,  on  payment  of  the  costs  in 
the  court  below. 

Citation— 2  Burr.,  978,  979. 

ON  the  8th  September,  1799,  the  respondent 
filed  his  bill  in  the   Court  of  Chancery, 
against  the  appellant  and  Jonas  Platt.     The 


withhold  any  costs  from  the  appellant,  but  it   bill  stated  that  on  the  2d  September,  1796,  the 


•cannot  operate  further.  The  decree  is  radi- 
-cally  bad,  for  the  reasons  I  have  suggested, 
-and"  it  is  the  duty  of  this  court  to  take  notice  of 
the  error.  We  perceive,  as  the  decree  stands, 
that  it  cannot  be  obeyed  ;  that  the  respondent 
will  fail  of  obtaining  the  land  ;  that  it  imposes 
.an  insurmountable  difficulty  on  the  appellant ; 
that  if  the  assignment  be  really  fraudulent, 
the  assignees  who  ought  to  convey,  are  not 
brought  in  and  made  to  convey.  I  am  of 
•opinion,  therefore,  that,  according  to  the  prac- 
tice of  the  English  House  of  Lords  in  like 
•cases  (3  Bro.  Parl.  Cas.,  122),  the  several  de- 
crees must  be  reversed  for  want  of  proper  par- 
ties, and  that  this  be  done  without  prejudice 
to  the  merits  of  the  controversy,  and  without 
•costs  to  either  party  ;  and  that  the  respondent 
be  at  liberty  in  the  court  below  to  dismiss  his 
•own  bill,  without  costs,  or  to  amend  the  same 
by  making  Darling  Hickock  and  Daniel  Board- 
man  parties  thereto,  as  he  shall  be  advised  ; 
.and  that  if  elect  to  amend  his  bill,  the  proofs 
taken  in  the  cause  shall  be  admitted  as  evi- 
dence between  the  present  parties,  subject  to 
all  just  exceptions. 

February  17th.     All  the  court  (except  two) 
being  of  the  same  opinion,  it  was  thereupon 


ordered,  adjudged  and  decreed,  that  the  de- 
•cretal  orders  made  in  this  cause  be  reversed  ; 
-and  that  the  respondent  have  leave  to  dismiss  |  in>  and  ought  to  have  been  a  party  to  the  suit. 


appellant  gave  William  Green  a  promissory 
note  for  $1,551.64,  payable  to  him  or  order  at 
the  Bank  of  New  York,  on  the  first  day  of 
May,  1798.  That  to  secure  the  payment  of 
the"  note,  Jonas  Platt  executed  to  Green  a 
mortgage  on  two  lots  of  land,  which  he  held 
in  trust  for  the  appellant;  which  mortgage  was 
duly  proved  and  registered.  Green,  being  in- 
debted to  the  respondent  in  the  sum  of  $1,491.- 
11,  by  a  promissory  note,  payable  to  him  or 
order  the  3d  March,  1798,  as  collateral  security 
for  the  payment  of  that  note,  in  October,  1796. 
indorsed  the  appellant's  note  to  the  respondent, 
and  delivered  it  to  him,  with  the  mortgage,  for 
a  full  and  valuable  consideration,  and  the  ap- 
pellant had  notice  of  such  indorsement,  shortly 
thereafter,  *and  before  the  note  became  [*323 
due.  That  the  note  of  the  appellant  was  not 
paid  when  due,  though  regularly  demanded 
and  protested,  and  it  -remained  still  unpaid, 
and  the  respondent,  therefore,  prayed  that  the 
appellant  might  be  decreed  to  pay  the  note,  or 
that  the  mortgaged  premises  might  be  sold  for 
that  purpose. 

The  appellant  demurred  to  the  bill,  because 
it  did  not  appear  that  Green  had  assigned 
the  mortgage  to  the  respondent,  or  devested 


himself  of  the  estate  or  interest  in  the  prem- 
ises, and  that  Green  was  still  interested  there- 


his  bill  in  the  court  below,  or  to  amend  the 
-322*]  same,  *by  adding  other  parties  thereto  ; 
and  in  case  he  shall  elect  to  amend  the  same, 
that  then  the  present  parties  have  leave  to  use 
all  depositions  and  other  testimony  already 
taken  in  the  cause,  as  between  them,  subject 
to  all  just  exceptions  ;  that  each  party  shall 
pay  his  own  costs  in  this  court ;  and  that  the 
•costs  in  the  Court  of  Chancery  abide  the  further 
order  of  that  court,  on  a  final  decree. 

Judgment  of  reversal. 

Cited  in— 19  Hun,  449;  S.  C.,  57  How.,  405 ;  S.  C.,  6 
Abb.  N.  C.,  484 ;  1  Sawy.,  342. 

JOHNSON'S  CASES,  3. 


The  demurrer  was  overruled,  the  17th  May. 
1800,  and  the  appellant  thereupon  put  in  his 
answer  to  the  respondent's  bill,  and  admitted 
the  note  and  mortgage,  and  that  the  money 
due  thereon  was  unpaid,  but  denied  that  Green 
ever  assigned  or  transferred  the  mortgage. 
The  answer  further  stated  that  the  appellant 
was  informed  by  Green,  in  March,  1800,  that 
he,  Green,  applied  to  the  respondent  for  the 
loan  of  $1,061  on  usurious  interest,  and  that  the 
note  and  mortgage  were  put  into  the  hands  of 


NOTE.— As  to  partits,  who  should  be   made. 
note  to  preceding  case,  Hickock  v.  Scribner. 


See 
711 


323 


COURT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1803 


the  respondent,  as  a  collateral  security  for  the 
payment  of  such  loan,  and  he  contended  that 
the  interest  in  the  mortgage  was  still  in  Green, 
who  ought  to  have  been  a  party.  On  the  29th 
November,  1799,  Jonas  Platt  put  in  his  an- 
swer to  the  respondent's  bill,  and  stated  that 
he  took  a  deed  of  the  premises  from  Green  in 
trust  for  the  appellant,  because  he  was  at  the 
time  an  alien,  and  conveyed  the  same  back,  by 
way  of  mortgage,  to  secure  the  consideration 
money,  being  the  note  above  mentioned  ;  and 
that  he  had  otherwise  no  interest  in  the  mat- 
ters litigated  between  them. 

On  the  hearing  of  the  cause  in  the  court 
below,  the  receipt  of  the  respondent,  dated  the 
2d  September,  1796,  was  proved,  in  which  he 
acknowledged  to  have  received  of  Green,  as 
collateral  security  for  the  note  of  $1,491.11, 
payable  the  3d  May,  1798,  the  note  of 
324*]  *the  appellant  which  was  secured  by 
the  mortgage  aforesaid  to  Green,  but  not  as- 
signed to  him. 

The  Chancellor  directed  the  principal  and 
interest  due  on  the  mortgage  to  be  ascertained, 
and  the  premises  to  be  sold  to  pay  the  same, 
and  the  residue  of  the  money  (if  any)  to  be 
brought  into  court. 

From  this  decretal  order  there  was  an  appeal 
to  this  court  by  the  defendant  below,  and 
he  contended  that  the  decree  ought  to  be  re- 
versed. 

1.  Because  it  does  appear  from  the  plead- 
ings that  William  Green  has,  at  least,  a  legal 
estate  in  the  mortgaged  premises,  and  ought, 
therefore,  to  have  been  made  a  party  to  the 
bill  of  complaint. 

2.  Because  it  does  not  sufficiently  appear 
that  the  respondent  hath  any  interest,  or  lien, 
on  the  premises. 

3.  Because  if  any  assignment  or  transfer  of 
the  mortgage  or  mortgaged  premises  wag  ever 
made  by  William  Green  to  the  respondent,  yet 
no  memorandum  thereof  in  writing,  signed 
by  Green,  appears  to  have  been  made,  and  the 
same  is  therefore  void  by  statute. 

2.  Because,  if  any  such  assignment  was 
ever  made,  the  consideration  thereof  was 
usurious  and  unlawful,  and  the  same  is  there- 
fore void. 

The  respondent,  on  the  contrary,  insisted 
that  the  order  ought  to  be  affirmed. 

1.  Because  the  mortgage  executed  by  Jonas 
Platt  to  William  Green,  and  the  note  accom- 
panying the  same,  were  deposited  by  Green 
with  the  respondent,  as  a  security  for  the  pay- 
ment of  the  debt  due  from  Green  to  the  re- 
spondent, and  such  deposit  is  regarded  by  a 
court  of  chancery  as  an  equitable  mortgage. 

2.  Because,  it  being  admitted  that  the  ap- 
pellant had  paid  no  part  of  the  money  secured 
by  the  mortgage,  it  is  apparent  that  he  can 
have  no  account  to  settle  with  William  Green 
respecting  the  debt,  and,  therefore,  the   ap- 
pellant can  have  no  interest  in  making  Green 
a  partv  to  the  suit.    - 

325*]  *3.  Because  the  appeal  from  the 
order  overruling  the  demurrer  has  not  been 
made  in  due  time. 

4.  Because  it  is  now  too  late  for  the  appel- 
lant to  avail  himself  of  the  want  of  parties  in 
this  cause. 

5.  Because  William  Green  having,  by  the 
deposit  of  the  mortgage,  parted  with  all  his 
712 


equitable  interest  therein,  it  was  not  necessary 
to  make  him  a  party  to  the  bill  filed  by  the 
respondent. 

Mr.  Emott  for  the  appellant. 
Mr.  Hoffman,  contra. 

RADCLIFF,  J.  1.  Admitting  that  trusts  in 
equity  are  governed  by  the  same  rules  as  legal 
estates,  I  think  the  objection  founded  on  the 
alienism  of  the  appellant  is  not  well  taken. 
It  appears  to  have  been  settled,  from  the  time 
of  Lord  Coke,  that  an  alien  may  purchase  and 
hold  lands,  and  even  maintain  an  action  for 
them,  if  the  crown,  in  England,  or  the  people 
here  do  not  interpose.  A  purchase  by  him  is 
not  an  offense  whereby  a  forfeiture  is  neces- 
sarily incurred  ;  but  the  government,  on  prin- 
ciples of  policy,  may  interfere  and  deprive  him 
of  his  title.  The  estate,  however,  is  vested  in 
the  alien,  to  all  purposes,  until  an  actual  exer- 
cise of*  the  right  by  the  people,  by  office  found, 
or  until  the  death  of  the  alien  ;  in  which  case, 
as  he  can  have  no  heirs,  and  his  title  cannot 
descend,  it  immediately  reverts  to  the  people, 
and  no  office  is  necessary.  If  an  alien  has  a 
right  to  purchase  and  hold,  the  objection 
fails,  and  he  must  have  an  equal  right  to  con- 
vey or  mortgage  his  estate,  and  the  purchaser 
or  mortgagee  will  be  equally  entitled  to  hold 
the  premises. 

2.  But  the  second  objection  appears  to  me 
well  founded,  and  supported  by  considera- 
tions which  are  important  and  decisive  in 
favor  of  the  appellant.  It  is  true,  this  objec 
tion  comes  with  an  ill  grace  from  him,  be- 
cause, by  paying  his  debt  and  redeeming  the 
mortgage,  he  could,  at  *once,  put  an  [*32(> 
end  to  all  controversy  on  the  subject.  Yet 
this  circumstance,  however  it  might  incline 
the  scale  in  a  doubtful  case,  cannot  authorize 
a  departure  from  established  rules.  These 
rules  in  relation  to  parties  are  well  settled  ; 
and  they  are  not  arbitrary,  but  founded  on 
principles  that  are  essential  to  the  protection 
of  individual  rights  and  the  distribution  of 
justice.  They  are  so  many  landmarks  from 
which  it  would  be  dangerous  to  depart,  except 
we  have  other  guides  equally  safe  and  obvi- 
ous. To  consider  the  merits  of  this  objection, 
as  applied  to  the  present  case,  it  is  necessary 
distinctly  to  observe  the  several  interests  of 
the  parties  concerned.  The  mortgage  being- 
executed  to  Green,  vested  in  him  the  legal  es- 
tate. This  mortgage  was  never  assigned,  nor 
did  Green  ever  execute  any  instrument  or  con- 
veyance by  which  the  title  at  law  could  be 
transferred  to  another.  The  indorsement  of 
the  note  could  not  have  that  effect.  That  in- 
dorsement, by  virtue  of  the  statute  concern- 
ing promissory  notes,  transferred  the  legal  as 
well  as  the  equitable  title  to  the  note,  but  it 
transferred  the  note  only.  From  its  nature 
and  its  terms,  independent  of  the  statute  of 
frauds,  it  can  have  no  other  operation.  At 
the  same  time,  I  am  satisfied  that  in  equity  the 
disposition  of  the  debt  would  draw  after  it 
the  right  to  the  legal  estate  as  its  security.  The 
debt,  for  this  purpose,  is  considered  as  the 
principal,  and  the  security,  whether  by  mort- 
gage or  otherwise,  as  the  accessary.  The 
transfer  of  the  note,  therefore,  to  the  respond- 
ent, Hart,  carried  with  it  a  right  to  claim  the 
JOHNSON'S  CASES,  3. 


1803 


AYLMER.  JOHNSON  v.  EPHKAIM  HART. 


benefit  of  the  mortgage  security,  and  a  court 
of  equity  will  enforce  this  right  against  Green, 
and  oblige  him,  if  a  party,  to  do  and  submit 
to  every  necessary  act  to  carry  it  into  effect. 
But  this  is  an  equitable  right  only.  The  trans- 
fer of  the  note  could  not,  in  fact,  convey  the 
legal  estate.  A  determination  that  it  did, 
would,  I  believe,  extend  beyond  any  doctrine 
hitherto  known  in  our  law,  and  tend  to  con- 
found all  distinctions  between  legal  and  equi- 
table estates.  I  can  easily  conceive  that  the 
327*]  indorsement  *of  the  note  transfer- 
red to  Hart  a  right  in  equity  to  the  benefit  of 
the  mortgage,  for  the  security  of  his  debt,  and 
that  the  fee  still  resided  in  Green,  but  I  can- 
not understand  how  the  simple  indorsement  of 
the  note,  by  any  rule  of  law,  should  have  the 
power  of  transferring  the  legal  estate.  This 
appears  to  me  a  novelty  and  a  fiction,  which 
would  dispense  with  the  legal  forms  of  con- 
veyance, and,  therefore,  ought  not  to  pre- 
vail. 

It  is  true,  that  a  debt,  although  secured  by 
mortgage,  is  considered  as  personal  estate,  and 
may  be  disposed  of  as  such.  It  may  be  devised 
as  a  debt.  It  is  considered  as  assets  in  the 
hands  of  executors  and  administrators  ;  and  a 
transfer  of  the  debt  will  carry  with  it  the  title 
to  the  mortgaged  security.  As  between  the 
mortgageor  and  mortgagee,  the  extinguish- 
ment of  the  debt  has  also  been  held  to  extin- 
guish the  mortgage.  The  debt,  in  that  case, 
is  presumed  to  have  been  paid  at  the  day,  or 
accepted  instead  of  such  payment,  and  the 
estate  of  the  mortgagee  to  be  thereby  defeated 
at  law,  as  well  as  in  equity.  But  these  princi- 
ples do  not  govern  the  present  case.  The 
question  is  not,  whether  the  debt  shall  be  con- 
sidered as  personal  property,  and  be  disposed 
of  as  such,  nor  what  shall  be  the  operation  of 
an  extinguishment  of  the  debt,  as  between  the 
mortgageor  and  mortgagee.  The  mortgage, 
in  this  case,  remains  unsatisfied,  and  exists  in 
full  force,  and  the  question  arises  upon  its 
legal  assignment  to  another.  For  the  reasons 
which  have  been  given,  I  am  of  opinion  that 
no  such  assignment  has  been  made,  to  carry 
the  estate  at  law  ;  that  the  fee  is,  therefore, 
still  vested  in  Green,  and  that  the  respondent, 
Hart,  has  no  more  than  an  equitable  right  to 
the  benefit  of  the  mortgage. 

It  is  clear  that  the  other  parties,  Johnson  and 
Platt,  have  no  greater  interest.  Their  right  is 
the  equity  of  redemption  merely.  All  the 
parties  before  the  court  are,  therefore,  pos- 
sessed of  equitable  interest  only,  and  the  legal 
estate  is  vested  in  Green,  who  is  not  a  party. 
328*]  Yet  *the  Chancellor  has  decreed  the 
whole  estate  to  be  sold.  It  is  certain  that  a 
decree  can  never  affect  the  interest  of  a  party 
not  before  the  court.  It  can  only  operate  on 
the  interests  of  those  who  are  parties  to  the 
suit.  On  this  ground,  therefore,  as  far  as  the 
decree  directs  the  sale  of  the  legal  estate  which 
is  vested  in  Green,  it  must  clearly  be  errone- 
ous. 

In  another  view,  I  think  this  decree  was 
equally  improper.  The  note  made  by  John- 
son, the  appellant,  to  Green,  and  the  mortgage 
accompanying  it,  admitting  them  both  to  have 
been  legally  assigned,  were  assigned  to  the  re- 
spondent, Hart,  as  a  collateral  security  only, 
for  the  debt  due  from  Green  to  Hart.  It  was 
JOHNSON'S  CASES,  3. 


so  expressed  in  the  receipt  given  by  Hart,  and, 
the  debt  due  from  Johnson  to  Green  was  also 
larger  in  amount  than  the  debt  from  Green  to- 
Hart.  It  is  evident,  therefore,  that  Green  did 
not  part,  nor  intend  to  part,  with  his  whole 
demand  against  Johnson.  The  note  and  mort- 
gage were  assigned  or  delivered,  not  absolute- 
ly, but  as  a  security  merely.  Green,  there- 
fore, has  an  interest  in  that  security.  If  it 
prove  incompetent,  he  will  be  liable  to  make 
good  the  deficiency.  If  it  be  more  than  suffi- 
cient, he  has  an  interest  for  the  surplus  of  his 
demand  against  Johnson  beyond  his  own  debt. 
It  is  no  answer  to  this  to  say  that  the  respond- 
ent, Hart,  is  willing  to  pay  the  surplus  as  this 
court  may  direct  for  the  benefit  of  Green. 
There  is  no  one  here  to  receive  it.  Green  is 
not  before  us  ;  he  is  a  stranger  to  the  suit,  and 
no  court  will  become  bankers  for  others,  in 
order  to  cure  the  errors  in  the  proceedings  of 
any  party  before  it. 

Besides,  there  is  another  and  a  more  impor- 
tant consideration  in  the  case.  If  we  affirm 
this  decree,  we  establish  not  only  the  debt 
against  Johnson,  but  the  demand  of  Hart 
against  Green,  who  is  not  a  part}',  and  has  had 
no  opportunity  to  be  heard  in  his  defense. 
Hart,  as  has  been  already  shown,  has  no  inter- 
est in  the  note  and  mortgage  against  Johnson 
and  Platt,  except  for  the  security  *of  [*32J> 
his  own  debt  against  Green,  and  yet  we  do  not 
know  that  his  debt  against  Green  ought  ever 
to  be  recovered.  For  aught  that  appears,  it 
may  have  been  paid,  or  the  note  may  original- 
ly have  been  given  for  an  illegal  or  a  void  con- 
sideration. It  may,  as  has  been  alleged  by 
Johnson,  be  usurious.  No  one  can  answer 
these  points  but  Green.  He  is  principally,  if 
not  solely,  interested,  and  is  entitled  to  make  a 
defense  on  these  or  any  other  grounds  ;  and 
yet,  by  this  mode  of  proceeding,  he  is  effectu- 
ally precluded  from  doing  it.  If  usury  ex- 
ists, this  would  be  an  easy  and  secure  method 
to  escape  the  inquiry,  and  elude  the  statute ; 
and  if  there  be  any  other  defense,  it  would  be 
still  more  oppressive.  It  follows,  that  the  de- 
cree, without  a  hearing,  directly  and  essen- 
tially affects  the  interest  of  a  party  who  is  not 
before  the  court,  and  the  case  in  this  respect, 
I  think,  is  as  strong  as  that  of  Hickock  v.  Scrib- 
ner,  decided  during  the  present  session.  Pur- 
suing the  principles  adopted  in  that  case,  and 
for  the  other  reasons  which  have  been  men- 
tioned, I  think  the  Chancellor's  decree  ought 
to  be  reversed  ;  and  that,  in  this  case,  as  in 
the  other,  we  ought  to  direct  that  the  com- 
plainant below  have  leave  to  dismiss  his  own 
bill,  or  add  new  parties,  as  he  shall  be  advised, 
on  payment  of  costs  in  the  court  below. 

KENT,  J.  If  Green  had  passed  Johnson's 
note  absolutely  to  Hart,  I  should  have  no  diffi- 
culty in  approving  of  the  decree,  and  that,  too, 
without  giving  any  opinion  on  the  operation  of 
a  deposit  of  title-deeds.  Here  was  a  note  given 
to  Green,  which  was  secured  by  a  mortgage. 
Wherever  the  note  goes  it  will  carry  the 
charge  upon  the  land  along  with  it.  The 
estate  in  the  land  is  here  the  same  thing  as  the 
money  due  on  the  note.  It  will  be  liable  to 
debts  ;  it  will  go  to  executors.  It  will  pass  by 
a  will  not  made  with  the  solemnities  of  the 
statute  of  frauds.  The  assignment  of  the  debt, 

71* 


COURT  OF  ERRORS,  STATE  OF  NEW  YORK. 


1803 


or  forgiving  it,  even,  by  parol,  draws  the  land 
33O*]  after  it,  as  a  consequence.  The  *right 
to  the  land  will  follow,  notwithstanding  the 
statute  of  frauds.  This  doctrine  was  estab- 
lished by  the  Court  of  King's  Bench  as  early 
as  the  year  1760  (2  Burr.,  978,  979);  and  ac- 
cording to  this  doctrine,  when  Green  dulj' 
negotiated  his  note  to  Hart,  the  interest  in  the 
mortgage,  which  was  given  for  no  other  pur- 
pose but  to  secure  that  note,  passed  of  course. 
It  required  no  writing,  no  assignment  on  the 
back  of  the  mortgage.  The  assignment  of  the 
note  applied  equally  to  the  note  and  the  pledge. 
The  one  was  but  appurtenant  to  the  other. 
Whoever  was  owner  of  the  debt,  was  likewise 
owner  of  the  security.  There  must  be  some- 
thing peculiar  in  the  case,  some  very  special 
provision  of  the  parties,  to  induce  the  court  to 
separate  the  ownership  of  the  note  from  the 
ownership  of  the  mortgage.  In  the  eye  of 
•common  sense  and  of  justice  they  will  gen- 
erally be  united. 

By  the  transfer,  then,  of  the  note  to  Hart,  the 
mortgage  went  with  it,  and  the  same  interest 
passed  in  the  one  as  in  the  other.  Had  this 
been  an  absolute  transfer,  there  could  have 
been  no  good  reason  for  requiring  Green  to  be 
a  party  to  the  suit,  because  he  had  no  further 
interest  in  the  subject.  He  could  not  be  con- 
sidered as  having  any  longer  even  the  estate  at 
law  in  him.  From  the  doctrine  to  which  I 
have  referred,  he  would  be  considered  at  law, 
as  well  as  in  equity,  as  having  passed  all  his 
interest  in  the  mortgage,  by  the  assignment  of 
the  note.  The  assignment  of  the  one  would  be 
deemed  an  assignment  of  the  other. 

But,  in  the  present  case,  it  appears,  from  a 
receipt  of  Hart,  that  he  took  the  note  for 
$1,551.64  to  secure  the  payment  of  a  note  he 
held  against  Green  for  $1,491.11.  Both  notes 
were  payable  within  three  days  of  each  other, 
and,  consequently,  Hart  took,  by  way  of  col- 
lateral security  (as  he  himself  admits),  a  note 
for  a  greater  sum  secured  by  a  mortgage,  as  a 
pledge  for  the  payment  of  a  lesser  sum.  The 
difference  between  the  two  notes  was  $60.53, 
and  Green  had  a  right  to  redeem  his  larger 
331*]  note  *and  mortgage  on  paying  the 
lesser  sum.  He  has  a  substantial  interest  in 
such  a  redemption,  because  he  thereby  regains 
a  security  for  the  payment  of  the  balance  of 
$60.53  due  him. 

By  not  being  a  party  to  the  suit,  he  has  no 
opportunity  to  redeem,  and  the  land  may  be 
sold  without  his  knowledge.  Here  are  two 
mortgagees :  Johnson,  who  mortgages  to  Green, 
and  Green,  who  mortgages  to  Hart,  and  both 
ought  to  be  made  parties,  and  for  the  same 
reason.  Although  their  interests  may  not  be 
equally  extensive,  yet  the  rules  of  justice  ap- 
ply with  equal  force  and  precision  to  the 
smaller,  as  to  the  greater  interest. 

On  this  ground,  I  deem  the  decree  errone- 
ous. Green  had  an  interest  in  the  subject ;  a 
right  to  redeem,  in  order  to  secure  the  balance 
coming  to  him,  and  he  ought,  therefore,  to 
have  been  made  a  party  to  the  suit  below. 

Green  ought  also  to  have  been  made  a  party, 
in  another  point  of  view.  If  he  has,  in  fact, 
paid  his  note  to  Hart,  Hart  has  no  further 
interest  in  Johnson's  note  and  mortgage ;  for 
Hart  took  it  only  to  secure  the  note  from 
Green.  And  how  can  we  know,  as  Green  has 

714 


not  been  called  in  to  answer,  but  that  he  has 
paid  his  note  to  Hart?  We  certainly  cannot 
know  this ;  and  yet  the  decree  goes  on  the  pre 
sumption  that  Green  has  neglected  to  pay  his 
note  to  Hart.  It  can  go  on  no  other  presump- 
tion. But  the  court  had  no  authority  to  con- 
clude Green  to  be  in  default  till  he  had  been 
heard.  Such  a  proceeding  would  contradict 
all  the  maxims  of  justice.  In  answer  to  this, 
it  may  be  observed  that  we  have  on  file  an 
affidavit  of  Green,  stating  that  he  has  not  paid 
his  note  to  Hart.  But  that  affidavit  cannot  be 
received  as  evidence  to  that  point,  because  it 
is  wholly  irrelevant  to  the  matter  in  issue,  as 
the  suit  stood,  between  Johnson  and  Hart. 
Green  would  have  a  right,  notwithstanding 
that  affidavit,  to  exhibit  his  bill  against  Hart, 
to  obtain  a  redelivery  to  him  of  Johnson's 
note  and  mortgage,  or  of  moneys  arising  there- 
from ;  and  Hart  would  be  obliged  to  answer 
and.  *show  that  Green  had  not  paid  [*332 
him,  and  to  show  this  by  the  production  of 
the  note  itself.  By  omitting  to  make  Green  a 
party  to  the  suit,  the  decree  does  not,  as  de- 
crees ought  to  do,  close  the  door  against  fur- 
ther litigation  on  the  subject.  In  judgment  of 
law.  Green  is  a  stranger  to  the  present  suit, 
since  he  is  no  party  on  the  record,  and  yet  his 
rights  are  essentially  involved  in  the  litigation. 

My  opinion,  accordingly,  is,  that  Green 
ought  to  have  been  a  party. 

1st.  To  have  enabled  him  to  redeem  the 
note  and  mortgage  of  Johnson  by  paying  his 
own. 

3d.  By  enabling  him  to  show,  if  he  could 
show,  that  he  had  in  fact  paid  his  own  note, 
and  so  was  entitled  to  a  re-assignment  of  the 
note  and  mortgage  of  Johnson. 

The  decree,  therefore,  I  think,  ought  to  be 
reversed,  and  the  complainant  below  to  be  at 
liberty  to  dismiss  or  amend  his  own  bill,  as  he 
shall  elect,  on  payment  of  costs. 

The  court  being  of  opinion  that  the  de- 
cree ought  to  be  reversed,  it  was  there- 
upon unanimously  ordered,  adjudged  and 
decreed,  that  the  decretal  orders  of  the  Court 
of  Chancery  be  reversed,  and  that  the  respond- 
ent have  leave  to  dismiss  his  bill  in  the  court 
below,  or  to  amend  the  same  by  adding  proper 
parties,  on  payment  of  the  costs  of  that  court. 

Judgment  of  reversal. l 

Explained-61  N.  Y.,  118. 

Cited  in— Ante,  113 ;  11  Johns.,  538 ;  7  Wend.,  368 ;  1 
Barb.  Ch.,  359;  7  Johns.  Ch.,  147;  1  Paige,  56;  2 
Paige,  295 ;  6  Paige,  586;  1  Sand.  Ch.,  78 ;  12  N.  Y., 
508 ;  21  N.  Y.,  364 ;  54  N.  Y.,  608 ;  64  N.  Y.,  658  ;  11 
Abb.  N.  S.,  151 ;  3  Leg.  Obs.,  126 ;  33  Super.,  76 ;  1 
Woods.,  220. 


*THE  PEOPLE  v.  PEASE.    [*333 

Witness — Competency — Prison  for  Life — Pardon 
— Proviso — Disabilities. 

!  A  having  been  convicted  of  forgery,  was  sen- 
I  tenced  to  the  State  Prison  for  life.  He  was  after- 
j  wards  pardoned  by  the  governor.  The  pardon  con- 
tained a  provision  that  it  was  not  to  be  construed 
I  so  as  to  relieve  A  from  the  legal  disabilities  arising 
!  from  his  conviction  and  sentence,  &c.,  but  only 
i  from  the  imprisonment. 

1.— See  Green  and  Johnson  v.  Hart,  in  error,  1 
i  Johns.  Rep.,  580. 

JOHNSON'S  CASES,  3. 


1803 


THE  PEOPLE  v.  PEASE. 


He  was  afterwards  offered  as  a  witness  for  the 
people,  on  a  trial  for  an  indictment,  and  admitted 
to  testify,  although  objected  to  as  incompetent.  It 
was  held  that  the  proviso  in  the  pardon  being'  in- 
•congruous  and  repugnant  to  the  pardon  itself, 
ought  to  be  rejected,  and  that  the  witness  was  com- 
petent. 


prisoner,  Pease,  was  indicted  for  grand 
J-  larceny  in  stealing  a  quantity  of  shoes 
and  leather,  the  property  of  Noah  Gardner,  a 
shoemaker.  At  the  trial,  the  Attorney- 
General  offered  Gardner  as  a  witness.  The 
counsel  for  the  prisoner  objected  that  Gardner 
had  been  convicted  of  forgery  and  sentenced 
to  the  State  Prison,  and  was,  therefore,  an  in- 
competent witness.  The  Attorney-General 
admitted  the  conviction  and  judgment,  but 
alleged  that  having  been  pardoned  by  the 
.governor,  he  was  restored  to  his  competency. 
The  pardon  was  then  produced  under  the 
great  seal  of  the  State,  dated  the  4th  May, 
1801,  by  which  the  witness  "  is  pardoned,  re- 
mised, and  released,  of  and  from  the  forgery, 
•conviction,  sentence,  and  imprisonment,  &c., 
-so  far  as  the  same  extends  to  the  said  imprison- 
ment :  provided  always,  and  it  is  hereby  de- 
clared. that  nothing  therein  contained  is  in- 
tended, or  shall  be  construed,  so  as  to  relieve 
the  said  Noah  Gardner  of  and  from  the  legal 
disabilities  to  him,  from  the  conviction,  sen- 
tence, and  imprisonment  aforesaid,  other  than 
the  said  imprisonment.  " 

The  prisoner's  counsel  then  contended  that 
by  this  pardon  the  legal  disability  of  Gardner 
was  not  removed,  and  that  he  was  still  an  in- 
competent witness  ;  but  the  court  below  over- 
ruled the  objection,  and  he  was  sworn,  and 
testified  against  the  prisoner,  who  was  con- 
victed. 

VAN  VECHTEN,  Senator.  The  defendant 
stands  convicted  of  grand  larceny,  on  the  evi- 
dence of  Noah  Gardner,  who,  having  been 
convicted  of  forgery,  was  sentenced  to  im- 
prisonment in  the  State  Prison  for  life.  Gard- 
ner was  afterwards  pardoned  by  the  executive, 
but  in  his  pardon  is  contained  a  proviso,  that 
334*]  it  shall  not  be  construed  to  *remove  the 
legal  disabilities  which  attach  to  him  on  his 
conviction  and  condemnation. 

The  question  for  the  decision  of  this  court 
is,  whether  the  pardon  to  Gardner  renders  him 
a  competent  witness. 

It  is  admitted,  on  all  sides,  that  the  right  of 
pardoning,  in  cases  of  forgery,  resides  in  the 
governor  of  this  State  to  the  same  extent  as  in 
the  King  of  Great  Britain.  Hence  it  is  ma- 
terial only  to  ascertain  whether  the  pardon  of 
the  governor  does  away  all  the  consequent 
legal  disabilities  which  have  attached  to  him. 

The  disabilities  to  which  I  refer,  form  no 
part  of  the  judgment  against  a  convict,  but  are 
the  legal  marks  of  infamy  which  it  fixes  upon 
him.  When,  therefore,  the  judgment  is  par- 
doned, the  legal  infamy  flowing  from  it  is 
equally  disposed  of  by  the  pardon.  For  the 
proposition  appears  to  me  untenable  that  the 
judgment  to  which  those  disabilities  are  mere- 
JOHNSON'S  CASES,  3. 


ly  consequential  can  be  released,  and  yet  the 
disabling  effect  thereof  remain. 

This  doctrine  I  take  to  be  perfectly  consist- 
ent with  the  spirit  of  the  authorities  cited  in 
the  course  of  argument,  that  the  operation  of 
a  pardon  shall  not  be  extended  beyond  its 
strict  import,  because  a  general  pardon  neces- 
sarily imports  that  the  personal  incapacities  of 
the  convict,  dependent  on  the  judgment 
against  him,  are  thereby  removed.  In  En- 
gland, the  forfeiture  of  the  property  of  con- 
victs, in  certain  cases,  is  superadded  to  cor- 
poral punishment ;  and  there  it  is  clearly  set- 
tled that  a  pardon  of  the  conviction  and  judg- 
ment removes  all  those  incapacities,  but  does 
not  save  the  forfeiture  without  express  words 
of  restitution.  And  hence  it  is  manifest  that 
the  distinction  which  I  have  taken  respecting 
the  effect  of  a  pardon,  as  to  personal  incapaci- 
ties, and  other  consequences  resulting  from  a 
conviction  for  an  infamous  crime,  is  fulJy 
admitted  in  the  English  courts. 

In  this  State  the  reason  for  considering  the 
removal  of  the  personal  disabilities  of  a  con- 
vict, as  included  in  the  general  effects  of  a 
pardon,  is  much  stronger.  For,  by  *our  [*335 
law,  a  person  sentenced  to  imprisonment  for 
life  in  the  State  Prison  is  declared  to  be 
civilly  dead.  He  is  not  only  disqualified  as  a 
witness,  but  is  devested  of  all  his  civil  rights 
and  relations.  All  these  are  legal  disabilities 
flowing  from  the  judgment  pronounced  against 
him.  In  what  situation,  then,  will  such  a  con- 
vict be,  if  a  pardon  granted  to  him  does  not 
extend  beyond  his  liberation  from  confine- 
ment? He  will  be  recognized  by  the  pardon 
as  a  person  legally  raised  from  the  tomb  of 
the  State  Prison,  and  by  a  proviso  of  the  kind 
now  under  consideration,  it  will  be  declared 
in  the  same  pardon,  that,  to  every  legal  intent, 
he  shall  be  considered  as  remaining  in  his 
civil  grave.  This  incongruity  between  the 
pardon  and  proviso  renders  the  rejection  of 
the  latter  indispensable,  in  order  to  give  a 
legal  effect  to  the  former. 

With  respect  to  the  power  of  the  executive 
to  annex  conditions  and  restrictions  to  pardons, 
I  do  not  percive  that  my  doctrine  destroys  it. 
Those  conditions  and  restrictions  may  be 
imposed,  in  various  ways,  without  involving 
the  absurdity  which  I  have  stated,  and  with- 
out impairing  the  executive  power  of  making 
full  evidence  of  the  reformation  of  the  con- 
vict, a  condition  precedent  to  a  general  pardon. 
The  punishment  may  be  mitigated,  or  it  may 
be  changed  from  imprisonment  to  voluntary 
transportation ;  but  every  condition  and  re- 
striction annexed  to  a  pardon  must  be  reason- 
able and  consistent  with  the  sound  rules  of 
law. 

I  am,  therefore,  of  opinion  that  Noah  Gard- 
ner was  a  competent  witness,  and  that  the  con- 
viction of  Pease  is  legal. 

Per  totam  curiam.  Judgment  of  the  Supreme 
Court  affirmed. 

I     Cited  in— 1  Edm.,  243 ;  4  Legal  Obs.,  180 ;  S.  C.,   1 
I  Park,  53 ;  10  Peters,  568 ;  21  Ohio  St.,  420. 

7U 


[END  OF  THE  CASES  IN  ERROR.] 


APPENDIX. 


The  nature  and  magnitude  of  the  questions  discussed  in  the  following  case,  which  came  before  the 
Supreme  Court  subsequent  to  the  time  of  these  reports,  will,  it  is  believed,  render  any  apology  unneces- 
sary for  its  insertion  as  an  appendix  to  this  volume.  It  was  obligingly  communicated  to  the  reporter 
by  a  person  of  great  legal  eminence,  on  whose  accuracy  and  judgment  the  utmost  reliance  is  placed 
It  is  proper,  however,  to  remark  that  the  brief  sketch  of  the  arguments  of  counsel  is  not  given  with  a 
view  to  exhibit,  in  any  degree,  the  solid  and  ingenious  reasoning,  or  the  powerful  and  matchless 
eloquence,  dispayed  in  this  interesting  and  celebrated  cause,  but  merely  to  present  to  the  profession 
the  general  course  of  argument,  and  the  legal  authorities  adduced  on  a  very  important  and  much  litigated 
subject  of  jurisprudence.  . 


337*] 


'FEBRUARY  13,  1804. 


THE  PEOPLE  v.  CROSWELL. 

Libel. 

On  an  indictment  for  libel,  can  the  defendant  give 
the  truth  in  evidence?  And  are  the  jury  to  decide 
both  on  the  law  and  the  fact  ? 

See  Act  of  the  6th  April,  1805,  sess.  28,  ch.  90.  ^TZ 

Citations— Barnes,  442;  Hawk.,  tit.  Libels,  sec.  1;  t 
Wils.,  403 :  1  Esp.  Gas.,  238 ;  Whine's  Eunomus,  dial. 

3,  sec.  53 ;  3  Term  R.,  429,  and  note ;  2  Salk.,  417 ;  Essay 
on  the  Power  and  Duties  of  Grand  Juries,  p.  7 ;  Dagge 
on  Crim.  Law,  bk.  1,  ch.  11,  sec.  2 ;  Litt.,  sec.  368 ;  Co. 
Litt.,  228  o;  4  Co.,  53  /) ;  Hob.,  227 ;  Hist.  Com.  Law, 
•ch.  12;  H.  H.  P.  C.,  Vol.  II.,  313;  4  Bl.  Com.,  p.  a54; 
Stat.  Westm.,  2  (13  Edw.  I.) ;  9  Co.,  13  a ;  Plowd.,  92 ; 
Bracton,  fol.  119,  a,  b;  Barrington  on  the  Statutes, 
18, 26, 311 ;  Vaughan,  149 ;  2  St.  Tr.,  69, 81, 82 ;  Vaughan, 
135 ;  Sir  T.  Jones,  13 ;  3  St.  Tr.,  817 ;  4  St.  Tr.;  5  St.  Tr., 
542;  3  Term  R.,  429;  9  St.  Tr.,  255;  11  Mod.,  86;  2  Ld. 
Ravm.,  1485 ;  2  Str.,  766 ;  Foster's  Discourse  on  Homi- 
cide, 255,  256,  257 ;  10  St.  Tr.  Appendix,  196 ;  5  Burr., 
3661 ;  3  Term  R.,  430 ;  Parliamentary  Senator,  Vol.  V., 
p.  823 ;  3Term  It.,  428 ;  Senator,  Vol.  III.,  p.  647, 650, 651, 
Vol.  V.,  686,  822 ;  11  St.  Tr.,  288 ;  3  Term  R.,  418 ;  Laws 
of  U.  S.,  Vol.  IV.,  p.  204 ;  3  Dallas,  4 ;  Stat.  32,  Geo.  III.; 
Paley's  Moral  Philosophy,  p.  188;  Vinnius  Com.,  lib. 

4,  tit.  4,  sec.  1 ;  1  Hawk.,  tit.  Libel,  sec.  3,  6,  7 ;  Hud- 
son on  the  Star  Chamber,  p.  102 ;  8  Term  R.,  297,  298 ; 
1   Bos.  &  Pull.,  526;  Esp.  Dig.,  506;  2  Collectanea 
Juridicia ;  Barrington  on  the  Statutes,  68 ;  5  Co.,  125 ; 
Hob.,  252;  5  Co.,  125, 126 a;  Code  Lib.,  9,  tit.  36;  Pau- 
lus  Dig.,  lib.  47,  tit.  10,  ch.  18 ;  Vinnius,  Vol.  II.,  208 ; 
Stat.  West..  1  Edw.,  I.,  ch.  34 ;  2  Rich.  II.,  ch.  5, 11 ;  1 
and  2  Ph.  &  M.,  ch.  3;  Dyer,  155;  Senk.,  5,  c  55;  1 
Leon,  287 ;  2  Inst.,  226 ;  2  Mod.,  1551,  152 ;  Fleta,  lib.  2, 
•ch.  1,  sec.  10 ;  3  Inst.,  174 ;  7  Term  R.,  4 ;  9  St.  Tr.,  302 ; 
1  Bl.  Reja.,  114,  115 ;  4  Bl.  Com.,  152,  note ;  Stat.  13  and 
14  Car.  n.,  ch.  33 ;  5  St.  Tr.,  442,  444 ;  8  St.  Tr.,  78 ;  9  St. 
Tr.,  303 ;  M'Nally  on  Evid.,  Vol.  II.,  p.  649 ;  11  Mod.,  99 ; 
Str.,  498 ;  9  St.  Tr.,  269 ;  Senator,  Vol.  V.,  p.  684 ;  Jd., 
Vol.  III.,  p.  649 ;  Journals  Congress,  Vol.  I.,  p.  57 ;  Id., 
p.  44,  51,  52, 73,  74 ;  Str.,  189 ;  Gilbert's  Rep.  K.  B.,  297 ; 
Moore,  627 ;  7  Term  R.,  4 ;  1  Lev.,  287 ;  5  St.  Tr.,  445 ;  9 
St.  Tr.,  255 ;  10  St.  Tr.,  194 ;  4  Burr.,  2527 ;  5  Burr.,  2661 ; 
3  Term  R.,  428. 


AN  indictment  was  found  against'the  defend- 
ant on  a  libel,  at  the  General  Sessions  of 
the  Peace  in  Columbia  County,  which  was 
removed,  by  certiordri,  into  this  court,  in  Jan- 
uary Term,  1803,  and  the  issue  of  traverse 
thereon  was  tried,  at  the  Columbia  Circuit,  in 
July,  1803,  before  Mr.  Chief  Justice  Lewis. 

The  indictment  was  as  follows,  to  wit :  "At 
a.  court  of  general  sessions  of  the  peace,  holden, 
&c;  It  is  represented  that.  Harry  Croswell, 
late  of  the  city  of  Hudson,  in  the  County  of 
Columbia  aforesaid,  printer,  being  a  malicious 
and  seditious  man,  of  a  depraved  mind  and 
JOHNSON'S  CASES,  3. 


wicked  and  diabolical  disposition,  and  also 
deceitfully,  wickedly,  and  maliciously  devis- 
ing, contriving,  and  intending,  Thomas  Jeffer- 
son, Esq.,  President  of  the  United  States  of 
America,  to  detract  from,  scandalize,  traduce, 
vilify,  and  to  represent  him,  the  said  Thomas 
Jefferson,  as  unworthy  the  confidence,  respect, 
and  attachment  of  the  people  of  the  said 
United  States,  and  to  alienate  and  withdraw 
from  the  said  Thomas  Jefferson,  Esq.,  Presi- 
dent *as  aforesaid,  the  obedience,  [*338 
fidelity,  and  allegiance  of  the  citizens  of  the 
State  of  New  York,  and  also  of  the  said  United 
States ;  and  wickedly  and  seditiously  to  dis- 
turb the  peace  and  tranquillity,  as  well  of  the 
people  of  the  State  of  New  York,  as  of  the 
United  States ;  and  also  to  bring  the  said 
Thomas  Jefferson,  Esq.  (as  much  as  in  him 
the  said  Harry  Croswell  lay),  into  great  hatred, 
contempt,  and  disgrace ;  not  only  with  the 
people.of  the  State  of  New  York,  and  the  said 
people  of  the  United  States,  but  also  with  the 
citizens  and  subjects  of  other  nations  ;  and  for 
that  purpose  the  said  Harry  Croswell  did,  on 
the  ninth  day  of  September,  in  the  year  of  our 
Lord  one  thousand  eight  hundred*  and  two, 
with  force  and  arms,  at  the  said  city  of  Hud- 
son, in  the  said  County  of  Columbia,  wickedly, 
maliciously,  and  seditiously,  print  and  pub- 
lish, and  cause  and  procure  to  be  printed  and 
published,  a  certain  scandalous,  malicious,  and 
seditious  libel,  in  a  certain  paper  or  publica- 
tion, entitled  "The  Wasp ;"  containing  therein, 
among  other  things,  certain  scandalous,  mali- 
cious, inflammatory,  and  seditious  matters,  of 
and  concerning  the  said  Thomas  Jefferson. 
Esq.,  then  and  yet  being  President  of  the 
United  States  of  America,  that  is  to  say,  in  one 
part  thereof,  according  to  the  tenor  and  effect 
following,  that  is  to  say  :  Jefferson  (the  said 
Thomas  Jefferson,  Esq.,  meaning)  paid  Call- 
ender  (meaning  one  James  Thompson  Call- 
ender>for  calling  Washington  (meaning  George 
Washington,  Esq.,  deceased,  late  President  of 
the  said  United  States)  a  traitor,  a  robber,  and 
a  perjurer  ;  for  calling  Adams  (meaning  John 
Adams,  Esq.,  late  President  of  the  said  United 
States)  a  hoary-headed  incendiary,  and  for 
most  grossly  slandering  the  private  characters 
of  men  who  he  (meaning  the  said  Thomas 
Jefferson)  well  knew  to  be  virtuous ;  to  the 
great  scandal  and  infamy  of  the  said  Thomas 
Jefferson,  Esq.,  President  of  the  said  United 
States,  in  contempt  of  the  people  of  the  said 
State  of  New  York,  in  open  violation  of  the 

717 


339 


SUPREME  COURT,  STATE  OF  NEW  YORK. 
[APPENDIX.] 


1804 


339*]  laws  of  the  said  State,  to  *the  evil 
example  of  all  others  in  like  case  offending, 
and  against  the  peace  of  the  people  of  the 
State  of  New  York,  and  their  dignity. 

The  defendant  applied  to  the  judge,  at  the 
circuit,  to  put  off  the  trial  of  the  cause,  on 
affidavit,  which  stated  that  James  Thompson 
Callender,  of  the  State  of  Virginia,  was  a 
material  witness  for  the  defendant,  without  the 
benefit  of  whose  testimony  the  defendant  could 
not,  as  he  was  advised,  safely  proceed  to  the 
trial  of  the  cause  ;  that  the  defendant  expected 
to  be  able  to  prove,  by  the  said  witness,  the 
truth  of  the  charge  set  forth  in  the  indictment, 
so  far  forth  as  this :  that  the  said  James  Thomp- 
son Callender  was  the  writer  of  a  certain 
pamphlet  called  "The  Prospect  Before  Us," 
and  that  he  caused  the  same  to  be  printed, 
which  pamphlet  contains  the  charges  against 
Washington  and  Adams,  as  in  the  publication 
set  forth  in  the  indictment,  &c.,  &c.,  and  that 
Mr.  Jefferson,  well  knowing  the  contents  of 
the  said  publication,  paid,  or  caused  to  be  paid, 
to  the  said  J.  T.  Callender,  two  several  sums 
of  $50  each,  one  of  which  was  prior  to  the  pub- 
lication of  the  said  pamphlet,  and  the  other 
subsequent  to  the  publication  thereof,  as  a 
reward,  thereby  showing  his  approbation 
thereof,  &c.,  &c.  That  it  had  been  wholly 
out  of  the  power  of  the  defendant  to  procure 
the  voluntary  attendance  of  the  said  Callender, 
at  that  court,  though  he  had,  at  the  last  General 
Sessions  of  the  Peace,  and  since,  until  a  few 
days  past,  good  reason  to  believe  that  he  would 
attend,  as  a  witness,  at  the  then  court ;  and 
that  the  defendant  expected  to  be  able  to  pro- 
cure the  voluntary  attendance  of  the  said  Call- 
ender at  the  next  circuit  court,  to  be  held  in 
the  said  county,  &c.,  unless  the  court  would 
grant  a  commission  to  examine  the  said  Call- 
ender, upon  the  application  of  the  defendant, 
which  he  intended  to  make,  at  the  next  term 
of  the  court,  for  that  purpose. 


to  this  the  counsel  for  the  defendant  objected  ; 
but  the  Chief  Justice  overruled  the  objection. 
The  witness  was  examined,  and  testified  that 
he  understood  the  epithets  Jefferson,  Wash- 
ington, and  Adams,  mentioned  in  the  alleged 
libel,  to  be  as  stated  in  the  innuendoes  in  the 
indictment,  and  that  he  had  seen  similar 
charges,  in  other  papers,  previous  to  the  pub- 
lication in  "The  Wasp  ;"  which  was  one  of  the 
reasons  which  induced  his  opinion  that  the 
innuendoes  were  correct. 

The  prosecutor  having  rested  on  this  evi- 
dence, the  defendant  offered  to  prove  that  he 
had  no  agency  in  devising,  writing,  or  inditing 
the  publication  in  question,  and  that  the  same 
was  handed  to  be  printed  to  a  person  in  his 
employ,  and  in  his  absence,  without  his 
knowledge.  To  the  introduction  of  this  testi- 
mony the  prosecutor  objected,  and  the  Chief 
Justice  refused  to  receive  the  same,  *un-  [*34 1 
less  the  defendant  meant  also  to  prove  that  he 
was  not  privy  to  the  printing  and  publication 
of  the  alleged  libel.  This  the  defendant's 
counsel  did  not  offer  to  prove.  The  defend- 
ant's counsel  proceeded  to  sum  up  the  evidence, 
and  read  a  paragraph  in  "The  Bee,"  a  news- 
paper printed  in  Hudson  by  Holt,  the  per- 
son in  the  alleged  libelous  piece  mentioned,  to 
show  that  he  declared  the  burden  of  the  fed- 
eral song  to  be  such  as  mentioned  in  the  libel. 
Though  this  had  not  been  previously  proved 
or  read  in  evidence,  it  was  not  objected  to.  In 
the  course  of  the  summing  up,  on  the  part  of 
the  prosecution,  the  Attorney-General  offered 
to  read  certain  passages,  from  number  7  of 
"The  Wasp,"  and  the  prospectus  contained  in 
the  first  number,  which  had  not  before  been 
shown,  or  pointed  out  to  the  defendant's 
counsel,  or  read  in  evidence.  To  this  objec- 
tions were  made,  but  the  Chief  Justice  decided 
that  the  prosecutor  had  a  right  to  read  such 
passages,  from  such  numbers  of  "The  Wasp" 
as  he  thought  fit.  The  Attornev-General  ac- 


The  Chief  Justice  refused  to  put  off  the  j  cordingly  read,  in  order  to  show  the  intent  of 


trial,  on  this  affidavit.  It  was  proved,  on  the 
part  of  the  public  prosecutor,  that  the  defend- 
34O*]  ant  was  editor  of  a  newspaper  *entitled 
"The  Wasp,"  a  series  of  which  were  printed 
and  published  in  the  city  of  Hudson.  In  one 
of  them  (number  7)  was  contained  a  piece,  from 
which  was  extracted  the  matter  charged  in  the 
indictment,  as  the  libel,  the  whole  of  which 
piece  was  read  by  the  prosecutor,  in  the  fol- 
lowing words:  "Holt  says,  the  burden  of  the 
federal  song  is,  that  Mr.  Jefferson  paid  Callen- 
der for  writing  against  the  late  administration. 
This  is  wholly  false.  The  charge  is  explicitly 
this :  Jefferson  paid  Callender  for  calling 
Washington  a  traitor,  a  robber,  and  a  perjurer  ; 
for  calling  Adams  a  hoary -headed  incendiary  ; 
and  for  most  grossly  slandering  the  private 
characters  of  men  who  he  well  knew  were 
virtuous.  These  charges,  not  a  democratic 
editor  has  yet  dared,  or  ever  will  dare,  to  meet 
in  an  open  and  manly  discussion."  It  was 
further  proved,  on  the  part  of  the  prosecutor, 
that  a  file  of  "The  Wasp,"  from  number  1  to 
number  12,  inclusive,  was  purchased  at  the 
office  where  they  had  been  printed ;  from  num- 
ber 1  to  number  5  had  been  sold  by  the  defend- 
ant, and  the  residue  by  one  of  the  journeymen 
in  his  office.  The  prosecutor  then  called  a 
witness,  to  prove  the  truth  of  the  innuendoes  ; 

718 


the  defendant  in  publishing  the  alleged  libel 
to  be  such  as  charged  in  the  indictment,  from 
number  1  of  "The  Wasp,"  the  prospectus,  and 
another  piece  from  number  7,  in  neither  of 
which  passages  was  there  anything  alleged 
against  Thomas  Jefferson,  in  his  private  or 
official  capacity.  The  Attorney-General  further 
stated,  that  from  an  examination  of  every  mim- 
ber  of  "The  Wasp,"  it  would  be  manifest  that 
the  intent  of  the  defendant  was  malicious. 

The  judge  charged  the  jury,  among  other 
things,  that  the  rule  of  law  which  confined 
jurors  to  the  consideration  of  facts  alone,  was 
strictly  applicable  to  the  case  of  libels,  where 
the  question  of  libel  or  no  libel  was  an  infer- 
ence of  law  from  the  fact ;  and  that  it  was, 
perhaps,  the  only  case  in  which  courts  invari- 
ably regarded  a  general  as  a  special  verdict; 
and  where  they  would,  ex  mero  molu,  arrest  the 
judgment,  if  the  law  was  with  the  defendant. 

His  Honor  then  read  to  the  jury  the  opinion 
of  Lord  Mansfield,  in  the  case  of  The  Dean  of 
St.  Asaph,  (as  reported  *in  a  note  in  3  [*342 
Term  Rep.,  428,  and  charged  them  that  the 
law  therein  laid  down  was  the  law  of  this 
State  ;  that  it  was  no  part  of  the  province  of  a 
jury  to  inquire  or  decide  on  the  intent  of  the 
defendant;  or  whether  the  publication  in  ques- 
tion was  true,  or  false,  or  malicious  ;  that  the 
JOHNSON'S  CASES,  3. 


1804 


THE  PEOPLE  v.  CROSWEI-L. 
[APPENDIX.] 


342 


Cent.,  5,  case 55.)  The  form  of  the  ancient 
precedents  was  agreeable  to  this  doctrine,  and 
made  the  essence  of  the  crime  to  consist  in  the 
falsehood;  and  precedents  are  the  best  evi- 
dence of  the  common  law.  There  is  a  form 
of  the  record  of  a  conviction  in  3  Inst.,  174, 
which  grounds  the  charge  on  its  falsity,  quia, 
litera  continet  in  ne  nuttam  tteritatem;  and  in- 
dictments continued,  until  very  lately,  to  use 


the  epithet 
of  a  libel. 


only  questions  for  their  consideration  and  de- 
cision were,  first,  whether  the  defendant  was 
the  publisher  of  the  piece  charged  in  the  in- 
dictment; and,  second,  as  to  the  truth  of  the 
innuendoes;  that  if  they  were  satisfied  as  to 
these  two  points,  it  was  "their  duty  to  find  him 
guilty;  that  the  intent  of  the  publisher,  and 
whether  the  publication  in  question  was  libel- 
ous  or  not,  was,  upon  the  return  of  the  postea 
to  be  decided  exclusively  by  the  court,  and 
therefore,  it  was  not  his  duty  to  give  any  opin- 
ion to  them,  on  these  points;  and  accordingly 
no  opinion  was  given. 

A  motion  was  made,  in  behalf  of  the  defend- 
ant, for  a  new  trial  on  the  following  grounds : 

1.  Because  the  trial  ought  to  have  been  put 
off,  in  order  to  give  an  opportunity  to  the  de- 
fendant to  procure  the  testimony  in  the  affi- 
davit mentioned. 

2.  That  the  piece  alleged  to  be  libelous,  and 
which  was  read  in  evidence,  from  number  7 

of  "The  Wasp,"  is  materially  and  substan-  j  tions  on  the  Statutes  (68). "  The  Court  of  Star 


'  false,"  as  a  substantive  description 
(2  St.  Tr.,  58,  90  ;  Cowp.,  672  ;  7 


Term  Rep.,  4.)  There  is  not  a  *trace  [*344 
of  the  contrary  position  to  be  met  with  in  the 
simplicity  of  ancient  times. 

The  opposite  doctrine,  which  mentions  that 
a  writing  is  equally  libelous,  whether  true  or 
false,  originated  in  a  polluted  source,  the  des- 
potic tribunal  of  the  Star  Chamber.  (Moore, 
627,  5  Co.,  125.)  The  decision  in  Coke  was 
evidently  extra  judicial,  and  so  it  has  been 
considered  by  Mr.  Barrington,  in  his  Observa- 


tially  different  from  that  charged  in  the  indict- 
ment, and  the  piece  so  read  is  not  libelous. 
3.  For  the  misdirection  of  the  judge,  in  his 


Chamber  acted  without  the  aid  of  a  jury,  and 
introduced  violent  and  oppressive  principles. 
But,  notwithstanding  the  sanction  of  that 


charge  to  the  jury,  that  in  cases  of  libel,  they   court,   Lord    Coke,   when   Attorney-General, 
were  not  the  judges  of  law  and  fact  ;  that  in    maintained   the    old    common    law    doctrine 


case  of  libel  only,  could  a  court  set  aside  a  gen- 
eral verdict  of  guilty  ;  that  the  law  laid  down  in 
the  case  of  The  Dean  of  St.  Asaph  is  the  law 
of  this  State  ;  that  the  intent  was  simply  a 


(Hob. ,  252) ;  and  in  the  trial  of  the  seven 
bishops  (4  St.  Tr.,  394),  Mr.  J.  Powell,  who, 
according  to  Lord  Camden,  was  the  only 
honest  man  upon  the  bench,  charged  the  jury, 


question  of  law,  and,  therefore,  not  to  be  left ,  that  to  maintain  a  prosecution  for  a  libel,  it 
to  the  jury,  but  to  be  decided  exclusively  by  |  must  appear  to  be  false,  malicious,  and  tend- 
the  court  on  the  return  of  the  postea,;  and  that  ;  ing  to  sedition.  The  Star  Chamber  had  no 
whether  the  piece  in  question  was  libelous  or  j  authority  to  alter  the  common  law.  Our  an- 
not,  was  not  to  be  decided  by  the  jury  ;  and  |  cestors,  when  they  emigrated  to  this  country, 
because  the  judge  did  not,  as  he  ought  to  have  brought  with  them  the  common  law,  as  their 


done,   give  his  opinion  to  the  jury,   on  the 
point  last  mentioned. 

343*]       *Several  other  points  were  made, 
but  were  abandoned  by  the  counsel,  in  the 


course  of  the  argument. 

The  cause  was  argued  in  February  Term, 
1804,  by 


Messrs.  Hamilton,  Harison,  and  W.  W. 
Ness,  for  the  defendant,  and  by 

The  Attorney-General  (Spencer)  and 
Caines  for  the  people. 


Van 
Mr. 


inheritance  and  birthright;  and  one  of  the  ear- 
liest acts  of  our  Colonial  Legislature  was  to 
assert  their  claim  to  the  en joyment  of  the  com- 
mon law.  The  decision  in  Zanger's  case,  in 


the  year  1735,  was  of  no  great  authority.  The 
times  were  then  violent;  no  great  research  or 
temper  were  displayed  on  that  occasion,  by 
the  court,  and  the  decision  was  reprobated  by 
the  public.  The  Act  of  Congress  commonly 
called  the  Sedition  Act,  was  expressly  declar- 
atory, in  that  part  of  it  which  allowed  the 
truth  to  be  given  in  evidence,  and  was  a  high 
authority  of  the  sense  of  the  nation,  as  to  the 
antecedent  law. 

The  doctrine  which  will  be  contended  for 
on  the  other  side,  that  the  truth   cannot   be 
1.  The  cause  ought  to  have  been  put  off  at   given  in  evidence,  and  is  in  no  case  to  justify 


ARGUMENTS   IN   SUPPORT   OF   THE   MOTION,   ON 
THE   PART   OF   THE   DEFENDANT. 


the  circuit,  to  have  enabled  the  defendant  to 
procure  testimony,  to  prove  the  truth  of  the 
libel.  The  law  allows  the  defendant,  upon 
an  indictment  for  a  libel,  to  give  in  evidence 
the  truth,  as  explanatory  of  his  intent.  This 
was  the  rule  of  the  common  law,  and  it  has 
never  since  been  repealed  or  altered  by  any 
competent  authority.  The  ancient  statutes 
De  Scandal.  Magnatum  (Wm.  I.,  3;  Edw.  I., 
ch.  84;  2  Rich.  II.,  ch.  5;  12  Rich.  II.,  ch.  11, 
and  1  and  2  Ph.  and  M.,  ch.  3),  made  the 
falsity  of  the  charge  a  material  ingredient  in 
the  crime.  These  statutes  have  been  consid- 
ered, by  Lord  Coke  and  others  (2  Inst.,  226, 
227;  2  Mod.,  161,  162),  as  declaratory  of  the 
common  law;  and  prosecutions  for  libels,  even 
down  to  the  period  of  the  establishment  of 
the  Court  of  Star  Chamber,  were  founded 
upon  these  statutes.  (Dyer,  155,  and  Jenk. 
JOHNSON'S  CASES,  3. 


a  libel,  although  it  should  be  promulgated 
with  the  purest  motives,  is  repugnant  to  the 
first  principles  of  policy  and  justice,  and  con- 
trary to  the  genius  *of  a  free  represent-  [*345 
ative  republic.  Freedom  of  discussion  and 
freedom  of  the  press,  under  the  guidance  and 
sanction  of  truth,  are  essential  to  the  liberties 
of  our  country,  and  to  enable  the  people  to 
select  their  rulers  with  discretion,  and  to  judge 
correctly  of  their  merits. 

The  Chief  Justice  misdirected  the  jury,  in 
saying  they  had  no  right  to  judge  of  the  intent 
and  of  the  law.  In  criminal  cases,  the  de- 
fendant does  not  spread  upon  the  record  the 
merits  of  the  defense,  but  consolidates  the 
whole  in  the  plea  of  not  guilty.  This  plea 
embraces  the  whole  matter  of  law  and  fact  in- 
volved in  the  charge,  and  the  jury  have  an 
undoubted  right  to  give  a  general  verdict, 

719 


345 


SUPREME  COURT,  STATE  OP  NEW  YORK. 
[APPENDIX.] 


1804 


which  decides  both  the  law  and  the  fact. 
The  verdict  is  final,  and  cannot  be  questioned 
by  the  court,  and  they  were  never  responsible 
for  it  by  attaint,  which  would  not  lie  in  a 
criminal  case.  (Budiell's  case,  Vaugh.,  150.) 
The  maxim  that  ad  qu&tstionemjuri*  non  respond- 
ent juratores,  applies  to  cases  where  the  facts 
are  contained  in  the  record,  and  completely 
separated  from  the  law.  '  All  the  cases  agree 
that  the  jury  have  the  power  to  decide  the  law 
as  well  as  the  fact;  and  if  the  law  gives  them 
the  power,  it  gives  them  the  right  also. 
Power  and  right  are  convertible  terms,  when 
the  law  authorizes  the  doing  of  an  act  which 
.shall  be  final,  and  for  the  doing  of  which  the 


agent  is  not  responsible. 

The    intent    constitutes    crime. 


To  deny, 


then,  to  the  jury  the  right  to  judge  of  the 
intent,  and  yet  to  require  them  to  find  a  gen- 
eral verdict*  of  guilty,  is  requiring  them  to 
commit  perjury.  The  particular  intent  con- 
stitutes the-  crime,  in  cases  of  libel,  because  the 
act  is  not,  of  itself,  unlawful;  and  where  the 
particular  intent  alone  constitutes  the  guilt, 
the  court  cannot  judge  of  that  intent,  and  the 


complicated  question  of  law  and  fact ;  and  the 
same  doctrine  was  advanced  *by  two  [*347 
of  the  judges  upon  the  trial  of  the  seven 
bishops.  During  the  existence  of  the  licens- 
ing acts,  the  judge  used  to  charge  the  jury  as 
to  the  publication  only,  for  the  intent  was  not 
then  material ;  and,  afterwards,  when  the 
licensing  acts  finally  expired,  under  William 
III.,  this  rule  it  was  found  convenient  to 
extend  to  newspaper  publications.  The  law, 
as  laid  down  in  Franklin's  case,  has  since  been 
carried  to  a  rigorous  and  alarming  extent  by 
Lord  Mansfield.  But  in  Woodfall's  case  (5 
Burr,  2661),  the  jury  fairly  met  the  new  doc- 
trine, and  found  all  they  were  directed  or  per- 
mitted to  find,  to  wit,  that  the  defendant  was 
guilty  of  printing  and  publishing  only,  and 
yet  the  court  dared  not  to  act  upon  such  a 
finding.  They  deny  to  the  jury  any  cog- 
nizance of  the  intent,  and  yet  they  require  of 
them  a  general  unconditional  verdict,  which 
embraces  that  intent.  In  Took's  case,  as  re- 
ported by  the  accurate  Mr.  Hargrave  (11  St. 
Tr.,  288),  Lord  Mansfield  acted,  however,  in 
opposition  to  his  former  practice,  and  left  to 


jury  must  find  it.  The  time  and  circum-  the  jury  the  whole  matter  in  issue,  including 
stances  are  very  material  in  cases  of  libel.  To  j  the  law,  the  fact,  and  the  criminal  intent ; 
say  "the  king  had  a  cold  "  when  the  Pre-  j  and  it  appears  from  their  speeches,  in  the 


tender  had  just  landed  in  Scotland,  was  held 
punishable  in  England.  So,  to  have  propa- 
gated a  report,  in  December  1776,  that  Gen- 
346*1  eral  *Washington  was  dead,  might 
have  deserved  punishment;  but  to  have  said 
so  in  the  year  1785  would  have  been  harmless, 
&i  least  in  a  legal  view. 

It  is  admitted  to  be  the  duty  of  the  court  to 
direct  the  jury  as  to  the  law,  and  it  is  advis- 
able for  the  jury,  in  most  cases,  to  receive  the 
law  from  the  court ;  and  in  all  cases,  they 
ought  to  pay  respectful  attention  to  the  opin- 
ion of  the  court.  But,  it  is  also  their  duty  to 
exercise  their  judgments  upon  the  law,  as 
well  as  the  fact ;  and  if  they  have  a  clear  con- 
viction that  the  law  is  different  from  what  it 
is  stated  to  be  by  the  court,  the  jury  are  bound, 
in  such  cases,  by  the  superior  obligations  of 
conscience,  to  follow  their  own  convictions. 
It  is  essential  to  the  security  of  personal  rights 
and  public  liberty,  that  the  jury  should  have 
and  exercise  the  power  to  judge  both  of  the 
law  and  of  the  criminal  intent.  After  a  gen- 
eral verdict  of  guilty,  relief,  as  to  the  question 
of  intent,  cannot  be  granted  to  a  defendant,  by 
motion  in  arrest  of  judgment,  or  by  writ  of 
error,  because  the  court  can  judge  only  from 
what  appears  upon  the  record  itself,  and  the 
context  is  not  spread  upon  the  record.  The 
prosecutor  selects  such  parts  only  of  the  libel- 
ous  publication  as  he  deems  material,  and  the 
Avhole  context  is  allowed  to  be  read  to  the  jury 
at  the  trial  (Salk.,  417) ;  but  without  any  kind 
of  meaning  or  use,  if  the  jury  are  not  to  judge 
of  the  intent.  The  court  ancl  jury,  at  the  cir- 
cuit, proceed,  therefore,  upon  one  publication, 
and  the  court  above  upon  another. 

Before  Franklin's  case  in  the  time  of  Lord 
Raymond  (9  St.  Tr. ,  855),  the  courts  never  laid  it 
down  as  a  rule  that  the  jury  were  not  to  judge 
of  "the  criminal  intent.  In  1  Leon.,  287,  an 
indictment  that  did  not  find  the  criminal  intent 
was  held  bad.  In  BusheWs  case,  it  was  de- 
cided that,  on  the  plea  of  not  guilty,  the  jury, 
a  general  verdict,  determined  the  whole 


Parliamentary  Register,  that  Lord  Camden 
and  Lord  Loughborough  always  held  and  laid 
down,  as  judges,  a  doctrine  different  from 
Lord  Mansfield  in  relation  to  the  rights  of  the 
jury.  The  English  Declarator}-  Act  of  179H 
put  this  question  at  rest  in  England ;  and  that, 
decision  is  entitled  to  the  greatest  respect,  as 
the  question  had  been  long  discussed,  and  had 
exercised  the  learning  and  researches  of  th<; 
first  lawyers  in  the  nation. 

The  Declaratory  Act  of  Congress,  which 
has  been  already  mentioned,  and  the  opinion 
of  the  Supreme  Court  of  the  United  States,  as 
delivered  by  Chief  Justice  Fay  (3  Dallas,  4),  are 
decisive  authorities  to  show  the  general  sense 
of  this  country  in  favor  of  the  common  law 
right  of  the  jury  to  judge  of  the  criminal 
intent,  and  of  the  law  as  well  as  of  the  fact. 

*3.  The  piece  read  to  the  jury  from  [*348 
No.  7  of  "The  Wasp"  was  not  libelous.  The 
defendant  refuted  only  a  charge  made  by  Holt, 
the  printerof  "  The  Bee,"  andstated  what  was 
the  true  federal  charge,  and  invited  a  discus- 
sion of  it.  He  never  averred  the  charge  to  be 
true,  nor  published  it  with  any  other  view 
than  to  correct  a  misstatement  in  the  other 
paper.  The  record  and  the  evidence  pro- 
duced differed,  and  the  latter  ought  to  have 
been  rejected.  Whether  the  whole  paper, 
taken  together,  would  or  would  not  have  been 
libelous,  was  immaterial  in  this  view,  because 
the  evidence  and  the  charge  varied  sub 
stantially.  The  prosecutor  cannot  omit  anv 
part  of  the  publication  which,  if  inserted*, 
would  alter  or  qualify  the  sense  of  the  libel. 

ARGUMENTS    ON    THE    PART    OF    THE    PEOPLE, 
AGAINST  THE  MOTION. 

1.  The  first  question  arising  in  this  case  is, 
whether  the  Circuit  Court  properly  overruled 
the  motion  to  put  off  the  trial.  It  was 
properly  overruled,  because  the  defendant  did 
not  show  due  diligence  to  obtain  the  testi- 
mony, and  there  was  no  probability  that  the 
JOHNSON'S  CASES,  3. 


1804 


witness  could  ever  be  procured,  and  if  pro- 
-cured,  the  testimony  would  not  have  been 
.admissible. 

The  affidavit  did  not  state  a  single  act  done 
by  the  defendant  to  procure  the  witness,  and 
it  was  filled  only  with  hopes  and  expecta- 
tions. There  was  sufficient  time,  previous  to 
the  trial,  to  have  procured  the  witness.  The 
fact  of  the  residence  of  the  witness  out  of  the 
State,  was  a  decisive  objection  to  the  motion, 
especially  as  the  affidavit  did  not  state  any 
good  ground  for  expecting  the  witness  at  the 
next  circuit.  The  case  in  1  Bl.  Rep.,  514, 
proves  the  affidavit  bad  on  these  grounds,  and 
if  the  affidavit  was  insufficient,  the  motion  was 
properly  overruled. 

But  if  the  witness  had  been  present,  his 
testimony  could  not  have  been  received, 
349*]  because  the  law  is  well  *settled,  that, 
-on  an  indictment  for  a  libel,  the  truth  cannot 
•be  given  in  evidence ;  and  this  rule  of  law 
rests  upon  the  most  solid  grounds,  notwith- 
standing the  popular  and  captivating  impres- 
sion of  the  contrary  doctrine. 

A  libel  is  punishable,  not  because  it  is  false, 
but  because  of  its  evil  tendency ;  its  tendency 
to  a  breach  of  the  peace.  (4  Bl.  Com.,  151 ;  3 
Woodd.,  138;  2  Hawk.,  128,  sec.  6,  129,  sec. 
7 ;  5  St.  Tr.,  532,  539.)  This  tendency  equally 
•  exists,  whether  the  libel  be  true  or  false.  The 
malicious  publication  of  truth  will  often 
-affect,  to  a  most  pernicious  degree,  the  har- 
mony and  happiness  of  society.  A  libel  is 


THE  PEOPLE  v.  CROSWELL. 
[APPENDIX.] 


848 


modern  precedents  have  laid  it  aside.  (7 
Term  Rep.,  4.)  The  declaratory  English 
statute  of  1793  (if  indeed  it  was  declaratory) 
does  not  permit  the  truth  to  be  given  in  evi- 
dence, although  the  twelve  judges,  in  their 
opinion  to  the  House  of  Lords,  apprised  the 
House  that  the  settled  law  and  practice  was 
not  to  allow  the  truth  to  be  given  in  evidence. 
The  patriotism  of  the  English  nation  has  never 
considered  this  rule  of  law  as  hostile  to  their 
liberties ;  and  in  England  it  is  admitted,  that 
personal  rights  and  freedom  of  discussion  are 
as  well  secured  and  protected  as  in  any 
country.  The  law  has  wisely  balanced  be- 
tween extremes  upon  this  subject,  and  has 
allowed  all  reasonable  and  useful  freedom  of 
inquiry,  without  'granting  the  pernicious 
indulgence  to  traduce  and  blacken  private 
reputation.  A  free  discussion  of  public 
measures,  without  descending  to  delineate 
private  vices,  is  sufficient  for  all  beneficial 
purposes.  To  expose  personal  vices,  defects, 
and  foibles,  to  the  public  eye,  corrupts  the 
morals  of  the  community,  tends  to  drive  use- 
ful men  from  office,  and  to  render  the  press  a 
vehicle  to  scatter  firebrands,  arrows  and 
death. 

2.  The  next  ground  upon  which  the  motion 
is  attempted  to  be  supported  is,  that  the  Chief 
Justice  ruled  that  the  jury  had  no  right  to 
judge  of  the  intent,  for  that  the  intent  was  a 
question  of  law.  The  jury  have,  undoubtedly, 
the  power,  in  criminal  cases,  to  decide  the  law 


-correctly  said  to  be  the  more  libelous  for  being   as  well  as  the  fact,  if  they  will   take  upon 
true,   for  it  has  an  increased,  tendency  to  a  j  themselves  the  exercise  of  it ;    but  we  must 

distinguish,  in  this  case,  between  power  and 
right.  It  is  the  right  of  the  jury  to  decide  the 
fact,  and  only  the  fact  ;  and  it  is  the  exclusive 
*province  of  the  court  to  decide  the  [*3o  1 
law  in  all  cases,  criminal  as  well  as  civil.  A 
jury  is  wholly  incompetent,  and  necessarily 
must  be,  from  the  nature  of  their  institution, 
to  decide  questions  of  law  ;  and  if  they  were 
invested  with  this  right,  it  would  be  attended 


breach  of  the  peace.  (Str.,  498.)  In  a  moral 
view,  the  malicious  relating  of  either  truth  or 
falsehood,  for  the  purpose  of  creating  misery, 
is  equally  reprehensible.  (Paley's  Moral 
Philosophy,  237,  238.)  The  intent  does  not 
constitute  the  punishable  nature  of  the  libel, 
for  the  reasons  suggested.  This  doctrine  is 
firmly  supported  by  the  uniform  language  of 
.  authorities  ;  and  it  has  been  received  for  ages 


a  principle  of  the  common  law.  (5  Co.,  I  with  mischievous  and  fatal  effects.  The  law, 
125;  Moor,  627;  Hob.,  253.)  It  is  no  objec- 1  instead  of  being  a  fixed  rule,  would  become 
tion  to  the  rule,  that  the  earliest  decisions  j  uncertain  and  capricious,  and  there  would  not 


which  we  meet  with,  expressly  recognizing  it, 
were  Star  Chamber  decisions.  The  doctrine 
in  Twyne's  case,  and  many  of  the  most  valu- 
able and  received  principles  in  our  law,  had 
their  origin  in  that  court.  It  was  not  so  much 
the  arbitrary  decisions  of  that  court,  as  its 
mode  of  proceeding,  without  trial  by  jury, 
that  drew  upon  it  the  general  odium  of  the 
nation.  It  is  not  correct,  as  stated  by  the 
opposite  counsel,  that  in  the  ancient  law  the 
libel  was  founded  upon  the  falsity  of  the 
charge.  The  Anglo-Saxon  laws  treated 
libelers  with  the  most  merciless  severity,  by 
cutting  out  the  offender's  tongue  (2  Inst., 
227),  and  Bracton  (bk.  3,  ch.  36)  goes  to  prove 


remain  any  stability  or  uniformity  of  decision, 
or  certainty  of  principle,'  in  the  administration 
of  justice.  The  reasoning  of  Lord  Mansfield, 
in  the  case  of  Tlie  Dean  of  St.  Asapli  (3  Term 
Rep.,  491,  71),  must  work  its  way  to  the  judg- 
ment and  conviction  of  every  person  who 
reads  it.  It  is  eloquent,  impressive  and  solid. 
Where  an  act  becomes  criminal  by  reason  of  a 
particular  intent,  in  that  case  the  jury  must 
judge  of  the  intent ;  but  when  the  act  is  un- 
lawful in  itself,  independent  of  the  motive, 
the  jury  have  nothing  to  do  with  the  quo 
animo.  This  is  the  case  with  libels.  They 
are  equally  injurious  to  the  public  peace,  and 
all  their  deleterious  effects  follow,  whether  the 


that  in  his  time  falsity  was  not  regarded  as  the  i  intent  be  criminal  or  not ;  therefore,  an  inquiry 


essence  of  the  libel, 
to   be  drawn  from 


The  inference  attempted 
the  statutes  De  Scandal. 
35O*]  Magnatum,  *does  not  apply  to  libels 
at  common  law.  Those  statutes  gave  new  and 
additional  remedies  ;  and  that  was  the  reason 


into  the  intent  becomes  wholly  immaterial. 
The  facts  are  also  all  spread  upon  the  record, 
and  this  forms  a  peculiar  and  strong  case  for 
the  exclusive  determination  of  the  court  upon 
the  construction  and  legal  inferences  arising 


upon  the  publication. 
If  the  jury  were  to  judge  of  the  law  in  the 


they  allowed  the  truth  to  be  given  in  evidence. 

Fuller's  case  (5  St.   Tr.,  441)  was  a  prosecu-  „     „ 

tion  founded  upon  those  statutes.  If  the ;  case  of  libels,  why  not  of  the  effect  of  writ- 
. ancient  precedents  used  the  epithet  "  false,"  it  j  ings  in  civil  cases,  and  of  the  law  in  all  cases 
was  merely  a  word  of  form,  and  the  more  \  where  the  plea  is  the  general  issue?  Surely 


.JOHNSON'S  CASES,  3. 


Y.  REP.,  BOOK  1. 


46 


721 


351 


SUPREME  COURT,  STATE  OF  NEW  YORK. 
[APPENDIX.] 


1804 


the  counsel  on  the  other  side  are  not  prepared 
to  carry  their  doctrine  to  this  extent. 

The  decision  by  Lord  Raymond,  in  Prank- 
Un'g  case  (9  St.  Tr.,  255),  and  the  uniform 
stream  of  judicial  decisions  from  that  day  to 
the  present,  have  settled  the  law,  as  it  was  laid 


with  the  guilty.  Single  drops  of  water  con- 
stantly falling  may  wear  out  adamant.  The 
best  character  of  our  country,  he  to  whom  it 
was  most  indebted,  and  who  is  now  removed 
beyond  the  reach  of  calumny,  felt  its  corrosive 
effects.  No,  he  did  not  contend  for  this  ter- 


down  by  the  Chief  Justice  at  the  circuit.  The  {  rible  liberty  of  the  press,  but  he  contended  for 
opinions  of  the  twelve  judges,  delivered  to  the  '  the  right  of  publishing  truth,  with  good  mo- 
House  of  Lords  in  1793,  are  an  authority  the  j  tives,  although  the  censure  might  light  upon 
most  commanding  and  weighty,  to  show  that  the  government,  magistrates,  or  individuals. 
352*]  the  criminal  intent  *is  not  of  the  es-  The  check  upon  the  press  ought  to  be  de- 
sence  of  the  libel,  and  that  the  courts,  and  not :  posited,  not  in  a  permanent  body  of  magis- 
the  jury,  are  the  rightful  judges  of  all  ques-  trates,  as  the  court,  but  in  an  occasional  and 
tions  of  law.  And  admitting  the  English  j  fluctuating  body,  the  jury,  who  are  to  be 


statute  of  that  year  to  have  been  intended  as 
declaratory,  it  cannot  outweigh,  in  point  of 
authority,  and  as  matter*  of  evidence,  on  a 
question  touching  the  common  law,  the  clear, 
decided,  and  uniform  language  of  the  courts. 
The  Act  of  Congress  of  1798  has  not  been 
considered  as  declaratory.  It  was  stated,  in  a 


selected  by  lot.  Judges  might  be  tempted  to 
enter  into  the  views  of  government,  and  to  ex- 
tend, by  arbitrary  constructions,  the  law  of 
libels.  In  the  theory  of  our  government,  the- 
executive  and  legislative  departments  are  oper- 
ated upon  by  one  influence,  and  act  in  one- 
course,  by  means  of  popular  election.  How, 


report  of  a  committee  of  the  House  of  Repre- '  then,  are  our  judges  to  be  independent?    How 


sentatives,  to  be  an  amelioration  of  the  com- 
mon law.  It  could  not  have  had  reference  to 
any  antecedent  common  law,  for  the  common 
law  of  England,  in  respect  to  criminal  mat- 


can  they  withstand  the  combined  force  and 
spirit  of  the  other  departments?  The  judicial 
is  less  independent  here  than  in  England,  and, 
of  course,  we  have  more  reason,  and  stronger 


ters,  was  never  adopted  by  the  Constitution  of  j  necessity,  to  cling  to  the  trial  by  jury,  as  our 


the  United  States. 


;  greatest  safety. 


3.  With  respect  to  the  objection  that  the  j  *Men  are  not  to  be  implicitly  trusted  [*354 
publication  was  not  libelous,  it  was  clearly  j  in  elevated  stations.  The  experience  of  man- 
so,  for  the  defendant  adopted  and  reiterated  j  kind  teaches  us  that  persons  have  often  arrived 
the  federal  charge,  and  so  made  it  his  own.  (  at  power  by  means  of  flattery  and  hypocrisy  ^ 
He  who  republishes  a  libel  is  equally  guilty  [  but  instead  of  continuing  humble  lovers  of  the 
with  him  who  originates  it.  (5  Term  Rep.,  j  people,  have  changed  into  their  most  deadly 
444.)  The  charge,  in  the  present  case,  was  !  persecutors. 

bold  and  audacious  ;  and  it  was  proper  to  read  j  Lord  Camden  said,  that  he  had  not  been 
the  prospectus,  to  show  the  intent,  and  as  con-  i  able  to  find  a  satisfactory  definition  of  a  libel, 
ducive  to  the  proof  of  publication.  In  that  j  He  would  venture,  however,  but  with  much 
prospectus  the  defendant  avows  his  libelous  i  diffidence,  after  the  embarrassment  which  that 
intentions.  j  great  man  had  discovered,  to  submit  to  the- 

The  following  is  a  brief  summary  of  the  j  court  the  following  definition:  A  libel  is  a 
argument  of  Hamilton,  in  reply  :  censorious  or  ridiculing  writing,  picture  or 

He  said,  that  the  two  great  questions  that  sign,  made  with  a  mischievous  and  malicious 
arose  in  the  cause  were  :  1.  Can  the  truth  be  |  intent  towards  government,  magistrates  or  in- 
given  in  evidence?  2.  Are  the  jury  to  judge  j  dividuals.  According  to  Blackstone,  it  is  a 
of  the  intent  of  the  law?  The  first  point  i  malicious  defamation  made  public,  with  intent 
might  be  more  embarrassing,  but  the  second  !  to  provoke  or  expose  to  public  hatred  and 
was  clear.  j  ridicule.  The  malice  and  intent  enter  into  the 

The  liberty  of  the  press  consisted  in  publish- 1  essence  of  the  crime,  and  must  be  proved,  and 
ing  with  impunity,  truth  with  good  motives,  ;  are,  accordingly,  to  be  left  to  the  jury,  as  par- 
and  for  justifiable  ends,  whether  it  related  to  !  eel  of  the  fact.  The  definition  of  Lord  Coke 
men  or  to  measures.  To  discuss  measures  '  does  not  oppose  this  result.  He  speaks  of  a 
without  reference  to  men  was  impracticable.  |  libel  as  having  a  tendency  to  break  the  peace. 
Why  examine  measures  but  to  prove  them  bad,  j  This,  also,  is  a  fact  to  be  proved  to  the  jury, 
and  to  point  out  their  pernicious  authors,  so  j  for  the  tendency  depends  upon  time,  manner, 
353*]  that  the  people  *might  correct  the  evil  i  circumstance,  and  must,  of  necessity,  be  a 
by  removing  the  men?  There  was  no  other  j  question  of  fact. 

way  to  preserve  liberty  and  bring  down  a  ty-  j  Texts  taken  from  the  Holy  Scriptures,  and 
rannical  faction.  If  this  right  was  not  permitted  scattered  among  the  people,  may,  in  certain 
to  exist  in  vigor  and  in  exercise,  good  men  times,  and  under  certain  circumstances,  be- 
would  become  silent ;  corruption  and  tyranny  >  come  libelous,  nay,  treasonable.  These  texts 
would  go  on,  step  by  step,  in  usurpation,  until,  j  are,  then,  innocent,  libelous  or  treasonable, 
at  last,  nothing  that  was  worth  speaking,  or  j  according  to  the  time  and  intent ;  and  surely 
writing,  or  acting  for,  would  be  left  in  our  i  the  time,  manner  and  intent,  are  matters  of 

It  is  the  intent  that  consti- 
This  is  a  fundamental  prin- 


fact  for  a  jury. 
But  he  did  not  mean  to  be  understood  as  !  tutes  the  crime. 


country. 


being  the  advocate  of  a  press  wholly  without  I  ciple  of  jurisprudence.  If  we  run  through  the 
control.  He  reprobated  the  novel,  the  vision-  several  classes  of  offenses,  we  shall  perceive 
ary,  the  pestilential  doctrine  of  an  unchecked  that  in  every  instance  the  intent  constitutes 
press,  and  ill-fated  would  be  our  country  if  and  varies  the  crime.  An  instance  was  given 
this  doctrine  was  to  prevail.  It  would  en-  in  a  Star  Chamber  case,  of  a  father  sending  a 
courage  vice,  compel  the  virtuous  to  retire,  j  reproachful  letter  to  his  son,  and  the  intent 
destroy  confidence,  and  confound  the  innocent  i  was  made  the  test  whether  it  was  to  be  ad- 
722  JOHNSON'S  CASES,  3. 


1804 


THE  PEOPLE  v.  CROSWELL. 
[APPENDIX.] 


355 


355*]  judged  a  libel.  Homicide  *is  not,  of 
itself,  murder.  Killing  in  battle,  or  in  self-de- 
fense, is  lawful.  Murder  depends  upon  the 
malicious  intent.  Nothing  is  criminal,  per  se, 
which  admits  of  a  lawful  excuse.  Whether 
crime  or  not,  will  always  depend  upon  intent, 
tendency,  quality,  manner,  &c.,  and  these 
must  be  matters  of  fact  for  the  jury.  The  law 
cannot  adjudge  a  paper  to  be  a  libel,  until  a 
jury  have  found  the  circumstances  connected 
with  the  publication. 

But  it  is  not  only  the  province  of  the  jury,in 
all  criminal  cases,  to  judge  of  the  intent  with 
which  the  act  was  done,  as  being  parce.l  of  the 
fact ;  they  are  also  authorized  to  judge  of  the 
law  as  connected  with  the  fact.  In  civil  cases, 
the  court  are  the  exclusive  judges  of  the  law, 
and  this  arose  from  the  nature  of  pleadings  in 
civil  suits  ;  for,  anciently,  matters  of  law  aris- 
ing in  the  defense,  were  required  to  be  spread 
upon  the  record,  by  a  special  plea,  and  the  jury 
were  liable  to  an  attaint  for  finding  a  verdict 
contrarv  to  law.  But  in  criminal  cases,  the 
law  and  fact  are  necessarily  blended  by  the 

feneral  issue,  and  a  general  verdict  was  always 
nal  and  conclusive,  both  upon  the  law  and 
the  fact.  Nor  were  the  jury  ever  exposed  to 
an  attaint  for  a  verdict  in  a  criminal  case ;  and 
this  is  decisive  to  prove  that  they  had  a  con- 
current jurisdiction  with  the  court  on  questions 
of  law  ;  for  where  the  law  allows  an  act  to  be 
valid  and  definitive,  it  presupposes  a  legal  and 
rightful  authority  to  do  it.  This  is  a  sure  and 
infallible  test  of  a  legal  power. 

In  England  trial  by  jury  has  always  been 
cherished  as  the  great  security  of  the  subject 
against  the  oppression  of  government ;  but  it 
never  could  have  been  a  solid  refuge  and  se- 
curity, unless  the  jury  had  the  right  to  judge 
of  the  intent  and  the  law. 

The  jury  ought,  undoubtedly,  to  pay  every  re- 
spectful regard  to  the  opinion  of  the  court;  but 
suppose  a  trial  in  a  capital  case,  and  the  jury 
are  satisfied  from  the  arguments  of  counsel, 
the  law  authorities  that  are  read,  and  their 
own  judgment,  upon  the  application  of  the 
356*]  law  to  *the  facts  (for  the  criminal  law 
consists  in  general  of  plain  principles),  that  the 
law  arising  in  the  case  is  different  from  that 
which  the  court  advances,  are  they  not  bound 
by  their  oaths,  by  their  duty  to  their  Creator 
and  themselves,  to  pronounce  according  to 
their  own  convictions?  To  oblige  them,  in 
such  a  case,  to  follow  implicitly  the  direction 
of  the  court,  is  to  make  them  commit  perjury 
and  homicide,  under  the  forms  of  law.  Their 
error  is  fatal  and  cannot  be  corrected.  The 
victim  is  sacrificed ;  he  is  executed ;  he  per- 
ishes without  redress  Was  he  a  juror,  in  such 
a  case,  he  would  endure  the  rack  rather  than 
surrender  his  own  convictions  on  the  altar  of 
power,  rather  than  obey  the  judicial  man- 
date. 

Lord  Mansfield  showed,  by  his  inconsisten- 
cies and  embarrassment  on  this  subject,  that 
he  was  supporting  a  violent  paradox.  But  he 
did  not  speak  of  the  errors  of  that  great  man 
but  with  the  highest  veneration  for  his  mem- 
ory. He  would  tread  lightly  over  his  ashes, 
and  drop  a  tear  of  reverence  as  he  passed  by. 

The  case  of  The  Seven  Bishops,  and  Fuller's 
and  Tuchin's  cases,  are  a  series  of  precedents 
in  favor  of  the  right  of  the  jury.  The  oppo- 
JOHNSON'S  CASES,  3. 


site  precedents  begin  with  Lord  Raymond, but 
they  have  not  been  uniform  nor  undisputed. 
It  has  been  constantly  a  floating  and  litigious 
question  in  Westminster  Hall.  A  series  of 
precedents  only  can  form  law.  There  can  be 
no  embarrassment  in  the  court ;  they  are  at 
liberty  to  examine  the  question  upon  princi- 
ples. The  English  Declaratory  Act  recites 
that  doubts  had  existed,  and  being  declaratory, 
it  is  evidence  of  the  sense  of  the  nation.  The 
Marquis  of  Lansdowne  observed,  in  the  House 
of  Lords,  that  the  same  declaratory  bill  had 
been  brought  in  twenty  years  before,  and  was 
then  deemed  unnecessary. 

The  question  how  far  the  truth  is  to  be  given 
in  evidence,  depends  much  on  the  question  of 
intent ;  for  if  the  intent  be  a  subject  of  in- 
quiry for  the  jury,  the  giving  the  truth  in 
evidence  is  requisite,  as  a  means  to  determine 
*the  intent.  Truth  is  a  material  ingre-  [*357 
dient  in  the  evidence  of  intent.  In  the  whole 
system  of  law  there  is  no  other  case  in  which 
the  truth  cannot  be  shown ;  and  this  is 
sufficient  to  prove  the  proposition,  which 
denies  it  in  the  present  case  to  be  a  paradox. 

The  Roman  law1  permitted  the  truth  to 
justify  a  libel.  The  ancient  English  statutes 
prove  also,  that  in  the  root  and  origin  of  our 
law,  falsity  was  an  ingredient  in  the  crime, 
and  those  statutes  were  declaratory  of  the 
common  law.  The  ancient  records  and  prece- 
dents prove  the  same  thing,  and  they  are  the 
most  authoritative  evidence  of  the  ancient  law. 
In  the  celebrated  case  of  The  Seven  Bishops,  the 
court  permitted  the  defendants  to  prove  the 
truth  of  the  facts  stated  in  the  petition.  That 
case  is  also  very  important,  in  various  views.  It 
establishes  the  necessity  of  inquiring  into  the 
circumstances  and  intent  of  the  act.  It  was 
an  instance  of  a  firm  and  successful  effort  to 
recall  the  principles  of  the  common  law,  and 
was  an  important  link  in  the  chain  of  events 
that  led  on  to  the  glorious  aera  of  their  revolu- 
tion. In  Fuller's  case,  Lord  Holt  allowed  the 
defendant  to  go  into  proof  of  the  truth  of  the 
charge.  But  while,  he  said,  he  advocated  the 
admission  of  the  truth,  he  subscribed  to  the 
doctrine  of  Want's  case,  in  Moore,  that  the 
truth  ought  only  to  be  given  in  evidence,  to 
determine  quo  animo  the  act  was  done.  It  ought 
not  to  be  a  justification  in  every  case,  for  it 
may  be  published  maliciously.  It  may  be 
abused,  to  the  gratification  of  the  worst  of 
passions,  as  in  the  promulgation  of  a  man's 
personal  defects  or  deformity. 

The  Court  of  Star  Chamber  was  the  pol- 
luted source  from  whence  the  prosecutor's  doc- 
trine was  derived.  That  *is  not  the  [*358 
court  from  which  we  are  to  expect  principles 
and  precedents  friendly  to  freedom.  It  was  a 
most  arbitrary,  tyrannical  and  hated  tribunal, 
under  the  control  of  a  permanant  body  of 
magistrates,  without  the  wholesome  restraints 
of  a  jury.  The  whigs  in  England,  after  the  Rev- 
olution, in  order  to  prop  up  their  power, 
adopted,  as  in  Franklin's  case,  the  arbitrary 
maxims  of  that  court  which  had  been  repro- 


1.— The  counsel  cited  Dig-.,  lib.,  47,  tit.  10,  ch.  18 ;  the 
following-  opinion  of  Paulus:  "Bum  qui  nocentem 
infamavit,  non  esse  ponum  equum  ob  earn  rem  con~ 
demnari,  peccata  enim  nocentium  nota  esse  ft  oportere 
et  erpedire,"  and  Perezius  on  the  Code,  Vol.  II.,  p. 
208 ;  Vinnius  on  the  Inst..  762,  lib.  4.,  tit.  4. 

723 


3oS  SUPREME  COURT,  STATE  OF  NEW  YORK. 

[APPENDIX.] 
bated  at  the  Revolution  ;  and  this  ought  to  j  tice  by  the  trial  by  jury. 


1804 
We  have  gone  fur- 


ther in  this  country  into  the  popular  principle, 
and  he  cordially  united  his  prayers  with  the 
opposite  counsel  that  the  experiment  with  us 
might  be  successful. 
The  question  on  the  present  libel  ought  to 


serve  as  a  monitory  lesson  to  rulers  at  the  pres- 
ent day,  for  such  is  the  nature,  progress  and 
effect  of  the  human  passions. 

The  right  of  giving  the  truth  in  evidence, 
in  cases  of  libels, la  all-important  to  the  liberties 

of  the  people.  Truth  is  an  ingredient  in  the  I  be  asrain  tried.  It  concerns  the  reputation  of 
eternal  order  of  things,  in  judging  of  the  qual- <  Mr.  Jefferson.  It  concerned  *deeply  [*36O 
ity  of  acts.  He  hoped  to  see  the  axiom,  that  i  the  honor  of  our  country.  It  concerned  the 
truth  was  admissible,  recognized  by  our  legisla- j  fame  of  that  bright  and  excellent  character 
tive  and  judicial  bodies.  He  always  had  a  pro- 1  General  Washington,  in  which  he  had  left  a 
found  reverence  for  this  doctrine"  and  he  felt  i  national  legacy  of  inestimable  value, 
a  proud  elevation  of  sentiment  in  reflecting  |  He  concluded  by  recapitulating  the  sub- 
that  the  act  of  Congress,  which  had  been  the  !  stance  of  the  doctrine  for  which  he  contended, 
object  of  so  much  unmerited  abuse,  and  had  in  the  following  words: 

been  most  grossly  misrepresented  by  designing  "1.  The  liberty  of  the  press  consists  in  the 
men,  established  this  great  vital  principle.  It  j  right  to  publish,  with  impunity,  truth,  with 
was  an  honorable,  a  worthy  and  glorious  effort  j  good  motives,  for  justifiable  ends,  though 
in  favor  of  public  liberty.  He  reflected  also  ;  reflecting  on  government,  magistracy,  or  indi- 
with  much  pleasure  on  the  fact  that  so  illus-  j  viduals. 

trious  a  patriot  as  Mr.  Jay  had  laid  down,  "2.  That  the  allowance  of  this  right  is  essen- 
correctly  and  broadly,  the  power  of  the  jury,  tial  to  the  preservation  of  a  free  government ; 
These  acts  were  monuments — were  consoling  :  the  disallowance  of  it  fatal. 


vestiges  of    the  wisdom  and  virtue  of    the 


administration 
them. 


and  character  that    produced 


He  maintained  that  the  common  law  applied 
to  the  United  States.  That  the  common  law 
was  principally  the  application  of  natural  law 


"3.  That  its  abuse  is  to  be  guarded  against, 
by  subjecting  the  exercise  of  it  to  the  animad- 
version and  control  of  the  tribunals  of  justice  ; 
but  that  this  control  cannot  safely  be  intrust- 
ed to  a  permanent  body  of  magistracy,  and 
requires  the  effectual  co-operation  of  court 


and  jury. 

"4.  That  to  confine  the  jury  to  the  mere 


to  the  state  and  condition  of  society.     That 
the  Constitution  of   the   United   States  used 

terms  and  ideas  which  had  a  reference  to  the  j  question  of  publication,  and  the  application  of 
common  law,  and  were  inexplicable  without :  terms,  without  the  right  of  inquiry  into  the 
its  aid.  That  the  definition  of  treason,  of  the  intent  or  tendency,  reserving  to  the  court  the 
writ  of  Tiabeas  corpus,  of  crimes  and  misde-  exclusive  right  of  pronouncing  upon  the  con- 
meanors,  &c.,  were  all  to  be  expounded  i  struction,  tendency,  and  intent  of  the  alleged 
359*]  *by  the  rules  of  the  common  law.  That  j  libel,  is  calculated  to  render  nugatory  the 
the  Constitution  would  be  frittered  away  or  j  function  of  the  jury ;  enabling  the  court  to 
borne  down  by  factions  (the  evil  genii,  the  pests  make  a  libel  of  any  writing  whatsover,  the 
of  republics)  if  the  common  law  was  not  ap-  most  innocent  or  commendable, 
plicable.  That  without  this  guide,  an}'  polit-  "5.  That  it  is  the  general  rule  of  criminal 


ical  tenet  or  indiscretion  might  be  made  a  crime 


law,  that  the  intent  constitutes  the  crime ;  and 


or  pretext  to  impeach,  convict,  and  remove  ',  that  it  is  equally  a  general  rule,  that  the  intent, 
from  office,  the  judges  of  the  federal  courts,  mind,  or  quo  animo,  is  an  inference  of  fact  to 
That  if  we  departed  from  common  law  princi-  \  be  drawn  by  the  jury. 

pies,  we  should  degenerate  into  anarchy,  and  "6.  That  if  there  are  exceptions  to  this  rule, 
become  the  sport  of  the  fury  of  conflicting  they  are  confined  to  cases  in  which  not  only 
passions.  The  transition  from  anarchy  was  to  the  principal  fact,  but  its  circumstances  can 
despotism,  to  an  armed  master.  j  be  and  are  specifically  defined  by  statute  or 

The  real  danger  to  our  liberties  was  not ,  judicial  precedent. 

from  a  few  provisional  troops.  The  road  to  "7.  That,  in  respect  to  libel,  there  is  no 
tyranny  will  be  opened  by  making  dependent !  such  specific  and  precise  definition  of  facts 
judges,  by  packing  juries,  by  stifling  the  press,  j  and  circumstances  to  be  found  ;  that,  conse- 
by  silencing  leaders  and  patriots.  His  appre- ;  quently,  it  is  difficult,  if  not  impossible,  to 
hensions  were  not  from  single  acts  of  open  ,  *pronounce  that  any  writing  is,  per  [*361 

se,  and  exclusive  of  all  circumstances,  libel- 
ous ;  that  its  libelous  character  must  depend 
on  intent  and  tendency ;  the  one  and  the  other 


open 

violence.  Murder  rouses  to  vengeance ;  it 
awakens  sympathy,  and  spreads  alarm.  But 
the  most  dangprous,  the  most  sure,  the  most 
fatal  of  tyrannies,  was,  by  selecting  and  sacrific- 


being  matter  of  fact. 


ing  single  individuals,  under  the  mask  and  j  "8.  That  the  definitions  or  descriptions  of 
forms  of  law,  by  dependent  and  partial  tribu-  j  libels  to  be  met  with  in  the  books,  founded 
nals.  Against  such  measures  we  ought  to  I  them  upon  some  malicious  or  mischievous 
keep  a  vigilant  eye,  and  take  a  manly  stand.  '  intent  or  tendency,  to  expose  individuals  to 


Whenever  they  arise,  we  ought  to  resist,  and 
resist,  till  we  have  hurled  the  demagogues  and 
tyrants  from  their  imagined  thrones.  He  con- 
curred most  readily  with  the  learned  counsel 
opposed  to  him,  in  the  opinion  that  the  En- 
glish were  a  free,  a  gloriously  free  people, 
what  country  is  free  where  the  people  have  a 


hatred  or  contempt,  or  to  occasion  a  disturb- 
ance or  a  breach  of  the  peace. 

"9.  That,  in  determining  the  character  of 
a  libel,  the  truth  or  falsehood  is,  in  the  nature 
of  things,  a  material  ingredient,  though  the 
truth  may  not  always  be  decisive ;  but  being 


abused  may  still  admit   of  a  malicious  and 

representation  in  the  government,  so  that  no  i  mischievous  intent,  which  may  constitute  a 
law  can  pass  without  their  consent ;  and  where  !  libel. 

they  are  secured  in  the  administration  of  jus-       "  10.  That,  in  the  Roman  law,  one  source 
724  JOHNSON'S  CASES,  3. 


1804 


THF 


PEOPLE  v.  CROSWELL. 
[APPENDIX.] 


361 


of  the  doctrine  of  a  libel,  the  truth,  in  cases 
interesting  to  the  public,  was  given  in  evi- 
dence ;  that  the  ancient  statutes,  probably 
declaratory  of  the  common  law,  make  the 
falsehood  an  ingredient  of  the  crime ;  that  the 
ancient  precedents  in  the  courts  of  justice  cor- 
respond, and  that  the  precedents  to  this  day 
charge  a  malicious  intent. 

"11.  That  the  doctrine  of  excluding  the 
truth,  as  immaterial,  originated  in  a  tyrannical 
and  polluted  source,  in  the  Court  of  Star 
Chamber ;  and  though  it  prevailed  a  consider- 
able length  of  time,  yet  there  are  leading  prec- 
edents down  to  the  Revolution,  and  ever 
since,  in  which  a  contrary  practice  prevailed. 

"12.  That  the  doctrine  being  against  reason 
and  natural  justice,  and  contrary  to  the  origin- 
al principles  of  the  common  law,  enforced  by 
statutory  provisions,  the  precedents  which 
support  it  deserve  to  be  considered  in  no  bet- 
ter light  than  as  a  malus  usus,  which  ought  to 
be  abolished. 

"13.  That,  in  the  general  distribution  of 
power,  in  any  system  of  jurisprudence,  the 
cognizance  of  law  belongs  to  the  court,  of  fact 
J562*]  to  the  jury ;  that  as  often  as  *they  are 
not  blended,  the  power  of  the  court  is  abso- 
lute and  exclusive.  That,  in  civil  cases,  it  is 
always  so,  and  may  rightfully  be  so  exerted. 
That,  in  criminal  cases,  the  law  and  fact  being 
always  blended,  the  jury,  for  reasons  of  a 
political  and  peculiar  nature,  for  the  security 
of  life  and  liberty,  are  intrusted  with  the  pow- 
er of  deciding  both  law  and  fact. 

"14.  That  this  distinction  results:  1.  From 
the  ancient  forms  of  pleading,  in  civil  cases  ; 
none  but  special  pleas  being  allowed  in  mat- 
ters of  law  ;  in  criminal,  none  but  the  general 
issue.  2.  From  the  liability  of  the  jury  to 
attaint  in  civil  cases,  and  the  general  power  of 
the  court,  as  its  substitute,  in  granting  new 
trials,  and  from  the  exemption  of  the  jury 
from  attaint,  in  criminal  cases,  and  the  defect 
of  power  to  control  their  verdicts  by  new 
trials ;  the  test  of  every  legal  power  being  its 
capacity  to  produce  a  definitive  effect,  liable 
neither  to  punishment  nor  control. 

"15.  That,  in  criminal  cases,  nevertheless, 
the  court  are  the  constitutional  advisers  of 
the  jury,  in  matters  of  law,  who  may  com- 
promit  their  consciences  by  lightly  or  rashly 
disregarding  that  advice ;  but  may  still  more 
compromit  their  consciences  by  following  it, 
if,  exercising  their  judgments  with  discretion 
and  honesty,  they  have  a  clear  conviction  that 
the  charge  of  the  court  is  wrong." 

Cur.  ad.  milt. 

On  the  last  day  of  this  term  (MayTerm, 
1804),  the  Chief  Justice  observed  that  the  court, 


being  equally  divided  in  opinion  (Mr.  Justice 
Spencer  having,  while  Attorney-General,1  con- 
ducted the  prosecution  against  the  defendant), 
the  motion  for  a  new  trial  was  lost ;  that  they 
were  prepared  to  state  their  reasons  at  length*; 
but  that  it  was  not  ^thought  requisite  ;4  [*363 
and  he  took  it  for  granted  that  the  public  pros- 
ecutor was  entitled  to  move  for  judgment  on 
the  verdict.  (CartKdge  v.  Eyles,  Barnes,  442.) 

No  motion,  however,  was  made  for  judg- 
ment. 

The  following  are  the  opinions  of  KENT,  J., 
and  LEWIS,  Ch.  J.,  as  prepared,  and  intended  . 
to  have  been  delivered  by  them: 

KENT,  J.  The  defendant  was  convicted,  at 
the  last  Circuit  Court  in  Columbia  County,  of 
printing  and  publishing  a  scandalous,  mali- 
cious and  seditious  libel  upon  Thomas  Jeffer- 
son, the  President  of  the  United  States.  And 
a  motion  was  made  at  the  last  term  for  a  new 
trial,  on  the  ground  of  a  misdirection  of  the 
judge.  The  motion  was  principally  founded 
upon  the  two  following  objections: 

1.  That  the  Chief  Justice  charged  the  jury 
that  it  was  not  their  province  to  inquire  or 
decide  on  the  intent    of    the  defendant,   or 
whether  the  publication  was  libelous  or  not. 
That  those  were  questions  of  law,  to  be  de- 
cided exclusively  by  the  court,  upon  the  return 
of  the  postea  ;  and  that  the  only  points  for  their 
consideration  were,  *first,  whether  the  [*364 
defendant  published  the  paper  stated  in  the  in- 
dictment; and  second,  whether  the  innuendoes 
were  true,  and  that  if  they  were  satisfied  of 
these  two  points,  it  was  their  duty  to  find  the 
defendant  guilty. 

2.  That  he  denied  to  the  defendant  the  op- 
portunity of  producing  testimony  to  prove  the 
truth  of  the  libel,  on  the  ground  that  the  de- 
fendant could  not  be  permitted  to  give  in  evi- 
dence to  the  jury,  the  truth  of  the  charges  con- 
tained in  the  libel. 

I  shall  consider  these  two  very  important 
questions  in  the  order  in  which  they  have  been 
stated. 

1.  The  criminality  of  the  charge  in  the  in- 
dictment consisted  in  a  malicious  and  seditious 
intention.  (Hawk.,  tit.  Libel,  sec.  1  ;  2  Wile., 
403  ;  1  Esp.  Cas.,  228.)  There  can  be  no  crime 
without  an  evil  mind.  Actm  non  facit  reum, 
nisi  mens  sit  rea.  The  simple  act  of  publica- 
tion, which  was  all  that  was  left  to  the  jury, 
in  the  present  case,  was  not,  in  itself,  criminal. 
It  is  the  application  to  times,  persons  and  cir- 
cumstances ;  it  is  the  particular  intent  and 
tendency  that  constitute  the  libel.  Opinions 
and  acts  may  be  innocent  under  one  set  of 
circumstances,  and  criminal  under  another. 
This  application  to  circumstances,  and  this 
particular  intent,  are  as  much  matters  of  fact 


1. — He  was  appointed  one  of  the  judges  of  this 
court,  February  3,  1804,  in  the  place  of  Mr.  Justice 
Kadcliff ,  who  had  resigned  his  seat. 

2.— In  the  case  of  Chandler  v.  The  Hundred  of 
Sunning-  (Barnes,  458),  on  a  case  made  on  a  verdict, 
subject  to  the  opinion  of  the  court,  though  the 
judges  were  equally  divided,  each  of  them  deliver- 
ed their  opinions,  but  no  judgment  was  given  on 
the  verdict.  In  Bolton  and  Watt  v.  Bull  (2  H.  Bl., 
463),  on  a  case  reserved  at  the  sitting's,  the  judges 
were  equally  divided,  and  gave  their  reasons  sepa- 
rately, but  no  judgment  was  rendered.  See,  also, 
The  King  v.  The  Inhabitants  of  Criswell,  3  Term 
Rep.,  707.  In  Nelson  v.  Tucker  (3  Bos.  &  Pull.,  257), 

JOHNSON'S  CASES,  2. 


the  judges  were  equally  divided  in  opinion,  and 
gave  their  reasons  seriatim,  but  on  the  intimation 
of  the  counsel  for  the  plaintiff,  that  they  wished 
judgment  to  be  pronounced  against  th«>ir  client,  in 
order  that  they  might  bring  a  writ  of  error,  Heath, 
J.,  withdrew  his  opinion,  and  the  court  gave  judg- 
ment for  the  defendant.  In  Smith  v.  Taylor  (4  Bos. 
&  Pull.),  196,  or  Vol.  I.,  N.  S  ,  there  was  a  motion  for 
a  new  trial,  and  the  judges,  who  gave  their  reasons 
at  large,  being  equally  divided,  no  rule  was  made, 
and  the  plaintiff  retained  his  verdict.  See,  also, 
Jackson,  ex  dem.  Rensselaer,  v.  Whitlock,  1  Johns. 
Cases,  213;  Foot  v.  Tracy.  1  Johns.  Rep.,  46,  and 
Bird  et  al.  v.  Pierpont,  1  Jc.uns.  Rep.,  117. 

725 


364 


SUPREME  COURT,  STATE  OF  NEW  YORK. 
[APPENDIX.] 


1804 


as  the  printing  and  publishing.  (Winne's 
Eunomus,  dial.  3,  sec.  53.)  Where  an  act, 
innocent  in  itself,  becomes  criminal,  when 
done  with  a  particular  intent,  that  intent  is  the 
material  fact  to  constitute  the  crime.  (Lord 
Mansfield,  3  Term  Rep.,  429,  in  the  note.) 
And  I  think  there  cannot  be  a  doubt,  that  the 
mere  publication  of  a  paper  is  not,  per  *e, 
criminal ;  for  otherwise,  the  copying  of  the 
indictment  by  the  clerk,  or  writing  a  friendly 
and  admonitory  letter  to  a  father,  on  the  vices 
of  his  son,  would  be  criminal.  The  intention 
of  the  publisher,  and  every  circumstance  at- 
tending the  act,  must  therefore  be  cognizable 
by  the  jury  as  questions  of  fact.  And  if  they 
are  satisfied  that  the  publication  is  innocent ; 
that  it  has  no  mischievous  or  evil  tendency ; 
365*]  that  the  *mind  of  the  writer  was  not'in 
fault ;  that  the  publication  was  inadvertent,  or 
from  any  other  cause,  was  no  libel,  how  can 
they  conscientiously  pronounce  the  defendant 
guilty  from  the  mere  fact  of  publication  ?  A 
verdict  of  guilty  embraces  the  whole  charge 
upon  the  record,  and  are  the  jury  not  permitted 
to  take  into  consideration  the  only  thing  that 
constitutes  the  crime,  which  is  the  malicious 
intent  ?  According  to  the  doctrine  laid  down 
at  the  trial,  all  that  results  from  a  verdict  of 
guilty  is,  that  the  defendant  has  published  a 
certain  paper,  and  that  it  applies  to  certain 
persons,  according  to  the  innuendoes ;  but 
whether  the  paper  be  lawful  or  unlawful ; 
whether  it  be  criminal,  or  innocent,  or  merit- 
orious ;  whether  the  intent  was  wicked  or 
virtuous,  are  matters  of  law  which  do  not  be- 
long to  the  jury,  but  are  reserved  for  the  de- 
termination of  the  court.  The  prosecutor  se- 
lects and  sets  forth  such  parts  only  of  the  paper 
as  he  deems  exceptionable,  but  the  defendant 
is  allowed  (2  Salk.,  417  ;  3  Term  Rep.,  429)  to 
read  in  evidence  the  context,  in  order  to  deter- 
mine the  intent,  and  yet  how  can  this  evidence 
be  material  or  pertinent,  if  the  jury  are  not  to 
judge  of  that  intent  ?  Or  how  can  it  be  mate- 
rial to  the  court  above,  on  the  motion  in  arrest 
of  judgment,  when  that  motion  is  founded 
entirely  on  the  charge  as  it  appears  upon  the 
face  of  the  record  ?  To  bear  out  the  doctrine 
the  courts  have  involved  themselves  in  incon- 
sistency and  paradox ;  and  I  am  induced  to 
believe  that  it  is  a  departure  from  the  ancient, 
simple,  and  true  theory  of  trial  by  jury  in 
criminal  cases.  To  deny  to  the  jury  the  right 
of  judging  of  the  intent  and  tendency  of  the 
art  is  to  take  away  the  substance,  and  with  it 
the  value  and  security  of  this  mode  of  trial. 
It  is  to  transfer  the  exclusive  cognizance  of 
crimes  from  the  jury  to  the  court,  and  to  give 
the  judges  the  absolute  control  of  the  press. 
There  is  nothing  peculiar  in  the  law  of  libels 
to  withdraw  it  from  the  jurisdiction  of  the 
jury.  The  twelve  judges,  in  their  opinion  to 
36G*]  the  House  of  Lords  (April,  *1792),  ad- 
mitted that  the  general  criminal  law  of  En- 
gland was  the  law  of  libel.  And  by  the  general 
criminal  law  of  England  the  office  of  the  jury 
is  judicial.  "They  only  are  the  judges,"  as 
Lord  Somers  observes  (Essay  on  the  Power  and 
Duty  of  Grand  Juries,  p.  7),  "from  whose 
sentence  the  indicted  are  to  expect  life  or  death. 
Upon  their  integrity  and  understanding,  the 
lives  of  all  that  are  brought  into  judgment  do 


ultimately  depend. 
726 


From  their  verdict  there 


lies  no  appeal.  They  resolve  both  law  and 
fact,  and  this  has  always  been  their  custom 
and  practice." 

If  the  criminal  intent  be,  in  this  case,  an  in- 
ference of  law,  the  right  of  the  jury  is  still  the 
same.  In  every  criminal  case,  upon  the  plea 
of  not  guilty,  the  jury  may,  and  indeed  they 
must,  unless  they  choose  to  find  a  special  ver- 
dict, take  upon  themselves  the  decision  of  the 
law,  as  well  as  the  fact,  and  bring  in  a  verdict 
as  comprehensive  as  the  issue ;  because,  in 
every  such  case,  they  are  charged  with  the 
deliverance  of  the  defendant  from  the  crime  of 
which  he  is  accused*  The  indictment  not  only 
sets  forth  the  particular  fact  committed,  but  it 
specifies  the  nature  of  the  crime.  Treasons 
are  laid  to  be  done  traitorously,  felonies, 
feloniously,  and  public  libels  to  be  published 
seditiously.  The  jury  are  called  to  try,  in  the 
case  of  a  traitor,  not  only  whether  he  commit- 
ted the  act  charged;  but  whether  he  did  it 
traitorously  :  and  in  the  case  of  a  felon,  not 
only  whether  he  killed  such  a  one,  or  took  such 
a  person's  property,  but  whether  he  killed  with 
malice  prepense,  or  took  the  property  feloniously. 
So  in  the  case  of  a  public  libeler,  the  jury  are 
to  try,  not  only  whether  he  published  such  a 
writing,  but  whether  he  published  it  seditious- 
ly. In  all  these  cases,  from  the  nature  of  the 
issue,  the  jury  are  to  try  not  only  the  fact,  but 
the  crime,  and  doing  so,  they  must  judge  of 
the  intent,  in  order  to  determine  whether  the 
charge  be  true,  as  set  forth  in  the  indictment. 
(Dagge  on  criminal  Law,  bk.  1.,  ch.  11,  sec.  2.) 
The  law  and  fact  are  so  involved,  that  the 
*jury  are  under  an  indispensable  neces-[*36  7 
sity  to  decide  both,  unless  they  separate  them 
by  a  special  verdict. 

This  right  in  the  jury  to  determine  the  law 
as  well  as  the  fact  has  received  the  sanction  of 
some  of  the  highest  authorities  in  the  law. 

-The  inquest,  says  Littleton  (sec.  368),  may 
give  a  verdict  as  general  as  the  charge,  if  they 
will  take  upon  themselves  the  knowledge  of 
the  law.  The  same  principle  is  admitted  by 
Coke,  and  other  ancient  judges  (Co.  Litt.,  228 
«;  4  Co.,  53  b,  Wrey,  Ch.  J. ;  Hob.,  227); 
although  they  allege  it  to  be  dangerous  for  the 
jury  to  do  so,  because  if  they  mistake  the  law, 
they  run  the  hazard  of  an  attaint.  As  the 
jury,  according  to  Sir  Mathew  Hale,  assist  the 
judge  in  determining  the  matter  of  fact,  so  the 
judge  assists  the  jury  in  determining  points  of 
law.  And  it  is  the  conscience  of  the  jury,  he 
observes,  that  must  pronounce  the  prisoner 
guilty  or  not  guilty.  It  is  they,  and  not  the 
judge,  that  take  upon  them  his  guilt  or  inno- 
cence. (Hist.  Com.  Law,  ch.  12 ;  H.  H.  P.  C., 
Vol.  II.,  313.)  Blackstone,  in  his  Commentaries 
(Vol  IV.,  p.  354),  when  speaking  of  the  verdict 
of  the  jury  in  criminal  cases,  says,  that  the 
jury  may  find  a  special  verdict  where  they 
doubt  the  matter  of  law,  and,  therefore,  choose 
to  leave  it  to  the  determination  of  the  court ; 
though  they  have  an  unquestionable  right  to 
determine  upon  all  the  circumstances,  and 
find  a  general  verdict,  if  they  will  hazard  a 
breach  of  their  oaths.  The  Statute  of  Westm. 
2  (13  Edw.  I.),  which  declared  that  the  justices 
of  assize  should  not  compel  the  jurors  to  say 
precisely  whether  it  be  a  disseisin  or  not,  so  as 
they  state  the  truth  of  the  fact  and  pray  the 
aid  of  the  justices,  was  in  affirmance  of  the 
JOHNSON'S  CASES.  3. 


1804 


THE  PEOPLE  v.  CROSWELI,. 
[APPENDIX.] 


367 


to    their    conception    of 
all     direction     by     the 


•common  law  (9  Co.,  13  a;  Plowd.,  92),  and 
was  intended  for  the  relief  of  the  jurors,  and 
that  they  should  not  be  compelled  to  find,  at 
their  peril,  things  doubtful  to  them  in  law. 
This  indulgence  to  the  jury,  and  which  ex- 
tended to  all  cases  civil  and  criminal,  is  the 
most  decisive  proof  that  on  a  general  verdict 
the  jury  were  obliged  to  judge  of  the  whole 
matter  in  issue,  and  that  the  direction  of  the 
3G8*]  *court  upon  the  point  of  law  was  not 
conclusive  upon  their  judgments,  or  binding 
on  their  consciences.  The  twelve  judges,  in 
their  opinion,  to  which  I  ^have  alluded,  "  dis- 
claim the  folly  of  endeavoring  to  prove  that  a 
jury  who  can  find  a  general  verdict,  cannot 
take  upon  themselves  to  deal  with  matter  of 
law  arising  on  a  general  issue,  and  to  hazard 
a  verdict  made  up  of  the  fact  and  of  the  matter 
of  law,  according 
the  law,  against 
judge." 

To  meet  and  resist  directly  this  stream  of 
authority  is  impossible.  But  while  the  power 
of  the  jury  is  admitted,  it  is  denied  that  they 
can  rightfully  or  lawfully  exercise  it,  without 
compromitting  their  consciences,  and  that  they 
are  bound  implicitly,  in  all  cases,  to  receive 
the  law  from  the  court.  The  law  must,  how- 
ever, have  intended,  in  granting  this  power  to 
a  jury,  to  grant  them  a  lawful  and  rightful 
power,  or  it  would  have  provided  a  remedy 
against  the  undue  exercise  of  it.  The  true 
criterion  of  a  legal  power  is  its  capacity  to 
produce  a  definitive  effect  liable  neither  to  cen- 
sure nor  review.  And  the  verdict  of  not 
guilty,  in  a  criminal  case,  is,  in  every  respect, 
absolutely  final.  The  jury  are  not'  liable  to 
punishment,  nor  the  verdict  to  control.  No 
attaint  lies,  nor  can  a  new  trial  be  awarded. 
The  exercise  of  this  power  in  the  jury  has 
been  sanctioned  and  upheld  in  constant  activ- 
ity from  the  earliest  ages.  It  was  made*a 
question  by  Bracton  (fdl.  119,  a  b),  who  was 
to  sit  in  judgment  upon  and  decide  points  of 
law  on  appeals  in  capital  cases.  It  could  not 
be  the  king,  he  says,  for  then  he  would  be 
both  prosecutor  and  judge ;  nor  his  justices, 
for  they  represented  him.  He  thinks,  there- 
fore, the  curia  and  pares  were  to  be  judges  in 
all  cases  of  life  and  limb,  or  disherison  of 
heir,  where  the  crown  was  the  prosecutor.' 
And,  indeed,  it  is  probable  that  in  the  earlier 
stages  of  the  English  juridical  history,  the 
jury,  instead  of  deciding  causes  under  the 
direction  of  the  judge,  decided  all  causes  with- 


out the  assistance  of  the  judge, 
on  the  Statutes,  18,  26,  311.) 


(Barrington 


*The  maxim  that  ad  qucestiomm  legi* 
respondent  judices,  ad  qimstionem  facli  respond- 
ent juratores,  is  the  ground  of  the  doctrine, 
that  the  jury  are  not  in  any  case  to  judge  of 
the  law  ;  and  where  the  law  and  fact  can  be 
separated,  as  in  the  case  of  demurrer  and 
special  verdict,  the  maxim  is  literally  true. 
<Vaughan,  149.)  But  a  libel  is  a  compound  of 
law  and  fact.  To  separate  them  is  difficult 
and  dangerous,  and,  without  a  special  verdict, 
the  jury  are  authorized  and  bound  to  judge 
from  a  combined  consideration  of  both.  If 
1he  axiom  be  construed  so  strictly  as  to  ex- 
clude the  jury  in  every  case  from  any  concern 
with  questions  of  law" that  arise  on 'the  trial, 
it  would  equally  exclude  the  court  from  any 
^JOHNSON'S  CASES,  3. 


capacity  or  right  to  consider  the  fact,  and  no 
new  trial  could  be  awarded  on  the  ground 
that  the  jury  had  mistaken  the  fact.  But  the 
maxim  is  to  be  received,  on  the  one  side  as 
well  as  on  the  other,  with  some  qualification, 
to  be  defined  by  the  necessity  of  the  case  and 
the  practice  of  the  courts. 

The  first  case  I  have  met  with,  in  which  the 
question  arose  between  the  jurisdiction  of  the 
court  and  jury,  was  upon  the  trial  of  Lilburne 
for  high  treason,  in  1549.  (2  St.  Tr.,  69,  81, 
82.)  He  insisted,  in  coarse  but  intelligible 
language,  that  the  jury  were  judges  of  law 
and  fact;  but  the  court,  in  language  equally 
rude,  denied  it.  He  insisted  upon  the  privi- 
lege of  reading  law  to  the  jury,  but  the  court 
refused  it.  The  jury,  however,  acquitted  him, 
and  they  declared  that  they  took  themselves  to 
be  judges  of  the  law  as  well  as  of  the  fact, 
notwithstanding  the  court  had  said  otherwise. 
Bushell's  case  followed  soon  after,  and  it  is, 
in  every  view,  important.  (Vaughan,  135  ;  Sir 
T.  Jones,  13.)  He  was  one  of  the  jurors  on 
the  trial  of  an  indictment  for  a  misdemeanor, 
before  the  Court  of  Oyer  and  Terminer  in  Lon- 
don, and  was  fined  and  committed  because  he 
and  the  other  jurors  acquitted  the  defendant 
against  full  proof,  and  against  the  direction  of 
the  court  in  matter  of  law.  He  was  brought 
into  the  Court  of  C.  B.  upon  *habeas  [*3lO 
coitus  and  discharged  ;  and  Lord  Chief  Juttiee 
Vaughan  delivered  upon  that  occasion,  in  be- 
half of  the  court,  a  learned  and  profound  ar- 
gument in  favor  of  the  rights  of  the  jury.  He 
admitted  that  where  the  law  and  fact  were 
distinct,  the  provinces  of  the  court  and  jury 
were  exclusive  of  each  other,  so  that  if  it  be 
demanded  what  is  a  fact,  the  judge  cannot 
answer  it,  and  if  what  is  the  law,  the  jury 
cannot  answer  it.  But  that  upon  all  general 
isssues,  where  the  jury  find  a  general  verdict, 
they  resolve  both  law  and  fact  completely,  and 
not  the  fact  by  itself. 

Upon  the  trial  of  Algernon  Sidney  (3  St. 
Tr.,  817),  the  question  did  not  distinctly  arise, 
but  Lord  Chief  Justice  Jeffries,  in  his  charge 
to  the  jury,  told  them  it  was  the  duty  of  the 
court  to  declare  the  law  to  the  jury,  and  the 
jury  were  bound  to  receive  their  declaration 
of  the  law.  They  did,  in  that  case,  unfortu- 
nately receive  the  law  from  the  court,  and 
convicted  the  prisoner,  but  his  attainder  was 
afterwards  reversed  by  Parliament ;  and  the 
law,  as  laid  down  on  that  trial,  was  denied 
and  reprobated,  and  the  violence  of  the  judge, 
and  the  severity  of  the  jury,  held  up  to  the 
reproach  and  detestation  of  posterity.  The 
case  of  the  Seven  Bishops  (4  St.  Tr.)  is  a  pre- 
cedent of  a  more  consoling  kind ;  it  was  an 
auspicious  and  memorable  instance  of  the  ex- 
ercise of  the  right  of  the  jury  to  determine 
both  the  law  and  the  fact.  I  shall  have 
occasion  to  notice  this  case  hereafter,  and  shall 
only  observe  for  the  present  that  the  counsel 
on  the  trial  went  at  large  into  the  considera- 
tion of  the  law,  the  intent  and.  the  fact;  and 
although  the  judges  differed  in  opinion  as 
to  what  constituted  a  libel,  they  all  gave  their 
opinions  in  the  style  of  advice,  not  of  direc- 
tion, and  expressly  referred  the  law  and  the 
fact  to  the  jury.  Mr.  J.  Holloway,  in  partic- 
ular, observed,  that  whether  libel  or  not,  de- 
pended upon  the  ill  intent,  and  concluded  by 

727 


370  SUPREME  COURT,  STATE  OF  NEW  YORK.  1804 

— -r~~  [.APPENDIX.] 

telling  the  jury  it   was  left  to  them   to  de-   be  received  on  his  single,  although,  undoubt- 
termine.  edly,  very  respectable  authority.      If  he  al- 

In  the  case  of  Tuchin  (5  St.  Tr.,  542),  who  |  luded  to  the  case  of  Oneby,  or  to  any  of  the 
was  tried  for  a  libel  before  C liief  Justice  Holt,  |  important  cases  in  homicide  which  are  there 
371*]  in  1704,  the  judge,  in  his  *charge  to  |  cited,  they  do  not  warrant  the  doctrine,  for 
the  jury,  expressly  submitted  to  them  the  j  those  were  cases  of  special  verdicts,  where 
whole  question  on  the  libel.  After  reasoning  |  the  malice  is  referred  to  the  judgment  of  the 
on  the  libelous  nature  of  the  publication,  he  j  court.  To  say  that  the  jury  cannot  rightfully 
observes  that  now  they  are  to  consider  wheth-  judge  of  the  mains  animus  of  the  prisoner,  in 


er  the  words  he  had  read  to  them  did  not  tend 
to  beget  an  ill  opinion  of   the  administration 


which  his  crime  consists,  is,  in  my  opinion,  a 
monstrous    proposition,    destructive    of    the 


of  the  government.  |  essence  and  excellence  of  trial  by  jury,  and 

The  weight  of  the  decisions  thus  far  was  i  inconsistent  with  the  genius  of  the  English 
clearly  in  ^avor  of  the  right  of  the  jury  to  !  judiciary,  as  drawn  from  its  history  and 
decide  generally  upon  the  law  and  the  fact,  i  constitutional  policy. 

But,  since  the  time  of  Lord  Holt,  the  question  j  To  return  to  the  case  of  Franklin.  The 
before  us  has  been  an  unsettled  and  litigious  |  counsel  for  the  defendant,  who  were  very 
one  in  Westminster  Hall.  Lord  Mansfield  was  |  able  lawyers,  contended  that  the  jury  had  a 
of  opinion  (3  Term  Rep.,  429)  that  the  formal  j  right  to  judge  of  the  intent  and  tendency  of 
direction  of  every  judge,  since  the  Revolution,  ;  the  publication  ;  but  Lord  Raymond,  in  his 
had  been  agreeable  to  that  given  in  the  case  ;  direction  to  the  jury,  went  the  whole  length 


of  The  Dean  of  St.  Asaph ;  but  the  earliest 
case  he  mentions  is  that  of  Franklin,  before 
Lord  Raymond,  in  1731  (9  St.  Tr.,  255;;  and 
that  has  been  considered  as  the  formal  intro- 
duction of  the  doctrine  now  under  review. 
The  charge  of  Sir  John  Holt,  in  Tuchin' a  case; 
appears  to  me  to  be  decidedly  to  the  contrary  ; 
and  in  another  case  before  Holt  (11  Mod.,  86, 
Queen  v.  Brown),  the  Attorney-General  admit- 
ted that  the  jury  were  the  judges  quo  animo 
the  libel  was  made.  The  new  doctrine,  as  laid 
down  in  the  present  case,  may,  therefore,  be 
referred  to  the  case  of  Franklin.  But  in 
Oneby's  case  (2  Ld.  Raym.,  1485  ;  2  Str.,  766), 
who  was  tried  a  few  years  before  for  murder, 
Lord  Raymond  and  the  Court  of  King's  Bench 
advanced  a  general  doctrine,  which  may  per- 
haps be  supposed  to  curtail  the  powers  of 
the  jury  as  much  as  the  decision  in  the  case 
before  us.  He  said,  that  all  the  judges  agreed 
in  the  proposition  that  the  court  were  the 
judges  of  the  malice,  and  not  the  jury ;  that 
upon  the  trial  the  judge  directs  the  jury,  as  to 
the  law  arising  upon  the  facts,  and  the  jury 
may,  if  they  think  proper,  give  a  general  ver- 
dict ;  or  if  they  find  a  special  verdict  the  court 
is  to  form  their  judgment  from  the  facts 
found,  whether  there  was  malice  or  not ;  be- 
cause, in  special  verdicts,  the  jury  never  find, 
in  express  terms,  the  malice,  but  it  is  left  to 
be  drawn  by  the  court. 

372*]  *The  case  to  which  this  opinion  ap- 
plied was  that  of  a  special  verdict,  and  taking 
it  together,  I  see  nothing  in  it  inconsistent 
with  my  view  of  the  subject.  But  Sir  Michael 
Foster,  in  his  Discourse  on  Homicide  (p.  255, 
256,  257),  and  probably  with  this  decision  in 
view,  lays  it  down  as  a  rule  that  the  mains 
animus,  which  is  to  be  collected  from  all  the 
circumstances,  is  a  question  for  the  court  and 
not  for  the  jury  ;  and  that  where  the  law  is 
clear,  the  jury,  under  the  direction  of  the 
court,  in  point  of  law,  may,  and  if  they  are 
well  advised,  always  will  find  a  general  ver- 
dict, conformably  to  such  direction,  for,  he 
adds,  ad  qucesUonem  juris  non  respondent  jura- 
tores.  This  opinion,  laid  down  in  this  unquali- 
fied manner,  while  it  admits  the  power  goes 
far  to  hold  that  the  jury  are  of  right  bound  in 
all  cases  to  receive  as  conclusive  the  direction 
of  the  court.  He  refers,  however,  to  no  de- 
cisions to  warrant  this  opinion,  and  it  must 
728 


of  the  charge  in  the  present  ca.se.  He  told 
the  jury  that  there  were  two  things  only  for 
their  consideration  :  1st.  Whether  the  de- 
fendant was  guilty  of  publishing ;  and,  2dr 
Whether  the  innuendoes  were  justly  stated 
and  applied;  and  that  *the  third  ques-  [*373 
tion,  whether  the  publication  was  libel- 
ous, belonged  exclusively  to  the  court  as- 
matter  of  law.  The  same  doctrine  was  laid 
down  by  Chief  Justice  Lee,  in  the  case  of 
Owen  (10  St.  Tr.,  Appendix,  196),  by  Sir  Dud- 
ley Ryder,  in  the  case  of  Nutt,  and  by  Lord 
Mansfield  in  the  cases  of  Shebbeare,  Wood- 
fall,  and  others.  (5  Burr.,  2661  ;  3  Term 
Rep.,  430.)  It  is  to  be  observed,  however, 
that  in  none  of  these  cases  did  the  counsel  for 
the  defendants  renounce  what  they  con- 
ceived to  be  the  privilege  of  the  defendant* 
and  the  right  of  the  jury.  Lord  Camden  was 
counsel  for  the  defendants  in  the  cases  of 
Owen  and  Shebbeare,  and  he  claimed  and  exer- 
cised the  right  of  addressing  the  jury  on  the 
whole  matter  of  the  libel.  (Parliamentary 
Senator,  vol.  V.,  p.  822.)  In  the  case  of  Wood- 
fall,  the  defendant's  counsel  likewise  pressed 
the  jury  to  acquit  him,  on  the  ground  that  the 
intent  was  innocent,  and  the  paper  not  libel- 
ous ;  and  the  counsel  for  the  crown,  on  the 
other  hand,  urged  to  the  jury  the  criminal  in- 
tent and  pernicious  tendency  of  the  paper. 
The  same  steps  were  followed  by  counsel,  in 
the  case  of  The  Dean  of  St.  Asaph  (3  Term 
Rep.,  428).  This  uniform  practice  of  counsel 
of  the  first  rank  at  the  bar  is  pretty  strong 
evidence  that  the  rule  laid  down  in  Franklin's: 
case  was  never  acquiesced  in,  nor  regarded  as 
the  settled  law.  But  it  was  not  the  counsel 
only  who  dissented  from  this  doctrine.  Lord 
Camden  and  Lord  Loughborough  did,  as 
judges,  uniformly  resist  if,  and  one  of  them 
declared  that  it  had  always  been  his  practice, 
in  cases  of  libel,  to  state  the  law  as  it  bore- 
on  the  facts,  and  to  refer  the  combined  con- 
sideration to  the  jury.  (Senator,  vol.  III.,  p. 
647,  650,  651;  vol.  V.,  p.  686,  822.)  So  Lord 
Mansfield  departed  from  Lord  Raymond's 
rule,  upon  the  trial  of  John  Home.  (11  St. 
Tr.,  283.)  He  told  the  jury  there  were  two 
points  for  thetfi  to  satisfy  themselves  in,  in  or- 
der to  form  their  verdict.  1st.  Did  the  defend- 
ant compose  and  publish  ?  2d.  Was  the  sense 
of  the  paper  libelous,  as  charged  ?  *He  [*374- 
JOHNSON'S  CASES,  3_ 


1804  THE  PEOPLE  v.  CROSWELL.  374 

— r~  [APPENDIX.] 

concluded  by  telling  them  that  they  would  temptible.  Those  opinions  are  repugnant  to 
judge  of  the  meaning  of  it ;  that  it  was  a  mat-  the  more  ancient  authorities  which  had  given 
ter  for  their  judgment.  His  lordship  admits  !  to  the  jury  the  power,  and  with  it  the  right,  to 
to  us,  in  another  place  (3  Term  Rep.,  418), 
that  the  counsel  for  the  crown  and  the  judges 
have  sometimes  expatiated  to  the  jury  on  the 


enormity  of  the  libel,  with  the  view   to  re- 


judge  of  the  law  and  fact,  when  they  were 
blended  by  the  issue,  and  which  rendered 
their  decisions,  in  criminal  cases,  final  and 
conclusive.  The  English  bar  steadily  resisted 

move  prejudices,  and  obviate  captivating  those  decisions,  as  usurpations  on  the  rights  of 
harangues  ;  and  this  confession  shows  the  j  the  jury.  Some  of  the  judges  treated  the 
difficulty  and  danger  of  attempting  to  separate  ]  doctrine  as  erroneous,  and  tht  Parliament,  at 
the  law  and  the  fact,  the  publication  and  the  |  last,  declared  it  an  innovation,  by  restoring 
intent,  when  the  issue,  the  arguments  of  the  trial  by  jury,  in  cases  of  libel,  to  that 
counsel,  and  the  verdict,  comprehended  both,  i  ancient  vigor  and  independence  by  which  it 


The  constant  struggle  of  counsel,  and  of  the 
jury,  against  the  rule,  so  emphatically  laid 
down  by  Lord  Raymond,  the  disagreement 
among  the  judges,  and  the  dangerous  ten- 
dency of  the  doctrine,  as  it  affected  two  very 
conspicuous  and  proud  monuments  of  En- 
glish liberty — trial  by  jury,  and  the  freedom 
of  the  press — at  length  attracted  and  roused 
the  attention  of  the  nation.  The  question  was 
brought  before  the  Parliament,  and  debated  in 
two  successive  sessions.  (In  1791  and  1792, 
see  debates  in  the  Senator,  vols.  III.,  IV.,  V.) 
There  was  combined,  in  the  discussion  of  this 
dry  law  question,  an  assemblage  of  talents,  of 
constitutional  knowledge,  of  practical  wis- 
dom, and  of  professional  erudition,  rarely,  if 
ever  before  surpassed.1  It  underwent  a  pa- 
tient investigation  and  severe  scrutiny,  upon 
principle  and  precedent,  and  a  bill  declaratory 
of  the  right  of  the  jury  to  give  a  general  ver- 
dict upon  the  whole  matter  put  in  issue,  with- 
out being  required  or  directed  to  find  the  de- 
fendant guilty  merely  on  the  proof  of  publica- 
tion and  the  truth  of  the  innuendoes,  was  at 
length  agreed  to,  and  passed  with  uncommon 
unanimity.  It  is  entitled  "An  Act  to  remove 
375*]  doubts  respecting  the  functions  *of 
juries  in  cases  of  libel;"  and,  although  I  admit 
that  a  declaratory  statute  is  not  to  be  received 
as  conclusive  evidence  of  the  common  law, 
yet  it  must  be  considered  as  a  very  respectable 
authority  in  the  case  ;  and  especially,  as  the 
circumstances  attending  the  passage  of  this 
bill  reflect  the  highest  honor  on  the  modera- 
tion, the  good  sense,  and  the  free  and  inde- 
pendent spirit  of  the  British  Parliament. 

It  was,  no  doubt,  under  similar  impressions 
of  the  subject,  that  the  act  of  Congress,  for 

Eunishing  certain  libels  against  the  United 
tates  (Laws  United  States,  vol.  IV.,  p.  204), 
enacted  and  declared  that  the  jury  who 
should  try  the  cause  should  have  a  right  to 
determine  the  law  and  fact,  under  the  direc- 
tion of  the  court  as  in  other  cases  ;  and  before 
the  passing  of  that  statute  the  same  doctrine 
was  laid  down  in  full  latitude,  and  in  explicit 
terms,  by  the  Supreme  Court  of  the  United 
States.  (3  Dallas,  4.) 

The  result,  from  this  view,  is,  to  my  mind, 
a  firm  conviction  that  this  court  is  not  bound 
by  the  decisions  of  Lord  Raymond  and  his 
successors.  By  withdrawing  from  the  jury 
the  consideration  of  the  essence  of  the  charge, 
they  render  their  function  nugatory  and  con- 

1.— For  the  bill,  Mr.  Fox,  Mr.  Pitt,  McDonald,  At- 
torney-General ;  Scott,  Solicitor-General ;  Erskine, 
Bearcroft,  Sir  R.  P.  Arden,  Master  of  the  Rolls ; 
Lords  Stanhope,  Camden,  Loughborough  and  Gren- 
ville. 

Against  the  bill,  Lords  Thurlow,  Kenyon  and 
Bathurst. 

JOHNSON'S  CASES,  3. 


had  grown  so  precious  to  the  nation,  as  the 
guardian  of  liberty  and  life,  against  the  power 
of  the  court,  the  vindictive  persecution  of  the 
prosecutor,  and  the  oppression  of  the  govern- 
ment. 

*I  am  aware  of  the  objection  to  the  [*37G- 
fitness  and  competency  of  a  jury  to  decide 
upon  questions  of  law,  and,  especially,  with  a 
power  to  overrule  the  directions  of  the  judge. 
In  the  first  place,  however,  it  is  not  likely 
often  to  happen,  that  the  jury  will  resist  the 
opinion  of  the  court  on  the  matter  of  law. 
That  opinion  will  generally  receive  its  due 
weight  and  effect ;  and  in  civil  cases  it  can, 
and  always  ought  to  be  ultimately  enforced  by 
the  power  of  setting  aside  the  verdict.  But 
in  human  institutions,  the  question  is  not 
whether  every  evil  contingency  can  be 
avoided,  but  what  arrangement  will  be  pro- 
ductive of  the  least  inconvenience.  And  it 
appears  to  be  most  consistent  with  the  per- 
manent security  of  the  subject,  that  in  crim- 
inal cases  the  jury  should,  after  receiving  the 
advice  and  assistance  of  the  judge,  as  to  the 
law,  take  into  their  consideration  all  the  cir- 
cumstances of  the  case,  and  the  intention  with 
which  the  act  was  done,  and  to  determine  up- 
on the  whole,  whether  the  act  done,  be, 
or  be  not,  within  the  meaning  of  the  law. 
This  distribution  of  power,  by  which  the 
court  and  jury  mutually  assist,  and  mutually 
check  each  other,  seems  to  be  the  safest,  and, 
consequently  the  wisest  arrangement,  in  re- 
spect to  the  trial  of  crimes.  The  constmc- 
tions  of  judges  on  the  intention  of  the  party 
may  often  be  (with  the  most  upright  motives) 
too  speculative  and  refined,  and  not  altogether 
just  in  their  application  to  every  case.  Their 
rules  may  have  too  technical  a  cast,  and  be- 
come, in  their  operation,  severe  and  oppressive. 
To  judge  accurately  of  motives  and  intentions 
does  not  require  a  master's  skill  in  the  science 
of  law.  It  depends  more  on  a  knowledge  of 
the  passions,  and  of  the  springs  of  human 
action,  and  may  be  the  lot  of  ordinary  experi- 
ence and  sagacity. 

My  conclusion  on  this  first  point  then,  is, 
that  upon  every  indictment  or  information  for 
a  libel,  where  the  defendant  puts  himself  upon 
the  country,  by  a  plea  of  not  guilty,  the  jury 
have  a  right  to  judge,  not  only  of  the 
*fact  of  the  publication,  and  the  truth  [*377 
of  the  innuendoes,  but  of  the  intent  and  ten- 
dency of  the  paper,  and  whether  it  be  a  libel 
or  not  ;  and.  in  short,  of  "  the  whole  matter 
put  in  issue  upon  such  indictment  or  informa- 
tion." (Stat.  32,  Geo.  III.)  That  in  this  as  in 
other  criminal  cases,  it  is  the  duty  of  the 
court,  "  according  to  their  discretion,  to  give 
their  opinion  and  direction  to  the  jury  on  the 


matter  in  issue  ;"  and  it  is  the  duty  of  the  jury 
to  receive  the  same  with  respectful  deference 
and  attention,  and,  unless  they  choose  to  find 
a  special  verdict,  they  are  then  to  exercise 
their  own  judgments  on  the  matter  in  issue, 
with  discretion  and  integrity. 

2.  The  second  point  in  the  case,  although  a 
question  of  evidence  merely,  is  equally  import- 
tant,  and  still  more  difficult.  It  was  made  a 
very  prominent  point  upon  the  argument,  and 
the  decision  of  it  is  essential  for  the  direction 
of  the  judge  who  is  to  preside  at  the  new  trial 
that  may  be  awarded. 

As  a  libel  is  a  defamatory  publication,  made 
with  a  malicious  intent,  the  truth  or  falsehood 
of  the  charge  may,  in  many  cases,  be  a  very 
material  and  pertinent  consideration  with  the 
jury,  in  order  to  ascertain  that  intent.  There 
can  be  no  doubt  that  it  is  competent  for  the 
defendant  to  rebut  the  presumption  of  malice, 
drawn  from  the  fact  of  publication  ;  and  it  is 
consonant  to  the  general  theory  of  evidence, 
and  the  dictates  or  justice,  that  the  defendant 
should  be  allowed  to  avail  himself  of  every 
fact  and  circumstance  that  may  serve  to  repel 
that  presumption.  And  what  can  be  a  more 
important  circumstance  than  the  truth  of  the 
charge,  to  determine  the  goodness  of  the  motive 
in  making  it,  if  it  be  a  charge  against  the  com- 
petency or  purity  of  a  character  in  public  trust, 
or  of  a  candidate  for  public  favor,  or  a  charge 
of  actions  in  which  the  community  have  an 
interest,  and  are  deeply  concerned  ?  To  shut 
out  wholly  the  inquiry  into  the  truth  of  the 
accusation,  is  to  abridge  essentially  the  means 
of  defense.  It  is  to  weaken  the  arm  of  the 
iJ78*]  defendant,  *and  to  convict  him,  by 
means  of  a  presumption  which  he  might  easily 
destroy  by  proof  that  the  charge  was  true,  and 
that,  considering  the  nature  of  the  accusation, 
the  circumstances  and  time  under  which  it  was 
made,  and  the  situation  of  the  person  impli- 
cated, his  motive  could  have  been  no  other 
than  a  pure  and  disinterested  regard  for  the 
public  welfare.  At  the  same  time,  this  doc- 
trine will  not  go  to  tolerate  libels  upon  private 
character,  or  the  circulation  of  charges  for 
seditious  and  wicked  ends,  or  to  justify  expos- 
ing to  the  public  eye  one's  personal  defects  or 
misfortunes.  The  public  have  no  concern 
with,  nor  are  they  injured  by,  such  informa- 
tion, and  the  truth  of  the  charge  would  rather 
aggravate  than  lessen  the  baseness  and  evil 
tendency  of  the  publication.  It  will,  there- 
fore, still  remain,  in  every  case,  a  question  for 
the  jury,  what  was  the  intent  and  tendency  of 
the  paper,  and  how  far  the  truth,  in  the  given 
case,  has  been  used  for  commendable,  or 
abused  for  malicious  purposes. 

This  principle  in  the  law  of  libels  is  con- 
sidered as  rational  and  sound,  in  an  ethical 
point  of  view  ( Paley's  Moral  Philosophy  p. 
188 ) ;  and  to  this  extent  the  writers  on  the 
civil  law  have  allowed  the  truth  to  excuse  a 
defamatory  accusation.  The  opinion  of  Vin- 
nius,  in  his  Commentaries  on  the  Institutes 
( lib.  4,  tit.  4,  sec.  1 ),  is  so  pertinent  and  forc- 
ible, and  he  states  the  just  distinction  with 
such  perspicuity,  that  what  he  says  merits  our 
particular  attention.  "  Tria  fere  hie  quart 
xolent?  Primiim  e»t,  an  veriton  c-onmtii  excuset 
tnjuriantem.  Interpreter  tulgo  respondent,  ex- 
cujtare,  si  id,  quod  objicitur,  tale  e,*i,  ut  public* 
730 


SUPREME  COURT,  STATE  OF  NEW  YORK. 
[APPENDIX.] 


1S04 


interutt  illud  nciri;  reluttniquw  latro,  homicida. 
adulter,  sacrilegu*  appeUetur :  eoque  pertinere 
re*ponsumjwi8C07i»ulti  in  L.  cum  qui  18  in  pr. 
hoc  tit.  ubi  ait,  eum,  qui  nocentem  infamavit, 
non  esse  bonum  et  osquum  condemnari.  Peccata 
enim  nocentium  nota  eSse  el  oportere  et  expedire. 
Hoc  autem  vel  maxime  procedet,  si  infamaverit 
apud  mayislratum  ;  quoniam  turn  umnino  prce- 
sumiiur,  fecisse,  ut  super  objecto  crimine,  quod 
tamen  utique  *probaredebet,inqvisitioin-  [*37O 
stitueretur.  Alia-ssiex  circumxtantusanimusin- 
juriandi  adfuwse  arguatur,  veluti  si  in  rixa  id 
fecerit  odio  impulsus,  petulantiam  istam  impun- 
itam  relinqui  non  debere,  1.  3.  c.  de  off.  rect. 
prov.  Sin  autem  quod  objicitur  innotescere 
nihil  interest,  puta  si  alter  pcenam  delicti  mti  sus- 
tinuerit,  aut  in  mlium  naturale  objicialur, 
claudm  aliquis,  lu#cus  aut  gibbosux  vocetur,  veri- 
tatem  conntii  non  excusare,  qumninutt  animo  in- 
juriandi  id  factum  prcesumatur :  contrarii 
tamen  probationem  hie  adimttendam." 

That  falsehood  is  a  material  ingredient  in 
a  public  libel,  is  a  doctrine  not  without  prece- 
dent in  former  times ;  it  has  always  been 
asserted,  and  occasionally  admitted,  by  the 
English  courts.  In  this  country  it  has  taken 
firmer  root,  and  in  regard  to  the  measures  of 
government,  and  the  character  and  qualifica- 
tions of  candidates  for  public  trust,  it  is  con- 
sidered as  the  vital  support  of  the  liberty  of 
the  press. 

The  English  decisions  on  the  subject  of 
libels  have  not  been  consistent  in  principle. 
The  reason  assigned  for  the  punishment  of 
libels,  whether  true  or  false,  is  because  they 
tend  to  a  breach  of  the  peace,  by  inciting  the 
libeled  party  to  revenge,  or  the  people  to 
sedition.  It  is  not  the  matter,  but  the  manner, 
say  the  books,  which  is  punishable.  (1  Hawk., 
tit*.  Libel,  sec.  3,  6,  7 ;  Hudson  on  the  Star 
Chamber,  p.  102.)  This  reason,  however,  ac- 
cording to  some  late  decisions,  is  made  to 
yield  to  stronger  reasons  of  a  public  nature, 
although  the  instances  given  come  equally 
within  the  rule,  as  they  equally  tend  to  defame 
and  provoke.  It  is  no  libel  to  publish  a  true 
account  of  proceedings  in  Parliament  or  courts 
of  justice,  notwithstanding  the  paper  may  be 
very  injurious  to  the  character  of  individuals 
or  of  magistrates;  because  those  proceedings  are 
open  to  all  the  world,  and  it  is  of  vast  import- 
ance to  the  public,  that  they  should  be  gener- 
ally known.  (8  Term  liep.,  297.  298;  1  Bos. 
&  Pull.,  526.)  It  was  held  no  libel  to  treat 
with  asperity  the  character  *of  the  [*38O 
officers  of  Greenwich  Hospital,  where  the  pub- 
lication was  distributed  only  among  the  gov- 
ernors of  the  hospital,  because  they  are  the 
persons  who,  from  their  situation,  are  called 
upon  to  redress  the  grievance,  and  have  the 
power  to  do  it.  (Rex  v.  Baittie,  Mich.,  20,  Geo. 
III.,  by  Lord  Mansfield;  Esp.  Dig.,  506.)  It 
might  be  easily  perceived  that  according  to 
the  same  doctrine  it  ought  not  to  be  a  libel  to 
publish  generally  a  true  account  of  the  char- 
acter and  conduct  of  public  rulers,  because  it 
is  of  vast  importance  that  their  character  and 
actions  should  be  accurately  understood,  and 
especially  by  the  public,  to  whom  alone  they 
are  responsible.  This  rule  of  decision,  in  the 
different  cases,  varies,  but  the  principle  applies 
equally  to  each. 

The  doctrine  that  the  truth  of  the  matter 
JOHNSON'S  CASES,  3. 


1804  THK  PEOPLE  v.  CROSWELL.  880 

~-r-~  [APPENDIX.] 

charged  was  no  defense  to  a  public  prosecution    *of  that  court  upon  libels,  were  proba-  [*382 


for  a  libel,  came  from  the  Court  of  Star  Cham- 
ber. William  Hudson,  who  was  an  eminent 
practicer  in  that  court,  in  the  reign  of  James 
I,  compiled,  early  under  his  successor,  a  very 
copious  and  learned  treatise  on  its  jurisdiction 
and  practice.  (See  2  Collectanea  Juridica.) 
He  said  that  libels  had  in  all  ages  been  severely 
punished  there,  but  especially  when  they 
began  to  grow  frequent,  about  the  reign  of 
Elizabeth.  This  fact  would  lead  to  interest- 
ing reflection.  The  sera  here  referred  to  was 


bly  borrowed,  in  a  great  degree,  from  Justin- 
ian's Code.1  The  very  definition  of  a  libel, 
and  the  title  of  one  of  Coke's  cases,  was  taken 
from  thence ;  and  Hattiwood's  case,  in  the  43 
and  44  Eliz.  (5  Co.,  125,  128  a),  was  grounded 
entirely  upon  *the  severe  edict  of  Val-  [*383 
entinian  and  Valens.  (Code,  lib.  9,  tit.  36.) 
And  yet  there  is  good  reason  to  believe,  that 
in  the  best  ages  of  the  Roman  law,  it  spoke  a 
milder  and  more  rational  language ;  for 
Paulus,  in  the  Digest  (lib.  47,  tit.  10,  ch.  18), 


the  very  time  when  the  use  of  printing  had   holds  it  to  be  against  good  conscience  to  con- 
grown  familiar,  when  learning  was  dissem-  j  demn  a  man  for  publishing  the  truth  ;  and 


inated,  when  civil  and  political  rights  became 
objects  of  inquiry,  and  to  use  the  words  of 
Mr.  Hume,  when  "symptoms  had  appeared 


the  civilians  are  generally  of  opinion  that  the 
truth  will  excuse  defamation,  if  the  charge- 
relate  to  matter  proper  for  public  information. 


of  a  more  free  and  independent  genius  in  the   (Vinnius,  -ubisup.  Perezii.  Prodec.,  vol.  II.,  208.) 


nation."  Hudson  cites  upwards  of  twenty 
adjudged  cases,  in  the  Star  Chamber,  upon 
libels,  and  says  that  there  were  two  gross 
errors,  which  had  crept  into  the  world  con- 
cerning libels,  one  of  which  was,  that  it  was 
not  a  libel  if  true,  but  this,  he  adds,  had  been 
long  since  expelled  out  of  that  court ;  and  he 
mentions  the  case  of  Breverton  (Mich., 2  Jac.  1), 
in  which  that  species  of  defense  was  attempted 
381*]  to  a  charge  of  *bribery  and  extortion 
in  a  public  trust,  and  was  overruled.  This 
treatise  of  Hudson  establishes  two  very  im- 
portant facts  ;  the  one  that  the  Court  of  Star 
Chamber  established  the  doctrine  in  question, 
and  the  other,  that  it  was  still  the  public  sen- 
timent, which  he  calls  "  a  gross  error  in  the 
world,"  that  the  truth  might  be  a  defense  to  a 
libel  ;  and  this  defense  was  attempted  in  that 
court  as  late  as  the  reign  of  James.  Mr.  Bur- 
rington  (Observations  on  the  Statutes,  68 )  has 
given  us  a  part  of  a  curious  letter,  written  at 
that  time  by  the  Dean  of  St.  Paul's,  from 
which  we  may  infer  his  alarm  and  disgust  at 
the  new  libel  doctrines  of  the  Star  Chamber. 
41  There  be  many  cases,"  he  observes  "where 
a  man  may  do  his  country  good  service,  by 
libeling ;  for  Avhere  a  man  is  either  too  great, 
or  his  vices  too  general  to  be  brought  under  a 
judiciary  accusation,  there  is  no  way  but  this 
extraordinary  method  of  accusation.  Sealed 
letters  in  the  Star  Chamber  have  now-a-days 
been  judged  libels."  Lord  Coke  has  reported 
some  of  those  Star  Chamber  decisions  on  this 
very  subject,  and  in  one  of  which  we  find  the 
same  point  resolved  that  had  been  ruled  the 
year  before  in  the  case  of  Breverton.  (Pasch., 
3  Jac.  I.  ;  5  Co.,  125.)  He  was,  in  his  time, 
says  Hudson,  as  well  exercised  in  the  case  of 
libels,  as  all  the  attorneys  that  ever  were  before 
him  ;  and  yet  it  appears  that  he  was  not  so 
well  disciplined  in  the  new  doctrine,  but  that 
in  the  case  of  Lakev.  Button  (Hob.,  252), 
which  afterwards  arose  in  the  Star  Chamber, 
he  insisted  that  if  the  libel  was  true,  the  de- 
fendant might  justify  it.  These  cases  and 
facts  are  sufficient  to  show  that  the  doctrine 
in  question  was  not  considered  then  as  the 
settled  law  ;  that  it  was  regarded  as  an  inno- 
vation, for  it  gave  dissatisfaction  and  met  with 
opposition. 

The  proceedings  in  the  Star  Chamber  were 
according  to  the  course  of  those  courts  which 
follow  the  civil  law.  They  proceeded  by  bill, 
without  a  jury,  and  compelled  the  party 
.accused  to  answer  upon  oath.  The  decisions 
JOHNSON'S  CASES,  3. 


Mr.  Barrington,  who  is  so  well  known  to 
the  profession  as  a  legal  antiquarian,  admits 
(Observations  on  the  Statutes,  68)  that  the  rule 
of  refusing  evidence  of  the  truth  of  a  libel 
was  adopted  by  the  more  modern  determina- 
tions of  the  common  law  courts,  from  the  Star 
*Chamber  decisions.  And  if  we  recur  [*384 
back  to  the  more  ancient  English  statutes  and 
records,  which  are  the  highest  evidence  of  the 
common  law,  we  shall  find  that  the  falsity  of 
the  charge  was  always  made  a  material  ingre- 
dient in  the  libel.  The  Statutes  of  Westm.  (1 
Edw.  I,  ch.  34)  recites  that  there  had  been 
oftentimes  found  in  the  country,  devisors  of 
tales,  whereby  occasion  of  discord  had  many 
times  arisen  between  the  king  and  his  people, 
or  great  men  of  the  realm  ;  and  it  enacts  that 
none  thereafter  be  so  hardy  as  to  publish  any 
false  news  or  tales,  whereby  such  discord  may 
grow,  and  he  that  doth  so,  shall  be  imprisoned 
until  he  produce  his  author.  The  same 
description  of  the  offense  is  contained  in  the 
statutes  of  2  Rich.  II.,  ch.  5  ;  12  Rich.  II.,  ch. 
11,  and  1  and  2  Ph.  &  M.,  ch.  3,  and  the  last 
of  them  enacts,  that  if  any  person  be  con- 
victed of  speaking  maliciously,  of  his  own 
imagination,  any  false,  seditious  and  slander 
ous  news  or  tales  of  the  king  or  queen,  he 
shall  be  set  in  the  pillory,  &c.  We  find  soli- 
tary instances,  in  the  .reigns  of  Mary  and 
Elizabeth,  of  prosecutions  at  common  law 
(Dyer,  155;  Jenk.,  5,  ch.  55;  8.  C.  1  Leon., 
287),  under  these  statutes  ;  but  the  Star  Cham- 
ber, about  that  time,  from  its  more  summary 
proceedings  and  violent  maxims,  began  to 
monopolize  the  whole  jurisdiction  of  slander 
and  libel. 

Sir  E.  Coke,  in  his  commentary  on  the  Stat- 
ute of  Westm.,  1  (2  Inst.,  226),  uniformly 
describes  the  offense,  by  the  epithets  false  and 
feigned  ;  and  he  says  that  no  punishment  was 
inflicted  by  this  statute  upon  the  devisor  or 
inventor  himself  of  such  false  scandal,  but  he 

1.— The  severity  of  the  Koman  law,  in  the  punish- 
ment of  libelers,  is  remarkable.  According  to  an 
observation  of  Cicero  (De  Rcputi.,  lib.  4),  preserved 
in  a  work  of  St.  Augustine  (De  CMt.,  lib.  2,  ch.  6), 
libelers,  by  a  law  of  tHe  twelve  tables,  were  pun- 
ished with  death.  "  Nostra  cnntrn  .rii  tabula-  quum 
perpaucax  res  capite  sanxtment  in  /IIN  ham;  quoquc 
sanciendum  putavenmt ;  si  quit  actitai'i&et,  xlre  car- 
men condidisaet,  quod  infamiam  affcrrct  flugitiumvc 
altcri.  Prcvcliire  judirej  enim,  ac  magfstrabuum  din- 
ceptationilnts  legitimist  proposttam  ritam,  nnn  poeta- 
rum  ingeniis  habere,  debemus;  necprobum  audirc, 
nfei  ea  lege,  nt  respondere  liccat  etfudicio  defe-ndcre." 
Again  (Frag.  Cic.  apud.  S.  Augr.  lib.  2,  cap.  12, 

731 


384  SUPREME  COURT,  STATE  OF  NEW  YORK.  1804 

[APPENDIX.]  — v~ 

was  left  to  the  common  law  to  be  punished  j  judges,  in  order  to  acquit  themselves  to  the 
according  to  the  offense  which  was  aggra-    king. 


vated,  inasmuch  as  it  was  prohibited  by  stat- 
ute. This  passage  shows  conclusively,  that  in 
the  opinion  of  Coke,  this  statute  was  in  affirm- 
ance of  the  common  law,  and  this  was  the 
opinion  of  Atkins,  J.,  in  the  case  of  Towtuend 
v.  Hughes  (2  Mod.,  1551,  152).  This  statute 
is,  therefore,  a  very  sure  index  of  the  mean 
38o*]  ing  *of  defamation  at  common  law  ; 
and  as  a  further  evidence  on  the  subject,  I 
refer  to  Fleta  (lib.  2,  ch.  1,  sec.  10),  which  was 
written  under  Edw.  I.,  and  was  a  treatise 
vipon  the  whole  law,  as  it  then  stood.  It  is 


It  appears  clear,  from  this  historical  survey, 
that  the  doctrine  now  under  review  originated 
in  the  Court  of  Star  Chamber,  and  was  intro- 
duced and  settled  there  about  the  beginning  of 
the  reign  of  James  I.  (Breterton's  case,  2  Jac., 
I.,  and  the  case  in  5  Co.,  125,  3  Jac.  I.,  both 
settled  the  rule.)  It  was  no  doubt  considered 
at  the  time  as  an  oppressive  innovation ;  but 
opposition  must  have  been  feeble  to  a  court 
whose  action  and  whose  terrors  were  then  at 
the  greatest  height,  and  which  exercised  ita 
superlative  powers  (as  Hudson  terms  them} 


there  stated   that  there  are  certain  atrocious  |  with  enormous  severity.     *The  princi-  [*3SO 


injuries  which  are  punished  by  imprisonment, 
such  as  the  inventors  of  evil  rumors  (tncul  de 
intentoinbus  malorum  rumorum)  by  whom  the 
public  peace  is  destroyed. 

The  form  of  the  record  of  a  conviction  of 
one  John  Northampton,  in  the  King's  Bench, 
for  a  libelous  letter  upon  the  court,  is  given 


pie  was,  however,  received  in  after  times,  with 
jealousy  and  scrutiny,  as  coming  without  the 
sanction  of  legitimate  authority  ;  and  it  was. 
not  to  be  expected  that  a  people,  attached  to 
the  mild  genius  of  the  common  law,  of  which 
trial  by  jury,  in  criminal  cases,  is  one  of  its 
most  distinguished  blessings,  would  willingly 


by  Coke,  in  his  3d   Institute,  p.   174.     The    receive  the  law  and  limits  of  the  press  from 
defendant  confessed  the  libel  and  was  impris-   the  decrees  of  so  odious  and  tyrannical  a  juris- 


oned  and  bound  to  his  good  behavior,  and  the 
record  stated  that  the  libel  was  false  ;  qua  lit- 
era  conlinet  in  se  nullam  veritatem.  The  rec- 
ords of  the  courts  have  always  been  esteemed 
as  the  most  authentic  memorials  of  the  law  ; 
and  it  is  an  important  fact,  which  may  now 
be  noticed,  that  the  indictments  for  libels  have 
always  charged  the  libel  to  be  false,  as  well  as 
malicious ;  and  it  was  not  until  very  lately 
that  this  epithet  has  been  omitted.  (7  Term 
Rep.,  4.)  I  am  aware  that  it  has  been  said  (9 
St.  Tr.,  302)  that  the  falsehood  of  the  libel 
was  not  the  ground  of  the  judgment  in  this 
case  of  Northampton  ;  but  I  see  no  reason  for 
that  assertion,  for  the  words  could  have  no 
other  use  or  meaning  upon  the  record  ;  and  it 
is  absurd  to  suppose  they  were  inserted  by  the 

Cicit.),  Probrig  et  injurHs  poetarum  subjectam  vitam 
famatnque  liabere  noluerunt,  capite  enim  punire  san- 
cientes,  tale  carmen  condere  si  qute  auderet. 

The  law  (vii)  of  the  twelve  tables,  as  given  by  J. 
Gronovius  (1  Gravina  Grig.  Jur.  Civ.,  40,  309,  401), 
is  as  follows,  "  Si  quis  pipulo  occentasset  carmenve 
conduliAset,  quod  infamiam  faxit,  flagitiumve  alteri, 
fustibw  feritur." 

The  expression  of  Cicero  Is  general,  without  ad- 
verting to  the  manner  of  inflicting  the  punishment, 
and  it  might  be  supposed,  from  the  words  of  the 
law  itself,  that  though  the  libeler  was  cudgelled  or 
bastinadoed,  yet  it  was  not,  in  all  cases,  carried  so 
far  as  to  produce  death.  For,  like  the  Russian  pun- 
ishment of  the  knout,  it  would  depend  on  the  exe- 
cutioner, or  the  mode  of  applying  the  cudgel, 
whether  the  death  of  the  criminal  was  the  conse- 
(fuence.  But  Vinnius  and  other  commentators 
adopt  the  language  of  Cicero,  and  speak  of  the  pun- 
ishment as  capital,  until  altered  by  the  Cornelian 
law  (Vinn.  Comm.  lib.  4,  tit.  4,  1).  And  Gravina 
says,  fustibus  ferire,  est  ad  necem  ccedcre.  Horace 
alludes  to  the  same  mode  of  punishment ;  but  it  cer- 
tainly was  not  capital  in  the  Augustan  age  (2  Epist., 
1, 152): 

"  Quinetiam  lex 

Pcenaque  lata,  main  quce  nollet  carmine  quenquam 
Describi:  vertere  moclum,  formidlne  fustte 
Ad  bene  dicendum  delectandumque  redactl." 

But,  according  to  the  same  poet  (IMd.,  1.  82),  if 
the  object  of  the  satire  deserved  the  lash,  the  court 
joined  in  the  laugh  and  dismissed  the  author. 

(Treb.)  Si  mala  condidtrit  in  quern  quis  carmina,  jus 

est 
Judiciumque.    (Hor.)   Esto  si  quis   mala;  si 

bona  si  quiz 

Judice  condiderit  laudatus  Ccesare  f  Si  quis 
Oppprobiis  dignum  lat  raver  it,  integer  ipxe? 
(Treb.)  Solventur  ri*u  talsulue:  tu  mistrum  alsilji*. 

732 


diction. 

After  the  abolition  of  the  Star  Chamber, 
under  Charles  I.,  we  hear  very  little  of  the 
doctrine  of  libels,  till  we  have  followed  the 
judicial  precedents  down  to  the  a?ra  of  the 
Revolution.  During  the  reign  of  the  Stuarts, 
the  press  was  stifled  by  the  imprimaturs  of 
government,  which  were  first  introduced  by 
the  acts  of  uniformity,  and  borrowed  from 
the  inquisition.  (1  Bl.  Rep.,  114,  115;  4  Bl. 
Comm.,  152,  note.)  After  the  Star  Chamber 
had  ceased,  the  Parliament  subjected  all  publi- 
cations to  the  arbitrary  control  of  a  license. 
Whoever  has  the  curiosity  to  examine  the 
Licensing  Act  of  13  and  14  Car.  II.,  ch.  33, 
will  at  once  perceive  that  there  was  no  longer 
any  need,  either  of  the  jurisdiction  or  doc- 

Whether  the  punishment  inflicted  .by  the  decem- 
viral  law  was  capital,  or  not,  in  all  cases,  it  must 
have  ceased  as  early,  at  least,  as  the  Porcian  law  (A. 
U.  C.,  454),  which  forbade  a  Roman  citizen  to  be 
bound,  scourged  or  put  to  death.  (Liv.,  10,  9 ;  Cic. 
Verr.,  3.)  The  Praetor,  for  this  and  other  wrongs, 
gave  the  party  injured  a  civil  action,  by  which  ne 
obtained  a  reparation  in  damages,  in  proportion  to 
the  injury  he  had  received,  and  the  offenders  were, 
at  the  same  time  declared  infamous.  (Inst.,  lib.  4 
tit.  4,  sec.  7 ;  Dig.,  lib.  3,  tit.  2.) 

But  L.  Cornelius  Sylla,  the  Dictator  (A.  U.  C., 
672),  did  not  consider  the  civil  action  as  an  adequate 
remedy,  as  personal  injuries  had,  probably,  become 

j  more  frequent  during  the  civil  wars :  and  he  passed 
a  new  law  against  libelers,  by  which  they  were  ren- 
dered incapable  of  making  a  will.  "  Siquis  littrum  ad 
infamiam  alicujus  pertinentem  scripserit,  compo»u- 
erit,  ediderit  dolnve  main  fecerit,  quod  quid  eorum 
fleret,  etiamsi  alterius  nomine  ediderit,  ret  *(ne 
nomine,  de  ea  re  injuriarum  ayere  liceret ;  et  si  cun- 
demnatus  sit  qui  id  fecit,  intestabttis  ex  lege  cssejut>€- 
tur."  (Dig.,  lib.  47,  tit.  10;  1.  5,  sec.  9.) 

In  the  reign  of  the  emperors  Valentinian  and 
Valens,  the  punishment  of  libelers  was  made  capi- 
tal. Capitafi  pocna  plectitur.  (Cod.  9, 36;  Defamrmis 
W>ettis.)  By  this  law  any  person  who  accidentally 
found  a  libel,  and  did  not  burn  or  destroy  it,  but 
made  it  known  to  others,  was  considered  as  the 
author,  and  subjected  to  the  same  punishment. 
Commentators,  however,  suppose  that  this  law 
applied  to  cases  only  of  very  atrocious  libels,  as 
where  the  injured  person  was  charged  with  some 
capital  offense,  as  murder,  robbery,  adultery,  &c., 
and  not  where  the  libel  imputed  inferior  crimes  or 
offenses. 

The  Athenians  regarded  calumniators  and  defum- 
ers  in  a  less  odious  view.  The  delinquent  was  mere- 
ly fined  from  three  drachms  to  five  hundred,  ac- 

,  cording  to  the  nature  of  the  charge.    (Potter.  Ant., 

I  1. 179.) 

JOHNSON'S  CASES,  3. 


St.  Tr.)  is  the  first  instance  in 
which  the  new  doctrine  of  libel  was  brought 
into  the  Court  of  King's  Bench  and  submitted 
to  the  test  of  a  jury  ;  and  here  we  consult 
once  more  the  genuine  oracles  of  the  common 
law,  and  although  their  responses  may  not  be 


1804  THE  PEOPLE  v.  CROSWELL.  386 

— Y^-  [APPENDIX.] 

trines 'of  the  Star  Chamber,  to  control  seditious  I  Raymond  overruled  the    evidence,   and    ob- 

and  libelous  publications.  The  case  of  the  j  served,  that  it  was  not  material  whether  the 

facts  charged  in  the  libel  were  true  or  false. 
"Then  I  submit,"  replies  Mr.  Bootle,  "whether 
this  will  not  tend  to  the  utter  suppression  of 
the  liberty  of  the  press,  which  has  been  so 
beneficial  to  the  nation.  As  the  Star  Chamber 
is  now  abolished,  I  don't  know  how  far  that 


altogether  consistent  or  unequivocal,  we  listen  doctrine  may  be  adhered  to.  I  should  be  glad 
to  them  with  delight  and  instruction.  On  this  J  to  have  one  instance  or  authority  of  this,  where 
trial,  the  Attorney-General  contended  that  it !  a  publisher  of  news  is  not  allowed  to  say  this 


was  not  to  be  made  a  question,  whether  the 
libel  was  true  or  false,  and  he  grounded  him- 
self entirely  upon  the  decisions  in  the  Star 
Chamber,  as  he  cited  no  other.  But  the  counsel 
for  the  defendants,  under  the  permission  of 
the  court,  went  at  large  into  argument  and 
proof,  to  show  the  dispensing  power  of  the 
•crown  illegal,  and  that  the  allegation  in  the 
petition  was  true.  And  when  the  judges  came 
•387*J  to  ^charge  the  jury,  which  they  did 
separately,  two  of  them  were  of  opinion  that 
the  petition  was  a  libel,  and  that  whether  true 
or  false,  was  immaterial.  The  third  judge 
placed  the  question  altogether  upon  the  quo 
<inimo  of  the  defendants,  but  the  fourth  judge 
{Mr.  Justice  Powell)  told  the  jury,  that  to  make 
a  libel  it  must  be  false,  it  must  be  malicious, 
and  it  must  tend  to  sedition  ;  and  that  if  there 
was  no  dispensing  power  in  the  king,  which 
he  believed,  then  it  was  no  libel  to  say  that  the 
king's  declaration  was  illegal.  The  jury  were 
of  his  opinion,  and  acquitted  the  defendants. 
The  next  case  that  meets  our  attention,  is 
that  of  Fuller  (5  St.  Tr.,  443,  444;  8  St.  Tr., 
78),  who  was  tried  before  Lord  Chief  Justice 
Holt,  on  an  information  for  a  libel  upon  the 
government ;  and  when  the  defendant  came  to 
his  defense,  being  without  counsel,  the  Chief 
Justice  asked  him  in  these  words  :  "  Can  you 
make  it  appear  that  these,  books  are  true  ?  If 
you  take  it  on  you  to  write  such  things  as  you 
are  charged  with,  it  lies  upon  you  to  prove 
them,  at  your  peril.  These  persons  are  scan- 
dalized, if  you  produce  no  proof  of  what  you 
charge  them  with.  If  you  can  offer  any  mat- 
ter to  prove  what  you  have  written,  let  us  hear 
it.  If  you  have  any  witnesses,  produce  them." 
Nothing  can  be  plainer  or  more  decisive  than 
this  language  of  the  Chief  Justice.  To  do 
away  the  force  of  this  case,  it  has  been  urged 
•{9  St.  Tr. ,  303)  that  Fuller  was  prosecuted  as  a 
cheat  and  impostor.  But  the  information 
says  no  such  thing.  The  charge  is  expressly 
laid  to  consist  in  publishing  two  false,  scan- 
dalous and  defamatory  libels.  The  judge 
•calls  them  libels,  and  charges  the  jury  to  con- 
vict him  of  publishing  the  scandalous  books. 
It  has  also  been  said  (M'Nally  on  Evid.  vol.  II. , 
p.  649)  that  this  information  was  upon  the 
statute  of  Smnd.  Mag. ,  but  no  statute  is  men- 
tioned, nor  does  it  conclude  against  the  form 
of  the  statute  ;  and  it  must,  therefore,  be  taken 
as  a  prosecution  at  common  law. 
388*]  *After  this  we  meet  only  with  two 
dicta,,  the  one  of  Holt  himself,  and  the  other  of 
Chief  Justice  Pratt  (11  Mod.,  99,  Str.,  498),  de- 
claring generally,  that  the  truth  was  no  justifi- 
cation on  an  indictment  for  a  libel,  until  we 
come  to  Franklin's  case,  in  1731.  (9  St.  Tr., 
269.)  There  the  defendant's  counsel  (Mr. 
Bootle  and  Sir  J.  Strange)  offered  evidence  to 
prove  the  libel  true,  but  Lord  Chief  Justice 
JOHNSON'S  CASES,  3. 


piece  of  news  is  true.  Is  there  no  distinction 
to  be  made  between  false  news  and  true  news, 
and  cannot  we  now  animadvert  or  take  notice 
of  public  affairs  as  well  as  formerly  ?  "  The 
Attorney-General,  although  thus  pressed  for 
his  authorities,  produced  no  case  to  the  point, 
but  the  case  de  libellis  famosrin,  in  5  Coke,  and 
he  laid  down  a  doctrine  totally  incompatible 
with  any  freedom  of  the  press,  which  was, 
that  a  printer  may  lawfully  print  what  belongs 
to  his  own  trade,  but  he  is  not  to  publish  any 
thing  reflecting  on  the  character  and  reputa- 
tion and  administration  of  his  majesty  or  his 
ministers. 

It  is  a  little  remarkable,  that  the  prohibition 
to  the  jury  to  judge  of  the  criminality  of  the 
libel,  and  the  prohibition  to  the  defendant  to 
give  the  truth  in  evidence,  received  together 
their  first  authoritative  sanction  in  a  court  of 
common  law,  by  this  nisi  prius  decision  of 
Lord  Raymond.  It  seems,  however,  to  have 
been  acquiesced  in,  and  to  have  been,  from  that 
time,  generally  taken  as  the  law,  with- 
out further  inquiry  or  examination.  And 
¥3t,  upon  the  trial  of  John  Home  (11  St. 
r.,  283),  before  Lord  Mansfield,  upon  an  in- 
formation for  a  libel,  in  *charging  the  [*38J) 
king's  troops  with  murdering  the  Americans, 
at  Lexington,  the  defendant  was  permitted  to 
call  witnesses  to  prove  the  truth  of  the  libel ; 
and  the  Attorney-General  (Thurlow),  in  his 
reply,  observed,  that  the  defendant  was  to 
prove  the  charge,  and  that  it  was  the  first  hour 
that  it  ever  entered  his  imagination,  that  that 
species  of  proof  could  be  allowed.  Lord 
Mansfield,  in  charging  the  jury,  observed  that, 
if  it  was  a  criminal  arraignment  of  the  king's, 
troops,  they  would  find  their  verdict  one  way  ; 
but  that  if  they  were  of  opinion  that  the  con- 
test was  to  reduce  innocent  subjects  to  slavery, 
and  that  they  were  all  murdered,  why  then 
they  might  form  a  different  conclusion,  with 
regard  to  the  meaning  and  application  of  the 
paper. 

This  case,  and  the  others  I  have  mentioned, 
show  that  the  admission  of  the  truth  in  evi- 
dence, and  that  the  jury  are  to  judge  of  the 
intent,  have  been  considered  as  very  much 
connected  together,  and  have  shared  the  same 
fate.  In  this  case  of  Home,  Lord  Mansfield 
placed  the  question  undoubtedly  on  its  true 
ground,  which  is,  that  if  the  libel  be  false,  the 
jury  are  to  conclude  one  way,  but  if  true,  they 
may  then  form  a  different  conclusion  as  to  the 
meaning  and  application  of  the  libel. 

In  addition  to  this  case,  there  are  decisive 
proofs  that  the  opinions  even  of  the  highest  pro- 
fessional characters  were  unsettled  and  at  vari- 
ance, so  late  as  the  year  1792,  on  this  interest- 
ing and  litigious  question.  It  was  one  of  the 
questions  proposed,  in  that  year,  by  the  House 
of  Lords  to  the  judges ;  and  Lord  Kenyon 

733 


389 


SUPREME  COURT,  STATE  OK  NEW  YORK. 
[APPENDIX.] 


1804 


(Senator,  vol.  V.,  p.  684),  after  vindicating  the 
practice  of  the  courts  as  to  the  control  of  the 
jury,  said  that  the  only  doubt  in  practice  was, 
whether  the  truth  should  be  taken  as  part  of 
the  defense,  and  that  he  thought  a  clause  to 
determine  that  point  would  be  necessary  to  the 
bill.  Lord  Camden  (Senator,  vol.  III.,  p.  649) 
went  further,  and  made  a  vigorous  and  elo- 
quent defense  of  the  freedom  of  the  press.  "A 
paper,"  he  observed,  "that  tended  to  excite 
39O*]  sedition,  *was  libelous ;  but  a  paper 
that  reflected  upon  the  conduct  of  ministry, 
that  pointed  out  their  base  and  mischievous 
proceedings,  that  went  to  open  the  eyes  of  the 
world,  ought  not  to  be  considered  as  libelous. 
The  jury  must  judge  of  the  seditious  tendency 
of  the  libel.  Some  would  have  every  censure 
on  the  measures  of  government  a  libel.  If  this 
were  the  case,  the  voice  of  truth  would  cease 
to  be  heard  amidst  the  notes  of  adulation.  It 
ought  to  be  left  to  a  jury  to  decide  whether 
what  was  called  calumny,  was  well  or  ill 
founded." 

I  have  thus  shown  that  the  rule  denying 
permission  to  give  the  truth  in  evidence  was 
was  not  an  original  rule  of  the  common  law. 
The  ancient  statutes  and  precedents,  which 
are  the  only  memorials  to  which  we  can  re- 
sort, all  place  the  crime  on  its  falsity.  The 
Court  of  Star  Chamber  originated  the  doc- 
trine, and  it  was  considered  an  innovation. 
When  it  was  brought  into  a  court  of  common 
law,  it  was  resisted  and  denied ;  the  court 
dared  not  practice  upon  it,  and  the  jury  gave 
it  their  negative.  Lord  Holt  totally  disre- 
garded the  rule,  in  the  case  of  Fuller;  and  it 
did  not  become  an  express  decision  of  a  court 
of  common  law  till  Franklin's  case,  in  1731; 
and  there  the  counsel  made  a  zealous  struggle 
against  it,  as  new,  dangerous,  and  arbitrary. 
In  the  trial  of  Home,  Lord  Mansfield  laid  the 
rule  aside,  and  the  counsel  for  the  crown  re- 
joiced at  an  opportunity  to  meet  the  defend- 
ant upon  the  merits  of  the  accusation.  In  1792 
it  was  made  a  questionable  point,  in  the  House 
of  Lords,  and  one  of  the  highest  law  charac- 
ters in  the  House  seems  to  have  b9rne  his  tes- 
timony against  it.  I  feel  myself,  therefore,  at 
full  liberty  to  examine  this  question  upon 
principle,  and  to  lay  the  doctrine  aside,  if  it 
shall  appear  unjust  in  itself,  or  incompatible 
with  public  liberty,  and  the  rights  of  the 
press. 

But,  whatever  may  be  our  opinion  on  the 
English  law,  there  is  another  and  a  very  import- 
ant view  of  the  subject  to  be  taken,  and  that 
391*]  is  with  respect  to  the  true  *standard  of 
the  freedom  of  the  American  press.  In  Eng- 
land they  have  never  taken  notice  of  the  press 
in  any  parliamentary  recognition  of  the  prin- 
ciples of  the  government,  or  of  the  rights  of 
the  subject,  whereas  the  people  of  this  country 
have  always  classed  the  freedom  of  the  press 
among  their  fundamental  rights.  This  I  can 
easily  illustrate  by  a  few  examples. 

The  first  American  Congress,  in  1774,  in  one 
of  their  public  addresses  (Journals,  vol.  I.,  p. 
57),  enumerated  five  invaluable  rights,  with- 
out which  a  people  cannot  be  free  and  happy, 
and  under  the  protecting  and  encouraging  in- 
fluence of  which  these  colonies  had  hitherto  so 
amazingly  flourished  and  increased.  One  of 
these  rights  was  the  freedom  of  the  press,  and 
734 


the  importance  of  this  right  consisted,  as  they 
observed,  "  besides  the  advancement  of  truth, 
science,  morality,  and  arts  in  general,  in  its 
diffusion  of  liberal  sentiments  on  the  adminis- 
tration of  government,  its  ready  communica- 
tion of  thoughts  between  subjects,  and  its 
consequential  promotion  of  union  amon » them, 
whereby  oppressive  officers  are  shamed  or  in- 
timidated into  more  honorable  and  just  modes 
of  conducting  affairs."  The  next  high  au- 
thority I  shall  mention  is  the  Convention  of 
the  people  of  this  State,  which  met  in  1788. 
They  declared  unanimously  (Journals,  p.  44, 
51,  52,  73,  74)  that  the  freedom  of  the  press 
was  a  right  which  could  not  be  abridged  or 
violated.  The  same  opinion  is  contained  in 
the  amendment  to  the  Constitution  of  the 
United  States,  and  to  which  this  State  was  a 
partv.  It  is  also  made  an  article  in  most  of 
the  State  Constitutions,  that  the  liberty  of  the 
press  was  essential  to  the  security  of  freedom, 
and  ought  to  be  inviolably  preserved  ;  and  in 
two  of  those  constitutions  (Pennsylvania  and 
Ohio)  this  freedom  of  the  press  is  specifically 
defined,  by  saying  that  in  prosecutions  for 
any  publications,  respecting  the  official  con- 
duct of  men  in  a  public  capacity,  or  where  the 
matter  is  proper  for  public  information,  the 
truth  *may  always  be  given  in  evi-  [*392 
dence.  I  shall  mention,  lastly,  the  Act  of 
Congress,  of  the  14th  July,  1798,  which  pre- 
scribed penalties  for  certain  specified  libels 
upon  the  government  of  the  United  States,  and 
allowed  the  truth  to  be  given  in  evidence, 
on  every  prosecution  under  that  act ;  and  it  is 
worthy  of  notice  that  the  part  of  the  act  allow- 
ing the  truth  to  be  given  in  evidence  was  de- 
claratory, and  thereby  conveyed  the  sense  of 
Congress  that  such  was  the  already  existing 
law. 

These  multiplied  acts  and  declarations  are 
the  highest,  the  most  solemn  and  command- 
ing authorities  that  the  State  or  the  nation 
can  produce.  They  are  generally  the  acts  of 
the  people  themselves,  when  they  came  for- 
ward in  their  original  character,  to  change  the 
Constitution  of  the  country,  and  to  assert  their 
indubitable  rights.  And  it  seems  impossible 
that  they  could  have  spoken  with  so  much  ex- 
plicitness  and  energy,  if  they  had  intended 
nothing  more  than  that  restricted  and  slavish 
press,  which  may  not  publish  anything,  true 
or  false,  that  reflects  on  the  character  and  ad- 
ministration of  public  men.  Such  is  the  Eng- 
lish doctrine  of  the  liberty  of  the  press,  as 
asserted  in  Franklin's  case.  (See  also  Hawk., 
tit.  Libels,  7.)  A  treatise  on  hereditary  right 
has  been  held  a  libel,  although  it  contained  no 
reflections  upon  any  part  of  the  subsisting  gov- 
ernment. (Queen  v.  Bedford,  Str.,  189;  Gil- 
bert's Rep.  K.  B.,  297.)  And  if  the  theory  of 
the  prevailing  doctrine  in  England  (for  even 
there  it  is  now  scarcely  anything  more  than 
theory)  had  been  strictly  put  in  practice  with 
us,  where  would  have  been  all  those  enlight- 
ened and  manly  discussions  which  prepared 
and  matured  the  great  events  of  pur  Revolu- 
tion, or  which,  in  a  more  recent  period,  pointed 
out  the  weakness  and  folly  of  the  confedera- 
tion, and  roused  the  nation  to  throw  it  aside, 
and  to  erect  a  better  government  upon  its 
ruins?  They  were,  no  doubt,  libels  upon  the 
existing  establishments,  because  they  tended 
JOHNSON'S  CABEB,  3. 


1804 


to  defame  them,  and  to  expose  them  to  the 
393*1  contempt  *and  hatred  of  the  people. 
They  were,  however,  libels  founded  in  truth 
and  dictated  by  worthy  motives. 

I  am  far  from  intending  that  these  authori- 
ties mean,  by  the  freedom  of  the  press,  a  press 
wholly  beyond  the  reach  of  the  law,  for  this 
would  be  emphatically  Pandora's  box,  the 
source  of  every  evil.  And  yet  the  House  of 
Delagates  in  Virginia,  by  their  resolution  of 
the  7th  January,  1800,  and  which  appears  to 
have  been  intended  for  the  benefit  and  instruc- 
tion of  the  Union,  came  forward  as  the  advo- 
cates of  a  press  totally  unshackled,  and  de- 
clare, in  so  many  words,  that  ' '  the  baneful 
tendency  of  the  Sedition  Act  was  but  little 
diminished  by  the  privilege  of  giving  in  evi- 
dence the  truth  of  the  matter  contained  in 
political  writings."  They  seem  also  to  con- 
sider it  as  the  exercise  of  a  pernicious  in- 
fluence, and  as  striking  at  the  root  of  free 
discussion,  to  punish,  even  for  a  false  and 
malicious  writing,  published  with  intent  to 
defame  those  who  administer  the  government. 
If  this  doctrine  was  to  prevail,  the  press 
would  become  a  pest,  and  destroy  the  public 
morals.  Against  such  a  commentary  upon 
the  freedom  of  the  American  press,  I  beg 
leave  to  enter  my  protest.  The  founders  of 
our  governments  were  too  wise  and  too  just 
ever  to  have  intended,  by  the  freedom  of  the 
press,  a  right  to  circulate  falsehood  as  well  as 
truth,  or  that  the  press  should  be  the  lawful 
vehicle  of  malicious  defamation,  or  an  engine 
for  evil  and  designing  men,  to  cherish,  for 
mischievous  purposes,  sedition,  irreligion,  and 
impurity.  Such  an  abuse  of  the  press  would 
be  incompatible  with  the  existence  and  good 
order  of  civil  society.  The  true  rule  of  law 
is,  that  the  intent  and  tendency  of  the  publi- 
cation is,  in  every  instance,  to  be  the  substan- 
tial inquiry  on  the  trial,  and  that  the  truth  is 
admissible  in  evidence,  to  explain  that  intent, 
and  not  in  every  instance  to  justify  it.  I 
adopt,  in  this  case,  as  perfectly  correct,  the 
comprehensive  and  accurate  definition  of  one 
of  the  counsel  at  the  bar  (Gen.  Hamilton), 
that  the  liberty  of  the  press  consists  in  the 
394*]  *right  to  publish,  with  impunity,  truth, 
with  good  motives,  and  for  justifiable  ends, 
whether  it  respects  government,  magistracy, 
or  individuals. 

I  conclude,  therefore,  that  a  new  trial  ought 
to  be  awarded,  for  the  misdirection  of  the 
judge,  and  that  the  defendant  was  entitled  to 
give  in  evidence,  upon  the  trial,  the  truth  of 
the  libel. 

THOMPSON,  J.,  concurred. 

LEWIS,  CJi.  J.  This  cause  has  assumed  an 
air  of  importance  which  I  should  be  disposed 
to  ascribe,  in  a  great  measure,  to  the  spirit  of 
the  times,  rather  than  to  its  intrinsic  merits, 
did  not  the  characters  of  the  counsel  who  ap- 
pear in  support  of  the  motion  now  under  con- 
sideration preclude  the  idea. 

A  printer,  charged  with  a  libelous  and  mali- 
cious publication,  has  called  forth,  in  his  de- 
fense, the  gratuitous  exertion  of  the  choicest 
talents  that  grace  this  bar.  This  circumstance 
would  impose  a  belief  that  questions  of  high 
importance  are  involved,  and,  under  this  im- 
JOHNSON'S  CASES,  3. 


THE  PEOPLE  v.  CROSWELL. 
[APPENDIX.] 


392 


pression,  I  have  given  them  a  careful  exami- 
nation. 

As  the  trial  of  the  issue  has  been  the  subject 
of  much  newspaper  animadversion  and  mis- 
representation, and  as  the  decision  on  this 
motion  will  probably  share  the  same  fate,  I 
think  it  a  duty  I  owe  myself  to  state  that  the 
questions  raised  do  not  come  before  us  on  the 
report  of  the  judge,  before  whom  the  cause 
was  tried,  which  is  the  usual  and  ordinary 
mode  in  criminal  cases,  but  on  a  statement  of 
facts,  as  agreed  on  between  the  parties,  as  in 
civil  prosecutions.  Where  they  differed,  re- 
currence was  had  to  my  minutes  ;  but  where 
they  agreed,  I  was  not  consulted.  The  con- 
sequence is,  that  my  charge  has  not  been 
correctly  stated.  I  am  made  to  say,  among- 
other  things,  "that,  particularly  in  trials  for 
libels,  the  jury  were  not  judges  of  the  law  and 
the  fact  ;  and  that  in  cases  of  libels  only  could 
the  court  set  aside  £,  general  *verdict  [*39o 
of  guilty,  if  the  indictment  set  forth  nothing 
in  their  judgment  libelous."  My  language 
was,  that  the  rule  of  law  which  confined  jurors 
to  the  consideration  of  facts  alone,  was  strictly 
applicable  to  the  case  of  libels,  where  the 
question  of  libel  or  no  libel  was  an  inference 
of  law  from  the  fact ;  and  that  it  was,  perhaps, 
the  only  case  in  which  courts  had  invariably 
regarded  a  general  as  a  special  verdict,  and 
where  they  would,  ex  mero  motu,  arrest  the 
judgment,  if  the  law  was  with  the  defendant.1 

I  shall  now  consider  the  various  points  that 
have  been  submitted.  The  first  is,  "  That  the 
trial  ought  to  have  been  put  off,  in  order  to 
give  an  opportunity  to  the  defendant  to  prove 
the  testimony  stated  in  the  affidavit."  The 
only  ground  on  which  this  testimony  was  then 
argued,  as  important  to  the  defendant,  was, 
that  if  the  truth  of  the  facts  charged  as  libel- 
ous should  be  made  to  appear,  it  would  amount 
to  a  complete  justification.  Believing,  as  I 
then  did,  and  still  do,  that  the  testimony  was 
inadmissible,  I  denied  the  motion. 

My  subsequent  examination  of  this  point  has 
so  confirmed  me  in  the  opinion  which  I  then 
entertained,  that  I  now  pronounce,  with  con- 
fidence, that  it  ever  has  been  invariably,  and 
still  is,  the  law  of  England  that  the  truth  can- 
not be  given  in  evidence,  as  a  justification  in  a 
criminal  prosecution  for  a  libel,  at  common 
law.  Nay,  I  might  almost  venture  to  say, 
there  is  not  a  single  dictum  in  the  books  to  the 
contrary. 

The  cases  establishing  this  doctrine  are  : 

1.  The  case  de  Libettis  Famoxis,  in  which  it 
is  resolved,  that  it  is  not  material  whether  the 
libel  be  true,  or  whether  the  party  against 
whom  it  is  made,  be  of  good  or  ill  fame ;  for 
that  in  a  settled  state  of  government,  a  party 
grieved  ought  to  complain  for  an  injury  to  the 
settled  course  of  law. 

*To  this  authority  various  objec-  [*396 
tions  have  been  raised. 

First,  that  it  was  a  Star  Chamber  decision. 
This  is  true,  but  it  must  be  remembered  that 
at  this  period  that  tribunal  was  incorrupt,  and 
its  decision  as  correct  and  as  much  respected 
as  those  of  any  other  court  within  the  realm. 


1.— The  statement  of  the  case  has  been  altered  from 
the  one  read  at  the  argument,  so  as  to  agree  with 
this  explanation. 

735 


396 


SUPREME  COURT,  STATE  OF  NEW  YORK. 
[APPENDIX.! 


1804 


The  arbitrary  House  of  Tudor  no  longer  held 
the  sceptre. 

Again,  it  is  objected,  on  the  authority  of  Mr. 
Harrington,  that  the  resolutions  in  the  case  de 
LibeUis  Famoais  are  extrajudicial.  This  also 
is  true.  But  it  must  not  escape  our  notice 
that  the  very  proof  he  adduces,  in  support  of 
the  assertion,  is  a  decisive  authority  in  favor 
of  the  doctrine  I  contend  for.  His  words  are: 
"  As  the  libeler  is  stated  to  have  confessed 
both  the  writings  and  publication,  the  only 
question  before  the  court  must  have  been, 
what  fine  or  punishment  they  should  inflict." 

Mr.  Barrington's  objection,  however,  is  not 
pointed  to  this  particular  resolution,  and  if  it 
was,  it  would  not  diminish  the  authority  ;  for 
many  of  Lord  Coke's  reports  contain  resolu- 
tions irrelevant  to  the  point  immediately  under 
consideration,  which  have,  nevertheless,  been 
received  as  high  authority. 

The  next  case  in  order  of  time,  and  which  has 
been  cited  as  authority  by  both  parties,  is  that 
of  Lake  v.  Hatton.  By  the  defendant,  it  is 
adduced  to  show  that  Sir  Edward  Coke  had 
changed  his  opinion  on  the  point  under  con- 
sideration. No  such  inference  can  be  drawn 
from  it.  It  would,  perhaps,  be  a  sufficient 
answer  to  say,  that  it  is  hardly  presumable 
that  such  a  character,  after  so  solemn  an  opin- 
ion as  that  delivered  in  the  case  de  Lilwllis 
Famosis,  should,  in  the  short  period  of  eleven 
years,  have  suddenly  overturned  that  decision, 
without  assigning  a  single  reason  for  the 
change.  A  desire  to  detract  from  the  merits 
of  that  great  man,  frequently  appears  in  the 
reports  of  Lord  Hobart ;  in  none  more  strik- 
ingly than  in  this,  in  which  he  charges  him, 
very  indelicately,  with  a  great  deal  of  violence. 
397*J  The  manner,  *too,  of  introducing  the 
remark  attaches  to  it  suspicion.  The  point  on 
which  Sir  Edward  differs  from  the  court,  is  as 
to  the  propriety  of  retaining  the  suit  ;  the 
Countess  of  Exeter,  the  party  injured  by  the 
libel,  not  being  a  party  to  the  complaint.  Ho- 
bart, alluding  to  this  point,  at  the  close  of  the 
report  observes,  "and  where  Sir  Edward  Coke 
had  said,"  &c.,  clearly  showing  the  observa- 
tion, if  made  at  all,  to  have  been  a  mere  inci- 
dental one,  that  point  not  having  been  under 
consideration.  But  admitting  Sir  Edward 
Coke  did  make  the  observation,  it  was  a  correct 
one,  as  applied  to  that  particular  case.  On 
looking  into  the  powers  exercised  by  the  Star 
Chamber,  it  will  appear,  that  after  the  new- 
modeling  of  that  court,  by  the  3d  of  Hen. 
VII.,  it  became  a  court  for  determining  ques- 
tions of  civil  right  founded  on  tort,  as  well  as 
criminal  prosecutions.  Civil  suits,  particu- 
larly in  cases  of  libel,  were  frequently  carried 
on  there  ;  and  the  court  claimed  cognizance 
of  them,  by  virtue  of  the  general  terms  of  the 
statute,  unlawful  writings.  Criminal  pro- 
ceedings were  instituted,  pursuant  to  the  stat- 
ute, by  information,  civil  suits  by  bill  to  the 
Chancellor.  The  case  of  Lake  v.  Hatton  was 
of  the  latter  description  ;  it  was  commenced 
by  bill, and  carried  on  between  private  individ- 
uals. Sir  Edward  Coke  was  then  correct  in  say- 
ing that  "the  Countess  of  Exeter  ought  to  have 
been  a  party  to  the  suit,  for  had  she  a  purpose 
to  poison,  Hatton  might  then  have  justified  the 
libel  ;"  and  if  he  was  overruled  by  the  rest  of 
the  court,  it  is  a  stronger  case  than  any  in  the 

736 


books  against  the  doctrine  of  truth  being  a 
justification. 

In  Want's  case  (Moore,  627),  in  the  reign  of 
Car.  II.,  the  question  came  fairly  up,  and  the 
whole  court  were  of  opinion  that  the  libel  was 
punishable,  though  the  matter  was  true.  This 
was  also  a  Star  Chamber  case. 

I  come  now  to  the  consideration  of  cases  to 
which  that  objection  does  not  lie.  In  The 
King  v.  Saunders,  in  B.  R.,  in  the  same  reign, 
the  information  was  for  writing  a  scandalous 
*libel  to  Hugh  Rich,  who  was  in-  [*398 
debted  to  him,  and  had  kept  him  out  of  his 
money  for  three  years,  by  obtaining  a  protec- 
tion. The  libelous  letter,  charged  him  with 
dishonesty,  want  of  humanity  and  cheating, 
in  thus  using  him.  The  defendant  was  found 
guilty,  and  it  was  moved  in  arrest  of  judgment 
that  the  substance  of  the  letter  being  true, 
was  not  scandalous.  But  the  court  said,  the 
letter  is  provocative,  and  tends  to  the  incens- 
ing Mr.  Rich  to  a  breach  of  the  peace.  He 
was  fined  forty  marks ;  the  four  justices, 
Keelyng,  Twisden,  Rainsford,  and  Moreton, 
concurring. 

In  Franklin's  case,  tried  before  Lord  Chief 
Justice  Raymond,  in  1731,  on  an  information 
for  a  libel,  in  publishing  a  letter  from  The 
Hague,  stating  a  report  that  the  administration 
contemplated  a  treaty  with  the  emperor,  in 
violation  of  the  Treaty  of  Seville,  Mr.  Bootle 
and  Mr.  Strange,  of  counsel  for  the  prisoner, 
offered  to  show  the  letter  a  genuine  one,  and 
the  truth  of  the  facts  it  contained.  The  testi- 
mony was  refused,  the  Lord  Chief  Justice  ob- 
serving, "  that  it  is  not  material,  whether  the 
facts  charged  in  a  libel  be  true  or  false,  if  the 
prosecution  is  by  indictment  or  information." 

The  last  English  case  I  shall  cite,  though 
they  are  many  others  to  the  same  effect,  is  a 
very  modern  one.  It  is  that  of  The  King  v. 
Burks  (7  Term  Rep.,  4),  in  which  Lord  Ken- 
yon  declares  that  the  term  ' '  false  "  is  not  neces- 
sary in  an  information,  because  the  falsehood 
is  not  necessary  to  be  proved.  This  decision 
being  subsequent  to  the  British  statute  of 
1793,  shows  that  the  law,  in  this  particular, 
is  not  there  considered  as  affected  by  that 
statute. 

On  the  trial  of  John  Peter  Zenger,  in  this 
State,  under  its  colonial  government,  the  same 
rule  of  law  was  laid  down  by  Chief  Justice  De- 
lancey.  To  this  decision  is  objected  the  high 
state  of  party  at  the  time.  This  is  an  objec- 
tion which  would  apply  with  more  force  to  the 
case  of  The  Seven  Bishops,  and  yet  an  expres- 
sion of  a  *single  judge,  in  that  case,  [*399 
has  been  relied  on  as  authority  by  the  defend- 
ant's counsel.  Chief  Justice  Delaucey,  I  have 
ever  understood,  was  esteemed  an  able  law- 
yer, and  as  his  opinion  was  sanctioned  by 
those  of  many  able  men  who  went  before 
him,  I  am  disposed  to,pay  it  as  much  respect 
as  if  it  had  been  delivered  in  Westminster 
Hall. 

The  cases  relied  on  by  the  defendant's  coun- 
sel come  now  to  be  considered.  The  first, 
and  one  of  the  earliest  in  the  books,  is  that  of 
John  De  Northampton,  in  which  the  court,  in 
rendering  judgment,  made  use  of  these  words, 
qtKK  litera  continet  nuttam  verittitem.  Hence  it 
is  inferred,  that  the  falsity  of  the  libelous  mat- 
ter must  have  appeared  in  evidence.  By  re- 
JOHNBON'S  CASES,  3. 


1804 


THE  PEOPLE  v.  CROSWELL. 
[APPENDIX.] 


399 


curring  to  the  case,  it  will  appear  that  the 
truth  or  falsity  of  the  libel,  from  the  very 
nature  of  it,  could  not  have  come  in  question. 
The  defendant,  and  attorney  of  the  King's 
Bench,  wrote  a  letter  to  a  member  of  the  coun- 
cil, stating  that  neither  the  Chief  Justice,  nor 
his  fellows,  the  king's  justices,  any  great 
thing  would  do,  by  commandment  of  the 
king.  Now  whether  they  would  or  not, 
was  a  fact  susceptible  of  proof,  by  subse- 

?uent  events  alone.  The  expression,  there- 
ore,  in  the  judgment  rendered,  must  be  con- 
sidered as  a  declaration  of  the  judges,  intro- 
duced to  prevent  that  indignation  of  the  king 
towards  them,  which  they  say  the  libel  was 
calculated  to  produce. 

Old  Noll's  case,  and  the  anonymous  case 
from  1  Lev.,  287,  were  both  on  the  statute 
of  Scandalum  Magnatum,  and,  therefore,  in- 
applicable to  the  present  question. 

Curl's  case  was  cited,  but  with  what  view  I 
cannot  comprehend  ;  for  I  can  find  no  point 
in  it,  but  whether  publishing  an  obscene  book 
was  punishable  in  a  temporal  court. 

Much  reliance  has  been  placed  on  the  dictum 
of  Powel,  in  the  case  of  the  Seven  Bishops.  He 
is  made  to  say,  "  to  make  it  a  libel  it  must  be 
false,"  &c.  If  he  did  say  so,  he  certainly 
was  guilty  of  an  inaccuracy  of  expression, 
4OO*J  *because  he  clearly  had  no  allusion  to 
a  fact  to  be  given  in  evidence  to  a  jury,  but 
to  a  question  of  law.  The  bishops  were 
-charged  with  presenting  a  libelous  petition 
to  his  majesty  (which  was  couched  in  terms 
of  the  profoundest  reverence  and  respect),  as- 
signing their  reasons  why  they  could  not  com- 
ply with  his  majesty's  command  to  cause  his 
declaration  of  toleration  to  be  read  in  the 
churches  of  their  dioceses.  The  reason  as- 
signed is,  they  apprehend  the  declaration  to  be 
illegal,  because  it  is  founded  on  a  dispensing 
power.  Powel  insists,  that  to  render  this 
libelous,  the  king  must  have  such  dispensing 
power,  which  is  a  question  of  law.  He  de- 
nies that  he  has  such  dispensing  power,  and, 
therefore,  concludes  that  the  petition  is  not 
libelous. 

Fuller's  case,  also,  has  been  much  relied  on. 
This,  however,  was  not  a  prosecution  for  a 
libel  simply ;  but  as  a  cheat  and  imposter,  in 
attempting  by  a  libelous  and  false  publication, 
to  obtain  money  fraudulently  and  deceitfully 
from  King  William.  He  charged,  in  two  pub- 
lications, entitled  "Original  Letters  of  the 
late  King's  and  Others,"  &c.,  certain  ministers 
of  the  king  with  carrying  on  a  criminal  cor- 
respondence with  the  deposed  monarch,  James 
II.,  when  in  France,  and  distributing  French 
money  in  England  ;  setting  forth,  in  such  pub- 
lications, two  affidavits,  one  of  Thomas  Jones, 
the  other  of  Thomas  Widdrington,  tending  to 
substantiate  the  facts.  On  the  trial,  Holt, 
Chief  Justice,  observes  to  him,  "You  charge 
many  persons  with  corresponding  with 
France,  and  cannot  prove  it."  Then  speak- 
ing of  Jones  and  others,  who  were  implicated, 
he  observes,  " These  persons  are  scandalized; 
for  you  produce  no  proof  of  what  you  charge 
them  with ;  and  you  say  I  had  the  original 
of  this  from  Mr.  Jones,  <fec.,  where  they  are  ?" 
These  questions  were  undoubtedly  proper, 
considering  that  the  fraud,  and  not  the  libel, 
was  the  gist  of  the  prosecution.  It  is  stated 
^JOHNSON'S  CASES,  3.  N.  Y.  RKP.,  BOOK  1. 


expressly,  as  a  prosecution  against  him  as  a 
cheat  and  imposter  ;  and  as  an  evidence  that 
it  was  really  so  intended,  the  *infor-  [*4O1 
mation,  if  examined,  will  be  found  to  contain 
not  a  single  innuendo. 

Tuchin's  case  appears  to  have  been  forcibly 
pressed  into  the  service.  Indeed,  after  read- 
ing it  carefully  through,  it  was  with  difficulty  I 
could  discover  any  thing  in  it  that  even  glanced 
at  the  question.  Mr.  Montague,  in  addressing 
the  jury,  on  behalf  of  the  defendant,  makes 
some  observations  on  that  part  of  the  libel 
which  consists  in  a  charge  of  mismanagement 
of  the  Navy.  Upon  which  Serjeant  Darnel 
asks,  "  Will  you  say  they  are  true?"  Really, 
I  know  not  what  is  to  be  inferred  from  this 
question.  One  counsel  asking  another  if  he 
means  to  assert  a  thing  to  be  true,  is  but  a 
weak  authority  to  show  that  truth  will  justify 
a  libel. 

Great  stress  has  been  laid  on  the  case  of 
The  King  v.  Horne,  in  which  Lord  Mansfield 
is  said  to  have  departed  from  the  rule,  and 
permitted  the  truth  to  be  given  in  evidence. 
This  is  not  the  fact.  The  circumstance  relied 
on  is,  his '  admitting  the  testimony  of  Mr. 
Gould,  a  subaltern  officer  employed  with  the 
British  troops  at  Lexington  and  Concord,  re- 
specting the  transactions  that  took  place  in 
the  course  of  that  expedition.  But  it  was  ad- 
mitted, neither  for  the  purpose  of  justifying 
the  defendant,  nor  to  show  the  intent  of  the 
libelous  publication.  It  was  simply  to  ascer- 
tain whether  the  facts  would  support  the 
charge  in  the  information.  The  charge  was 
for  a  libel  concerning  his  majesty's  govern- 
ment, and  the  employment  of  his  troops,  by 
asserting  that  those  troops  had,  at  the  places 
above  mentioned,  inhumanly  murdered  the 
Americans,  for  preferring  death  to  slavery. 
The  defendant  alleged  that  soldiers  were  as  ca- 
pable of  committing  murder  as  citizens,  and 
that  the  facts  he  alluded  to,  in  the  supposed 
libelous  publication,  might  have  taken  place 
in  an  affray.  Had  this  been  really  the  case,  it 
is  evident  a  circumstance  of  this  kind  would 
not  have  supported  an  information  for  a  libel 
concerning  his  majesty's  government,  and  the 
employment  of  his  troops.  That  this  was  the 
ground  on  which  *Mr.  Gould's  testi-  [*4O2 
mony  was  admitted,  appears  from  Lord  Mans- 
field's own  declaration,  when  Mr.  Horne  was 
brought  up  for  judgment.  He  moved,  in  ar- 
rest of  judgment,  that  the  information  did  not 
state  that  the  troops  were  employed  in  quel- 
ling an  insurrection  or  rebellion.  Upon  this 
his  lordship  observes,  "  If  the  defendant  has  a 
legal  advantage  from  a  literal  flaw,  God  for- 
bid that  he  should  not  have  the  benefit  of  it." 
It  is  most  certain,  that  at  the  trial  the  infor- 
mation was  considered  to  be  works  spoke  of 
and  concerning  the  King's  government,  and 
his  employment  of  his  troops  ;  that  is,  the  em- 
ployment of  the  troops  by  government.  Upon 
that  ground  the  defendant  called  a  witness, 
Mr.  Gould.  The  Attorney-General  rose  to 
object  to  him  ;  but  it  was  very  clear  that  he 
was  a  proper  witness,  and  he  acquiesced  im- 
mediately, because  it  was  extremely  material 
to  show  what  the  subject  matter  was  to  which 
the  libel  related.  If  it  was  the  employment 
of  the  troops  under  proper  authority,  that 
came  within  the  charge  in  the  information. 
47  737 


402 


SUPREME  COURT,  STATE  OP  NEW  YORK. 
[APPENDIX.] 


1804 


Had  it  been  a  lawless  affray,  it  would  not. 
Though  the  saying  so  might  have  been  a  libel 
on  the  individuals,  yet  it  could  not  have  been 
this  libel.  It  would  not  have  been  this  libel 
of  the  king's  troops,  employed  by  him. 

The  opinion  of  the  twelve  judges  of  Eng- 
land, delivered  to  the  House  of  Lords  in  the 
year  1792,  when  the  act  for  the  amendment  of 
the  law  in  cases  of  libel  was  under  consid- 
eration, is  also  conclusive  on  the  point. 

I  believe  I  have  noticed  all  the  leading  au- 
thorities on  the  subject.  The  result  to  my 
mind  is,  that  they  evince  a  uniform  course  of 
decision,  establishing  the  law  as  laid  down  at 
the  trial. 

Whether  the  rule  is  correct  in  principle,  has 
also  been  made  a  question.  The  popular  sen- 
timent, I  know,  is  decidedly  opposed  to  it ; 
and  I  am  free  to  confess  that,  before  I  had 
fully  considered  the  subject,  the  inclination  of 
my  own  mind  was  strong  that  way.  But  on 
reflection  I  have  discarded  the  opinion,  satis- 
4O3*]  fied  that  truth  may  be  *as  dangerous 
to  society  as  falsehood,  when  exhibited  in  a 
way  calculated  to  disturb  the  public  tranquil- 
ity,  or  to  excite  to  a  breach  of  the  peace. 

Aware  of  the  consequences  of  a  contrary 
doctrine,  a  distinction  has  been  attempted  be- 
tween giving  the  truth  in  evidence,  as  a  jus- 
tification, and  as  forming  an  ingredient  in 
ascertaining  the  intent.  This  is  a  distinction 
for  the  discovery  of  which  we  are  indebted  to 
the  ingenuity  of  our  own  time ;  there  is  cer- 
tainly nothing  to  be  met  with  in  the  books  to 
rob  us  of  the  honor  of  it.  It  has,  however, 
an  indisputable  title  to  respect,  and  will  doubt- 
less be  regarded,  whenever  a  case  shall  arise 
in  which  the  intent  shall  be  a  fit  subject  of 
inquiry  for  a  jury,  and  the  truth  shall  be 
capable  of  opening  an  avenue  to  the  heart, 
through  which  it  may  be  discovered.  Under 
such  circumstances,  I  should  not  hesitate  to 
admit  it ;  but  as  I  do  not  consider  the  present 
case  entitled  to  the  benefit  of  it,  it  cannot  in- 
fluence my  opinion  as  to  what  ought  to  be  the 
issue  of  the  present  consideration. 

This  leads  me  to  the  consideration  of  the 
question  next  in  importance,  which  is,  whether 
the  intention  of  the  defendant,  in  publishing 
the  libel  with  which  he  is  charged,  ought  to 
have  been  submitted  to  the  inquiry  of  the  jury, 
as  a  fact  on  which  his  guilt  or  innocence 
depended.  The  intent  is  certainly  an  in- 
gredient in  the  constitution  of  every  offense. 
But  it  is,  as  certainly,  in  many  cases,  though 
not  in  all,  an  inference  of  law  deduced  from 
facts.  Where  an  act,  in  itself  criminal,  is  per- 
formed without  lawful  excuse,  there  the  crim- 
inal intent  is  an  inference  of  law.  But  where 
an  act,  in  itself  indifferent  or  innocent,  is  per- 
formed, there,  to  constitute  it  a  crime,  a  crim- 
inal intent  is  an  essential  ingredient,  and  a 
proper  subject  for  the  inquiry  of  a  jury.  This 
distinction  is  not  peculiar  to  the  case  of  libel. 
In  a  private  prosecution  for  slandering  a  man 
in  his  profession,  trade  or  calling,  the  mali- 
cious intentjs  of  the  essence  of  the  action  ;  and 
yet  the  courts  invariably  inform  a  jury,  that  if 
4O4*]  they  find  the  fact,  the  law  *infers  the 


malicious  intent,  and  that  the  plaintiff  is  enti- 
tled to  their  verdict.  So,  too,  in  some  cases  of 
murder;  as  where  a  workman,  in  a  populous 
city,  where  persons  are  continually  passing, 

738 


carelessly  throws  a  piece  of  timber  from  a 
scaffold  and  kills  a  passenger,  the  malicious 
intent  is  an  inference  of  law  from  the  fact. 

An  objection,  not  without  force  I  admit,  is 
here  to  be  encountered.  In  the  case  above 
alluded  to,  as  well  as  in  some  others,  judges 
uniformly  state  the  law  to  the  jury,  and  leave 
them  to  decide  on  the  law  and  fact  collect- 
ively. How  this  has  obtained  I  can  only  con- 
jecture. I  am  inclined  to  ascribe  it  to  the 
humanity  of  judges,  inducing  them  to  afford 
(in  cases  where  the  prevailing  manners  of  the 
times,  or  other  circumstances,  form  a  reason- 
able though  not  a  legal  excuse)  a  chance  of 
acquittal  to  a  party  accused,  which  an  adher- 
ence to  strict  rules  of  law  would. deny  him. 
These  cases  only  form  exceptions  ;  they  do  not 
impugn  the  rule,  that  to  questions  of  law  the 
court,  to  questions  of  facts  the  jury,  must  re- 
spond. 

It  has  been  attempted  to  narrow  this  rule, 
by  restricting  the  exclusive  right  of  judges  on 
all  general  issues,  to  the  case  of  special  ver- 
dicts. It  is  true,  in  Bushel's  case,  decided  in 
22  Car.  II.,  Vaughan  declares  such  to  be  the 
law.  But  I  do  not  find  that  judges,  since  his 
day,  have  followed  his  opinion.  On  the  con- 
trary, I  think  it  has  been  uniformly  rejected 
ever  since  the  period  of  the  revolution  in  1688. 
Certainly  his  reasoning  in  that  case  would  not 
be  received  as  law  at  this  day.  He  admits  the 
right  of  the  judge,  when  the  jury  find,  unex- 
pectedly, for  the  plaintiff  or  defendant,  to  ask 
them  how  they  find  such  a  fact  in  particular  ; 
and  upon  their  answer,  to  say,  then  it  is  for 
the  defendant,  though  they  found  for  the 
plaintiff,  and  e  contrario,  and  thereupon  they 
rectify  their  verdict. 

He  also  assigns,  as  a  reason  why  a  jury  is 
not  justifiable  for  a  false  verdict,  that  the  judge 
cannot  know  their  evidence,  for  their  verdict 
may  be  the  result  of  their  own  *knowl-  [*4O5 
edge  of  the  fact,  or  such  knowledge  derived 
from  each  other.  Surely,  at  this  day,  such 
doctrine  is  inadmissible,  and  destroys  the  au- 
thority of  this  case. 

Judge  Blackstone  has  been  cited  as  an  au- 
thority to  the  same  point ;  but,  in  my  opinion, 
he  emphatically  establishes  the  reverse.  "  The 
verdict,"  says  he,  "may  be  general,  or  special ; 
setting  forth  all  the  circumstances,  and  pray- 
ing the  judgment  of  the  court.  This  is  where 
the  jury  doubt  the  matter  of  law,  and,  there- 
fore, choose  to  leave  it  to  the  determination  of 
the  court ;  though  they  have  an  unquestion- 
able right  of  determining  upon  all  the  circum- 
stances, and  finding  a  general  verdict,  if  they 
think  proper  so  to  hazard  a  breach  of  their 


oaths ; 
wrong 


and,   if  their  verdict  be  notoriously 
they  may  be  punished,  and  the  ver- 


dict set  aside  by  attaint,  at  the  suit  of  the 
king,  but  not  at  the  suit  of  the  prisoner." 
What?  Men  to  be  punished  for  a  breach  of 
their  oaths  in  exercising  a  right?  This  would 
be  preposterous.  Tne  right  here  spoken  of  is 
nothing  more  than  the  right  of  insisting  upon 
their  verdict  being  received  and  recorded, 
though  it  be  general,  where  it  ought  not  to  be 
so.  But  is  this  a  species  of  right,  which  shall 
impose  it  upon  a  judge  to  inform  them  that 
they  may  exercise  it,  though  they  violate  their 
oaths?  'Surely  not. 

It  cannot  be  denied,  however,  that  there  ha* 
JOHNSON'S  CASES,  3. 


1804 


THE  PEOPLE  v.  CROSWELL. 
[APPENDIX.] 


405 


existed  a  difference  of  sentiment  among  great 
law  characters  on  this  subject.  The  argument 
of  Mr.  Erskine,  on  a  motion  for  a  new  trial,  in 
the  case  of  The  Dean  of  St.  Asaph,  in  favor  of 
the  right  of  a  jury  to  judge  of  the  intent  in  all 
cases,  is  ingenious  and  able.  The  opinions  of 
lords  Camden  and  Loughborough,  in  the 
House  of  Lords,  when  the  libel  bill  was  under 
consideration,  are  entitled  to  respect.  But 
sitting  as  a  court  of  justice,  we  are  not  to  re- 
ceive the  law  either  from  the  arguments  of 
counsel  or  the  opinions  of  individuals  given  in 
a  legislative  capacity  ;  particularly,  if  opposed 
to  solemn  judicial  decisions.  For  the  one  will 
4O6*]  always  urge  what  is  most  favorable  *to 
his  client ;  the  others  will  frequently  advance 
as  legislators  what  they  would  not  support  as 
judges.  Of  this  instances  are  not  wanting, 
even  under  our  own  government.  Judicial 
decisions  on  the  point,  are,  in  my  opinion,  the 
other  way. 

In  Fuller's  case  (5  St.  Tr.,  445  anno  1702), 
Lord  Holt,  in  a  very  concise  address  to  the 
jury,  observes,  "You  hear  the  witness  say, 
he  (meaning  Fuller)  brought  these  two  scandal- 
ous books  to  the  press,  and  that  he  corrected 
them  ;  and  he  owns  that  he  was  the  publisher 
of  them  ;  and  if  you  believe  he  did  so,  you  are 
to  find  him  guilty."  Not  one  syllable  is  said 
to  them  about  inquiring  into  any  criminal  in- 
tent. 

In  the  case  of  Tuchin,  two  years  after  (1704), 
this  same  learned  judge  is  said  to  have  spoken 
a  different  language.  I  do  not  so  understand 
him.  The  defendant's  counsel  had  insisted 
that  nothing  was  a  libel  but  what  reflected 
upon  some  particular  person.  To  remove  any 
improper  impression,  which  such  an  assertion 
might  make  on  the  jury,  his  lordship  observes, 
that  a  libel  on  the  government  is  criminal. 
That  no  government  could  subsist,  if  persons 
were  not  called  to  account  for  possessing  the 
people  with  an  ill  opinion  of  the  government ; 
and  he  submits  it  to  the  consideration  of  the 
jury,  whether  the  words  he  had  read  to  them 
did  not  tend  to  beget  an  ill  opinion  of  the  ad- 
ministration of  the  government.  Here,  also, 
nothing  is  said  of  intention.  He  submits  to 
the  consideration  of  the  jury,  the  unavoidable 
tendency  of  such  libelous  publications,  merely 
to  rebut  the  argument  of  counsel,  but  says 
nothing  about  intention  ;  on  the  contrary,  he 
concludes,  by  telling  them,  "If  you  are  satis 
fied  that  he  is  guilty  of  composing  and  publish- 
ing these  papers,  you  are  to  find  him  guilty." 

We  find  Lord  Raymond,  in  Franklin's  case 
(9  St,  Tr. ,  255),  laying  down  the  same  rule  of 
law.  "  There  are  three  things,"  said  his  lord- 
ship, "to  be  considered,  whereof  two  by  you 
the  jury,  and  one  by  the  court.  The  first 
4O7*]  *is,  whether  the  defendant  is  guilty  of 
the  publication  or  not.  The  second,  whether 
the  expressions  in  the  latter  refer  to  his 
present  majesty,  and  his  principal  officers  and 
ministers  of  state,  and  are  applicable  to  them 
or  not.  These  are  the  two  matters  of  fact, 
that  come  under  your  consideration,  and  of 
which  you  are  the  proper  judges.  The  third 
does  not  belong  to  the  office  of  the  jury,  but 
to  the  office  of  the  court.  This  is  a  question 
of  law,"  &c. 

In  The  King  v.  Owen,  Lord  Chief  Justice 
Lee  directed  the  jury,  that  if  they  thought  the 
JOHNSON'S  CASES,  3. 


fact  of  publication  fully  proved,  they  ought 
to  find  the  defendant  guilty.  (10  St.  Tr.  App. 
194,  anno  1752.) 

The  same  rule  has  been  uniformly  and  in- 
variably adopted,  and  observed  by  all  the 
judges  of  the  King's  Bench,  until  the  statute 
of  1793,  which  authorizes  the  jury  to  decide 
on  the  whole  matter  in  issue.  That  statute,  it 
ought  not  to  be  forgotten,  was  passed  at  the 
commencement  of  an  unpopular  war  with 
France,  and  was  principally  advocated  by  a 
party  hostile  to  the  then  administration. 

In  the  case  of  The  King  v.  WiUees,  for  pub- 
lishing the  North  Briton,  No.   45,  the  jury 
found  a  verdict  of  ~ 
lishing  the  North 


af  printing  and  pub- 
Jriton,  No.  45,  which  was 


recorded  generally,  guilty.  And  although  the 
national  ferment,  at  that  day,  was  immoderate- 
ly high,  and  Mr.  Wilkes  regarded  as  a  patriot 
of  the  highest  order,  no  exception  was  ever 
taken.  (4  Burr.,  2527,  from  1764  to  1770.) 

In  the  case  of  The  King  v.  Woodfatt  (5  Burr., 
2661),  for  printing  and  publishing  Junius,  the 
jury  found  the  defendant  guilty  of  printing 
ana  publishing  only.  On  a  supposition  that 
this  word  "only"  was  introduced  by  the  jury 
to  negative  some  part  of  the  information,  a 
new  trial  was  applied  for.  On  which  occa- 
sion the  court  observes  that  the  verdict  found 
the  whole  charge  4n  the  information,  and  that 
if  the  jury  meant  to  say  "they  did  not  find  it 
a  libel,"  or  "did  not  find  the  epithets,"  or 
"did  not  find  any  express  malicious  intent," 
it  would  not  *affect  the  verdict ;  be-  [*4O8 
cause  none  of  these  things  were  to  be  proved, 
or  found  either  way.  "That  guilty  of  print- 
ing and  publishing,  where  there  is  no  other 
charge,  is  guilty ;  for  nothing  more  is  to  be 
found  by  the  jury."  And  Lord  Mansfield  ob- 
serves, that  such  direction,  though  often  given 
with  an  express  request  from  him,  "that  if 
there  was  the  least  doubt,  the  court  might  be 
moved  upon  it,"  was  never  complained  of  in 
court. 

In  the  case  of  The  Dean  of  St.  Asaph  (1784), 
which  was,  like  the  present,  a  trial  at  JVm 
Prius,  the  same  rule  was  laid  down  by  Judge 
Buller  on  the  trial,  and  afterwards,  on  a  mo- 
tion to  set  aside  the  verdict,  for  misdirection, 
affirmed  by  the  whole  bench  of  judges,  after 
having  had  the  full  benefit  of  the  brilliant  and 
learned  observations  of  Mr.  Erskine,  on  which 
so  much  reliance  has  been  placed. 

Lord  Kenyon,  who  was  never  very  partial 
to  Lord  Mansfield  or  Mr.  Justice  Buller,  and 
who  was  esteemed  a  sound  lawyer,  has  uni- 
formly coincided  with  this  opinion,  and  has 
regularly  charged  juries  in  correspondence 
with  it.  In  Stockdale's  case  (1789),  where  he 
heard  an  argument  from  Mr.  Erskine,  similar 
to  that  which  he  delivered  in  the  case  of  The 
Dean  of  St.  Asaph,  he  instructs  the  jury  that 
there  are  two  points  for  them  to  attend  to, 
namely,  whether  the  defendant  did  publish  the 
libel  ;  and  whether  the  sense  which  the  At- 
torney-General, by  his  innuendoes  in  the  infor- 
mation, had  affixed  to  the  different  passages, 
was  fairly  affixed  to  them. 

The  same  direction  was  given  by  him  at  the 
trial  of  Withers  (3  Term  Rep. ,  428),  on  an  in- 
dictment for  writing  and  publishing  a  libel  on 
Mrs.  Fitzherbert,  and  no  exception  was  taken. 

The  last  authority  I  shall  refer  to,  is  derived 

739 


408 


SUPREME  COURT,  STATE  OP  NEW  YORK. 
(.APPENDIX.] 


1804 


from  the  highest  possible  source.  It  is  the 
answers  of  the  twelve  judges  of  England,  to 
the  questions  propounded  to  them  by  the 
House  of  Lords  when  the  libel  bill  was  under 
their  consideration.  The  first  question  is  : 
4O9*]  *" Whether  on  the  trial  of  an  infor- 
mation or  indictment  for  a  libel,  is  the  crim- 
inality or  innocence  of  the  paper  set  forth  in 
such  information  or  indictment,  as  the  libel, 
matter  of  fact  or  matter  of  law,  where  no  evi- 
dence is  given  for  the  defendant  ?" 

Answer,     "  Matter  of  law." 

2.  "Is  the  truth  or  falsehood  of  the  written 
paper  material  to  be  left  to  the  jury,  upon  the 


of    an  indictment  or  information  for  a 
and  does  it  make  any  difference,  in  this 


trial 

libel 

respect,  whether  the  epithet  (false)  be  or  be 

not  used  in  the  indictment  or  information." 

Answer.     ' '  Not  material. " 

3.  "  Is  a  witness,  produced  before  a  jury  in 
a  trial,  as  above,  by  the  plaintiff,  for  the  pur- 
pose of  proving  a  criminal  intention  of  the 
writer,  or  by  the  defendant  to  rebut  the  impu- 
tation, admissible  to  be  heard,  as  a  competent 
witness  in  such  trial  before  the  jury?" 

Answer.  :< A  criminal  intention  is  no  part 
of  the  allegation,  at  common  law,  as  no  man 
shall  be  allowed  to  scatter  arrows,  firebrands, 
and  death,  and  then  say,  'Am  I  not  in  sport  ?' " 

Under  this  view  of  the  subject,  I  am  satis- 
fied the  law  is  as  I  stated  it  on  the  trial ;  and 
that  when  it  shall  be  determined  to  be  other- 
wise, it  will  no  longer  be,  what  all  law  ever 
should  be,  a  uniform  rule  of  conduct. 

It  has  been  urged,  that  to  deny  a  jury  the 
right  of  deciding  on  the  law,  and  the  fact,  in  all 
cases  of  criminal  prosecution,  is  contrary  to 
the  spirit  and  genius  of  our  government.  But 
how,  has  not  been  attempted  to  be  shown.  In 
England,  where  the  judges  are  appointed  by 
the  crown,  and  juries  form  a  substantial  bar- 
rier between  the  prerogatives  of  that  crown 
and  the  liberties  of  the  people,  the  reasons  for 
extending  the  powers  of  the  latter  are  certainly 
much  stronger  than  with  us,  where  the  judges 
are,  in  effect,  appointed  by  the  people  them- 
selves, and  amenable  to  them  for  any  miscon- 
duct. It  will  be  recollected  that  I  admitted 
4 1O*]  there  were  cases  in  *which  the  jury 
must  necessarily  inquire  into  the  intent ;  to 
wit.  where  the  act  did  not  carry  intention  on 
the  face  of  it,  and  guilt  or  innocence  depended 
on  the  circumstances  of  time,  place,  persons, 
&c.  Such  was  the  case  of  the  Seven  Bishops. 
They  were  charged,  as  has  been  before  ob- 
served, with  a  libel,  in  presenting  a  petition  to 
the  king,  conceived  in  terms  of  the  most 
respectful  loyalty.  To  petition  the  crown  was 
the  right  of  the  subject,  and  as  the  petition 
carriea  not  with  it  its  own  evidence  of  a  guilty 
intent,  or  pernicious  tendency  ;  these  were 
facts  necessary  inquirable  into  by  the  jury. 
But  is  the  case  before  us  thus  circumstancedj? 
Will  any  one,  uninfluenced  by  the  strongest 
party  prejudice,  say,  that  a  charge  against  the 
highest  officer  of  our  government,  unpalliated 
by  the  shadow  of  lawful  excuse,  of  employ- 
ing a  base  assassin  to  stab  the  reputation  of  a 
man  justly  esteemed  the  pride  and  ornament 
of  his  country,  does  not  carry  with  it  conclus- 
ive evidence  of  a  most  malicious  and  seditious 
intention  ?  I  think  it  can  admit  of  no  doubt. 

To  the  objection  that  the  judge  ought  to 
740 


have  declared  the  law  to  the  jury,  and  sub- 
mitted it  to  them,  together  with  the  fact,  it  is 
a  sufficent  answer,  that  the  defendant  thought 
proper  to  carry  his  cause  before  a  tribunal 
constituted  for  the  trial  of  issues  of  fact  alone, 
where  it  is  the  invariable  practice  to  reserve  all 
doubtful  points  of  law  for  a  decision  at  bar. 
In  the  present  instance,  there  was  a  peculiar 
propriety  in  adopting  this  course.  For  had  a 
different  one  been  pursued,  and  the  defendant 
been  acquitted,  from  the  mistake  of  the  judge 
in  point  of  law,  the  error  would  have  been 
irremediable,  and  the  public  justice  defeated. 
Had  the  examination  I  have  given  this  sub- 
ject, eventuated  in  the  conviction  that  I  had 
mistaken,  the  law,  I  should,  without  hesita- 
tion, have  renounced  my  error.  The  result 
being  the  reverse,  and  it  being  the  duty  of  a 
judge  to  pronnce  the  law  as  he  finds  it,  and 
to  leave  *the  alteration  of  it,  when  [*411 
found  inconvenient  to  that  body  to  whom  the 
constitution  has  confided  the  power  of  legisla- 


tion, I  am  constrained  to  declare,  I  think  the 
defendant  not  entitled  to  a  new  trial  on  either 
of  the  grounds  on  which  his  motion  is  rested. 

LIVINGSTON,  J.,  concurred. 

Distinffuished-l  Curt.,  60;  SCranch,  C.  C..  586. 

Reviewed— 7  Cow.,  624. 

Cited  in— 9  Johns.,  215 ;  4  Wend.,  165 ;  26  Wend.,  396, 
535 ;  1  Denio,  359 ;  8  N.  Y.,  76 ;  4  Barb.,  515 ;  6  Barb.' 
48 ;  31  Barb.,  465 ;  1  Abb.,  307 ;  2  Abb..  N.  8.,  103 ;  4 
Duer,  266 ;  5  Park.,  590 ;  44  Super.,  70. 


On  the  last  day  of  the  session  of  the  Legis- 
lature, in  April,  1804,  a  bill,  entitled  "An 
Act  relative  to  libels,"  was  delivered  to  the 
Council  of  Revision,  and  at  the  next  session  of 
the  Legislature,  it  was  sent  back  with  the 
objections  of  the  council. 

The  principal  objection  is  understood  to 
have  been,  because  the  second  section  of  the 
bill,  which  allowed  the  truth  to  be  given  in 
evidence,  as  a  defense  to  an  indictment  for  a 
libel,  upon  any  person  holding  an  office  of 
honor,  profit  or  trust,  or  being  a  candidate  for 
any  such  office,  made  no  discrimination  in 
respect  to  the  nature,  tendency  or  intent  of  the 
libel ;  and  would,  therefore,  authorize,  not 
only  charges  which  were  fit  and  proper  for 
public  information,  but  every  delineation  of 
private  vices,  defects  or  misfortunes,  however 
indecent  or  offensive,  and  made  no  distinction 
between  libels  circulated  from  good  motives 
and  justifiable  ends,  and  such  as  were  circu- 
lated for  sedicious  and  wicked  purposes,  or  to 
gratify  individual  malice  or  revenge. 

On  the  12th  February,  1S05,  the  House  of 
Assembly  took  into  consideration  the  objec- 
tions of  the  Council  of  Revision  to  the  bill 
concerning  libels,  and  the  question  being  put, 
it  was  lost  by  a  large  majority. 

A  bill  concrning  libels  was,  afterwards, 
introduced  by  William  W.  Van  Ness,  Esq., 
then  a  member  of  the  Assembly, *which[*4 1 2 
passed  both  houses  unanimously,  and  became 
a  law  on  the  6th  April,  1805.  The  act  (sess. 
28,  ch.  90)  is  as  follows  : 
"  Whereas,  doubts  exist,  whether,  on  the  trial 

of  an  indictment  or  information  for  a  libel, 

the  jury  have  a  right  to  give  their  verdict 

on  the  whole  matter  in  issue  : 

JOHNSON'S  CASES,  3. 


1804 


THE  PEOPLE  v.  CROSWELL. 
[APPENDIX.] 


412 


1.  Be  it  therefore  declared  and  enacted,  by 
the  People  of  the  State  of  New  York,  repre- 
sented   in    Senate  and  Assembly :    That  on 
every  such  indictment    or    information,   the 
jury,   who  shall  try  the  same,  shall  have  a 
right  to  determine  the  law  and  the  fact,  under 
the  direction  of  the  court,  in  like  manner  as  in 
other  criminal  cases,  and  shall  not  be  directed 
or  required  by  the  court  or  judge,  before  whom 
such  indictment  or  information  shall  be  tried 
to  find  the  defendant  guilty,  merely  on  the 
proof  of  the  publication  by  the  defendant,  of 
the  matter  charged  to  be  libelous,  and  of  the 
sense  ascribed  thereto,  in  such  indictment  or 
information  ;  provided  nevertheless,  that  noth- 
ing herein  contained  shall  be  held  or  taken  to 
impair  or  destroy  the  right  and  privilege  of 
the  defendant  to  apply  to  the  court  to  have  the 
judgment  arrested,   as  hath  heretofore  been 
practiced. 

2.  And  be  it  further  declared  and  enacted, 
That  in  every  prosecution  for  writing  or  pub- 
lishing any  libel,   it  shall  be  lawful  for  the 
defendant,  upon  the  trial  of  the  cause,  to  give 
in  evidence,  in  his  defense,  the  truth  of  the 
JOHNSON'S  CASES,  3. 


matter  contained  in  the  publication  charged  as 
libelous  :  provided  always,  That  such  evidence 
shall  not  be  a  justification,  unless,  on  the  trial, 
it  shall  be  further  made  satisfactorily  to  ap- 
pear that  the  matter  charged  as  libelous,  was 
published  with  good  motives  and  for  justifi- 
able ends. 

3.  And  be  it  further  enacted,  That  any  per- 
son or  persons,  who  shall,  after  the  passing  of 
this  act,  be  convicted  of  writing  or  publishing 
a  libel,  such  person  or  *persons  shall  [*413 
not  be  sentenced  to  an  imprisonment  exceed- 
ing the  term  of  eighteen  months,  or  to  pay  a 
fine  exceeding  the  sum  of  five  thousand  dol- 
lars. 

4.  And  be  it  further  enacted,    That  from 
and  after  the  passing  of  this  act,  it  shall  not 
be  lawful  to  prosecute  any  person  or  persons, 
by  information,  for  writing  or  publishing  any 
libel." 

In  consequence  of  this  declaratory  statute, 
the  court,  in  August  Term,  1805  (no  motion 
having  been  made  for  judgment  on  the  ver- 
dict), unanimously  awarded  a  new  trial  in  the 
above  cause. 

741 


[END  OF  THE  CASES.] 


INDEX  TO  NOTES 

TO  THIS  EDITION. 

COLEMAN,  COLEMAN  AND  CAINES'  AND  JOHNSON'S  CASES,    3  VOLUMES. 


ABANDONMENT. 

See  INSURANCE,  MARINE. 

ADULTERY. 

Confessions  of  defendant   as   evidence  in 
action  for  divorce. 

Doe  v.  Hoe.  228 

ADVERSE  POSSESSION. 

Deed  of  lands  held  adversely;  void  as  to 
what  parties; 

"Title  still  remains  in  grantor; 

Deed  to  bonafide  purchaser; 

Conveyance    of    whole   where   part    held 
adversely ; 

General  rule  does  not  apply  to  deeds  made 
by  cestui  que  trust,  ousted  by  trustee  ; 

Made  under  decree  by  consent  of  parties ; 

Made  in  pursuance  of  valid  contract ; 

Made  when  there    was  no    adverse  pos- 
session ; 

Made  by  tenant  in  common  ousted  by  co- 
tenant  ; 

As  to  deeds  made  by  a  State. 

Whitaker  v.  Cone,  437 

AGENTS. 

4        See  PRINCIPAL  AND  AGENT. 
Duties  of,  collecting  bills,  notes,  &c. 
See  BILLS,  NOTES  AND  CHECKS. 


ALIENS. 
Rights    and 


disabilities  as  to   real  prop- 
367 


erty. 

Jackson  t>.  Beach, 
Who  are  aliens,  effect  of  alienage. 

Kelly  v.  Harrison,  427 

Right  to   take  and  hold  real  property  by 
purchase  and  descent. 

Jackson,  ex  dem.,  v.  Lunn,          636 

ATTORNEY. 

Disbarment,  manner  of  trial,  right  to   be 

heard; 

Evidence,  commissions,  felony; 
Effect  of  Pardon. 

People  v.  Smith,  206 

Attorney's    lien    for    costs,   settlement  by 
parties. 
See  PARTIES. 

ARREST. 

Member  of  Congress  privileged  from  arrest. 
Lewis  v.  Elmendorf,  494 

BAILMENT. 

Agreement    to    undertake  a  trust  in  the 

dark  without  consideration ; 
COL.  AND  CAI.,  AND  JOHNS.  1,  2,  3. 


Entry  upon  trust. 

Rutgers  v.  Lucet,  449 

BANKS. 

See  BILLS,  NOTES  AND  CHECKS. 
BILLS,  NOTES  AND  CHECKS. 

Acceptance  of  promissory  note,  when  dis- 
charge of  original  cause  of  action. 

Herring  v.  Sanger.  621 

Delivery   of  note   not  payment   of  prece- 
dent debt. 
See  PAYMENT. 

Lex  loci,  &c.,  Lodge  v.  Phelps,      275 
Notice  of  dishonor,  form  and  contents. 

Reedy  v.  Seixas,  536 

Notice    of    non-acceptance   and    non-pay- 
ment; 

Due  diligence; 
Duties  of  agents ; 
Failure  to  give  notice; 
What  aside  from  acts  of  parties  will  excuse. 
Tunno  &  Cox  v.  Lague,  417 

Notice  of  nonpayment  of  promissory  note, 
Contents  of,  error  in. 

James  v.  Badger,  270 

Presentment  of  bank  check — time. 

Conroy  v.  Warren,  689 

Rights  of  holders  of  negotiable  paper  trans- 
ferred after  maturity. 

Johnson  v.  Bloodgood,  239 

See  USURY. 

CHANCERY. 
Jurisdiction  of. 

Armstrong  v.  Gttchrist,  565 

COMMON  CARRIER. 

Delivery — inability  to  find  consignee. ' 

Mayell  v.  Potter.  547 

CONCEALMENT. 

See  INSURANCE,  MARINE. 
CONFESSIONS. 

Confessions  of  defendant  as  evidence  in 

action  of  divorce  on  ground  of  adultery. 

Doe  v.  Roe,  228 

CONSPIRACY. 

Trial  for    failure  of  jury   to  agree,    their 
discharge  by  court,  second  trial. 

People  v.  Okott,  523 

CONTRABAND  OF  WAR. 

See  INSURANCE,  MARINE. 

743 


INDEX  TO  NOTES. 


CONTRACTS. 

Of  indemnity  when  original  undertaking. 

Attairev.  Ouland,  435 

Made  by  infant,  see  INFANT. 
Under  seal  by  parties,  see  PARTNERSHIP. 
Ext ention  of  time  of  performance  of  written 
contract  by  parol. 

Note  to  Keating  v.  Price,  226 

Variation  of  place  of  Jperf  ormance  of  written 
contract  by  parol. 

Id.  226 


CORPORATIONS. 

See  STOCK. 

What  is  not  a  corporation. 
Ernst  v.  Bartle, 


338 


COVENANTS. 


Taken  distributively. 

Ernst  v.  Bartle,  338 

In  deed,  when  construed  together. 

Cole  v.  Hawes,  488 

CREDITOR. 

Legacy  to. 

Rickets  v.  Livingston,  451 

DAMAGES. 

Liquidated,  stipulated  or  stated — agreement 
as  to. 

Dennis  v.  Cummins,  702 

DEBTOR. 

Legacy  to; 

Appointment  of  debtor  as  executor. 

Rickets  v.  Livingston,  451 

DEED. 

Of  lands  held  adversely. 

See  ADVERSE  POSSESSION. 
Covenants  in,  when  construed  together. 

Cole  v.  Hawes,  488 

Recitals,  estoppel. 

Denn,  ex  dem.  Golden,  v.  Cornell, 

659 
Delivery  and  acceptance. 

Jackson,  ex  dem.  M'Crea,  v.  Dunlop, 

263 
DELAY. 

When  constitutes  deviation. 
See  INSURANCE,  MARINE. 

DEVIATION. 

See  INSURANCE,  MARINE. 
DOMICILE. 

What  constitutes  in  foreign  country. 

Filth  v.  Stoughton,  558 

EQUITY. 

Necessary  parties  to,  action  in. 

Hickock  v.  Scribner,  708 

ESCAPE. 

What  constitutes  and  what  does  not. 
Voluntary  and    negligent,    distinction    be- 
tween ; 
When  sheriff  can  and  cannot  retake. 

Lansing  v.  fleet,  418 

744 


ESTOPPEL.  ., 

Recitals  in  deeds,  wills,  statutes  and  public 
documents. 

Denn,  ex  dem.  Golden,  v.  Cornell,  659' 

EVIDENCE. 

Action  for  divorce  on  ground  of  adultery; 

Confessions  of  defendant. 

Doe  v.  Roe,  228 

Handwriting  of  subscribing  witness  when 
evidence  of,  admissible. 

Matt  v.  Doughty,  307 

Handwriting,  competency  of  witness  to  tes- 
tify to  ; 

Opinion  what  witness  may  give  ; 

Comparisons,  statute    law  of   New  York ; 

Persons  never  having  seen  party  write  ; 

Witness  may  refresh  his  memory  by  refer- 
ence to  papers  admitted  genuine  ; 

Qualified  Experts. 

Tilford  v.  Knott,  49O 

On  construction  of  marine  insurance  policy.. 
See  INSURANCE,  MARINE. 


EXECUTOR. 

Appointment  of  debtor  as  such. 
Rickets  v.  Livingston, 


451 


558 


EXPATRIATION. 

See  note  to  Fish  v.  Stoughton, 
EXPERTS. 

On  handwriting,  see  EVIDENCE. 
FOREIGN  JUDGMENTS. 

What  effect  to  be  given  to. 

Vandenheuvel  v.  United  Ins.  Co.,  675* 

GIFT. 

• 

Parol  gift  of  land. 

Jackson  v.  Rogers,  233- 

GRANT. 

See  ADVERSE  POSSESSION. 

HANDWRITING. 

Competeny  of  witness  on  question  of. 

See  EVIDENCE. 
Of  subscribing  witness,  proof  of,  by. 

See  EVIDENCE. 

INDEMNITY. 

Contract  of,  when  original  undertaking. 

Allaire  v.  Ouland,  435 

INDORSER  AND  INDORSEE. 
See  BILLS,  NOTES  AND  CHECKS. 

INFANTS. 

Acts  of,  void  or  voidable  ; 

Allegation  by  infant  that  he  is  of  full  age  ; 
Contracts  made  upon  such  representations. 
Responsibility — torts. 

Conroyv.  Birdsall,  268 

INSURANCE,  MARINE. 
Abandonment,  deduction  of  one  third,  new 
for  old. 

Dupuy  v.  United  Ins.  Co. 

COL.  AND  CAI.,  AND  JOHNS.  1,  2,  3. 


INDEX  TO  NOTES. 


INSURANCE,  MARINE. 

Abandonment,  time  for. 

Roget  v.  Thurston,  504 

Earl  v.  Shaw,  336 

Abandonment,  right  of  determined  by  state 
of  facts  at  time  ot  offer. 

Mumford  v.  Church,  278 

Adjustment,  effect  of,  defences,  conclusive- 
ness  of; 
Money  paid  on  under  mistake. 

Fauguier  v.  Hattett,  499 

Assignment  of  policies. 

Earl  v.  Shaw,  336 

Bottomry  interest,  responsibility   of  insur- 
ers of. 

Robertson  v.  United  Ins.  Co.,       505 

Concealment. 

Seton  v.  Low,  219 

Construction  of    policy,  different  clauses. 

BakeweUv.  United  Ins.  Co.,        503 
Construction  of  policy; 
General  rules; 
Ambiguous  or  equivocal; 
External  evidence  not  admissible; 
Intention  of  parties; 
Exceptions. 

N.  T.  Ins.  Co.  v.  Thomas,  597 

Contraband  articles. 

Seton  t.  Low,  219 

Delay,  when  deviation. 

Earl  v.  Shaw,  386 

Deviation. 
What  constitutes. 
What  will  excuse. 
On  time  policies. 

Intention  alone  will  not  constitute. 
Visiting  ports  in  wrong  order. 
What    exercise    of    judgment    and    what 

knowledge  required  of  master. 
Delay. 

Effect  of  usage. 
Temporary  deviation. 

Gilfert  v.  Halktt,  521 

Deviation,  definition  of,  effect  of,  general 

rule. 

What  is  and  what  is  not  deviation,  unnec- 
essary delay. 

Palrick  v.  Ludlow,  600 

Exceptions  in  policy. 

Roget  v.  Thurston,  504 

Fire  policies. 

Silvav.  Low,  291 

Foreign  adjustment. 

Denn,  ex  dem.  Golden,  v.  Cornell,  660 
Goods  laden  on  deck. 

Id.  660 

Insurable  interest. 

Robertson  v.  United  Ins.  Co.,       505 
Profits  and  freight. 

Abbot  v.  Sebor,  610 

Representation,  what  is,  distinguished  from 
warranty,  materiality,  test  of. 

Mackay  v.  Rhinelander,  370 

Return  of  premium. 

Delamgne  v.  United  Ins.  Co.,       335 

Holmes  v.  United  Ins.  Co.,  533 

Juhelv.  Church,  534 

Risk  divisible. 

Juhel  v.  Church,  634 

COL.  AND  CAI.,  AND  JOHN.  1,  2,  8. 


Seaworthiness,  implied  warranty  of; 
What  it  includes,  burden  of  proof. 

Sttva  v.  Low,  291 

Warren  v.  United  Ins.  Co.,         490 
Usage  as  modifiying  Ins.  Contract. 

Mackay  v.  Rhinelander,  37O 

Warranty  of  national  character 

Murray  v.  United  Ins.  Co.          476 

JUDGMENT. 

See  FOREIGN  JUDGMENT. 
JURY. 
Discharge  of,  after  failure  to  agree. 

People  v.  Okott  523 

LAND. 

Parol  gift  of  land. 

Jackson  v.  Roger,  253 

Sale  of  land  by  sheriff. 

Jackson,  ex  dem.  Jones,  v.  Striker, 

327 
LEGACY. 

To  debtor,  to  creditor. 

Rickets  v.  Livingston.  451 

LEX  LOCI. 

Negotiable  paper. 

Lodger  v.  Phelps,  275 

Usury,  loan  secured  by  mortgage. 

Van  Schaick  v.  Edward*.  542 

LIBEL. 

See  SLANDER  and  LIBEL. 
LIEN. 

Of  attorney  for  costs.    See  PARTIES. 
MEMBER  OF  CONGRESS. 

Privileged  from  arrest. 

Lewis  v.  Elmendorf,  494 

NATURALIZATION. 

See  ALIENS. 
NEGOTIABLE  INSTRUMENTS. 

See  BILLS,  NOTES  and  CHECKS. 

NEGOTIABLE  PAPER. 
As  payment  of  precedent  debt.    See  PAY 
MENT. 

NEW  TRIAL. 

Verdict  against  law  and  evidence,  conflict 
of  evidence. 

Wilkie  v.  Roosevelt,  67O 

See  TRIAL. 

NOTICE. 

See  BILLS,  NOTES  and  CHECKS. 

PARTIES. 

Settlement  between,  lien  of  attorney  for 
costs. 

Finder  v.  Mori-is,  204 

In  equity,  who  necessary. 

Hickock  v.  Scribner,  708 

PARTNERSHIP. 


What  constitutes. 

Holmes  v.  United  Ins.  Co., 


633 


INDEX  TO  NOTES. 


Agreement  between    partners,    third    par- 
ties, when  bound  by. 

Ensign  v.  Wands,  286 

Power  of  one  partner  to  bind  copartner  by 

seal ; 
English  and  American  doctrines. 

Clement  v.  Brush,  661 

PAYMENT. 

Acceptance  of  promissory  note  when  dis- 
charge of  original  cause  of  action. 

Herring  v.  Sanger,  621 

Delivery  of  negotiable  paper  not  payment 

of  precedent  debt. 
Burden  of  proof. 
Rules  in  different  States. 
Due  diligence  in  collecting. 

Murray  v.  Qouverneur,  369 

PENALTY. 

See  note  to  Dennis  v.  Cummins,  702 

PLACE  OF  TRIAL. 

Change  of,  see  venue. 
PRINCIPAL  AND  AGENT. 

Ratification  of  acts  of  agent. 

Armstrong  v>  GUchrist,  565 

PRISONERS.    « 

See  ESCAPE. 
PRIVILEGE. 

Member  of  Congress  privileged  from  ar- 
rest. 

Lewis  v.  Elmendorf,  494 

REFEREE. 

Power   of  referee,  expiration    of  time  to 
report. 

Drawer  v.  Kingsley,  344 

RENT. 

Accrued  before  death  of  decedent  goes  to 

executor  or  administrator; 
Accrued  after  death  of  decedent  goes  to 
heir. 

Executors  of  Van  Rensselaer  v. 
Eexcutors  of  Plainer,  423 

REPRESENTATIONS. 

See  INSURANCE,  MARINE. 
SALE. 

Of  land  by  sheriff. 

Jackson,     ex    dem.     Jones,    v. 

Striker,  327 

SEAL. 

Power  of  one  partner  to  bind  his  copart- 
ner by  seal. 

Clement  v.  Brush,  661 

SEAWORTHINESS. 

See  INSURANCE,  MARINE. 
SHAREHOLDERS. 

See  STOCKS. 
SHERIFF. 

Sale  of  land  by 

Jackson,     ex    dem.     Jones,    v. 

Striker,  327 

See  ESCAPE. 
746 


SLANDER  AND  LIBEL. 

Words,  otherwise  actionable,  explained  by 

reference  to  particular  transaction; 
Burden  of  proof. 

Van  Rensselaer  P.  Dole,  325 

Words  spoken  relative  to  an  officer. 

Dole  v.  Van  Rensselaer,  342 

STOCK. 

Liability  of,  for  debts  of  shareholders ; 
Assignee  of  shares. 

Bates  v.  N.  T.  Ins.  Co.,  681 

SUBPCENA. 

Waiver  of  service 

Andrews  v.  Andrews,  61 

SUBSCRIBING  WITNESS. 

Proof  of  handwriting  of,  see  evidence. 
TRIAL. 

Second  trial  in  criminal  action  may  be  had 
where  jury  fail  to  agree  on  first  trial. 

People  v.  Olcott,  523 

Change  of  place  of,  see  VENUE. 

TRUSTS. 

See  TRUSTS  AND  TRUSTEES,  BAILMENT. 

TRUSTS  AND  TRUSTEES. 

Death  of  one  of  two  or  more  trustees — 
survival  of  trust, 

People  v.  Byron,  615 

USAGE. 


Modifying  insurance  contracts. 
SURANCE,  MARINE. 

USURY. 


See  IN- 


670 


See  note  to  Wilkie  v.  Roosevelt, 
Accommodation  paper. 

Jones  v.  Hake,  438 

Law  of  place,  loan  secured  by  mortgage. 

Van  Schaick  c.  Edwards,  642 

VENUE. 

Change  of,  on  ground  of  that  cause  of  ac- 
tion arising  in  another  county; 
Residence  of  witnesses,  motion. 

Bentley  v.  Weaver,  311 

On  ground  of  convenience  of  witnesses. 

Gourley  v.  Shoemaker,  364 

On  ground  that  fair  trial  could  not  be  had. 
Affidavit,  contents  of, 

Scott  v.   Gibbs,  457 

WARRANTY. 

See  INSURANCE,  MARINE. 
WILLS. 

Recitals  in,  estoppel. 

Denn,   ex  dem.   Golden,  v.   Cor- 
nell,  659 

WITNESS. 

Waiver  of  service  of  subprena,  liability  to 
attachment. 
Note  to  Andrews  v.  Andrews,  61 

Competency  on  question  of  handwriting. 
See  EVIDENCE. 

COL.  AND  CAI.,  AND  JQHN.  1,  2,  3. 


GENERAL  INDEX 


COLEMAN  AND  CAINES,  AND  THE  THREE  VOLUMES   OF  JOHNSON'S  CASES 

CONTAINED  IN  THIS  BOOK. 

FORMED  BY  CONSOLIDATION. 


N.  B.— Figures  at  right  of  title  shows  volume  to  whose  index  it  belongs. 

Figures  in  parenthesis  refer  to  marginal  paging  9f  the  volumes  contained  in  this  book  respectively, 
while  the  black-faced  figures  indicate  the  page  of  this  book  on  which  the  marginal  paging  referred  to  is 
found. 


ABANDONMENT— Johns.  1. 
See  Insurance,  6,  7,  8,  9, 14, 15,  27. 

ABATEMENT-COL-  and  Cai. 

Where  the  name  is  a  foreign  name,  it  is  sufficient 
if  the  pronunciation  is  preserved  in  the  pleadings. 

(496)    206 

ABATEMENT— Johns.  1. 
See  Practice,  29,  49. 

ABATEMENT-Johns.  2. 

Where  a  defendant  is  sentenced  to  the  State  Prison 
for  life,  he  is  regarded  as  civilly  dead,  and  the  suit 
against  him  is  abated. 

Graham  v.  Adams,  (408)    559 

ABSENT  AND  ABSCONDING  DEBTORS— Johns.  1. 

See  Debtors,  absent  and  absconding. 
ACCOUNTS— Johns.  2. 

Where  A  B  and  C  entered  into  partnership,  in 
1767,  and  continued  business  until  1774,  when  B 
died,  and  the  partnership  was  thereby  dissolved, 
and  C  afterwards  died  in  1782,  and  A  also  died  in 
1788,  and  in  1794  the  representatives  of  A  filed  a  bill 
in  chancery  against  the  representatives  of  B  and  C 
for  an  examination  and  settlement  of  accounts, 
and  for  the  payment  of  a  balance  claimed;  the 
court  dismissed  the  bill,  on  account  of  the  lapse  of 
time  and  death  of  the  parties,  considering  it  as  a 
stale  demand. 

Ray  et  al.  v.  Bogart  et  al.  (432)    567 

ACCORD  AND  SATISFACTION— Johns.  3. 
A  being  indebted  to  B  by  a  promissory  note,  for 
81,667,  it  was  agreed  in  writing  between  them  that 
A  should  deliver  to  B  as  much  coal,  at  $10  the 
chaldron,  as  would  amount  to  the  sum  due  on  the 
note,  the  coal  to  be  of  the  like  quality  with  that 
purchased  by  A  of  B  out  of  a  certain  ship.  No 
time  or  place  was  fixed  for  delivery.  A  having  in 
his  coal  yard  a  large  quality  of  coal,  and  sufficient 
of  the  quantity  mentioned,  though  consisting  of 
different  kinds,  immediately  afterwards,  arid  at  dif- 
ferent times,  tendered  to  B  the  coal,  in  satisfaction 
of  the  note,  and  B  made  no  objection  to  the  place 
or  mode  of  delivery,  but  said  at  one  time,  that  he 
would  send  and  take  them,  and  at  another  that  he 
was  not  ready  to  receive  them,  and  finally  neglected 
to  take  them.  In  an  action  afterwards  brought  by 
B  against  A  on  the  note,  it  was  held  that  the  agree- 
ment for  the  delivery  of  the  coal  was  valid,  and 
that  the  tender  on  the  part  of  A  was  equivalent  to 
a  performance,  so  as  to  bar  the  plaintiff's  action, 
and  might  be  pleaded  by  way  of  accord  and  satis- 
faction. 

Cmt&  Woolsey  v.  Houston,  (243)    684 

ACTS  INTERPRETED— Col.  and  Cai. 
Act  for  relief  of  debtors,  with  respect  to  the  im- 
prisonment of  their  persons.  (73,  78)    49,  89 
Act    for    the    relief  of   absconding  and  absent 
debtors.                                (78,  83,  85.  503)    5O,  90,  3O9 
Act  concerning  the  Supreme  Court. 

(85,  89)     53,  92 

Act  to  reduce  the  laws  concerning  costs  into  one 
statute.  (96,  90)  52,  92 

COL.  AND  CAI.,  AND  JOHNS.  1,  2,  3. 


ACT  FOR  GIVING  RELIEF  IN  CASES  OF  IN- 
SOLVENCY—Johns.  1. 
See  Debtors  Insolvent. 

ACT   FOR    RELIEF    AGAINST    ABSENT    AND 

ABSCONDING  DEBTORS— Johns.  1. 
See  Debtors  absent  and  absconding. 

ACT  FOR  THE  RELIEF  OF  DEBTORS,  WITH 

RESPECT  TO  THE  IMPRISONMENT  OF  THEIR 

PERSONS— Johns.  1. 

In  proceedings  under  this  act,  creditors  residing 
out  of  the  State,  as  it  respects  notice,  are  to  be  con- 
sidered as  not  found. 

In  Re  Williams,  (416)    374 

See  Practice,  6. 

AN  ACT  TO  LAY  A  DUTY  ON  STRONG  LIQ- 
UORS, AND  FOR  REGULATING  INNS  AND 
TAVERNS.  (24  SESS.,  CH.  164.)- Johns.  2. 

1.  In  an  action  rjui  tarn,  &c.,  for  the  penalty  given 
by  the  7th  sect,  of  the  Act  regulating  inns  and  tav- 
erns, for  retailing  strong  liquors,  without  a  license ; 
it  was  held  that  a  license  granted  by  two  of  the 
commissioners  of  excise,  without  the  presence  or 
consent  of  the  supervisor,  and  when  they  were  not 
assembled  for  the  purpose  of  granting  licenses,  was 
illegal  and  void  ;  and  such  a  license,  though  regular 
on  the  face  of  it,  is  no  justification  to  the  tavern- 
keeper,  who  is  liable  for  the  penalty. 

Palmer  qui  tarn,  &c.  v.  Donej/,  (346)    539 

2.  But  a  tavern-keeper  who  has  a  legal  and  com- 
petent license,  is  not  liable  to  the  penalty  for  retail- 
ing liquors  after  his  license  has  expired,  and  before 
the  time  of  the  next  meeting  of  the  commissioners 
of  excise,  for  the  purpose  of  granting  licenses. 

Id.  (7b.)     539 

ACT  CONCERNING  SLAVES-Johns.  2. 
See  Slaves,  1,  2,  3. 

ACTION  OF  ASSUMPSIT— Johns.  1. 
If  one  of  two  partners  in  trade  dies,  an  action  of 
indehitatm  asiftimpsit  will  lie  against  the  survivor, 
for  goods  before  sold  to  the  partnership,  without 
taking  notice  of  the  partnersnip,  on  the  death  of 
one,  and  the  survivorship  of  the  other. 

Ooelet  v.  M'lmtry,  (405)    369 

ACTION,  COMMENCEMENT  OF— Johns.  1. 
See  practice,  41. 

ACTION-Johns.  2. 

1.  In  an  action  of  debt  on  a  judgment  in  the  Su- 
preme Court  of  Pennsylvania  the  defendant  pleaded 
71  if  dehct  and  payment ;  and  it  was  held  that  he  was 
bound  to  produce  and  prove  the  record  of  the  judg- 
ment, or  an  exemplification  thereof. 

'Rush  r.  Cohbett,  (256)    5O7 

2.  Where  A  by  writing,  for  a  valuable  considera- 
tion, guaranteed  the  payment  of  a  sum  of  money  by 
B  to  C,  and  Bon  demand  refused  to  pay  at  the  time, 
and  C  gave  notice  to  A  of  the  failure  of  payment, 
and  demanded  the  amount  of  him ;  it  was  held  that 
the  demand  of  payment  of  B  and  refusal  by  him, 

747 


ii 


GENERAL  INDEX. 


and  notice  thereof  to  A  were  sufficient  to  entitle 
C  to  recover  against  A  on  his  guaranty,  without  a 
previous  suit  against  B. 

Bank  of  New  York  u.  Livingston,       (409)    559 

ACTION  FOR  MESNE  PROFITS— Johns.  2. 
An  action  for  mesne  profits  is  an  equitable  suit, 
in  which  every  equitable  defense  may  be  set  up. 
Murray  v.  Gouverneur  &  Kemble,       (438)    569 

ACTION  FOR  USE  AND  OCCUPATION— Johns.  2. 
An  action  for  use  and  occupation  is  not  local  in 
its  nature,  being  founded  on  privity  of  contract, 
and  not  on  privity  of  estate. 

Corporation  of  New  York  v.  Dau-son, 

(335)    535 
ACTION— Johns.  3. 

1.  A  note  was  lost  or  mislaid,  and  A,  the  maker, 
having  paid  the  amount  to  B,  the  holder,  took  his 
bond  of  indemnity  against  the  note,  &c.,  and  after- 
wards A  having  a  demand  against  B  for  money,  B 
refused  to  pay,  without  first  deducting  the  amount 
of  the  note,  to  which  A  consented  and  took  the  bal- 
ance, and  a  receipt  from  B  for  the  amount  of  the 
note   as  due,  and    afterwards   brought  an  action 
against  B  on  his  bond  of  indemnity.    It  was  held, 
that  the  second  payment,  being  voluntary  on  the 
part  of  A  and  no  fraud  alleged  on  the  part  of  B,  no 
action  could   be  maintained  against   him  on  the 
bond. 

Bazen  v.  Roget,  (87)    627 

2.  The  issuing  of  the  writ  in  a  cause  is,  for  every 
material  purpose,  the  commencement  of  the  suit. 

Carpenter  v.  Butterfield,  (145)    649 

3.  Where  a  right  of  action  is  vested,  and  an  action 
commenced,  nothing  can  deprive  the  plaintiff  of  his 
right  to  recover,  except  some  act  done  by  himself 
in  relation  to  that  right. 

Id.  (Ib.)    649 

ACTION  FOR  MONEY  HAD  AND  RECEIVED— 
Johns.  3. 

A  subscribed  fifty  shares  in  The  New  York  Insur- 
ance Company,  at  $50  each,  the  amount  to  be  paid 
in  five  installments  of  §10  on  each  share ;  and  by  the 
articles  of  association,  no  transfer  of  any  share 
could  be  made,  until  all  the  installments  were  paid 
in.  A,  after  paying  the  two  first  installments,  on 
the  22d  July,  1796,  assigned  the  shares,  and  all  his 
interest  therein,  to  B,  who  punctually  paid  the  three 
remaining  installments  to  the  company,  at  the  times 
at  which  they  were  respectively  payable.  The  com- 
pany knew  of  the  assignment  to  B,  on  the  20th  Jan- 
uary, 1797,  and  between  that  time  and  the  20th  Jan- 
uary, 1798,  three  dividends  had  been  declared  on  the 
stock  or  shares  by  the  company,  which  amounted 
to  $525.  The  company  held  three  notes  of  A,  given 
forpremiums  of  insurance,  one  of  which,  dated  the 
3d  June,  1796,  was  for  $1,000,  and  became  due  in  De- 
cember, 1796,  and  the  others,  dated  in  September, 
1796,  became  due  in  March  f ollowing ;  and  they  ap- 
plied the  $525,  due  for  the  dividends,  towards  the 
payment  of  A's  notes,  after  deducting  which  sum, 
and  the  sum  for  the  return  of  premiums,  there  re- 
mained due  to  the  company,  on  the  notes  of  A, 
$465;  and  when  B,  on  the  20th  January,  1798,  paid 
the  last  installment,  and  demanded  a  transfer  of  the 
shares  to  him,  the  company  refused  to  make  the 
transfer  until  the  balance  due  from  A  (who  was 
then  insolvent)  was  paid  to  them.  B  paid  the  $465 
to  the  company,  who  thereupon  made  the  transfer 
to  him.  In  an  action  for  money  had  and  received,  &c., 
brought  by  B  against  the  company,  to  recover  back 
the  $465,  and  also  the  dividends  after  the  20th  Jan- 
uary, 1797,  it  was  held  that  the  action  would  lie,  and 
that  the  plaintiff  was  entitled  to  recover  back  the 
$465  paid  by  him,  but  not  the  dividends  received  by 
the  defendants  prior  to  the  20th  January,  1798,  as 
the  defendants  had  an  equitable  lien  on  that  money 
in  their  hands,  to  pay  the  note  of  A,  which  was 
actually  due  to  them,  before  they  had  notice  of  the 
assignment  to  B. 

Bate*  v.  The  New  York  Insurance 
Company,  (238)    681 

ADULTERY-Johns.  1. 
See  Evidence,  2. 

ADVERTISEMENT-Col.  and  Cai. 
Where  the  statute  requires  three  months  adver- 
tisement, a  weekly  notice  is  sufficient.       (428)    186 

AFFIDAVIT— Col.  and  Cai. 


other  affidavits  but  those  on  which  he  originally 
grounded  it.  Supplementary  affidavits  cannot  be 
received.  (113, 116,  465)  59.  99,  196 

2.  Not  even  to  a  collateral  fact.  (224)    139 

3.  How  to  proceed  upon  discovery  of  new  facts 
after  notice.  (406)    17» 

4.  When  affidavit  to  support  a  motion  is  made  by 
a  third  person,  a  sufficient  reason  must  be  shown 
why  it  was  not  made  by  the  defendant  himself,  be- 
fore the  court  will  allow  it  to  be  read.       (465)    196 

5.  The  jurats  of  affidavits  must  be  signed  by  the 
person  before  whom  the  oath  is  taken,  and  it  must 
mention  his  office.  (468)    197 

6.  Affidavit  of  service  made  by  the  attorney,  on 
information  from  a  clerk  who  had  left  the  State, 
held  sufficient.  (474)    199- 

7.  Affidavit  to  support  a  motion  for  judgment  as 
in  case  of  nonsuit,  must  be  made  by  the  attorney 
for  the  defendant,  and  not  by  his  clerk  ut  semb,  and 
must  state  that  the  cause  was  not  tried.     (481)    2O1 

8.  Affidavit  need  not  be  subscribed  by  deponent;  it 
is  sufficient  that  his  name  is  at  the  top  of  it. 

(495)    306 

9.  If   the    affidavit  of  service  of  notice  merely 
states  that  notice  was  served  without  setting  forth 
a  copy  of  that  notice,  it  is  sufficient,  if  there  is  no 
opposition.  (473)    199 

10.  The  court  will  not  set  aside  a  regular  verdict 
on  a  mere  affidavit  of  merits.  (214)    136 

AFFIDAVIT— Johns.  1. 

An  affidavit,  on  which  a  notice  is  made  for  a  rule 
against  the  Court  of  Common  Pleas,  to  show  cause 
why  a  matulam its  should  not  issue,  directing  them 
to  restore  an  attorney  to  his  office,  must  state  that 
the  attorney  was  improperly  removed. 

Ex-parte  Gephard,  (134)    271 

See  Bill  in  Chancery,  1,  2,  3. 

AFFIDAVIT— Johns.  2. 

1.  The  affidavit  on  which  a  motion  for  a  commis- 
sion is  made  ought  to  state  that  there  are  material 
witnesses  to  be  examined  at  the  place  to  which  the 
commission  is  to  be  directed.    A  general  affidavit 
that  material  evidence  is  to  be  obtained  in  the  cause 
is  not  sufficient. 

Franklin  v.  The  United  Insurance 

Company,  (68)    441 

2.  An  affidavit  on  which  a  motion  is  made  for  a 
commission  to  examine  witnesses,  may  be  made  by 
a  third  person,  not  a  party  to  a  suit. 

Demar  v.  Van  Zandt,  (69)    441 

3.  Counter  affidavits  may  be  read   to  oppose  a 
motion,  though  copies  have  not  been  served,  but 
supplementary  affidavits  in  support  of  a  motion, 
cannot  be  read. 

Campbell  v.  Grove,  (105)    454 

4.  In  ossumpsii,  the  venue  will  not  be  changed  on 
a  general  affidavit. 

Wheaton  v.  Slosson,  (111)    456 

5.  An  affidavit  to  change  the  venue  made  by  the 
defendant's  attorney,  stating  that  the  plaintiff  con- 
fessed that  the  cause  of  action  arose  in  another 
county,  was  held  sufficient. 

Scott  i?.  Gibbis,  (116)    457 

6.  A  counter  affidavit  of  the   plaintiff   that  he 
believed  that  he  could  not  have  a  fair  trial  in  the 
county  to   which   the  venue   was  moved  to   be 
changed,  is  not  sufficient.    He  ought  to  state  the 
facts  on  which  his  belief  is  founded. 

Id.  Qb.)    457 

7.  An  affidavit  of  service  on  a  clerk  of  an  attor- 
ney, must  state  that  the  clerk  was,  at  the  time,  in 
the  office  of  the  attorney. 

Paddock  v.  Bebee,  (117)    458 

AGENT-Johns.  1. 

1.  An  agent  to  whom  a  bill  of  exchange  was  re- 
I  mitted  for  collection,  though  liable  for  neglect  in 

the  first  instance,  was  held  discharged  from  his  re- 
sponsibility, by  the  principal's  adopting  his  acts. 
Tmi'le  and  Jackson  v.  Stevenson,         (110)    268 

2.  Where  an  agent  received  goods  upon  condition 
to  pay  to  B  a  certain  sum  out  of  the  first  proceeds 
thereof,  which  acceptance  so  made  was  afterwards 
approved  of  by  the  principal,  the  agent  was  held 
bound  to   pay  to  B  the  sum  stipulated,  notwith- 
standing the  goods  had  been  previously  assigned  by 
the  principal    to  C  without  the  knowledge  of  the 
agent. 

Nettson  v.  Blight,  (205)    298 

See  Factor,  1,  2,  3. 


AGENT-Johns.  2. 

See  judgment  as  in  case  of  nonsuit.  (9)    32       Where  A  received  from  B  the  note  of  C  to  collect, 

1.  A  party  can  never  support  his  motion  by  any  i  and  C  being  reputed   insolvent,  and   having   ab- 
4g  COL.  AND  CAI.,  AND  JOHNS.  1,  2,  3. 


GENERAL  INDEX. 


iii 


sconded,  D  in  behalf  of  C  offered  to  pay  A  thirteen 
shillings  and  four  pence  in  the  pound  for  the  debt, 
and  this  proposal  being1  communicated  to  B  he  made 
no  objection,  and  A  afterwards  settled  with  D  at 
that  rate,  it  was  held  that  A  was  not  responsible  to 
B  for  more  than  he  received  of  D,  the  silence  of  B 
amounting  to  an  assent  to  the  proposal,  and  a  rati- 
fication of  the  act  of  A. 

Armstrong  &  Barnwall  v.  Gttchrist,    (424)    564 

See  Insurance,  21. 

AGENT- Johns.  3. 
See  Factor.    Insurance,  26. 

AGREEMENT— Col.  and  Cai. 

1.  Where  parties  agree  to  submit  a  cause  to  the 
sheriff,  the  inquest  is  in  nature  of  an  arbitrament, 
and  the  inquisition  will  not  be  set  aside  because  the 
sheriff  admitted  improper  or  rejected  proper  testi- 
mony. (135)    65,105 

2.  When  the  court  has  upon  application  relieved 
a  party  from  an  agreement  made  with  his  oppo- 
nent, he  is  thereby  restored  to  all  his  previous  rights. 

(192)     180 

3.  The  rule  that  all  agreements  must  be  in  writ- 
ing, extends  as  well  to  the  parties  as  the  attorneys. 

(473)    199 

4.  If  a  verbal  agreement  is  admitted  by  the  par- 
ties, and  no  objection  raised  on  the  ground  of  its 
being  verbal,  the  court  will  give  it  effect.  (474)    199 

AGREEMENT— Johns.  3. 

A  and  B  entered  into  a  written  agreement,  by 
which  A  agreed  to  convey  to  B  700  acres  of  land,  to 
be  appraised,  in  part  payment  for  a  farm,  valued  at 
$3,750,  which  B  agreed  to  sell  to  A,  and  it  was  cove- 
nanted that  in  case  either  party  failed  to  fulfill  the 
agreement,  the  party  failing  to  perform  "should 
forfeit  and  pay  to  the  party  who  should  fulfill  the 
agreement,  the  sum  of  §2,000  and  damages."  It  was 
held,  that  the  $2,000  was,  according  to  the  intention 
of  the  parties,  as  inferred  from  the  whole  agree- 
ment, to  be  considered  as  a  penalty,  and  not  as  stip- 
ulated damages. 

Dennis  r.  Cummins,  (297)    7O2 

See  Contract,  1,  2,  3. 

ALIEN— Col.  and  Cai. 

The  petition  of  an  alien  defendant  to  remove  the 
cause  into  the  federal  court,  is  in  season,  though 
filed  after  bail  put  in,  if  the  plaintiff  has  accepted  to 
the  bail,  and  bail  has  not  been  perfected. 

(58,64,227)    45,85,130 

ALIEN— Johns.  1. 

1.  A  conveyed  land  to  B  in  trust  for  C,  who  was 
an  alien,  C.  afterwards,  and  before  any  office  found, 
became  duly  naturalized,  and   B  then  released  to 
him  the  estate  so  held  in  trust:  It  was  held,  that  the 
•conveyance  to  C  was  valid. 

Jackson,  ex  dem.  Culverhouse,  v. 

Beach,  (399)    367 

2.  No  title,  in  case  of  alienism,  vests  in  the  people 
of  the  State,  until  after  office  found,  (lb.)    367 

3.  Naturalization  has  a  retroactive  effect,  and  con- 
firms the  former  title  of  the  alien,  (lb.)    367 

ALIEN— Johns.  2. 

1.  A  widow,  whose  husband  emigrated  from  Ire- 
land to  New  York  in  1760,  and  died  possessed  of 
lands  in  1798,  who  had  herself  continued  to  reside  in 
Ireland,  being  an  alien,  is  entitled  to  dower  in  lands 
of  which  her  husband  was  seized  prior  to  the  Ameri- 
can Revolution,  or  the  4th  July,  1776,  but  not  in 
.such  lands  as  he  acquired  after  that  period. 

Kelly  v.  Harrison,  (29)    437 

2.  Where  A  a  British  subject  became  a  natural- 
ized citizen  of  this  State,  and  took  the  oaths  of  ab- 
juration and  allegiance  in  1784 ;  and  afterwards,  in 
1795,  took  an  oath  of  allegiance  to  the  King  of  Spain 
and  was  appointed  a  consul  for  the  Spanish  king, 
and  continued  to  reside  in  New  York,  without  ever 
changing  his  domicile ;  it  was  held  he  was  still  to  be 
considered  as  an  American  citizen,  and  not  a  Span- 
ish subject  or  alien. 

Fish  v.  Stoughton,  (407)    558 

ALIEN-Johns.  3. 

Though  in  case  of  a  purchase,  the  law  will  recog- 
nize the  title  of  an  alien  in  lands,  until  office  found ; 
yet  in  case  of  a  descent,  the  law  takes  no  notice  of 
an  alien  heir,  on  whom,  therefore,  the  inheritance 
is  not  cast.  But  where  the  title  to  land  in  this  State 
was  acquired  bv  a  British  subject,  prior  to  the 
American  Revolution,  it  seems  that  the  right  of 

COL.  AND  CAI.,  AND  JOHNS.  1,  2,  3. 


such  British  subject  to  transmit  the  same,  by  de- 
scent, to  an  heir,  in  esiie,  at  the  time  of  the  Revolu- 
tion, continued  unaltered  and  unimpaired ;  the  case 
of  a  revolution  or  division  of  an  empire,  being  an 
exception  to  the  general  rule  of  law  on  this  subject. 
The  objection  of  alienism  is  not  to  be  favored. 
Jackson,  ex  dem.  Ganxevoort, 

etal.,v.  Lunn,  (109)    636 

See  Feme  Covert.    Revolution. 

AMENDMENT-Col.  and  Cai. 
See  cases.  (5)    31 

See  ejectment.  (10)    32 

1.  The  plaintiff  may  amend  a  declaration  in  eject- 
ment, by  adding  a  new  demise  of  a  new  lessor,  up- 
on payment  of  costs,  if  the  defendant  elects  to  re- 
linquish his  plea.  (49,  55)    43,  83 

2.  A  writ  may  be  amended  by  adding  the  clerk's 
name,  on  payment  of  costs.  (55,  61)    44,  84 

3.  A  writ  of  venditioni  exponas  may  be  amended 
after  a  second  nonsuit  awarded  for  variance  be- 
tween writ  and  record.  ,  (59,  64)    45,  85 

4.  As  long  as  the  record  is    before    the    court, 
amendments  to  which  the  party  would  be  entitled 
as  of  course,  will  be  allowed  by  the  court,  on  pay- 
ment of  costs,  provided  no  prejudice  thereby  ac- 
crues to  the  opposite  party.  (61,  67)    46,  86 

5.  The  interrogatories  filed  against  a  sheriff  on  an 
attachment,  may  be  amended  after  the  sheriff  has 
answered  them,  if  the  amendment  be  not  to  new 
matter,  but  merely  to  obtain  a  more  full  answer. 

(64,70)    47,87 

6.  Fi.  fa.  may  be  amended  after  it  is  returned  sat- 
isfied. (66,71)    47,87 

7.  A  defendant  cannot  amend  by  adding  a  new 
plea.  (87,92)    53,93 

8.  Where  a  plaintiff  amends  his  narr.  after  plea 
pleaded,  the  defendant  is  entitled  both  to  impar- 
lance  and  costs.  (92, 96,  231)    64,  94. 131 

9.  A  count  may  be  amended  by  the  original  writ. 

(158)    111 

10.  The  dclaration  delivered  to  a  tenant,  may  be 
amended  before  the  tenant's  appearance.  (228)    '13O 

11.  A  declaration  allowed  to  be  amended  on  com- 
mon terms,  six  years  after  service,  by  adding  new 
demises  from  new  lessors.  (230)    131 

12.  Certwrari  allowed  to  be  amended  after  return, 
by  altering  it  from  case  to  debt.  (303)    15O 

13.  A  record  not  amendable  after  trial,  by  insert- 
ing an  award  of  a  venire  de  novo.  (336)    132 

14.  Quce,re,  whether  after  verdict,  declaration  may 
be  amended  by  increasing  the  damages  laid. 

(337)    133 

15.  Amendment  allowed  after  opinion  pronounc- 
ed on  demurrer.  (396)    148 

16.  Ca.  sa.  allowed  to  be  amended  after  action 
brought  for  false  imprisonment  under  it.  (450)    192 

AMENDMENT— Johns.  1. 

1.  On  error  coram  vobis,  an  amendment  of  the 
record  was  allowed  by  entering  a  suggestion  of  the 
death  of  one  of  the  defendants,  pending  the  original 
action. 

Hamilton  v.  Hnlcnmb.  (29)    229 

2.  A  fieri  facias,  after  it  had  been  returned  satis- 
fled,  was  allowed  to  be  amended. 

Phelps  v.  BaU,  (31)    23O 

3.  The  jurata  and  distringas  may  be  amended  after 
a  verdict,  without  costs. 

Heermancc  v.  Delamater,  (220)    3O3 

4.  Before  a  default  for  not  joining  in  demurrer, 
the  party  may  amend  the  plea  demurred  to,  but  not 
add  a  new  one. 

Doyle  v.  Mmilton,  (246)    313 

5.  The  plaintiff  cannot  amend  his  declaration  after 
plea  pleaded,  without  paying  costs  and  giving  an 
imparlance. 

Holmes  v.  Lansing,  (lb.)    313 

AMENDMENT— Johns.  2. 

1.  A  declaration  was  allowed  to  be  amended,  by 
increasing  the  aiiiouiit  of  damages  laid  in  the  con- 
clusion ot  the  declaration,  on  payment  of  costs. 

Bogart  r.  W  Donald,  (219)    493 

2.  A  declaration  may  be  amended,  after  a  plea  in 
abatement,  but  not  by  adding  the  name  of  another 
defendant,   against   whom    a    separate    suit  was 
brought  for  the  same  demand. 

STwte  v.  Davis  et  al.,  (336)    535 

APPEAL— Johns.  1. 

See  Practice  in  the  Court  of  Errors.    Costs  in  the 
Court  of  Errors. 

APPEARANCE—  Col.  and  Cai. 
1.  When  a  writ  is  returned  with  the  defendant's 
appearance  indorsed,  it  is  the  duty  of  the  clerk,  and 

749 


iv 


GENERAL  INDEX. 


not  of  the  attorney,  to  enter  it,  and  if  he  neglects, 
it  may  be  entered  nuiic  pro  time  after  default  en- 
tered. (324)  156 

2.  When  an  appearance  is  indorsed  on  a  writ  in 
vacation,  returnable  in  a  preceding-  term,  and  the 
plaintiff  neglects  to  file  it,  the  court  on  application, 
will  allow  it  to  be  filed,  and  appearan9e  entered  of 
a  subsequent  term,  but  not  of  that  in  which  the 
writ  was  returnable,  ut  senib.  (327)    157 

3.  Indorsement  of  appearance  on  a  writ  in  vaca- 
tion, after  the  day  on  which  it  is  returnable,  is  not 
a  written  agreement  within  the  meaning  of  the 
rule   of   court,  that  the  proceedings   shall   be   of 
that  term.  (lb.)    157 

ARGUMENT— Col.  and  Cai. 
Either  party  may  notice  cause  for  argument. 

(131)    63,103 

ARREST  OF  JUDGMENT— Col.  and  Cai. 
See  pleadings,  (5)    31 

1.  It  is  not  to  late  to  move  in  arrest  of  judgment 
on  the  merits,  after  attending  the  execution  of  a 
writ  of  inquiry.  (183)    118 

2.  If  the  judge  certifies  that  the  evidence  given 
would    apply  as  well  to  the  good  as  to  the  bad 
counts,  a  general  verdict  may  be  amended. 

(280)     144 

3.  When  upon  motion  in  arrest  of  judgment  a 
general  verdict  is  prayed  to  be  amended,  the  cor- 
rect practice  is,  to  obtain  the  judge's  certificate  of 
the  application  of  the  testimony  given. 

(283,  in  note.)    144 

4.  A  defect  of  record  is  moveable  in  arrest  of  judsr- 
ment.  (336)    159 

5.  Motion  in  arrest  of  judgment  is  a  non-enume- 
rated motion,  and  the  notice  need  not  specify  the 
reasons.  (394)    176 

6.  That  there  is  a  variance  between  the  issue  roll 
and  the  misi  prius  roll,  is  no  ground  of  motion  in 
arrest  of  judgment.  (487)    2O3 

7.  Nor  is  an  award  of  a  venire  on  an  insufficient 
suggestion.  (lb.)    203 

ARREST  OF  JUDGMENT. 
See  Practice,  37,  38. 

ARREST  OF  JUDGMENT— Johns.  3. 
Where  an  indictment  was  found  at  the  general 
sessions  of  the  peace  of  the  county  in  which  the  de- 
fendant was  convicted,  at  the  Oyer  and  Terminer, 
and  the  indictment  was  removed  into  this  court, 
with  a  caption  stating  that  the  grand  jury  were 
•  sworn  and  charged,  omitting  the  words  "then  and 
there,"  on  motion  in  arrest  of  judgment,  the  omis- 
sion of  those  words  was  held  fatal,  and  the  judg- 
ment arrested. 

The  People  v.  Guernsey,  (265)    691 

ASSIGNEE— Johns.  1. 

Where  the  obligor  of  a  bond,  after  notice  of  its 
being  assigned,  took  a  release  from  the  obligee,  and 
pleaded  the  release  to  an  action  brought  by  the  as- 
signee, in  the  name  of  the  obligee,  and  the  plaintiff 
replied  the  prior  assignment,  the  replication  was 
held  good,  and  the  release  a  nullity. 

Andrews  v.  Beecker,  (411)    372 

ASSIGNMENT— Johns.  2. 

1.  Courts  of  law  will  take  notice  of  and  protect 
the  rights  of  assignees. 

Wardell  v.  Eden,  (121)    459 

2.  Where  a  plaintiff  after  he  had  assigned  a  judg- 
ment to  a  third  person,  entered  up  satisfaction  on 
the  record,  the  court  on  motion  ordered  the  entry 
of  the  satisfaction  to  be  vacated. 

Id.  (lb.)    459 

S.  P.    Wardell  v.  Eden,  (258)    508 

3.  A  and  B,  partners  in  trade,  Having  dissolved 
their  partnership,  B  took  the  property  and  engaged 
to  pay  all  the  debts,  among  which  was  a  judgment 
against  A  and  B  at  the  suit  of  C.    B  having  become 
insolvent,  C  threatened  to  take  out  execution  on 
the  judgment  against  A  who  therefore  paid  the 
amount,  and  C  agreed  that  A  should  have  the  bene- 
fit of  the  judgment  to  recover  the  amount  out  of 
the  property  of  B  in  the  name  of  C.    A  sued  out  an 
execution  against  the  lands  of  B  which  were  bound 
by  the  judgment.    B  assigned  over  all  his  property 
to  D  and  others,  for  the  benefit  of  his  creditors.    It 
was  held  that  A  was  to  be  considered  merely  as  a 
surety  of  B  and  entitled  to  an  equitable  lien  on  the 
property  of  B  and  that  D  and  others  to  whom  it 
was  assigned,  took  it,  subject  to  such  equitable  lien, 
and  could  not   therefore   be   relieved  by  audita 
querela. 

Waddinaton  et  al.  v.  Vrederibergh,     (227)    497 

750 


ASSUMPSIT— Col.  and  Cai. 

Assumpsit  founded  on  a  past  consideration,  good. 

(333)    158 

ASSUMPSIT— Johns.  2. 

Where  A  directed  B,  his  servant,  to  enter  a  certain 
meadow  which  he  said  belonged  to  him,  but  which 
was,  in  fact,  the  meadow  of  C,  and  promised  to  save 
B  harmless,  &c.,  the  promise  was  held  to  be  an  ori- 
ginal undertaking,  and  not  necessary  to  be  in  writ- 
ing, and  that  the  act  of  B  in  obeying  such  a  com- 
mand was  lawful,  and  a  sufficient  consideration  to 
support  the  promise  of  indemnity. 

Allaire  v.  Ouland,  (52)    435 

ATTACHMENT— Col.  and  Cai. 

1.  The  court  will  grant  an  attachment,  in  the  first 
instance,  against  a  witness,  on  an  affidavit  of  his 
being  regularly  summoned  and  expenses  tendered 
to  him,  -and  on  this  motion  the  sufficiency  or  insuffi- 
ciency of  the  sum  tendered  is  immaterial,  if  no  ob- 
jection was  made  by  the  witness  at  the  time. 

(119, 121)    61, 101 

2.  Attachment  lies  for  the  cost  of  putting  off  a 
trial.  (124,  126)    62.  102 

3.  How  a  party  must  proceed  to  entitle  himself  to 
his  attachment.  (lb.  lb.)    62,  102 

4.  On  a  rule  to  show  cause  why  an  attachment 
should  not  issue  for  contempt  of  court,  the  party 
ought  to  appear  in  person.  (301)    149 

5.  It  is  sufficient  to  answer  by  affidavit.  (412)    181 

6.  Attachment  for    not    obeying   a  peremptory 
mandamus  refused,  because  it  did  not  appear  that 
it  had  been  served  on  those  who  ought  to  obey  it. 

(263)    139 

ATTACHMENT-Johns.  1. 
See  Practice,  7,  8,  50.    Sheriff,  2. 

ATTAINDER,  ACT  OF— Johns.  1. 
The  wife  of  a  person  attainted  under  the  Act  of  the 
22d  October,  1779,  is  entitled  to  dower  out  of  the  es- 
tate of  her  husband,  which  has  become  forfeited. 
Palmer  v.  Horton,  (27)    229 

ATTAINDER- Johns.  2. 

1.  Where  a  person  was  convicted  under  the  Act  of 
Forfeiture  and  Attainder,  passed  the  22d  October, 
1779,  of  adhering  to  the  enemies  of  the  State,  and  all 
his  property,  real  and  personal,  was  declared  to  be 
forfeited,  it  was  held  that  he  could  not,  after  his  re- 
turn to  the  State,  maintain  an  action  for  rent  which 
had  accrued  prior  to  the  28th  October,  1779 ;  nor 
could  he  set  off  the  rent  against  the  demand  of  the 
plaintiff  in  the  suit  against  him. 

Sleght  v.  Kane,  (236)    50O 

2.  Where  a  person  whose  real  name  was  Joshua 
Temple  De  St.  Croix,  was  convicted  and  attainted 
under  the  Act  of  the  22d  October,  1779,  by  the  name 
of  Joshua  De  St.  Croix,  it  was  held  that  the  pro- 
ceedings under  the  act  were  to  be  governed  by  the 
rules  in  cases  of  attainder,  and  not  by  the  ordinary 
course  of  judicial  proceedings ;  that  the  conviction 
contained  an  imperfect  or  incompetent  description 
of  the  person,  which  might  be  supplied  by  proof ; 
and  that  the  identity  of  the  person  was  a  matter  of 
fact  to  be  ascertained  by  a  jury. 

Jackson,  ex  dem.  St.  Oroix,  v.  Sands, 

(267)    511 

3.  Aliter,  where  the  description  of  the  person  is 
false,  or  repugnant  to  truth. 

Id.  (lb.)    511    , 

ATTORNEY-Col.  and  Cai. 

1.  An  attorney,  after  he  gives  notice  of  retainer 
is  entitled  to  all  subsequent  notices.  (363)    139 

2.  When  two  attorneys  give  notice  of  retainer  for 
the  same  defendant,  it  is  incumbent  on  the  plaintiff 
to  inform  the  last,  that  he  had  received  notice  from 
another.  (61,  66)    46.  86 

3.  If  an  attorney    appear  for  the  defendant  as 
agent,  and  not  as  an  attorney,  and  take  any  steps  in 
such  capacity,  the  court  will  set  them  aside,  and 
compel  the  attorney  himself  to  pay  costs. 

(70,  75)    48,  88 

4.  When  an  action  on  a  note  of  hand  was  com- 
menced against  T.  and  C.  and  T.  only  taken,  who 
employed  an  attorney,  and  afterwards  C.  takes  up 
the  note  and  pays  the  plaintiff's  costs,  T.'s  attorney 
proceeds  and  obtains  judgment  as  in  case  of  non- 
suit, the  court  will  set  aside  the  proceedings,  and 
make  the  attorney  pay  the  costs  of  the  motion. 

(76)    49,89 

5.  When  a  compromise  takes  place  between  the 
plaintiff  and  defendant,  and  the  plaintiff  instructs 
his  attorney  to  stay,  on  payment  of  costs ;  if  they 
remain  unpaid,  he  is  entitled  to  proceed  in  the  ac- 
tion. (113, 115)    59,  99 

CCXL.  AND  CAI.,  AND  JOHNS.   1,  2,  3. 


GENERAL  INDEX. 


6.  If  an  attorney  does  not  practice  for  one  year, 
he  loses  his  privilege.  (134)    64,  1O4 

7.  Where  an  attorney  in  the  course  of  a  cause  is 
promoted   to   the    bench,  the    opposite    party,  on 
giving  thirty  days  notice  to  appoint  another,  may 
proceed  as  if  no  attorney  had  been  retained. 

(486)     2O3 

8.  Where  an  attorney  retains  his  client's  money, 
on   the    ground  of  counter-claims,  the  court  will 
order  the  attorney  to  exhibit  his  counter-claim  to 
the  clerk  and  pay  in  the  balance,  if  any,  in  twenty 
days,  or  that  attachment  issue.  (497)    206 

ATTORNEY— Johns.  1. 

It  is  improper  for  an  attorney  to  appear  and  act 
for  a  party  in  a  suit,  as  an  agent,  and  not  as  an  at- 
torney. 

Meyer  v.  Denning,  (105)    259 

See  Costs.    Pleadings,  29.    Practice,  35. 

ATTORNEY- Johns.  2. 

An  attorney  of  this  court,  who  had  ceased  to  prac- 
tice for  a  year,  and  had  entered  the  Army  of  the 
United  States,  was  held  to  have  lost  his  privilege. 
Brooks  v.  Patterson,  (103)    453 

ATTORNEY— Johns.  3. 

Where  the  attorney  of  'a  party  dies,  actual  notice 
or  warning  must  be  given  to  him  to  appoint  an- 
other attorney.  A  notice  put  up  in  the  clerk's 
office,  or  a  notice  of  the  proceedings  in  the  cause,  is 
not  sufficient. 

Hildreth  v.  Harvey,  (300)    703 

See  authority. 

AUCTION— Johns.  3. 
See  Sale  at  Auction. 

AUDITA  QUERELA— Johns.  2. 

1.  An  audita  querela,  quia  limit,  cannot  be  sued 
out  by  a  purchaser  of  land,  until  after  an  execution 
has  been  issued. 

Waddington  et  al.  v.  Vrederibergh,     (227)    497 

2.  The  writ  of  audita  querela  must  be  allowed  in 
open  court,  but  is  not,  of  itself,  a  supersedeas ;  and 
where  a  party  is  not  in  actual  custody,  or  sues  quia 
timet,  a  venire  facias  is  the  proper  process. 

Id.  (Ib.)    497 

3.  A  and  B,  partners  in  trade,  having  dissolved 
their  partnership,  B  took  the  property,  and  engaged 
to  pay  all  the  debts,  among  which  was  a  judgment 
against  A  and  B  at  the  suit  of  C.    B  having  been  in- 
solvent, C  threatened  to  take  out  execution  against 
A,  who  paid  the  amount  of  the  judgment,  and  C 
agreed  that  A  should  have  the  benefit  of  the  judg- 
ment to  recover  the  amount  out  of  the  property  of 
B  in  the  name  of  C.    A  sued  out  execution  on  the 
judgment  against  the  lands  of  B  which  were  bound 
by  the  judgment.    B  assigned  all  his  property  to  D 
and  others  for  the  benefit  of  his  creditors.    It  was 
held  that  A  was  to  be  considered  merely  as  the  sure- 
ty of  B  and  entitled  to  an  equitable  lien  on  the  prop- 
erty of  B  and  that  D,  and  others  to  whom.it  was  as- 
signed took  it  subject  to  such  equitable  lien ;  and 
the  court  refused  to  relieve  them  against  the  exe- 
cution on  an  audita  querela. 

Id.  (Ib.)    497 

AUTHORITY— Johns.  3. 

A  person  who  signs  a  note  in  the  name  of  another, 
as  his  attorney,  without  any  authority  for  that  pur- 
pose, is  personally  liable  on  the  note  to  the  party 
who  accepts  the  note  under  such  mistake  or  impo- 
sition. 

Dusenbury  v.  Ellis,  (70)    621 


BAIL—  Col.  and  Cai. 

1.  It  is  requisite  if  the  plaintiff  exacts  it,  that  two 
responsible  persons  should  become  bail. 

(53,  59)    44,  84 

2.  Surrender  by  one  of  two  bail  is  good  and  avail- 
able for  both.    If  bail  are  sued  jointly,  he  who  is 
first  taken  has  time  to  surrender  until  the  last  is 
taken ;  but  if  separately  sued  they  may  be  separate- 
ly fixed.  (Ib.)    Id.    44,84 

3.  Court  will  always  relieve  bail,  on  return  of  the 
bail-bond  writ.  (57,58,63,64)    45,85 

4.  When  the  principal  is  confined  for  a  felony, 
and  the  bail  bona  fide  attempt  a  surrender  before 
return  of  capias  which  is  frustrated,  and  the  prin- 
cipal is  afterwards  imprisoned  for  life,  the  court 
will  enter  an  exoneretur.  (60,  66)    46,  86 

COL.  AND  CAI.,  AND  JOHNS.  1,  2,  3. 


5.  In  an  action  on  a  bail-bond,  the  equity  powers 
of  the  court  can  never  be  exercised  until  after  for- 
feiture. (65,  71)    47,87 

Where  an  action  is  commenced  against  five,  and 
four  are  arrested,  and  bail-bond  taken  for  appear- 
ance of  five,  and  an  action  commenced  against  all 
on  bond,  the  court  will  not  interfere  on  motion, 
but  will  compel  the  defendants  to  resort  to  their 
Plea.  (ib.)  47, 87 

6.  The  court  will  stay  proceedings  on  the  bail- 
bond  where  the  plaintiff  has  neglected  to  except 
to  the  bail  put  in.  (95,  99)    55,  95 

7.  Bail  may  depute  ex  necessitate.  (108,  111)    58,98 

8.  If  a  party  convicted  of  a  conspiracy  appears 
before  the  court  on  his  own  petition,  to  have  judg- 
ment passed  upon  him,  if  the  record  of  conviction 
is  not  made  up  and  brought  into  court,  he  is  to  be 
admitted  to  bail.  (176)    116 

9.  Where  the  court  will  allow  the  plaintiff's  at- 
torney to  put  in  bail  for  the  defendant  in  order  to 
surrender  him.  (314)    153 

10.  Common  bail,  when  allowed  to  be  filed  nunc 
pro  tune.  (441)     189 

11.  The  court  under  special  circumstances,  will 
delay  the  time  for  bail  to  surrender  the  principal. 

(481)    201 

12.  To  fix  bail  there  is  no  need  of  eight  days  be- 
tween the  test e  and  return  of  the  ca.  sa.     (503)    2O8 

BAIL— Johns.  2. 

1.  Where  the  proceedings  against  bail  were  irreg- 
ular ;  but  they  suffered  two  te  -ins  to  elapse,  after  a 
knowledge  of  the  irregularity  before  they  applied 
to  set  aside  the  proceedings,  the  motion  was  de- 
nied, as  coming  too  late. 

Jones  v.  Dunning  &  Doe,  (74)    443 

2.  Where  the  plaintiff  agreed  to  stay  the  proceed- 
ings in  a  bail-bond  suit,  on  payment  of  costs,  the 
original  suit  having  been  settled,  and  the  defendant 
neglecting  to  pay  the  costs,  the  plaintiff  proceeded 
in  the  bail-bond  suit,  the  court  refused  to  set  aside 
the  proceedings,  as  the  plaintiff  had  no  other  way 
of  obtaining  his  costs. 

Camp  v.  Grove,  (105)    454 

3.  On  an  application  to  set  aside  a  default  for  not 
pleading,  bail  are  not  entitled  to  any  peculiar  indul- 
gence. 

Gorham  v.  Lansing  <&  Doe,  (107)    455 

4.  If  the  principal  be  surrendered,  pending  the 
suit  by  scire  facias  against  the  bail,  the  court  will 
not  allow  an  exoneretur  to  be  entered  on  the  bail- 
piece,  until  the  costs  of  the  proceedings  against  bail 
are  paid. 

Parker  v.  Tomlinson,  (220)    495 

5.  Where  the  principal  against  whom  a  commis- 
sion of  bankruptcy  had  issued,  was  arrested  on  a  ca. 
sa.  and  discharged,  it  was  held  that  his  bail  were 
also  discharged,  and  it  was  not  necessary  to  enter 
an  exoneretur  on  the  bailpiece. 

Milner  et  al.  v.  Green,  (283)    516 

6.  In  an  action  of  scire  facias  against  bail,  the  de- 
fendant pleaded  that  another  person  of  the  same 
name  and  description  became  bail,  and  traversed 
that  he  was  the  same  person  named  in  the  bail- 
piece.    It  was  proved  at  the  trial,  that  the  name  of 
Elnathan  Noble,  the  defendant,  was  inserted  in  the 
bailpiece ;  but  that  Stephen  Norton  was  the  person 
who  intended  to  be  bail,  and  who,  in  fact,  appeared 
before  the  judge  who  signed  the  acknowledgement 
on  the  bailpiece.    The  plea  was  held  good,  and  the 
evidence  competent  to  support  the  plea,  on  the  issue 
joined,  as  to  the  identity  of  the  person. 

Renoard  v.  Noble,  (393)    52O 

7.  Where  bail  are  personated,  the  court  will,  in 
their  discretion,  on  motion,  order  a  vacatur  of  the 
bail ;  but  if  there  has  been  a  felonious  personating 
of  the  bail,  they  will  stay  any  order  for  relief,  until 
the  party  personated  has  prosecuted  the  felon. 

Id.  (Ib.)    520 

8.  Bail  to  the  sheriff  are  responsible  only  for  the 
principalland  interest  due  on  the  bond  in  the  origi- 
nal suit,  and  not  for  any  matter  dehors  the  condition 
for  which  the  penalty  is  claimed  as  security. 

TreadweUv.M'KceletaL,  (340)    537 

9.  Where  the  principal  in  a  cause  had  obtained  his 
discharge  under  the  bankrupt  law  of  the  United 
States,  before  the  bail  had  become  fixed,  the  court 
ordered  an  eroneretur  to  be  entered  on  the  bail- 
piece. 

Kane  v.  Ingraham,  (403)    555 

10.  Bail  are  not  considered  as  fixed,  until  after 
eight  days  in  full  term,  after  the  return  of  process 
against  them,  or  within  the  time  allowed  for  the 
surrender  of  the  principal. 

Id.  (Ib.)    555 

751 


GENERAL  INDEX. 


BAIL  AND  BAIL-BOND-Johns.  1. 

1.  Bail  are  entitled  to  an  exorwretur  where  the 
prisoner  is  committed  to  prison  on  a  charge  of 
felony. 

Cathcart  v.  Cannon,  (28)    229 

2.  The  court  will  not  exercise  its  equity  power,  in 
granting1  relief  on  bail-bonds,  until  after  the  condi- 
tion is  forfeited. 

Bird  v.  Mabbett,  (31)    23O 

3.  Where  bail  are  relieved,  on  payment  of  costs,  it 
is  a  condition  which  they  must  offer  to  perform, 
without  waiting  for  a  tender  of  the  bill. 

Cathcart  v.  Cannon,  (220)    3O3 

4.  After  the  special  bail  is  put  in,  the  plaintiff,  if 
he  is  dissatisfied  with  it,  must  except  to  it,  and  can- 
not proceed  on  the  bail-bond. 

Ferrfe  r.  Phelps,  (249)    314 

5.  If  the  bail  surrender  the  principal  within  8  days 
in  term  after  the  return  of  process  against  them,  it 
is  sufficient,  and  the  exoneretur  may  be  entered  af- 
terwards. 

Strong  v.  Barber  and  Griffin,  (329)    342 

6.  Bail  having  8  days  in  full  term,  after  return  of 
capias  against  them,  within  which  to  return  their 
principal,  application  for  leave  to  surrender  before 
the  expiration  of  that  time  is  unnecessary  and  pre- 
mature. 

Ettwtt  v.  Hay,  (334)    344 

See  Homine  Replegiando.    Practice,  48,  52,  53. 

BANK  OF  THE  UNITED  STATES-Johns.  1. 
In  an  action  brought  by  the  President,  Directors 
and  Company  of  the  Bank  of  the  United  States,  it 
is  not  necessary  to  set  forth  the  act  of  incorpora- 
tion, or  the  names  of  the  individuals  composing  the 
company. 

President,  Directors  and  Company 
of  the  Bank  of  the  United  States 
v.Haskins,  (132)  271 

BANKRUPT— Johns.  2. 

1.  Where  a  person  against  whom  a  commission  of 
bankruptcy  had  issued,  was  arrested  on  a  ca.  so.  and 
discharged,  it  was  held  that  his  bail  in  the  suit  were 
also  discharged, 

Mttner  et  al.  v.  Green,  (283)    516 

2.  Whether  the  court  has  power  to  discharge  a 
defendant  from  execution,  on  the  ground,  that  a 
< -i . n 1 1 1 1  issi *  m  of  bankruptcy  has  issued  against  him  ? 
Quaere. 

Id.  (Ib.)    576 

BILL  IN  CHANCERY— Johns.  1. 

1.  Where   a  bill   filed   by  several  complainants, 
praying  an  injunction,  and  seeking'  relief,  on  ac- 
count of  lost  deeds,  an  affidavit  of  one  of  the  com- 
plainants that  "he  had  been  informed  and  verily  be- 
lieved, and  hoped  to  be  able  to  prove,  that  the  deeds 
in  question  did  not  exist ;  but  were_  now  lost  or  de- 
stroyed in  the  manner  mentioned  in  the  bill,"  was 
held  sufficient. 

Le  Roy  v.  Feeder  et  al.  (In  Error).      (417)    375 

2.  Where  a  bill  seeks  to  perpetuate  the  testimony 
of  aged  and  infirm  witnesses ;  or  where  a  bill  seeks 
to  have  a  title  established,  and  the  possession  quiet- 
ed, an  affidavit  of  the  facts  on  which  such  applica- 
tion is  founded,  is  necessary. 

Laioht  et  al.  v.  Morgan,  (In  Error)     (429)    379 

3.  Where  a  bill  seeks  discovery  as  to  lost  deeds, 
which  does  not  require  an  affidavit,  and  also  to  per- 
petuate the  testimony  of  witnesses,  a  general  de- 
murrer to  the  whole  bill  for  want  of  an  affidavit,  is 
bad.  (Ib.)    379 

4.  Where  a  bill  is  filed  for  a  discovery  and  also  for 
relief,  the  bill  being  good  for  the  one  object  without 
affidavit,  though  not  for  the  other,  it  will  be  retained 
as  for  the  sound  part ;  and  the  defendant  ought  to 
answer  to  the  part  which  is  good,  and  demur,  if  he 
thinks  proper,  to  the  other.  (Ib.)    379 

BILL  IN  CHANCERY— Johns.  3. 
See  Chancery. 

BILLS    OF    EXCHANGE    AND     PROMISSORY 

NOTES— Johns.  1. 

1.  Where  after  an  assignment  was  made  of  all  his 
estate  by  an  insolvent  debtor  to  trustees,  for  the 
benefit  of  all  his  creditors,  and  B,  a  debtor  of  the 
insolvent,  purchased  a  promissory  note  of  the  in- 
solvent after  it  was  due,  but  the  exact  time  was  not 
stated,  it  was  presumed  to  have  been  purchased 
after  the  assignment ;  for  every  presumption  is  to 
be  made  against  the  purchaser  of  a  note  after  it  is 
due. 

Johnson  v.  Bloodgood,  (51)    239 

752 


2.  A  note  of  an  insolvent  debtor  purchased  after 
the  assignment  of  all  his  estate  to  trustees,  cannot 
be  set  off  by  the  debtor  of  the  insolvent  against  the 
debt  for  which  a  suit  is  brought  by  the  assignees. 

(Ib.)    239 

3.  If  an  indorser  of  a  promissory  note,  pay  it  after 
the  maker  has  been  discharged  under  the  insolvent 
act,  he  may  recover  the  amount  from  the  maker, 
whose  discharge  will  be  no  bar  to  the  action. 

Frost  v.  Carter,  (73)    247 

4.  In  the  case  of  bills  of  exchange  and  promissory 
notes,  time  is  computed  by  calendar,  and  not  by 
lunar  months. 

LefflngweU  and  Pterpoint  v.  White,      (99)    256 

5.  Where  the  indorsor  of  a  promissory  note,  before 
it  became  due,  informed  the  holder  that  the  maker 

1  had  absconded,  and  being  secured  for  his  responsi- 
bility, he  would  give  a  new  note,  and  requested  time 
to  pay,  and  in  the  mean  time  the  note  fell  due,  it 
was  held  that  the  holder  was  not  bound  to  make  a 
demand  on  the  maker,  or  to  give  notice  to  the  in- 
dorser, (Ib.)  256 

6.  Where  one  of  a  set  of  three  bills  of  exchange  on 
London  was  protested  for  non-payment,  it  was  held 
that  an  action  might  be  brought  here  on  one  of  the 
set,  not  protested,  with  a  protest  of  the  other. 

Kenworthji  v.  Hopkins,  (107)    261 

7.  A  proceeding  against  the  acceptor  of  a  bill  of 
exchange,  under  a  commission  of  bankruptcy,  in 
England,  does  not  discharge  the  right  or  action 
against  the  indorser  here,  (lib.)    261 

8.  Where  a  bill  of  exchange,  remitted  to  pay  an 
antecedent  debt,  is  returned  protested,  no  damages 
are  recoverable,  (Ib.)    261 

9.  Where  the  holder  of  a  note,  on  the  day  it  was 
payable,  received  a  part  from  the  maker,  and  gave 
notice  of  non-payment  generally,  to  the  indqrser,  it 
was  held  sufficient  to  charge  the  indorser  with  the 
payment  of  the  residue. 

James  v.  Badger,  (131)    27O 

10.  The  indorsee  of  a  promissory  note  given  in 
Connecticut,  where  promissory  notes  are  not  nego- 
tiable, may  maintain  an  action  in  his  own  name,  in 
this  State,  against  the  maker. 

Lodge  v.  Phelps,  (139)    275 

11.  A  payment  to  a  payee  of  a  note  before  it  was 
indorsed,  cannot  be  set  off  by  the  maker  in  an  ac- 
tion brought  against  him  by  the  indorsee. 

Prior  v.  Jacocks,  (169)    286 

12.  A  notice  to  the  indorsee  on  the  third  or  last 
day  of  grace,  after  a  demand  on  the  maker,  and  his 
default,  is  good. 

Corpv.M'Comb,  (328)    341 

13.  Where  a  note  Is  indorsed,  after  it  is  dishon- 
oured, the  maker  may  set  up  every  equitable  de- 
fence, in  an  action  by  the  indorsee,  which  he  might 
have  done  against  the  payee. 

Sebring  and  Van  Wyck  v.  Rathbun,  (331)    342 

14.  But  if  the  maker  has  confessed  judgment  on 
the  note,  in  favor  of  the  indorsee,  the  court  will 
not,  then,  set  aside  the  judgment  in  order  to  let  in 
such  equitable  defense,  (Ib.)    342 

See  Covenant,  1. 

BILLS  OF  EXCHANGE  AND  PROMISSORY 
NOTES-Johns.  2. 

1.  Where  an  agent  receives  a  bill  of  exchange  in 
order  to  obtain  payment,  he  must  send  notice  of 
the    non-acceptance  and    nonpayment,    with   the 
protests,  to  the  remitter  of  the  bill,  whose  duty  it  is 
to  give  immediate  notice  to  the  drawer. 

Tunno  &  Cox  v.  Lague,  (1)    417 

2.  If  the  agent  himself  undertakes  to  give  notice 
to  the  drawer  of  the  non-acceptance,  &c.,  it  will  be 
sufficient  if  it  be  given,  as  soon  as,  under  the  cir- 
cumstances of  the  case,  it  could  have  been  received 
from  the  holder. 

Id.  (Ib.)    417 

3.  The  prevalence  of  a  malignant  fever  in  the  city 
of  New  York,  where  the  party  resided,  was  held  a 
sufficient  excuse  for  not  giving  notice  to  the  draw- 
er until  November,  of  a  protest  of  nonpayment 
made  in  September. 

Id.  (Ib.)    417 

4.  A  drawer  of  a  hill  which  has  been  accepted,  is 
not  responsible  until  after  a  default  of  the  accept- 
or, and  the  holder  must  use  due  diligence  to  demand 
payment  of  the  acceptor,  before  ne  can  resort  to 
the  drawer. 

Munroe  <t  Roe  v.  Boston,  (75)    444 

5.  The  indorsee  of  a  bill  of  exchange  which  had 
been  accepted,  without  demanding  payment  of  the 
acceptor,  or  inquiring  after  the  drawer,  presented 
the  bill,  when  it  became  due,  to  the  payee  indorser, 
who  paid  it,  and  charged  the  amount,  in  his  account, 
against  the  acceptor,  and  afterwards  brought  an 

COL.  AND  CAT.,  AND  JOHNS.  1,  2,  3. 


GENERAL  INDEX. 


•action  as  payee  against  the  drawer,  for  so  much 
money  paid  to  the  use  of  the  drawer,  and  offered 
the  bill  in  evidence  to  support  the  action.  It  was 
held  that  the  drawer  was  not  liable. 

Id.  (Ib.)    444 

6.  A  received  of  B  a  bill  of  exchange  drawn  by  C, 
and  which  he  promised  to  return  to  B  on  demand, 
or  pay  the  amount  thereof.    Though  the  bill  was 
received  by  A  as  a  matter  of  courtesy,  and  was  to 
be  used  for  the  benefit  of  B,  yet  as  A  did  not  return 
the  bill  on  demand,  or  in  due  season,  he  was  held 
liable,  under  the  circumstances,  to  pay  B  the  amount 
of  the  bill. 

Rutgers  et  al.  v.  Lucet,  (92)    449 

7.  There  is  no  particular  form  of  notice  to  the  in- 
dorsee of  a  note,  prescribed  by  law.    It  is  enough, 
if,  under  all  circumstances,  it  is  sufficient  to  put 
him  on  inquiry ;   and  it  is  properly  a  question  of 
fact  for  the  jury  to  decide. 

Reedy  v.  Seixas,  (337)    536 

8.  A  bill  of  exchange  given  for  a  precedent  debt 
is  not  payment,  unless  expressly  agreed  so  to  be,  by 
the  parties. 

Murray  v.  Gouverneur  &  Kemble,       (438)    569 

BILLS  OF   EXCHANGE,  PROMISSORY   NOTES 
AND  CHECKS— Johns.  3. 

1.  Bank  checks  are  considered  as  inland  bills  of 
exchange,  and  may  be  declared  on  as  such,  or  they 
may  be  given  in  evidence  under  the  money  counts. 

Cruger  v.  Armstrong  and  Barn- 
ivatt,  (5)    599 

2.  The  holder  of  such  a  check  or  bill  is,  prima 
facie,  the  rightful  owner,  and  is  not  bound  to  prove 
a  consideration,  unless  circumstances  of  suspicion 
appear. 

Id.  (II).)    599 

3.  The  holder  of  a  check  is  bound  to  use  due  dili- 
gence in  obtaining  the  mon'ey  of  the  bank,  and 
must  present  it  and  demand  payment,  within   a 
reasonable  time. 

Id.  (Ib.)    599 

4.  Where  a  check  was  dated  the  12th  April,  1796, 
which  was  never  presented  to  the  bank  for  pay- 
ment, but  a  suit  was  brought,  about  four  years 
after,  against  the  drawer,  it  was    held   that   the 
plaintiff  was  not  entitled  to  recover. 

Cruger  v.  Armstrong  &  Barnwatt,       (Ib.)    599 

5.  The  land  of  A  was  advertised  for  sale  by  the 
sheriff,  on  an  execution  against  A  at  the  suit  of  B. 
C,  who  had  purchased  the  land  without  knowing  of 
the  judgment  and  execution,  agreed  with  B,  who 
attended  the  sale,  that  if  he  would  not  bid  against 
him,  he  would  pay  B  the  amount  of  his  execution, 
and  give  him  his  note  for  the  further  sum  of  $150, 
and  B  acceded  to  the  terms  and  desisted  from  bid- 
ding. In  an  action  on  the  note  against  C  by  the  sec- 
ond indorsee,  to  whom  it  had  been  negotiated  after 
it  had  become  due,  and  with  a  knowledge  of  the 
circumstances  under  which  it  was  given,  it  was  held 
that  the  consideration  of  the  note  might  be  inquired 
into,  and  that  the  consideration  being  unconscien- 
tious,  and  against  public  policy,  the  note  was  void. 

Jones  v.  Caswett,  (29)    6O7 

6.  Where  A  made  a  note,  payable  to  B,  who  in- 
dorsed it  merely  for  the  accommodation  of  A,  who 
passed  the  note  to  C  to  raise  money  on  it,  by  having 
the  same  discounted  in  the  market,  and  C  discoun- 
ted the  note  at  a  premium  of  three  and  one  quarter 
per  cent,  per  month,  and  after  deducting  the  dis- 
count, applied  the   proceeds  to  the  payment  of 
money  lent  by  him  to  A  and,  afterwards,  in  the 
course  of  his  business,  passed  the  note  to  D,  who 
brought  an  action  against  B  the  first  indorser,  it 
was  held  that  the  note,  though  indorsed  by  B  for 
the  accommodation  of  A  passed  immediately  from 
A  to  C,  and  that  the  transaction,  in  its  inception 
was  usurious,  and  the  note,  therefore,  void. 

WUMe  v.  Roosevelt,  (66)    62O 

7.  A  person  who  signs  a  note  in  the  name   of 
another,  as  his  attorney,  without  any  authority  for 
that  purpose,  is  personally  liable  on  the  note  to  the 
party  who  accepts  the  note,  under  such  mistake  or 
imposition. 

Dusenburyv.  Ellis,  (70)    621 

8.  A  took  a  promissory  note  of  B  for  a  debt  due 
from  B  and  C  as  partners,  after  the  partnership  was 
dissolved,  and  gave  a  receipt  for  the  note,  when 
paid,  to  be  in  full  of  the  debt.    In  an  action  against 
C  on  the  original  debt,  it  was  held  that  the  accept- 
ing the  note  was  no  payment  of  the  precedent  debt, 
and  that  C  was  liable. 

Herring  v.  Sanger,  (71)    621 

9.  Where  a  note  was  made  payable  at  The  Bank 
of  Albany,  and  a  demand  of  payment  was  made  of 
the  maker,  personally,  in  Albany,  but  not  at  the 

€OL.,  &  COL.  &  CAI.,  &  J.'s  CAS.  1,  2,  3. 


bank,  and  no  objection  made  at  the  time,  the  de- 
mand was  held  sufficient. 

Id.  (Ib.)    621 

10.  The  second  indorser  of    a  promissory  note, 
when  called  upon  by  the  holder  to  pay,  in  default 
of  the  maker,  is  bound  to  take  up  the  note  and  give 
notice  immediately  to  the  first  indorser,  and  if  he 
fails  to  give  notice  as  soon  as  he  receives  it  from  the 
holder,  the  preceding  indorser  is  not  liable  to  him. 

Morgan  v.  Woodivorth,  (89)    628 

11.  The  holder  of  a  note,  check,  or  bill,  payable  to 
bearer,  need  not  prove  a  consideration,  unless  it  is 
suggested  that  the  possession  has  been  obtained  by 
fraud. 

Conroy  v.  Warren,  (259)    689 

12.  A  bank  check  must  be  presented  for  payment 
within  a  reasonable  time. 

Id.  (Ib.)    689 

13.  Where  a  check  was  drawn  in  March,  1800,  and 
was  not  presented  until  October  following ;  and  the 
drawer,  after  the  date  of  the  check,  had  drawn 
large  sums  from  the  bank,  and  payment  was  re- 
fused, because  the  drawer  had  no  money  when  the 
check  was  presented ;  it  was  held  that  the  drawer 
was  liable,  notwithstanding  the  delay  in  present- 
ing, as  it  did  not  appear  that  he  had  sustained  any 
damages  by  the  delay. 

Id.  (Ib.)    689 

14.  Bank  checks  are  not  within  the  Act  of  Con- 
gress (Cong.  5.  sess.  1,  ch.  1,  sec.  11),  of  6th  July,  1797, 
laying  a  duty  on  stamped  paper. 

See  Action,  1.    Evidence,  7,  8. 


(Ib.)    689 


BILL  OF  LADING— Johns.  2. 
See  Consignor  and  Consignee. 

BILL  OF  DISCOVERY— Johns.  2. 
See  Chancery,  1,  2. 

BOND— Col.  and  Cai. 

Plaintiff  can  never  levy  more  than  the  condition 
of  his  bond.  (305)    ISO 

BOND— Johns.  1. 
See  Infant.    Assignee. 

BOND  OF  INDEMNITY-Johns.  1. 
On  a  sale  of  lands,  a  bond  was  given  by  the  grantee 
to  save  the  grantor  harmless  against  a  certain  mort- 
gage which  was  an  incumbrance  on  the  land ;  it  was 
held,  that  the  grantor  was  to  be  indemnified  against 
the  bond  accompanying  the  mortgage,  and  for 
which  the  latter  was  a  security,  as  well  as  against 
the  mortgage  itself. 

White  v.  De  Villiers,  (173)    287 

BOTTOMRY— Johns.  2. 

1.  A  clause  of  sale,  in  a  bottomry  bond,  does  not 
destroy  its  character  or  operation. 

Robertson  et  al.  v.  United  Insur- 
ance Company,  (250)    5O5 

2.  A  bottomry  interest  is  not  covered  by  a  policy 
of    insurance,    unless   particularly   mentioned   as 
such. 

Id.  (Ib.)    505 

BROKER— Johns.  2. 
See  Insurance,  21. 

BROTHERTOWN   INDIANS-Johns.  2. 
The  Brothertown  Indians  are  subject  to  the  civil 
and  criminal  jurisdiction  of  this  State. 

Case  of  George  Peters,  (344)    538 


CALENDAR— Col.  and  Cai. 

1.  If  a  cause  intended  for  argument  is  not  noticed, 
it  must  go  to  the  foot  of  the  calendar.       (160)    111 

2.  All  causes  left  untried  on  the  calendar,  must  be 
renoticed  for  the  next  term.  (303)    15O 

CAPIAS-Col.  and  Cai. 

Issuing  of  the  capias  is  the  commencement  of  the 
action.  (175)    116 

CASES-Col.  and  Cai. 

1.  The  time  allowed  for  making  a  case  cannot  be 
enlarged  by  a  judge,  aliter  as  to  the  time  for  pro- 
posing amendments.  (127,  138)    63.  1O3 

2.  Where  a  case  is  made  with  liberty  to  turn  it  into 
a  special  verdict,  proceedings  stay  of  course  until 
the  next  term  after  decision  given.  (153)    109 

3.  When  the  court  will  order  the  case  to  be  amend- 
ed. (179)    H7 
N.  Y.  REP.,  BOOK  1.           48  753 


GENERAL  INDEX. 


4.  If  the  defendant  makes  a  case  and  notices  for 
argument,  and  does  not  appear  when  called,  judg- 
ment shall  go,  but  if  the  plaintiff  noticed  the  defend- 
ant's case,  and  is  not  ready  when  called,  it  shall  go 
down.  (179)    117 

5.  Amendments,  how  to  be  proposed.     (263)    139 

CERTIFICATE— Col.  and  Cai. 
See  Arrest  of  Judgment,  3.  Costs,  (27, 23).  Practice, 
40. 

1.  If  a  judge  refuse  a  certificate  of  probable  cause, 
&c.,  the  party  dissatisfied  may  apply  to  the  court, 

(90,  94)     53.  93 

2.  Certificate  of  probable  cause,  &p.  on  case  made 
is  no  stay  of  proceedings  without  notice  of  motion 
accompanying  it.  (322)    155 

CERTIORAKI— Col.  and  Cai. 
See  Amendment,  12. 

1.  Quaere :    Whether  a  certiorari  to  remove  an  in- 
dictment for  a  felony  from  oyer  and  terininer  can 
be  allowed  otherwise  than  in  open  court,  on  special 
cause  shown.  (34,  68,  40,  41,  74)    39,  79,  48,  88 

2.  Qiuere :  Whether  such  certiorari  ought  to  be  di- 
rected to  the  commissioners  or  to  the  clerk. 

(34,  40,  41)    39,  79 

3.  Qiuere :  If  certiorari  in  such  case  is  received  and 
filed  In  the  Supreme  Court,  where  the  trial  must  be 
had.  (lb.)    39,  79 

4.  If  proceedings  in  a  criminal  case  are  brought 
up  into  the  Supreme  Court  from  the  oyer  and  ter- 
miner,  and  filed  in  the  Supreme  Court,  they  cannot 
be  sent  back ;  and  in  such  case  the  defendant  must 
be  tried  at  the  bar  by  a  jury  of  the  vicinage  where 
the  crime  was  committed,  or  in  cases  not  capital 
sent  down  for  trial  at  the  next  circuit  there. 

(68,  74)    48,  88 

5.  How  the  opinion  of  the  judge  there  is  to  be  re- 
viewed. (205)    133 

6.  If  certiorari  commands  the  justice  to  return  the 
testimony,  he  is  not  bound  to  obey  in  this  particu- 
lar ;  but  must  return  every  thing  else  that  can  be  le- 
gally required  of  him.  (118, 120)    6O,  1OO 

7.  When  the  plaintiff  enters  a  rule  for  the  defend- 
ant to  join  in  error,  &c.  or  that  the  plaintiff  be  heard 
ex-parte,  he  must  apply  for  affirmance  at  the  next 
term,  or  his  rule  is  gone.  (126, 127)    64,  103 

8.  If  on  the  return  to  certiorari  no  sufficient  cause 
of  action  is  set  forth  in  the  pleadings  below,  judg- 
ment will  be  reversed.  (302)    149 

9.  Judgment  reversed  because  the  plaintiff  was 
joined  in  an  action  of  assumpxit  without  showing 
now  she  was  interested,  and  because  a  person  not  a 
constable  was  sworn  to  attend  the  jury.    (395)    176 

10.  Application  for  a  rule  on  the  justice  to  amend 
his  return  is  too  late  after  joinder  in  error  and  notice 
for  argument.  (426)    185 

11.  Except  where  joinder  in  error  was  a  mere  mat- 
ter of  precaution.  (434)    187 

12.  Justice  ordered  to  amend  his  return,  by  setting 
forth  certain  testimony  offered  by  the  parties  and 
overruled  by  the  justice.  (427)    185 

13.  Default  in  not  assigning  errors  set  aside  on 
payment  of  costs  on  an  affidavit  that  transcript  had 
been  written  for  and  when  rule  expired  was  daily 
expected.  (429)    186 

14.  Where  an  affidavit  and  a  certificate  of  a  justice 
are  at  variance,  the  affidavit  is  entitled  to  the  great- 
er credit.  (437)    188 

15.  When  a  cause  is  removed  from  the  Mayor's 
Court  into  the  Supreme  Court  by  certiorari,  the  pro- 
ceedings go  on  from  the  last  step  in  the  court  be- 
low. (440)    189 

16.  The  court  will  not  compel  a  justice  to  return 
facts  as  to  the  behaviour  of  the  jury.         (461)    195 

17.  If  the  defendant  joins  in  error,  and  afterwards 
it  is  discovered  that  no  return  has  been  made  by  the 
justice,  and  that  none  can  be  made  on  account  of 
his  departure  from  the  state,  the  plaintiff  will  have 
leave  to  discontinue  without  costs.  (465)    196 

18.  Judgment  reversed  because  an  informal  oath 
was  administered  to  the  constable  attending  the 
jury.  (485)    2O2 

CERTIORARI— Johns.  2. 
See  Justices'  Court. 

CHANCERY-Johns.  2. 

1.  The  executors  of  8  filed  a  bill  in  chancery 
against  W,  setting  forth  that  W  had  commenced  a 
suit  at  law  against  them,  for  a  debt  pretended  to  be 
due  from  the  testator,  of  which  they  had  no  knowl- 
edge, and  which  they  had  strong  ground  to  believe 
was  unjust,  and  that  they  could  not  safely  proceed 
to  trial,  without  a  discovery  from  W  of  all  the  facts 
relative  to  the  origin  and  state  of  such  pretended 

754 


debt,  and  praying  for  an  answer  and  injunction. 
An  injuction  was  allowed  by  one  of  the  masters  of 
the  Court  of  Chancery,  which  the  Chancellor  after- 
wards ordered  to  be  dissolved.  It  was  held  that  the 
bill  did  not  contain  sufficient  equity  to  entitle  the 
plaintiff  to  a  discovery ;  and  that  the  order  for  the 
injunction  was  properly  dissolved. 

Newkirk  et  al.  v.  WUlett,  (413)    561 

2.  A  claiming  title,  under  the  Connecticut  Susque- 
hanna  Company,  to  land  situate  in  the  State  of 
Pennsylvania,  and  claimed  by  that  State,  sold  the 
land  to  B,  who  gave  his  notes  for  the  purchase- 
money,  part  of  which  was  paid ;  and  A  executed  a 
quit  claim  deed  to  B  for  the  land.    B  afterwards 
filed  a  bill  in  chancery,  praying  that  A  might  be 
perpetually  enjoined  from  assigning  the  notes,  or 
proceeding  at  law,  to  recover  the  amount,  and  that 
the  money  paid  might  be  refunded.    It  was  held 
that  the  side  was  maintenance,  in  selling  a  pretend- 
ed title ;  and  that  both  parties  being  in  pari  delicto* 
a  court  of  equity  would  not  relieve  either ;  and  the 
bill  was,  therefore,  dismissed. 

Woodworth  &  Rathbun  v.  Jones,  56* 

et  al.,  (417) 

3.  Where  a  court  of  chancery  has  acquired  cogni- 
zance of  a  suit,  for  the  purpose  of  discovery  on  an 
injunction,  it  may,  if  in  full  possession  of  the  mer- 
its, retain  the  suit  in  order  to  do  complete  justice 
between  the  parties,  and  prevent  useless  litigation 
and  expense. 

Armstrong  &  BarnwaU  v.  Oilchrist,    (424)    564 

4.  Where  A,  B  and  C  entered  into  partnership  in 
trade  in  1767,  and  continued  until  1774,  when  B  died, 
and  C  afterwards  died  in  1782,  and  A  in  1788,  without 
the  partnership  accounts  being  settled ;  and  in  1794 
the  representatives  of  A  filed  a  bill  in  chancery 
against  the  representatives  of  the  other  parties  for 
an  examination  and  settlement  of  accounts,  and  for 
payment  of  a  balance  claimed,  the  court  dismissed 
the  bill,  on  account  of  the  lapse  of  time,  and  the 
death  of  the  parties,  considering  it  as  a  stale  de- 
mand. 

Rail  et  al.,  &c.,  v.  Bogart  et  al.,  (432)    567 

CHANCERY— Johns.  3. 

A  being  indebted  to  B  on  the  23d  March,  1787,  as- 
signed to  him,  as  security  for  the  payment  of  the 
debt,  certain  lands,  and  a  lease  in  fee  for  the_  same. 
B  executed  a  bond  to  A,  conditioned  that  in  ease 
the  debt  and  interest  were  paid  on  or  before  the  1st 
of  June,  1788,  he  would  re-assign  the  lease  and 
premises  to  A  and  give  him  a  receipt  for  the  debt. 
The  debt  not  being  paid  at  'the  time,  B  took  pos- 
session of  the  premises  under  the  assignment  in  July 
1792,  and  assigned  his  interest  in  the  lease  and  prem- 
ises to  C  and  D,  who  took  possession  thereof.  A 
afterwards  brought  a  bill  to  redeem  the  premises,  on 
the  ground  that  the  transaction  between  him  and 
B  amounted  to  a  mortgage,  and  on  an  appeal  from 
the  Court  of  Chancery  it  was  held  that  C  and  D 
ought  to  have  been  made  parties  to  the  suit,  and 
that  the  decree  of  the  court  below,  for  that  reason, 
was  reversed,  with  liberty  to  the  respondent  to  have 
his  bill  dismissed  in  the  court  below,  or  to  amend  it 
by  adding  all  proper  parties ;  and  in  that  case,  the 
evidence  taken  to  stand,  as  between  the  present 
parties,  saving  all  just  exceptions,  and  that  each 
party  in  the  Court  of  Errors  pay  his  own  costs. 

Hifkock  v.  Scribner  (in  error),  (311)    708 

See  Mortgage,  2. 

CHARTER-PARTY— Johns.  3. 
A  ship  was  let  to  freight  for  a  voyage  from  New 
York  to  Gibraltar,  Cadiz  and  Malaga,  all  or  either  of 
the  said  ports,  at  the  option  of  the  affreighters,  and 
as  they  or  their  assigns  might  direct ;  and  they  were 
allowed  forty  working  days  for  unloading  and  load- 
ing in  Europe,  and  they  covenanted  that  in  case  the 
ship  should,  bv  the  order,  or  through  any  default, 
neglect  or  delay  of  them,  their  factors  or  assigns, 
be  detained  longer  than  forty  working  days,  for  un- 
loading and  loading  in  Europe,  to  commence  when- 
ever she  was  ready  to  deliver  her  cargo  at  any  of 
the  said  ports,  and  to  continue  until  she  should  de- 
part from  thence,  they  would  pay  the  ship  owner 
£5  10s.  sterling  per  day,  for  demurrage.  The  ship 
on  her  voyage  was  taken  by  a  British  cruiser,  and 
carried  into  Gibraltar  the  16th  May,  was  released 
and  on  the  5th  June  sailed  for  Cadiz,  where  she  ar- 
rived on  the  10th  June,  and  performed  a  quarantine 
of  seven  days.  On  the  21st  June  the  captain  applied 
to  the  custom-house,  but  was  refused  an  entry,  on 
the  ground  that  the  ship  had  previously  been  at  a 
British  port ;  but  she  was  under  no  restraint  of  the 
government,  and  might  have  left  Cadiz  at  any  time. 
After  repeated  applications  by  the  supercargo,  per- 

COL.,  &  COL.  CAI.,  &  J.'s.  CAS.  1,  2, 


GENERAL  INDEX. 


mission  was  given  the  ship  to  enter  on  the  26th  Au- 
gust, and  she  then  landed  her  cargo  and  took  in 
another,  with  which  she  arrived  at  New  York,  on 
the  38th  September.  In  an  action  brought  by  the 
ship-owner  against  the  affreighters,  for  demurrage, 
it  was  held  that  the  prohibition  to  enter  at  Cadiz 
being  permanent  in  its  nature,  and  the  defendants 
having  an  option  to  go  to  another  port,  and  the  ship 
at  liberty  to  sail  when  she  pleased,  the  detention 
afterwards  was  at  the  instance  and  for  the  bene- 
fit of  the  defendants,  who  were  therefore  liable 
for  the  demurrage,  after  the  expiration  of  forty 
working  days,  to  commence  from  the  21st  June, 
when  the  captain  was  refused  permission  to  enter. 
Duff  v.  Lawrence  &  Van  Zandt,  (162)  655 

CITIZENSHIP— Johns.  2. 

Where  A,  a  British  subject,  became  a  naturalized 
citizen,  and  took  the  oaths  of  abjuration  and  alle- 
giance to  this  State  in  1784,  and  afterwards,  in  1795, 
took  an  oath  of  allegiance  to  the  King-  of  Spain,  and 
was  appointed  a  Consul  for  the  Spanish  King,  and 
continued  to  reside  in  New  York,  without  changing 
his  domicile,  it  was  held  that  he  was  still  an  Ameri- 
can citizen,  and  not  a  Spanish  subject  or  alien,  so  as 
to  be  entitled  to  remove  a  suit  against  him  into  the 
Circuit  Court  of  the  United  States. 

Fish  v.  Stoughton,  (407)    558 

See  Insurance,  10,  25, 27. 

COEYMAN'S   PATENT— Johns.  2. 
The  south  bounds  of  Coeyman's  Patent  are  to  be 
taken  according  to  the  survey  made  by  order  of  the 
proprietors  in  1749. 

Jackson,  ex  dem.  Salisbury,  v. 
Huych,  (64)    44O 

COLUMBIA  TURNPIKE  COMPANY  ACT— 

Johns.  3. 

Where  an  inquisition,  taken  under  the  second  sec- 
tion of  the  Act  amending  the  Act  to  establish  the 
Columbia  Turnpike  Company,  passed  March  28th, 
1800  (sess.  23),  omitted  to  state  a  disagreement  be- 
tween the  owner  of  the  lands  mentioned  and  the 
company,  and  that  the  judge  who  appointed  the 
commissioners  was  not  interested,  &c.,  it  was  held 
defective  and  quashed. 

Gilbert  v.  The  Columbia  Turnpike 

Company,  (107)    635 

COMMISSION— Col.  and  Cai. 

1.  When  a  rule  is  made  for  the  defendant  to  elect 
and  abide  by  one  of  two  pleas,  and  he  elects  in  va- 
cation, the  next  term  is  the  term  for  moving  for  a 
commission.  (75,80)    5O.  9O 

2.  When  a  commission  issues  at  the  peril  of  the 
party.  (145)    1O7 

3.  Rule  for  a  commission  suspends  the  cause  until 
a  vacatur  be  ordered  and  entered;  but  the  party 
waives  his  rule  if  he  appears  at  the  trial  and  exam- 
ines witnesses.  (177)    116 

4.  When  a  vacatur  will  not  be  allowed.  (189)    119 

5.  The  court  will  allow  a  second  commission  to  ex- 
amine the  same  witness  at  the  party's  peril,  when 
the  first  interrogatories  were  defective.     (263)    139 

6.  When  the  court  will  on  motion,  permit  the 
plaintiff  to'  proceed  to  trial,  notwithstanding  com- 
mission. (317,344)    15-4,161 

7.  When  causes  have  been  consolidated,  and  a  com- 
mission issued  in  a  consolidated  cause,  the  court 
will  allow  the  testimony  taken  under  it  to  be  read 
in  the  principal  cause.  (324)    156 

8.  If  the  plaintiff  does  not  use  due  diligence  in 
having  the  commission  returned,  the  defendant  will 
be  entitled  to  apply  for  judgment  as  in  case  of  non- 
suit. (330)    157 

9.  When  allowed  to  issue  before  issue  joined. 

(407)    179 

10.  When  a  witness  to  be  examined  under  a  com- 
mission dies,  the  court  will  not  allow  the  commis- 
sion to  be  awarded,  by  adding  a  new  witness,  but  the 
party  may  take  a  new  commission  at  his  peril. 

(502)    208 

11.  A  commission  may  be  directed  to  persons  not 
resident  in  the  State  to  which  the  commission  is- 
sues. (461)    195 

COMMISSION  TO  EXAMINE  WITNESSES— 

Johns.  1. 

A  commission  may  be  issued  to  examine  witnesses 
who  are  aged  and  infirm,  before  a  commissioner  of 
the  court,  and  the  rule  may  be  granted  at  any  time 
after  the  commencement  of  the  suit. 

ConcM.inv.Hart,  (103)    258 

COL.,  &  COL.  &  CAI.,  &  J.'s  CAS.  1,  2,  3. 


COMMISSION  TO  EXAMINE   WITNESSES— 

Johns.  2. 
See  practice,  2,  4,  52. 

CONSIGNOR  AND  CONSIGNEE— Johns.  2. 
Where  a  master  of  a  vessel  signed  a  bill  of  lading 
to  deliver  four  cases  of  goods  to  N.  T.  at  Norfolk, 
who  was  a  transient  person,  and  not  resident  at 
Norfolk,  and  the  master,  on  arriving  at  Norfolk, 
inquired  for  N.  T.  and  not  finding  him,  delivered 
the  goods  to  merchants  there  for  N.  T.  It  was  held 
that  the  master,  having  acted  bona  fide,  and  accord- 
ing to  the  usage  of  trade,  was  not  liable  to  the  con- 
signor, on  the  bill  of  lading. 

Mayell  v.  Potter,  (371)    547 

COMMISSIONER— Johns.  3. 
See  Recorder  of  New  York. 

CONDITION- Johns.  1. 

No  parol  assent,  or  silent  acquiescence,  will  de- 
stroy the  effect  of  a  condition  contained  In  a  deed, 
or  amount  to  a  waiver  of  the  forfeiture. 

Jackson  v.  Cuyler,  (125)    267 

CONSIGNEE— Johns.  3. 

Where  a  vessel,  on  her  arrival  in  the  port  of  New 
York,  is  ordered  to  perform  quarantine,  and  the 
cargo  is  landed  and  stored  at  the  quarantine  ground, 
the  shipper  or  consignee  of  the  goods  is  bound  to 
pay  the  expense  of  landing  and  storage. 

Rice  v.  Clendining  and  Adams,  (183)    663 

CONSOLIDATION— Col.  and  Cai. 

1.  The  English  consolidation  rule  is  the  one  adopt- 
ed by  the  Supreme  Court.  (62,  68)    46,  86 

2.  Judgment  how  and  when  entered  upon  the  con- 
solidation rule.  (98, 102)    55,  95 

3.  When  the  contracts  are  separate  and  indepen- 
dent, the  court  will  not  compel  a  consolidation. 

(189)    119 

4.  Where  several  actions  were  commenced  on  one 
policy,  the  court  granted  imparlances  on  the  plaint- 
iff's refusing  to  consolidate.  (62,  68)    46,  86 

5.  When  the  plaintiff  refuses  to  consolidate,  the 
court  will  show  him  no  indulgence.        (Ib)    46,  86 

CONSOLIDATION  RULE— Johns.  1. 
The  consolidation  rule  in  the  Supreme  Court  is 
the  same  as  the  English  rule.    See  Imparlance. 
Practice,  2,  50. 

CONSIGNOR  AND  CONSIGNEE— Johns.  1. 
Goods  were  shipped  on  board  of  a  vessel,  and  con- 
signed to  the  master,  to  be  sold  at  Bordeaux.  The 
master  not  being  able  to  find  a  purchaser,  left  the 
goods  at  Bordeaux  and  returned  to  New  York.  It 
was  held,  that  having  acted  bona  fide,  he  was  not 
liable  to  the  owner  for  the  value  of  the  goods. 

Lawler  v.  KeaquicK,  (174)    287 

CONSPIRACY- Johns.  2. 

1.  Where  three  persons 'were  indicted  for  a  con- 
spiracy, and  one  of  them  died  before  trial,  and  an- 
other was  acquitted ;   it  was  held,  that  the  third 
might  be  tried  and  convicted. 

The  People  v.  Olcott,  (301)    523 

2.  A  and  B  being  indicted  for  a  conspiracy  to  de- 
fraud C,  the  jury  found  a  verdict  that  there  was  an 
agreement  between  A  and  B  to  obtain  money  from 
C,  but  with  an  intent  to  return  it  again.    This  was 
held  not  to  be  a  verdict  of  acquittal,  or  a  verdict  on 
which  any  judgment  could  be  given. 

Id.  (Ift.)    523 

See  indictment,  4. 

CONSTITUTION    OF   THE   UNITED   STATES— 

Johns.  3. 

The  prohibition  in  the  10th  section  of  the  first 
article  of  the  Constitution  of  the  United  States, 
does  not  extend  to  the  municipal  regulations  of  the 
present  States,  which  modify  the  process  and  pro- 
ceedings relative  to  the  recovery  of  debts,  as  es- 
tablishing jail  liberties,  &c. 

Holmes  et  al.  v.  Lansing,  (73)    622 

CONTRACTS,  MUTUAL— Col.  and  Cai. 
Where  mutual  agreements  are  reduced  to  writing, 
and  the  one  is  the  consideration  of  the  other,  it  must 
be  produced  at  the  trial,  or  the  plaintiff  will  be  non- 
suited. (33,  39)    39,  79 

CONTEMPT— Johns.  2. 

Where  a  person  brought  a  suit  in  the  name  of  an- 
other, without  his  privity  or  consent,  it  was  held  to 

758 


GENERAL  INDEX. 


be  a  contempt  of  the  court,  and  the  nominal  plaint- 
iff being  nonsuited,  an  attachment  was  granted 
against  the  person  who  brought  the  suit,  for  the 
costs. 

Butterworth  v.  Stagg,  (291)    519 

CONTRACT-Johns.  3. 

1.  All  contracts  are  by  specialty  or  parol ;  and  if 
written,   and   not    sealed,   they  are  parol  agree- 
ments. 

Bollard  v.  Walker,  (60)    618 

2.  A  signed  a  written  agreement,  reciting,  that 
whereas  ne  had  sold  to  B  a  lot  of  land,  who  had 
agreed  to  pay  him  £300  by  a  certain  day,  and  to  exe- 
cute a  bond  and  mortgage  to  secure  the  payment ; 
A  therefore  promised  and  agreed  to  deliver  to  B  a 
good  and  sufficient  deed  for  the  land,  on  delivery  of 
the  bond  and  mortgage  by  B.    In  an  action  brought 
by  B  against  A  on  this  agreement,  it  was  held,  that 
this  being  a  mutual  agreement  for  the  sale  and  pur- 
chase, there  was  a  valid  consideration;  and  that 
being  a  writing  signed  by  the  party  to  be  charged,  it 
was  sufficient  under  the  statute  of  frauds ;  but  four 
years  having  elapsed  from  the  date  of  the  agree- 
ment before  B  gave  notice  to  A  that  he  should  in- 
sist on  the  agreement,  and  five  years  before  he 
tendered  a  performance  on  his  part,  it  was  pre- 
sumed that  the  parties  had  rescinded  the  contract ; 
and  though  A  had,  within  a  year  after  the  contract, 
sold  and  conveyed  the  land  to  C  so  as  to  incapaci- 
tate himself  to  perform  his  agreement  with  B,  yet 
that  circumstance  was  not  held  sufficient  to  control 
the  legal  presumption  that  the  contract  was  re- 
scinded. 

Id,  (Jb.)    618 

3.  Where  A  agreed  to  deliver  to  B  by  the  last  of 
May,  from  700  to  1,000  barrels  of  meal,  for  which  B 
agreed  to  pay,  on  delivery,  at  the  rate  of  $6  per  bar- 
rel, and  A  delivered  700  barrels,  and  afterwards,  be- 
fore the  day,  tendered  to  B  300  barrels  more,  to 
make  up  the  1,000  barrels,  which  B  refused ;  it  was 
held  that  B  was  bound  to  receive  and  pay  for  the 
whole  1,000  barrels,  the  delivery  of  any  quantity  be- 
tween 700  and  1,000  barrels,  being  at  the  option  of  A 
only,  and  for  his  benefit. 

Desbrough  et  al.  v.  Neilson  et  al.  (81)    625 

4.  A  contract  may  be  optional  as  to  one  party,  and 
obligatory  on  the  other. 

Id.  (Ib.)    625 

COPARCENERS-Johns.  1. 

One  of  several  coparceners  may  maintain  an  ac- 
tion of  ejectment  on  her  separate  demise. 
Jackson,  ex  dem.  FUzroy,  et  al.,  v. 

Sample,  (231)    3O7 

CORPORATION— Johns.  1. 

Indivuals  acting  together  for  the  benefit  of  a  so- 
ciety, are  not  to  be  deemed  a  corporation,  unless 
their  corporate  capacity  be  expressly  shown. 

Ernst  v.  Bartte,  (319)    338 

COSTS— Col.  and  Cai. 
See  Judgment  as  in  case  of  Nonsuit.  (10)    38 

1.  Where  the  plaintiff  does  not  recover  beyond  201. 
the  court  will  permit  the  defendant  to  set  off  his 
costs  against  the  sum  recovered,  although  the  plaint- 
iff is  insolvent,  and  his  attorney  swears  that  the 
whole  of  the  costs  were  still  due  to  him. 

(67,  72)    48,  88 

2.  When  a  procedendo  is  awarded  (after  habeas 
corpus  returned)  on  account  of  the  defendant's  neg- 
lect to  put  in  bail  above,  and  the  plaintiff  prevails 
in  the  court  below,  he  is  not  entitled  to  the  costs  of 
declaration  and  rule  to  plead  in  the  court  above. 

(71,76)    49,89 

3.  When  the  court  relieve  on  payment  of  costs,  it 
is  the  duty  of  the  party  relieved  to  pay  them  with- 
out waiting  for  a  demand  or  tender  of  the  bill. 

(80,  85,  101,  105)     51,  91,  56,  96 

4.  The  statute  of  costs  requiring  a  certificate  to  be 
made  in  certain  cases  by  the  judge  at  the  trial,  does 
not  mean  that  it  must  be  given  at  the  trial  of  the 
cause,  but  by  the  judge  who  presides  at  the  trial. 

(86,  91)    52,  92 

5.  Where  the  plaintiff  was  nonsuited,  and  brings  a 
second  action  without  paying  the  costs  of  the  first, 
the  court  will  stay  the  proceedings  until  the  costs 
are  paid,  and  this  application  may  be  made  at  any 
time  pending  the  second  action,  and  before  trial, 

(89,93)    53,93 

6.  If  the  defendant  gives  notice  of  application  for 
a  commission  after  he  has  received  notice  of  trial, 
and    by   means    thereof    puts    off    the    trial,  he 
must  pay  costs  to  the  time  of  the  trial ;  but  if  ne 

756 


serves  his  notice  before  receiving  notice  of  trial, 
such  notice  shall  operate  as  a  stay  of  proceedings. 

(97,  100)    55.  95 

7.  The  defendant  is  entitled  to  the  costs  of  the  cir- 
cuit, even  when  the  failure  has  arisen  from  an  ob- 
jection made  by  the  defendant  to  the  Jury  process, 
the  defect  of  process  being  by  the  plaintiff's  mis- 
take. (106, 109)    67,  97 

8.  Where  executors  recover  a  sum  over  £10  in  a 
court  of  common  pleas,  and  the  judges  refuse  costs, 
the  court  will  not  grant  a  mandamus  to  compel 
them,  but  will  leave  the  party  to  his  writ  of  error. 

(117,  119)    60,  100 

9.  The  court  will  not  compel  the  plaintiff  to  file 
security  for  the  costs,  if  one  of  them  lives  within 
reach  of  the  process  of  the  court.  (119, 121)    61,  1O1 

10.  Even  though  he  was  insolvent,  and  debt  as- 
signed. (Ib.)    61, 1O1 

11.  When  the  costs  are  granted  to  a  plaintiff  on  a 
defendant's  putting  off  a  trial,  he  may  either  wait 
and  have  all  the  costs  taxed  together  at  the  event  of 
the  suit,  or  he  may  make  them  out  instanter  under 
the  direction  of  the  court,  and  proceed  to  trial  if 
not  paid,  or  resort  to  his  attachment. 

(125,  127)     62.  102 

12.  Where  actions  were  brought  on  promissory 
notes  on  which  a  sum  exceeding  $250  was  due  and, 
by  agreement  between  the  parties,  cngnovite  were 
given  for  less  than  $250,  supreme  court  costs  will  not 
be  allowed.  (166)    113 

13.  Where  parties  compromise  without  the  knowl- 
edge of  their  attorneys,  each  party  pays  his  own 
costs.  (167)    113 

14.  Where  the  plaintiff  countermands  notice  of 
trial,  he  is  bound  to  pay  all  expenses  previous  to 
countermanding.  (200)    122 

15.  An  excuse  sufficient  to  exempt  the  plaintiff 
from  stipulation,  will  not,  separately  considered, 
excuse  from  costs.  (233)    131 

16.  Where  the  plaintiff  gives  notice  of  motion,  and 
neglects  to  attend  to  argue  it,  the  defendant  is  en- 
titled to  costs.  (259)    138 

17.  When  the  plaintiff  offers  a  sufficient  excuse  for 
not  having  brought  his  cause  to  trial  pursuant  to 
notice,  the  defendant  will  be  entitled  to  costs,  if  the 
plaintiff  has  not  countermanded.  (299)    148 

18.  Costs  must  be  paid  by  attorney  when  he  takes 
an  inquest  without  giving  notice  of  trial.  (303)    ISO 

19.  Costs  of  resisting,  wnen  allowed.        (361)    166 

20.  When  damages  are  reduced  to  $25  by  means  of 
set-off  in  common  pleas,  the  plaintiff  must  pay  the 
costs.  (370)    169 

21.  To  entitle  the  plaintiff  to  costs  in  the  Supreme 
Court,  he  must  recover  above  $50,  exclusive  of  costs. 

(391)    175 

22.  So  in  the  Common  Pleas  he  must  recover  above 
$25,  exclusive  of  costs.  (393)    1 75 

23.  When,  on  a  recovery  under  $25,  a  party  claims 
costs  on  the  ground  that  freehold  came  in  question, 
certificate  of  the  judge  must  be  produced. 

(394)    176 

24.  A  mere  notice  on  record  that  the  locus  in  quo 
is  the  defendant's  freehold,  is  not  sufficient  to  show 
the  court  from  mere  inspection  that  the  freehold 
came  in  question,  so  as  to  entitle  the  plaintiff  to 
costs.  (393)    176 

25.  In  an  action  of  trespass  on  the  case  for  negli- 
gence, if  the  jury  give  the  plaintiff  6  cents  damages, 
the  plaintiff  must  pay  costs.  (396)    1 76 

26.  If  the  plaintiff  fails  in  his  own  motion  to  set 
aside  his  own  verdict,  he  must  pay  costs  of  opposing. 

(403)    lf8 

27.  New  trials,  except  for  misdirection,  are  always 
granted  on  payment  of  costs ;  but  upon  misdirection 
costs  abide  the  event.  (Ib.)    1 78 

28.  A  party  cannot  apply  by  distinct  motion  at  a 
subsequent  term  for  costs  that  he  was  entitled  to  at 
a  previous  term.  (423)    184 

29.  When  costs  will  be  refused  to  both  parties  on  a 
motion.  (428)    185 

30.  The  jury  need  not  find  costs,  the  statute  gives 
them  wherever  damages  are  found.  (431)    186 

31.  Whenever  the  court  order  costs  to  be  paid, 
they  must  be  paid  within  20  days.  (445)    19O 

32.  Application  for  costs  for  not  proceeding  to 
trial,  must  be  made  when  costs  are  taxed,  (ut  semh.) 

(474)    199 

33.  When  verdict  is  under  $250,  and  is  set  aside  by 
the  court  on  payment  of  costs.    Quaere :    Whether 
they  are  to  be  supreme  court  or  common  pleas  costs. 

(479)    200 

34.  If  in  a  case  where  common  pleas  costs  are  tax- 
able, the  defendant  does  not  appear  and  contest  the 
taxation,  and  supreme  court  costs  are  thereupon 
taxed,  the  court  will  not  award  a  re-taxation. 

(Ib)    200 

.,  &  COL.  &  CAI.,  &  J.'s.  CAS.  1,  2,  3. 


GENERAL  INDEX. 


xi 


35.  How  costs  are  to  be  obtained  on  motion  for 
judgment  as  in  case  of  nonsuit.  (480)    201 

36.  The  clerk  has  no  authority  to  deliver  to  a  party 
a  bond  filed  as  security  for  costs.    Application  must 
be  made  to  the  court  on  affidavit.  (482)    201 

37.  Where  a  cause  falls  through  at  circuit,  the  judge 
not  being-  a-ble  to  stay  it,  costs  abide  the  event. 

(466)    196 

38.  When  a  defendant  pays  debt  and  costs  to  the 
plaintiff,  after  notice  from  the  plaintiff's  attorney 
not  to  do  so,  he  pays  them  in  his  own  wrong-. 

(489)     2O4 

39.  The  court  of  chancery  has  exclusive  cogni- 
zance of  questions  of  costs,  in  suits  before  them. 

(491)    204 
COSTS— Johns.  1. 

1.  Where  an  attorney  of  this  court  Is  sued  for  a 
debt  less  than  250  dollars,  the  plaintiff  may  recover 
full  costs  against  him ;  but  if  an  attorney  sues  by 
attachment  of  privilege  for  a  debt  less  than  250  dol- 
lars, he  can  recover  no  more  than  the  costs  in  the 
common  pleas. 

In  the  case  of  T.  Bailey,  (32)    231 

2.  If  costs  be  not  taxed  on  the  day  on  which  the 
notice  is  given  for  that  purpose,  and  the  opposite 
party  does  not  appear,  the  costs  may  be  taxed  on  a 
subsequent  day,  without  further  notice. 

Cooper  v.  Astor,  (32)    231 

3.  An  executor,  plaintiff,  who  was  nonsuited  for  a 
variance  between  the  declaration  and  the  writing 
declared  on,  as  offered  in  evidence,  was  held  not  li- 
able for  the  costs. 

Fleming  v.  Tuler,  (102)    258 

4.  Where  the  plaintiff  recovered  less  than  S50,  the 
defendant  was  allowed  to  set  off  his  costs  against  the 
amount  recovered. 

Spence  v.  White,  (102)    258 

5.  Where  a  cause  had  been  removed  by  habeas  cor- 
pus to  the  Supreme  Court,  from  the  Common  Pleas, 
and  the  plaintiff  filed  his  declaration,  and  entered  a 
rule,  but  the  cause  was  sent  hack  by  precedendn,  for 
want  of  bail,  the  plaintiff  was  held  not  to  be  entitled 
to  costs  in  this  court. 

Murraij  r.  Smith,  (105)    259 

6.  In  an  action  of  trespass,  qua  re  clausum  fregit, 
and  for  an  assault  and  battery,  in  which  the  plaint- 
iff recovered  a  general  verdict  for  $10  damages,  he 
was  allowed  full  costs. 

Spalbergh  v.  Walrod,  (162)    283 

7.  In  actions  of  trespass,  &c.,  a  certificate  of  the 
judge  before  whom  the  cause  was  tried,  in  order  to 
entitle  the  plaintiff  to  full  costs,  may  be  given  after 
the  circuit. 

Towers  v.  Vielte,  (221)    304 

8.  Where  a  verdict  is  found  against  the  direction 
of  the  judge,  and  a  new  trial  is  granted,  the  costs  are 
to  abide  the  event  of  the  suit. 

Van  Rensselaer  v.  Dole,  (2379)    25 

See  Demurrer  in  Chancery,  3. 

COSTS- Johns.  2. 

1.  Where  there  were  two  plaintiffs  in  a  cause,  one 
of  whom  resided  out  of  the  State  and  the  other 
within  the  State,  and  the  plaintiff  within  the  State 
died  pending  the  suit,  and  the  defendant  afterwards 
obtained  a  judgment,  it  was  held  that  the  attorney 
of  the  plaintiffs  was  not  liable  for  the  costs. 

Jackson,  ex  derr..  Lewis  &Ely,  v. 
Pmvett,  (67)    441 

2.  The  attorney  in  a  suit  is  not  bound  to  file  secur- 
ity for  costs,  where  one  of  the  plaintiffs  resides  in 
the  State,  though  he  may  be  insolvent. 

Pflster  &  ifaeomb  v.  Gillespie,  (109)    455 

3.  Where  executors  sued  in  the  Supreme  Court, 
and  recovered  less  than  §50,  it  was  held  that  they 
were  not  entitled  to  recover  costs,  nor  liable  to  pay 
costs  to  the  defendant. 

Executors  of  Mahany  v.  Fuller,          (209)    490 

4.  Where  the  costs  on  a  judgment  of  nonsuit,  ob- 
tained before  the  plaintiff's  discharge  under  the  In-  | 
solvent  Act,  were  taxed  after  his  discharge,  it  was  j 
held  that  the  costs  were  not  a  debt  until  taxation,  j 
and  that  the  plaintiff  was  not  therefore  discharged  ! 
from  them. 

Conev.  Whitake.r.  (280)    515  ; 

5.  In  an  action  of  debt  on  a  bond,  conditioned  for  | 
the  performance  of  covenants,  the  plaintiff  must  J 
assign  his  breaches,  and  if  his  damages  are  assessed  : 
at  six  cents,  he  will  be  entitled  to  nominal  damages 
for  the  detention  of  his  debt  and  the  costs,  and  may  ; 
enter  up  judgment  for  the  penalty,  so  as  to  recover  : 
full  costs. 

Hodges  v.  Suffelt,  (400)    558 

6.  Where  the  plaintiff  recovers  $250  of  debt,  and 

COL.,  &  COL.  &  CAT.,  &  J.'s.  CAS.  1,  2,  3. 


damages  for  the  detention,  on  a  single  bill,  he  is  en- 
titled to  the  full  costs  of  this  court. 

Clapp  v.  Reynolds,  (409)    559 

COSTS— Johns.  3. 

In  an  action  of  trespass,  assault  and  battery, 
where  the  damages  found  by  the  jury  are  under 
five  dollars,  the  judge,  notwithstanding  the  verdict 
or  pleadings,  may,  in  his  discretion,  refuse  a  certifi- 
cate to  entitle  the  plaintiff  to  full  costs,  if  he  is  sat- 
isfied on  the  evidence  that  the  assault  and  battery 
were  not  sufficiently  proved. 

Hunt  v.  Leon,  (140)    646 

COSTS,  IN  THE  COURT  OF  ERRORS-Johns.  1. 
Where  a  judgment,  order,  or  decree  of  a  court  be- 
low is  reversed,  or  an  appeal  to  the  court  for  the 
correction  of  errors,  the  appellant  is  entitled  only  to 
his  costs  in  the  court  below,  and  cannot  recover 
costs  or  damages  on  the  appeal. 

Le  Guen  v.  Gourerneur  &  Kemble,      (436)    381 

COUNSELOR  AT  LAW— Johns.  3. 
The  secrets  of  his  client  which  a  counselor   is 
bound  to  keep,  are  the  communications  and  in- 
structions of  the  client,  relative  to  the  management 
or  defense  of  his  cause. 

Riggs  v.  Denniston,  (198)    667 

See  Libel,  1. 
COURT  OF  OYER  AND  TERMINER— Johns.  1. 

1.  A  court  of  Oyer  and  Terminer  may  grant  anew 
trial. 

The  Pefiple  v.  Towmend,  (104)    259 

2.  Proceedings  removed  from  the  Oyer  and  Ter- 
miner, and  filed  in  the  Supreme  Court,  cannot  be 
sent  back  to  that  court. 

Id.  (Ib.)    259 

3.  The  trial  in  such  cases  must  be  at  bar,  or  be 
sent  down  to  be  tried  at  the  next  Oyer  and  Ter- 
miner, except  in  a  capital  case. 

Id.  (Ib.)    259 

4.  On  the  return  of  a  certiorari  directed  to  a  court 
of  Oyer  and  Terminer,  of  the  proceedings  in  the  case 
of  an  indictment  for  a  nuisance,  the  Supreme  Court 
refused  to  interf ere,  or  grant  a  writ  to  prostrate  the 
nuisance,  until  a  record  of  the  conviction  was  reg- 
ularly made  out  and  returned. 

The  People  r.  Valentine,  '    (336)    344 

COURTS  OF  COMMON  PLEAS-Johns.  1. 
The  Courts  of  Common  Pleas  in  the  several 
counties,  are  courts  of  inferior  jurisdiction,  and  a 
mandamus  lies  to  such  a  court,  to  compel  the  restor- 
ation of  an  attorney  who  has  been  removed  from  his 
office. 

The  People  v.  The  Delaware  Common 

Pleas,  (181)    29O 

See  Mandamus,  1,  2. 

COURT  OF  THE  GENERAL  SESSIONS  OF  THE 

PEACE-^Johns.  1. 

The  Court  of  General  Sessions,  being  an  inferior 
court,  has  no  power  to  grant  a  new  trial,  after  a  ver- 
dict on  the  merits;  and  a  mandamus  may  be  award- 
ed to  compel  them  to  give  judgment  on  the  verdict. 
The  People  v.  Sessions  of  Chenango,    (179)    289 

COURT  OF  GENERAL  SESSIONS  OF  THE 

PEACE— Johns.  2. 

A  court  of  general  sessions  of  the  peace  has  power 
to  discharge  a  jury,  without  the  consent  of  the  pris- 
oner, in  case  of  an  indictment  for  a  misdemeanor ; 
but  the  power  rests  in  sound  discretion,  and  should 
be  exercised  with  caution. 

The  People  v.  Denton,  (275)    513 

COVENANT— Johns.  1. 

1.  T.  sold  to  B.  a  promissory  note,  made  by  C.  pay- 
able to  H.  or  order,  "to  be  collected  by  B.  at  his  own 
risk  and  costs,  as  it  respected  the  ability  of  the 
maker  and  payee ;"  and  T.  covenanted  "to  pay  to  B. 
$2,000,  when  required,  in  case  B.  shall  take  all  and 
every  legal  step  to  prosecute  to  effect  the  maker 
and  payee  of  the  note,  to  wit,  if  B.  nor  no  one  in  his 
name,  nor  in  the  name  of  the  payee,  could  not  re- 
cover judgment  legally  against  the  maker  on  the 
said  note,  or  against  the  payee,  in  case  he  had  dis- 
charged the  note  at  the  timo  of  making  the  cove- 
nant, and  previous  to  the  bringing  of  a  suit  against 
the  maker."  The  maker  resided  in  the  State  of 
Massachusetts,  and  B.  brought  a  suit  against  him  in 
the  Court  of  Common  Pleas  in  that  State,  in  the 
name  of  the  payee,  according  to  the  laws  of  that 
State,  where  notes  were  not  negotiable,  and  the 

757 


xii 


GENERAL  INDEX. 


payee  appeared  in  court  and  disavowed  any  au- 
thority from  him  to  bring-  the  suit,  in  consequence 
of  which,  the  suit  was  dismissed.  The  note  was  not 
indorsed  by  the  payee.  In  an  action  of  covenant, 
brought  by  B.  against  T.,  it  was  held,  that  the  par- 
ties, having1  in  view  the  law  of  Massachusetts,  where 
the  note  was  made,  B.  had  used  every  legal  endeavor 
to  recover  the  money  within  the  meaning  of  the 
covenant,  and  having  failed  to  recover  the  amount 
of  the  maker,  T.  was  liable  to  pay  the  $2,000,  accord- 
ing to  his  covenant,  without  B.'s  having  first  at- 
tempted to  recover  the  amount  of  the  note  from  the 
payee. 

Belts  v.  Turner,  (65)  344 

2.  A  covenant  by  several  persons,  may  be  taken 
distributively,  though  there  be  no  express  words  of 
severalty. 

Ernst  v.  Bartle,  (319)    338 

COVENANT— Johns.  2. 

1.  Where  land  was  granted  by  R.  to  P.,  his  heirs, 
executors  and  administrators  forever,  reserving  an 
annual  rent  which  P.,  for  himself,  his  heirs,  execu- 
tors, &c.,  covenanted  to  pay,  and  R.  devised  his  es- 
tate to  A  and  B,  it  was  held  that  the  executors  of  R. 
could  not  recover  for  rent  which  accrued  subse- 
quent to  the  death  of  R.,  though  they  might  recover 
rent  due  prior  to  their  testator's  death. 

Executors  of  Van  Rensselaer  v.  Execu- 
tes of  Plainer,  (17)    423 

2.  It  seems  that  covenant  will  lie  against  the  exe- 
cutors of  the  lessee,  on  such  a  covenant,  though  the 
land  has  passed,  by  the  operation  of  law,  into  other 
hands. 

Id.  (Ib.)    423 

3.  The  devisees  of  R.,  the  grantor,  cannot  maintain 
covenant  against  the  executors  of  P.  or  the  tenant 
in  fee,  for  the  rent  in  arrear. 

Devisees  of  Van  Rensselaer  v.  Execu- 
tors of  Plainer,  (24)    425 

4.  Where  the  grantor  in  a  deed  covenanted  gener- 
ally that  he  was  well  seized,    &c.,  and  had  good 
right  to  convey  the  premises,  &c.,  and  then  added 
further  that  he  warranted  the  premises  to  the  gran- 
tee and  his  heirs  against  all  claims  and  demands, 
except  the  lord  of  the  soil,  it  was  held  that  both 
covenants  must  be  taken  together,  and  that  the  last 
qualified  and  restrained  the  first. 

Colev.Hawes,  (203)    488 

COVENANT  TO  STAND  SEISED— Johns.  1. 
See  Deed,  4. 

CRIMES— Col.  and  Cai. 

A  crime  committed  in  one  State  is  not  cognizable 
in  another.  The  criminal  must  be  demanded  by  the 
executive  in  ordinary  form,  (390)  174 


DEBTORS— Col.  and  Cai. 
See  Practice,  7. 

I.  Act  for  the  relief  of  debtors. 

1.  In  the  inventory  made  under  this  Act,  the  debt- 
or need  not  specify  his  arms,  &c.,  nor  when  he 
owned  the  articles  mentioned  therein,  nor  does  it 
make  any  difference  whether  he  is  confined  on  a 
suit  for  a  tort,  or  on  matter  of  contract. 

(73,  78)    49,  89 

2.  If  the  inventory  is  not  stamped,  the  objection  is 
fatal:  .  (Ib.)    49, 89 

3.  It  is  no  objection  that  the  sum  he  is  charged 
with  on  execution  is  not  mentioned  in  the  petition, 
nor  that  the  inventory  purporting  in  its  caption  to 
be  an  inventory  of  real  and  personal  estate  contains 
personal  property  only.  (113,  115)    59,  99 

4.  A  person  residing  out  of  the  State,  as  to  the 
purpose  of  a  service  under  the  act,  is  considered  as 
not  to  be  found.  (Ib.)    59.  99 

5.  When  the  debtor  is  brought  up  on  the  last  day 
of  term,  the  court  will  remand  him  until  the  next 
term,  upon  an  affidavit  by  the  creditor  of  the  ab- 
sence of  material  witnesses.  (366)    168 

II.  Act  for  relief  against  dissent  and  afjsconding 

debtors. 

1.  An  indorsee  of  a  bill,  drawn  by  absent  debtors, 
attached  a  vessel  under  the  absent  debtor  Act ;  after 
the  attachment,  A's  indorsor  pays  to  B  the  amount 
of  the  bill,  and  it  is  agreed  between  them  that  the 
proceedings  shall  go  on  for  the  benefit  of  the  indor- 
sor. A  Miperxedeas  cannot,  on  this  account,  issue 
under  the  statute.  Payment  by  a  principal  debtor 
would  be  equivalent  to  security  under  the  act,  but 
not  payment  by  surety.  (78,  84)  5O,  9O 

758 


2.  Upon  application  by  the  debtor,  the  court  will 
order  trustees  to  report  and  account  in  eight  days 
after  service  of  a  copy  of  the  rule. 

(116, 117)    60  100 

3.  To  support  an  attachment  under  this  act,  the 
debt  must  be  one  which  might  be  made  the  subject 
of  a  set-off,  and  must  not  arise  ex  delicto.  (501)    2O7 

4.  The  Supreme  Court  has  a  superintending  power 
to  inquire  whether  the  attachment  has  issued  im- 
providently  or  not.  (500)    2O7 

5.  All  debts  arising  ex  contractu  may  be  the  basis 
of  an  attachment  under  the  act.    „  (506)    2O9 

III.  Act  for  (firing  relief  in  cases  of  insolvency. 

1.  A  discharge  under  the  insolvent  act  is  conclu- 
sive, except  in  cases  of  fraud.  (229)    13O 

2.  A  debtor  must  plead  his  discharge.    The  court 
will  not  help  him,  if  he  omits  to  plead  it.    (367)    14O 

DEBTORS,  ABSENT  AND  ABSCONDING— 
Johns.  1. 

1.  Where  an  attachment  had  been  obtained  by  the 
indorsee  of  a  bill  of  exchange,  against  the  drawers, 
as  absent  debtors,  under  the  act,  and  the  indorsers 
afterwards  paid  the  amount,  this  court  reversed  the 
order  of  a  judge  allowing  a  supersedeas,  and  permit- 
ted the  attachment  to  proceed  for  the  benefit  of  the 
indorser  or  surety  who  paid  the  debt. 

In  Re  Mr.  Kinky  et  al.,  (137)    273 

2.  The  act  relative  to  absent  and  absconding  debt- 
ors does  not  authorize  proceedings  against  persons 
acting  as  executors,  trustees,  or  in  a  representative 
capacity. 

Jackson,  ex  dem.  3/umzu,  et  al. 
v.  Wateworth,  (372)    357 

3.  A  deed  appointing  trustees  under  the  act  for 
relief  against  absent  and  absconding   debtors,  in 
mentioning  the  names  of  the  several  debtors  who 
composed  a  company,  stated  some  of  them  to  be 
trustees  for  others,  and  some  as  executors :    These 
additions  were  construed  to  be  words  of  description, 
so  as  to  support  the  appointment,  and  the  proceed- 
ings under  the  attachment,  especially  after  a  lapse 
of  years,  and  the  acquiescence  of  the  parties  inter- 
ested, 

Id.  (Ib.)    357 

DEBTORS  ABSENT  OR  ABSCONDING— Johns.  2. 

1.  The  trustees  of  an  absent  or  absconding  debtor 
may  be  compelled  to  account,  on  the  motion  of  the 
debtor,  as  well  as  of  the  creditors. 

In  Re  Cascaden,  an  Absconding  Debtor, 

(107)     454 

2.  Where  the  trustees  of  an  absconding  debtor, 
appointed  under  the  act,  sold  his  lands,  and  gave  a 
deed  conveying  all  the  debtor's  right  and  title,  and 
the  purchaser  was  evicted  of  a  part  of  the  land,  it 
was  neld  that  the  trustees  were  not  liable  to  refund 
any  part  of  the  purchase  money ;  not  being  respon- 
sible unless  there  be  fraud  or  an  express  warranty. 

Murray  v.  Trustees  of  Ringicood  Com- 
pany, (278)    514 

DEBTORS,  INSOLVENT— Johns.  J- 

1.  J.  being  an  insolvent,  assigned  all  his  property 
to  trustees,  on  the  16th  of  January*  1793,  for  the  ben- 
efit of  his  creditors ;  and  a  debt  due  from  B.  was  in- 
cluded in  the  assignment.    In  an  action  brought  by 
the  assignees  against  B.  he  offered,  as  a  set-off,  a 
note  of  J.  which  he  had  purchased  in  1793,  after  it 
had  become  due ;  and  it  was  held,  that  the  note  was 
to  be  presumed  to  have  been  purchased  after  the  as- 
signment, and  that  it  could  not  be  set  off  against  the 
debt  due  from  B.  to  the  insolvent. 

Joliiiunt  c.  Bloodgood,  (51)    239 

2.  If  an  indorsee  of  a  promissory  note  pay  it,  after 
the  maker  has  obtained  his  discharge  under  the  in- 
solvent act,  he  may  recover  the  amount  of   the 
maker,  notwithstanding  his  discharge. 

Frost  v.  Carter,  (73)    247 

3.  Where  a  person  had  given  a  bond  and  warrant 
of  attorney,  and  afterwards  became  insolvent,  and 
obtained  his  discharge  under  the  act,  and  a  judg- 
ment was  afterwards  entered  up  on  the  wan-ant  of 
attorney,  the  court,  on  motion,  ordered  the  judg- 
ment to  be  set  aside. 

BiUiny*  v.  Skult,  (105)    259 

4.  Where  the  defendant  obtained  his  discharge 
under  the  insolvent  act,  itcndente  lite,  in  time  to  plead 
it,  or  give  it  in  evidence  at  the  trial,  but  neglected 
to  do  so,  the  court,  after  a  judgment  by  default 
against  him,  and  a  surrender  by  his  bail,  refused  to 
discharge  him  from  custody. 

Valkenbergn  v.  Dederick,  (133)    271 

5.  The  possession  of  an  insolvent,  after  a  bonaftd-e 
assignment  of  all  his  estate,  for  the  benefit  of  all  his 

COL.,  &  COL.  &  CAI.,  &  J.'s  CAS.  1,  2,  3. 


GENERAL  INDEX. 


•creditors,  is  not  fraudulent,  when  continued  at  the 
request,  and  for  the  benefit  of  his  assignees,  who 
used  due  dilig-ence  to  get  possession. 

Vredenbergh  v.  inite  &  Stout,  (156)    281 

See  Bills  of  Exchange  and  Promissory  Notes,  1,  2, 

DEBTORS  INSOLVENT— Johns.  2. 
Where  a  plaintiff  in  a  cause  was  nonsuited  in  1799, 
and  a  judgment  of  nonsuit  entered  in  1800,  and  the 
plaintiff  obtained  his  discharge  in  November,  1800, 
and  the  costs  of  the  nonsuit  were  not  taxed  until 
.after  his  discharge,  it  was  held  that  the  costs  were 
not  a  debt  until  taxation,  and  that  the  plaintiff  was 
not  therefore  discharged  from  the  costs. 

Cone  v.  Whitaker,  (280)    515 

DEED— Johns.  1. 

1.  A  deed  executed  in  pursuance  of  a  previous 
contract  for  the  sale  of  the  same  premises,  is  good, 
by  relation  from  the  time  of  the  making  of  the  con- 
tract, so  as  to  render  valid  every  intermediate  sale 
•or  disposition  by  the  grantee. 

Jackson  v.  Bull,  (81)    250 

2.  S.  P.  Jackson,  ex  clem.  June,  v.  Raymond,  in  note. 

(85)     250 

3.  Several  instruments  or  deeds  of  the  same  date, 
between  the  same  parties,  and  relating  to  the  same 
•subject,  may  be  construed  as  parts  of  one  assur- 
ance. 

Jackson,  ex  dem.  Trowbridge,  v. 
Dunshagh,  (91)    250 

4.  A  deed  from  a  father  to  his  son,  in  consideration 
•of  10  shilling's,  was  held  to  be  a  covenant  to  stand 
.seised  to  the  use  of  the  grantee, 

Id.  (IS.)    250 

5.  Where  a  deed  was  duly  executed  and  acknowl- 
edged by  the  grantor,  but  retained  in  his  possession, 
by  consent  of  the  grantee,  as  security  until  the  con- 
;8ideratipn-money  was  paid,  and  before  the  money 
was  paid,  the  grantor  died,  having   demised   the 
premises  by  his  last  will,  and  the  deed  was  found 
among  his  papers,  it  was  held,  that  there  was  no  ac- 
tual delivery  of  the  deed  by  the  grantor,  nor  ac- 
ceptance of  it  by  the  grantee,  and  so  nothing  passed 
by  it. 

Jackson,  ex  dem.  McCrea,  v. 
Dunlap,  (114)    263 

6.  A  formal  delivery  of  a  release  is  not  essential ; 
it  is  sufficient  if  such  acts  appear  as  show  an  inten- 
tion to  deliver  it. 

Goodrich  v.  Walker,  (250)    314 

7.  A  sheriff's  deeds  for  certain  lands,  sold  under  an 
execution,  and  described  by  metes  and  bounds,  "to- 
gether with  all  ways,  passages,  easements,"  &c.,  does 
not  include  land  held  by  a  distinct  title,  though  ad- 
joining the  premises  sold,  and  formerly  used  as  a 
road  for  the  same. 

Jackson,  ex  dem.  Jones,  v.  Striker,      (284)    326 

8.  A  subsequent  deed  by  the  sheriff  for  the  road, 
founded  on  an  antecedent  execution  and  sale,  as 
.appurtenant  to  the  premises  before  sold,  will  not 
pass  the  land,  unless  it  was  included  under  the  de- 
.scription  of  the  premises  sold  and  conveyed  by  the 
first  dee*, 

Id.  (Ib.)    326 

See  Condition. 

DEED— Johns.  2. 
See  Limitations. 

DEED— jQhns.  3. 

By  the  common  law,  a  conveyance  of  land  by  a 
person  against  whom  there  is  an  adverse  posses- 
sion at  the  time,  to  a  third  person,  is  void ;  but  the 
title  of  the  grantor  is  not  thereby  extinguished  or 
•devested ;  nor  will  such  conveyance  inure,  by  way 
of  estoppel,  for  the  benefit  of  the  defendant  in  pos- 
session. 

Jackson,  ex  dem.  Jones,  et  al.  v. 

Brinckerhoff,  (101)    633 

See  Estoppel,  2,  3. 

DEFATJLT-Col.  and  Cai. 

1.  Default  is  correctly  entered  after  the  expira- 
tion of  twenty  days,  where  no  attorney  was  em- 
ployed by  the  defendant,  and  the  declaration  served 
by  putting  it  up  in  the  clerk's  office. 

(97,101)    55,95 

2.  The  rule  requiring  forty  days  applies  only  when 
.an  attorney  is  employed,  who  neither  lives  in  town 
nor  has  an  agent  there.  ,  (Il>.)    55,  95 

3.  The  court  will  not  set  aside  a  default  on  an  affi- 
davit of  merits  mentioned.  (116, 118)    GO,  1OO 

4.  There  must  be  an  affidavit  of  merits,  and  some 
•excuse  suggested  for  not  having  pleaded. 

(134,  125)     62,  102 

•Cot,.,  &  COL.  &  CAI.,  &  J.'s  CAS.  1,  2,  3. 


5.  Default  set  aside  on  the  ground  of  apparent 
mistake  on  the  part  of  the  defendant. 

(215,482)    127,201 

6.  Default  set  aside  on  the  ground  of  surprise,  the 
action  being  on  a  penal  ordinance  of  the  corpora- 
tion, and  default  entered  pending  a  petition  to  cor- 
poration for  relief.  (420)    183 

7.  An  affidavit  of  merits  stating  a  conditional  ac- 
ceptance of  a  bill  by  parol,  is  sufficient.     (430)    186 

8.  On  motion  to  set  aside  default,  if  there  is  a  con- 
tradiction between  the  affidavits  of   plaintiff  and 
defendant,  the  court  will  set  aside  the  default  on 
payment  of  costs  if  an  affidavit  of  merits  is  pro- 
duced. (442)    19O 

9.  Default  will  not  be  set  aside  on  an  affidavit  of  a 
substantial  defence"  without  stating  that  there 

are  merits.  (444)    190 

10.  Defaujt  will  not  be  set  aside  after  judgment 
and  execution  without  excusing  laches,  although 
defendant  produces  an  affidavit  of  merits. 

f  (447)    191 

11.  Default  entered  before  writ  returned  and  filed 
will  be  set  aside  for  irregularity.  (448)    191 

12.  What  shall  be  a  sufficient  excuse  to  accompany 
an  affidavit  of  merits.  (478)    2OO 

DEMURRER— Col.  and  Cai. 

1.  Defendant  will  not  be  allowed  to  withdraw  a 
frivolous  demurrer  even  on  an  affidavit  of  merits. 

(75,  80)    50,  90 

2.  It  is  plaintiff's  right  to  make  up  the  demurrer 
books  and  bring  on  the  argument.  (103, 106)    57,  97 

3.  Motion  for  judgment  on  a  frivolous  demurrer 
must  be  brought  on  by  notice  of  argument. 

(345)    162 

4.  And  the  notice  must  state  that  the  motion  will 
be  grounded  on  the  f rivolousness  of  the  demurrer. 

(366,  470)     168.  198 

5.  Demurrer  to  evidence  confesses  all  facts  that  a 
jury  might  infer.  (387)    174 

6.  If  demurrer  is  brought  on  as  frivolous  it  is  not 
sufficient  for  the  opposite  counsel  to  say,  that  they 
oppose.    An  opposition  that  has  the  colour  of  reali- 
ty must  appear  to  the  court.  (415)    182 

7.  Demurrer,  if   not   frivolous,    may   always  be 
withdrawn  during  the  term  in  which  judgment  on 
it  is  given,  and  defendant  may  then  take  issue  on 
the  facts.  (416)    182 

8.  When  there  is  a  demurrer  to  the  whole  declara- 
tion and  one  count  is  clearly  good,  judgment  must 
be  for  the  plaintiff.  (443)    19O 

DEMURRER— Johns.  1. 

If  a  defendant  puts  in  a  frivolous  demurrer,  he 
cannot  withdraw  it  afterwards,  and  plead  the  gen- 
eral issue,  though  he  has  a  good  defense. 

GrteivoM  v.  Haskins,  (135)    272 

See  Practice,  9. 

DEMURRER  (IN  CHANCERY)— Johns.  1. 

1.  A  demurrer  to  a  bill  of  discovery  (charging 
that  the  defendants  claimed  land  by  conveyances 
from  persons  out  of  possession,  and  praying  a  dis- 
covery of  that  fact),  because  it  might  subject  the  de- 
fendant to  the  penalties  of  the  act  against  buying 
pretended  titles,  is  bad,  unless  it  appears  that  the 
answer  would  show  that  the  defendant  knew  of  the 
vendors  being  out  of  possession,  and  of  a  subsisting 
adverse  possession. 

Le  Ron  v.  Veeder  et  al.,  (417)    375 

2.  If  a  complainant  be  properly  before  the  court 
for  a  discovery,  and  at  the  same  time  prays  relief,  a 
general  demurrer  to  the  bill  for  want  of  equity,  or 
because  the  complainant  has  adequate  remedy  at 
law,  is  bad,  unless  it  is  manifest,  on  the  face  of  the 
bill,  that  no  discovery  or  proof  can  posssibly  make 
his  case  a  subject  of  equitable  jurisdiction. 

Id.  <7W    375 

3.  Where  several  defendants  in  chancery  put  in 
separate  demurrers,  on  which  separate  decrees  were 
given,  the  Court  of  Errors,  on  the  reversal  of  those 
decrees,  on  appeal,  obliged  each  respective  respond- 
ent to  pay  to  the  appellant  his  costs  on  the  appeal, 
for  each  respective  decree  so  reversed. 

Id.  (Ib.)    375 

4.  Where  a  bill  seeks  discovery  as  to  lost  deeds, 
and  also  to  perpetuate  the  testimony  of  witnesses,  a 
general  demurrer  to  the  whole  bill,  for  want  of  an 
affidavit,  is  bad. 

Laiylit  et  al.  r.  Morgan,  (429)    379 

DEMURRER  TO  EVIDENCE—Johns.  3. 
On  a  demurrer  to  evidence,  every  fact  which  the 
jury  could  legally  infer  from  the  evidence,  is  ad- 
mitted. 

Forbes  et  al.  r.  Church,  (159)    653 

759 


GENERAL,  INDEX. 


DEMURRAGE— Johns.  3. 
See  Charter  party. 

DEPOSITIONS  DE  BENE  ESSE— Johns.  1. 
When,  and  under  what  circumstances  they  can  be 
taken. 

Mumford  v.  Church,  (147)    278 

See  Evidence,  8. 

DESCENT— Johns.  3. 

A,  a  feme  covert,  died  seized  of  lands,  in  June, 
175)5,  leaving  a  husband,  and  two  sons  and  three 
daughters.  The  husband  continued  seized,  as  ten- 
ant by  the  courtesy,  until  his  death,  in  1798.  B,  the 
eldest  son,  died  abroad,  in  1784,  an  infant,  intestate, 
and  without  issue.  C,  the  other  son,  on  the  death 
of  his  father,  entered  as  heir  to  his  mother.  It  was 
held  that  the  descent  was  suspended,  during  the 
tenancy  by  courtesy,  and  that  A  being  last  seized, 
was  the  stock  of  descent;  and  as  she  died  before 
the  statute  of  descent*,  C,  the  second  son,  took  the 
inheritance,  as  sole  heir  to  his  mother. 
Jackson,  ex  dem.  Gomez,  et  at.  v. 

Hendricks,  (214)    673 

See  Alien. 

DEVIATION— Johns.  1. 
See  Insurance,  10, 17,  23. 

DEVISE— Johns.  1. 
See  Will. 

DEVISE-Johns.  2. 

1.  Where  a  husband  is  witness  to  a  will  containing 
a  devise  to  his  wife,  such  devise  is  void,  and  the 
husband  is  a  competent  witness. 

Jackson,  ex  dem.  Beach,  et  al.  v. 
Durland,  (314)    538 

2.  A  devised  lands  to  the  use  of  his  wife  for  life, 
and  to  B  in  fee,  and  if  he  died  before  arriving  at 
full  age,  then  to  the  surviving  brothers  of  B  in  suc- 
cession, if  of  full  age ;  then  to  the  first  son  of  his 
niece  M.  and  his  heirs  and  assigns,  forever ;  and  in 
default  of  such  issue,  remainder  over  to  his  own 
right   heirs;    and   directed  that  in  case  his  wife 
should  die  before  B  or  his  surviving  brother  should 
come  of  age,  his  niece  M.  should  take  possession. 
The  wife  and  the  niece  of  the  testator  both  died 
before  B.    It  was  held  that  B  had  a  vested  interest 
in  possession,  on  the  death  of  the  wife  of  the  testa- 
tor, and  that  the  devise  to  the  niece  failed. 

Id.  (Ib.)    528 

3.  Where  the  whole  property  is  devised  with  a 
particular  interest  given  out  of  it,  it  operates  by 
way  of  exception. 

(Ib.)    528 

4.  Where  an  absolute  property  is  given,  and  a 
particular  interest  is  given  in  the  mean  time,  as  un- 
til the  devisee  comes  of  full  age,  this  will  not  oper- 
ate as  a  condition  precedent,  but  as  the  descrip- 
tion of  the  time,  when  the  remainderman  is  to  take 


Id.  (Ib.)    528 

5.  Where  a  precedent  limitation,  by  any  means 
whatever,  fails,  the  subsequent  limitation  takes  ef- 
fect. 

Id.  (Ib.)    528 

See  Limitations. 

DEVISE— Johns.  3. 

1.  N.  in  August,  1778,  devised  land  to  his  son  William 
for  life,  remainder  to  W.,  the  son  of  William,  living 
at  the  time  of  the  devise,  for  life,  with  remainder 
to  the  first  and  every  other  son  of  the  first  son  of 
William  successively,  in  tail  male,  with  remainder  to 
the  second  son  of  William  (then  in  esse),  with  re- 
mainder to  his  first  and  every  other  son,  successive- 
ly in  tail  male,  with  remainder  to  every  other  un- 
born son  of  William,  successively,  in  tail  male ;  re- 
mainder to  the  first  and  every  other  unborn  daugh- 
ter of  William,  successively,  in  tail  male ;  remain- 
der to  the  testator's  second  son  Samuel,  for 
life ;  remainder  to  the  first  and  every  other  son  of 
Samuel,  successively,  in  tail  male,  with  remainder 
to  the  testator's  three  daughters,  in  tail  general,  as 
tenants  in  common  ;  with  remainder  to  the  same 
three  daughters  in  fee ;  and  devised  to  trustees  to 
preserve  contingent  remainders.  The  testator  died 
the  1st  March,  n^SO,  leaving  issue  two  sons.  William 
and  Samuel,  and  three  daughters.  William,  the 
eldest  son,  entered  under  the  will,  and  died  seized, 
in  April,  1796,  leaving  two  sons,  William  and  Henry; 
and  William  the  grandson  of  the  testator,  entered, 
on  the  death  of  his  father,  under  the  will,  and  died 
seized,  in  June,  1799,  leaving  issue  a  daughter,  and 
his  wife  priocment  enceinte,  who  was  delivered  of  a 
son,  also  named  William,  in  October,  1799.  It  was 

760 


held,  that  the  posthumous  son  took  the  estate  in- 
remainder,  by  the  devise,  in  the  same  manner  as  if 
he  had  been  born  in  the  lifetime  of  his  father. 

Stedfast,  ex  dem.  NicoV,  v.  Nicoll,  (18)  6O3 
2.  A,  by  his  last  will  and  testament,  among  other 
things,  devised  as  follows :  "And  whereas  I  have 
conveyed  to  my  son  C  my  lands  at  C,  and  to  my  son 
D  my  lands  at  F,  I  give  and  devise  all  my  remaining 
lands  and  tenements  and  real  estate  whatsoever,  to 
my  sons  C  and  D  and  my  daughter,"  &c.  It  was 
held,  that  the  recital  in  the  will  was  evidence  of 
a  conveyance  of  the  farm  in  F  to  D  and  that  C  as 
heir  of  the  testator,  was  estopped,  by  the  recital,  to 
deny  that  the  farm  was  conveyed  to  D  and  that  the 
necessary  intendment  from  the  language  of  the 
clause  in  the  will  was  that  it  was  a  conveyance 
in  fee  to  D. 

Denn,  ex  dem.  C.  R.  Golden,  v. 
Cornell,  (174)    659 

DISCONTINUANCE-Col.  and  Cai. 
See  Certiorari,  17.    Judgment  as  in  case  of  Non- 
suit, 6. 

1.  Discontinuance  of  a  prior  suit  may  be  entered 
at  any  time  before  plea  pleaded  in  the  second  suit 
for  the  same  cause  of  action,  and  this  without  leave 
of  the  court  or  payment  of  costs.  (94.  98)          64,  94 

2.  And  if  a  discontinuance  is  entered  upon  receiv- 
ing a  plea  in  abatement,  and  at  a  subsequent  period 
nil  capiat  per  breve  entered,  it  shall  have  relation 
back  to  the  time  of  entering  the  discontinuance. 

(Ib.)    54,94 

DISSEISIN— Johns.  1. 

Where  a  parol  gift  of  land  is  made,  and  the  donee 
leases  the  land,  and  the  donor  merely  permits  the 
lessee  to  build  and  enjoy  the  term,  it  does  not  op- 
erate as  a  disseisin. 

Jackson,  ex  dem.  Van  Alen,  v. 
Rogers,  (33)    233 

DOWER— Johns.  1. 

The  wife  of  a  person  attainted  under  the  Act  of  the 

22d  of  October,  1779,  is  entitled  to  dower  out  of  the 

estate  of  her  husband,  which  has  become  forfeited. 

Palmer  v.  Horton,  (27)    234 

DOWER— Johns.  2. 

K,  a  native  of  Ireland,  removed  to  New  York  in 
1760,  where  he  continued  to  reside  until  his  death,, 
in  1798.  At  the  time  of  his  removal  from  Ireland, 
he  left  a  wife  in  that  country,  having-  been  married 
in  1750.  His  wife,  who  was  also  a  native  of  Ireland, 
never  left  that  country,  but  continued  a  subject 
of  the  King  of  Great  Britain.  In  an  action  brought 
by  the  wife  to  recover  her  dower,  it  was  held  that,, 
being  an  alien,  she  could  recover  dower  in  those 
lands  only  of  which  K  was  seized  before  the  4th 
July,  1776,  but  not  of  those  he  acquired  after  that 
period. 

Kelly  v.  Harrison.  (29)    427 


EJECTMENT— Col.  and  Cai. 
See  Amendment,  1,  2,  3.    Practice,  30. 

1.  It  is  a  priority  of  interest,  and  not  the  receipt 
of  rent,  which  is  the  true  testimony  of  landlord  or 
not.  (56,62)    45,85 

2.  Where  one  of  the  lessors  of  the  plaintiff  is  dead, 
the  court  will,  upon  application,  order  all  counts  to 
be  struck  out  of  the  declaration  in  which  he  is 
averred  to  be  lessor.  (102, 105, 156)    56,  96.  11O- 

3.  Semb.     When  an  ejectment  is  brought  for  a 
vacant  possession,  a  person  claiming  title  may  be 
admitted  to  defend,  and  the  strict  English  principles 
do  not  apply.  (82,  87)    51.  91 

4.  Where  an  ejectment  was  served  on  tenant  in 
possession,  who  shortly  after  left  the  premises  and 
a  new  tenant  entered,  and  plaintiff's  agent,  without 
the  knowledge  of  plaintiff's  attorney,  served  a  new 
declaration  on  the  second  tenant ;  this  is  a  waiver  of 
the  proceedings  against  the  first  tenant. 

(109,112)    58.98 

5.  The  defendant  ought  to  file  his  plea  at  the  same 
time  that  he  signs  the  consent  rule.    If  he  neglects 
to  file  his  plea,  judgment  must  be  entered  against 
the  casual  ejector.    It  is  irregular  in  this  case  to  en- 
ter judgment  by  default  against  the  tenant. 

(115.116)    60,100 

6.  He  must  not  be  considered  in  this  case  as  not 
having   appeared,  and   the  judgment  by  default 
against  the  casual  ejector  is  taken  under  the  first 
rule  entered  at  the  return  of  the  writ  and  not  under 
any  new  rule.  (120, 122)    61,  1O1 

COL.,  &  COL.  &  CAI.,  &  J.'s  CAS.  1,  2.  3, 


GENERAL  LNDKX. 


7.  The  court  will  not  set  aside  a  judgment  against 
a  casual  ejector  upon  an  affidavit  that  the  party  ap- 
plying has  a  claim;  he  ought  to  show  that  he  is 
landlord.  (208)    125 

8.  Although  the  notices  to  tenant,  &c..  on  file  are 
misdirected,  the  court  will  presume  the  services 
regular  if  nothing  further  appears.          (316)    153 

9.  How  far  the  court  will  go  to  protect  the  posses- 
sion. (330,  477)    155,  2OO 

10.  A  plaintiff  may  amend  his  declaration  by  add- 
ing a  new  count  on  terms.  (408, 10)    ISO,  32 

11.  In  what  manner  the  court  will  compel  pay- 
ment of  costs  by  a  party  made  defendant  instead  of 
the  casual  ejector.  (414)    181 

12.  On  motion  for  attachment  for  non-pa  yment  of 
costs  on  account  of  the  plaintiff  being  nonsuited  for 
want  of  confessing  lease,  entry  and  ouster,  affidavit 
must  state  that  the  person  who  demanded  them  of 
the  tenant  was  duly  authorised  by  the  lessor  of  the 
plaintiff.  (483)    2O2 

13.  Notice  of  motion   to   set    aside   proceedings 
against  casual  ejector,  and  that  the  tenant  be  ad- 
mitted to  defend,  is  correctly  signed  by  being  signed 
by  A  as  attorney  for  the  tenant.  (484)    2O2 

EJECTMENT— Johns.  1. 

1.  A  parol  gift  of  land  creates  only  a  tenancy  at 
will ;  and  if  the  donee  lease  the  land,  and  the  donor 
merely  permits  the  lessee  to  build  and  enjoy  the 
term,  the  lease  does  not  operate  as  a  disseisin,  or 
prevent  the  donor  from  devising  the  land,  so  that 
the  devisee  may  maintain  an  action  of  ejectment, 
without  giving  notice  to  quit. 

Jackson,  ex  dem.  Van  AUn,  v. 
Rogers,  (33)    233 

2.  In  an  action  of  ejectment,  the  plaintiff  gave  ev- 
idence of  a  title  to  an  undivided  moiety  of  the  prem- 
ises only ;  but  a  general  verdict  was  taken :    A  mo- 
tiod  for  a  new  trial  was  refused,  the  court  ordering 
that  the  plaintiff,  on  the  hob.  fac.  poas.  should  take 
possession  of  a  moiety  only. 

Jackson,  ex  dem.  Moore,  v.  Van 
Bergen,  (101)    257 

3.  A  judgment  by  default  against  the  casual  eject- 
or, in  ejectment,  without  previously  entering  the 
default  for  not  appearing,  is  irregular. 

Jackson,  ex  dem.  Vrooman,  v. 
Smith,  (106)    26O 

4.  In  an  action  of  ejectment,  an  actual  entry  is  not 
necessary  in  any  case,  except  to  avoid  a  fine. 

Jackson,  ex  dem.  Bronck,  v. 
On/sler,  (125)    267 

5.  After  a  sale  of  land  by  a  sheriff  under  a  ft.  fa. 
the  defendant  becomes  quasi  a  tenant  at  will  to  the 
purchaser,  and  his  possession  is  not  deemed  adverse. 

Kane  v.  Stembergh,  (153)    28O 

6.  The  rules,  as  to  proceedings  in  ejectment  as  for 
a  vacant,  possession  in  England,  do  not  apply  to  the 
new  or  unsettled  lands  of  this  State. 

Saltonstall  v.  White,  (221)    304 

7.  One  of  several  coparceners  may  maintain  an 
action  of  ejectment  on  Tier  separate  demise. 

Jackson,  ex  dem.  Fttzroy,  et  al. 
v.  Sample,  (231)    307 

8.  A  person  cannot  be  a  witness  to  show  that  he  is 
the  tenant  in  possession,  and  not  the  defendant. 

Brandt,  ex  dem.  Van  Corttandt, 
v.  Dyckman,  (275)    323 

9.  A  recovery  of  nominal  damages  in  ejectment  is 
no  bar  to  a  subsequent  action  for  the  mesne  profits. 

Fan  Alen  v.  Rogers,  (281)    325 

10.  The  entry  of  a  remittitur  damna  on  the  record, 
in  an  action  of  ejectment,  is  merely  a  matter  of  form, 
and  if  no  remittitur  is  entered,  and  the  plaintiff 
enters  judgment  for  the  damages  and  costs,  it  will 
not  bar  the  plaintiff's  action  for  the  mesne  profits, 
to  which  he  is  entitled  from  the  time  of  the  demise 
laid  in  the  declaration.  (Th.)    325 

11.  If  the  tenant  has  made  improvements  on  the 
land,  under  a  contract  with  the  owner,  he  will  not  be 
allowed  for  them  in  an  action  of  ejectment  brought 
by  the  devisee  of  the  owner,  but  must  seek  his  com- 
pensation from  the  personal  representatives  of  the 
devisor.  (Ib.)    325 

12.  On  affidavit  of  the  tenant,  that  one  of  the  lessors 
of  the  plaintiff  was  dead  at  the  commencement  of 
the  action,  the  demise  from  such  lessor  was  ordered 
to  be  struck  out  of  the  declaration. 

Jackson,  ex  dem.  Butler,  v.  Ditz,         (392)    364 

13.  Service  of  a  second  declaration  in  ejectment 
by  the  agent  of  the  plaintiff,  though  without  his 
knowledge,  is  a  waiver  of  the  first. 

Kemble  v.  Finch,  (414)    373 

EJECTMENT— Johns.  2. 

1.  In  ejectment,  signing  the  consent  rules,  deliv- 
COL.,  &  COL.  &  CAT.,  &  J.'s  CAS.  1,  2,  3. 


XV 

ering  a  new  declaration,  putting  in  common  bail, 
and  filing  a  plea,  are  all  simultaneous  acte ;   and  if 
the  tenant  neglects  to  file  the  plea  instanter,  a  de- 
fault may  be  entered  against  the  casual  ejector. 
Jackson,  ex  dem.  Quackenboss,  v.  Wood- 
ward, (HO)    456 

2.  Evidence  of  an  agreement  for  a  lease  between 
the  lessor  of  the  plaintiff  in  ejectment,  and  the  per- 
son in  possession,  is  not  sufficient  to  enable  the 
plaintiff  to  recover  the  possession,  when  there  is  no 
proof  that  any  lease  was  ever  executed,  or  rent 
paid;   and  where  the  tenant  claimed  to  hold  ad- 
versely. 

Jackson,  ex  dem.  Southampton,  et  al. 
v.  Cooly,  (223)    494 

3.  An  equitable  title  cannot  prevail  in  ejectment 
against  the  legal  estate,  more  especially  if   such 
equitable  title  is  dubious, 

Jackson,  ex  dem.  Potter,  et  al.  v. 
Sisson,  (321)    53O 

4.  Where  A,  who  had  been  many  years  in  posses- 
sion of  land  under  B,  the  supposed  proprietor,  ap- 
plied afterwards  to  C  as  the  real  owner,  to  purchase, 
and  requested  to  be  considered  as  his  tenant ;  in  an 
action  of  an  ejectment  by  C  against  A  it  was  held 
that  A  might  show  that  he  had  made  the  applica- 
tion and  request  to  C  under  a  mistake,  and  prove  a 
title  out  of  C,  though  he  could  not  set  up  an  adverse 
possession ;  and  that  A  was  not  entitled  to  notice  to 
quit,  as  a  tenant  of  C. 

Jackson,  ex  dem.  Viely  &  Clark,  v. 
Guerden,  (353)    541 

EJECTMENT— Johns.  3. 

Where  a  landlord,  in  1786,  brought  an  action  of 
ejectment  against  his  tenant,  holding  under  a  lease 
containing  a  clause  of  re-entry  for  nonpayment  of 
rent,  and  recovered  judgment  against  the  casual 
ejector,  by  default,  under  the  statute,  and  posses- 
sion was  thereupon  delivered  to  the  landlord,  who 
executed  a  lease  and  gave  possession  to  another 
person ;  and  the  tenant  under  the  first  lease  after- 
wards brought  an  action  of  ejectment,  in  1790,  for 
the  same  premises,  against  the  tenant  under  the 
second  lease ;  it  was  held  that  the  judgment  by  de- 
fault was,  prima  facie,  regular,  and  a  sufficient  bar, 
and  that  the  defendant  was  not  obliged  to  show  an 
affidavit,  or  any  of  the  prerequisites  to  a  recovery, 
required  by  the  statute.  (Sess.  24,  ch.  36,  sec.  23.) 
Jackson,  ex  dem.  Smith,  et  at.  v. 
Wilson,  (295)  7O1 

ENTRY— Johns.  3. 

1.  A  tract  of  land  was  granted  by  letters  of  pat- 
ent to  A  in  1735,  which  was  surveyed  and  laid  out 
into  lots.    In  1736,  B  executed  leases  for  several  lots 
to  different  persons,  for  lives,  reserving  rent,  in 
which  he  asserted  his  claim  to  the  whole  tract,  and 
exercised  various  acts  of  ownership,  until  his  death, 
in  1752,  and  his  heirs  also  gave  leases  of  some  of  the 
l9ts,  in  1767,  and  his  title  aid  that  of  his  heirs  con- 
tinued to  be  acknowledged  by  the  tenants,  and  re- 
mained undisputed,    until  1783.     In  an  action  of 
ejectment  brought  by  the  heirs  of  B  against  C,  who 
had  been  in  possession  since  1772,  it  was  held  that  a 
grant  from  the  original  patentees  to  B  was  to  be 
presumed;   that  entry  by  him  into  part,    with  a 
claim  to  the  whole,  was  to  be  considered  as  an  en- 
try into  the  whole ;  and  that  the  entry  of  C  was  in 
subordination  to  the  title  of  B. 

Jacksim,  ex  dem.  Gansevoort,  et  al.  v. 
Lunn,  (109)    63» 

2.  An  entry  adverse  to  the  lawful  possessor  is  not 
to  presumed,  but  must  be  proved. 

Jackson,  ex  dem.  Gansevoort,  v. 
Parker,  (124)    641 

ERROR— Col.  and  Cai. 

1.  Error  in  record  in  Supreme  Court  amended  in 
the  Court  of  Errors.  (41,  46)    41,  81 

2.  When  either  party  is   desirous   of  bringing  a 
writ  of  error,  the  court  will  grant  a  rule  on  the  suc- 
cessful party  to  have  the  roll  signed  and  filed   in 
four  days,  or  that  opuosite  party  have  leave  to  do 
it.  (49,54)    43,83 

3.  When  want  of  plaint  in  court  below  is  assigned 
for  eiTor,  the  supreme  court  will  compel  that  court, 
by  mandamus,  to  grant  leave  to  file  it  HI/HO  fyrntunc. 

(55,  61)    44,  84 

4.  A  party  cannot  assign  error  in  process  issued  by 
himself.  (384)    173 

5.  A  writ  of  error  cannot  be  nonprossed  before  it 
is  returned  into  the  court  above.  (231)    131 

6.  If  on  the  justice's  return  it  does  not  appear  that 
a  constable  was  sworn  to  attend  the  jury,  it  is  a 
fatal  error,  and  the  court  cannot  supply  it  by  in- 
tendment.  "  (417)    183 

761 


GENERAL  INDEX. 


8.  In  a  justice's  court,  when  the  defendant  refuses 
to  plead,  it  is  error  to  award  a  venire.         (497)    2O6 


See  Sheriff. 


ESCAPE— Johns.  2. 


ESCAPE— Johns.  3. 


In  an  action  against  a  sheriff  for  an  escape,  if 
it  be  averred,  or  found  on  the  record,  that  the 
sheriff  permitted  the  prisoner  to  escape,  it  is  equiv- 
alent to  the  finding  of  a  voluntary 


Holme*  et  al.  r.  Lansing, 
See  Sheriff.    Jail  liberties,  2. 


•  escape. 


(73)    628 


See  Devise. 


ESTATE— Johns.  3. 
ESTOPPEL— Johns.  3. 


1.  By  the  common  law  a  conveyance  of  land  by  a 
person  against  whom  there  is  an  adverse  possession  I 
at  the  time,  to  a  third  person,  is  void ;  but  the  title  I 
of  the  grantee  is  not  thereby  extinguished  or  deves- 
ted;   nor  will  such   conveyance  inure,  by  way  of 
estoppel,  for  the  benefit  of  the  defendant  in  posses- 
sion. 

Jackson  e.r  dem.  Jones  ct  al.  v. 
Brtnckerlwff,  (101)    663 

2.  A  stranger  or  third  person,  cannot  avail  him- 
self of  an  estoppel  by  a  mere  writing,  or  a  matter 
iii  uais. 

Id.  (Ih.)    633 

3.  No  person  can  be  technically  estopped  by  a  con- 
veyance under  the  statute  of  uses. 

Id.  (Ih.)    633 

EVIDENCE-Col.  and  Cai. 

Office-copy  of  record  is  sufficient  evidence  of  a 
judgment  recovered  in  the  Circuit  Court  of  the 
United  States  for  the  Commonwealth  of  Massachu- 
setts. (135, 136)  65,  105 

EVIDENCE— Johns.  1. 

1.  Evidence  of  a  parol  agreement  to  enlarge  the 
time  of  performance  of  a  written  contract,  previ- 
ously made,  is  admissible. 

Keating  v.  Price,  (22)    226 

Quaere.  If  it  be  a  covenant  or  sealed  instrument. 

2.  On  a  feigned  issue  to  try  the  fact  of  adultery,  it 
was  held,  that  the  confession  of  the  wife,  connected 
with  other  proofs,  were  admissible  in  evidence. 

Doe  v.  Roe,  (25)    228 

3.  Such  confession,  however,  if  made  by  collu- 
sion, or  with  a  fraudulent  intent,  are  entitled  to  no 
weight. 

Id.  (Ih.)    228 

4.  Letters  written  by  a  party  are  not  admissible 
evidence  in  his  favour,  though  they  are  evidence 
against  him. 

Towle  and  Jackson  v.  Stevemnn,        (110)    262 

5.  In  an  action  for  breach  of  promise  of  marriage 
the  defendant  may  give  in  evidence  the  licentious 
•conduct  of  the  plaintiff,  in  mitigation  of  damages. 

Johnston  r.  Canlkins,  (116)    264 

6.  In  such  a  case,  it  is  not   necessary   for   the 
plaintiff  (female)  to  prove  a  previous  offer  to  marry 
the  defendant. 

Id  (Ih.)    264 

7.  A  receipt  in  full  for  money  is  not  conclusive 
•evidence ;  and  parol  evidence  of  a  mistake  is  ad- 
missible. 

En#ign  v .  Wehxter,  (145)    277 

8.  A  deposition  taken  de  hene  esse  in  a  cause,  after 
the  writ  was  returned,  but  before  the  declaration 
was  filed,  and  on  the  same  day  that  the  order  of  the 
judge  was  granted  for  that  purpose,  was  allowed  to 
be  read,  under  the  circumstances  of  the  case :  the 
witness  being  unexpectedly  obliged  to  depart  from 
the  State  on  a  distant  voyage,  and  all  the  notice 
.given  of  his  examination  to  the  opposite  party,  that 
the  urgency  of  the  case  would  permit. 

Mumford  v.  Church,  (147)    278 

9.  A  resulting  trust  may  be  proved  by  parol. 

Jackson,  ex  dem.  Kane,  v.  Sternhergh, 

(153)    280 

10.  Where  the  subscribing  witness  to  a  bond  is 
dead,  proof  of  his  handwriting    is  sufficient  evi- 
dence, prima  facie. 

Matt  r.  Doughty,  (230)    3O7 

11.  The  record  of  a  court  in  another  State  will  not 
be  received  in  evidence,  unless  the  attestation  be 
certified  by  the  presiding  judge  of  the  court, 

Smith  v.  BtOfiae,  (238)    31O 

12.  A  paper,  purporting  to  be  the  record  of  a 
•deed,  not  duly  acknowledged  is  a  nullity,  and  not 
admissible  in  evidence,  either  as  a  record  or  a  copy 
of  a  deed. 

Doe  v.  Roe,  (402)    368 

762 


EVIDENCE— Johns.  2. 

1.  In  an  action  brought  on  a  judgment  of  the  Cir- 
cuit Court  of  the  United  States  for  the  District  of 
Massachusetts,  the  production  of  the  record  under 
the  seal  of  the  court,  certified  in  the  usual  form, 
was  held  to  be  sufficient  evidence. 

Pejxxm  v.  Jenkins,  (119)    458 

2.  Where  there  are  strong  circumstances  to  sus- 
pect a  note  has  been  fraudulently  altered,  general 
corroborating  circumstances  may  be  admitted  in 
evidence,  to  strengthen  the  suspicion ;  as  that  other 
notes  drawn  and  indorsed  by  the  same  parties,  to 
take  up  one  of  which  the  note  in  question  was 
given,  had  been  altered. 

Rankin  i\  Blackwell,  (198)    486 

3.  The  handwriting  of  the  maker  or  indorser  of  a 
note  may  be  proved  by  witnesses,  from  their  previ- 
ous knowledge  of  his  handwriting,   derived  from 
having  seen  the  person  write,  or  from  authentic 
papers  received  in  the  course  of  business ;  but  if  the 
witness  has  no  previous  knowledge  of  the  hand- 
writing, he  cannot  be  permitted  to  decide  upon  it, 
in  court,  from  a  comparison  of  hands. 

Titford  v.  Knott,  (211)    49O 

4.  Whether  papers  signed  by  the  party,  and  ad- 
mitted to  be  genuine,  can  be  delivered  to  the  jury 
to  determine,  by  comparison,  as  to  the  genuineness 
of  the  paper  in  question '(    Qucere. 

Id.  (Ih.)    490 

5.  The  confidential  clerk  of  the  plaintiff  was  ad- 
mitted to  prove  a  correspondence,  by  letters,  be- 
tween the  plaintiff  and  defendant  who  resided  in 
London,  and  to  testify,  that  from  the  knowledge  he 
had  acquired  from  the  letters  of  the  defendant,  re- 
ceived during  this  correspondence,  he  believed  the 
indorsement  in  question  to  be  the  handwriting  of 
the  defendant,  though  the  witness  had  never  seen 
the  defendant  write. 

Id.  (Ih.)    490 

6.  Evidence  of  an  agreement  for  a  lease  between 
the  lessor  in  ejectment  and  the  person  in  possession, 
is  not  sufficient  to  enable  the  plaintiff  to  recover 
the  possession,  when  there  is  no  proof  that  any 
lease  was  ever  executed,  or  rent  paid,  and  where 
the  tenant  claimed  to  hold  adversely. 

Jackson,  ex  dem.  Southampton,  et 

al.  v.  Cooly,  223)    494 

7.  In  action  of  debt  on  a  judgment  in  the  Su- 
preme Court  of  Pennsylvania,  the  defendant  pleaded 
nil  dehet  and  payment.     It  was  held  that  he  was 
bound  to  produce  and  prove  the  record  of  the  judg- 
ment, or  an  exemplification  thereof. 

Rush  v.  Cohhett,  (256)    5O7 

8.  In  action  of  scire  facias  against  bail,  the  de- 
fendant pleaded  that  another  person  of  the  same 
name  and  description  became  bail,  and  traversed 
that  he  was  the  person  named  in  the  bailpiece.    At 
the  trial,  it  was  proved  that  the  name  of  Elnathan 
Noble  was  inserted  in  the  bailpiece ;  but  Stephen 
Norton  was  the  person  who  intended  to  become 
bail,  and  who,  in  fact,  appeared  before  the  judge 
who  signed  the  acknowledgement  on  the  bailpiece. 
It  was  held  that  this  evidence  was  admissible,  and 
sufficient,  on  the  issue  joined,  as  to  the  identity  of 
the  person. 

Renoard  v.  Noble,  (293)    52O 

9.  Parol  evidence  of  the  contents  of  a  letter  of 
attorney  by  the  person  to  whom   it  was  given  is 
admissible,    if  it  is  proved  satisfactorily  that  the 
power  has  been  lost. 

Livingston  v.  Rogers  (in  error),  (488)    587 

EVIDENCE— Johns.  3. 

1.  Parol  evidence  to  show  that  it  was  the  under- 
standing and  intention  of  the  parties  to  a  policy  of 
insurance,  that  it  should  be  void,  in  case  of  a  double 
insurance,  is  inadmissible. 

New  Y<rrk  Insurance  Company  r. 
Thomas,  (1)    597 

2.  Admiralty  surveys  as  to  the  seaworthiness  of 
v(!ssels  are    not  evidence   of  the   facts  stated    in 
them. 

Ahhotv.Sehor,  (39)    61O 

3.  In  an  action  of  trespass  quare  clauxum  freyit, 
the  defendant  justified  under  a  right  of  freehold ; 
and  it  was  held  that  a  person  who  had  conveyed  the 
premises  in  question  to  the  plaintiff,  with  cove- 
nants of  warranty,  was  a  comi>eteiit    witness   to 
prove  the  trespass. 

Fan  Nuw  v.  Terhune,  (82)    626 

4.  The  general  rule  is,  that  if  a  witness  cannot 
gain  or  lose  by  the  event  of  a  suit,  or  if  the  verdict 
cannot  be  given  in  evidence,  for  or  against  him.  in 
another  suit,  the  objection  goes  to  his  credit,  and 
not  to  his  competency. 

Id.  (Ih.)    626 

COL.,  &  COL.  &  CAI.,  &  J.'s  CAS.  1,  2,  3. 


GENERAL  INDEX. 


5.  An  interest  in  the  question  only,  does  not  dis- 
qualify a  witness,  but  the  objection   goes  to  his 
credit  only. 

Id.  (Ib.)    626 

6.  It  seems  that  the  printed  statute  book,  con- 
taining- a  private  act,  may  be  given  in  evidence 
against  the  party  for  whose  benefit  the  act  was 
passed,  for  he  is  presumed  to  be  connusant  of  it,  and 
•cannot  be  surprised  by  the  evidence. 

Duncan  v.  Duboys,  (125)    641 

7.  A  person  is  not  a  competent  witness  to  impeach 
the  validity  of  a  negotiable  note  or  instrument, 
which  he  has  made  or  indorsed,  though  he  is  not 
interested  in  the  event  of  the  suit. 

Winton  r.  Saidler,  (185)    663 

8.  The  payee  and  indorser  of  a  promissory  note, 
who  had  been  discharged  under  the  bankrupt  law 
of  the  United  States,  and  had  released  all  his  inter- 
est, was  held  to  be  an  incompetent  witness  to  prove 
that  the  note  was 'given  for  an  usurious  considera-  i 
tion. 

Id.  (Ib)    663 

9.  The  record  of  a  will  proved  under  the  statute 
{sess.  24,  ch.  9,  sec.  6),  is  not  conclusive -upon  the 
heir,  so  as  to  prevent  the  admission  of  evidence  to 
impeach  its  validity. 

Jackson,  ex  dem.  Woodhull,  v. 
Rumsey,  (234)    68O 

10.  The  record  of  a  will,  like  that  of  a  deed,  is  only 
prima  facie  evidence  of  its  authenticity. 

Id.  (Ib.)    680 

11.  A  pei-son  who  was  a  tenant  under  a  devisee  of 
part  of  the  estate  devised,  was  held  to  be  a  compe- 
tent witness  in  an  action  of  ejectment  brought  by  the 
heir  against  a  tenant,  who  held  part  of  the  premises 
under  the  testator  or  devisee,  and  part  under  the  ! 
witness,  in  order  to  impeach  the  validity  of  the 
will. 

Id.  (Ib.)    680 

12.  A  will  executed  in  1723,  and  which  had  been 
proved  by  the  witnesses,  in  1733  and  1744,  and  re- 
corded, but  not  in  the  manner  authorized  by  law, 
was  allowed  to  be  read  in  eiidence,  on  the  trial  of 
an  action  of  ejectment,  in  1801,  as  an  ancient  deed, 
thoug-h  actual  possession  did  not  follow  and  accom- 
pany the  will,  that  being-  explained  by  the  peculiar 
situation  of  the  property  in  question,  and  other  cir- 
cumstances shown,  to  raise  a  presumption  of  the 
existence  and  genuineness  9f  the  will. 

Jackson,  ex  dem.  Lewis,  et  al.  v. 
Laroivay,  (283)    697 

13.  A  having-  been  convicted  of  forgery,  was  sen- 
tenced to  the  State  Prison  for  life.    He  was  after- 
wards  pardoned  by  the  governor.       The  pardon 
contained  a  proviso  that  it  was  not  to  be  construed 
so  as  to  relieve  A  from  the  legal  disabilities  arising 
from  his  conviction  and  sentence,  &c.,  but  only 
from  the  imprisonment.  He  was  afterwards  offered 
as  a  witness  for  the  people,  on  a  trial  for  an  indict- 
ment, and  admitted  to  testify,  although  objected  to 
as  incompetent.    It  was  held  that  the  proviso  in  the 
pardon  being  incongruous,  and  repugnant  to  the 
pardon  itself,  ought  to  be  rejected,  and  that  the 
witness  was  competent. 

The  People  v.  Feme,  (333)    714 

See  Demurrer  to  evidence.    Ejectment. 
EXCEPTIONS— Col.  and  Cai. 

See  Bill  of  Error,  7. 

After  return  of  sci.  fa.  qua  ex.  nnn  and  before  as- 
signment of  error,  the  court  will  allow  the  plaintiff 
in  error  to  take'out  a  writ  for  the  judges  below  to 
confess  or  deny  their  seal.  (416)  182 

EXECUTION— Col.  and  Cai. 
See  Amendment,  6, 16. 

1.  If  an  execution  is  issued  into  another  county 
than  that  in  which  the  venue  is  laid,  without  a  testa- 
tum,  it  is  void.  (349)     163 

2.  If  it  is  tested  out  of  term,  it  is  void.    (Ib.)    163 

3.  The  return  of  the  execution  is  not  requisite  to 
the  validity  of  the  proceedings  under  it.    (350)    163 

EXECUTION— Johns.  1. 

1.  The  words  in  an  alias  fieri  facias,  "as  before," 
&c.,  may  be  rejected  as  surplusage,  no  previous  fi. 
fa.  being  in  fact  issued. 

Jackson,  ex  dem.  Kane,  v.  Sternberyh, 

(153)    280 

2.  An  incorrect  return  of  &  fieri  facias  by  a  sheriff 
will  not  defeat  the  sale  under  it,  or  affect  the  pur- 
chasers title. 

Id.  (Ib.)    280 

See  Sheriff,  3,  4,  5. 

COL.,  &  COL.  &  CAI.,   &  J's  CAS.  1,  2,  3. 


EXECUTORS  AND  ADMINISTRATORS— Johns.  1. 

1.  On  a  plea  of  plene  admiriistravtt,  the  onus  pro- 
bandi  lies  on  the  defendant. 

Platt  v.  AdminMratitrs  »f  Smith,       (476)    391 

2.  A  former  judgment  by  default  against  execu- 
tors, and  a  fieri  facias  return  nulla  bona  are  conclu- 
sive evidence  of  a  devastavit. 

Id.  (Ib.)    391 

3.  The  executor  must  defend  himself  in  the  first 
suit,  or  he  will  be  precluded  from  alleging  that  he 
had  no  assets. 

Id.  (Ib.)    391 

See  Costs,  3. 

EXECUTORS  AND  ADMINISTRATORS-Johns.  2. 

1.  Where  R.  granted  and  demised  land  to  P.  and 
his  heirs,  executors  and  administrators,  reserving 
an  annual  rent  which  P.  for  himself,  his  heirs,  exec- 
utors and  administrators,  covenanted  to  pay  on  the 
first  day  of  May,  in  each  year,  it  was  held  that  the 
executors  of  R.  could  not  recover  rent  which  ac- 
crued subsequent  to  the  death  of  their  testator ;  al- 
iter,  for  rent  due  prior  to  the  testator's  death. 

Executors  of  Van  Rensselaer  v.  Exec- 
utes of  Plainer,  (17)    423 

2.  It  seems,  that  an  action  of  covenant  will  lie 
against  the  executors  of  the  lessee  on  such  a  coven- 
ant, though  the  land  had  passed,  by  act  of  law.  into 
other  hands. 

(Id.)  Ib    423 

3.  Where  an  estate  in  fee  is  granted,  reserving  an 
annual  rent,  the  devisees  of  the  grantor  cannot 
maintain   covenant  against  the  executors  of  the 
grantee,  or  tenant  in  fee,  for  the  rent  in  arrear. 

The  Devisees  of  Van  Renszelaer  v.  The 
Executors  or  Plainer,  (34)    425 

4.  Where  executors  sued  in  this  court,  and  re- 
covered less  than  $50,  it  was  held  that  they  were  not 
entitled  to  recover  costs,  nor  liable  to  pay  costs  to 
the  defendant. 

Executors  of  Mahany  v.  Fuller,  (209)    49O 

5.  Where  judgment  by  default  for  want  of  a  plea 
was  regularly  obtained  against  an  administratrix, 
she  was  allowed  to  come  in  and  plead ;  but  the  judg- 
ment was  directed  to  stand  as  security  for  the  as- 
sets remaining,  after  payment  of  prior  judgments 
confessed,  and  for  assets  quando  acciderint. 

Nitchie  v.  Smith,  (286)    517 

6.  A  died  intestate,  leaving  a  widow  and  seven 
children,  who  were  all  minors,  except  one.    A  suit 
having  been  commenced  in  1784,  against  the  widow, 
as  tenant  in  possession,  under  a  lease  for  lives,  the 
administrator,  in  1784,  after  advising  with  counsel, 
and  with  the  consent  of  the  widow  and  one  of  the 
heirs,  who  was  then  of  age,  surrendered  the  lease, 
supposing-  it  to  be  forfeited,  for  the  consideration 
of  $750,  though  in  fact  it  was  worth  a  much  larger 
sum.    No  release  or  conveyance  having  been  exe- 
cuted by  the  administrator,  the  heirs  afterwards 
brought  an  action  of  ejectment  in  the  name  of  the 
administrator,   to   recover   the   possession   of  the 
leasehold   estate ;   and   the  administrator   in  1799, 
though  he  then  believed  the  property  belonged  to 
the  heire,  and  was  not  forfeited,  executed  a  release 
of  the  estate,  and  also  of  the  action  of  ejectment, 
for  the  consideration  of  the  §750  before  received. 
In  an  action  brought  on  the  administration  bond, 
alleging  a  derastavit,  it  was  held  that  the  adminis- 
trator was  justifiable  in  surrendering  the  lease  in 
1784,  in  the  manner  he  did,  under  the  circumstances ; 
but  that  in  1799,  when  he  was  satisfied  that  he  had 
acted  before  under  a  mistake,  as  to  the  lease  being 
forfeited,  he  ought  not  to  have  executed  the  re- 
lease of  the  estate,  and  of  the  action  brought  for 
the  benefit  of  the  heirs,  but  have  left  the  lessor  to 
resort  to  a  court  of  chancery  to  enforce  the  contract ; 
and,  on  this  ground,  he  was  held  chargeable  with  a 
derastarit,  for  the  difference  between  the  sum  re- 
ceived on  the  surrender,  and  the  real  value  of  the 
estate. 

The  People  r.  Pleas  &  Clark,  (376)    548 

EXTINGUISHMENT— Johns.  2. 
See  Satisfaction. 


FACTOR— Johns.  1. 

1.  L  delivered  to  G  and  K  his  factors,  a  quantity 
of  goods  to  be  sold  by  them  on  commission ;  and 

7.  When  a  bill  of  exceptions  has  been  taken  in  the 
court  of  common  pleas,  the  Supreme  Court  will  not 
hear  an  assignment  on  the  case,  if  no  writ  of  error 
has  been  sued  out.  (491)  2O4 

763 


GENERAL  INDEX. 


thev  by  the  express  intervention  and  direction  of 
L  sold  the  goods  to  A  B  and  C,  and  by  a  written 
contract  of  sale  made  and  executed  between  G  &  K 
and  A  B  &  C  the  latter  agreed,  among  other  things, 
to  charter  a  certain  vessel,  to  ship  the  goods  pur- 
chased, on  board  of  her,  for  Havre  de  Grace  and 
Hamburgh,  and  to  give  G  and  K  their  promissory 
notes  for  the  purchase  money,  payable  in  12  months 
and  also,  that  G  and  K  should  nave  it  in  their  op- 
tion to  receive  the  whole  or  part  of  the  amount  of 
the  notes  at  Havre  de  Grace,  or  any  other  port  in 
Europe,  at  which  the  ship  should  discharge  the 
goods.  Before  and  after  the  shipment  of  the  goods 
to  Europe,  L  demanded  of  G  and  K  a  copy  of  the 
contract  of  sale,  and  an  authorization  from  them,  to 
receive  from  A  B  and  C,  or  their  agent,  the  amount 
of  the  sales,  after  deducting  what  was  due  to  G  and 
K  for  their  commissions,  advances  and  responsibili- 
ties, out  of  the  first  proceeds  of  the  goods,  at  the 
port  of  discharge  in  Europe,  which  G  and  K  re- 
fused to  give  to  him,  or  to  make  the  election  ac- 
cording to  the  contract  of  sale,  until  they  were  paid 
or  secured  for  theiradvances  and  responsibilities,&c. 
It  was  held  that  G  and  K,  by  refusing  to  exercise 
the  right  of  election  reserved  in  the  contract  of 
sale  of  the  goods,  or  to  give  the  necessary  authority 
to  L  to  receive  the  amount  in  Europe,  according  to 
his  request,  had  substituted  themselves  in  the 
place  of  the  vendees,  and  become  liable  to  pay  to  L 
the  whole  amount  for  which  the  goods  sold,  after 
deducting  what  was  due  to  them  on  account  of 
their  agency,  taking  the  risk  of  eventual  recovery 
on  the  notes  from  the  vendees. 

Le  Guen  v.  Oouverneur  &  Kemble,  (note,) 

(437)    388 

2.  Every  sale  of  a  factor  being  for  the  interest 
and  benefit  of  his  principal,  he  is  bound  to  conf  orm 
to  the  instructions  of  his  principal,  in  everything 
not  inconsistent  with  his  rights  as  factor. 

Id.  (Ib.)    382 

3.  A  factor  who  is  sued  by  his  principal  for  a 
breach  of  trust  or  orders,  whereby  he  has  substitute 
ed  himself  in  the  place  of  a  vendee,  may  set  up 
fraud,  or  any  other  matter  of  defence  which  the 
vendee  could  have  done,   if  the  suit  had  been 
against  him. 

Le  Guen  v.  Qattoemew  &  Kemble, 

(In  error,)  (436)    381 

See  Agent,  1, 2. 

FACTOR  OR  AGENT— Johns.  3. 
Where  the  insured  employed  a  factor  or  agent  to 
settle  with  the  insurers  for  a  total  loss,  and  an 
abandonment  was  duly  made,  and  the  agent,  after- 
wards, through  mistake  or  misapprehension  of  a 
letter  of  the  insured,  or  from  negligence,  adjusted 
the  claim  with  the  insurers  as  an  average  1988,  at 
twenty  per  cent,  and  cancelled  the  policy ;  it  was 
held,  that  the  agent  was  responsible  for  the  whole 
amount,  being  considered  as  substituted  in  the 
place  of  the  insurers. 

Bundle  et  al.  v.  Moore  and  Pollock,      (36)    6O9 

FEIGNED  ISSUE— Col.  and  Cai. 
If  an  inquest  be  improperly  taken  in  a  feigned 
issue  from  the  Court  of  Chancery,  relief  must  be 
sought  in  this  court.  (303)    150 

FEIGNED  ISSUE— Johns.  2. 

1.  An  application  for  a  feigned  issue,  is  to  the 
sound  discretion  of  the  court ;  and  it  is  awarded 
only  for  the  information  of  the  court,  or  where  the 
party  is  otherwise  without  relief. 

WardeU  v.  Eden,  (258)    5O8 

2.  Where  the  defendant  alleged  payment  to  the 
plaintiff,  made  by  him  on  a  judgment  which  had 
been  assigned  to  a  third  person,  the  court,  on  u 
motion  made  for  that  purpose,  refused  to  award  an 
issue  to  try  the  truth  and  validity  of  the  payment, 
but  left  the  party  to  his  remedy,  by  audita  querela, 
as  the  time  When  the  defendant  received  notice  of 
the  assignment  was  contested, 

Id.  (Ih.)    508 

3.  The  proper  way  to  try  the  truth  of  the  allega- 
tion of  usury  in  regard  to  a  judgment  entered  up  on 
a  bond  and  warrant  of  attorney,  is  to  retain  the 
judgment,  and  award  a   feigned  issue  to  try  the 
fact ;  but  where  a  judgment  has  been  assigned  bonn 
fide,  and  notice  given  to  the  defendant,  the  court, 
suspecting  a  collusion  between  the  plaintiff  and  de- 
fendant to  defeat  the  assignee,  refused  to  award  an 
issue. 

Id.  (Ib.)    508 

4.  A  feigned  issue  was  awarded  to  try  the  truth 
of  the  allegation  of  usury  on  a  bond,  on  which  a 
judgment  had  been  entered  up,  by  virtue  of  a  war- 

701 


rant  of  attorney,  there  being  color  for   the  alle- 
gation. 

Gilbert  v.  Eden,  (280)    518- 

FEME  COVERT— Johns.  3. 

Where  a  British  subject  died  seized  of  lands  in  this 
State,  in  1752,  leaving  daughters  in  England,  who 
married  British  subjects,  and  neither  they  nor  their 
wives  were  American  citizens,  it  was  held  that  the 
husbands  of  the  heiresses  might  be  joined  in  demise 
with  their  wives,  in  order  to  maintain  an  action  of 
ejectment;  and  that  even  if  the  marriages  were 
subsequent  to  the  American  Revolution,  such  mar- 
riages_  with  aliens  would  not  impair  the  rights  of 
the  wives,  nor  prevent  the  full  enjoyment  of  the 
property,  according  to  the  1-iws  of  the  marriage 
state;  especially  after  the  provision  contained  in 
the  9th  article  of  the  Treaty  of  Amity  and  Com- 
merce with  Great  Britain,  of  the  9th  November, 
1794. 

Jackson,  ex  dem.  Gansevoort,  et  al., 
v.  Lunn,  (109)    636 

FIERI  FACIAS— Johns.  1. 
See  Execution. 

FINE— Col.  and  Cai. 

Where  the  last  proclamation  of  a  fine  was  omitted 
at  a  previous  term,  it  was  allowed  to  be  made  nunc 
pro  tune  as  of  that  term.  (165)  113 

FINE— Johns.  Z. 
See  Indictment. 

FORCIBLE  ENTRY  AND  DETAINER— 
Col.  and  Cai. 

1.  If  24  grand  jurors  are  sworn  on  the  jury  that 
find  the  bill,  the  objection  is  fatal.  (365)    167 

2.  So  if  defendant  appears  voluntarily  and  offers 
to  traverse  and  is  refused.  (364)    167 

FORCIBLE  ENTRY  AND  DETAINER— Johns.  2. 

1.  An  indictment  for  a  forcible  entry  and  detain- 
er, before  two  justices,  being  removed  to  this  court 
by  certiorari,  the  defendant  was  served  with  a  notice 
of  a  rule  to  assign  errors  in  twenty  days,  and  no  as- 
signment being  made,  a  judgment  by  default  was 
entered,  and  the  defendant  afterwards  filed  his  plea. 
It  was  held  that  the  rule  to  assign  errors  was  a  nul- 
lity ;  the  prosecutor  ought  to  have  called  on  the  de- 
fendant to  plead  or  abide  by  his  former  plea ;  and 
the  judgment  and  subsequent  proceedings  were  set 
aside  for  irregularity. 

The  People,  ex  rel.  Quackenboss,  r. 
Burtch,  (400)    556 

2.  The  landlord  may  be  let  in  to  defend,  in  an  ac- 
tion for  a  forcible  entry  and  detainer,  as  well  as  in 
ejectment, 

Id.  (Id.)    556 

See  Justices'  Court,  1. 

FOREIGN  COURTS- Johns.  1. 
See  Insurance,  2,  21,  22. 

FOREIGN  LAWS— Johns.  1. 

The  lex  loci  contractus  is  not  to  govern  as  to  the 
mode  of  enforcing  a  contract. 

Lodge  r.  Phelps,  (139)    275 

FOREIGN  LAWS— Johns.  2. 

A  residing  in  the  State  of  Massachusetts,  and  own- 
ing land  in  the  State  of  New  York,  entered  into  a 
contract  in  Massachusetts  with  B,  an  inhabitant  of 
New  York,  for  the  sale  of  the  lands  to  him.  B  gave 
to  A  a  bond  for  the  consideration  money,  payable 
in  four  years,  and  also  f  our  prommissory  notes,  pay- 
able in  one,  two,  three  and  four  years,  for  the  in- 
terest on  the  bond,  at  the  rate  of  six  and  a  half  per 
cent.,  and  A  executed  a  bond  to  B  conditioned  to 
execute  a  conveyance  to  him  for  the  land,  on  the 
payment  of  the  bond  and  notes.  In  an  action 
brought  in  this  State  by  A  against  B  on  the  notes, 
who  pleaded  usury,  it  was  held  that  the  law  of  Mass- 
achusetts was  to  govern,  and  the  notes  were  usu- 
rious. 

Van  Scnatk  v.  Edwards,  (335)    535 

FORFEITURE— Col.  and  Cai. 

1.  The  act  entitled  an  act  further  to  amend  an  act 
entitled  an  ant  for  the  speedy  sale  of  the  confiscated 
and  forfeited  estates  within  this  State,  &c.,  is  re- 
trospective and  affects  prior  titles.     (84,  89)    52,  03 

2.  The  State  can  acquire  seisin  or  possession  of 
lands  for  breach  of  condition  by  matter  of  record 
only.  (288)    148 

COL.,  &  COL.  &  CAI.,  &  J.'e  CAS.  1,  2,  3. 


GENERAL  INDEX. 


3.  Where  an  entry  is  necessary  on  the  part  of  a 
•common  person,  an  office  is  necessary  on  the  part 
of  the  State.  (Ib.)    148 

4.  Where  entry   and   action  are  necessary  to  a 
common  person,  an  office  and  sci .  fa.  are  necessary 
to  the  state.  (Ib.)    1*8 

FORFEITURE— Johns.  1. 
See  Attainder. 

FORFEITURE— Johns.  3. 

1.  The  American  Revolution  worked  no  forfeit- 
ure of  previously  vested  rights  in  land. 

Jackson,  ex  dem.  Gansevoort,  et  at. 
v.  Lunn,  (109)    636 

2.  Where  a  British  subject  died  seized  of  lands  in 
this  State,  in  1752,  leaving  daughters  in  England 
who  married  British  subjects,  and  neither  they  nor 
their  wives  were  American  citizens,  it  was  held  that 
the  husbands  of  the  heiresses  might  be  joined  in  the 
demise  with  their  wives,  in  order  to  maintain  an 
action  of  ejectment,  and  that  even  if  the  marriages 
were  subsequent  to  the  American  Revolution,  such 
marriage  with  aliens  would  not  impair  the  rights  of 
the  wives,  nor  prevent  the  full  enjoyment  of  the 
property,  according  to  the  laws  of  the  marriage 
state;  especially  after  the  provision  contained  in 
the  9th  article  of  the  Treaty  of  Amity  and  Com- 
merce with  Great  Britain,  of  the  9th  November, 
1794. 

Id.  (Ib.)    636 

FORGERY— Johns.  2. 

Forging  the  following  order:  "Sir,  the  bearer, 
Mr.  Richardson,  being  our  particular  friend,  having 
occasion  to  proceed  from  New  York  to  Philadel- 
phia, we  have  requested  him  to  call  on  you,  desiring 
you  to  accept  his  draft  on  us,  on  demand,  for  glo. 
Your  compliance  will  much  oblige,  Sir,  your  hum- 
ble servants,  Gibbs  &  Channing,  is  not  forging  an 
order  for  the  payment  of  money,  within  the  stat- 
ute. 

The  People  v.  Thompson,  (342)    537 

But  see,  by  a  subsequent  statute  (24  sess.,  ch.  54), 
by  which  it  is  delared  to  be  forgery. 

FRAUD— Johns.  1. 

1.  The  possession  of  an  insolvent  after  a  bonaflde 
assignment  of  all  his  property,  for  the  benefit  of  all 
his  creditors,  is  not  fraudulent,  when  continued  at 
the  request  of  the  assignees  and  for  their  benefit. 

Vredenbergh  v.  White  and  Stout,       (156)    281 

2.  Courts  of  law  and  equity  have  a  concurrent 
jurisdiction  in  matters  of  fraud ;  and  fraud  may  be 
set  up  as  a  defence  to  a  suit  at  law  brought  by  a 
merchant  against  his  factor  for   the   amount   of 
.goods  sold. 

Le  Guen  v.  Gouvemeur  &  Kemble, 
(In  error)  (436)    381 

FRAUDS,  STATUTE  OF— Johns.  2. 
Where  A  directed  B  his  servant  to  enter  a  certain 
meadow  which  he  said  belonged  to  him,  but  which, 
in  fact,  belonged  to  C,  and  promised  to  save  B  harm- 
less. &c.,  the  promise  was  held  to  be  an  original  un- 
dertaking, and  not  necessary  to  be  in  writing. 

Attaire  v.  Ouland,  (52)    435 


GIFT— Johns.  1. 

A  parol  gift  of  land  creates  only  a  tenancy  at 
will. 

Jackson,  ex  dem.  Van  Alen,  v.  Rogers, 

(33)    333 

GRANT— Johns.  3. 

A  tract  of  land  was  granted,  by  letters  patent,  to 
A  in  1735,  which  was  surveyed  and  laid  out  into 
lots.  In  1736  B  executed  leases  for  several  lots  to 
different  persons,  for  lives,  reserving  rent,  in  which 
he  asserted  his  claim  to  the  whole  tract,  and  exer- 
cised various  acts  of  ownership,  until  his  death,  in 
1752,  and  his  heirs  also  gave  leases  of  some  of  the 
lots,  in  1767,  and  his  title  and  that  of  his  heirs  con- 
tinued to  be  acknowledged  by  the  tenants,  and  re- 
mained undisputed,  until  1783.  In  an  action  of 
ejectment  brought  by  the  heirs  of  B  against  C,  who 
had  been  in  possession  since  1772,  it  was  held  that 
a  grant  from  the  original  patentees  to  B  was  to  be 
presumed ;  that  entry  by  him  into  part,  with  a  claim 
to  the  whole,  was  to  be  considered  as  an  entry  into 
the  whole ;  and  that  the  entry  of  C  was  in  subordi- 
nation to  the  title  of  B. 

Jackson,  ex  dem.  Gamevooj-t,  et  al. 
v.Lunn,  (109)    636 

COL.,  &  COL.  &  CAI.,  &  J.'s  CAS.  1,  2,  3. 


GUARANTY-Johns.  2. 

1.  Where  A  by  writing,  for  a  valuable  considera- 
tion, guarantied  the  payment  of  a  sum  of  money 
from  B  to  C  and  B  on  demand  refused  to  pay  at  the 
time,  and  C  gave  notice  of  the  failure  of  payment 
to  A  and  demanded  the  amount  of  him,  it  was  held 
that  the  demand  of  payment  of  B  and  refusal  by 
him,  and  notice  thereof  to  A,  were  sufficient  to  en- 
title C  to  recover  against  A  on  his  guaranty,  with- 
out a  previous  suit  against  B. 

Bank  of  New  York  v.  Livingston,       (409)    5O9 

2.  Where  A  gave  a  note  to  B  for  stock,  deliver- 
able on  the  1st  May,  1792,  and  C  having  guarantied 
the  performance  of  the  contract,  compounded  with 
B  in  March,  and  took  up  the  note,  and  afterwards 
brought  his  action  against  A  for  the  amount,   it 
was  held  that  C  had  a  right  to  settle  with  B  and 
take  up  the  note  before  it  was  due,  and  that  A  was 
bound  to  pay  him  the  amount  of  the  stock,  accord- 
ing to  its  value,  on  1st  May,  1792. 

Armstrong  &  Barnwall  v.  Gilchrist, 

(in  error),  (424)    564 

GUARDIAN— Johns.  3. 

In  an  action  of  debt  on  a  bond,  against  the  surety 
for  two  guardians,  appointed  by  the  Court  of  Chan- 
cery, conditioned  for  the  faithful  performance  of 
their  trusts,  where  one  of  the  guardians  died,  it  was 
held  that  the  trusts  survived,  and  that  the  surety 
was  responsible  for  the  acts  of  the  surviving  guard- 
ian, the  bond  being  co-extensive  with  the  trust. 

The  People  v.  Byron,  (53)    615 


HABEAS  CORPUS— Col.  and  Cai. 

1.  Whenever  right  or  justice  require  it,  a  suit  re- 
moved by  liabeas  corpus  may,  to  certain  intents,  be 
made  to  relate  to  the  suit  below,  but  not  to  it  as  the 
same  suit  technically  continued.         (39, 45)    4O,  8O 

2.  Plaintiff  cannot  be  non  proved  for  not  declaring 
in  the  court  above,  but  defendant  is  not  bound  to 
accept  a  declaration  after  two  terms  elapsed. 

(43,49)    41,81 

HABEAS  CORPUS— Johns.  1. 

1.  Where  a  cause  is  removed  by  a  habeas  corpus 
from  an  inferior  court,  the  plaintiff  need  not  pro- 
ceed until  the  bail  is  put  in,  and  if  he  does,  and  a 
procedento  be  awarded  for  want  of  bail,  no  costs 
will  be  allowed  the  plaintiff. 

Murray  v.  Smith,  (105)    259 

2.  A  habeas  corpus  to  bring  up  a  person,  stated  to 
be  a  soldier  enlisted  in  the  army  of  the  United 
States,  was  refused. 

Case  of  Husted,  a  soldier,  (136)    272 

HOMINE  REPLEGIANDO— Johns.  1. 
In  an  action  of  debt  on  a  recognizance,  given  in 
action  de  homine  replegiando,  that  the  plaintiff  who 
sued  out  the  writ  of  replevin,  "  should  prove  his 
liberty,"  &c.,  and  personally  appear  in  court  and 
prosecute  his  suit  to  effect,  the  plaintiff  suffered  a 
judgment  of  nonsuit,  and  then  surrendered  him- 
self to  the  defendant,  who  accepted  him,  and  the 
bail  paid  the  costs  of  suit;  and  it  was  held,  that  sub- 
mitting to  a  nonsuit  was  not  prosecuting  the  suit 
to  effect :  but  the  recognizance  was  forfeited,  and 
that  the  acceptance  of  the  plaintiff  by  the  defend- 
ant, did  not  discharge  the  defendant's  right  of  ac- 
tion on  the  recognizance. 

Covenhoven  v.  Seaman  et  al.,  (23)    227 

HOOSICK  PATENT— Johns.  3. 
The  boundaries  of  Hoosick  Patent  are  to  be  taken 
according  to  the  survey  and  map  made  for  the  par- 
tition thereof,  in  1754. 

Jackson,  ex  dem.  Gi/ord,  v.  Sherwood, 

(37)     430 


IMPARLANCE— Johns.  1. 

Where  there  are  several  actions  on  one  policy  of 
insurance,  the  court  will  grant  imparlances  in  all 
but  one,  until  the  plaintiff  consents  to  enter  into 
the  consolidation  rule,  which  is  the  same  as  the 
English  rule. 

Clason  and  Stanley  v.  Church,  (29)    229 

IMPROVEMENTS— Col.  and  Cai. 
Claims  for  the  value  of  improvements  under  the 
act  granting  relief  to  certain  persons  claiming  titles 
to  lands  in  the  counties  of  Cayuga  and  Onondaga, 
depend  on  the  report  of  the  circuit  judge. 

(370)     169 

76S 


GENERAL  INDEX. 


INDICTMENT-Johns.  2. 

1.  Where  a  person  had  been  convicted,  on  an  in- 
dictment for  an  assault  and  battery,  and  the  Attor- 
ney-General moved  for  judgment,  but  showed  no 
circumstances  attending  the  offense,  by  which  the 
court  could  judge  of  the  degree  of  punishment 
which  ought  to  be  inflicted,  a  mere  nominal  fine 
was  imposed. 

The  People  v.  Cochran,  (73)    443 

2.  The  Court  of  General  Sessions  of  the  Peace  has 
power  to  discharge  a  jury,  without  the  consent  of 
the  prisoner,  on  an  indictment  for  a  misdemeanor. 

The  People  v.  Denton,  (275)    513 

3.  Where  a  jury  could  not  agree  on  a  verdict, 
after  being  out  all  night  and  part  of  a  day,  and  the 
Court  of  Sessions  discharged  them,  without  the  con- 
sent of  the  party,  the  discharge  was   held  to  be 
proper,  and  the  prisoner  was  again  arraigned  on  the 
indictment,  for  the  same  offense. 

Id.  (Ib.)    513 

4.  A  and  B  were  indicted  for  a  conspiracy  to  de- 
fraud C.    B  was  acquitted,  and  the  jury  being  un- 
able to  agree  on  a  verdict  whether  A  was  guilty  or 
not,  the  court,  against  the  consent  of  A,  ordered  a 
juror  to  be  withdrawn,  and  the  jury  discharged.    It 
was  held  that  the  court  may,  in  their  discretion,  in 
a  criminal  case,  discharge  a  jury  who  are  unable  to 
agree  on  a    verdict,  against  the   consent   of   the 
prisoner,  who  may  be  brought  to  trial  a  second 
time  for  the  same  offense. 

The  People  v.  Olcott,  (301)    523 

INDICTMENT— Johns.  3. 

1.  Where  an  indictment  was  found  at  the  general 
sessions  of  the  peace  of  the  county  in  which  the  de- 
fendant was  convicted,  at  the  Oyer  and  Terminer, 
and  the  indictment  was  removed  into  this  court, 
with  a  caption,  stating  that  the  grand  jury  were 
sworn  and  charged,  omitting  the  words  "  then  and 
there,"  on  motion  in  arrest  of  judgment,  the  omis- 
sion of  those  words  was  held  fatal,  and  the  judg- 
ment arrested. 

The,  People  v.Guernsey,  (265)    691 

2.  In  an  indictment  for  forging  a  bill  of  exchange, 
or  bank  bill,  it  is  not  necessary  to  insert  the  marks, 
letters  or  figures  used  in  the  margin  of  the  bill,  for 
ornament,  or  the  more  easy  detection  of  forgeries, 
as  such  marks  or  cyphers  form  no  part  of  the  bill. 

The  People  v.  Franklin,  (399)    703 

INFANT— Col.  and  Cai. 

A  promissory  note  made  by  an  infant,  and  taken 
by  plaintiff  in  course  of  business,  cannot  be  enforced 
against  the  infant,  although  he  was  carrying  on 
trade  at  the  time  as  an  adult.  (508)  2O8 

INFANT— Johns.  1. 

1.  Though  an  infant,  at  the  time  of  executing  a 
bond,  fraudulently  alleged  that  he  was  of  full  age, 
yet  the  bond  was  held  to  be  void  at  law. 

Conroe  v.  Birdsall,  (127)    268 

2.  Whether  an  infant  can  be  disseised,  and  is  then 
bound  to  bring  his  action  within  ten  years  after 
coming  of  age?    Oiurre. 

Jackson,  ex  dem.  Rensselaer,  v.  WlMlnck, 

(213)    301 

INJUNCTION— Johns.  2. 
See  Chancery,  1,  2. 

INQUEST— Col.  and  Cai. 

1.  If  a  cause  is  called  on  in  its  order  on  the  day- 
docket,  and  an  inquest  taken  the  court  will  not  set 
it  aside  on  an  affidavit  of  merits.  (Iffi)    118 

2.  But  the  said  affidavit  is  sufficient  in  all  other 
cases.  (342)    161 

3.  When  the  court  will  set  an  inquest  aside. 

(414,  419,  424)     181,  183,  184 

4.  Inquest  before  the  sheriff  set  aside,  because  a 
bystander  was  allowed  to  mix  and  converse  with 
the  jury.  (441)    189 

5.  An  affidavit  to  set  aside  an  inquest  taken  at 
nisi  prius  must  state  that  the  defendant  has  a  de- 
fense, as  advised  by  counsel.  (449)    192 

6.  At  nisi  prlus  when  an  inquest  is  about  to  be 
taken,  counsel  must,  when  required,  state  whether 
they  have  a  defense  or  not.  (455)    193 

INQUIRY,  NOTICE  OF  EXECUTING  WRIT  OF- 

Col.  and  Cai. 

Notice  of  executing  writ  of  inquiry  may  be  given 
at  any  time  after  default  entered,  but  the  writ  must 
not  be  executed  before  interlocutory  judgment 
entered.  (374)  17O 


INQUISITION-Johns.  3. 

An  inquest  of  office  is  to  inform  the  conscience  of 
the  court ;  and  an  inquisition  will  not  be  set  aside, 
on  the  ground  of  the  admission  of  improper  evi- 
dence, unless  it  appears  that  injustice  has  been 
done. 

Ward  v.  Haight,  (80)    625 

INSOLVENT  DEBTOR-Johns.  1. 

See  Debtors,  insolvent. 

INSOLVENT    DEBTOR-Johns.  3. 

1.  Where  a  judgment  of  non  pros,  on  a  certiorarf 
from  a  justice's  court,  was  obtained   in  October 
term,  and  the  plaintiff  in  error  was  afterwards,  on 
the  7th  November,  discharged,  under  the  Insolvent 
Act,  it  was  held,  that  the  judgment  for  costs,  in 
October   Term,  constituted  a  debt  liquidated,  or 
capable  of  liquidation,  at  that  time,  and  was  dis- 
charged by  the  certificate. 

Thomas  v.  Striker,  (90)    628 

2.  Where  an  insolvent  debtor  omitted  to  insert,  in 
the  inventory  of  debts  due  to  him,  a  claim  on  the 
United  States,  for  services  performed  during  the 
war,  for  which  claim  he  received  a  compensation 
after  his  discharge,  it  was  held  that  the  conceal- 
ment was  fraudulent,  and  his  discharge  void. 

Duncan  v.  Duboys,  (125)    641 

INSURANCE— Col.  and  Cai. 

Where  insurance  is  made  on  part  of  a  cargo  war- 
ranted free  from  contraband,  and  part  of  the  car- 
go uninsured  was  contraband,  to  the  knowledge 
of  the  insurer,  and  the  vessel  being  condemned  on 
account  of  the  contraband  goods,  the  plaintiff  shall 
recover  as  for  a  total  loss.  (309)  157 

INSURANCE— Johns.  1. 

1.  In  an  action  on  a  policy  of  insurance  from 
New  York  to  the  Havanna,  on  all  lawful  goods,  it 
was  held,  that  articles  contraband  of  war  were  law- 
ful goods,  within  the  meaning  of  the  policy ;  that 
goods  not  prohibited  by  the  laws  of  the  country  to 
which  the  vessel  belongs,  are  lawful. 

Seton,  Maitland  &  Co.  v.  Low.  (1)    21» 

2.  Where    goods    were  wan-anted   American   or 
neutral  property,  it  was  held,  that  the  sentence  of 
the  admiralty  court  of  a  belligerent,  condemning 
the  goods  as  lawful  prize  to  the  captors,  was  con- 
clusive evidence  as  to  the  character  of  the  property 
and  of  a  breach  of  the  warranty. 

Liuttow  <&  Ludlow  v.  Dale,  (16)    224 

But  see  contra,  the  case  of  Vandenheuvel  v. 
The  United  Insurance  Company,  reversed  in  the 
Court  of  Errors,  February,  1802. 

3.  In  an  action  on  an  open  policy  of  insurance  on 
goods,  at  and  from  Havanna  to  New  York,  the  in- 
sured recovered  for  a  total  loss ;  and  it  was  held, 
that  the  plaintiffs  were  entitled  to  recover  the  in- 
voice price  of  the  goods,  without  deducting  the 
drawback  allowed  on  exportation. 

Oahn  &  Mumford  v.  Broome,  (120)    266 

4.  A  policy  of  insurance  against  the  risk  from 
illicit  trade  is  valid,though  it  would  be  void  if  it  in- 
tended to  protect  a  trade  prohibited  qy  our  laws. 

Gardner  v.  Smith,  (141)    276 

5.  A  policy  on  goods  "until  24  hours  after  they 
are  landed,    continues  until  24  hours  after  all  the 
goods  are  landed. 

Id.  (Ib.)    276 

6.  After  an  abandonment,  the  consignee  of  the 
goods  insured  becomes  the  agent  of  the  insurer, 
and  his  acts,  if  done  in  good  faith,  are  at  the  risk 
and  for  the  benefit  of  the  insurer. 

Id.  (Ib.)    276 

Id.  »  (Ib.)    373 

7.  Where  the  goods  saved  do  not  amount  to  half 
the  value  of  the  goods  insured,  the  insured  may 
abandon  as  for  a  total  loss. 

Id.  (Ib.)    373 

8.  The  insured  may  abandon,  on  receiving   in- 
formation of  the  capture  of  a  vessel ;  and  though  it 
should  appear,  afterwards  that  the  vessel  was  re- 
stored at  the  time  of  the  abandonment,  but  un- 
known to  the  insured,  yet  the  abandonment  will  be 
valid. 

Mumford  v.  Church,  (147)    278 

S.  P.,  Slocum  &  Burling  v.  The  United 
Insurance  Company,  (151)    28O 

9.  An  abandonment,  when  once  properly  made,  is 
definitive,  and  fixes  the  rights  of  the  parties. 

Id.  (Ib.)    280 

But  see  Church  v.  Bedient,  and  Peyton  v.  Hallett, 
1  Caines'  Cases  in  Error,  p.  21-43,  contra. 

10.  Goods  were  insured  on  board  of  a  vessel  on  a 
voyage  "  from  Wilmington,  N.  C.,  to  Falmouth,and 

COL.  &  COL.  &  CAI.,  &  J.'s  CAS.  1,  2,  3 


GENERAL  INDEX. 


xxi 


at  and  from  thence  to  a  port  of  discharge  in  Great 
Britain."  The  vessel  sailed  from  Wilmington  with 
a  crew  consisting  of  ten  persons,  and  with  the 
avowed  intention  of  touching  at  the  Hook,  off  New 
York,  to  procure  seamen ;  and  she  foundered  in  a 
gale  of  wind  before  she  arrived  at  the  dividing 
point  between  a  direct  course  to  Falmouth  and  a 
direct  course  to  New  York :  It  was  held  that  a  ves- 
sel must  not  only  be  sea-worthy,  but  must  be  duly 
equipped  and  manned  with  a  competent  crew,  for 
the  voyage  insured;  and  that  in  this  case  the  inten- 
tion to  stop  at  New  York  for  seamen  was  sufficient 
evidence,  either  that  the  crew  was  not  competent 
or  that  they  were  not  engaged  for  the  voyage  in- 
sured. 

Sttva  v.  Low.  (18*)    291 

11.  Whether  the  voyage  on  which  the  vessel  ac- 
tually sailed,  in  the  above  case,  was  distinct  or  dif- 
ferent from  the  voyage  insured?  Qucere. 

Id.  (Ib.)    291 

12.  Where  the  policy  of  insurance  contains  the 
usual  warranty,     that  corn,  &c.,  shall  be  free  from 
average  under  7  per  cent,  unless  general,  the  in- 
sured can  only  recover  for  a  general  average,  or 
for  an  actual,  as  distinguished  from   a  technical 
loss. 

Le  Roil,  Bayard  &  3T  .Brers  v.  Gouver- 

neiir,  (236)    3O6 

13.  A  ship  was  insured  from  New  York  to  the 
East  Indies,  and  was  compelled  in  consequence  of  a 
storm  to  put  into  Martinque  for  repairs,  and  the 
cargo,  consisting  chiefly  of  claret  and  porter,  was 
unladen,  and  though  undamaged,  it  was  sold,  be- 
cause from  the  heat  of  the  climate,  and  its  exposure 
on  the  beach,  it  was  in  great  danger  of  spoiling ; 
and  the  voyage  was  broken  up.    The  vessel  might 
have  been  repaired  for  less  than  half  its  value,  so 
as  to  have  been  competent  to  perform  the  voyage, 
and  was  so  repaired  as  to  return  to  New  York.    It 
was   held,  that  the  loss  of  the  voyage,  in  conse- 
quence of  the  necessity  of  selling  the  outward  cargo 
at  Martinque,  did  not  entitle  the  insured  to  recover 
for  a  total  loss,  on  the  policy  of  the  ship. 

Gold  v.  Shaw,  (363)    33O 

14.  Where  a  policy  becomes  void  by  a  failure  of 
the  warranty,  the  insured  is  entitled  to  a  return  of 
the  premium,  if  there  be  no  fraud. 

Delavigne  v.  The  United  Insurance 
Company,  (310)    335 

15.  The  insured  are  not  bound  to  abandon  in  case 
of  an  accident,  but  may  wait  the  final  event,  and 
recover  accordingly,  for  a  total  or  a  partial  loss,  as 
the  case  may  be. 

Earl  v.Shaw,  (313)    3O1 

16.  It  is  sufficient  if  there  be  a  loss  continuing  to 
the  time  when  the  abandonment  is  made. 

Id.  (Ib.)    301 

17.  If  a  policy  be  assigned  by  the  insured  to  a 
third  person,  before  the  vessel  sails  on  her  voyage, 
it  is  not  necessary  that  the  insurer  should  have  no- 
tice of  the  assignment. 

Id.  (Ib.)    301 

18.  Where  a  vessel  stayed  in  port  six  months  after 
the  date  of  the  policy,  it  was  held  not  to  be  a  devia- 
tion, it  not  being  fraudulent  or  varying  the  risk. 

Id.  (Ib.)    301 

19.  The  date  of  a  policy  is  not  conclusive  evidence 
of  the  time  of  its  actual  subscription. 

Id.  (Ib.)    301 

30.  Where  a   policy   contains   a   written  clause, 
"against  all  risks,"  it  was  held  to  protect  the  in- 
sured against  every  loss  happening  during  the  voy- 
age, except  such  as  might  arise  from  his  own  acts. 
Goixv.Knox,  (337)    345 

21.  If  a  vessel  is  described  in  a  policy  of  insurance 
as  an  "American  ship,"  it  is  an  implied  warranty 
that  she  is  American. 

Grrixv.  Low,  (341)    346 

33.  A  sentence  of  a  foreign  court  of  admiralty, 
condemning  a  vessel  as  good  and  lawful  prize.with- 
out  assigning  any  reason,  is  to  be  considered  as  pro- 
ceeding on  the  ground  of  its  being  enemy's  pro- 
perty. 

Id.  (Ib.)    346 

23.  Such  a  sentence  is  conclusive  evidence  of  a 
breach  of  warranty  of  neutral  property. 

Id.  (Ib.)    346 

But  see  contra,  Vandenheuvel  v.  The  United 
Insurance  Company,  in  the  Court  of  Error,  post. 

34.  Quaere,  if  the  negligence  of  the  assured,  in  not 
having  proper  documents  on  board,  or  having  con- 
tradictory papers,  in  consequence  of  which  the  ship 
is  taken  out  of  her  course,  amounts  to  a  deviation? 
Queer  e. 

Id.  (Ib.)    346 

25.  A  warranty  of  neutral  property  is  to  be  con- 

COL.,  &  COL.  &  CAT.,  &  J.'s  CAS.  1,  2,  3. 


strued  in  reference  to  the  belligerent  parties,  and 
to  the  law  of  nations. 

Duguet  v.  Rhtnelander,  et  al.,  (360)    353 

36.  A   Frenchman  who  migrates  to  the   United 
States,  flagrante   beUo,  and    becomes  naturalized, 
though  he  thereby  acquires  the  privilege  of  a  citi- 
zen of  the  United  States,  is  still  to  be  considered  a 
French  subject,  in  regard  to  France  and  Great  Bri- 
tain who  are  at  war. 

Id.  (Hi.)    353 

See  contra,  S.  C.,  in  the  Court  of  Error,  where  this 
judgment  was  reversed,  in  1801. 

37.  Goods  were  insured  from  New  York  to  two 
ports  in  the  island  of  Cuba,  and  "warranted  Ameri- 
can property  proof  to  be  made  in  New  York."   The 
goods  belonged  to  two  native  American  merchants, 
in  New  York,  and  a  native  American  who  resided 
at  the  Havanna,  in  quality  of  a  counsel  of   the 
United  States,  and  who  were  joint  owners  of  the 
ship,  and  partners  in  the  adventure.    The  vessel 
and  cargo  were  captured  by  the  British,  and  the 
goods  condemned  as  Spanish  property.    In  an  ac- 
tion on  the  policy,  it  was  held  that  there  was  a 
breach  of  the  warranty ;  that  a  consul  of  a  neutral 
State,  residing  in  a  belligerent  country,  and  carrying 
on  trade  as  a  merchant,  is  to  be  considered  as  domi- 
ciled in  that  country ;  and  if  connected  with  neutral 
merchants  as  a  partner  in  trade,  his  property  will 
be  subject  to  capture  and  condemnation  by  a  bel- 
ligerent, as  enemy's  property. 

Arnold  &  Ramsay  v.  The  United  In- 
surance Company,  (363)    354 

38.  Where  a  ship  is  abandoned  to  the  insurer,  who 
accepts  the  abandonment,  and  the  voyage  is,  after-  . 
wards,  performed,  and  freight  earned,  the  insurer 
is  entitled  to  the  freight  earned  subsequent  to  the 
time  of  abandonment,  or  pro  rata. 

The  United  Insurance  Company  v.  Lenox, 

'     (337)    345 

29.  If  a  vessel  is  represented  as  out  "  about  nine 
weeks,"  when  she,  in  fact,  was  out  ten  weeks  and 
four  days,  it  is  not  a  material  misrepresentation, 
provided  that  period  be  within  the  usual  time  of  the 
voyage ;  and  whether  it  be  so  or  not,  is  a  fact  for  a 
jury  to  determine. 

Mackey  v.  Rhinelander,  (408)    37O 

30.  An  agent  of  the  insured,  who  applies  to  the 
broker  to  get  the  insurance  effected,  is  a  competent 
witness.    Id.  (Ib.)    37O 

See  Imparlance. 

INSURANCE- Johns.  2. 

1.  Goods  were  insured  from  New  York  to  Havre, 
and  a  separate  policy  was  made  on  the  profits.  The 
vessel  was  captured  and  carried  into  London,  and 
the  goods  libeled  there.  Five  eighths  of  the  goods 
were  restored  to  the  owner,  who  received  and  ap- 
propriated them  to  his  own  use.  The  insured  aban- 
doned to  the  insurers  on  the  policy  on  the  profits  as 
for  a  total  loss.  The  insured  claimed  and  received 
an  average  loss  of  three  eighths  only  on  the  goods. 
It  was  held  that  the  insured  were  entitled  only  to  a 
partial  loss  of  three  eighths  on  the  profits. 

Loomis  &  Tttlinghast  r.  Shaiv,  (36)    43O 

3.  In  an  action  on  a  policy  of  insurance  on  all 
lawful  goods,  &c.,  against  all  risks,  it  was  held  that 
the  insurance  covered  all  goods  lawful  to  be  ex- 
ported from  the  United  States,  though  contraband 
of  war,  and  owned  by  a  subject  of  one  of  the  bellig- 
erents. 

Skidmore  v.  Desdottt/,  (77)    442 

3.  Articles  contraband  of  war  are  "lawful  goods" 
within  the  meaning  of  those  words  in  a  policy  of 
insurance.    Goods  not  prohibited  by  the  laws  of 
the  country  to  which  the  vessel  belongs,  are  lawful 
goods,  and  the  insured  are  not  bound  to  disclose  to 
the  insurer  that  the  goods  are  contraband  of  war. 

Juhelv.  Rhinelander,  (120)    459 

S.  C.  affirmed  in  the  Court  of  Errors,  in  1802. 

(487)    587 

4.  In' an  action  on  a  policy  of  insurance,  contain- 
ing a  warranty  of  American  property,  it  was  held 
that  the  sentence  of  a  foreign  court  of  admiralty, 
condemning  the  property  as  lawful  prize,  is  not 
conclusive  evidence  of  the  character  of  the  prop- 
erty, and  of  the  breach  of  warranty. 

Vandenheur-el  v.  The  United  Insurant* 

Company,  (in  error),  (452)    575 

5.  C.    In  the  Supreme  Court,  (127)    168 

5.  If  a  vessel  be  described  in  a  policy  of  insur- 
ance as  an  American  ship,  it  is  a  warranty  that  she 
is  American. 

Murray  v.  The  United  Imurance  Com- 
pany, (168)    476 

6.  Where  an  American  vessel  was  transferred  to 
A  in  trust,  to  secure  a  debt  due  to  B,  who  was  a 

7G7 


GENERAL  INDEX. 


British  subject,  it  was  held  that  B  being:  the  cestui 
qua  trust  of  the  profits  of  the  vessel,  and  a  subject 
of  one  of  the  belligerents,  the  vessel  ceased  to  be 
neutral ;  and  the  fact  of  the  transfer  in  trust,  not 
being  communicated  to  the  insurers,  the  policy  was 
void,  and  the  insured  entitled  only  to  a  return  of 
premium. 

Murray  v.  U.  S.  Ins.  Co.,  (168)    476 

7.  Where  a  policy  of  insurance  contained  the  fol- 
lowing clause :    "It  is  also  agreed  that  the  property 
be  warranted  by  the  assured,  free  from  any  charge, 
damage,  or  loss,  which  may  arise  in  consequence  of 
seizure  or  detention,  for  or  on  account  of  any  illicit 
or  prohibited  trade,  or  trade  in  articles  contraband 
of  war;"  and  the  vessel  and  cargo  having  been 
captured,  part  of  the  cargo,  consisting  of  tin  in 
blocks  and  plates,  was  condemned  as  contraband  of 
war,  it  was  held  that  to  constitute  a  breach  of  the 
warranty,  there  must  be  an  illicit  or  prohibited 
trade  in  fact  existing,  and  it  is  not  sufficient  that 
there  has  been  a  condemnation  under  pretext  of 
such  a  trade. 

Laing  v.  The  United  Insurance 

Company  (in  error),  (487)    587 

S.  C.    In  the  Supreme  Court,  (174)    478 

S.  P.    Johnston  &  Weirv.  Ludlow  (in 

error),  (481)    585 

8.  The  sentence  of  a  foreign  court  of  admiralty  is 
only  prima  facie  evidence  of  any  fact,  and  will  have 
no  effect,  if  sufficient  appears  in  the  sentence  to  re- 
but the  presumption  of  the  .existence  of  such  fact. 

Id.  (585) 

9.  A  vessel  was  insured  from  New  York  to  Am- 
sterdam, and  at  the  time  of  her  sailing  from  New 
York,  it  was  not  known  that  the  Texel  was  block- 
aded by  the  British.    The  master,  during1  the  voy- 
age, put  into  Cuxhaven,  and  was  there  informed 
that  Amsterdam  was   blockaded:    but   supposing 
that  he  should  not  be  captured  for  the  first  attempt 
to  enter,  sailed  from  Cuxhaven  with  the  intention 
of  entering  Amsterdam,  and  on  his  way  the  vessel 
was  captured  by  a  British  cruiser,  carried  into  Eng- 
land, and  condemned  for  attempting  to  go  to  a 
blockaded  port.    It  was  held,  that  sailing  for  a  port 
understood  to  be  blockaded,  with  intention  to  enter, 
was  not  a  breach  of  neutrality  so  as  to  affect  the 
policy  of  insurance. 

Vos  &  Graves  v.  The  United  Insurance 

Company  (in  error),  (469)    581 

3.  C.    In  the  Supreme  Court,  (180)    480 

10.  A  vessel  belonging  to  A.  who  was  a  natural-born 
citizen  of  the  United  States,  was  insured,  by  a  policy 
dated  the  1st  November,  1796,  from  New  York  to 
London,  and  was  warranted  American  property. 
Before  the  vessel  actually  sailed  on  the  voyage  in- 
sured, viz.,  on  the  27th  April,  1797,  A  sold  and  trans- 
ferred the  vessel  to  B,  a  native  of  Great  Britain, 
who  had  emigrated  to  New  York,  and  become  a 
naturalized  citizen  of  the  United  States,  on  the  6th 
April,  1797.    The  vessel  was  captured  by  the  French 
and  condemned  as  good  prize.    It  was  held,  in  an 
action  on  the  policy,  that  B  was  to  be  considered  as 
having  emigrated  flagrante  bctto,  and  a  British  sub- 
ject, so  as  to  justify  the  condemnation  ;  and  that  A 
having,  by  his  own  act,  before  the  commencement 
of  the  risk,  changed  the  property  from  neutral  to 
belligerent,  there  was  a  breach  of  the  warranty, 
and  he  could  not  recover  on  the  policy. 

Jackson  v.  The  New  York  Insurance 

Company,  (191)    484 

But  see  Duyuet  v.  Rhinelander  et  al.  (in 

error)— contra,  (476)    583 

11.  It  is  an  implied  warranty  in  every  contract  of 
insurance,  whether  on  a  vessel  or  goods,  that  the 
vessel  is  seaworthy,  and  competent  to  perform  the 
voyage  ;  and  it  makes  no  difference,  though  the  ves- 
sel was  surveyed  before  she  sailed,  and  pronounced 

.  by  carpenters  to  be  competent,  if  she  proves,  in  the 
course  of  the  voyage,  not  to  have  been  seaworthy. 
Warren  v.  The  United  Insurance 

Company,  (231)    498 

12.  An  adjustment  of  a  loss  indorsed  on  a  policy 
of  insurance,  and  signed  by  the  insurer,  is  not  con- 
clusive, and  the  party  may  show  that  it  was  made 
on   the    misrepresentation    of   the    insured ;   and 
whether  such  misrepresentation   proceeded  from 
mistake  or  design  makes  no  difference. 

Fauffter  v.  HaUett,  (233)    499 

13.  A  policy  of  insurance  contained  a  memoran- 
dum "that  salt,  &c.,  and  all  articles  that  are  perish- 
able in  their  own  nature,  are  warranted  by  the  as- 
sured, free  from  average  unless  general,  &c.,  and 
sugar,  &c.,  skins,  hides,  and  tobacco  are  warranted 
free  from  average,  under  seven  per  cent,  unless 
general."    A  quantity  of  deer  skins,  part  of  the 
cargo,  were  damaged,  by  which  a  loss  of  ten  per 

768 


cent,  was  occasioned  on  the  cargo,  it  was  held 
that  the  deer  skins  were  not  comprehended  under 
the  general  words  of  the  memorandum,  as  to  arti- 
cles perishable  in  their  own  nature,  but  under  the 
clause  relative  to  skins  and  hides,  and  that  the  in- 
sured were,  therefore,  entitled  to  recover. 
Bakewell  v.  The  United  Insurance 

Company.  (246)    503 

14.  Where  a  vessel  was  insured,  excepting  against 
French  risks,  and  was  captured  by  a  French  priva- 
teer, and  after  being  detained  four  days,  was  re- 
captured by  a  British  frigate,  and  condemned  as 
French  property ;  it  was  held  that  the  insured  couid 
not  recover. 

Roget  v.  Thurston,  (248)    504 

15.  An  insurance  on  the  vessel  will  not  cover  a 
bottomry  interest,  unless  it  is  expressly  mentioned 
in  the  policy. 

Robertson  &  Brown  v.  The  United  In- 
surance Company,  (250)    5O5 

16.  A  clause  of  sale  m  a  bottomry  bond  does  not 
destroy  its  character  or  operation. 

(IT).)    505 

17.  A  capture  by  a  friend,  or  the  carrying  into 
port  of  a  neutral,  by  a  belligerent  for  adjudication, 
as  contradistinguished  from  a  capture  by  an  enemy, 
is  equally  a  ground  of  abandonment  by  the  insured. 

Murray  et  al.  v.  The  United  Insur- 
ance Company,  (263)  509 
18»  Such  a  capture  is  prima  facie  evidence  of  a 
total  loss,  and  the  insured  may  abandon  imme- 
diately on  receiving  intelligence  thereof;  and 
though  the  vessel  may  have  been  restored  at  the 
time  of  the  abandonment,  yet  if  the  insured  had  no 
knowledge  of  the  fact  at  the  time,  it  will  not  affect 
his  right  to  recover ;  but  a  knowledge  of  the  resto- 
ration may  be  persumed  from  the  lapse  of  time  and 
distance  between  places,  in  reference  to  the  ordi- 
nary course  of  intelligence. 

Id.  (lb.)    509 

19.  Where  dried  fish  were  enumerated  among  the 
articles  in  the  memorandum  to  a  policy  of  insur- 
ance, as  free  from  average  unless  general,  as  also 
"all  other  articles  perishable  in  their  own  nature," 
it  was  held  that  pickled  fish   were  not  included 
within  the  memorandum,  and  that  the   plaintiff 
might  recover  for  an  average  loss  on  them. 

Baiter  v.  Ludlmv,  (289)    519 

20.  Insurance  on  goods  at  and  from  New  York  to 
Bara£oa,  with  liberty  to  touch  at  one  or  two  ports 
on  the  north  side  of  Cuba ;  the  adventure  to  con- 
tinue until  the  goods  are  safely  landed  at  Bara§oa, 
and  one  or  two  ports  on  the  north  side  of  Cuba. 
The  vessel  arrived  at  Bara?oa  the  26th  June,  and 
staid  there  until  the  30th  October,  1799,  without 
being  able  to  sell  the  cargo,  except  a  small  part, 
and  without  selling  any  of  the  goods  of  the  insured; 
and  the  vessel  was  forcibly  entered  by  pirates,  who 
carried  away  $4,780  in  money,  and  a  great  quantity 
of  goods.    The  vessel  thereupon  set  sail  for  the 
Havana,  but  was  compelled  by  stress  of  weather 
and  want  of  provisions,  to  go  to  New  Providence, 
where  she  arrived  on  the  15th  December,  where  the 
goods  remaining  were  sold  for  $3,701  (the  invoice 
amount  of  the  cargo  being  $16,500),  and  the  voyage 
was  broken  up,  and  an  abandonment  made,  as  for 
a  total  loss.    It  was  held  that  the  stay  at  Baracoa 
did  not  amount  to  a  deviation ;  that  the  breaking 
bulk  there  did  not  put  an  end  to  the  voyage  at  that 
place ;  and  that  the  breaking  up  of  the  voyage  at 
New  Providence  was  justifiable,  and  a  sufficient 
ground  of  abandonment,  so  as  to  entitle  the  plaint- 
iff to  recover  for  a  total  loss. 

Gilfert  v.  Hallett  A  Bowne,  (296)    521 

21.  A,  the  master  of  a  vessel,  directed  B,  as  his 
agent,  to  get  his  commissions,  as  master,  insured ; 
and  C,  the  broker,  had  the  policy  effected  in  the 
name  of  B  on  the  commissions  of  the  master,  who 
was  named  in  the  policy,  and  the  agency  of  B  was 
known  to  the  broker.    A  total  loss  having  been  re- 

|  covered  on  the  policy,  by  the  broker,  A  brought  an 
i  action  against  him,  to  recover  the  amount  of  the 
I  money  received  ;  and  it  was  held  that  C  had  no  right 
j  to  retain  it  for  a  debt  due  to  him  from  B,  the  agent. 
Foster  v.Hoyt  A  Tom,  (327)  533 

22.  A  policy  of  insurance  was  effected  on  the  cargo 
of  a  ship  from  Calcutta  to  Baltimore,  by  A  as  the 

j  agent  of  B,  and  for  his  account.    The  policy  was  in 

I  the  name  of  A  generally,  for  $25,000,  as  interest 

j  might  appear.    The  cargo  belonged  to  B  and  four 

,  other  persons,  and  was  purchased  with  the  proceeds 

i  of  the  outward  cargo.    B  carried  on  trade  for  him- 

,  self,  and  was  unconnected  in  trade  with  the  other 

persons,  who  knew  nothing  of  the  insurance.    The 

proportion  of  the  return  cargo  belonging  to  B  in 

fact  amounted  only  to  about  813,000.    B  brought  an 

COL.,  &  COL.  &  CAI.,  &  J's.  CAS.  1,  2,  3. 


GENEKAL  INDEX. 


.action  against  the  insurers  for  a  return  of  pre- 
mium, for  the  difference  between  the  sum  sub- 
.scribed  and  the  amount  of  his  interest.  It  was  held 
that  B  and  the  four  other  persons  were  not  part- 
ners, and  that  B  was  entitled  to  a  return  of  pre- 
mium for  the  amount  of  his  interest  overvalued  in 
the  policy. 

Holmes  v.  The  United  Insurance 

Company,  (329)    533 

23.  A  having-  chartered  a  ship  to  bring  a  cargo 
from  the  Spanish  Main  to  New  York,  effected  a 
policy  of  insurance  on  the  profits,  valued  at  $12,000, 
no  other  proof  of  interest  to  be  required  but  the 
policy ;  and  if  the  goods  did  not  arrive,  the  insured 
was  to  recover  for  a  total  loss  :  and  the  goods  were 
warranted  free  from  average,  and  without  benefit  of 

^salvage  to  the  insurer.  The  vessel  finding  no  cargo 
.at  the  Spanish  Main,  returned  to  New  York,  in 
ballast,  without  any  goods;  and  A  brought  an 
action  against  the  insurer  for  a  return  of  premium. 
It  was  held  that  the  insurer,  having  run  the  risks 
enumerated  in  the  policy,  and  the  ship  returned  in 
;saf  ety,  A  was  not  entitled  to  a  return  of  the  pre- 
mium. 

Juhel  &  Delonguamere  v.  Church,       (333)    534 

24.  Where  a  ship  is  abandoned  to  the  insurer,  who 
.accepts  the  abandonment,  and  the  voyage  is  after- 
wards performed,  and  freight  earned,  the  insurer  is 
entitled  to  the  freight  earned  after  the  event  which 
was  the  cause  of  the  abandonment,  or  pro  rata. 

United  Insurance  Company  v.  Lenox, 

(443)    571 

25.  Where  a  subject  of  a  belligerent  State  emi- 
grates to  this  country,  flagrante  hello,  and  becomes 
naturalized,  such  naturalization  will  support  a  war- 
ranty of  neutral  property  in  a  policy  ot  insurance ; 
and  the  insured  need  not  disclose  to  the  insurer  the 
time  of  his  emigration. 

Duguet  v.  Rhinelander  et  al 

(in  error),  (476)    583 

26.  In  an  action  on  a  policy  of  insurance,  the 
words  "condemned  as  lawful  prize,"  in  the  sentence 
-of  a  court  of  admiralty,  afford  no  judicial  infer- 
ence that  the  vessel  was  enemy's  property;  and 
.such  sentences  are  not  conclusive  evidence  of  the 
fact. 

Goix  v.  Low  (in  error),  (480)    584 

27.  A  subject  of  Great  Britain,  domiciled  in  New 
York,  and  engaged  in  trade  with  the   enemy  of 
•Great  Britain,  is  considered  as   a   citizen   of   the 
United  States,  in  regard  to  such  trade,  which  is  not 
within  the  clause  in  the  policy  of  insurance,  by 
which  the  property  is  warranted  by  the  assured, 
free  from  any  charge,  &c.,  in  consequence  of  a 

.seizure  or  detention  for  or  on  account  of  any  illicit 
or  prohibited  trade. 

Johnson  &  Weir  v.  Ludlow  (in  error), 

(481)    585 

28.  In  an  action  on  a  policy  of  insurance,  a  sen- 
tence of  a  foreign  court  of  admiralty  is  only  prima 
facie  evidence  of  any  fact,  and  will  have  no  effect, 
if  sufficient  appears  in  the  sentence  to  rebut  the 
presumption  of  the  existence  of  such  fact. 

Id.  (Ib.)  585 

39.  To  constitute  a  breach  of  the  warranty  by  the 
assured  against  seizure  or  detention  on  account  of 
illicit  trade,  &c.,  there  must  be  an  illicit  or  pro- 
hibited trade,  in  fact,  existing.  It  is  not  suflicient 
that  there  has  been  a  condemnation,  under  pretext 
•of  such  trade. 

Id.  (Ib.)    585 

INSURANCE— Johns.  3. 

1.  A  policy  of  insurance  was  effected  on  goods, 
from  Philadelphia  to  Hamburg,  dated  the  29th 
May,  1798,  at  seventeen  and  one  half  per  cent.,  "  to 
return  fifteen  per  cent,  in  case  an  insurance  had 
been  effected  in  Europe."  It  also  contained  the 
following  printed  clause :  "  Provided,  that  if  the 
assured  shall  have  made  any  other  insurance  upon 
the  premises,  prior  in  date  to  this  policy,  then  the 
insurers  shall  be  answerable  only  for  so  much  as 
the  amount  of  such  prior  insurance  may  be  defi- 
cient, &c.,  and  shall  return  the  premium  on  so 
much  of  the  sum  assured  as  they  shall,  by  such 
prior  assurance,  be  exonerated  from ;  and  in  case 
•of  any  insurance  upon  the  premises,  subsequent  in 
date  to  this  policy,  the  insurer  shall  be  answerable 
for  the  full  sum  subscribed,  &c.,  and  be  entitled  to 
retain  the  premium,  in  the  same  manner  •  as  if  no 
such  subsequent  insurance  had  been  made."  In- 
surance was  also  effected  on  the  same  goods  at 
Hamburg,  the  19th  June,  1798.  It  was  held,  that 
according  to  the  true  construction  of  the  written 
and  printed  clauses,  the  insured  could  not  claim  a 
return  of  premium  on  account  of  the  insurance  at 

-COL.,  &  COL.  &  CAI.,  &  J's  CAS.  1,  2,  3.        N 


Hamburg ;  and  that  parol  evidence  to  show  that 
it  was  the  understanding  and  intention  of  the  par- 
ties that  the  policy  was  to  be  void  in  case  of  a 
double  insurance,  was  inadmissible. 

The  New  York  Insurance  Company 
v.  Thomas,  (1)    597 

2.  The  words  "at"  and  "from,"  in  a  policy  on 
goods,  means,  from  the  time  the  goods  are  laden  on 
board  the  vessel. 

Patrick  v.  Ludlow,  (10)    6OO 

3.  Insurance  from  Surinam  to  New  York.    The 
master  of  the  vessel  being  informed  that  French 
privateers  were  cruising  in  the  windward  passage, 
and  in  the  usual  route  from  Surinam,  determined 
to  take  the  leeward  passage,  and  touched  at  Deme- 
rara  to  take  the  protection  of  a  British  convoy  then 
about  to  sail;   but  a  few  hours   after  anchoring 
there,  was  driven  to  sea  in  a  gale  of  wind,  and  after- 
wards, continued  her  voyage,  without  convoy,  and 
was  captured  bv  a  French  privateer.    This  was  held 
not  to  be  a  deviation,  the  master  having  acted  bona 
fide,  and  with  the  sole  view  to  avoid  danger,  and  to 
seek  the  safest  course  to  New  York. 

Id.  (Ib.)    6OO 

4.  Insurance  on  horses  from  Liverpool  to  New 
York,    "against   all   risks,    including   the   risk  of 
death,  from  any  cause  whatever,  until  they  shall  be 
safely  landed."    About  three  days  before  the  ar- 
rival of  the  vessel  at  New  York,  she  met  with  a  vio- 
lent gale  of  wind  and  heavy  sea,  which  caused  her 
to  roll  very  much,  by  which  means  one  of   the 
horses  was  thrown  down  and  bruised,  in  conse- 
quence of  which  he  refused  to  eat,  and  died  in  three 
days  after  he  was  landed  in  New  York.    It  was 
held  that  the  horse  received  his  death  wound  by  the 
perils  of  the  sea,  and  that  the  plaintiff  was  entitled 
to  recover  the  full  value  of  the  horse. 

Coit  &  Woolsey  v.  Smith,  (16)    6O» 

5.  Insurance  on  a  vessel  from  New  York  to  Cura- 
§oa.     The  vessel  met  with  heavy  gales,  in  conse- 
quence of  which  she  sprung  a  leak  and  was  obliged 
to  have  her  mainmast  cut  away ;  and  after  much 
difficulty  arrived  at  Curacoa,  but  could  not  be  re- 
paired for   want   of   materials,    and,    if   repaired, 
would  not  have  been  worth  the  expense ;  it  being 
admitted  that  she  received  her  death-wound  during 
the  voyage ;  it  was  held,  that  the  insured  were  en- 
titled to  recover  for  a  total  loss. 

Stagg  <fc  Snell  v.  The  United  Insur- 
ance Company,  (34)    6O9 

6.  Where  the  insured  employed  a  factor  or  agent 
to  settle  with  the  insurers  for  a  total  loss,  and  an 
abandonment  was  duly  made,  and  the  agent,  after- 
wards, through  mistake  or  misapprehension  of  a 
letter  of  the  insured,  or  from  negligence,  adjusted 
the  claim  with  the  insurers,  as  an  average  loss,  at 
twenty  per  cent,  and  cancelled  the  policy ;  it  was 
held,  that  the  agent  was  responsible  for  the  whole 
amount,  being  considered  as  substituted  in  the  place 
of  the  insurers. 

Bundle  et  al.  v.  Moore  and  Pollock,      (36)    6O9 

7.  A  policy  on  profits  on  goods,  is  a  valid  policy ; 
and  the  insured  may  recover  a  total  or  an  average 
loss,  according  as  the  loss  on  the  goods  is  total  or 
partial. 

Abbot  v.  Sebor,  (39)    61O 

8.  It  seems  that  the  rule  by  which  to  ascertain 
whether  there  is  a  total  or  partial  loss  of  the  profits, 
is,  to  determine  whether  more  or  less  than  one  half 
in  value  of  the  subject  has  been  lost. 

Id.  (Ib.)    610 

9.  If  the  assured,  after  an  abandonment,  affirms 
the  purchase  of  a  ship  by  the  master,  for  the  benefit 
of  the  assured,  it  is  a  waiver  of  the  abandonment, 
and  he  is  entitled  to  recover  for  a  partial  loss  only. 

Id.  (Ib.)    610 

10.  Admiralty  surveys  as  to  seaworthiness  of  ves- 
sels, are  not  evidence  of  the  facts  stated  in  them. 

Id.  (Ib.)    610 

11.  A  ship  was  insured  from  Nantz,  in  France,  to 
the  United  States.    The  insured,  in  the  order  for  in- 
surance, represented  that  the  ship  was  French  built 
and  owned  by  American  citizens,  and  would  have 
on  board  the  original  bill  of  sale,  or  an  attested  copy 
of  it,  and  also  a  certificate  of  the  American  consul. 
During  the  voyage,  she  was  captured  by  a  British 
cruiser,  and  earned  into  Halifax,  and  condemned 
as  French  Property.    The  captain,  in  his  answers  to 
the  standing  interrogatories  in  the  Admiralty  Court, 
denied  all  knowledge  of  the  bill  of  sale,  and  stated 
that  the  certificate  of  ownership  and  log-book,  were 
the  only  papers  on  board  when  the  ship  left  Nantz, 
and  that  no  papers  had  been  destroyed  or  secured 
by  him,  except  the  certificate,  which  he  gave  up  to 
the  captors.    It  appeared  that  the  bill  of  sale  was,  in 
fact,  on  board,  and  afterwards  delivered  to  the  as- 

Y.  REP.,  BOOK  1.        49.  769 


XXIV 


GENERAL  INDEX. 


sured  by  the  master,  on  his  arrival  at  New  York. 
It  was  held,  that  merely  having-  the  bill  of  sale  on 
board,  was  not  a  substantial  compliance  with  the 
representation  of  the  assured,  unless  it  was  pro- 
duced, or  capable  of  being:  produced,  when  occasion 
required,  and  that  it  was  a  material  document,  es- 
sential to  the  protection  of  the  vessel,  and  neces- 
sary to  be  on  board  and  that  the  assured  were, 
therefore,  not  entitled  to  recover. 

Murray  et  al.  r.  Alanp  and  Ponteroy,    (47)    613 

12.  Where  a  vessel  was  seaworthy  at  the  time  she 
sailed,  and  on  the  morning1  of  the  next  day,  sudden- 
ly sprung-  a  leak  and  was  lost,  without  any  stress  of 
weather,  or  other  visible  cause  to  which  the  leak 
could  be  ascribed,  it  was  held  that  the  loss  was  to 
be    imputed  to   some  latent  and  inherent    defect 
in  the  vessel,  which  rendered  her  unseaworthy,  and 
for  which  the  insurer  was  not  liable. 

Patrick  v.  Hallett  &  Bmcne,  (76)    623 

13.  Insui  ance  on  freight,  from  New  York  to  Ha- 
vana.   The  vessel,  in  a  g-ale  of  wind,  was  stranded 
at  Sandy  Hook,  but  in  three  or  four  days  returned 
to  New  York,  and  the  cargo  which  was  unladen  and 
considerably  damag-ed,  was  also  brought  back  to 
New  York,  and  delivered  to  the  different  shippers. 
The  vessel  was  repaired  in  a  fortnight,  at  the  ex- 
pense of  about  $120,  and  the  plaintiff,  soon  after, 
sent  her  on  a  different  voyage.    It  was  held  that 
the  insured  had  no  right  to  recover,  as  he  oug-ht  to 
have  insisted  on  carrying  on  the  g-oods,  so  as  to  en- 
title himself  to  freight ;  and  having  lost  the  freig-ht 
by  his  negligence  or  folly,  the  insurers  were  not 
liable. 

Herbert  v.  Hallett,  (93)    631 

14.  If  the  ship  be  injured  by  the  perils  of  the  sea, 
but  capable  of  being  repaired  in  a  reasonable  time, 
the  owner  oug-ht  to  repair  her  and  continue  the 
voyag-e,  so  as  to  claim  his  freight.    If  the  ship  be  in 
a  capacity  to  proceed  on  her  voyage,  and  the  goods 
are   damaged,    the   owner   will  be  entitled  to  his 
freight  if  he  offers  to  carry  them  on,  unless  the 
goods  are  physically  destroyed. 

Id.  (Ib.)    631 

15.  Insurance  on  cargo,  at  and  from  Surinam  to 
a  port  of  discharge  in  the  United  States.    The  ves- 
sel was  captured  by  the  British,  and  carried  into 
Barbadoes,  and  there  condemned,  with  the  cargo, 
as  good  and  lawful  prize,  and,  on  the  ground  of  a 
circuitous  trade  between  Surinam  and  Amsterdam. 
It  was  held  that  the  decision  of   the   Admiralty 
Court,  not  being  conclusive,  there  was  not  sufficient 
evidence  to  warrant  the  condemnation,  and  that  the 
insured  were  entitled  to  recover  for  a  total  loss. 

Kemfile  &  Gouverneur  v.  Rhinelander 
etal.,  (130)    643 

16.  Even  if  a  neutral  could  not  lawfully  carry  on 
a  trade  between  the  mother  country  of  a  belligerent 
and  its  colonies,  which  was  not  allowed  to  such 
neutral  in  time  of  peace,  yet  the  penalty  of  forfeit- 
ure can  attach  only  during  the  existence  of  such 
unlawful  trade,  which  cannot  effect  or  vitiate  a 
subsequent  lawful  voyage. 

Id.  (Ib.)    643 

17.  Goods  were  insured,  in  1796,  from  Salem  to 
Europe,  and  from  thence  to  the  East  Indies,  and 
back  to  the  United  States,  with  liberty  to  touch, 
stay  and  trade,  at  any  ports  or  places  on  the  out- 
ward and  homeward  passag-es,  &c.    The  ship  sailed 
to  Bordeaux,  and  from  thence  she  went,  successive- 
ly, to  the  Isle  of  France,  Tranquebar,  Pondicherry 
and  Madras,  from  whence  she  returned  to  Pondi- 
cherry,  and  sailed  thence  to  the  Isle  of  France,  and 
from  thence  in  1797,  back  to  Calcutta,  and  from 
thence  home.    By  a  memorandum,  written  by  the 
insurers,  in  the  margin  of  the  policy,  in  March,  1798, 
it  was  agreed,  for  an  additional  premium  of  ten  per 
cent,  paid  by  the  insured,  the  ship  having-  returned 
to  the  Isle  of  France  from  Calcutta,  and  sailed  again 
to  the  coast  of  India,  that  the  same  should  not  prej- 
udice the  insured.    It  was  held  that  the  memoran- 
dum was  an  agreement  by  the  insurer,  and  not  a 
warranty  by  the  insured,  and  that  it  covered  all 

Erevious  deviations,  and  resumed  the  risk  from  the 
sle  of  France  back  to  the  East  Indies,  and  that  the 
insured  were  not,  therefore,  entitled  to  a  return  of 
the  additional  premium,  on  the  ground  of  a  mistake 
in  the  representation  as  to  the  actual  deviation 
which  had  taken  place,  and  which  might  not  be 
cured  by  the  memorandum. 

Crfrwningtthield  et  al.  v.  The  New  York 
Insurance  Company,  (142)    647 

18.  Insurance  on  a  vessel,  at  and  from  New  York 
to  Trinidad,  and  at  and  from  thence  to  St.  Thomas. 
The  ship  left  Trinidad,  in  ballast,  and,  while  in  her 
course   to  St.  Thomas,  she  was  captured   by  the 
French  and  recaptured  by  an  American  frigate,  and 

770 


carried  into  St.  Christopher's,  where,  by  an  agree- 
ment with  the  recaptors,  the  ship  was  appraised,, 
and  one  third  salvage  allowed.  The  captain  bor- 
rowed $1,030  on  bottomry,  and  paid  S600  for  salvage, 
and  $430  for  expenses  and  repairs.  The  ship  was 
valued  in  the  policy  at  $4,000.  The  merchants  of 
whom  the  captain  borrowed  the  money,  put  up  the 
ship  for  sale  at  auction,  for  the  benefit  of  all  con- 
cerned, and  she  was  struck  off  to  the  captain  at  her 
appraised  value,  for  the  benefit  of  all  concerned ; 
but  no  money  was  paid  by  him.  The  ship  sailed  to- 
St.  Thomas,  and  arrived  at  New  Vork  in  safety, 
where  the  insured  abandoned  for  a  total  loss.  It 
was  held  that  the  insured  had  no  right  to  abandon, 
and  that  the  insurer  was  liable  only  for  the  salvage 
and  expenses,  being  the  amount  of  the  bottomry 
bond. 

Parage  v.  Dale,  (156)    652 

19.  Insurance   on  the  cargo  of  a  Prussian  ship 
from  New  York  to  St.  Andero,  in  Spain.    The  order 
for  insurance  mentioned  that  the  ship  would  have 
a  clearance  for  Hamburg.    In  an  action  on  the  pol- 
icy the  only  evidence  given  on  the  trial  was  the  bill 
of  lading  and  the  protest  of  the  captain,  admitted 
by  consent.    The  former  stated,  thai  the  goods  were 
snipped  from  Hamburg,  on  account  of  persons  in 
Stettin ;  and  the  captain  stated  that  the  ship  sailed 
from  New  York,  bound  to  Hamburg,  and  that  she 
continued  in  such  intended  voyage,  until  being  off 
Cape  Ortegal,  and  meeting  with  contrary  winds,  he 
resolved  to  put  into  St.  Andero,  as  safer  than  to  at- 
tempt to  reach  Hamburg  at  that  season  ;  and  while 
proceeding  towards  St.  Andero,  the  ship  was  capt- 
ured by  the  British  and  carried  into  Guernsey.    On 
a  demurrer  to  this  evidence,  it  was  held  that  the 
vessel  sailed  on  a  voyage  to  Hamburg,  and  not  for 
St.  Andero,  and  that  the  policy  not  having  attached, 
the  plaintiff  could  not  recover,  but  was  entitled  to  a 
return  of  premium. 

Fnrhe*  et  al.  v.  Church,  (159)    653 

20.  Goods  laden  on  deck  are  not  covered  by  a  pol- 
icy on  goods  or  cargo,  unless  expressly  mentioned ; 
and  though  expressly  mentioned  in  the  policy,  yet, 
in  case  they  are  thrown  overboard  to  lighten  the 
vessel  in  a  storm,  and  for  the  preservation  of  the 
ship  and  cargo,  &c.,  they  are  not  to  be  brought  into 
general  average ;  but  the  ship's  boat,  making  part 
of  the  same  jettison,  was  held  to  be  general  average. 

Lennx  v.  The  United  Insurance  Com- 
pany, (178)    66O 

21 .  The  adjustment  of  general  average  in  the  port 
of  destination,  according  to  the  laws  of  a  foreign 
country,  is  not  conclusive  on  parties  who  have  en- 
tered into  a  contract  here,  who  are  governed  only 
by  the  law  of  this  State. 

Id.  (Ib.)    660 

22.  Where  the  expenses  of  repairs  of  a  vessel  are 
equal  to  half  her  value  or  more,  the  insured  may 
abandon  for  a  total  loss,  and  the  amount  is  to  be 
taken,  without  deducting  one  third,  ne.w    for  old, 
which  rule  applies  only  to  a  case  of  partial  loss. 

Dupuy  v.  United  Insurance  Co.,         (182)    662 
But  see  contra,  Smith  v.  Bell  et  al.  decided  in  the 
Court  of  Errors,  in  1805.    (2  Caines'  Cases  in  Error, 
153.) 

23.  The  rule  by  which  to  calculate  a  partial  loss, 
in  a  case  of  a  policy  of  insurance  on  goods,  arising 
from   sea-damage,  is  the  difference  between  the 
gross  proceeds  of  the  sound  and  damaged  ;  that  is, 
a   proportion  of  the  prime  cost  of  the  damaged 
goods  corresponding  to  the  proportion  of  the  dimi- 
nution of  the  gross  proceeds  thereof. 

Laurence  v.  The  New  York  Insurance 
Company.  (217)    675 

24.  The  insurer  on  goods  has  nothing  to  do  with 
the  fluctuation  of  the  market,  or  the  freight  or  du- 
ties and  port  charges  on  the  goods,  after  their  ar- 
rival at  the  port  of  destination, 

Id,  (Ib.)    675 

25.  A  policy  of  insurance  on  goods  contained  a 
clause,  that  the  loss  was  to  be  paid   "  thirty  days 
after  proof  thereof."    The  property  having  been 
captured,  the  insured  abandoned,  and  as  proof  of 
the  loss  and  interest,  laid  before  the  insurers  the  pro- 
test of  the  master,  in  the  usual  form,  stating  the 
loss,  and  the  bill  of  lading  and  invoice.    This  was 
held  to  be  sufficient  preliminary  proof,  within  the 
meaning  of  the  policy,  to  entitle  the  plaintiff  to 
bring  his  action  after  the  expiration  of  the  thirty 
days.    Strict  technical  proof,  or  the  oath  of  the 
party,  or  of  witnesses,  is  not  requisite  in  such  case. 

Lenox  r.  The  United  Insurance  Com- 
pany, (224)    677 

26.  A  was  at  Trinidad,  in  Cuba,  where  he  received 
vessels  and  cargoes  consigned  to  him  by  B  and  C  of 
New  York,  and  in  which  A,  B  and  C  were  jointly 

COL.,  &  COL.  &  CAT.,  &  J's.  CAS.  1,  2,  3. 


GENERAL  INDEX. 


interested.  In  April,  1800,  A  purchased  a  prize  ves- 
sel, and  sent  her  with  a  small  cargo,  on  the  29th 
May,  to  the  Havana.  On  the  return  of  a  vessel  from 
Trinidad  to  New  York,  which  had  been  sent  out 
by  B  and  C  to  A,  B  was  informed  by  the  master 
that  A  had  purchased  a  prize  vessel,  called  The 
Chance,  and  that  she  was  to  come  to  New  York  with 
a  cargo ;  and  B,  without  receiving  any  information 
from  A  himself,  or  any  order  for  the  purpose,  on  the 
15th  June,  caused  the  vessel  and  cargo  to  be  insured 
at  and  from  Trinidad  to  New  York,  and  paid  the 
premium.  The  broker,  at  the  time  he  effected  the 
policy,  told  the  insurer  that  the  plaintiff  did  not 
know  whether  the  vessel  and  cargo  had  been  pur- 
chased for  A  or  B  or  C,  and  that  he  had  no  orders 
to  have  them  insured ;  but  that  A  had  the  funds  of 
B  and  C,  and  they  had  just  heard  the  vessel  was  com- 
ing to  New  York.  The  policy  was  effected  for 
account  of  A  or  C  or  B  and  C,  or  any  other  person, 
&c.,  in  the  usual  form.  The  vessel  not  coming  to 
New  York,  B  afterwards  brought  an  action  against 
the  insurers,  to  recover  back  the  premium ;  and  at  I 
the  trial,  A,  who  had  been  previously  released  by  B,  I 
was  admitted  as  a  witness,  and  testified  that  the  ves- 
sel and  cargo  were  his  sole  property,  and  were  pur- 
chased on  his  own  account,  and  that  neither  B  nor 
C  nor  any  other  person,  had  any  interest  in  them ; 
and  that  he  sent  them  to  the  Havana,  and  though 
he  wrote  to  B  and  C  in  May,  he  never  informed 
them  of  the  purchase,  or  ever  gave  any  orders  to 
them,  or  to  any  other  person,  to  have  the  vessel  in- 
sured in  New  York.  It  was  held  that  A,  under  the 
circumstances,  was  a  competent  witness;  that  B 
was  not  his  agent ;  and  that  the  supposed  interest 
of  B  being  a  mistake,  no  risk  was  run,  and  that  the 
plaintiff  was,  therefore,  entitled  to  a  return  of  pre- 
mium. 

Steinback  v.  Rhinelander  et  al.,  (269)  693 
27-  Insurance  on  goods  from  New  York  to  New 
Orleans,  and  at  and  from  thence  to  New  York.  On 
the  homeward  voyage  the  vessel  and  cargo  were 
captured,  and  the  insured  received  information  of 
the  capture  on  the  30th  December,  and  abandoned 
to  the  insurers  on  the  21st  January,  though  the 
property  was,  in  fact,  released  and  in  safety  on  the 
15th  January,  but  unknown  to  the  insured.  The 
abandonment  was  held  valid,  and  the  property  hav- 
ing arrived  at  the  port  of  New  York,  the  insured 
tendered  it  to  the  insurers,  who  refused  to  accept 
it,  and  it  was  put  in  store,  and,  sixty  days  after,  was 
sold  by  the  insured  for  the  benefit  of  the  insurers ; 
this  was  held  to  be  a  waiver  of  the  abandonment. 

Livingston  v.  Hastie  &  Patrick,  (293)    7O1 

INTEREST-Col.  and  Cai. 

1.  On  a  judgment  on  a  set.  fa.  against  bail  the  ! 
jury  may  give  interest  from  the  day  the  bail  became  j 
fixed,  that  is,  after  the  expiration  of  the  time  allowed  I 
ex  gratia  for  the  surrender.  (59,  65)    46,  86  | 

2.  Interest  not  allowed  where  delay  arises  from  j 
the  plaintiff's  own  act.  (403)    178 

INTEREST— Johns.  1. 

Where  the  cause  of  action  is  such  as  to  carry  in- 
terest, and  judgment  is  delayed  after  verdict,  by  a 
case  made,  the  plaintiff  is  entitled  to  interest  on  the 
amount  of  the  verdict,  to  the  time  of  taxing  costs, 
after  judgment ;  and  the  interest  is  to  be  taxed  with 
the  costs,  de  incremento. 

Vredenbergh  v.  Hattett  &  Bourne,         (27)    229 

INTEREST-Johns.  3. 

A  in  1789,  advanced  to  B,  a  merchant,  a  sum  of 
money,  in  consideration  of  which  B  engaged  that 
A  should  be  interested  in  certain  commercial  ad- 
ventures of  B  in  proportion  to  the  sum  advanced, 
and  promised  to  render  an  account  to  A  of  the  pro- 
ceeds, and  pay  to  him  his  proportion  thereof.  In 
September,  1794,  B  rendered  an  account  to  A,  and 
offered  to  come  to  a  settlement,  if  A  would  give  up 
the  written  engagement  of  B,  which  was  refused. 
A  died,  and  his  administrator,  in  1799,  filed  a  bill 
against  B  for  an  account,  &c.,  and  it  was  held  that 
A  was  entitled  to  recover,  not  only  the  principal  of 
the  balance  due  for  his  proportion  of  the  proceeds 
of  the  adventures,  but  interest  froi^  the  time  B  re- 
ceived the  money,  or,  at  least,  from  the  time  he 
offered  to  come  to  a  settlement,  in  September. 
Lynch  &  Stoughton  v.  De  Viar,  (in 

error.)  (303)    7O5 

IRREGULARITY— Col.  and  Cai. 
When  part  of  the  proceedings  in  a  suit  are  regu- 
lar, and  part  irregular  the  court  will  on  motion  set 
aside  those  only  that  are  irregular.  (146)    1O7 

COL.,  &  COL.  &  GAI.,  &  J's  CAS.  \,  2,  3. 


ISSUE  FROM  CHANCERY— Johns.  1. 

1.  The  chancellor,  though  he  has  power  to  award 
an  issue  at  law,  to  ascertain  the  truth  of  facts  which 
appear  doubtful  to  his  mind,  may,  nevertheless,  de- 
cide on  the  facts  himself,  according  to  his  discretion. 

Le  Guen  v.  Gauvemeur  &  Kemble,     (436)    381 

2.  On  an  affidavit  of  newly  discovered  evidence,  a 
new  trial  was  granted  on  an  issue  from  the  Court  of 
Chancery. 

Doe  v.  Roe,  (402)    368 

JAIL  LIBERTIES— Johns.  2. 

1.  A  bond  with  sureties  was  given  to  the  sheriff, 
by  a  prisoner  in  execution,  to  remain  a  faithful 
prisoner  within  the  liberties  of  the  prison.    The 
prisoner,  afterwards,  accidently  walked  sixteen  feet 
over  the  prescribed  limits,  which,  in  many  parts 
were  bounded  by  an  imaginary  line,  and  returned 
immediately  without  the  knowledge  of  the  sheriff, 
and  before  any  action  brought  against  him ;  it  was 
held  that  no  action  could  be  maintained  on  the 
bond,  which  was  given  for  the  indemnity  only  of 
the  sheriff ;  and  this  being  a  mere  voluntary  escape 
and  a  voluntary  return  before  action  brought,  the 
sheriff  could  not  be  damnified. 

Dole  v.  Moulton  et  al.  (205)    488 

2.  A  bond  taken  by  the  sheriff  from  a  prisoner  in 
execution,  for  his  convenience,  so  that  ne  may  go 
at  large  within  the  walls  of  the  prison,  and  condi- 
tioned that  he  shall  remain  a  true  and  faithful  pris- 
oner, is  not  void,  though  not  taken  in  the  manner 
directed  by  the  act  relative  to  jail  liberties,  it  not 
being  a  bond  for  ease  and  favor. 

Dole  v.  Bull  &  Porter,  (239)    501 

JAIL  LIBERTIES— Johns.  3. 

1.  The  prohibition  in  the  10th  section  of  the  1st 
article  of  the  Constitution  of  the   United  States, 
does  not  extend  to  the  municipal  regulations  of  the 
present  States,  which  modify  the  process  and  pro- 
ceedings relative  to  the  recovery  or  debts,  as  estab- 
lishing jail  liberties,  &c. 

Holmes  et  al.  v.  Lansing,  (73)    628 

2.  The  act  (sess.  24,  ch.  91)  as  to  jail  liberties,  is 
imperative  on  the  sheriff,  who  is  bound  to  grant  the 
liberties  to  the  prisoner,  on  his  tendering  a  sufficient 
bond;  but  as  this  bond  is  intended  only  for  the 
sheriff's  indemnity,  he  may  waive  it,  and  grant  the 
liberties,  without  taking  the  bond ;  and  he  will  not, 
therefore,  be  liable  for  an  escape. 

Id.  (Ib.)    622 

JUDGMENT— Col.  and  Cai. 

See  arrest  of  judgment.    Judgment  as  in  case  of 
nonsuit,  1.    Nonsuit. 

1.  When  cognovit  is  given,  judgment  may  be  entered 
in  vacation.  (312)    152 

2.  Judgment  entered  up  for  one  mill  set  aside, 
there  being  no  such  currency.  (431)    186 

JUDGMENT— Johns.  1.  • 

1.  A  judgment  is  no  lien  on  an  estate  for  years. 

Vredenbergh  v.  Morris,  (223)    3O5 

2.  A  judgment  or  decree  of  a  court  possessing 
competent  jurisdiction,  is  not  only  final  and  con- 
clusive as  to  the  subject  matter  thereby  determined 
but  as  to  every  other  matter  which  might  have  been 
litigated  in  the  cause,  and  which  the  parties  might 
have  had  decided;  and  if  a  party  to  a  suit  at  law  has 
knowledge  of  fraud,  or  other  matter  of  defence,  in 
time  to  avail  himself  of  it,  at  the  trial  at  law,  and 
neglects  to  do  so,  he  cannot  afterwards  obtain  relief 
in  a  Court  of  Equity,  against  the  judgment  at  law, 
on  the  ground  of  such  fraud,  or  matter  of  defence, 
which  he  might  have  set  up  at  the  trial,  but  is  for- 
ever concluded  by  the  judgment. 

Le  Ouen  v.  Gmiverneur  &  Kembte,  (in  error,) 

(436)    381 
JUDGMENT— Johns.  2. 

1.  A  judgment  is  not  within  the  words  of  the  stat- 
ate  against  usury. 

Wardell  v.  Eden,  (258)    508 

2.  The  proper  way  to  try  the  truth  of  an  allega- 
tion of  usury,  in  regard  to  a  judgment  entered  up 
on  a  bond  and  warrant  of  attorney,  is  to  let  the 
judgment  stand,  and  award  a  feigned  issue  to  try 
the  fact. 

Id.  (Ib.)    5O8 

3.  Where  the  plaintiff,  after  he  had  assigned  a 
judgment  to  a  third  person,  and  notice  given  to  the 
defendant  of  the  assignment,  entered  up  satisfac- 
tion on  the  record,  it  was  held  that  the  entry  of 
satisfaction  was  fraudulent  and  void,  and  the  court 
ordered  it  to  be  vacated 

Id.  (Ib.)    508 

771 


GENERAL  INDEX. 


4.  Where  the  defendant  alleged  payment  to  the 
plaintiff,  on  a  judgment  so  assigned  to  a  third  per- 
son, the  court  refused  to  award  an  issue  to  try  the 
truth  of  the  payment,  but  left  the  party  to  seek  his 
remedy  by  an  audita  querela;  though  the  court 
might,  if  they  had  thougnt  proper,  have  stayed  exe- 
cution on  the  judgment,  until  it  should  be  revived 
by  scire  facias,  or  by  action  of  debt,  when  the  de- 
fendant might  plead  the  payments. 

WardeU  v.Eden,  (258)    5O8 

5.  Where  there  is  color  for  the  allegation  that  a 
bond  on  which  a  judgment  has  been  entered  up  by 
virtue  of  a  warrant  of  attorney,  is  usurious,  the 
court  will  award  a  feigned  issue  to  try  the  fact. 

Gilbert  v.Eden,  (380)    515 

JURY,  STRUCK— Col.  and  Cal. 

1.  Where  the  motion  for  a  struck  jury  is  not  op- 
posed the  court  shall  be  satisfied  by  affidavit  of  the 
importance  or  intricacy  of  the  cause.         (340)    16O 

2.  The  affidavit  to  support  the  motion  for  a  struck 
Jury  must  specify  in  what  the  importance  and  in- 
tricacy consists.  (423)    184 

3.  if  there  is  no  opposition  these  requisites  are 
confessed.  (Ib.)    184 

4.  The  litigant  parties  do  not  make  the  cause  im- 
portant within  the  meaning  of  the  statute. 

(435)    188 
JURY— Johns.  2. 

1.  A  jury  may  be  discharged  without  the  consent 
of  the  prisoner,  on  an  indictment  for  a  misde- 
meanor. 

The  People  v.  Denton,  (275)    513 

2.  The  court  may,  in  their  discretion,  in  a  crimi- 
nal case,  discharge  a  jury  who  are  unable  to  agree 
on  a  verdict,  and  against  the  consent  of  the  prisoner, 
who  may  be  brought  to  trial  a  second  time  for  the 
same  offense. 

The  People  v.  OUott,  (301)    583 

See  Indictment,  4.    Conspiracy. 

JUDGE'S  ORDER— Johns.  1. 
See  Practice,  46. 

JUSTICES'  COURTS— Col.  and  Cai. 

1.  Justices'  courts  can  take  no  power  by  implica- 
tion, but  must  show  the  power  expressly  given  to 
them  in  every  instance.  (338)    16O 

2.  The  court  will  intend  liberally  in  favour  of 
their  proceedings.  (386)    173 

3.  Justices'  courts  have  no  jurisdiction  under  the 
joint  debtor  act.  (Ib.)    173 

4.  Justices'  courts  must  be  held  to?the  strict  limits 
of  their  jurisdiction.  (Ib.)    173 

JUSTICE'S  COURT— Johns. 

1.  Where  a  warrant  was  issued  by  a  justice  against 
two  joint  debtors,  and  one  only  was  taken,  and  the 
other  did  not  appear,  it  was  held,  that  the  justice 
could  not  proceed  to  give   judgment,  until  both 
defendants  were  brought  into  court. 

Jones  &  Crawford  v.  Reed,  (20)    825 

N.  B.   By  the  18th  section  of   the  Revised  Law, 

passed  the  7th  of  April,  1801,  justices  are  empowered 

to  give  judgment  against  joint  debtors,  where  one 

only  is  served  with  process. 

2.  In  an  action  before  a  justice,  the  plaintiff's 
declaration  may  contain  several  counts,  for  several 
causes  of  action,  for  $25  each,  if  they  do  not  in  the 
whole  amount  to  more  than  the  sum  of  8200,  and 
the  plaintiff  concludes  with  stating  his  damages  at 
825  only. 

Tuttle  v.  Maston,  (25)    228 

3.  A  justice  has  no  power  to  adjourn  a  cause  for  a 
longer  time  than  six  days,  without  the  consent  of 
parties. 

Palmer  v.  Green,  (101)    258 

4.  A  plea  in  abatement,  before  a  justice,  after  a 
plea  in  chief ,  is  a  nullity.    Id.  (Ib.)    258 

5.  A  justice  of  the  peace  has  no  jurisdiction  in 
actions  for  a  malicious  prosecution. 

Main  v.  Prosser,  (130)    27O 

6.  Justices  of  the  peace  have  no  jurisdiction,  in 
actions  by  or  against  executors  or  administrators. 

Wetls  v.  NewkirK ,  s  (228)    3O6 

7.  If  it  appears,  on  the  return  to  a  certiorari,  to  a 
justice  of  the  peace,  that  the  court  was  held  at  a 
different  place  from  that  mentioned  in  the  sum- 
mons, and  a  judgment  was  given  by  default,  it  is 

°T'Case  v.  Van  Ness,  (243)    312 

8.  The  plaintiff  declared  before  the  Justice  against 
the  defendant,  by  a  different  name  than  the  one 
mentioned  in  the  summons,  but  the  identity  of  the 
person  was  ascertained.    The  defendant  did  not  ap- 

772 


pear,  and  a  judgment  was  given  for  the  plaintiff  by 
default.  It  was  held,  that  it  was  too  late,  after- 
wards, to  object  to  the  variance,  but  that  the  de- 
fendant should  have  appeared  and  made  the  objec- 
tion at  the  time. 

Ford  v.  Gardner,  (243)  312 

9.  Justices  of  the  peace  may  inquire  into  demands 
to  the  amount  of  8300,  if  the  plaintiff  claims  no 
more  than  a  balance  of  $25;  and  the  declaration 
may  state  a  demand  to  the  amount  of  8200,  provided 
it  concludes  with  demanding  damages  to  $25  only. 

Cahttl  v.  Dolph,  (333)    343 

JUSTICE'S  COURT— Johns.  2. 

1.  Where  a  justice,  after  a  writ  of  certiorari  from 
this  court  was  delivered  to  him,  proceeded  to  try 
the  issue  of  traverse  on  an  indictment  under  the  act 
to  prevent  forcible  entries  and  detainers,  and  the 
defendant  being  found  guilty,  the  writ  of  restitu- 
tion was  issued,  and  the  defendant  turned  out  of 
possession,  it  was  held  that  the  proceedings  of  the 
justice,  after  the  certiorari,  were  coram  non  judice, 
and  void,  and  that  the  justice  was  liable  to  an  action 
of  trespass. 

Case  v.  Shepherd,  (27)    426 

2.  Where  a  justice  of  the  peace,  under  the  Ten 
Pound  Act,  issued  an  execution  voluntarily,  and 
without  any  authority  from  the  plaintiff,  against 
the  body  of  a  defendant  who  was  by  law  privileged 
from  imprisonment,  it  was  held  that  the  justice  was 
liable  to  an  action  for  false  imprisonment. 

Percival  v.  Jones,  (49)    434 

3.  A  justice  cannot  move  to  quash  a  certiorari, 
directed  to  him.    He  must  obey  it  at  his  peril,  and 
return  what  is  legally  required  of  him,  and  not  take 
notice  of  what  he  is  not  bound  by  law  to  return. 

Van  Patten  v.  Ouderkirk,  (108)    455 

JUSTICE'S  COURT— Johns.  3. 
Where  a  judgment  was  recovered  before  a  justice, 
who  asked  the  defendant  if  execution  should  issue, 
and  the  defendant  said  he  did  not  care  how  soon, 
and  did  not  state  that  he  was  a  freeholder  and  had 
a  family,  or  claim  any  exemption  from  imprison- 
ment; and  the  justice  thereupon,  without  any 
directions  from  the  plaintiff,  who  was  not  present, 
issued  an  execution  against  the  body  of  the  defend- 
ant, on  which  he  was  imprisoned  thirty  days ;  in  an 
action  brought  by  him  against  the  justice,  for  an 
assault  and  battery  and  false  imprisonment,  it  was 
held  that  the  justice  was  not  liable. 

Hess  v.  Morgan,  (84)    626 

JUSTICE'S  COURT  AND  JUSTICE— Col.  and  Cai. 
'  See  Courts. 

1.  Error,  if  a  justice  adjourns  a  cause  metre  than 
3  days  of  his  own  authority.         (399,492)    177,205 

2.  Aliter,  if  by  consent.  (490)    2O4 

3.  If  an  executor  confesses  judgment  in  a  justice's 
court,  it  does  not  give  the  court  jurisdiction. 

(470)    198 

4.  The  issuing  of  the  summons  or  warrant,  and 
not  the  filing  of  the  plaint,  is  the  commencement 
of  the  action.  (477)    2OO 

5.  Where  a  justice  applies  to  amend  his  own  re- 
turn, he  must  set  forth  in  his  affidavit  the  points  in- 
tended to  be  amended.  (480)    2O1 

6.  If  in  a  justice's  court,  under  the  $25  Act,  a 
party  demurs  to  evidence,  the  justice  may  over- 
rule the  demurrer  as  being  a  proceeding  inapplic- 
able to  such  courts.  (485)    2O2 

7.  A  justice  cannot  be  prosecuted  for  a  judicial 
act.  (490)    2O4 


KAYADEROSSERAS  PATENT— Johns.  3. 
The  commissioners  who  divided  the  Kayaderos- 
seras  patent,  in  1790,  adopted  the  true  construction 
of  the  patent,  as  to  the  northwestmost  head  of  the 
Kayaderosseras  Creek ;  and  in  running  a  line  due 
north,  to  the  object,  where  the  course  mentioned  in 
the  patent  was  northerly. 

Jackson,  tx  dem.  Woodworth,  v.  Lind- 
say, (86)    627 


LANDLORD  AND  TENANT— Johns.  1. 
A  teneant  at  sufferance  cannot  maintain  an  action 
of  trespass  against  his  landlord. 

Wilde  v.  CantWon,  (123)    367 

LEASE— Johns.  1. 
See  Ejectment,  1.    Disseisin. 

COL.,  &  COL.  &  CAI.,  &  J's.  CAS.  1,  2,  3. 


GENEKAL  INDEX. 


LEGACY— Johns.  2. 
t.  In  an  action  brought  by  A  against  an  executor 
for  a  legacy,  the  defendant  offered  in  evidence  an 
account  and  certain  bonds  which  had  been  paid  and 
cancelled  by  the  testator,  on  which  there  was  an  in- 
dorsement by  the  the  testator  that  by  agreement 
between  A  and  B  they  were  to  be  charged  to  the  ac- 
count of  A,  and  the  bonds  were  for  that  reason  can- 
celled, which  indorsement  was  prior  to  the  date  of 
the  will.  It  was  held  that  the  account  and  indorse- 
ment on  this  bond  were  not  sufficient  to  support  a 
debt  set  up  by  the  executor  against  the  plaintiff ; 
and  that  if  the  debt  had  been  proved,  it  would  not 
have  been  released  or  extinguished  by  the  legacy. 

Ricketts  v.  Livingston,  Executor  (97)  451 
2.  A  devised  his  lands  to  his  two  sons,  charged 
with  the  payment  of  specific  sums  by  each  of  them, 
to  his  executors,  and  bequeathed  to  his  granddaugh- 
ter £200.  to  be  paid  to  her  when  she  came  of  age, 
out  of  the  sums  so  directed  to  be  paid  by  his  sons  to 
his  executors.  It  was  held  that  the  legacy  to  the 
granddaughter  carried  interest  from  the  time  it  was 
due,  and  not  before;  and  that  it  was  due  when 
the  legatee  arrived  at  the  age  of  twenty-one  years. 

Van  Bramer  v.  The  Executors  of 

Hoffman,  (200)    487 

LIBEL— Johns.  3. 

1.  To  charge  a  counselor  at  law  with  offering 
himself  as  a  witness,  in  order  to  divulge  the  secrets 
of  his  client,  is  libelous ;  and  it  is  not  a  sufficient 
justification  that  he  disclosed  matters  communi- 
cated to  him  by  his  client,  which  had  no  relation  or 
pertinency  to  the  cause  in  which  he  was  engaged. 

Riggs  v.  Denniston,  (198)    667 

2.  To  charge  a  commissioner  of  bankruptcy  with 
being  a  misanthrope,  a  partisan,  stripping  the  un- 
fortunate debtors  of  every  cent,  and  then  depriving 
them  of  the  benefit  of  the  act,  &c.,  is  libelous ;  and 
to  make  out  a  justification  of  the  charge,  the  de- 
fendant must  show  that  the  plaintiff,  as  commis- 
sioner, wilfully  perverted  the  law  to  such  oppress- 
ive purposes. 

Id.  (Ib.)    667 

3.  Whether  the  law  allows  a  justification  of  a  libel 
which  does  not  charge  an  indictable  offense?  Qucere. 

Id.  (Ib.)    667 

4.  On  an  indictment  for  a  libel,  can  the  defend- 
ant   give  the  truth  in  evidence,  in  justification? 
And  are  the  jury  to  decide  both  on  the  law  and  the 
fact? 

The  People  v.  Cromvett,  (337)    717 

See  Act,  6th  April,  1805  (sess.  28,  ch.  90). 

LIEN— Johns.  1. 
See  Judgment. 

LIMITATIONS— Col.  and  Cai. 
Where  a  presumption  can  be  made  in  favour  of  the 
plaintiff  to  avoid  the  statute   of  limitations  the 
court  will  make  it.  (316)    153 

LIMITATIONS,  STATUTE  OF— Johns.  1. 
Under  the  Act  of  the  21st  of  March,  1783,  suspend- 
ing the  statute  of  limitations  during  the  war,  and 
the  Act  of  the  26th  of  February,  1788,  saving  the 
plaintiff's  right  of  action,  where  the  defendant  was 
out  of  the  State,  in  an  action  on  a  promissory  note, 
dated  the  17th  of  December,  1777,  payable  on  de- 
mand, it  was  held,  that  the  maker  being  within  the 
British  lines  during  the  war,  and  departing  with  the 
British  at  the  close  of  the  war,  was  to  be  deemed  as 
out  of  the  State  during  that  time ;  and  the  cause  of 
action  being  considered  as  accruing  on  the  21st  of 
March,  1783,  the  plaintiff  having  brought  his  action 
within  six  years  after  the  return  of  the  maker  to  the 
State,  the  latter  could  not  avail  himself  of  the  stat- 
ute of  limitations. 

Sleght  v.  Kane,  (76)    248 

LIMITATION— Johns.  2. 

A  being  seized  in  fee  of  lands,  by  indenture,  "in 
consideration  of  natural  love  and  affection,  and  for 
the  better  maintenance  of  the  grantees,  conveyed 
the  premises,  by  the  words,  "give,  grant,  alien,  en- 
feoff  and  convey,"  to  his  daughter,  H.  for  life,  with 
power  to  her  to  sell  the  same  in  fee,  at  any  time,  if 
she  chose,  to  any  person,  by  deed  or  will,  and  the 
money  arising  from  such  sale,  to  keep  for  her  own 
use  and  maintenance ;  and  in  case  H.  should  not  sell 
the  premises,  then,  after  her  death.  A  conveyed  the 
same  to  B  the  son-in-law,  for  life,  and  after  his 
death  to  the  heirs  of  the  body  of  H.  and  his,  her,  or 
their  heirs  and  assigns  forever,  equally  to  be  di- 
vided between  them,  share  and  share  alike."  B  and 
H.  took  possession,  and  afterwards,  for  the  consid- 

COL.,  &  COL.  &  CAI.,  &  J's  CAS.I,  2,  8. 


eration  of  five  shillings,  by  lease  and  release,  con- 
veyed the  premises  to  C  in  fee,  in  trust  that  he 
should  reconvey  the  same  premises  to  B  in  fee ;  and 
C  being  so  seized,  on  the  next  day,  for  the  con- 
sideration of  ten  shillings,  reconveyed  the  premi- 
ses to  B,  who  afterwards  made  his  will,  and  de- 
vised the  premises  to  D  for  thirty-one  years,  and 
died.  H.  died  without  issue ;  and  A  afterwards  died, 
leaving  four  sons  and  four  daughters,  his  heirs-at- 
law.  In  an  action  brought  by  the  heirs-at-law  of  A 
against  a  tenant  under  D,  it  was  held  that  H  took 
an  estate  for  life,  with  a  vested  remainder  in  tail ; 
that  the  words  "heirs  of  the  body,"  &c.,  were  words 
of  limitation,  and  not  of  purchase,  notwithstanding 
the  words  added  "and  to  his,  her,  or  their  heirs  and 
assigns,"  &c.,  which  were  to  be  rejected  as  repug- 
nant to  the  estate  created  by  the  preceding  words ; 
and  that  the  power  to  H.  was  intended  for  her  bene- 
fit, and  was  well  executed,  and  the  estate  vested  in 
B  and  those  claiming  under  him. 

y  Brant,  ex  dem.  The  heirs  of  Provost, 

v.  Gelston,  (384)    551 

See  Devise,  4, 5. 


MANDAMUS— Col.  and  Cai. 
See  Error,  3. 

1.  Mandamus  will  issue  to  compel  the  judges  of 
the  common  pleas  to  fix  their  seals  to  a  bill  of  ex- 
ceptions. (135, 136)    65,  1O5 

2.  They  may  show  cause  for  their  refusal,  and  it 
is  a  sufficient  cause  that  the  bill  is  untrue. 

(Ib.,  Ib.)    65,  1O5 

3.  Where  the  court  will  set  aside  a  mandamus. 

(150)    1O9 
MANDAMUS- Johns.  1. 

1.  A  rule  to  show  cause  why  a  mandamus  should 
not  issue  to  a  court  of  Common  Pleas  to  restore  an 
attorney  to  his  office,  was  refused,  because  the  affi- 
davit did  not  state,  that  the  court  had  improperly 
removed  him. 

Ex-parte  Gebhard,  (134)    271 

2.  Where  a  party  submits  to  a  new  trial,  on  the 
merits,  in  a  court  of  Common  Pleas,  and  is  non- 
suited at  the  second  trial,  it  is  too  late  to  apply  to 
this  court  for  a  mandamus  to  compel  the  court  be- 
low to  give  judgment  on  the  verdict  found  on  the 
first  trial. 

Weavel  v.  Lasher,  (241)    311 

MANDAMUS-Johns.  2. 
gee  Practice,  3,  34, 38. 

MANDAMUS— Johns.  3. 

Where  a  person  is  already  in  office,  by  color  of 
right,  the  court  will  not  grant  a  mandamus  to  admit, 
another  person,  who  claims  to  have  been  duly  elec- 
ted. The  proper  remedy  is  by  an  information,  in 
the  nature  of  a  quo  warranto. 

The  People  v.  The  Corporation  of  New 

York,  (79)    624 

MASTER  OF  SHIP— Johns.  2. 
See  Consignor  and  Consignee. 

MESNE  PROFITS-Johns.  1. 
See  Ejectment,  9, 10. 

MONEY  OF  ACCOUNT— Johns.  2. 
Pounds  are  not  an  unknown  money  of  account, 
and  the  court  will,  ex  offlcio,  take  notice  of  their 
value. 

Johnson  v.  Hedden.  (274)    513 

MORTGAGE— Johns.  3. 

A  being  indebted  to  B  on  the  23d  March,  1787,  as- 
signed to  him,  as  security  for  the  payment  of  the 
debt,  certain  lands,  and  a  lease  in  fee  for  the  same. 
B  executed  a  bond  to  A,  conditioned  that  in  case 
the  debt  and  interest  were  paid  on  or  before  the 
first  of  June,  1788,  he  would  re-assign  the  lease  and 
premises  to  A  and  give  him  a  receipt  for  the  debt. 
The  debt  not  being  paid  at  the  time,  B  took  pos- 
session of  the  premises  under  the  assignment,  in 
July,  1792,  and  assigned  his  interest  in  the  lease  and 
premises  to  C  and  D,  who  took  possession  thereof. 
A  afterwards  brought  a  bill  to  redeem  the  premises, 
on  the  ground  that  the  transaction  between  him  and 
B  amounted  to  a  mortgage,  and  on  an  appeal  from 
the  Court  of  Chancery,  it  was  held  that  C  and  D 
ought  to  have  been  made  parties  to  the  suit,  and 
that  the  decree  of  the  court  below,  for  that  reason, 
w'as  reversed,  with  liberty  to  the  respondent  to  have 
his  bill  dismissed  in  the  court  below,  or  to  amend  it 
by  adding  all  proper  parties ;  and  in  that  case,  the 

773 


GENERAL  INDEX. 


evidence  taken  to  stand,  as  between  the  present 
parties,  saving  all  just  exceptions,  and  that  each 
party  in  the  Court  of  Errors  pay  his  own  costs. 

Hicfcocfc  v.  Scrtf>H€r.in  error,  (311)    708 

2.  A  being  indebted  to  B  by  a  promissory  note,  in 
the  sum  of  $1,491,  as  collateral  security  for  the  pay- 
ment, indorsed  to  B  another  note  made  by  C  to  A 
or  order,  for  $1,551,  and  at  the  same  time  delivered 
to  B  a  mortgage  executed  by  C  to  A,  to  secure  the 
payment  of  the  note  so  indorsed,  but  made  no  as- 
signment of  the  mortgage  in  writing.  B  filed  a  bill 
against  C  for  the  sale  of  the  mortgaged  premises, 
to  pay  his  note :  It  was  held,  that  by  the  indorse- 
ment of  the  note,  and  delivery  of  the  mortgage,  B 
had  an  equitable  (if  not  a  legal)  interest  in  the 
mortgage ;  but  that  A,  if  he  had  not  the  legal  estate, 
was  interested  in  the  subject,  and  ought  to  have 
been  made  a  party,  as  he  was  entitled  to  recover 
back  the  mortgage  on  the  payment  of  the  $1,491 ; 
and  the  decree  of  the  Court  of  Chancery,  ordering 
a  sale,  &c.,  was  reversed,  with  liberty  to  B  to  have 
his  bill  dismissed,  or  to  add  proper  parties,  on  pay- 
ment of  the  costs  in  the  court  below. 

Johnson v.  Hart,  (323)    711 

MOTION— Col.  and  Cai. 

See  arrest  of  judgment,  5.  New  trial,  4.  Real 
actions,  5. 

1.  Upon  a  motion  where  there  is  no  opposition 
the  court  will  never  examine  further  than  to  be 
satisfied  that  there  has  been  regular  service  of  the 
notice.  (131,  132)    64,  1O4 

2.  A  motion  to  set  aside  a  report  of  the  referees 
on  the  ground  of  irregularity  is  a  nonenumerated 
motion.  (159)    111 

3.  But  if  the  motion  is  grounded  on  merits,  it  is 
an  enumerated  motion,  and  in  this  case  irregularity 
may  also  be  insisted  on.  (7b.)    Ill 

4.  If  the  opposite  party  does  not  appear  to  op- 
pose, all  irregularities  are  waived.  (423)    184 

5.  A  motion  to  set  aside  a  verdict  for  irregularity 
is  a  nonenumerated  motion.  (425)    185 

6.  The  court  will  refuse  to  grant  a  motion  even 
where    there  is  no  opposition,  if  the  affidavit  of 
service  of  notice  is  suflBcient.  (442)    19O 


NEW  TRIAL-Col.  and  Cai. 

1.  Notice  of  motion  for  a  new  trial  accompanied 
by  a  judge's  certificate  is  a  substitute  for  the  former 
practice  of  a  rule  to  show  cause.    If  the  party  neg- 
lects to  obtain  a  certificate  and  judgment  is  conse- 
quently duly  entered  up,  the  court  will  not  then 
near  an  argument  to  set  the  verdict  aside. 

(90,  94)     53,  93 

2.  On  motion  for  a  new  trial  the  court  will  not 
compel  the  defendant  to  bring  the  amount  of  the 
verdict  into  court.  (152,  331)    1O9,  158 

3.  The  court  will  never  grant  a  new  trial  on  ac- 
count of  newly  discovered  testimony  when  it  goes 
merely  to  contradict  former  evidence.       (162)    112 

4.  A  motion  for  a  new  trial  on  the  ground  of 
newly  discovered  testimony  is  an  enumerated  mo- 
tion. (358)    165 

5.  When  the  court  will  grant  a  new  trial  on  the 
ground  of  newly  discovered  testimony  to  the  same 
fact.  (379)    172 

6.  When  on  an  application  for  a  new  trial  on  the 
ground  of  newly  discovered  testimony,  the  affidavit 
states  the  new  witness  to  be  a  man  of  good  char- 
acter, counter  affidavits  to  this  point  are  admissible. 

(409)    180 
NEW  TRIAL-Johns.  1. 

1.  Where  the  judge  charged  the  jury  that  in  his 
opinion,  the   weight  of  evidence  was  in  favor  of 
the  defendant,  and  the  jury  found  a  verdict  accord- 
ingly, a  new  trial  for  the  misdirection  of  the  judge 
was  refused,  the  court  being  satisfied  that  the  plaint- 
iff ought  not  to  recover. 

Goodrich  v.  Walker,  (250)    315 

2.  In  an  action  of  debt  for  a  penalty  in  a  special 
agreement,  though  the  court  were  of  opinion  that 
the  plaintiff  was  entitled  to  a  verdict,  yet,  as  no 
damages  were  shown,  nor  any  rule  by  which  the 
jury  could  ascertain  the  damages,  they  refused  to 
set  aside  a  nonsuit,  and  grant  a  new  trial,  merely  to 
give  the  plaintiff  an  opportunity  to  recover  nomin- 
al damages. 

Brantingham  v.  Fay,  (255)    317 

3.  Where  a  verdict  is  against  the  charge  of  the 
judge,  and  a  new  trial  is  granted,  the  costs  are  to 
abide  the  event  of  the  suit. 

Fan  Rensselaer  v.  Dole,  (279)    325 

774 


4.  Where  the  jury  on  a  second  trial  find  a  verdict 
against  the  decision  of  the  court,  on  a  point  of  law, 
on  which  the  new  trial  was  granted,  the  court  will 
grant  a  third  trial.    Silva  v.  Low,  (338)    344 

5.  On  an  affidavit  of  newly  discovered  evidence,  a 
new  trial  was  granted  on  an  issue  out  of  chancery. 

Doe  v.  Roe,  (402)    36"8 

See  Ejectment,  2. 

NEW  TRIAL— Johns.  2. 

Where  a  witness  who  has  been  regularly  sub- 
poenaed by  the  defendant,  was  out  of  the  way 
when  the  trial  of  the  cause  commenced,  and  did  not 
appear  in  court  until  the  testimony  on  both  sides 
had  closed,  and  the  counsel  for  the  defendant  had 
proceeded  to  sum  up  the  evidence  to  the  jury,  and 
he  was  then  offered  to  be  examined,  but  refused  by 
the  judge,  and  a  verdict  was  found  for  the  plaint- 
iff, it  was  held  that  the  admission  of  the  witness,  in 
that  stage  of  the  trial,  was  altogether  discretionary 
with  the  judge,  who  acted  reasonably  in  refusing  to 
admit  him  under  the  circumstances,  and  a  new 
trial  was  refused. 

Alexander  v.  Byron,  (318)    529 

NEW  TRIAL-Johns.  3. 

A  new  trial  will  not  be  granted  on  a  mere  techni- 
cal objection,  as  to  the  admission  of  a  printed  stat- 
ute book  in  evidence,  when  it  appears  that  the 
printed  statute  was  correct,  and  an  exemplification 
of  it,  on  a  new  trial,  would  be  the  same  evidence. 

Duncan  v.  Diiboys,  (125)    641 

See  Usury,  2. 

NEW  YORK  CORPORATION— Johns.  2. 
See  Venue,  2. 

NEW  YORK— Johns.  3. 
See  Recorder  of. 

NONPROS-Col.  and  Cai. 

Where  an  action  is  brought  against  two,  and  one 
is  returned  taken  and  the  other  non  est,  and  the 
party  taken  rules  the  plaintiff  to  declare,  the  plaint- 
iff will  be  nonprossed  unless  he  obtains  time  to  de- 
clare until  the  other  is  brought  in.  (452)  192 

NONSUIT-Col.  and  Cai. 

Rule  for  costs  of  a  nonsuit  against  executors  dis- 
charged because  nonsuit  arose  from  a  clerical 
error.  (66,  72)  47,  87 

NONSUIT,  JUDGMENT  AS  IN  CASE  OF— 

Col.  and  Cai. 
See  commission,  8.    Real  Actions,  3.    Costs,  35. 

1.  Judgment  as  in  case  of  nonsuit  will  be  awarded 
where  there  has  been  a  new  trial  granted  and  the 
plaintiff  has  neglected  to  carry  the  cause  down  to 
trial,  (36,  39,  79,  42) 

2.  Upon  the  first  default  the  plaintiff  must  be 
nonsuited  or  must  stipulate  to  try  the  cause  at  the 
next  circuit,  unless  he  accounts  for  and  excuses  the 
default.    But  the  defendant  must  make  his  applica- 
tion in  the  next  term  after  default. 

(64,69,186,401)    47,87,119,178 

3.  Judgment  as  in  case  of  nonsuit  is  never  granted 
in  replevin.  (92,  96)    54,  94 

4.  Upon  a  stipulation  to  try  the  cause  peremptorily 
in  expectation  of  the  return  of  a  witness,  it  is  a 
sufficient  excuse  that  the  witness  is  a  sea-faring 
man.  (147)  1O8 

5.  Misapprehension  of  a  rule  of  practice,  how  far 
an  excuse  for  not  going  to  trial.  (157)    111 

6.  Application  for  judgment  as  in  case  of  nonsuit 
must  be  made  at  the  term  next  after  default. 

(187)     119 

7.  When  upon  an  application  for  judgment  as  in 
case  of  nonsuit,  it  appears  that  the  defendant  is 
sentenced  to  State  prison,  the  court  will  allow  the 
plaintiff  to  discontinue  without  costs.        (191)    12O 

8.  What  shall  or  shall  not  be  a  sufficient  excuse 
for  not  going  to  trial. 

(200,  210,  220,  232,  445,  345,  347,  a58,  361,  371.  400,  469) 
122,    125,    129,    131,    19O,    162,    165,  166,    169, 

177,  197 

9.  How  the  defendant  must  proceed  after  stipula- 
tion bv  the  plaintiff.  (213,  480)    126,  2O1 

10.  An  affidavit  to  excuse  the  plaintiff's  default  on 
the  ground  of  the  early  date  of  the  issue,  must 
show  that  the  issues  tried  were  older.         (221)    131 

11.  What  costs  to  be  paid  on  an  offer  to  stipulate. 

(345)    162 

12.  It  is  a  sufficient  excuse  that  the  cause  was  not 
on  the  day-docket.  (425)    185 

COL.,  &  COL.  &  CAI.,  &' J's.  CAS.  1,  2,  3. 


GENERAL  INDEX. 


xxix 


13.  On  an  application  for  judgment  as  in  case 
of  nonsuit,  the  affidavit  must  state  where  the  venue 
is  laid.  (469)    197 

NOTICE-Col.  and  Cai. 

1.  When  notice  of  motion  is  given  for  a  day  in 
term  subsequent  to  the  first,  the  opposite  party  is 
deemed  to  waive  his  objection  unless  he  appears  and 
states  it  at  the  time. 

(76,  81,  148,  176)     5O,  9O,  108,  116 

2.  The  affidavit  supporting-  the  motion  to  refer 
•such  notice,  must  always  account  for  the  laches. 

(206)     134 

3.  And  with  sufficient  excuse  the  notice  may  be 
for  any  day.  (200)    124 

4.  What  shall  be  an  excuse.  (456)    194 

5.  Notice  of  motion  to  refer  must  contain  the 
names  of  the  referees.  (148)    1O8 

6.  Service  of  a  notice  by  mail  insufficient. 

(168)     114 

7.  Notice  of  motion  must  always  be  accompanied 
by  the  affidavit  on  which  it  is  to  be  grounded. 

(190)     120 

8.  If  the  notice  of  motion  and  the  affidavit  are  in- 
correctly entitled,  it  is  fatal  to  the  application. 

(260)    138 

9.  Aliter  if  notice  is  wrong  and  affidavit  right. 

(185)     118 

10.  Notice  of  motion  good  without  stating  that  it 
will  be  made  at  New  York  or  Albany,  the  terms,  &c., 
of  the  court  being  notorious.  (367)    168 

11.  Where  the  reason  of  not  noticing  appears  on 
record  no  affidavit  in  excuse  need  be  made. 

(416)     183 

12.  If  notice  of  trial  is  correct  as  to  the  date,  but 
incorrect  as  to  the  day  it  is,  notwithstanding  gopd. 

(440)    189 

13  .  All  formal  objections  to  the  notice  of  motion 
are  waived  by  entering  on  the  argument. 

(460)     195 

14.  Notice  of  motion  must  be  signed  by  the  at- 
torney in  the  cause,  but  when  the  attorney  is  em- 
barrassed and  cannot  be  found,  it  may  be  signed  by 
the  counsel  for  him.  (467)    197 

15.  Notice  of  bail  implies  notice  of  retainer. 

(Ib.)    197 

16.  What  can  be  given  in  evidence  under  a  notice 
of  special  matter.  (487)    3O3 

17.  Parol  evidence  of  the  contents  of  a   notice 
may  be  given  when  the  party  has  neglected  to  keep 
a  copy.  (494)    2O5 

NOTICE  TO  QUIT— Johns.  1. 
A  mere  servant  or  bailiff,  in  possession  of  lands, 
is  not  entitled  to  a  notice  to  quit. 

Jackson,  ex  dem.  Fitzroy,  et   al.,  v. 

Sample,  (231)    3O8 

See  Ejectment,  1. 

NOTICE  TO  QUIT— Johns.  2. 
See  Ejectment,  4. 

NOVEL  ASSIGNMENT-Col.  and  Cai. 
See  Pleading,  8. 

NUISANCE— Johns.  1. 
Sae  Court  of  Oyer  and  Terminer,  4. 

NUL  TIEL  RECORD-Col.  and  Cai. 

1.  When  there  are  several  pleas  mil  tiel  record  can 
njverbeoneof  them.  (35,41)    39,79 

2.  Rule  to  produce  record  is  a  common  rule. 

(47,  52)    42,  82 


PARDON-Johns.  3. 

A  having  been  convicted  of  forgery,  was  sen- 
tenced to  the  State  Prison  for  life.  He  was  after- 
wards pardoned  by  the  governor.  The  pardon 
contained  a  proviso  that  it  was  not  to'be  construed  so 
as  to  relieve  A  from  the  legal  disabilities  arising 
from  his  conviction  and  sentence,  &c.,  but  only 
from  the  imprisonment.  He  was,  afterwards,  of- 
fered as  a  witness  for  the  people,  on  a  trial  for  an 
indictment,  and  admitted  to  testify,  although  ob- 
jected to  as  incompetent.  It  was  held  that  the  pro- 
viso in  the  pardon  being  incongruous,  and  repug- 
nant to  the  pardon  itself,  ought  to  be  rejected,  and 
that  the  witness  was  competent. 

The  People  v.  Pease,  (in  error.)  (333)    714 

PARTITION— Col.  and  Cai. 

1.  The  rule  to  appear  and  answer  is  not  a  rule  of 
•course.  (148)     1O8 

2.  On  the  motion  for  the  rule  the  notice  and  affi- 
davit of  service  only  are  read  and  not  the  petition. 

(155)    110 

€OL.,  &  COL.  &  CAI.,  &  J's  CAS.  1,  2,  3. 


3.  Form  of  the  rule  to  be  entered  when  the  de- 
fendant does  not  appear.  (198)    122 

4.  If  in  the  petition  a  party  is  stated  to  be  seised 
of  a  portion,  the  court  will  intend  that  it  is  in  fee. 

(428)    185 

5.  Whether  there  is  opposition  or  not,  the  notice 
and  affidavit  of  service  need  only  be  read. 

(431)    186 
PARTNERSHIP— Johns.  1. 

1.  Where  there  is  a  special  and  limited  partner- 
ship, and  persons  deal  with  it,  knowing  it  to  be  such, 
they  are  bound  by  the  terms  of  such  copartnership, 
and  cannot  hold  the  parties  beyond  them. 

Ensign  v.  Wands,  (171)    286 

2.  If  one  of  two  partners  in  trade  purchase  goods 
for  both,  and  one  of  them  dies,  an  action  of  amntm])- 
sit  may  be  brought  against  the  survivor,  without 
taking  notice  of  the  partnership,  or  the  death  of  the 
one  and  the  survivorship  of  the  other. 

Goelet  v.  ATInstry,  (405)    369 

PARTNERSHIP— Johns.  2. 

1.  Where  B  and  four  other  persons  were  owners  of 
a  cargo,  in  distinct  proportions,  and  the  cargo  was 
sold  in  Calcutta,  and  the  proceeds  invested  in  a  re- 
turn cargo,  and  B  carried  on  trade  for  himself,  and 
was  wholly  unconnected  in  trade  with  the  others, 
it  was  held  they  were  not  partners. 

Holmes  v.  The  United  Insurance 
Company,  (329)    533 

2.  A  surviving  partner  may  maintain  a  suit  in  his 
own  name,  for  a  debt  incurred  to  the  partnership, 
after  the  death  of  his  copartner,  and  also  for  a  debt 
contracted  in  the  lifetime  of  the  partner. 

Bernard  v.  Wilcox,  (374)    548 

PARTNERSHIP— Johns.  3. 

1.  One  partner    cannot  bind  his  copartners   by 
seal. 

Clement  v.  Brush,  (180)    661 

2.  Where  one  partner  gave  a  specialty,  which  he 
signed  with  the  name  of  the  firm,  for  a  simple  con- 
tract debt  of  the  firm,  and  the  creditor  afterwards 
executed  a  release  of  all  demands  against  the  other 
partner,    on  account  of  the  partnership  debt,  it  was 
held  that  giving  the  specialty  was  an  extinguish- 
ment of  the  simple  contract  or  partnership  debt, 
and  that  the  specialty,  being  the  proper  and  sole 
debt  of  the  partner  executing  it,  was  not  affected 
by  the  release  given  to  the  other  partner,  as  to  the 
partnership  debt. 

Id.  (Ib.)    661 

PATENT— Johns.  2. 

A  patent  for  certain  lands  was  granted  "  to  A,  B 
and  C  for  themselves  and  their  associates,  being  a 
settlement  of  Friends  on  the  west  side  of  Seneca 
Lake,  to  have  and  to  hold  the  same  to  A,  B  and  C 
as  tenants  in  common,  and  their  associates."    It 
was  held  that  no  legal  estate  vested,  except  in  the 
three  persons  named  in  the  patent, 
Jackson,  ex  dem.  Potter,  et  al.  v. 
Steson,  (321)    53O 

PATENT— Johns.  3. 
See  Grant. 

PAYMENT-Col..  and  Cai. 

A  creditor  may  elect  to  apply  a  general  payment 
by  debtor,  to  any  of  the  claims  he  has  against  him, 

(366)    168 
PAYMENT— Johns.  3. 

1.  A  took  a  promissory  note  of  B  for  a  debt  due 
from  B  and  C  as  partners,  after  the  partnership  was 
dissolved,  and  gave  a  receipt  for  the  note,  when 
paid,  to  be  in  full  of  the  debt.    In  an  action  against 
C  on  the  original  debt,  it  was  held  that  the  accep- 
ting the  note  was  no  payment  of  the  precedent 
debt,  and  that  C  was  liable. 

Herring  v.  Sanger,  (71)    621 

2.  Where  a  note  was  made  payable  at  the  Bank  of 
Albany,  and  a  demand  of  payment  was  made  of  the 
maker,  personally,  in  Albany,  but  not  at  the  bank, 
and  no  objection  made  at  the  time,  the  demand  was 
held  sufficient. 

Id.  (Ib.)    621 

3.  A  note  was  lost  or  mislaid,  and  A  the  maker, 
having  paid  the  amount  to  B  the  holder,  took  his 
bond  of  indemnity  against  the  note,  &c.,  and,  after- 
wards, A  having  a  demand  against  B  for  money,  B 
refused  to  pay,  without  first  deducting  the  amount 
of  the  note,  to  which  A  consented,  and  took  the 
balance,  and  a  receipt  from  B  for  the  amount  of  the 
note    as  due,    and  afterwards   brought  an   action 
against  B  on  the  bond  of  his  indemnity.    It  was 
held  that  the  second  payment,  being  voluntary  on 
the  part  of  A  and  no  f raud  alleged  on  the  part  of  B. 

775 


XXX 


GENERAL  INDEX. 


no  action  could  be  maintained  against  him  on  the 
bond. 

Bazen  v.  Roget,  (87)    627 

PENALTY— Johns.  3. 

A  and  B  entered  into  a  written  agreement,  by 
which  A  agreed  to  convey  to  B  700  acres  of  land  to 
be  appraised,  in  part  payment  for  a  farm,  valued  at 
$3,750,  which  B  agreed  to  sell  to  A,  and  it  was  cove- 
nanted, that  in  case  either  party  failed  to  fulfil  the 
agreement,  the  party  failing  to  perform,  "should 
forfeit  and  pay  to  the  party  who  should  fulfil  the 
agreement,  the  sum  of  §2,000,  as  damages."  It  was 
held,  that  the  £2,000  was,  according  to  the  intention 
of  the  parties,  as  inferred  from  the  whole  agree- 
ment, to  be  considered  as  a  penalty,  and  not  as  stip- 
ulated damages. 

Dennis  v.  Cummins,  (297)    7O2 

PILOTS-Col.  and  Cai. 

A  branch  pilot  agreed  to  bring  into  port  a  wrecked 
vessel  for  a  stipulated  reward,  the  court  held  the 
contract  to  be  illegal,  (183)  118 

PLEADING— Col.  and  Cai. 
See  Nul  tiel  record,  1. 

1.  To  a  plea  of  privilege  by  an  attorney  it  is  a  good 
replication  that  for  one  year  before  he  had  ceased 
to  practice  as  an  attorney,  (134)    1O4 

2.  It  is  sufficient  to  set  forth  a  writing  according- 
to  its  legal  effect,  (221)    128 

3.  In  setting  forth  an  indorsement  made  by  one  of 
a  firm  for  the  firm,  it  is  sufficient  to  set  it  forth  gen- 
erally as  an  indorsement  by  the  firm,          (227)    13O 

4.  A  note  payable  on  a  contingency  must  be  de- 
clared on  as  a  special  agreement,  and  the  considera- 
tion must  be  set  forth,  (279)    143 

5.  If  in  pleading,  mutual  promises  are  not  laid  as 
concurrent,  the  count  is  bad  and  judgment  will  be 
arrested,  (334, 5)    132 

6.  In  proceedings  under  the  act  concerning  forci- 
ble entries  and  detainers,  if  it  is  not  alleged  that  the 
complainant  was  seised  or  possessed  it  is  fatal, 

(365)    167 

7.  If  narr.  varies  in  substance  from  the  process, 
the  defendant  waives  the  objection  by  pleading  in 
chief,  (384)    173 

8.  Where  there  must  be  a  novel  assignment, 

(395)    176 

9.  The  defendant  allowed  to  put  in  a  plea  plus 
darrein  continuance  after  a  lapse  of  more  than  one 
continuance,  on  payment  of  costs,  (424)    184 

10.  If  a  defendant  pleads  that  he  promised  with 
another  jointly  and  not  separately,  this  is  a  dilatory 
plea  and  must  be  verified  by  affidavit,        (453)    193 

11.  A  plea  puis  darretn  continuance  is  a  matter  of 
right  and  is  not  too  late  though  offered  after  the 
jury  are  placed  in  the  box,  (493)    2O5 

PLEAS  AND  PLEADINGS— Johns.  1. 

1.  Where  the  declaration  on  a  promissory  note, 
alleged  a  demand  of  payment  in  general  terms,  as, 
"although  requested,"  &c.,  it  was  held  good,  especi- 
ally after  a  verdict. 

Lefflnyu'eU  and  Pierpoint  v.  WJiite,      (99)    256 

2.  In  an  action  of  debt  on  a  judgment  obtained  in 
another  State,  the  defendant  pleaded  nul  tiel-  record 
and  nil  debet,  and  one  of  the  pleas  was  ordered  to  be 
struck  out. 

Le  Conte  v.  Pendleton,  (104)    259 

3.  Where  the  defendant  pleaded  two  pleas  of  pay- 
ment to  an  action  on  a  bond,  one  before  the  day, 
and  the  other  at  the  day,  the  court,  on  motion,  or- 
dered the  first  plea  to  be  struck  out. 

Thayer  v.  Rogers,  (152)    28O 

4.  Where  there  is  a  precedent  debt  or  duty,  it  is 
not  necessary  for  the  plaintiff  to  state  a  special  re- 
quest or  demand,  in  his  declaration. 

Ernst  v.  Bartle,  (319)    338 

5.  A  plea  of  privilege  by  an  attorney  in  abate- 
ment, concluding  his  plea  to  the  jurisdiction  of  the 
court,  is  not  to  be  treated  as  a  nullity. 

Bronte  v.  Patterson,  (328)    341 

6.  Such  a  plea  does  not  require  an  affidavit,  and 
may  be  put  in.  after  special  bail  has  been  entered. 

(76.)    341 
See  Assignee. 

PLEADINGS— Johns.  2. 

1.  Where  matter  is  stated  in  a  declaration,  which 
might  have  been  struck  out,  on  motion,  as  surplus- 
age, it  need  not  be  proved  on  trial. 

AUairev.Ouland.  (52)    435 

2.  Where  a  promise,  in  one  of  the  counts  in  a  dec- 
laration, by  reference  to  the  day  in  the  preceding 

776 


count,  was  laid  after  the  breach  assigned,  the  mis- 
take was  held  to  be  cured  by  the  verdict. 

Id.  (Ib.)    435 

3.  The  defendant  pleaded  nil  debet,"saia  payment, 
to  an  action  of  debt,  on  a  judgment  of  the  Supreme 
Court  of  Pensylvania ;  and  it  was  held  that  he  was- 
bound  to  produce  and  prove  the  record,  or  an  ex- 
emplification thereof. 

Rushv.Cobbett,  (256)    507 

4.  A  declaration  on  a  bond  of  £70,  stating  that  the 
plaintiff  demanded  £70,  of  the  value  of  $175  lawful 
money  of  the  State,  which  the  defendant  owes  and 
detains,  is  good. 

Johnson  v.  Hedden,  (274)    513- 

5.  In  an  action  of  ftcire  facias  against  bail,  the  de- 
fendant pleaded  thjtt  another  person  of  the  same 
name  and  description,  became  bail,  and  traversed 
that  he  was  the  same  person  named  in  the  bail- 
piece  ;  and  the  plea  was  held  good. 

Renoard  v.  Noble,  (293)    52O- 

6.  To  an  action  of  debt  on  a  judgment  in  the  Cir- 
cuit Court  of  the  United  States    for  the  District  of 
Massachusetts,  the  defendant  pleaded  that  the  rec- 
ord of  the  judgment  had  been  removed  by  writ  of 
error,  according  to  law,  into  the  Supreme  Court  of 
the  United  States,  wherefore  he  prayed  judgment, 
&c.    On  demurrer,  the  plea  was  held  bad. 

Jenkins  v.  Pepoon,  (312)    52  7 

7.  A  writ  of  error  pending,  may  be  pleaded  in 
abatement  to  a  suit  on  the  judgment ;  but  the  plea 
must  be  drawn  with  precision,  and  conclude  clearly 
in  abatement,  and  not  in  bar.    The  plea  must  also 
state  that  the  writ  of  error  was  brought  before  the 
action  was  commenced  on  the  judgment ;  and  must 
show  that  all  the  steps  have  been  taken  which  the 
law  requires,  in  order  to  make  it  a  supersedeas,  as, 
in  the  present  case,  that  a  copy  of  the  writ  of  error 
had  been  lodged  in  the  clerk's  office,  within  ten 
days  after  the  judgment  was  rendered. 

Id.  (Ib.)    527 

8.  Where  a  declaration  commenced  thus :  "James 
Hildreth   complains   of  Peter  Becker  and  James- 
Harvey,  the  said  James  being  in  custody,  &c.,  and 
the  said  Peter  being  returned  not  found,  of  a  plea," 
&c.    It  was  held  to  contain  sufficient  certainty,  and 
that  James  Harvey  the  defendant,  and  not  James 
Hildreth,  was  the  person  in  custody,  &c. 

Hildreth  v.  Becker  &  Harveu,  (339)    536- 

9.  Where  there  are  several  persons  jointly  indebt- 
ed or  jointly  responsible,  and  all  of  them  are  not 
made  defendants,  it  must  be  pleaded  in  abatement, 
and  cannot  be  taken  advantage  of  at  the  trial. 

Zelie  &  Becker  v.  The  Executors  of 
Campbell,  (382)    55O 

PLEA  FRIVOLOUS-Col.  and  Cai. 

A  motion  to  overrule  a  frivolous  plea,  and  to  have 
leave  to  enter  a  default,  has  the  same  preference  as 
a  motion  on  frivolous  demurrer,  (419  183- 

PLEAS  IN  CHANCERY-Johns.  1. 
Whether  a  plea,  that  a  contract  relative  to  land  to 
be  patented  is  illegal,  because  it  contravened  the 
royal  instructions  (prior  to  the  American  Revolu- 
tion), is  a  valid  plea? 

Qucere.    Le  Roy  v.  Veeder  et  al.  (417)    375- 

See  Bill.    Demurrer  in  Chancery. 

POINTS— Col.  and  Cai. 

1.  It  is  sufficient  to  serve  them  on  the  opposite 
party  w_hen  the  argument  is  called  on,       (410)    18O 

2.  It  is  not  sufficient  for  counsel  to  state  the 
points  merely,  he  must  have  them  reduced  to  writ- 
ing or  the  cause  cannot  come  on,  (420)    183- 

POSSESSION— Johns.  3. 

1.  By  the  common  law,  a  conveyance  of  land  by  a 
person  against  whom  there  is  an  adverse  possession 
at  the  time,  to  a  third  person,  is  void ;  but  the  title 
of  the  grantor  is  not  thereby  extinguished  or  de- 
vested  ;  nor  will  such  conveyance  inure,  by  way  of 
estoppel,  for  the  benefit  of  the  defendant  in  pos- 
session. 

Jackson  ex  dem.  Jones,  et  al.  v. 
Brinckerhoff,  (101)    633 

2.  Where  the  legal  possession  of  lands  was  in  the 
heirs  of  A  under  a  claim  of  title,  and  a  descent  in 
1762,  and  B  afterwards  entered  on  the  land  and 
made  improvements,  and  his  possession  was  contin- 
ued for  thirty-seven  years,  but  it  did  not  appear 
that  he  entered  under  claim  or  color  of  title,  or  nos- 
tile  to  the  heirs  of  A,  whose  title  was  not  disputed 
until  after  1783,  it  was  held  that  the  legal  intend- 
ment  was    that  H  entered  under  the  title  of  the 
heirs  of  A,  and  that  under  the  statute  of  limitations. 

COL.,  &  COL.  &  CAI.,  &  J's.  CAS.  1,  2,  3, 


GENERAL  INDEX. 


xxxi 


could  not  begin  to  run  till  after  the  possession  of 
the  defendant  was  held  adversely  to  the  heirs  of  A. 
Jackson,  ex  dem.  Ganesvoort,  et  al. 

v.  Parker,  (124)    633 

3.  Where  the  ancestor  of  the  demandant  was  in 
possession  of  the  premises  in  question  fifty-one 
years  ago,  and  died  in  possession  forty-one  years 
ago,  leaving  the  demandant,  his  only  son,  this  was 
held  sufficient  evidence  to  rebut  the  presumption 
of  right  in  the  tenant,  arising  from  a  possession  of 
thirty-eight  years  only,  commenced  by  wrong.  And 
a  patent  dated  in  1697,  produced  in  evidence  by  the 
tenant,  not  for  the  purpose  of  deducing  a  title  to 
himself,  but  to  show  a  title  out  of  the  demandant, 
was  held  not  sufficient  to  repel  the  conclusion  in 
favor  of  the  demandant,  as  the  jury  might  presume 
a  title  in  the  ancestor  of  the  demandant,  derived 
from  the  patent. 

Nose  v.  Peck,  (128)    643 

See  Entry. 

POWER— Johns.  2. 
See  Limitation. 

POWER— Johns.  3. 

Where  a  special  power  is  granted  by  statute,  af- 
fecting the  property    of   individuals,  it  must  be 
strictly  pursued ;  and  it  must  appear,  on  the  face 
of  the  proceedings,  that  the  directions  of  the  stat- 
ute have  been  strictly  observed. 
Gilbert  v.  Columbia  Turnpike 
Company,  (107)    635 

PRACTICE— Col.  and  Cai. 

1.  The  plaintiff  may  accept  or  refuse  an  imperfect 
copy  of  a  plea,  and  if  he  accepts  it  the  court  will 
compel  the  defendant  to  file  a  perfect  plea. 

(45,  50)    42,  82 

2.  If  a  demurrer  is  filed  within  20  days  after  ser- 
vice of  a  copy  of  the  replication  &c.,  and  a  verdict 
taken  notwithstanding,  it  will  be  set  aside. 

(46,  51)     42,  83 

3.  If  immediately  after  issue  joined,  and  before 
notice  of  trial,  the  defendant  gives  notice  of  motion 
for  a  struck  jury,  it  is  incorrect  in  the  plaintiff  to 
carry  down  the  cause.  (46,  52)    42,  83 

4.  Interlocutory  judgment  cannot  be  entered  un- 
til default  previously  entered.  (49,  54)    43,  83 

5.  The  rule  on  the  sheriff  to  bring  in  the  body  by 
the  first  day  of  term,  must  be  served  twenty  days 
previous.  (/ft.,  Ib.)    43,  83 

6.  Whenever  a  special   motion   is    to   be   made, 
grounded  on  an  affidavit,  a  copy  must  be  served  on 
the  opposite  party.  (63,  69)    47,  87 

7.  Where  a  creditor  resides  out  of  the  State,  notice 
of  the  petition  under  the  act  for  the  relief  of  debtors 
from  imprisonment  of  their  persons,  may  be  served 
on  the  attorney.  (64,  70)    47,  87 

8.  If  pleas,  &c.,  are  not  palpably  bad,  the  party 
must  resort  to  his  demurrer.     The  court  will  not 
grant  judgment  as  for  the  want  of  a  plea. 

(82,86)    57,91 

9.  If  the  defendant  pleads  several  pleas,  and  the 
plaintiff  demurs  and  then  withdraws  his  demurrer, 
he  cannot  compel  the  defendant  to  elect  the  plea  he 
will  abide  by.  (89,  92)    53,  93 

10.  When  the  plaintiff  gives  a  defective  notice  of 
trial  and  takes  an  inquest,  and  the  defendant  allows 
a  term  to  elapse  before  he  makes  his  application  to 
the  court,  the  court  will  not  set  aside  the  verdict. 

(94,  97)     54,  94 

11.  Where  the    defendant's  attorney  gives  the 
plaintiff  notice  of  bail  having  been  put  in  on  a  par- 
ticular day,  but  does  not  in  fact  file  the  bailpiece, 
until  a  day  long  subsequent,  the  court  will  consider 
it  as  filed  on  the  day  mentioned  in  the  notice  and 
make  the  defendant's  attorney  pay  the  costs  of  the 
application.  (96,  99)    55.  95 

12.  If  the  defendant  is  arrested  before  the  debt  is 
due,  and  files  bail  and  pleads  in  chief,  it  will  then  be 
too  late  to  make  the  objection.        (104, 107)    57.  97 

13.  Where  a  point  is  reserved  by  the  judge  at  the 
trial,  it  is  in  nature  of  a  special  verdict.  The  plaint- 
iff must  prepare  the  case  and  open  the  argument. 

(lb.,Ib.)    57,97 

14.  On  the  defendant's  application,  the  court  will 
postpone  the  first  meeting  of  referees  until  the  re- 
turn of  a  witness,  and  this  application  is  considered 
in  the  same  light  with  the  first  application  to  put  off 
a  trial  on  account  of  the  absence  of  a  material  wit- 
ness. (105,108)    57,97 

15.  A  trial  is  then  only  considered  as  lost  when  a 
junior  issue  could  have  been  tried  at  the  circuit. 

(107,110)    58,98 

16.  Where  the  plaintiff  serves  an  amended  narr. 
he  is  not  bound  to  give  new  oyer  when  the  oyer  with 

COL.,  &  COL.  &  CAI.,  &  J's.  CAS.  1,  2,  3. 


the  original  declaration  was  correct. 

(113, 110)    59,  99 

17.  Where  defendants  sever  in  pleading,  the  cause 
is  still  to  be  entitled  against  both  as  if  they  had  not 
severed.  (154)    n» 

18.  Where  there  is  an  agreement  to  stay  proceed- 
ings on  a  bail-bond,  on  payment  of  costs,  &c.,  and 
special  bail  is  thereupon  put  in  in  the  original  suit, 
and  the  plaintiff  proceeds  to  judgment  in  original 
suit  and  bail-bond  suits  on  default,  in  payment  of 
the  said  costs  the  court  will  set  aside  the  proceed- 
ings on  the  bail-bond  on  payment  of  costs  to  the 
time  when  special  bail  was  put  in.  (165)    113 

19.  When  an  inquest  is  taken  before  the   sheriff 
and  general  damages  given  and  some  counts  are 
good  and  others  bad,  the  court  will  award  an  in- 
quiry de  novo  on  the  good  counts.  (186)    1191 

20.  Misentitling  papers.  (185)    118 

21.  No  motion  can  be  made  to  set  aside  a  writ  of 
inquiry,  until  it  is  before  the  court,  (230)    131 

22.  Scmb.  that  when  the  plaintiff  is  in  possession 
of  his  writ  of  inquiry  excuted,  he  may  issue  a  new 
one  if  dissatisfied.  (Ib.)    131 

23.  When  a  rule  to  show  cause  is  made  absolute  on 
the  non-appearance  of  the  party  on  the  day,  it  is  of 
course  to  open  it  on  his  producing  sufficient  ex- 
cuse. (283)    144 

34.  After  certificate  to  stay  proceedings,  each  may 
notice  for  argument.  (300)    149 

25.  Where  damages  have  been  irregularly  assessed 
by  the  clerk,  and  proceedings  vacated  by  consent, 
the  court  will  order  the  assessment  to  be  stricken 
out ;  so  that  the  party  may  proceed  on  the  merits. 

(310)    152 

26.  Leave  will  be  granted  to  make  up  a  new  nisi 
prius  record  and  postea  from  the  judge's  minutes, 
when  the  originals  are  not  to  be  found.      (311)    153- 

27.  When  the  court  of  errors  order  a  venire  de. 
novo  and  remit  the  record,  if  the  parties  then  pro- 
ceed to  trial  without  an  award  of  a  venire  de  novo  on 
record,  the  second  trial  is  null  and  void,    (336)    159- 

28.  An  indorsement  of  a  special  plea  by  the  coun- 
sel is  a  sufficient  signing.  (346)    16£ 

29.  On  serving  an  amended  oyer  a  new  rule  to 
plead  must  be  entered  and  notice  given,  (scmb.) 

(388)    174, 

30.  Rule  granted  to  stay  proceedings  in  ejectment 
until  the  plaintiff  should  enter  into  a  consent  rule 
to  allow  the  defendant  to  take  a  survey  of  bound- 
aries, such  survey  being  necessary  for  his  defence. 

(432)    187 

31.  The  granting  of  orders  to  stay  proceedings  is 
chamber  business  and  the  party  must  first  apply  to 
a  judge ;  the  court  will  not  hear  the  application  in 
the  first  instance.  (434)    187 

32.  Until  the  writ  is  returned,  bail  filed,  or  an  ap- 
pearance entered,  there  is  no  basis  for  proceedings. 

(448)    191 

33.  The  court  will  not  allow  the  general  issue  to  be 
withdrawn  to  let  in  a  plea  of  coverture  in  abate- 
ment, although  the  first  plea  was  put  in  without  the 
knowledge  of  the  defendant,  and  by  a  person  he 
never  meant  to  retain  as  attorney.  (456)    194 

34.  A  judge  at  his  chambers  may  grant  and  annul 
his  own  order  to  stay  proceedings  on  a  case  made 
as  well  in  term  time  as  in  vacation ;  and  this  though 
a  rule  for  judgment  be  entered.  (461)    195 

35.  If  a  judge  grant  a  rule  to  stay  proceedings  on 
the  ground  of  an  improper  item  allowed  by  the  jury, 
the  court  may  vacate  that  order  upon  relinquisn- 
ment  of  the  item.  (Ib.)    195 

36.  In  a  suit  where  there  is  no  controversy  as  to 
the  justice  of  the  claim ;  but  a  case  is  made  merely 
on  the  question  whether  payment  should  be  made 
to  the  plaintiff  or  his  assignee,  the  court  will  not, 
pending  the  case,  allow  judgment  to  be  entered  to 
bind  defendant's  lands.  (462)    195. 

37.  When  a  defendant  serves  his  plea  and  neglects 
to  file  it,  the  plaintiff  may  enter  a  default  which 
will  be  set  aside  only  on  payment  of  costs  and  filing 
a  plea  instanter.  (464)    196 

38.  When  a  motion   is   called,  time  will  not  be 
granted  until  a  further  day  to  prepare  affidavits 
unless  some  excuse  is  shown.  (467)    197 

39.  When  either  side  may  notice  for  argument,  the 
only  mode  to  vacate  the  judge's  order  is  by  giving 
a  counter  notice,  and  demanding  judgment  when 
the  case  is  called  on.  (488)    3O3- 

40.  But  when  the  privilege  of  noticing  is  not  mu- 
tual, then  motion  must  be  made  to  vacate  the  cer- 
tificate. (It>.)    203- 

41.  To  put  the  plaintiff  out  of  court  the  defendant 
must  always  proceed  by  entering  a  rule  to  declare 
or  be  non  prossul ;  the  English  rule  by  which  the 
plaintiff  is  out  of  court,  if  he  does  not  declare  in  a 
year,  is  not  the  rule  of  this  court.  (498)    2O7 

777 


GENERAL  INDEX. 


PRACTICE— John.  1. 

1.  If  the  plaintiff's  attorney  receives  notice  of  a  re- 
tainer from  two  attorneys   of  the   defendant,  he 
ought  to  inform  the  second  attorney  of  the  first  no- 
tice from  the  first  attorney,  in  order  to  prevent  a 
surprise. 

WNeallu  v.  Mnrison,  (28)    239 

2.  Where  there  are  several  actions  on  the  same 
policy  of  insurance,  imparlances  will  be  granted  in 
all  but  one,  until  the  plaintiff  consent  to  enter  into 
the  consolidation   rule,  which  is  the  same  as  the 
English  rule. 

Clason  and  Stanley  v.  Church,  (29)    229 

3.  A  copy  of  tne  affidavit  on  which  a  special  mo- 
tion is  to  be  made,  must  always  be  regularly  served 
on  the  opposite  party. 

Fitzrou  v.  Card,  (30)    230 

4.  A  motion  for  a  judgment  as  in  case  of  nonsuit, 
for  not  proceeding  to  trial,  will  not  be  granted  for 
the  first  default,  if  the  plaintiff  will  stipulate  to  try 
his  cause  at  the  next  court,  or  be  nonsuited. 

Wild  v.  Gillet,  (Ib.)    230 

5.  A  motion  for  a  nonsuit  must  be  made  at  the 
next  term  after  the  default,  otherwise  the  plaintiff 
need  not  stipulate.  (Ib.)    23O 

6.  On  proceedings  under  the  act  for  the  relief  of 
debtors  with  respect  to  the  imprisonment  of  their 
persons,  where  the  plaintiff  creditor  resides  out  of 
the  State,  service  of  a  notice  of  the  petition  on  his 
attorney,  is  sufficient. 

Bates  v.  Williams,  (30)    230 

7.  Where  a  sheriff  is  brought  up   on  an  attach- 
ment, the  plaintiff  must  file  his  interrogatories  in 
four  days ;  and  the  sheriff  must  enter  into  a  recog- 
nizance to  appear  from  day  to  day. 

Hen-ing  v.  Ti/lee,  (31)    231 

8.  The  clerk  is  to  take  the  answers  to  the  inter- 
rogatories, and  report  the  same  to  the  court, 

Id.  (Ib.)    231 

9.  If  a  defendant  put  in  a  frivolous  demurrer,  he 
cannot  afterwards  withdraw  it,  to  plead  the  general 
issue,  though  he  has  merits. 

GriswoW  v.  Harkins,  (135)    272 

10.  Where  the  plaintiff  took  an  inquest  by  default, 
after  regular  notice  of  an  intended  application  to 
move,  at  the  next  term,  for  a  commission,  it  was  set 
aside. 

Le  Conte  v.  Pendleton,  (Ib.)    272 

11.  A  service  of  a  notice  must  be  on  some  person 
in  the  house  or  office  of  the  attorney  of  the  opposite 
party :  and  it  must  be  shown  that  every  thing  has 
been  done  to  bring  it  home  to  the  party. 

Getetonv.Swartwout,  (136)    272 

12.  In  error  from  a  court  of  Common  Pleas,  the 
plaintiff  may  proceed  by  a  rule  on  the  defendant  to 
join  in  error,  or  by  a  scire  facias  ad  audiendum  er- 
rores. 

Sheldon  v.  ZTEvers,  (169)    286 

13.  Where  bail  are  relieved  on  payment  of  costs, 
it  is  a  condition  which  they  must  offer  to  perform 
without  waiting  for  the  plaintiff  to  tender  his  bill  of 
costs. 

Cathcart  v.  Cannon,  (220)    3O3 

14.  A  motion  to  set  aside  the  report  of  referees 
will  be  heard,  though  the  report  is  not  filed,  it  hav- 
i|ig  been  delivered  to  the  defendant's  attorney  who 
kept  it  in  his  pocket. 

Thompson  v.  Tompkins,  (238)    310 

15.  The  court  will  not  set  aside  a  judgment  entered 
on  a  verdict,  where  a  case  is  made,  nor  hear  the  mo- 
tion for  a  new  trial,  unless  an  order  to  stay  proceed- 
ings has  been  obtained. 

Van  Rensaelaer  v.  Dole,  (239)    31O 

16.  Where  the  plaintiff  was  under  a  stipulation  to 
try  a  cause  at  the  next  circuit  in  New  York,  or  be 
nonsuited,  the  prevalence  of  an  epidemic  fever  in 
New  York,  was  held  a  sufficient  excuse  for  not  pro- 
ceeding to  trial,  and  to  prevent  a  nonsuit. 

Torrey  v.  Moreluruse,  (242)    311 

17.  Where  the  plaintiff's  attorney  resided  in  the 
city  of  New  York,  and  had  six  days  notice  of  a  mo- 
tion to  be  made  at  the  court,  at  Albany,  and  made 
affidavit  that  he  had  not  time  to  prepare  to  oppose 
the  motion,  it  was  held  a  sufficient  excuse  for  not 
opposing  the  motion  on  the  first  day  of  term. 

Id*  (Ib.)    311 

18.  Service  of  a  copy  of  a  bill  against  an  attorney, 
•on  a  person  in  his  office,  who  appeared  to  be  one  of 
his  family,  is  not  a  sufficient  service,  where  the  re- 
ceipt of  it  is  denied,  and  no  reason  shown  why  ther. 
was  not  a  better  service. 

Saltcr  v.  Bridyen,  (244)    312 

19.  After  a  verdict,  unless  a  certificate  or  order  of 
a  judge  to  stay  proceedings,  be  obtained,  the  party 

778 


in  whose  favour  the  verdict  is  given,  though  a  case 
be  made,  may  proceed  to  enter  up  judgment. 

Came  v.  Shzphard,  (245)    313 

20.  After  a  judgment  is  entered  up  on  a  verdict, 
bhe  court  will  not  hear  a  motion  to  set  it  aside,  un- 
less there  has  been  a  certificate  of  a  judge,  or  an  or- 
der to  stay  proceedings.  (Ib.)    313 

21.  A  party  who  is  dissatisfied  with  the  refusal  of 
a  judge  to  grant  a  certificate,  or  order  to  stay  pro- 
ceedings, may  apply  to  the  court,  at  the  next  term, 
for  that  purpose.  (15.)    313 

22.  After  a  demurrer  is  put  in  and  withdrawn,  by 
the  plaintiff,  it  is  too  late  for  him  to  move  that  the 
defendant  elect  and  abide  by  one  of  his  pleas. 

Dole  v.  Moulton,  (246)    313 

23.  Before  a  default  for  not  joining  in  demurrer, 
a  party  may  amend  the  pleading  demurred  to,  but 
he  cannot  add  a  new  plea. 

Id.  (Ib.)    313 

24.  If  a  plaintiff  voluntarily  suffers  a  nonsuit,  and 
then  brings  a  second  action,  without  paying  the 
costs  of  the  first,  the  defendant  may  at  any  time  be- 
fore trial,  move  for  a  stay  of  proceedings,  until  the 
costs  of  the  first  suit  are  paid. 

CuuUr  v.  Vanderwerk,  (247)    313 

25.  Both  parties  in  replevin  are  actors,  and  judg- 
ment as  in  case  of  nonsuit,  for  not  proceeding  to 
trial,  is  never  granted. 

Barrett  v.  Forrester,  (Ib.)  314 

6.  the  plaintiff  cannot  amend  his  declaration, 
after  plea  pleaded, without  paying  costs  and  giving 
an  imparlance. 

Holmes  v.  Lansing,  (248)    314 

27.  A  motion  to  set  aside  proceedings  for  irregu- 
larity, must  be  made  at  the  next  term  after  the 
irregularity  happens. 

M'Evers  v.  Markler,  (248)    314 

28.  If  a  writ  of  right  be  not  returned  on  theonwwto 
die  post,  and  the  tenant  means  to  put  the  demandant 
out  of  court,  he  should  enter  a  ne  recipiatur. 

Sacket  v.  Lothrop,  (249)    314 

29.  A  plea  of  privilege  by  an  attorney  in  abate- 
ment, and  concluding  to  the  jurisdiction  of  the 
court,  is  not  to  be  treated  as  a  nullity ;   nor  does  it 
require  an  affidavit;  and  it  may  be  put  in  after 
special  bail  has  been  entered. 

Brooks  v.  Patterson,  (328)    341 

30.  Service  of  a  notice  of  a  motion,  by  leaving  it  at 
the  lodgings  of  an  attorney,  is  not  sufficient.    It 
must  be  served  personally,  or  be  left  at  his  office  or 
place  of  business. 

Jackson,  ex  dem.  Pickart,  v.  Eacker,        (331)    343 

31.  When  a  verdict  is  taken,  subject  to  the  opinion 
of  the  court,  on  points  reserved,  the  plaintiff  must 
make  up  the  case  and  have  it  settled,  and  cannot 
have  judgment  because  no  case  is  made. 

Eagle  v.  Alner,  (332)    343 

32.  The  right  of  proposing  amendments  to  a  case 
made,  does  not  authorize  the  party  to  substitute  a 
new  case.  (Ib.)    342 

33.  Where  on  a  writ  of  right  a  special  imparlance 
is  granted  to  the  first  day  of  the  next  term,  the  ten- 
ant is  bound  to  plead  on  that  day,  and  is  not  allowed 
until  the  unarto  die  post. 

Haines  v.  Biuld,  (3*5)    344 

34.  The  demandant  on  a  writ  of  right  is  entitled 
to  a  view,  as  a  matter  of  course, 

Id.  (Ib.)  344 

a5.  Where  the  attorney  of  the  defendant  gave 
notice  of  special  bail  before  judgment,  but  the  bail 
was  not  actually  filed,  it  was  ordered  to  be  filed 
nunc  pro  tune,  and  that  the  attorney  pay  the  costs 
of  the  motion  for  that  purpose. 

Britt  v.  Van  Norden,  (390)    363 

36.  If  the  defendant  neglects  to  give  notice  of  a 
motion  for  a  commission   to  examine  witnesses, 
until  after  the  cause  is  noticed  for  trial,  he  must 
pay  the  costs  of  the  notice. 

Burr  v.  Skinner,  (391)    363 

37.  Where  no  attorney  appears  for  the  defend- 
ant, the  service  of  a  copy  of  the  declaration,  by 
putting  it  up  in  the  office,  with  a  notice  to  plead  in 
20  days,  is  sufficient. 

Graves  v.  Hassenfrat,  (Ib.)    363 

38.  On  affidavit  of  the  tenant  in  ejectment,  that 
one  of  the  lessors  of  the  plaintiff  was  dead,  at  the 
commencement  of  the  suit,  the  demise  from  such 
lessor  was  ordered  to  be  struck  out  of  the  declara- 
tion. 

Jackmn,  ex  dem.  Butter,  v.  Ditz,         (393)    364 

39.  To  change  the  the  venue  in  a  cause,  it  is  not 
enough  that  material  witnesses  reside  in  another 
county,  but  the  party  must  show  that  there  is  some 
material  fact  happening  in  the  county  to  which  he 
wishes  the  venue  to  be  changed. 

Gourley  v.  Shoemaker,  (392)    364 

COL.,  &  COL.  &  CAI.,  &  J's.  CAS.  1,  2,  3. 


GENERAL  INDEX. 


40.  A  point  reserved  by  the  judge  at  .ZVfei  Prius  is 
like  a  special  verdict,  and  the  plaintiff  must  prepare 
the  case  and  open  the  argument. 

Percival  v.  Jones,  (393)    364 

41.  Where  the  defendant  was  sued  on  a  note  be- 
fore it  was  due,  and  put  in  bail,  and  pleaded  in 
chief,  it  was  held  that  it  was  too  late  afterwards  to 
make  the  objection. 

Crygier  v.  Long.  (II).)    364 

42.  Costs  were  granted  against  the  plaintiff  for  not 
proceeding  to  trial  pursuant  to  notice,  though  the 
defendant  s  objecting  to  the  jury  process  was  the 
reason  that  the  cause  was  not  tried. 

Dill  v.  Wood,  (394)    364 

43.  On  the  affidavit  of  the  defendant,  of  the  ab- 
sence of  a  material  witness  abroad,  the  meeting  of 
referees  was  postponed  for  two  months. 

Bird  v.  Sands,  (Ib.)    364 

44.  Where  the  tenant  in  a  writ  of  right,  demands 
a  view,  it  is  the  duty  of  the  demandant  to  sue  out 
the  writ  of  view,  and  if  he  does  not,  he  will  be  non- 
•suited. 

Scofield  v.  Lodie,  (395)    365 

45.  Under  a  consolidation  rule,  after  judgment  in 
one  cause,  the  defendants  in  the  other  causes  have 
8  days  to  pay  the  money,  after  the  judgment  and 
taxation  of  costs ;  and  if  the  judgment  is  rendered 
in  Albany,  and  the  defendants  live  in  New  York, 
they  have  14  days  for  that   purpose,  and  so  vice 
versa ;  but  the  plaintiff  may,  for  his  own  security, 
enter  up  judgments  in  the  other  causes  immediate- 
ly, but  the  costs  are  to  be  deducted  if  the  money  is 
paid  in  time. 

Earl  v.  Lefferts,  (395)    365 

46.  After  the  order  of  the  court  in  a  cause,  a 
further  order  of  a  judge  at  his  chambers  on  the 
same  matter,  is  irregular. 

Stansbury  v.  Durelli  (396)    365 

47.  When  the  proceedings  in  a  cause  are  stayed  on 
payment  of  costs,  it  is  the  duty  of  the  defendant  to 
•seek  the  plaintiff,  and  tender  the  costs. 

Id.  (Ib.)   ,365 

48.  Special  bail  need  not  justify,  unless  required  so 
to  do. 

Id.  (Ib.)    365 

49.  When  the  defendant  pleads   another   action 
pending,  the  plaintiff  may  enter  a  nil  capiat  per 
breve  in  the  first  suit,  any  time  before  a  replication 
to  the  plea  in  abatement,  and  that  without  leave  of 
the  court,  or  payment  of  costs. 

Marston  v.  Lawrence  and  Dayton,     (397)    366 

50.  Where  the  defendant  having  put  in  bail, which 
was  excepted  to,  tendered  the  money  due  to  the 
plaintiff  who  did  not  ask  for  a  trial,  the  court  re- 
fused to  fix  the  sheriff  by  an  attachment. 

Post  v.  Van  Dine,  (412)    373 

51.  If  the  defendant's  attorney  swears  that  he  sent 
a  plea  to  the  plaintiff's  attorney  by  mail,  and  that 
he  believes  that  it  was  received,  the  court  will  pre- 
sume that  it  was  received  by  the  plaintiff's  attorney 
unless  the  contrary  be  shown. 

Stafford  v.  Cole  and  Spalding,  (413)    372 

52.  The  sickness  of  bail  was  admitted  as  a  suffi- 
cient excuse  for  not   surrendering  the   principal 
within  the  8  days. 

Boardman  and  Hunt  v.  Fowler,         (Ib.)    372 

53.  Special  bail  may  depute   another  person   to 
make  the  surrender  of  the  principal,  ex  necessitate. 

Id.  (Ib.)    372 

54.  The  service  of  a  second  declaration  in  ejectment 
by  the  plaintiff's  agent,  though  without  his  knowl- 
edge, is  a  waiver  of  the  first. 

Kemble  v.  Finch,  (414)    373 

55.  Where  a  declaration  has  been  served  with  oyer 
and  the  declaration    is   amended,  a  copy  of   the 
amended  declaration  served,  a  new  oyer  need  not 
be  delivered. 

Lefferts  v.  Byron,  (415)    373 

56.  In  proceedings  under  the  act  for  the  reilef  of 
debtors  with  respect  to  the  imprisonment  of  their 
persons,  creditors  residing  out  of  the  State,  as  it 
respects  notice,  are  to  be  considered  as  not  found. 

In  ReWilUams,  (416)    374 

See  affidavit.  Amendment.  Imparlance.  Depo- 
sitions de  bene  esse.  Ejectment.  Justice's  Court. 
Mandamus.  Venue. 

PRACTICE— Johns.  2. 

1.  Where  one  of  two  plaintiffs  resided  in  the 
State,  and  the  other  out  of  the  State,  and  the  plaint- 
iff within  the  State  died,  and  the  defendant  after- 
wards obtained  a  judgment,  it  was  held  that  the 
attorney  for  the  plaintiffs  was  not  liable  for  the 
costs. 

Jackson,  ex  dem.  Lewis  <fc  Ely,  v. 
Powell,  (67)    441 

COL  ,  &  COL.  &  CAI  ,  &  J.'s  CAS.  1,  2,  3. 


2.  An  affidavit  on  which  a  motion  is  made  for  a 
commission,  ought  to  state  that  there  are  material 
witnesses  to  be  examined  at  the  place  to  which  the 
commission  is  to  be  directed.    A  general  affidavit 
that   material   evidence  is  to  be  obtained  in   the 
cause  is  not  sufficient. 

Franklin  v.  The  United  Insurance 
Company,  (68)    441 

3.  Where  a  court  of  common  pleas  refuses  to  give 
judgment  in  a  cause,  this  court  will  not  grant  a 
mandamus,  until  after  the  rule  to  show  cause  has 
first  been  granted  for  that  purpose. 

The  People  v.  The  Judges  of  Cayuga, 
&c.,  (68)    441 

4.  An  affidavit,  on  which  a  motion  is  made  for  a 
commission  to  examine  witnesses,  may  be  made  by 
a  third  person,  not  a  party  to  the  suit. 

Demar  v.  Van  Zandt,  (69)    441 

5.  Where  a  rule  for  a  joinder  in  error  to  a  certio- 
rari  is  obtained,  the  party  must  apply  at  the  next 
term  for  the  effect  of  nis  rule ;  if  a  term  intervenes, 
he  will  be  presumed  to  have  waived  the  rule. 

Seely  v.  Shattuck,  (69)    441 

6.  Where  a  party  sues  out  a  commission  to  exam- 
ine witnesses,  and  does  not  use  due  diligence  to  get 
it  returned  in.  proper  time,  or  the  return  is  not  prop- 
erly made,  the  court  will  permit  the  trial  to  pro- 
ceed, notwithstanding  the  commission. 

Rush  v.  Cobhett,  (70)    442 

7.  An  attachment  against  a  sheriff  for  not  bring- 
ing in  the  body  of  a  defendant  cannot  be  issued 
until  twenty  days  after  service  of  a  notice  of  a  rule 
for  that  purpose. 

Stewart  v.  WiUiams,  (71)    442 

8.  Where,  after  a  verdict,  and  within  the  two  days 
allo\yed  for  making  a  case,  the  defendant's  attorney 
applied  to  the  plaintiff's  attorney  for  certain  papers 
which  had  been  read  in  evidence  at  the  trial,  and 
which  were  necessary  to  be  inserted  in  the  case, 
but  which  were  refused  by  the  plaintiff's  attorney, 
and  the  defendant's  attorney  for  that  reason  could 
not  make  up  the  case,  the  court  ordered  the  plaint- 
iff's attorney  to  furnish  the  papers  to  the  defend- 
ant's attorney,  or  permit  him  to  take  extracts,  and 
that  the  proceedings  should,  in  the  mean  time,  be 
stayed. 

Jackson,  ex  dem.  Martin,  v.  Platt,        (71)    442 

9.  If  a  court  of  common  pleas,  on  a  recovery  by 
administrators,  of  damages  for  less  than  $25,  give 
judgment  for  the  damages,  but  not  for  the  costs, 
this  court  will  not  grant  a  mandamus  to  compel 
them  to  give  judgment  also  for  costs,  but  leave  the 
party  to  seek  his  remedy  by  writ  of  error. 

Janson  et  al.,  Administrators,  r. 
Davison,  (72)    442 

10.  Where  the  proceedings  against  bail  were  irreg- 
ular, but  they  suffered  two  terms  to  elapse,  after  a 
knowledge  of  the  irregularity,  before  they  applied 
to  set  aside  the  proceedings,  the  motion  was  denied, 
as  being  too  late. 

Jones  v.  Dunning  &  Doe,  (74)    443 

11.  Where  the  tenant  on  a  writ  of  right,  vouches, 
and  a  writ  of  summons  issues,  which  is  irregular  in 
its  service,  or  defective  in  the  return,  an  alias  sum- 
mons will  be  granted  against  the  vouchee. 

Scoffleld  et  ux.  v.  Loder,  (75)    443 

12.  Where  the  demandant  in  a  real  action  enters 
into  a  stipulation  to  try  the  cause  or  be  nonsuited, 
he  must  pay  the  costs  of  the  last  circuit  or  sittings, 
in  the  same  manner  as  plaintiffs  in  other  causes,  for 
not  proceeding  to  trial. 

Philips  v.  Peck,  (104)    453 

13.  Where  a  party  agreed  to  stay  proceedings  in  a 
bail-bond  suit,  on  payment  of  costs,  the  original 
suit  having  been  settled,  and  the  defendant  neg- 
lecting to  pay  the  costs,  the  plaintiff  proceeded  in 
the  bail-bond  suit,  the  court  refused  to  set  aside 
the  proceedings,  as  the  plaintiff  had  no  other  way  of 
obtaining  his  costs. 

CampbeU  v.  Grove,  (105)    454 

14.  Counter  affidavits  may  be  read  to  oppose  a 
motion,  though  copies  have  not  been  served.    But 
supplementary  affidavits  cannot  be  read  in  support 
of  the  motion. 

Id.  (Ib.)    454 

15.  In  ejectment,  the  tenant  must  plead  at  the 
time  he  signs  the  consent  rule. 

Jackson,  e.r  dem.  VanAlen,  r. 

Vtechcr,  (106)    454 

16.  A  default  for  want  of  a  plea  must  be  entered 
against  the  casual  ejectors,  not  the  tenant. 

Id.  (Ib.)    454 

17.  The  trustees  of  an  absent  or  absconding  debt- 

779 


XXXIV 


GENERAL  INDEX. 


or  may  be  compelled  to  acc9unt  on  the  motion  of 
the  debtor  as  well  as  the  creditor. 

Case  of  Cascaden,  an  Absconding 
Debtor,  .  (107)    454 

18.  If  a  party  wants  time  to  plead,  he  must  apply 
to  a  judge  for  that  purpose. 

Gorham  v.  Lansing  &  Doe,  (107)    454 

19.  In  an  application  to  set  aside  a  default  for  not 
pleading,  bail  are  not  entitled  to  any  peculiar  indul- 
gence. 

Id.  (Ib.)    454 

20.  A  justice  cannot  move  to  quash  a  certinrart 
directed  to  him.    He  must  obey  it  at  his  peril,  and 
return  what  is  legally  required  of  him,  and  not  take 
notice  of  what  he  is  not  bound  by  law  to  return. 

Van  Patten  v.  Ouderhirh,  (108)    455 

21.  An  attorney -is  not  bound  to  file  security  for 
costs  where  one  of  the  plaintiffs  resides  in  the  State, 
though  he  may  be  insolvent. 

Pflster  &  Macomb  v.  GiUespie,          (109)       455 
23.  In  ejectment,  signing  the  consent  rules,  deliv- 
ering a  new  declaration,  putting  in  common  bail, 
and  filing-  a  plea,  are  all  simultaneous  acts ;  and  if 
the  tenant  neglects  to  file  the  plea  instanter,  a  de- 
fault may  be  entered  against  the  casual  ejector. 
Jackson,  ex  dem.  Quackenboss,  v. 
Woodward.  (110)    456 

23.  In  an  action  of  assumpstt,  the  venue  will  not 
be  changed  on  the  general  affidavit. 

Wheaton  v.  Slosson,  (111)    456 

24.  A  trial  by  record  is  to  be  brought  on  by  mo- 
tion, pursuant  to  a  notice  of  four  days,  as  in  cases 
of  special  motions. 

Knapp  v.  Mead,  (Ib.)    456 

25.  The  demandant  in  a  writ  of  right   may  be 
called;  on  the  first  day  of  the  term,  and  his  default 
entered  for  his  non-appearance ;  and  if  he  does  not 
appear  on  the  qarto  die  post,  and  excuse  his  de- 
fault, he  will  be  nonsuited. 

Swift  v.  Livingston,  (112)    456 

26.  A  default  for  not  pleading  will  be  set  aside,  on 
an  affidavit  of  merits,  if  the  defendant  also  shows  a 
satisfactory  excuse  for  not  pleading. 

Ministry  v.  Edwards,  (113)    457 

27.  Where  the  trial  of  a  cause  is  put  off,  on  pay- 
ment of  costs,  the  plaintiff  may  demand  the  costs 
immediately,  and  if  not  paid,  may  proceed  in  the 
case,  or  he  may  have  the  costs  regularly  taxed,  on 
due  notice,  and  if,  after  service  of  the  taxed  bill, 
the  costs  are  not  paid,  he  may  take  out  an  attach- 
ment, instanter. 

Jackson,  ex  dem.  Lewis,  et  al.,  v. 
Larroway,  (114)    457 

28.  Notice  of  taxing  costs  must  be  served  on  the 
attorney,  not  on  the  counsel  in  the  cause. 

Id.  (Ib.)    457 

29.  The  two  days  allowed  by  the  rule  of  the  Janu- 
ary Term  1799,  tor  making  up  a  case,  cannot  be  en- 
larged by  the  order  of  the  judge. 

Jackson,  ex  dem.  Low,  v.Hombeck     (115)    457 

30.  An  affidavit  to  change  the  venue  made  by  the 
defendant's  attorney,  stating  that  the  plaintiff  con- 
fessed that  the  cause  of  action  arose  in  another 
county,  is  sufficient. 

Scott  v.Gibbs,  (116)    457 

31.  A  counter  affidavit  of  the  plaintiff  that  he  be- 
lieved that  he  could  not  have  a  fair  trial  in  the 
county   to   which   the   venue   was   moved   to   be 
changed,  is  not  enough.    He  ought  to  state  the 
facts  on  which  his  belief  is  founded. 

Id.  (Ib.)    457 

32.  If  the  parties  agree  that  the  sheriff  may  admit 
any  evidence  on  a  writ  of  inquiry  before  him,  which 
could  have  been  given  on  the  trial,  the  court  will 
not  set  aside  the  inquisition  because  improper  evi- 
dence had  been  received,  or  proper  evidence  reject- 
ed by  the  sheriff. 

Sliarp  v.  Dusenbury,  (117)    458 

33.  An  affidavit  of  service  on  a  clerk  of  an  attor- 
ney, must  state  that  the  clerk  was,  at  the  time,  in 
the  office  of  the  attorney. 

Paddock  v.  Behee,  (Ib.)    458 

34.  This  court  will  award  a  mandamus  to  a  court 
of  common  pleas,  to  compel  them  to  sign  a  bill  of 
exceptions. 

The  People,  ex  relat.  Allaire,  v.  The 
Judges  of  Westchester  Common 
Pleas,  (118)    458 

35.  Where  plaintiff,  after  he  had  assigned  a  judg- 
ment to  a  third  person,  entered  up  satisfaction  on 
the  record,  the  court,  on  motion,  ordered  the  satis- 
faction to  be  vacated. 

Warden  v.Eden,  (126)    461 

36.  Where  an  attorney  is  employed,  notice  must 
be  served  on  him,  not  on  the  party. 

Id.  (Ib.)    461 

780 


37.  Where  a  verdict  is  found  for  the  plaintiff,  and 
the  judgment  is  arrested,  and  the  plaintiff  wishes  to 
bring  a  writ  or  error,  the  proper  course  is  for  the 
plaintiff  to  move  the  court  below  for  judgment  for 
the  defendant  against  himself,  for  the  insufficiency 
of  the  declaration,  on  which  judgment  a  writ  of 
error  will  lie,  but  not  on  an  arrest  of  judgment. 

Fisli  v.  Weatherwax,  (215)    492 

38.  If  the  court  below  refuses  to  give  such  judg- 
ment, on  the  prayer  of  the  party,  this  court  will 
grant  a  mandamus  to  compel  them  to  give  judg- 
ment. 

Id.  (Ib.)    49» 

39.  Where  the  plaintiff  stipulates  to  try  the  cause 
at  the  next  circuit,  but  does  not,  and  the  defendant 
neglects  to  move  for  judgment,  as  in  case  of  non- 
suit, at  the  next  term  after  such  default,  it  is  a 
waiver  of  the  default ;  and  the  plaintiff  will  be  en- 
titled to  stipulate  anew,  if  the  motion  is  made  at  a 
subsequent  term. 

Haskins  v.  Sebor,  (217)    493 

40.  Where  a  material  witness  for  the  plaintiff  un- 
expectedly went  abroad,  so  that  he  could  not  be 
subpoenaed  at  the  trial,  it  was  held  a  sufficient  ex- 
cuse for  the  plaintiff  for  not  proceeding  to  trial 
pursuant  to  his  stipulation. 

Nixen  v  Hallett  &  Bowne,  (218)    493- 

41.  Where  a  verdict  is  taken,  subject  to  the  opin- 
ion of  the  court  on  a  case  stated,  the  counsel  for  the 
plaintiff  opens  the  argument  of  the  cause. 

Jacks(m,  ex  dem.  Gansevoort,  v. 
Murray,  (219)    493 

42.  A  declaration  was  allowed  to  be  amended  by 
increasing  the  amount  of  damages  laid  in  the  con- 
clusion, on  payment  of  costs. 

Bogart  v.  M' Donald,  (Ib.)    493 

43.  If  the  principal  be  surrendered  pending  the 
suit  by  scire  facias  against  the  bail,  an  exoneretur 
will  not  be  allowed  to  be  entered,  until  the  costs  of 
the  proceedings  against  the  bail  are  paid. 

Parker  v.  Tomlinson,  (220)    493- 

44.  A  rule  regularly  obtained,  in  the  absence  of 
the  counsel  of  the  other  party,  will  not  be  vacated 
at  a  subsequent  term. 

HOdreth  v.  Harvey,  (221)    493 

45.  A  member  of  Congress  is  privileged  from  ar- 
rest only  while  at  Congress,  or  actually  going  to  or 
returning  from  Congress. 

Lewis  v.  Elmendorf,  (222)    493 

46.  Where  an  action  was  commenced  before  the 
debt  was  due,  and  an  inquest  was  taken  by  default, 
the  court  refused  to  set  aside  the  verdict,  as  the  de- 
fendant admitted  the  debt  to  be  due  at  the  time  of 
making  his  application  to  set  it  aside. 

Laivrence  v.  Bowne,  (226)    495 

47.  Where  a  judge's  order  was  obtained  to  enlarge 
the  time  for  pleading,  until  the  second  day  of  the 
term,  it  was  held  that  the  defendant  had  until  the 
third  day  to  plead,  and  a  default  entered  on  the 
second  day  was  irregular. 

Thomas  v.  Douglas,  (Ib.)    495- 

48.  After  a  rule  to  change  the  venue,  the  plaintiff 
entered  a  default  for  want  of  a  plea,  without  alter- 
ing the  declaration  filed,  or  filing  a  new  declaration, 
and  it  was  held  irregular. 

Id.  (Ib.)    495 

49.  Where  the  attorney  for  the  defendant  suffered 
an  inquest  to  be  taken  by  default,  at  the  sittings, 
supposing  there  was  no  defense,  the  court  refused 
to  set  aside  the  default,  to  let  the  defendant  in  to 
prove  usury  as  a  defense. 

Crammond  v.  Roosevelt,  (282)    516 

50.  Where  the  principal,  against  whom  a  commis- 
sion of  bankruptcy  had  issued,  was  arrested  on  a 
ca.  sa.  and  discharged,  it  was  held  that  the  bail  were 
also  discharged,  and  that  it  was  not  necessary  to 
enter  an  exrmeretur  on  the  bailpiece. 

Milner  et  al.  v.  Green,  (283)    516 

51.  After  a  rule  for  judgment  on  a  demurrer,  it  is 
too  late  to  apply  at  the  next  term  for  leave  to  with- 
draw the  demurrer. 

Seaman  v.  Haskins,  (284)    516 

52.  A  commission  to  examine  witnesses  will  not 
be  granted  so  as  to  stay  the  proceedings  in  a  cause, 
unless  the  party  swears  positively  that  he  has  a 
good  defense  on  the  merits,  and  that  the  witnesses 
named  are  material. 

Franklin  v.  The  United  Insurance 
Company,  (285)    517 

53.  Where  a  judgment  by  default  for  want  of  a  plea 
was  regularly  obtained  against  an  administratirx, 
she  was  allowed  to  come  in  and  plead;  but  the 
judgment  was  directed  to  stand,  as  security  for  the 
assets  remaining  after  payment  of  prior  judgments 
confessed,  and  for  assets,  quando  acciderint. 

NUchie  v.  Smith,  (286)    517 

COL.,  &  COL.  &  CAI.,  &  J's.  CAB.  1,  2,  3. 


GENERAL  INDEX. 


54.  Where  the  defendant  gives  notice  of  bail  in 
•propria  persona,  and  the  plaintiff  serves  him  with  a 
copy  of  the  declaration  and  notice  of  rule  to  plead, 
and  the  defendant,  afterwards,  retains  an  attorney, 
the  plaintiff  need  not  serve  another  copy  of  the 
declaration  and  notice  on  such  attorney. 

Haskins  v.  Snowden,  (287)    517 

55.  Where  a  person  brought  a  suit  in  the  name  of 
another,  without  his  privity  or  consent,  it  was  held 
to  be  a  contempt  of  the  court,  and  the  nominal 
plaintiff  being1  nonsuited,  an  attachment  was  grant- 
ed against  the  person  who  brought  the  suit,  for  the 
costs. 

Butterworth  v.  Stagg,  (293)    52O 

56.  Where  the  plaintiff  does  not  declare  within  the 
time  required  by  the  statute,  the  defendant  cannot 
enter  a  judgment  of  non  pros,  without  having  pre- 
viously entered  a  rule  for  the  plaintiff  to  declare, 
and  served  him  with  a  notice  of  such  rule. 

Gilbert  v.  Field,  (293)    52O 

57.  Where  bail  are  personated,  the  court  will,  in 
their  discretion,  on  motion,  order  a  vacatur  of  the 
bail ;  but  if  there  has  been  a  felonious  personating 
of  bail,  they  will  stay  the  order  for  relief,  until  the 
party  personated  has  prosecuted  the  felon. 

Renoard  v.  Noble,  (293)    52O 

58.  An  action  for  use  and  occupation  is  not  local 
in  its  nature,  being  founded  in  privity  of  contract, 
and  not  in  privity  of  estate. 

Corporation  of  New  York  v. 
Dawson,  (335)    535 

59.  An  action  of  debt  on  a  judgment  of  a  court  9f 
common  pleas,  is  local,  and  the  venue  must  be  laid 
in  the  county  where  the  judgment  was  given. 

Barnes  v.  Kenyan,  (381)    55O 

60.  Where  an  indictment  for  a  forcible  entry  and 
detainer  is  removed  into  this  court,  the  defendant 
is  entitled  to  plead  de  novo ;  and  a  rule  to  assign  er- 
rors is  a  nullity,  but  the  prosecutor,  on  the  return 
of  the  certiorari,  should  serve  a  rule  on  the  defend- 
ant to  plead  or  abide  by  his  former  plea. 

The  People,  ex  rel.  Ouackenboss, 
v.Burtch,  (401)    556 

61.  Where  the  principal  in  a  cause  had  obtained 
his  certificate  of  discharge  under  the  bankrupt  law 
of  the  United  States,  before  the  bail  had  become 
Hxed,  the  court  ordered  an  exoneretur  to  be  entered 
on  the  bailpiece. 

Kane  v.  Ingraham,  (Ib.)    556 

62.  Bail  are  not  considered  as  fixed,  until  after 
eight  days  in  full  term  after  the  return  of  the  pro- 
cess against  them,  or  within  the  time  allowed  for 
the  surrender  of  the  principal. 

Id.  (Ib.)    556 

63.  In  an  action  of  debt  on  a  bond,  conditioned 
lor  the  performance  of   covenants,  the   plaintiff 
must  assign  breaches,  and  have  the  damages  as- 
sessed, and  may  then  enter  judgment  for  the  pen- 
alty pro  forma,  and  issue  execution  for  the  damages 
and  costs ;  and  if  the  damages  are  assessed  at  six 
cents,  he  will  be  entitled  to  nominal  damages  for 
the  detention  of  his  debt,  and  may  enter  up  judg- 
ment for  the  penalty,  so  as  to  recover  full  costs. 

Hodges  v.  Suffett,  (406)    558 

PRACTICE— Johns.  3. 

1.  Where  the^twenty  days  for  pleading  are  expired, 
when  the  venue  is  changed,  the  defendant  must 
plead  instanter  to  the  amended  declaration ;  and  if 
the  twenty  days  are  not  out,  he  is  entitled  only  to 
the  remaining  days,  within  which  to  plead  to  a  new 
declaration. 

Russell  v.  Ball,  (91)    629 

2.  The  granting  of  commissions  to  examine  wit- 
nesses abroad,  rests  in  the  sound  discretion  of  the 
court. 

Vandervoort  v.  The  Columbian  Insur- 
ance Company,  (137)    645 

3.  Where  a  motion  was  made,  on  the  usual  affida- 
vit, to  examine  the  Portuguese  Secretary  of  State 
at  Lisbon,  in  an  action  of  a  policy  of  insurance, 
where  the  loss  happened  on  the  coast  of  Brazil,  the 
court  refused  a  commission,  unless  the  party  would 
disclose  the  nature  and  object  of  the  evidence  he 
wished  to  obtain,  and  show  how  it  was  material. 

Id.  (Ib)    645 

4.  Where  the  attorney  of  a  party  dies,  actual  no- 
tice or  warning  must  be  given  to  him  to  appoint 
another  attorney.    A  notice  put  up  in  the  clerk's 
office,  or  a  notice  of  proceedings  in  the  cause,  is  not 
sufficient. 

HUdreth  v.  Harvey,  (300)    7O3 

PRACTICE  IN  THE  COURT  OF  ERRORS— 

Johns.  1. 

On  an  appeal  from  an  interlocutory  order  of  the 
COL,.,  &  COL.  &  CAI.,  &  J's.  CAS.  1,  2,  3. 


Court  of  Chancery,  directing  an  issue  to  be  tried  at 
law,  the  Court  of  Errors  will  hear  and  decide  on  the 
whole  merits  of  the  cause. 

Le  Guen  v.  Gouverneur  and  Kemble, 

(436)    381 
See  bill  in  chancery,  1,  2,  3,  4. 

PREFERENCE— Col.  and  Cai. 

1.  Attorney-General  and  district   attorney  have 
no  preference  at  sittings  or  circuit  in  the  trial  of 
their  causes.  (400)    177 

2.  The  court  will  give  the  preference  to  a  cause 
where  a  public  officer  states  that  the  peace  of  a 
county  depends  on  the  decision.  (419)    183 

PRIVILEGE— Johns.  1. 

A  member  of  the  Assembly  is  not  entitled  to  his 
privilege  after  he  has  reached  home,  though  within 
the  14  days  allowed  for  his  return. 

Colvin  v.  Morgan,  (415)    373 

PRIVILEGE— Johns.  2. 

A  member  of  Congress  is  privileged  from  arrest 
only  while  at  Congress,  or  actually  going  to  or  re- 
turning from  Congress. 

Lewis  v.  Elmendorf,  (222)    494 

PROCESS-Col.  and  Cai. 
Process  returnable  "before  us"  is  void. 

(85,89)    52,92 

PROMISE  MUTUAL— Col.  and  Cai. 
Mutual  promises  must  be  concurrent  or  they  are 
nuda  pacta.  (333)    158 

PROMISE  OF  MARRIAGE— Johns.  1. 

See  Evidence,  5,  6. 

PROMISSORY  NOTES— Johns.  1. 
See  Bills  of  Exchange. 


QUARINTINE— Johns.  3. 

See  Consignee. 

QUO  WARRANTO— Johns.  3. 
Where  a  person  is  already  in  office,  by  color  of 
right,  the  court  will  not  grant  a  mandamus  to  ad- 
mit another  person,  who  claims  to  have  been  duly 
elected.  The  proper  remedy  is  by  an  information 
in  the  nature  of  a  quo  warranto. 

Ihe  People  v.  The  Corporation  of  New 

York.  (79)    624 


REAL  ACTIONS-Col.  and  Cai. 
See  View,  2. 

1.  The  tenant  must  enter  a  ne  recipiatur  on  the 
quarto  die  post  if  he  would  put  the  demandant  out 
of  court.  (91,  95)    53,  94 

2.  If  the  writ  is  not  returned  on  the  quarto  die  post 
the  demandant  may  enter  a  rule  for  the  sheriff  to 
return  it  sedentia  curia  or  be  attached,  and  by  this 
rule  the  demandant  is  considered  as  continued  in 
court  from  day  to  day  during  the  term. 

(91,95)     53,94 

3.  If  the  demandant  stipulates  on  a  motion  for 
judgment  as  in  case  of  nonsuit,  he  must  pay  the 
costs  of  the  circuit  as  in  ordinary  cases. 

(112,113)    59,99 

4.  Tenant  is  demandable  on  the  quarto  die  post  only, 
but  the  demandant  on  the  primo  die  placiti,  and  if 
he  does  not  appear,  his  default  may  be  entered,  and 
this  subjects  him  to  a  nonsuit,  unless  he  excuses  it 
on  the  quarto  die  post.  (123, 125)    62,  1O2 

5.  In  all  real  actions,  judgment  cannot  be  entered 
without  motion  in  open  court.  (482)    2O1 

6.  When  an  elector  of  the  grand  assize  has  left  the 
State,  the  court  will  grant  leave  to  amend  the  panel, 
by  adding  another,  (495)    2O1 

RECEIPT— Johns.  1. 
See  Evidence,  5. 

RECORD-Col.  and  Cai. 

The  court  will  allow  the  record  of  quashing  an 
indictment  for  forcible  entry  and  detainer,  to  be 
filed  mine  pro  tune,  (458)  194 

RECORDER  OF  NEW  YORK— Johns.  3, 
This  court  has  the  same  power  over  the  proceed- 
ings of  the  recorder  of  New  York,  while  acting  as 
commissioner,    as   when   acting   as   recorder;  but 

781 


GENERAL  INDEX. 


they  will  not  exercise  the  power  where  the  recorder 
has  a  discretion  by  the  act,  and  has  acted  defini- 
tively, as  granting  a  supersedeas  under  the  act  con- 
cerning1 absconding  debtors.  The  regular  course  is 
to  bring  up  the  proceedings  of  the  record,  by 
ccrtiorari,  not  by  an  order  of  this  court. 

Learned  et  al  v.  Ducal.  (141)    647 

REFERENCE— Col.  and  Cai. 

1.  Setting  aside  report  of  referees. 

(204,  258)     124,  138 

2.  The  court  will  not  grant  a  rule  for  a  reference, 
if  the  opposite  party  swears  that  a  point  of  law  will 
arise,  but  he  must  set  it  forth.  (207)    124  i 

3.  Where  referees  neglect  or  refuse  to  report,  the  i 
court  will,  on  motion,   order  them    to  report  by 
a  day  certain.  (218)    127 

4.  Quaere.    Whether  a  plea  puis  darreln  continu-, 
ance  can  be  recieved  by  referees.  (Ib.)    127 

5.  When  there  are  cross  actions,  the  one  between 
an  individual  and  one  of  a  firm,  and  the  other  be- 
tween that  individual  and  the_  firm,  a  sum  found 
against  the  individual  partner  in  the  one  cannot  be 
set  off  against  the  partnership  claim  in  the  other. 
And  if  the  referees  set  off  the  one  against  the  other, 
the  court  will  set  the  report  aside.  (259)    138 

6.  Reference  refused  where  points  of  law  might 
arise.  (403)    178 

7.  The  affidavit  need  not  state  the  points;  it  is 
sufficient  to  state  "as  advised  by  counsel." 

(433)    187 

8.  Reference  cannot  be  ordered  at  the  circuit. 

(470)    198 
REFERENCE— Johns.  1. 

1.  Where  the  facts  in  a  case  are  various  and  intri- 
cate, and  the  matters  involved  in  doubt  and  obscu- 
rity, a  report  of  referees  will  be  set  aside,  in  order 
to  let  in  new  light,  and  have  the  merits  re-exam- 
ined. 

Allard  v.  Mouchong,  (280)    325 

2.  Where  the  rule  of  reference  in  a  cause  requires 
the  referees  to  report  within  a  limited  time,  the 
power  of  the  referees  is  at  an  end,  if  they  do  not 
report  within  the  time  limited. 

Brower  v.  Kimley,  (334)    344 

3.  Where  a  cause  was  referred  to  three  persons, 
and  two  of  them  met  and  made  a  report,  without 
giving  notice  to  the  other  to  attend,  the  report  was 
set  aside  as  irregular. 

Id.  (Ib.)    344 

4.  On  the  affidavit  of  the  defendant  of  the  absence 
of  a  material  witness,  who  had  gone  abroad,  the 
meeting  of  referees  was  ordered  to  be  put  off  for 
two  months. 

Bird  v.  Sands,  (398)    366 

REFERENCE— Johns.  2. 

1.  If  referees  in  a  cause  unreasonably  refuse  an 
adjournment  requested  by  a  party,  to  enable  him  to 
produce  witnesses,  the  report  will  be  set  aside. 

Forbes  v.  Frary,  (224)    495 

2.  A  reference  of  a  cause  will  not  be  granted,  if  it 
appears  that  law  questions  will  arise. 

De  Hart  v.  Cmennoven,  (402)    557 

RELATION  OF  TIME— Johns.  1. 
See  Deed. 

REMAINDER-Johns.  3. 
See  Devise,  1. 

REMAINDER— Johns.  2. 
See  Devise,  2.    Limitations. 

REPLEVIN— Johns.  1. 
See  Practice,  25. 

REPRESENTATION-Johns.  1. 
See  Insurance,  28. 

REPRESENTATION— Johns.  2. 
If  a  person  proceeds  upon  the  information  of  an- 
other to  do  an  act  in  his  favor,  the  person  in  whose 
favor  the  act  is  to  be  done,  is  bound,  at  his  peril,  to 
see  that  the  information  given  is  correct. 

Fauoier  v.Hallett,  (233)    499 

See  Insurance,  12. 

RETURN  OF  PREMIUM-Johns.  1. 
See  Insurance,  13. 

REVOLUTION-Johns.  3. 

1.  The  American  Revolution   worked  no  forfeit- 
ure of  previously  vested  rights  in  land. 
Jackson,  ex  dem.  Oansevoort  et  al.,  v. 
lAtnn,  (109)    636 

782 


2.  Where  a  British  subject  died  seized  of  lands  in 
this  State,  in  1752,  leaving  daughters  in  England 
who  married  British  subjects,  and  neither  they  nor 
their  wives  were  American  citizens,  it    was  held 
that  the  husbands  of  the  heiresses  might  be  joined 
in  the  demise  with  their  wives,  in  order  to  maintain 
an  action  of  ejectment,  and  that  even  if  the  mar- 
riages were  subsequent  to  the  American  Revolu- 
tion, such  marriages  with    aliens   would  not   im- 
pair    the      rights     of    the    wives,    nor     prevent 
the  full  enjoyment  of  the  property,  according  to 
the  laws  of  the  marriage  state ;  especially  after  the 
provision  contained  in  the  9th  article  of  the  Treaty 
of  Amity  and  Commerce  with  Great  Britain,  of  the 
9th  of  November,  1794. 

Id.  (Ib.)    636 

3.  Though  in  cases  of  a  purchase,  the  law  will 
recognize  the  title  of  an  alien  in  lands,  until  office 
found ;  yet  in  case  of  a  descent,  the  law  takes  no 
notice  of  an  alien  heir,  on  whom,  therefore,  the  in- 
heritance is  not  cast.    But  where  the  title  to  land 
in  this  State  was  acquired  by  a  British  subject,  prior 
to  the  American  Revolution,  it  seems  that  the  right 
of  such  British  subject  to  transmit  the  same,  by 
descent,  to  an  heir  in  esse,  at  the  time  of  the  Revo- 
lution, continued  unaltered  and  unimpaired ;  the 
case  of  a  revolution  or  division  of  an  empire  being- 
an  exception  to  the  general  rule  of  law  on  this  sub- 
ject. 

Id.  .         (Ib.)    636 

See  Alien. 

RULES-Col.  and  Cai. 

See  Practice,  41.    Partition,  1,  3.    Trial  by  Pro- 
viso, 1. 

1.  Standing  Rules  of  the  court.  (1  to  20)    73  to  76 

2.  Rule  regulating  trials  by  record. 

(122, 123)    61,  101 

3.  Agreements  between  attorneys. 

(360,  431)     166,  186 

RULES  INTERPRETED— Col.  and  Cai. 
Rule  relating  to  amendments.          (88,  92)    53,  93 
4th.  Rule  of  January  Term,  1789.     (90,  94)    52,  93 
8th.  Rule  of  January  Term,  1789. 

(97, 101)    55,  95 
8th.  Rule  of  April  Term,  1799.  (313)    1O3 


SALE— Johns.  2. 

1.  A  purchased  a  negro  slave  of  B  for  $200,  for 
which  he  gave  his  bill  payable  in  five  months;  and 
it  was  agreed  between  the  parties  that  if  A  or  his 
wife  did  not  like  the  slave,  B  should  take  him  back, 
if  he  was  returned  any  time  within  five  months,  and 
refund  the  purchase  money.    A  offered  to  return 
the  slave  within  the  five  months,  and  B  refused  to 
take  him  or  refund  the  money.    A  having  paid  the 
bill,  brought  an  action  to  recover  back  the  purchase 
money.    It  was  held  that  A  was  entitled  to  recover 
the  amount,  as  damages  for  the  nonperformance 
of  the  agreement. 

Giles  n.  Bradley,  (253)    506 

2.  On  a  sale  of  lands  by  trustees,  or  persons  act- 
ing in  autre  droit,  they  are  not  responsible,  in  case 
of  an  eviction  of  the  purchaser,  unless  there  is 
fraud,  or  an  express  warranty. 

Murray  v.  Trustees  of  Ringwood 
Company,  (278)    574 

3.  Where  A  contracted  to  sell  a  house  and  lot  to 

B,  and  C  purchased  of  B  all  his  right,  &c.,  it  was 
held  that  C,  though  a  Itona  fide  purchaser,  without 
notice,  must  take  the  property  subject  to  all  the 
equity  existing  between    the  original  parties,  A 
and  B. 

Murray  v.  Oouverneur  et  al.,  (438)    569 

SALE  AT  AUCTION— Johns.  3. 
The  land  of  A  was  advertised  for  sale  by  the 
sheriff,  on  an  execution  against  A  at  the  suit  of  B. 

C,  who  had  purchased  the  land  without  knowing  of 
the  judgment  and  execution,  agreed  with  B,  who 
attended  the  sale,  that  if  he  would  not  bid  against 
him,  he  would  pay  B  the  amount  of  his  execution, 
and  give  him  his  note  for  the  further  sum  of  $150, 
and  B  acceded  to  the  terms  and  desisted  from  bid- 
ding.   In  an  action  on  the  note  against  C  by  the 
second  indorsee,  to  whom  it  had  been  negotiated 
after  it  had  become  due,  and  with  a  knowledge  of 
the  circumstances  under  which  it  was  given,  it  was 
held  that  the  consideration  of  the  note  might  be 
inquired  into,  and  that  the  consideration  being  un- 
conscientious,  and  against  public  policy,  the  note 
was  void- 

Jones  v.  Ca&well,  (29)    6O7 

COL.,  &  COL.  &  CAI.,  &  J.'s  CAS.  1,  2,  3. 


GENERAL,  INDEX. 


xxxvn 


SALE  AND  DELIVERY  OF  GOODS- Johns.  3. 

A  being  indebted  to  B  by  a  promissory  note,  for 
$1,167,  it  was  agreed  in  writing  between  them,  that 
A  should  deliver  to  B  as  much  coal,  at  810  per  chal- 
dron, as  would  amount  to  the  sum  due  on  the  note, 
the  coal  to  be  of  the  like  quality  with  that  pur- 
chased by  A  of  B  out  of  a  certain  ship.  No  time  or 
place  was  fixed  for  the  delivery.  A  having:  in  his 
coal-yard  a  large  quantity  of  coal,  and  sufficient  of 
the  quality  mentioned,  though  consisting  of  differ- 
ent kinds,  immediately  afterwards,  and  at  different 
times,  tendered  to  B  the  coal,  in  satisfaction  of  the 
note,  and  B  made  no  objection  to  the  place  or  mode 
of  delivery,  but  said,  at  one  time,  he  would  send 
and  take  them,  and  at  another  that  he  was  not 
ready  to  receive  them,  and  finally  neglected  to  take 
them.  In  an  action  afterwards  brought  by  B  against 
A  on  the  note,  it  was  held  that  the  agreement  for 
the  delivery  of  the  coal  was  valid,  and  that  the  ten- 
der on  the  part  of  A  was  equivalent  to  a  perform- 
ance, so  as  to  bar  the  plaintiff's  action,  and  might 
be  pleaded  by  way  of  accord  and  satisfaction- 
Cm*  and  Woolsey  v.  Houston  (243)  684 

See  Contract,  1,  2,  3- 

SATISFACTION— Col.  and  Cai. 
The  court  will,  on  motion,  vacate  a  fraudulent  en- 
try of  satisfaction  on  record.       (139, 139)      66.  106 

SATISFACTION— Johns.  2. 

A  being  indebted  to  B  in  the  sum  of  $1,785,  for 
goods  sold  and  delivered,  and  to  other  creditors,  on 
the  1st  January,  1793,  executed  a  bond  to  C  and  D 
for  $22,500,  for  and  on  account  of  all  his  debts,  and 
including  the  sum  due  to  B,  on  which  bond  a  judg- 
ment was  entered  up  in  April,  1793.  Afterwards, 
on  the  18th  July,  1793,  A  gave  to  B  a  single  bill  for 
the  $1,785 ;  and  on  the  1st  August,  1793,  B  affirmed 
the  trust  in  C  and  D  as  to  the  judgment,  and  on  the 
2d  August,  directed  a  ca.  sa.  to  be  issued  against  A 
on  such  judgment,  on  which  A  was  taken  into  cus- 
tody, and  afterwards  discharged,  with  the  consent 
of  B.  In  an  action  brought  by  B  on  the  single  bill 
against  A,  it  was  held  that  B  having,  as  cestui  que 
trust  of  the  judgment,  affirmed  the  trust,  and 
elected  to  proceed  on  that  judgment,  and  obtain 
satisfaction  for  his  debt,  the  single  bill  was  thereby 
discharged. 

Seaman  v.  Haskins,  (195)    485 

SCIRE  FACIAS— Col.  and  Cai. 

1.  There  must  in  all  cases  be  fifteen  days  between 
the  teste  of  the  first  and  return  of  the  second  sci.  fa. 

(54,60)     44, '84 

2.  Judgment  by  default  on  sci.  fa.,  how  entered, 

(197)    123 

SEAWORTHINESS— Johns.  1. 

See  Insurance,  10,  23. 

SERVICE— Johns.  1. 
See  Practice,  3,  6, 11, 18,  30,  54,  55,  56. 

SERVICE  OF  PAPERS— Col.  and  Cai. 

,     See  Notice,  6. 

1.  Service  of  papers  how  to  be  made. 

(75,  81, 176,  359,  426)    5O,  9O,  116, 166,  185 

2.  If  the  defendant  sends  a  plea  by  mail,  and  the 
plaintiff,    notwithstanding,  enters    a   default,    the 
court  will  set  it  aside,  if  the  defendant  swears  that 
he  sent  the  plea  by  mail,  and  believes  that  it  came 
to  the  plaintiff's  hands,  and  the  plaintiff  in  his  affi- 
davit does  not  deny  the  fact.  (107,  110)    58,  98 

3.  A  service  on  the  agent  of  an  attorney  for  the 
plaintiff  is  good,  and  need  not  be  personal, 

(233)    131 

4.  A  service  on  a  person  in  the  plaintiff's  office  is 
not  sufficient  without  showing  a  connection  between 
them.  (260)     138 

5.  Service  on  a  clerk  out  of  the  office  is  bad, 

(1*5,  135,  442)     65,  138,  19O 

6.  An  affidavit  stating  a  service  made  by  leaving 
the  paper  at  the  dwelling-house  of  the  agent,  with- 
out stating  that  he  was  absent,  or  to  whom  deliv- 
ered, is  insufficient.  (466)     196 

SET-OFF— Col.  and  Cai. 

1  Costs  in  one  suit  allowed  to  be  set  off  against 
the  damages  (exclusive  of  the  costs)  in  another. 

(368)     168 

2.  In  an  action  for  a  tort,  where  the  plea  is  not 
guilty,  evidence  of  a  set-off  is  inadmissible. 

(438)     188 

COL.,  &  COL.  &  CAT..  &  J's.  CAS.  1,  2,  3. 


SET-OFF— Johns.  1. 

1.  Where  B.,  a  debtor  of  an  insolvent  who  has  as- 
signed all  his  estate  to  his  trustees,  for  the  benefit 
of  his  creditors,  purchased  a  promissory  note  of  the 
insolvent's  after  the  assignment,  it  was  held  that  B. 
could  not  set  off  the  note  purchased  by  him  against 
a  debt  due  by  him  to  the  insolvent,  in  a  suit  brought 
by  the  trustees. 

Johnson  v.  Bloodgood,  (51)    239 

2.  In  an  action  on  a  promissory  note,  by  the  in- 
dorsee against  the  maker,  the  defendant  pleaded 
payment  as  to  all.  except  40  cents,  and  payment  of 
the  40  cents  to  the  payee  of  the  note,  before  the 
note  was  indorsed,  and  gave  notice  of  a  set-off  of 
large  sums  of  money  due  to  him  from  the  payee,  it 
was  held  that  the  defendant  could  not  set  off  more 
than  the  sum  pleaded ;  and  that  payment  to  a  payee 
of  a  note  cannot  be  set  off  by  the  maker  in  an  action 
against  him  by  the  indorsee. 

Prior  v.  Jacocks,  (169)    286- 

SET-OFF— Johns.  3. 

1.  Where  a  defendant,  after  a  writ  issued  against 
him,  of  which  he  had  notice,  and  before  he  was  act- 
ually arrested,  purchased  a  promissory  note,  made 
by  the  plaintiff,  which  was  indorsed  to  him,  for  the 
avowed  purpose  of  setting  it  off  against  the  plaint- 
iff's demand,  it  was  held  that  the  set-off  was  not 
admissible. 

Carpenter  v.  Butterfleld,  (145)    64» 

2.  A  debt  or  demand,  to  be  set  off  under  the  stat- 
ute, must  be  an  existing  debt  or  demand,  at  the 
time  of  the  commencement  of  the  plaintiff's  suit. 

Id.  (Ib.)    649- 

SHERIFF-Col.  and  Cai. 
See  Amendment,  5. 

1.  The  sheriff  is  not  in  contempt  for  not  acting  on 
process  which  never  came  to  his  personal  knowl- 
ledge,  or  was  not  lodged  at  his  office. 

(77,  82)    50,  90 

2.  Quaere.    If  the  delivery  to  the  deputy-sheriff  is 
a  delivery  to  the  sheriff.  (lit.  It).)    5O,  90 

3.  When  it  is  delivered  to  the  deputy-sheriff,  and 
the  sheriff  interferes  and  acts,  and  neglects  to  re- 
turn it  when  ruled,  he  is  in  contempt. 

(Ib.  Ib.)    50,  9O 

4.  A  sheriff's  sale  is  within  the  statute  of  frauds. 

<a53)    164 

5.  No  property  can  pass  at  the  sheriff's  sale  but 
what  is  ascertained  and  declared.  (354)    164 

6.  The  sheriff  cannot  levy  and  sell  under  a  ft.  fa. 
goods  acquired  by  the  defendant  after  the  return 
day.  (397)    177 

7.  He  may  sell  but  he  cannot  levy  after  return 
day.  (Ib.)    177 

8.  Where  an  execution  has  issued,  and  the  sheriff 
has  in  his  hands  money  levied  in  favor  of  the  de- 
fendant, the  court  will  order  him  to  pay  it  over  on 
the  execution.  (435)    188 

9.  Sheriff  may  levy  on  money,        (Note,  Ib.)    188 

10.  Sheriff's  fees  on  levying  a  fine  must  be  charged 
in  his  accounts.  (153)    109 

SHERIFF- Johns.  1. 

1.  A  warrant  of  attorney  given  by  a  prisoner  and 
another  to  the  sheriff,  to  confess  judgment  on  a 
bond  given  to  the  sheriff  for  the  liberties  of  the 
prison,  was  held  to  be  void. 

Dole  v.  Moitlton  et  al.,  (129)    269 

2.  A  sheriff  is  not  liable  to  an  attachment  for  a 
contempt,  in  not  executing  process  which  did  not 
come  to  his  personal  knowledge,  nor  was  left  in  his 
office,  but  delivered  to  a  deputy. 

The  People  v.  Waters,  (137)    273 

3.  An  incorrect  return  to  an  execution  by  a  sher- 
iff will  not  affect  the  title  of  the  purchaser  under  it. 

Jackson,  ex  dem.  Kane,  v.  Sternbergh, 

(153)     280 

4.  A  sheriff's  deed  to  a  person  who  purchases  at  a 
sale  under  a  fl.  fa.  as  agent  for  the  plaintiff,  creates 
a  resulting  trust  for  the  plaintiff. 

Id.  (Ib.)    280 

5.  The  authority  of  the  sheriff  in  relation  to  prop- 
erty seized  under  an  execution,  ceases  with  the 
return  of  the  execution  satisfied. 

Jackson,  ex  dem.  Jones,  v.  Striker,      (284)    327 
See  Ejectment,  5.    Deed,  8. 

SHERIFF— Johns.  2. 

1.  Where  a  defendant  is  taken  in  execution,  and 
the  sheriff  suffers  the  prisoner  voluntarily  to  escape, 
he  cannot  afterwards  retake  or  detain  him,  without 
a  new  authority  from  the  plaintiff;  nor  will  the 


XXXV111 


GENERAL  INDEX. 


voluntary  return,  or  assent  of  the  prisoner,  prevent 
the  sheriff's  liability  for  the  escape. 

Lansing  v.  Fleet.  (3)    418 

2.  After  a  voluntary  escape,  the  sheriff  cannot 
lawfully  retake  or  detain  the  prisoner,  though  he 
may,  after  a  negligent  escape. 

Id.  (IT).)    418 

3.  A  bond  taken  by  the  sheriff,  that  a  person  in 
•execution  shall  remain  a  true  and  faithful  prisoner, 
is  valid. 

Dole  v.  Butt  &  Porter,  (239)    5O1 

4.  If  a  bond  be  taken  by  the  sheriff  for  the  ease 
and  convenience  of  the  prisoner,  so  that  he  may  go 
at  large  within  the  walls  of  the  prison,  and  con- 
ditioned that  he  shall  remain  a  true  and  faithful 
prisoner,  it  is  not  a  bond  for  ease  and  favor,  nor 
void,  though  not  taken  in  the  manner  directed  by 
the  act  relative  to  jail  liberties. 

Id.  (Ib.)    501 

See  Jail  Liberties,  1. 

SHERIFF— Johns.  3. 

In  an  action  against  a  sheriff  for  an  escape,  If  it 
be  averred,  or  found  on  the  record,  that  the  sheriff 
permitted  the  prisoner  to  escape,  it  is  equivalent  to 
a  finding  of  a  voluntary  escape. 

Holmes  et  al.  v.  Lansing,  (73)    622 

See  Jail  Liberties,  2.    Escape. 

SIMILITEK— Col.  and  Cai. 

It  is  not  necessary  to  strike  out  the  similiter  from 
the  replication  when  the  defendant  demurs. 

(46,51)    42,82 

SLANDER— Johns.  1. 

1.  The  following  words  spoken  of  a  person  who 
was  a  justice  of  the  peace,  "  Squire  Oakley  is  a 
damned  rogue,"  were  held   not  to  be  actionable, 
not  being  spoken  of  him  in  his  official  capacity. 

Oakley  v.  Farrington,  (129)    27O 

2.  Where  words,  otherwise  actionable,  were  ex- 
plained at  the  time   by  a  reference  to  a  known 
transaction,  they  are  to  be  construed  accordingly, 
and  being  so  explained,  they  were  held  not  to  be 
actionable. 

Fan  Rensselaer  v.  Dole,  (279)    325 

3.  "Words  spoken  of  a  person  in  relation  to  his 
office  of  sheriff,  and  amounting  to  a  charge  of  mal- 
practice, are  actionable. 

Dole  v.  Van  Rensselaer,  (330)    342 

SLAVES— Johns.  2. 

1.  A,  the  owner  of  a  slave  in  New  Jersey,  removed 
into  this  State  with  the  slave,  and  entered  into  an 
agreement  with  B  in  this  State,  by  which  he  put  the 
slave  to  service  with  B  until  the  parties  or  their 
executors   should   mutually   agree   to   annul   the 
agreement.    This  was  held  to  be  a  sale  of  the  slave 
in  this  State,  within  the  meaning  of  the  Act  con- 
cerning slaves,  passed  the  2d  February,  1788. 

Sable  v.  Hitchcock,  ,        (79)    445 

N.  B.  This  cause  was  affirmed  in  the  Court  of 
Errors, 

(488)    587 

2.  But  such  an  agreement  or  sale,  made  in  the 
course  of  administration,  or  by  persons  acting  in 
autre  droit  (as  executors,  assignees  of  absent  or  in- 
solvent debtors,  sheriffs  and  trustees),  would  not  be 
within  the  act  so  as  to  subject  the  vendors  to  the 
penalty,  or  make  the  slave  free. 

Yd.  (Ib.)    587 

3.  Where  a  slave,  aged  twenty-five  years,  ran 
away  from  his  master  in  New  Jersey,  and  came  to 
New  York,  and  the  master  followed  him  to  New 
York,  and  there  entered  into  an  agreement  by 
which  he  let  the  slave  to  a  person  in  New  York  for 
twenty  years,  for  the  consideration  of  $225,  giving 
to  the  person  full  power  to  correct,  imprison,  and 
exercise  all  authority    over   the   slave  which   he 
could  lawfully  do,  it  was  held  to  be  an  importation 
and  sale  within  this  State,  within  the  meaning  of 
the  act,  and  that  the  slave  was,  therefore,  free. 

Fish  v.  Fisher,  (89)    448 

SOLDIER— Johns.  1. 
See  Habeas  Corpus,  2. 

SPRINGFIELD  PATENT— Johns.  2. 
What  is  the  true  construction  of  the  Springfield 
Patent.  The  third  course  given  in  the  description 
of  this  patent,  is  to  be  run  so  as  to  strike  the  Otsego 
Lake,  at  the  nearest  point,  at  the  distance  given, 
without  regard  to  the  course  taken,  and  so  as  to 
preserve  the  subsequent  courses. 

Jackson,  ex  dem.  Stoats,  et  al.,  v. 
Carey,  (350)    64O 

784 


STAMPS— Johns.  1. 

1.  Arbitration  bonds  and  powers  of  attorney,  in 
suits  depending  in  this  court,  need  not  be  stamped. 

Davis  v.  Ostrander,  (108)    36O 

2.  An  inventory  exhibited  by  a  debtor  on  an  ap- 
plication for  his  discharge  under  the  act  for  the 
relief  of  prisoners,  in  respect  to  the  imprisonment 
of  their  persons,  must  be  stamped. 

Burns  v.  Baker,  (134)    272 

The  act  of  the  United  States  relative  to  stamps 
has  been  since  repealed. 

STATE  SO VERIGNTY— Johns.  2. 
The  individual  States  having  submitted  their  ter- 
ritorial claims  to  the  judiciary  of  the  United  States, 
are  to  be  so  far  considered  as  having  ceded  their 
sovereignty,  and  as  corporations ;  and  their  right  to 
transfer  land  must  be  judged  of  by  the  same  rules  of 
common  law,  as  the  rights  of  other  persons,  natural- 
or  politic. 

Woodworth  et  al.  v.  Jones  et  al.  (417)    562 

STOCK  CONTRACT-Johns.  2. 
See  Guaranty,  2. 

STRUCK  JURY-Col.  and  Cai. 
In  all  cases  of  libels  against  the  official  character 
of  a  public  officer  or  of  an  officer  of  the  court,  a 
struck  jury  will  be  awarded  on  affidavit  of  the  fact. 

(312)    152 

SUPERSEDEAS-Col.  andlCai. 

1.  That  the  plaintiff  has  issued  an  execution  since 
notice  of  the  application  for  a  sitpersedeas  for  not 
charging  the  defendant  in  execution,  is  a  sufficient 
cause  for  not  granting  it.      (43,  48, 168)    41,  81,  114 

2.  After  the  defendant  has  been  regularly  super- 
seded for  not  being  charged  in  execution,  the  plaint- 
iff cannot  resort  again  to  his  first  judgment   by 
means  of  execution,  but  must  commence  his  action 
upon  it.  (329)    157 

SURETY— Johns.  3. 

In  an  action  of  debt  on  a  bond,  against  the  surety 
for  two  guardians,  appointed  by  the  Court  of  Chan- 
cery, conditioned  for  the  faithful  performance  of 
their  trusts,  where  one  of  the  guardians  died,  it  was 
held  that  the  trusts  survived,"  and  that  the  surety 
was  responsible  for  the  acts  of  the  surviving  guard- 
ian ;  the  bond  being  co-extensive  with  the  trust. 
The  People  v.  Byron.  (53)  615 

SUSQUEHANNA  LANDS-Johns.  2. 

1.  Where    notes  were    given  for   the   purchase 
money,  on  a  contract  for  the  purchase  of  Susque- 
lianna  lands,  within  the  jurisdiction  of  Pennsylva- 
nia, under  the  Connecticut  claim  to  those  lands,  the 
sale  was  held  to  be  illegal,  and  the  notes  given  for 
the  consideration  money  void. 

Whtttaker  v.  Cone,  (58)    437 

2.  A  sale  and  purchase  under  title  derived  from 
the  Connecticut  Susquehanna   Company,  of  lands 
lying  in  Pennsylvania,  and  claimed  by  that  State  as 
well  as  Connecticut,  is  maintenance  in  selling  a  pre- 
tended title ;  but  both  parties  being  in  part  delicto, 
a  court  of  equity  will  not  afford  relief  to  the  pur- 
chaser, to  prevent  the  negotiation  of  notes  given 
for  the  purchase  money,  or  to  recover  back  money 
paid. 

Woodworth  et  al.  v.  Jones  et  al.,          (417)    562 


TAVERN-KEEPERS— Johns.  2. 
See  act  to  lay  a  duty  on  strong  liquors,  &c. 

TENANT  AT  WILL- Johns.  1. 

After  a  sale  of  land  by  a  sheriff  under  a  fl,.  fa.,  the 
defendant  becomes  quasi  a  tenant  at  will  to  the 
purchaser. 

Jackson,  ex  dem.  Kane,  v.  Sternbergh, 

(153)    280 

TENANT  BY  THE  COURTESY— Johns.  3. 
A,  a  feme  covert,  died  seized  of  lands,  in  June,  1795, 
leaving  a  husband,  and  two  sons  and  three  daugh- 
ters. The  husband  continued  seized,  as  tenant  by 
the  courtesy,  until  his  death,  in  1798.  B,  the  eldest  son, 
died  abroad,  in  1784,  an  infant,  intestate,  and  with- 
out issue.  C,  the  other  son,  on  the  death  of  his 
father,  entered  as  heir  to  his  mother.  It  was  held 
that  the  descent  was  suspended  during  the  tenancy 
by  the  courtesy,  and  that  A  being  last  seized,  was 
the  stock  of  descent ;  and  as  she  died  before  the 

COL..  &  COL.  &  CAI.,  &  J.'s  CAS.  1,  2,  3. 


GENERAL,  INDEX. 


statute  of  descents,  C,  the  second  son,  took  the  in- 
heritance, as  sole  heir  to  his  mother, 

Jackson,  ex  dem.  Gomez,  et  al.  v.  Hen- 
drtcks,  (214)    673 

TIME— Johns.  1. 

See  Bills  of  Exchange  and  Promissory  Notes,  4. 
TRESPASS— Col.  and  Cal. 

1.  Where  a  trespass  is  committed  in  a  part  of  a 
town  which  part  is  subsequently  annexed  to  another 
town  previous  to  the  action  brought,  the  plaintiff 
may  allege  that  it  was  done  in  the  first  town,  with- 
out regarding  the  subsequent  division.      (219)    128 

2.  Where  a  defendant,  sued  for  a  trespass  before  a 
justice,  relies  on  his  title,  and  the  cause  is,  there- 
upon, carried  to  the  court  above,  and  the  defendant 
then  puts  in  the  general  issue  with  his  plea  of  title, 
the  court  will  order  the  general  issue  to  be  stricken 
out.  (3*1)    16O 

3.  When  an  action  is  brought  against  several  tres- 
passers who  all  join  in  one  plea,  their  fate  cannot 
be  separated,  and  the  separate  justification  which 
one  might  have  pleaded  is  gone.  (372)    169 

TRESPASS— Johns.  1. 
See  Landlord  and  Tenant. 
TRESPASS  QUARE  CLAUSAM  FREGIT- Johns.  2. 

1.  Where  a  justice  of  the  peace,  after  a  certforari 
from  this  court  was  delivered  to  him,  proceeded  to 
trr  the  issue  of  traverse  on  an  indictment  under  the 
act  to  prevent  forcible  entries  and  detainers,  and 
the  defendant  being  found  guilty,  the  writ  of  resti- 
tution was  awarded,  and  the  defendant*  turned  out 
of  possession ;  it  was  held,  that  the  proceedings  of 
the  justice,  after  the  certiorari,  were  coram  nonju- 
dice,  and  void,  and  that  he  was  liable  to  an  action  of 
trespass,  at  the  suit  of  such  defendant. 

Case  v.  Shepherd,  (27)    426 

2.  Where  an  entry  is  followed  by  an  ouster,  the 
party  can  recover  damages  only  for  the  mere  entry 
or  trespass ;  but  if  he  makes  a  re-entry,  and  lays  his 
action  with  a  continuando,  he  may,  then,  recover 
damages  for  the  mesne  profits,  or  subsequent  acts, 
as  well  as  for  the  trespass. 

Id.  (Ib.Y  426 

TRIAL— Col.  and  Cai. 

At  Nisi  Prius  the  court  will  not  put  off  the  trial  of 
a  cause  on  account  of  the  absence  of  a  material  wit- 
ness, if  that  witness  is  a  transient  person,  and  the 
plaintiff  has  had  an  opportunity  to  examine  him 
which  he  has  neglected.  (427)  185 

TRIAL  BY  PROVISO— Col.  and  Cai. 
Trial  by  proviso  must  be  by  rule  obtained  on  mo- 
tion in  the  usual  manner.  (430)    186 

TRIAL  BY  RECORD-Col.  and  Cai. 

1.  Trial  by  record  must  be  brought  on  by  notice 
of  four  days. 

(122, 123,  105, 108, 147)    61,  1O1,  57,  97,  108 

2.  Motion  to  bring  on  trial  by  record,  is  a  non- 
enumerated  motion.  (428)    185 

TROVER— Johns.  1. 

1.  If  the  defendant  in  trover  admits  that  he  had 
the  goods  of  the  plaintiff,  and  that  they  are  lost, 
this  is  sufficient  evidence  of  a  conversion. 

La  Place  v.  Aupoix,  (406)    37O 

2.  A  demand  of  payment  or  satisfaction  generally 
for  the  goods,  is  a  sufficient  demand  in  trover. 

Id.  (Ib.)    370 

TROVER— Johns.  2. 

A  shipped  goods  by  B,  the  master  of  a  vessel,  at 
London,  for  New  York,  and  the  consignee  assigned 
the  bill  of  lading  to  C,  who  demanded  the  goods,  and 
tendered  a  sum  of  money  for  the  freight,  but 
whether  enough  did  not  appear.  B  refused  to  de- 
liver the  goods,  assigning  as  a  reason,  that  he  was 
ordered  by  the  shipowners  not  to  deliver  them,  and 
made  no  objection  to  the  tender  of  the  freight.  In 
an  action  of  trover  brought  against  B,  it  was  held 
that  he  had  waived  a  tender  of  the  freight,  and  that 
his  refusal  to  deliver  the  goods,  was  evidence  of  a 
conversion. 

Judah  and  others  v.  Kemp,  (411)    56O 

TRUST— Johns.  1. 

1.  Where  a  purchase  was  made  by  a  person  at  a 
sheriff's  sale,  as  agent  for  the  plaintiff,  and  the  land 
was  conveyed  to  the  agent,  the  deed  was  held  to 
create  a  resulting  trust  for  the  plaintiff,  which 
might  be  proved  by  parol. 

Jackson,  ex  dern.  Kane,  v.  Sternbergh, 

(153)    280 

COL.,  &  COL.  &  CAI.,  &  JVs  CAS.  1,  2,  3. 


2.  Where  a  trust  is  executed  for  the  benefit  of  a 
person,  without  his  knowledge  at  the  time,  he  may 
affirm  the  trust,  and  enforce  its  execution. 

NeUson  v.  Blight,  (205)    298 

TRUST-Johns.  3. 

In  an  action  of  debt  on  a  bond,  against  the  surety 
for  two  guardians,  appointed  by  the  Court  of  Chan- 
cery, conditioned  for  the  faithful  performance  of 
their  trusts,  where  one  of  the  guardians  died,  it  was 
held  that  the  trusts  survived,  and  that  the  surety 
was  responsible  for  the  acts  of  the  surviving  guard- 
ian ;  the  bond  being  co-extensive  with  the  trusts. 
The  People  v.  Byron,  (53)  615 

TRUSTEES— Johns.  2. 

Trustees,  and  persons  acting  in  autre  droit,  who 
execute  conveyances  for  lands  held  in  trust,  are  not 
responsible,  in  case  the  purchaser  is  evicted,  unless 
there  is  fraud  or  an  express  warranty. 

Murray  v.  Trustees  of  Rmgwood  Com- 
pany, (278)    514 

USURY— Johns.  1. 

An  absolute  deed  of  conveyance  of  real  estate 
upon  trust,  will  not  be  set  aside  on  the  ground  of 
usury. 

Denn,  ex  dem.  Wilkinson,  v.  Dodds,  (158)    282 

USURY— Johns.  2.; 

1.  A  made  a  note  payable  to  B  which  was  indorsed 
by  him  and  C  and  D,  and  sent  by  A  to  E  a  money 
broker,  in  order  to  raise  money,  and  E  advanced  the 
money  on  the  note,  deducting  a  premium  of  two 
per  cent,  per  month.    In  an  action  brought  by  C 
against  B  as  first  indorser,  it  was  held,  that  the  note 
was  usurious  and  void;  and  E  the  broker,  was  a 
competent  witness  to  prove  that  the  note  had  been 
sold  to  F  for  no  more  than  the  principal  and  legal  in- 
terest. 

Jones  v.  Hake,  (60)    438 

2.  The  proper  way  to  try  the  truth  of  an  allegation 
of  usury,  in  regard  to  a  judgment  entered  up  on  a 
bond  and  warrant  of  attorney,  is  to  retain  the  judg- 
ment, and  award  a  feigned  issue  to  try  the  fact ;  but 
where  a  judgment  had  been  assigned  to  a  bona  fide 
purchaser,  and  notice  thereof  given  to  the  defend- 
ant, the  court  refused  to  award  an  issue,  consider- 
ing the  judgment  as  not  within  the  statute  against 
usury ;  and  having1  reason  to  suspect  a  collusion  be- 
tween the  plaintiff  and   defendant,  to  defeat  the 
claims  of  the  assignee  of  the  judgment. 

Wardett  v.  Eden,  (258)    5O8 

3.  Where  there  is  color  for  the  allegation,  that  the 
bond,  on  which  a  judgment  has  been  entered  up  on 
a  warrant  of  attorney,  is  usurious,  the  court  will 
award  a  feigned  issue  to  try  the  fact. 

Gilbert  v.Eden,  (280)    515 

4.  The  court  refused  to  set  aside  a  regular  inquest 
by  default,  taken  at  the  sittings,  in  order  to  let  in 
the  defendant  to  prove  usury,  as  a  defense. 

Crammoud  v.  Roosevett,  (282)    516 

5.  A,  residing  in  the  State  of  Massachusetts,  and 
owning  lands  in  the  State  of  New  York,  entered  into 
a  contract  in  Massachusetts,  with  B,  an  inhabitant 
of  New  York,  for  the  sale  of  the  lands  to  him.    B 
gave  his  bond  to  A  for  the  consideration  money, 
payable  in  four  years,  and  also  four  promissory 
notes,  payable  in  one,  two,  three,  and  four  years, 
for  the  interest  on  the  bond,  at  the  rate  of  six  and  a 
half  per  cent. ;  and  A  executed  to  B  a  bond  con- 
ditioned to  execute  a  conveyance  to  him  of  the 
land,  on  the  payment  of  the  bond  and  notes.    In  an 
action  brought  by  A  against  B  on  three  of  the  notes, 
the  defendant  pleaded  usury,  and  it  was  held  that 
the  notes  were  usurious,  and  that  the  law  of  Massa- 
chusetts was  to  govern. 

Van  Schaick  v.  Edwards,  (370)    547 

USURY— Johns.  3. 

1.  Where  A  made  a  note,  payable  to  B  who  in- 
dorsed it  merely  for  the  accommodation  of  A,  who 
passed  the  note  to  C  to  raise  money  on  it,  by  having 
the  same  discounted  in  the  market,  and  C  discount- 
ed the  note  at  a  premium  of  three  and  one  fourth 
per  cent-  per  month,  and  after  deducting  the  dis- 
count, applied  the  proceeds  to  the  payment  of 
money  lent  by  him  to  A,  and,  afterwards-in  the 
course  of  his  business,  passed  the  note  to  D,  who 
brought  an  action  against  B  the  first  indorser ;  it 
was  held  that  the  note,  though  indorsed  by  B  for  the 
accommodation  of  A,  passed  immediately  from  A 
to  C,  and  that  the  transaction,  in  its  inception,  was 
usurious,  and  the  note,  therefore,  void. 

W ilkte  v.  Roosevelt,  (66)    62O 


N.  Y.  REP.,  BOOK  1. 


50 


785 


xl 


GENERAL  INDEX. 


2.  In  an  action  on  a    promissory  note,  the    de- 
fence was  usury,  and  the  judge  at  the  trial  charged 
the  Jury  that  the  note  was  usurious,  and  that  they 
ougm  to  find  for  the  defendant,  but  the  jury  found 
a  verdict  for  the  plaintiff,  and  the  court  afterwards 
set  aside  the  verdict  and  granted  a  new  trial.    On 
the  second  trial,  the  jury,  on  substantially  the  same 
evidence,  notwithstanding  the  opinion  of  the  court, 
found  a  verdict  for  the  plaintiff,  and  the  court  set 
aside  the  verdict,  as  against  law,  and  granted  a  third 
trial. 

Wllkie  v.  Roosevelt,  (206)    670 

3.  If  a  promissory  note  is  given  for  an  usurious 
contract,  it  is  absolutely  void,  even  in  the  hands  of 
an  innocent  person,  who  has  taken  it  in  the  fair  and 
regular  course  of  trade,  without  knowledge  of  the 
usury, 

Id.  (Ilj.)    670 


VARIANCE— Johns.  2. 

Where,  on  a  report  of  referees,  judgment  was 
entered  up  in  a  court  of  common  pleas,  for  ninety- 
nine  cents  more  than  was  reported  to  be  due,  the 
judgment,  on  a  writ  of  error  to  this  court,  was  held 
to  be  erroneous,  and  reversed. 

Stafford  v.  Van  Zandt,  (66)    440 

VENUE-Col.  and  Cai. 

1.  In  order  to  change  the  venue,  it  is  not  sufficient 
that  material  witnesses  reside  in  the   county  to 
which  the  party  would  change  the  venue  ;  it  must 
be  added  that  evidence  will  be  given  of  a  material 
fact  happening  there.  (103, 106)    57.  97 

2.  In  OSgunvpaii  when  the  count  is  general,  the 
court  will  not  change  the  venue  on  the  general  alH- 
davit ;  it  must  set  forth  the  special  matter  expected 
to  be  given  in  evidence,  and  declare  that  it  arose  in 
that  county  to  which,  &c.,  and  not  elsewhere. 

(121, 123)    61,  101 

3.  The  affidavit  should  be  made  by  the  party  him- 
self (seml>.).  (128, 129)    63.  1O3 

4.  The  affidavit  to  retain  the  venue  on  the  ground 
of  local  prejudices  in  the  county  to  which,  &c., 
should  set  forth  all  the  facts  and  circumstances,  so 
that  the  court  may  judge  of  their  force. 

(Ib..  Ib.)    63,  103 

5.  In  an  action  on  a  covenant  of  seisin,  the  court 
will  change  the  venue  on  the  usual  affidavit. 

(158)     111 

6.  On  a  motion  to  change  the  venue  if  the  cause  of 
action  is  not  stated  in  the  affidavit,  the  court  will 
not  intend  that  it  is  not  transitory.  (343)    161 

7.  In  an  action  for  a  libel,  the  court  will  not 
change  the  venue  from  the  place  where  it  was  cir- 
culated to  the  place  where  it  was  printed. 

(399)    177 

8.  In  an  action  for  use  and  occupation,  venue 
changed  to  the  county  where  the  lands,  &c.,  are 
situate,  on  affidavit  that  all  the  defendant's  wit- 
nesses reside  there.  (418)    182 

9.  So  in  all  transitory  actions.  (446)    191 

10.  To  retain  the  venue  in  such  cases,  the  plaintiff 
must  swear  that  he  has  material  witnesses  where 
the  venue  is  laid.  (418)    182 

11.  When   the   defendant   intends   to   move   to 
change  the  venue,  he  ought  to  apply  to  a  judge  for 
an  order  to  enlarge  the  time  to  plead  or  to  stay  pro- 
ceedings. (422)    184 

12.  The  court  will  allow  the  venue  to  be  changed 
after  plea  pleaded,  if  no  trial  has  been  lost,  and  it 
will  be  productive  of  no  delay.  (459)    194 

13.  In  an  action  in  Orange  County,  for  running  a 
road  with  the  intention  of  injuring  the  toll  of  a 
turnpike,  the  court  refused  to  change  the  venue  on 
an  affidavit,  stating  that  from  the  nature  of  the 
action,  an  impartial  trial  could  not  be  had. 

(468)     197 

14.  The  court  will  in  no  case  change  the  venue 
from  New  York  to  Kings,  on  account  of  their  con- 
tiguity. (482)    201 

VENUE-Johns.  1. 

The  venue  will  not  be  changed  on  the  usual  affi- 
davit, if  the  plaintiff  will  stipulate  to  give  material 
evidence  in  the  county  where  the  venue  is  laid. 

Bentleu  v .  Weaver,  (240)    311 

See  Practice,  39. 

VENUE— Johns.  2. 

1.  In  an  action  of  aasumpsit  the  venue  will  not  be 
changed  on  the  general  affidavit. 

Wheaton  v.  Simoon,  (111)    456 

2.  An  action  for  use  and  occupation  is  not  local 
in  its  nature,  being  founded  on  privity  of  contract, 
and  not  on  privity  of  estate. 

Corporation  of  New  York  v.  Dawxon,  (335)    535 

786 


3.  The  venue  in  a  cause  in  which  the  corporation 
of  New  York  was  a  party,  was  laid  in  the  city  of 
New  York,  and  the  court  refused  to   change  it, 
merely  on  that  account,  on  the  bare  allegation  that 
an  impartial  trial  could  not  be  had  in  the  city  and 
County  of  New  York. 

Id.  (Ib.)    345 

4.  An  action  of  debt  in  this  court,  on  a  judgment 
in  a  court  of  common  pleas,  is  a  local  action,  and 
the  venue  must  be  laid  in  the  county  where  the 
judgment  was  given. 

Barnes  v.  Kcnyon,  (381)    55O 

VERDICT—  Johns.  2. 

1.  Where  a  promise  in  one  of  the  counts  in  a  dec- 
laration, by  reference  to  the  day  in  the  preceding 
counts,  was  laid  after  the  breach  assigned,  the  mis- 
take was  held  to  be  cured  by  the  verdict. 

Allaire  v.  Ouland,  (52)    435 

2.  A  and  B  being  indicted  for  a  conspiracy  to  de- 
fraud C,  the  jury  found  a  verdict  that  there  was  an 
agreement  between  A  and  B  to  obtain  money  from 
C,  but  with  an  intent  to  return  it  again.  This  was  held 
not  to  be  a  verdict  of  acquittal,  nor  any  verdict  on 
which  a  judgment  could  be  given. 

The  People  v.  Olcott.  (301)    523 

VIEW—  Col.  and  Cai. 

1.  The  affidavit  on  which  the  motion  for  a  view  is 
grounded,  must  state  that  boundaries  are  in  ques- 
tion. (49,  55)    43,  83 

2.  When  view  is  granted  on  a  writ  of  right  at  the 
instance  of  the  tenant,  the  demandant  is  bound  to 
sue  out  the  writ.  (98,  101)    55,  95 

3.  If  he  does  not  sue  it  out  in  season,  the  court 
will  grant  a  rule  for  him  to  sue  it  out,  and  cause 
view  to  be  given  by  the  first  day  of  the  then  next 
term,  or  be  nonsuited.  (lb.,  Ib.)    55,  95 

VIEW-  Johns.  1. 

1.  In  an  action  on  a  writ  of  right,  the  tenant  is 
entitled  to  a  view  of  the  premises,  as  a  matter  of 
right,  in  all  cases  except  those  in  which  it  is  re- 
strained by  statute. 

Inhabitants  of  G-ravesend  v.  Voorhis  ct  al., 

(237)    310 

2.  The  demandant  in  a  writ  of  right  is  entitled  to 
a  view,  as  a  matter  of  course. 

Hainesv.Budd,  (335)    344 

3.  W_here  the  tenant,  in  a  writ  of  right  demands  a 
view,  it  is  the  duty  of  the  demandant  to  sue  out  the 
writ  of  view,  and  if  he  does  not,  he  will  be  non- 
suited. 

Scofield  v.  Lodie,  (395)    365 


WAIVER—  Col.  and  Cai. 

See  commission,  3.  Ejectment,  4.  Motion,  4. 
Notice  1,  13.  Pleading,  1,  7. 

1.  An  irregularity  not  within  the  party's  knowl- 
edge cannot  be  waived  by  any  act  of  his. 

(464)    196 

2.  Notice  of  motion  for  judgment,  as  in  case  of 
nonsuit,  is  not  waived  by  being  followed  by  notice 
of  motion  for  commission.  (488)    2O3 

WARRANTY—  Johns.  1. 
See  Insurance,  1,  2,  4,  11,  13,  19,  20,  22,  23,  26. 
WARRANT  OF  ATTORNEY-Johns.  1. 

A  warranty  of  attorney  by  a  prisoner  and  an- 
other, to  a  sheriff,  to  confess  judgment  on  a  bond 
given  for  the  liberties  of  the  prison  is  void. 

Dolt  v.  Moulton  et  al..  (129)    269 

WILL—  Johns.  1. 

If  a  husband  or  a  wife  be  a  witness  to  a  will  con- 
taining a  devise  or  legacy  to  either,  such  devise  or 
legacy  is  void. 

Jackson,  ex  dem.  Cooder,  v.  Woods,    (163)    284 

WILL—  Johns.  3. 

1.  The  record  of  a  will  proved  under  the  statute 
(sess.  24.,  eh.  9,  sec.  6.).  is  not  conclusive  upon  the 
heir,  so  as  to  prevent  tiie  admission  of  evidence  to 
impeach  its  validity.    The  record  of  a  will,  like  that 
of  a  deed,  is  only  prima  facie  evidence  of  its  authen- 
ticity. 

Jackaon,  ex  dem.   Woodhutt  v.  Rum 
sew,  (234)    680 

2.  A  will  executed  in  1723,  and  which  had  been 
proved  by  the  witnesses,  in  1733  and  1744,  and  record- 
ed, but  not  in  a  manner  authorized  by  law,  was  al- 

COL.,  &  COL.  &  CAI.,  &  J.'s  CAS.  1,  2,  3. 


GENERAL  INDEX. 


xli 


,owed  to  be  read,  in  evidence,  on  the  trial  of  an  ac- 
tion of  ejectment,  in  1801,  as  an  ancient  deed,  though 
actual  possession  did  not  follow  and  accompany  the 
will,  that  being:  explained  by  the  peculiar  situation 
of  the  property  in  question,  and  other  circum- 
stances shown,  to  raise  a  presumption  of  the  exist- 
ence and  genuineness  of  the  will. 

Jackson,  ex  dem .  Levris,  et  al.  v.  Lar- 
mcay,  (283)    097 

WITNESS— Col.  and  Cai. 

1.  Witnesses  appearing-  on  subpoenas  in  criminal 
cases  are  entitled  to  fees  as  if  they  had  appeared  on 
recognizance.  (35,  41)    39,  79 

2.  Infirm  witnesses  may  be  examined  de  heJie  ease, 
at  any  time  after  suit  commenced,  upon  application 
to  the  court.  (69.74)    48.88 

3.  Where  an  agent  has  made  an  agreement,  if  the 
cause  should  be  lost,  to  refund  certain  money  re- 
ceived for  his  principal  who  is  the  plaintiff  in  the 
cause,  this  agent  is  a  good  witness  for  the  plaintiff. 

(220)     138 

4.  If  a  witness  does  not  appear  on  the  subpoena,  a 
rule  to  show  cause  is  first  granted,  before  attach- 
ment issues,  unless  some  wilful  contempt  or  disobe- 
dience is  shown.  (357)    165 

5.  On  a  cross-examination,  no  testimony  can  be 
introduced  which  would  have  been  illegal  on  a  di- 
rect examination,  (389)    177 

WITNESS— Johns.  1. 

1.  If  either  a  husband  or  wife  be  a  witness  to  a  will 
containing  a  devise  or  legacy  to  either,  such  devise  is 
void  by  the  statute,  and  the   devisee  or   legatee 
thereby  becomes  a  competent  witness. 

Jackson,  ex  dem.  Cooder,  v.  Woods,    (163)    284 

2.  Where  the  subscribing  witness  to  a  bond  is 
dead,  proof  of  his  hand-writing  is  sufficient,  prima 
facie. 

Mott  v.  Doughty,  (230)    3O7 

3.  The  owner  of  a  vessel  who  had  overpaid  money 
shipped  in  the  vessel  to  the  shipper,  and  had  been 
reimbursed  the  amount  by  the  master,  was  held  a 
competent  witness  in  an  action  brought  by  the  mas- 
ter against  the  shipper,  for  the  same  money,  though 
in  the  first  instance  the  owner  is  liable  for  the  fault 
of  the  master. 

Cort es  v.  Billings,  (270)    331 

4.  An  agent  is  a  competent  witness,  ex  necessi- 
tate. 

Id.  321 

5.  In  an  action  of  ejectment,  a  person  cannot  be  a 
witness  to  show  that  he  was  the  tenant  and  not  the 
tenant  in  possession. 

Brandt,  ex  dem.  Corttcmdt,  v.  Dyckman, 

(375)    323 

6.  An  agent  of  the  insured,  who  applies  to  the 
broker  to  have  the  insurance  effected,  is,  like  all 
•other  agents,  a  competent  witness,  ex  necessitate. 

Mackayv.  Rhinelander,  (408)    37O 

See  Ejectment,  8. 

COL.,  &  COL.  &  CAI.,  &  J.'s  CAS.  1,  2,  3. 


WITNESS-Johns.  2. 

1.  A  money  broker,  who  had  advanced  money  on 
a  note,  and  deducted  a  premium  of  two  per  cent, 
per  month,  is  a  competent  witness  in  an  action 
brought  by  a  subsequent  holder  against  an  indorser 
to  prove  that  the  note  was  passed  for  no  more  than 
the  legal  rate  of  interest. 

Jones  v.  Hake,  (60)    438 

2.  Where  a  witness  refuses  to  obey  a  subpoena, 
which  has  been  regularly  served   upon  him,  the 
court  will  grant  an  attachment  against  him,  in  the 
first  instance. 

Andrews  v.  Andrews,  (109)    455 

3.  Where  a  husband  is  witness  to  a  will  containing 
a  devise  to  his  wife,  such  devise  is  void,  and  the  hus- 
band is  a  competent  witness. 

Jackson  ex  dem.  Beach  et  al.  v.  Dur- 
land,  (314)    528 

4.  Where  a  witness,  who  was  regularly  subpoenaed 
by  the  defendant,  was  out  of  the  way  when  the  trial 
of  the  cause  was  commenced,  and  "did  not  appear 
until  the  testimony  on  both  sides  was  closed,  and 
the  counsel  for  the  defendant  had  proceeded  to 
sum  up  the  evidence ;  and  the  judge  refused  to  ad- 
mit the  witness  to  be  examined,  and  the  jury  found 
a  verdict  for  the  plaintiff ;  it  was  held  that  the  ad- 
mission of  the  witness  was  a  matter  of  discretion 
with  the  judge ;  and  a  new  trial  was  refused. 

Alexander  v.  Byron,  (318)    528 

WITNESS-Johns.  3. 
See  Evidence.    Insurance,  26. 

WRIT  OF  RIGHT— Johns.  1. 
See  View,  1,  2.    Practice,  28,  32,  34. 

WRIT  OF  RIGHT-Johns.  3. 

1.  On  the  issue  on  a  writ  of  right,  the  only  ques- 
tion is,  which  of  the  parties  had  the  better  right ; 
and  the  evidence  to  establish  the  right  is  subject  to 
the  same  rules  as  in  other  cases. 

Nase  v.  Peck,  (128)    642 

2.  Where  the  ancestor  of  the  demandant  was  in 
possession  of  the  premises  in  question,  fifty-one 
years  ago,  and  died  in  possession  forty-one  years 
ago,  leaving  the  demandant  his  only  son,  this  was 
held  sufficient  evidence  to  rebut  the  presumption  of 
right  in  the  tenant,  arising  from  a  possession  of 
thirty-eight  years  only,  commenced  by  wrong.  And 
a  patent  dated  in  1697,  produced  in  evidence  by  the 
tenant,  not  for  the  purpose  of  deducing  a  title  to 
himself,  but  to  show  a  title  out  of  the  demandant, 
was  held  not  sufficient  to  repel  the  conclusion  in 
favor  of  the  demandant,  as  the  jury  might  presume 
a  title  in  the  ancestor  of  the  demandant,  derived 
from  the  patent. 

Nose  v.  Peck,  (IM    642 

787 


A_"  ••••I    III    II     I 

001  028  869     4 


r-*f.m 

4 


